CLOSING THE GAP:
A TEN POINT STRATEGY FOR THE NEXT DECADE OF DISABILITY CIVIL RIGHTS
ENFORCEMENT August 10, 2000
NATIONAL COUNCIL ON DISABILITY
I. BACKGROUND
In 1996, 300 disability leaders at a national summit
on disability policy in Dallas, Texas called for an end to discrimination
and more vigorous enforcement of disability civil rights laws. These
same leaders charged the National Council on Disability (NCD) to
work with the responsible federal agencies toward achieving that
goal. By 1996, NCD had already published several reports documenting
indicators of weak enforcement and its impacts, particularly on
communities of people with disabilities from diverse cultures. After
the summit, NCD examined the practices and track records of federal
agencies charged with enforcing major federal disability rights
laws. In a series of reports entitled Unequal Protection Under
Law, NCD documented findings and recommendations on the federal
enforcement of the Air Carrier Access Act (ACAA), the Individuals
with Disabilities Education Act (IDEA), and the Americans with Disabilities
Act (ADA). Each report showed that despite great strides toward
equality, people with disabilities still deal with major ongoing
barriers of discrimination and the consequences of weak federal
enforcement.
This year in May, NCD convened Think Tank 2000: Advancing
the Civil and Human Rights of People with Disabilities from Diverse
Cultures. This group of experts from diverse cultural, professional
and disability backgrounds was charged with developing action steps
for fully implementing disability rights laws at the community level
for people from diverse cultures and other under-served groups.
Within a month after this meeting, NCD convened a second group,
the Civil Rights Retreat, to build upon the Think Tank 2000 plan
of action and the Unequal Protection Under Law reports. These
experts, also from diverse cultural, professional and disability
backgrounds, were charged with mapping out the elements of a ten-year
strategy for more effective civil rights enforcement.
The resulting ten point strategy represents a collective
effort by people from many diverse backgrounds to reach past their
own community perspectives to understand and lend a hand to one
another on the road to full equality. They realized that to make
a difference, the plan must speak to people across the boundaries
of disability, race, culture, age, education and income. It must
affirm the fundamental truth that power comes from unity, and from
power comes a mighty force for change. To succeed, the plan must
inspire leaders who not only can bring together people from many
different civil and human rights perspectives, but who can inspire
them to unified action. For it is people - from every community
in the land and every station in life - acting together from a common
vision of equality, who will keep the promise of inclusion, independence
and equal opportunity for all.
II. PROPOSED STRATEGIC ACTION PLAN
The reality of inclusion and equal opportunity for
all can only be attained through collaboration and cooperation at
all levels, inspired by bold and enlightened leadership. Leaders
from all public and private sector interest groups - the Administration,
the Congress, grassroots advocates, state and local public agencies,
education, business, religious, professional and civic organizations
- must come together and decide what each group can and should do
to get us there. Organizations such as the National Council on Disability
and the U.S. Commission on Civil Rights will continue to articulate
with increasing clarity the policy goals before us. Others will
be catalysts and organizers of change by mobilizing and activating
constructive action.
ACTION STEP 1: Build Bridges: Equality is Everybody's
Business.
Activate people from every disability,
human and civil rights movement around their shared passion for
equality and create a common agenda for full inclusion. Affirmative
outreach to people who share a common commitment to civil and human
rights will create new alliances from which new leadership and powerful
strategies for change can emerge. Steps for building bridges that
can lead to unified action among people from diverse cultural, political
and disability backgrounds are:
(a) Understand Each Other
- Hold workshops, conferences and conventions where members at every
level (national, state and grassroots) of the various civil rights
constituencies can regularly exchange views and share experiences.
(b) Develop a Common Agenda -
Survey civil and human rights organizations of all kinds to identify
national and grassroots organizations willing to collaborate on
developing a common agenda and shared goals in the areas of civil
rights issue-identification, policy-development, monitoring, litigation
and advocacy.
(c) Mobilize for Action -
Support the emergence of leadership and cross-cultural action coalitions
at the national, state and local levels around specific strategies
to advance the implementation and enforcement of civil and human
rights laws.
(d) Think Globally - Broaden
the membership and work of coalitions through international outreach
to disability, civil and human rights advocates with similar values
and goals. Invite marginalized and emerging groups lacking civil
and human rights protections to join the movement.
ACTION STEP 2: Know What to Do and How to Do It: Knowledge
is Power.
Culturally competent, accessible and low-cost information
and training impart the skills to effectively fight discrimination.
Cross-cultural coalitions of knowledge and technical experts are
needed to develop multi-format, multi-language information and training
systems (on-line and traditional) for identifying, evaluating and
applying the information needed to overcome the barriers to equality.
Collectively, these systems must:
(a) Accommodate the needs of all
users around accessing, understanding and applying information
(i.e., multiple languages, multiple information presentation formats,
and multiple levels of data complexity.)
(b) Be interactive (responsive
to user questions);
(c) Provide broad access to cross-referenced
information on civil rights implementation and enforcement so
people can find the resources they need to access their rights and
where to locate these resources.
(d) Elicit continuous feedback from
consumers and users so that systems are continually redesigned
to meet consumers' changing needs.
Besides creating training and information systems
everyone can use, interested action groups must devise strategies
for ending the digital divide. This includes getting the federal
government to enforce technology access laws. The goal is an end
to all barriers based on disability, cultural difference or income,
and equal access to present and future training and information
technologies for all people.
ACTION STEP 3: Elect a Disability-Friendly President
and Congress to Fix What Needs Fixing.
Action coalitions across disability and other civil
and human rights groups should bring people together to initiate
and support the following measures:
(a) Ask for Commitments -
Ask all candidates for political office to publicly declare their
philosophies on civil rights and their commitments to enforcement.
Use the power of the disability community vote to elicit public
declarations from political candidates.
(b) Make Allies - Develop
ongoing relationships with members of Congress, state legislators,
and key legislative and executive branch staff at the federal, state
and local levels. Develop strategies for engaging the disability
and civil rights communities in key Congressional and state government
committees and other political activities geared to effective civil
rights enforcement.
(c) Tell Them the Bottom Line -
Conduct a broad and bipartisan education outreach strategy on the
goals of inclusion and independence and the vital importance of:
- Support for the full implementation and enforcement
of all existing civil rights laws, including adequate funding
for enforcement;
- Opposition to amendments to any civil rights law
that would undermine the intended protections and benefits;
- Support for amendments designed to correct statutory
deficiencies or correct case law that has undercut the intended
protections or benefits of civil rights laws, particularly the
narrowing of the ADA definition of disability by the federal courts,
and the lack of statutory provisions for compensatory damages.
(d) Get the Word Out - Use
the most advanced grassroots organizing and notification techniques
to:
- Publicize detailed information on legislators'
voting records and other public stands on civil-rights related
issues; and
- Enable the largest number of concerned stakeholders
to express their opinions on proposed bills and upcoming votes
to decisionmakers.
(e) Tell it Like it
Is - Create and implement a Civil and
Human Rights Impact Statement (pursuant to a statutory requirement
or stakeholder monitoring) like the well-known Environmental Impact
Statement, which spells out implications of proposed legislation
on the rights and opportunities available to Americans with disabilities
and other protected classes.
(f) Make Democracy Work: Participate
- Action coalitions across the country should organize their members
to:
- Register and vote;
- Create disability-friendly political planks and
platforms; and
- Elect us! Promote, nominate and vote for disability-friendly
candidates, including disability and other coalition leaders.
ACTION STEP 4: Raise the Money and the Bar on Federal
Enforcement.
Pressure for effective enforcement must come not just
from the bottom up, but also from the top down. Strong leadership
must also come from the President in setting a standard of greater
federal commitment to deliver on the promises of disability and
other civil rights laws. The President should exercise leadership
to:
(a) Give disability issues high
visibility within the Administration - Disability issues
must have strong and visible priority at the highest level in the
White House. One possibility would be for the President to appoint
a strong advisor/spokesperson, similar to the AIDS czar, to speak
for the President on all issues affecting disability policy. A function
of this spokesperson could be to coordinate and integrate activities
of all White House "policy and political" offices, as well as all
federal agencies responsible for administering and enforcing disability
rights laws and policy. Another function could be to use the bully
pulpit of the White House to call attention to critical civil and
human rights issues facing the disability community.
(b) Get the Federal Act Together
- The President should direct the U.S. Attorney General to:
- Exercise bold leadership in developing a plan for
systematically implementing the recommendations of the Unequal
Protection Under Law reports.
- Lead an interagency effort by all federal agencies
having statutory enforcement responsibilities to coordinate their
individual agency enforcement plans and develop a joint strategic
action plan for vigorous overall enforcement of all disability
rights laws.
- Direct that both plans include specific outcome
goals and performance indicators for measuring progress toward
enforcement goals.
- Direct continual and substantial input from the
disability civil and human rights communities in developing the
action plans and monitoring their implementation.
(c) Allocate money for enforcement
- Resources for enforcement are the joint responsibility of the
President, who establishes the vision, the Congress, which appropriates
funds for the agencies to carry out their enforcement mandates,
the executive branch agencies, which request the necessary resources
to enforce civil rights as the law requires, and the public, which
gives input on what the enforcement spending priorities should be.
More funds must be targeted for specific federal enforcement activities,
and especially for expanding, improving, and ensuring the quantity,
quality and cultural competence of direct public interface services,
(i.e., investigative, legal, technical and educational).
(d) Require Accountability -
The President should require federal enforcement agencies to disclose
their enforcement plans and activities to the public for feedback.
Agency enforcement plans should be published periodically in the
languages appropriate to their constituent communities. Stakeholder
groups must be involved in giving feedback to the agencies on their
enforcement plans, which should address the following:
- The agency's enforcement mission, goals, and objectives,
including performance measures for meeting objectives;
- Budgetary and other resource allocations for civil
rights enforcement;
- Enforcement priorities, how they were established
and the distribution of resources among enforcement activities
such as compliance reviews, case finding, complaint processing
and adjudication, post-adjudication monitoring, and others;
- Settlement policies and factors influencing settlement
outcomes, (i.e., case backlog, quality of available cases, number
of referrals to mediation, etc.);
- Sanctions imposed and other enforcement actions
such as corrective action plans initiated in response to persistent
noncompliance;
- Coordination of enforcement activities, policies,
record keeping and resources with those of other agencies.
- Methods for obtaining and using community input
and feedback on enforcement methods and priorities.
- Criteria for determining when a civil rights law
requires an amendment to successfully achieve its objectives.
ACTION STEP 5: Publicly Monitor Agency Accountability.
All people have a stake in civil
rights enforcement - When it comes to effective enforcement,
the only thing that counts more than well-informed constituencies
are their ongoing demands for accountability. Monitoring groups
typically consist of stakeholders selected for their interest in
and knowledge of the agency or statute in question. Coalition members
(particularly those from diverse cultures) must become strategically
involved with monitoring and advisory groups whose purposes are
to assist agencies in their enforcement efforts. If agencies resist
stakeholder involvement, enough precedents for organized stakeholder
monitoring and public information about agency activities exist
for such efforts to proceed effectively and responsibly. Stakeholder-monitoring
groups should:
(a) Review and provide feedback
on the target agency's enforcement record as compared to
its enforcement plan;
(b) Participate in assessing the
agency activities against the performance standards/outcome measures
used by the target agency for monitoring progress toward civil rights
compliance;
(c) Insist that sanctions be applied
to entities shown to engage in persistent discriminatory practices
and fail in fulfilling corrective action plan measures.
(d) Identify and publicize
the target agency's failures to meet either statutory or enforcement
plan requirements as to timelines, procedures, reporting and other
matters.
(e) Counter political resistance
to vigorous enforcement by publicizing the grounds for agency
enforcement and upholding the target agency's enforcement mandate.
(f) Raise enforcement issues
of national and international importance to the attention of federal
administration officials.
ACTION STEP 6: Win in Court and Win the Courts Over.
Action coalitions must mobilize across civil and human
rights groups to carry out a comprehensive strategy for making legal
resources available to:
(a) Give People Access To The Courts
-The cost of litigation is beyond the financial reach of many, acutely
affecting those from low-income communities who most need the protections
of the law. Identify and create funding mechanisms to put competent
legal representation within the reach of those who need it.
(b) Support Litigators -
Create and maintain document repositories including brief banks,
pleadings, supporting memoranda of law, unpublished opinions, administrative
law decisions, settlement agreements and other documents useful
to attorneys in evaluating and arguing civil rights cases.
(c) Make it Worth It - Pursue
all available sources of funding to pay civil rights litigators
and other providers of legal services (i.e., paralegals, mediators,
etc.) for people with disabilities. Sources include legal services
and protection and advocacy funds provided by the Federal government,
attorney fee awards, damage awards, pro bono law firm programs,
law school clinics, and damages available under state human rights
laws that can be joined with the ADA, IDEA and other laws in civil
rights suits.
(d) Train Interested Lawyers
- Help prepare members of the private bar to take on disability,
civil and human rights cases by:
- Establishing and cultivating a disability bar with
broad representation from all cultures and segments of the disability
community.
- Enhancing civil rights curricula in law schools
and paralegal programs to include disability rights law;
- Identifying sources of funding and reimbursement
for representation;
- Shortening the learning curve to assure the most
cost effective and competent representation;
- Providing representation opportunities under supervision
for young lawyers in administrative and judicial proceedings;
- Creating continuing legal education (CLE) credit
opportunities (particularly in states where CLE is mandatory)
in the disability, civil and human rights areas for interested
attorneys and judges;
- Compiling disability and civil rights bar directories
listing and describing attorneys with interest and expertise in
related areas of law;
- Structuring mentoring and partnering opportunities
to bring experienced and new attorneys, legal assistants and paralegals
together;
- Evaluating and publicizing the full scope of opportunities
available for paraprofessional participation in representation
and advising activities; and
- Evaluating and developing curricula for training
lay legal advocates.
(e) Profile Cases to Win
- Identify and post as a litigation aid the elements of "good cases,"
the kind that when tried and won can help to redirect the course
of negative case law.
(f) Foster Collaboration across
Legal Systems - Work with legislators and lawyers to ensure
the full protection of people's human and civil rights from the
local to the national level. Special attention must be given to
working with the sovereign tribal governments to craft tribal laws
protecting the civil and human rights of Native American people
with disabilities.
(g) Put Disability-Friendly Judges
on the Bench - Develop and implement a strategy for nominating
and/or electing Supreme Court and lower court judges who uphold
the values of the ADA.
ACTION STEP 7: Uphold the Spirit and Intent of the
Law in Every Settlement.
Voluntary settlement mechanisms, including all forms
of alternative dispute resolution (ADR) used in disability and other
civil and human rights cases, should:
(a) Ensure that voluntary settlement mechanisms (mediation,
arbitration, conciliation and other forms of negotiated settlement)
operate on a level playing field and uphold the protections of the
law.
(b) Use people from various disability, cultural and
civil rights communities trained as mediators, facilitators and
settlement agents.
(c) Ensure that all mediators, facilitators and settlement
agents are familiar with the issues raised by the cases in which
they participate.
(d) Ensure that complainants/parties, who on their
own lack the experience or skills to present their positions effectively,
are assisted by qualified individuals and entities.
ACTION STEP 8: Stand Up to Negative Press and Win the
Media Battle.
Reeducate the public about the nature
of discrimination and the meaning of equality. Discrimination
against people with disabilities is perpetuated when the media reinforce
false notions (i.e., reasonable accommodation means 'special privileges,')
and stereotypes (i.e., people labeled with mental illness are highly
disposed to violence) in the public mind. Only when the public understands
that equal opportunity depends upon a level playing field will the
final barriers to inclusion come down. Action groups within the
civil and human rights communities need creative strategies for
winning the media battle:
(a) Target people within the disability
and civil rights communities who work in the media, have
media connections or experience, or are simply interested in civil
and human rights issues as allies in getting out the truth on disability
issues.
(b) Become known to media personalities
as visible and friendly sources of information and comment on developing
disability and civil rights issues.
(c) Seek opportunities for regular
coverage of issues from a disability rights perspective in
various media; identify individuals with the ability to do such
media work on local levels.
(d) Bring positive stories to the
media's attention about the ADA and other civil rights statutes.
(e) Respond forcefully and immediately
to erroneous or unfair stories and statements appearing in
the press.
(f) Identify those within the media
industry who use reasonable accommodations, but may not publicly
identify as having a disability, to suggest the role civil rights
protections play in creating meaningful opportunities for capable
people.
(g) Push for a new category of recognition
for excellence in disability rights coverage within an existing
national award in journalism, television or filmmaking.
ACTION STEP 9: Acknowledge Those Who Deliver on the
Promise.
As important as holding accountable those who disregard
or devalue civil rights is honoring those who uphold the values
of equality of opportunity and inclusion. Action coalitions across
disability and other civil and human rights groups should bring
people together to pursue this strategy on at least two levels:
(a) Support public recognition and
acclaim - Encourage major awards for excellence administered
by prestigious public or private groups, (i.e., Malcolm Baldridge
awards) to include disability as an award criterion to publicly
promote the value of inclusion.
(b) Support leaders of change
- Publicize the practices of school systems, businesses, and other
public and private organizations that support the civil and human
rights of the groups they serve. These practices can include providing
reasonable accommodations for employees and consumers, providing
accessible web sites and other universally-designed products and
services, and any other activities demonstrating commitment to inclusion
and full participation. Persuade coalition members to support and
acknowledge all organizations having positive civil rights track
records.
ACTION STEP 10: Engage New Leaders with Disabilities.
Movements cannot thrive without replenishing their
leadership and resources. Identifying, inviting, training and supporting
young and other emerging leaders with disabilities from all cultures
are core coalition activities. Action coalitions across disability
and other civil and human rights groups should ensure ongoing progress
into the future by:
(a) Involving youth and other
emerging leaders in coalition civil rights activities;
(b) Sponsoring leadership
activities and curricula in elementary and secondary schools, as
well as colleges and universities;
(c) Promoting essay and other
civic contests, service awards and other activities for youth and
other emerging leaders in the community;
(d) Conducting leadership
and training institutes promoting civil rights and mainstream leadership
development; and
(e) Establishing youth chapters
and affiliates within all coalition member organizations.
III. CONCLUSION
The great civil and human rights laws of this country
have spurred a new era of progress for the nation. Despite many
enforcement problems, great strides have been made. How much greater
the progress will be then as systemic and other artificial barriers
are overcome. The strategic actions having the greatest long-term
impact will be those geared to strengthening enforcement capacity
from the federal to the local level, clarifying, protecting and
enhancing the provisions of civil rights laws, and supporting political
candidates who publicly commit to delivering on the promises of
those laws.
However important they have been and will continue
to be, the laws are only tools. The driving force for change comes
from the people and their unified action to make the vision of the
law a reality in our daily lives. The purpose of this plan is to
promote the empowerment necessary to achieve full equality of opportunity
for all people living in this country. A sense of mission among
those who have a stake in fully implementing civil rights laws will
forge bonds and generate momentum among people across disability,
cultural and advocacy groups to advance the status of any marginalized
group in society. Ultimately, it will unleash the action needed
at all levels to deliver on the promise of equality. |