HR 620: The ADA Nullification Act

Today has been, overall, disappointing. I got an adverse (and ridiculous boilerplate) agency review decision regarding my eligibility for Vocational Rehabilitation Services. I also learned that eight nursing home residents died after power outages caused by Hurricane Irma. But, I want to write about the issue that may have the greatest and longest-lasting ramifications: HR 620.

It’s sponsor, Ted Poe (a Texas Republican), euphemistically titled the bill the ADA Education and Reform Act of 2017. It should truly be called the ADA Title III Nullification Act of Hopefully Never. Currently, the only way ADA noncompliance is rectified is if a person that has a disability pursues action against the discriminatory party. If, for example, a new store is built with zero means of access for someone in a wheelchair (i.e., the only means of entry is staircases), no one is going to make the store owner comply with the ADA except people with disabilities. They could try to speak to the owner and explain that he or she is out of compliance. Or the person with a disability could file a complaint with a local human rights commission or the US Department of Justice. No government agency is out inspecting and ensuring accessibility. Complete onus is on the person with a disability.  Based on this noncompliance (note that businesses have been aware of the ADA for 27 years and have had more than two decades to learn the rules and comply) and the effects of discrimination, as well as potential out-of-pocket fees spent on court filing and attorney fees, people with disabilities can potentially recover limited damages under the ADA.

Businesses and their buddies, like Representative Poe, are upset that ADA compliance is mandatory and, potentially, costly. It is business that has petitioned for HR 620. The bill, if passed, will be detrimental to civil rights and people with disabilities. Why? If a person with a disability discovers an architectural barrier, he or she will no longer be able to file a lawsuit unless: (1) he or she provides specific notice to the owner of the noncompliant entity regarding the barrier; (2) the owner fails to, within 60 days, provide a description of the changes it will make to become compliant or fails to, within 120 days, make substantial progress on the barrier removal. This is absolutely ridiculous.

The ADA has existed for 27 years; businesses have had ample time to comply. Now, any incentive to do so proactively is gone. New businesses will likely wait until they receive a complaint to make their buildings and services accessible. And, people with disabilities may be less likely to complain. Having to manage attendant care, paratransit, and a regular job can be exhausting, and few will have time to regularly follow up with the business and ensure is making reasonable progress toward compliance. It is much easier to ask an attorney to handle the letter-writing and maintenance aspects of the proposed amendments. Yet, with or without attorney, HR 620 would require a person who has been blatantly discriminated against to wait half a year before they can enforce their rights.

Businesses frequently state that they are frustrated with “drive-by lawsuits,” in which attorneys will search Google maps, look for businesses with noncompliant parking lots, find a local person with a disability to name in the suit, and file. The business may offer to settle, not wanting to engage in costly litigation, and the litigant and lawyer may make off with $2,500 each for minimal work and, allegedly, minimal harm caused by the business’ noncompliance.

This argument is completely bogus. I live in Indiana. We have no problem with ADA drive-by lawsuits. California and Florida may have a problem, but remedies already exist. Rule 11 of the Federal Rules of Civil Procedure prohibits attorneys from filing frivolous lawsuits or harassing the adversarial party. Attorneys are sanctioned if they violate Rule 11, and all law school students learn this in their 1L Civil Procedure class. DREDF also notes that attorneys and Bar Associations have ethical obligations that prohibit inappropriate behavior by attorneys. California sanctioned one attorney regarding his unethical disability litigation methods.

From an ethical perspective, I’m truly disturbed that Representative Poe apparently has no qualms about putting forth a bill specifically designed to diminish the rights of people with disabilities. And I’m even more upset that the bill has 51 cosponsors. Members of both parties have cosponsored it. Are disability rights still a bipartisan issue? Perhaps. However,  I would be remiss if I failed to share that the bill was passed out of the Judiciary Committee along party lines. All 15 Republicans voted in favor of the bill, and all nine Democrats voted against it.

If you are even half as concerned as I am about HR 620, please contact your representative and ask him or her to oppose the bill. Share with them how it diminishes civil rights and encourages noncompliance. Share that, in addition to the arguments given above, the bill is simply immoral. Share that disability rights matter.

Review: Devil’s Bargain

Not long ago, I quickly finished Joshua Green‘s Devil’s Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency. I actually read it after Bannon left the White House; I never really understood the controversy over his entry or exit in the Trump Administration, and bought the book in order to provide insight. To an extent, the book was helpful, but only insofar as providing the typical left-of-center perspective dished out via the mainstream media.

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Green’s initial description of Bannon is “as a colorful version of a recognizable Washington character type: the political grifter seeking to profit from the latest trend.” He is also repeatedly portrayed as slovenly, apparently having only recently decided to “swap[] the cargo shorts for cargo pants and toss[] a blazer over his many layers of shirting.” His motto? “Honey badger don’t give a shit.”

Much more interesting than Green’s perspectives on Bannon are those regarding Trump. Reportedly, Trump is incredibly superstitious, going so far as to throw salt over his shoulder during meals. Apparently Corey Lewandowski and Trump had a falling out as Lewandowski believed that, because Trump treated him as a son, he could act like one. Not the case. Green also writes that Governor Chris Christie also irked Trump, repeatedly attempting to ingratiate himself with the family and refusing to respect Trump’s personal space.

Gossip about individual quirks aside (and Green does make a point of noting that his writing is extensively sourced), the book speculates that Trump became serious about running for president after he was humiliated at the White House Correspondents’ Dinner by President Obama and Seth Meyers. He did run, and when Paul Manafort’s efforts to mold Trump into a more conventional candidate began tanking the campaign, the Mercer family encouraged Trump to bring Bannon on board.

The book discusses Bannon’s background, both personally and professionally, but never really explains why he is so incredibly disliked, aside from his efforts to have the Clintons discredited. Although Green appears to dislike populism, in general, he never offers policy arguments to illustrate why Bannon’s platforms are wrong or inappropriate. While I did learn gossipy tidbits mentioned above, Devil’s Bargain falls flat when it comes to anything more than that.

Review: The Vanishing American Adult

I didn’t read Senator Ben Sasse‘s The Vanishing American Adult: Our Coming-of-Age Crisis and How to Rebuild a Culture of Self-Reliance when it initially came out because I was put off by the title. Do we really need another anti-millennial book? And is anyone truly self-reliant in contemporary culture? Moreover, I was reluctant to read yet another politician dictating policy solutions when he has little grasp on those upon whom he is prescribing policy. Indeed, I only picked up the book at the recommendation of my friend, T.K. Small. I’m glad T.K. recommended the book and have since learned not to judge a book by its title (or it’s author’s profession)!

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What first impressed me about Sasse was his writing itself. I was not expecting syntax and diction that were pleasant to read; I suppose a stereotype Nebraskans as boring farmers, but Sasse’s style is entertaining. Moreover, it is based in fact; he uses a fine balance of academic literature and personal anecdote to convey information in a well-paced manner.

And, although the beginning of the book does discuss how millennial Americans fail to meet many of the standards of their forbearers, Sasse does not blame millennials for these shortcomings. Rather, he takes the reader through an interesting history of the American education system and the goals of social reformers like John Dewey. As immigrants arrived from various backgrounds and jobs became harder to get, school was a good place to stick new arrivals and provide a standardized baseline. However, education transitioned from the classical toward the pragmatic. More time was continually devoted to the classroom, taking students away from family, the community, and jobs. Learning became a passive endeavor.

Dewey’s student ultimately has no soul. The only thing that matters, in the end, is man’s relation to his society. The societal here and now is the all in all. The goal is expressly not the full flowering of the individual, but rather ‘all education preceded by the participation of the individual in the social consciousness of the race.’

Certainly, other factors contribute to the lack of well-roundedness with which today’s young adults must grapple, but the mere fact that so much of one’s youth is spent in the classroom contributes significantly to the problem.

In the second, and largest, part of the book, Sasse offers concrete ideas for helping youth grow into adulthood. Importantly, none of the five proposals is a policy idea, but instead direct action that parents can take to enrich the lives of their children. He proposes: ensuring that young people spend time with those of a range of ages and experiences; arranging for youth to work; diminishing consumption of material goods; traveling; and sharing great works of literature with young people. Sasse uses his own family’s practices as examples for instituting the above ideas, but also recognizes that implementation will look different for every family. For example, he notes that one need not travel far in order to try one’s hand at navigating, managing a new environment, and participating in new experiences.

I’ve already noted that I was impressed with the book, and believe others would learn from its pages. In particular, I would recommend this book to parents and those who have children in their lives, including aunts, uncles, and mentors.

Review: Dangerous

I really hesitated before purchasing Milo Yiannopoulos DangerousI was afraid of the controversy that reading the book in public might entail. One of my work colleagues and I discussed Milo and his movement after the riot that followed him at Berkeley. Before hearing about the massive damage left in his wake, I had never heard of him, nor read his Breitbart columns. Shortly after the Berkeley incident, Milo made the news again, resigning from Breitbart after allegations that he supported pedophilia. So, you can imagine why I was leery.

It turns out that Milo relishes the spotlight, referring to himself as a “dangerous faggot” and adopting the drag persona Ivana Wall. His book describes the role he’s created for himself, eagerly pushing boundaries and challenging liberals who try to suppress the free speech of himself and others. Milo promises readers that he is a “good troll,” only using “a certain level of disregard for other people’s feelings” when “reasoned argument and polite entreaty have failed.

Nonetheless, in Dangerous, Milo is occasionally downright mean for no apparent purpose, other than getting himself put squarely back in the limelight. Milo regularly complains about “ugly women” and “fat people,” yet claims he only trolls “deserving targets,” including “the disabled.” What did people with disabilities ever do to get on Milo’s bad side? I find his attitude toward people with disabilities particularly ironic given that Milo claims HIV/AIDS is still a problem worthy of attention, particularly amongst the gay male population. Funny that, when the Americans with Disabilities Act was being passed, disability advocates fought tenaciously to get HIV/AIDS recognized as a disability within the Act’s protection.

The surprising thing is that Milo actually has many astute points. Particularly in regard to social media censorship and the millennial generation’s engagement in the political sphere, Milo has many thoughts worthy of discussion. Because I actually learned something from Dangerous – something interesting, I promise, completely aside from name-calling – I feel compelled to recommend that others give the book a chance. At the same time, I understand if and why you don’t. Fortunately, you have to freedom to expose yourself to Milo. (I’m sure he’d get a kick out of it!)

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Free Our People Film Festival

I got home slightly before midnight, went to work in this morning, and saw the doctor this afternoon. So, you can expect me to be pretty tired. Nonetheless, I have to share how much fun it was participating in the Center for Disability RightsFree Our People Film Festival in Rochester, New York on Tuesday!

In March, my sister, Ginny, and I wrote and produced a seven-minute film, (Crip)perelli Life 2: Home Is Where The Hat Is. The film is a sequel to (Crip)perelli Life, a story about a highschooler with spinal muscular atrophy that joins a Mafia family with similarly disabled people. In the sequel, the highschooler’s service dog racing ring gets busted by the cops, and, without a transition plan in place, he gets stuck living in a nursing home. Members of the Cripperelli family have to bust him out.

Although the movie is satirical, it tackles the important and oft-ignored subject of institutionalization.  In fact, it’s estimated that more than 200,000 non-elderly people currently reside in nursing homes. The Center for Disability Rights sought to bring attention to this topic by sponsoring the Film Festival. Ginny and I came in second place, and had the pleasure of attending the Film Festival in person.

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Ginny introducing our production

In addition to watching the winning and third-place videos, the Center for Disability Rights showed a couple of other videos highlighting the terrible consequences of institutionalization. A filmmaker panel concluded the evening, as members of the audience got to ask questions about the films and other disability advocacy projects.

I was privileged to participate in the Film Festival, and encourage anyone reading this blog to check out each of the short films. You will laugh and definitely learn something.  Center for Disability Rights CEO Bruce Darling also committed to promoting a similar Film Festival next year, so keep visiting the website throughout the year if you want more information on how you can participate!

Banishing Bumpiness

Are you a wheelchair user? Do you experience back or neck pain? If so, you’re not alone. Today I listened to a Great Lakes ADA Center webinar on Surface Roughness and Rollability. I was surprised to learn that wheelchair users are twice as likely as the general population to suffer back and neck pain. In fact, 60% of wheelchair users report such soreness. Some of this discomfort may be attributed to vibrations caused by rolling over uneven pathways.

Uneven pathways are bad all around. Presenter Jon Pearlman shared that $30 billion is annually spent on medical costs associated with falls. The elderly population is especially susceptible to tripping. Falls also are the most common cause of traumatic brain injuries. If wheelchairs – and especially scooters – go over particularly uneven pathways, people sitting in them may fall out. Bad, bad, bad!

Dr. Pearlman and his team discovered that, regardless of the wheelchair brand/model, vibrations measured in wheelchair seats that are driven over pathways fall either within or above the vibration caution zone delineated by OSHA. So how do we minimize this danger?

Unfortunately, DME companies have not worked to resolve the problem. Studies reveal that wheelchair cushions actually amplify vibrations into the spinal column of the wheelchair user. Suspension systems are not sufficient, either. However, to create an adequate suspension system for the level of vibration typically experienced by a wheelchair user, the wheelchair would likely become unwieldy.

The solution, then, appears to lie in the proper design of pathways themselves. Surprisingly, Dr. Pearlman reports that some paving stones create smoother pathways than poured concrete. The pattern and bevel of the paver stones are determinative of the vibrations wheelchair users will experience. Municipalities, which are typically responsible for creating pedestrian paths, should take heed of Dr. Pearlman’s data when planning new projects.

Interestingly, the US Access Board funded a portion of Dr. Pearlman’s research. My hope, as a cobblestone-hating wheelchair user, is that the Access Board will develop standards requiring minimum smoothness.

Access and Inclusion Awards

Last Tuesday, I attended the annual Mayor’s Advisory Council on Disability‘s Access and Inclusion Awards. (As for this post, better late than never, right?) This ceremony did not occur last year because the Mayor’s Office was considering merging these awards with other diversity award ceremonies. But, thanks to relentless advocacy from Councilmember Paula Haskin, Mayor Hogsett agreed to a 2017 program.

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The ceremony began with a few words from the Mayor. His speech was geared toward empowerment and appreciation for the 27 years of continuing advocacy people with disabilities have made. His referring to a person in a wheelchair as “wheelchair-bound” was a minor blunder. For those who are unaware, “wheelchair-bound” is a disfavored phrase by many who use wheelchairs. We see wheelchairs not as something we are stuck in, but rather as tools of freedom. It was a teachable moment.

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Awards were received by the following individuals:

  • Scott Wise, owner of Scotty’s Brewhouse, won the award for being an employer offering opportunities to people with disabilities.
  • Indy Pride won for being a community organization going above and beyond to include individuals with disabilities in its programming.
  • Wade Wingler, of Easter Seals Crossroads, won the lifetime achievement award in honor of a life of service to individuals with disabilities.