Assistant Attorney General for the Civil Rights Division Thomas E. Perez Speaks at the National Council on Independent Living Annual Conference
With the 20th anniversary approaching, I’ve been talking a lot about the ADA lately, its implications and the progress made since its passage, and the challenges that remain. Anniversaries such as this one are opportunities to celebrate our great accomplishments, to take a moment to congratulate the advocates who worked so hard for passage and who have since had their boots on the ground ensuring that the promise of the ADA is realized.
Upon its passage, Senator Ted Kennedy spoke on the Senate floor of its significance: he said "The act has the potential to become one of the great civil rights laws of our generation. Disabled citizens deserve the opportunity to work for a living, ride a bus, have access to public and commercial buildings, and do all the other things that the rest of us take for granted. Mindless physical barriers and outdated social attitudes have made them second class citizens for too long. This legislation is a bill of rights for the disabled, and America will be a better and fairer nation because of it. "
Two decades later, because of the hard work of the people in this room and others like you, we know that he was right. The ADA has both literally and figuratively opened millions of doors for individuals with disabilities across this nation. Just as importantly, it has revolutionized the way the rest of society thinks about individuals with disabilities, and it has revolutionized the way that people with disabilities live in our communities.
We have much to celebrate.
But for all of the progress made, I continue to hear about people like Paul Boyd, who I had the opportunity to meet earlier this year while on a trip to Birmingham, Alabama. In 1995, while a sophomore at Troy State University, Paul was injured in an accident that left him paralyzed below the collar bone. Paul eventually returned to college in his hometown of Montevallo, graduating in 2007 with a bachelor of fine arts degree.
In December 2006, Paul entered a nursing home, and in his own words, it is “next to impossible” for him to find work that would allow him to live independently. Earlier this year, Paul was accepted to a graduate program at the University of Montevallo to seek his master’s degree in community counseling. But his classes would be at night, and he is not sure that he will be able to begin the program because of lack of transportation from his facility, which is 13 miles from the University. Paul told us that if he could get out of the nursing facility and receive services in his community in Montevallo, he could easily make it to his classes. Montevallo is Paul’s hometown, and while he has an extended support network of siblings and friends there, that is not enough, and the community-based services he needs to live independently simply are not available.
And as you all know too well, Paul’s story is not an exception. As we prepare to celebrate the ADA anniversary next week, one of the greatest challenges that still stands in the way of full equality is unnecessary institutionalization. 11 years after the Olmstead decision, wee have seen some progress, but far too many individuals in too many states continue to be illegally segregated from their communities.
I have said repeatedly that enforcing Olmstead is a top priority for the Civil Rights Division, and we have aggressively pursued opportunities to back this assertion up with action.
In January, the Division filed a motion for immediate relief in a case involving seven state-run psychiatric hospitals in Georgia, including the facility that was at the heart of the Olmstead case more than a decade ago. A year prior to our motion, the Division and the state entered into an agreement to ensure that individuals in the hospitals were served in the most appropriate integrated settings and that unlawful conditions in the hospitals were remedied, but the court had not yet approved the agreement. After monitoring conditions at the hospital, the Division found that hundreds of individuals who could and should be served in the community remained institutionalized. In addition to this unlawful segregation, individuals in the hospitals are exposed to often dangerous conditions.
In one of the most egregious examples, 14-year-old Sarah Crider, three months after being admitted to Georgia Regional Hospital in Atlanta for mental illness, died after becoming “lethally constipated” while in the hospital. Sarah had been prescribed an assortment of psychotropic medications, many of which commonly caused constipation. One the day before her death, Sarah complained of stomach pain and had nausea and vomiting. An autopsy found that her colon was stretched almost to the point of bursting, and that she died of sepsis, an infection in her bloodstream. An investigation found that her impacted bowels had developed over time and could have been detected by more careful medical care.
In May, the Division filed suit against the state of Arkansas for systematically violating the ADA by segregating residents in six state run institutions for individuals with developmental disabilities. While confined in the Arkansas Human Development Centers, the 1,100 residents of the facilities have extremely limited access to community activities and amenities, as well as limited opportunities to interact with people without disabilities. The current wait list in Arkansas for home and community-based waiver services for individuals with developmental disabilities who are seeking community alternatives to institutionalization totals approximately 1,400 people. This wait list moves at an extremely slow pace, with most people waiting several years for community services. Individuals currently at the bottom of the list will likely wait more than a decade to receive community services. Yet, the state is actively expanding its HDC institutions at the cost of developing community alternatives.
Also in May, in Florida, the department filed a statement of interest to support Michele Haddad’s lawsuit against the state. Ms. Haddad, a 49-year-old woman with a spinal cord injury resulting from a motorcycle accident with a drunk driver, has quadriplegia. After a change in her caregiver situation, Ms. Haddad alerted the state that she would need community-based services. But the state informed her that it would fund services only after she entered a nursing home for 60 days first. Ms. Haddad, who has successfully resided in the community since 2007, has been on the waiting list for services for two years. The United States’ filing supported her complaint and declaration for a preliminary injunction against Florida. Last month, the U.S. District Court in Jacksonville ruled that the state must provide Ms. Haddad with services that will allow her to remain in her home.
In New York, the Justice Department intervened in Disability Advocates Inc. v. David A. Paterson, et al., a case brought by a protection and advocacy organization to challenge the state’s placement of persons with mental disabilities in Adult Homes. The Department filed a brief in support of the advocates’ proposed remedial plan to require the state to create 6,000 new community-based placements, and against the state’s proposed plan to create approximately 1,000 new placements.
President Obama made clear his commitment to making the promise of Olmstead a reality when he announced last year the Year of Community Living. In the Civil Rights Division, as well as in our sister agencies, we are committed to carrying out this vision, and we will continue to pursue cases that ensure that promise is realized.
In addition to Olmstead enforcement, accessible technology is another priority as we enter the third decade of ADA enforcement. In the 21st century, technology drives so much of our work and our lives. Technology has revolutionized our economy and culture. It has made obtaining information, entertainment, education and goods easier and more efficient. Technology has been in many circumstances, and should be in all circumstances, an ally for people with disabilities. But many of these technologies, from Web sites to cell phones, from ticket kiosks to TV set-top devices, are either in whole or in part inaccessible to persons who are blind and other people with disabilities.
We know that as much as technology can enhance the lives of people with disabilities, inaccessible technologies can pose significant challenges to those same individuals, and we must remain vigilant to ensure new technologies don’t leave individuals with disabilities in their wake. We acted swiftly on the complaints about the use of the Amazon Kindle at universities, and we reached agreements with five major universities: Princeton; the University of Arizona; Pace; Case Western; and Reed College. Those institutions have agreed not to use inaccessible electronic readers, and we will continue to make sure other institutions nationwide are aware of their accessibility obligations.
And though we have seen some voluntary efforts by companies once the matter is brought to their attention, far too many companies choose to forgo making their products and services accessible to all consumers.
Let me be clear. It is and has been the position of the Department of Justice since the late 1990s that Title III of the ADA applies to Web sites. We intend to issue regulations under our Title III authority in this regard to help companies comply with their obligations to provide equal access.
In the area of accessibility to public programs, facilities and services, we continue to promote voluntary compliance by public entities through Project Civic Access, where cities and municipalities work cooperatively without litigation to reach compliance with Title II. The 176 agreements under the program to date deal with all aspects of civic life, including courthouses, health departments, libraries, parks, theaters and stadiums, sidewalks, and emergency shelters, as well as employment, voting, emergency preparedness, and effective communication especially in law enforcement and 9-1-1 services.
Civic access is a civil right, and when jurisdictions will not cooperatively comply, we will not hesitate to file suit.
We recently settled a case against Jackson, Mississippi, for failing to make their public transit system accessible or make their para-transit systems fully compliant with their obligations under the ADA. The consent decree with Jackson mandates not only that busses include wheelchair lifts, but that bus drivers call out stops for passengers who are blind and that the para-transit allow reliable next day service. This is particularly critical because it ensures that the plaintiffs in the case, teachers who are blind, have accessible transportation to their place of work, the Mississippi School for the Blind.
Working often with our partners in U.S. Attorneys offices, we have a steady diet of litigation involving accessibility of hotels.
But accessible public facilities and accommodations mean little to an individual who can’t find accessible housing. The Fair Housing Act and the ADA have specific accessibility mandates, and yet far too many developers continue to forgo their obligations, either knowingly or out of ignorance of the law. On this front, we have recently settled two matters -- one in Iowa and the most recent in Tennessee.
In both cases we insisted that the developers not only fix their inaccessible properties, but also pay compensation to the persons with disabilities who sought to live in the developments. We also have an extensive outreach program to educate developers and architects about their obligations so that we can reduce the number of inaccessible developments built in the first place.
I was in Boston a few weeks ago speaking at a conference of developers, architects, code enforcement officials and NGOs about ensuring compliance with the accessibility provisions of the Fair Housing Act and the ADA. The Fair Housing provisions were enacted in 1988, and became effective in 1991. There is no excuse for noncompliance.
The Fair Housing Act provisions also apply to discriminatory zoning matters. We have a case against the city of Baltimore, which has mandated that substance abuse centers get special zoning permits when other entities don’t have to.
Along with housing, access to healthcare is among the most basic and critical needs for all individuals. The landmark healthcare reform legislation signed this year by President Obama will ensure that millions of Americans with disabilities can get the coverage they need but were too often denied because of the pre-existing condition clauses in insurance policies. But as long as we have inaccessible hospital facilities or hospitals that do not use accessible medical equipment, many individuals with disabilities will continue to be unable to access critical care.
We reached an important settlement with Beth Israel Deaconess Medical Center in a physical accessibility case. We have a steady stream of hospital interpreter cases, and we just posted on our web site guidance on accessible medical equipment.
In the education setting, we participated in a case in Tennessee that involved the harassment of students with disabilities on buses in order to enhance security for those children. We are working diligently to ensure that children with disabilities have equal education opportunity, and we currently have a nationwide pattern or practice case involving Nobel Learning Communities, a large private child care and school provider that excludes children with autism spectrum disorders. We are also investigating the Judge Rotenberg Center in Massachusetts for use of aversive restraints and electro-shocks.
All of these are battles that individuals with disabilities have been fighting for decades. The ADA has placed the power of the law behind those fights, and we continue to use it as a vital tool to break down long-standing barriers and emerging challenges to advance civil rights in our nation.
But no matter how aggressively we enforce the law and despite great progress in perception, 20 years after the signing of the ADA we still face the challenge of attitudes and stereotypes that stigmatize disabilities and are every bit as destructive as racism, sexism, homophobia and the other prejudices that have certainly lessened over time, but have not been completely eradicated from our hearts and minds.
When the Civil rights Division has to enforce the right of a family with an HIV positive child because the owner of an RV resort tells them that their two-year-old can’t swim in the swimming pool, as we did in a case in Alabama, we know we still have a long way to go.
When we have to bring a case against an attorney--of all people-- who refuses to allow a woman with a service dog into his office, as we did in Colorado, we know we have a long way to go.
When we have to fight for a the right of a social worker who is deaf to be hired doing a job for which she is imminently qualified because the government employer doesn’t want to accommodate her with a part-time interpreter, as we did in California, we know we have a long way to go.
The progress made in 20 years is remarkable. But in the Civil Rights Division, we are celebrating this anniversary by turning our attention to the next 20 years so that we can continue to create a nation where every individual has access to equal opportunity and equal justice.
Updated September 17, 2014