New Paradigms
for a New Century: Rethinking Civil Rights Enforcement
National Council on Disability
National Council on Disability
1331 F Street, NW Suite 1050
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
www.ncd.gov
June 13, 2000
ACKNOWLEDGMENT
The National Council on Disability (NCD) wishes to express its
gratitude to Steven Mendelsohn for his leadership in developing
this concept paper on the first three NCD reports of the Unequal
Protection Under Law series.
TABLE OF CONTENTS
Purpose of this Concept Paper
Background
Findings of NCD's Research Studies
The Meaning of Enforcement
The Mobilization Process
Models of Coalition Building
New Civil Rights Enforcement Strategies
Legislative and Judicial Strategies
The Building Blocks of a New Community
I. Purpose of this
Concept Paper
Based on the findings of the National Council on Disability's (NCD)
major studies of civil rights enforcement, and the results of the
Think Tank 2000 initiative, this paper sets forth recommendations
for developing a more effective and inclusive civil rights enforcement
strategy for our nation over the next decade. It offers a framework
for the discussion at the upcoming Civil Rights Retreat aimed at
identifying a core set of strategic actions for effective enforcement
that address the agendas and experiences of the diverse cultural
groups which make up the civil rights constituency.
In NCD's Unequal Protection Under Law report series, a number
of overarching barriers to effective enforcement of existing federal
civil rights laws are identified. These barriers include:
- Disability civil rights laws with enforcement provisions that
are often narrower or more cumbersome than those of other civil
rights laws;
- Slow implementation of disability civil rights laws among covered
entities and a low priority on enforcement by most federal agencies;
- Disability civil rights laws often lack attorney fees provisions,
putting litigation as a means of enforcement beyond the reach
of many people with disabilities;
- Public education efforts that frequently do not employ a culturally
competent outreach strategy; and
- The absence of coherent, innovative strategic action plans guiding
the enforcement efforts of federal agencies.
Developing a set of strategic actions for overcoming these barriers
will be a key objective of the Civil Rights Retreat. Participants
in NCD's Think Tank 2000 also identified additional objectives that
an inclusive civil rights agenda should meet:
- Developing leadership at national, state and local levels for
sharing and enhancing knowledge and skills among people from diverse
cultures.
- Maximizing the participation of civil rights organizations and
the understanding of what is involved in building effective coalitions.
- Developing a "report card" for assessing the responsiveness
of service systems and enforcement agencies to the needs of or
input from people of diverse cultural backgrounds or other underserved
groups;
- Creating multicultural and cross-disability training and advocacy
tools;
- Establishing a steering committee or other mechanism to begin
identifying common threads across civil, human, and disability
rights agendas;
- Articulating a strategy for outreach to federal agencies to
engage their support for leadership training of persons from underserved
groups and for development and dissemination of culturally competent
training materials on various disability civil rights laws; and
- Building a web site, list serve, fax and mail trees for collecting
and disseminating educational, training, leadership development
and coalition-building resources.
The need for dialogue, mutual respect and common goals among civil
rights constituencies is widely understood. Greater potential than
ever exists for making these goals tangible in the context of Think
Tank 2000, the Civil Rights Retreat, and follow-up grass-roots community
briefings and dialogues. Think Tank 2000 was aimed at identifying
federal level strategies for achieving full implementation of civil
and human rights of people with disabilities from diverse cultures.
The Civil Rights Retreat will provide a forum for thinking through
a set of strategic actions to enhance or overhaul federal enforcement
(as needed) for greater effectiveness and better results.
Unless these opportunities are understood in relation to the nature
of civil rights legislation and in connection with existing or proposed
enforcement strategies for implementing these laws, the application
of our new consciousness may prove elusive. Unless we can develop
practical strategies for building a shared consciousness, the danger
is all too real that awareness of the need for common agendas will
not translate into action.
This paper therefore discusses a variety of existing, proposed
and potential civil rights enforcement strategies from the vantage
point of how they meet the needs and advance the goals of all civil
rights constituencies. It attempts to identify goals and strategies
that lend themselves to multicultural coalition efforts, and just
as importantly, to methods for reaching out to entrenched opponents
of civil rights enforcement.
Too often, the continued resistance and hostility of certain interest
groups is accepted as inevitable. For instance, avenues may be readily
available for convincing key sectors of business that effective
civil rights enforcement is responsible civil rights enforcement,
and strongly in their interests to define and support.
II. Background
In 1996, the National Council on Disability (NCD) convened a national
summit on disability policy in Dallas, Texas. Out of this historic
gathering of leaders came a number of recommendations documented
in NCD's report, Achieving
Independence: The Challenge for the 21st Century. A central
theme and leading policy recommendation coming out of the summit
was a call for heightened enforcement and stronger implementation
of federal civil rights laws. In response, NCD commissioned a series
of studies on the implementation and enforcement of major federal
civil rights laws. To date, the Unequal Protection Under Law
series includes studies on the Air Carrier Access Act (ACAA), the
Individuals with Disabilities Education Act (IDEA), and the Americans
with Disabilities Act (ADA). Two studies remain: one on the Fair
Housing Act Amendments of 1988, the other on Section 504 of the
Rehabilitation Act.
As discussed in the next section, the completed studies disclosed
that while tremendous strides have been made in advancing the equality
of Americans with disabilities, a number of critical and recurrent
barriers to the success of these statutes could be discerned.
Over the past six years, NCD has sponsored studies, meetings and
discussions that have raised again and again issues arising from
the failure of existing laws or outreach strategies to reach or
fully engage many persons with disabilities from diverse cultural
backgrounds.
The issues posed in achieving greater inclusiveness are not primarily
technical or legal barriers. Nor do they arise from structural or
organizational weaknesses in the administration of civil rights
laws or from deficiencies in the scope or coverage of these laws
themselves. Instead, these barriers both reflect and stem from our
failure to make these laws meaningful in the lives of the full range
of Americans with disabilities.
While considerable sums have been spent in public education and
technical assistance, involvement of persons from diverse cultural
backgrounds in the benefits of disability rights legislation or
in the day-to-day advocacy necessary to support disability civil
rights statutes has fallen short of our aspirations. With civil
rights, as with services programs, the benefits do not appear to
have been enjoyed equally by all segments of the population with
disabilities. Nor should we be surprised if knowledge of or enthusiasm
for these laws is less pronounced in some parts of our community
than others.
Yet another realization underlying our efforts provides an essential
backdrop to our considerations here. Civil rights enforcement is
an issue encompassing the interests of many population subgroups.
To address the issue of civil rights enforcement from the standpoint
of disability, gender, race or ethnicity alone is not only short-sighted,
but far worse, it is likely to create conditions under which groups
with strong and enduring common interests are forced into competition
for scarce resources and available attention.
Most people don't fall neatly into any single civil rights constituency.
The vast majority of us fall into more than one, whether as women
of diverse cultural backgrounds, as men with disabilities from diverse
cultural backgrounds, or simply as persons whose cultural backgrounds
encompass more than one historically underrepresented group. Even
if we are only majority males with disabilities but live in an inner
city or rural area, our situation and status is complicated: complicated
beyond the foresight of those who devised our most important civil
rights laws a few short years ago.
The recognition that most of us fall into more than one civil rights
constituency group is borne out by demographics data. That is, disability,
race, gender and national origin interact in almost every conceivable
setting. For example, when we note that African-American children
are disproportionately likely to be isolated from the mainstream
school population as a result of a "special education" student designation,
are we saying something about the way society treats disability,
about the way it treats race or both? Statutes may create neat jurisdictional
categories, but they are categories which life increasingly belies.
Recognition of the need for outreach to people with disabilities
from diverse cultural backgrounds is therefore nothing more nor
less than acknowledgment of the makeup of the population. But we
do not recognize or value most people's dual or even multiple group
status simply for its own sake. Behind these demographics lies a
key political reality, one that bears decisively upon the fate of
any reform agenda or new initiatives in the civil rights enforcement
arena.
The approaches people take, and the resources society devotes to
enforcement of civil rights statutes reflect larger and ongoing
political struggles. Our attitudes toward enforcement of laws are
in large measure shaped by our attitudes toward the enactment of
those laws. Those favoring their enactment typically support vigorous
enforcement while those opposed often regard weak enforcement as
a way of minimizing their impact.
Many factors make the sustained effort and attention required for
effective civil rights enforcement difficult to achieve. The tremendous
energy and mobilization brought to bear to enact milestone civil
rights legislation are difficult to sustain in the bureaucratic,
decentralized, and largely invisible world of day-by-day enforcement.
Yet all our civil rights statutes rely to a greater or lesser degree
upon enforcement by administrative and executive branch agencies.
From the regulations that implement and apply them, to the oversight
and monitoring that characterize agency attention in the years to
follow, to the procedures adopted for dealing with complaints--to
all of these--the civil rights community is held in thrall because
of the way our current laws are structured.
In order to ensure consistent energetic and effective enforcement,
concerted efforts are required to draw upon the technical knowledge,
political will, and personal commitment of many people. Given the
number of statutes at issue, the variety of agencies involved in
their implementation, the range of entities subject to these laws,
and the endless variety of new situations and novel issues technology,
economic and social change can thrust upon us, vigilance and involvement
by all who care is ever-more indispensable if our laws are to requite
the hopes and efforts that led to their adoption. To achieve effective
enforcement, we must build the bridges that bring together people
from every background to share the resources needed to meet this
challenge head on.
Yet our efforts to build bridges have fallen short. How many champions
have been lost to the disability rights cause because their cultural
traditions, modes of expression or accent somehow devalued them
in the view of the dominant majority, or somehow led to the perception
that they had other agendas? How many leaders have been lost to
traditional civil rights causes because the accommodations they
needed to participate gave rise to the perception that they too
were dealing with different issues or that the accommodations were
just too much trouble? How many times has the aspiration for justice
gone unappreciated because it expressed itself differently with
an accent or an augmentative communication device, in halting English
or in synthesized speech?
Far from being different or in conflict, the interests of the diverse
groups making up the civil rights constituency have never been more
united. Anyone doubting this need only look at the increasingly
standard arguments made by opponents against all civil rights initiatives
and in connection with all covered groups. Aren't the bitter denunciations
of web site accessibility currently being directed against Section
508 of the Workforce Investment Act predicated upon familiar anti-affirmative
action and anti "special rights" diatribes so familiar in divisive
political campaigns over the past decade? Blaming the dismal state
of school discipline on the enforcement of protections for children
with disabilities to be educated in the least restrictive setting
is reminiscent of claims that workplace morale and productivity
is somehow undercut by enforcing protections against sexual harassment.
If the tide is left unchecked, if those who would strive for equality
and justice cannot unite in the recognition of shared goals and
common perils, then no group will escape in the end. None will be
able to gather up enough crumbs to make any sort of a meal.
III. Findings of
NCD'S Research Studies
As indicated above, in addition to such major cross-community initiatives
as Think Tank 2000, NCD has sponsored a number of in-depth research
studies into the operation of three of our most important and representative
disability civil rights laws. Because these laws are representative
of all disability rights laws, the emergence of recurrent patterns
and findings is extremely important. Moreover, these statutes, though
written with disability in mind, have many structural features in
common with, and share many of the legal precedents with other traditional
civil rights statutes. As such, the weaknesses found in these statutes
are not confined to their impact on the civil rights of persons
with disabilities, but shed considerable light on issues faced by
all civil and human rights advocacy and constituency groups.
Major Findings
All three studies found that enforcement of the laws is highly
uneven--varying enormously in focus, vigor, method and style among
and even within enforcement agencies. Where the statutes vest jurisdiction
for enforcement in more than one agency, there is an almost total
lack of coordination or joint planning. Among agencies responsible
for investigating complaints and monitoring compliance, resources
have been inadequate, both in terms of internal agency priorities
and overall annual budget allocations. Further, agencies generally
have not been in a position to consult with the disability community
regarding what the priorities should be, for instance between case
finding and thorough investigation of complaints, or between vindication
of individual rights and concentration on patterns and practices.
Where enforcement authority has been vested in agencies with line
responsibility for regulating particular industries, still other
problems have occurred. These agencies (which never sought civil
rights enforcement responsibility) typically have little expertise
or sense of mission in this connection. Established relationships
between regulators and the regulated, or agency self-image, have
all too often restricted the possibilities of vigorous enforcement.
And even when agencies have been disposed to enforce the law energetically,
their lack of knowledge or technical resources has seriously limited
their ability to do so.
Other Implications
Although harder to document, the studies also seem to suggest that
many agencies are keenly aware of the political nature of the enforcement
process. This is borne out by a number of findings and confirmed
by a variety of external evidence. For instance, regulations, whether
developed through the standard process or through regulatory negotiations
(reg-neg efforts), have typically taken far longer to promulgate
than specified in the authorizing statutes. Few need reminding that
nearly 4 years, plus direct action protests and civil disobedience
(modeled on the civil rights sit-ins of a decade before) were required
in 1977 for promulgation of the first regulations implementing Section
504. Similar delays have been common in other settings, including
with ACAA and IDEA.
Once regulations are adopted, their enforcement is rarely accepted
quietly. Those charged with violation of any of the statutes have
been quick to cry out against the heavy hand of an oppressive federal
government, and have frequently sought congressional oversight hearings
or used their access to media to launch attacks against the unreasonable
and burdensome nature of the statutes themselves, or against the
excessive zeal of regulators. Under such circumstances, it is hardly
surprising that regulators are cautious in their enforcement activities.
Of course opposition to disability rights invariably includes the
obligatory expression of sympathy for the acknowledged needs and
plight of the population in question, and usually expresses the
opponent's shared commitment to the goal that the disability rights
measure is attempting to accomplish. But the opponent parts company
with the civil rights advocate by arguing against the need for any
legal mandate; and arguing for the narrowest possible interpretation
of the law, the restriction of opportunities for private litigation,
the costliness of enforcement, and the counter-productivity of intrusive
government oversight. With the exception of their expression of
sympathy, the opponents of civil rights increasingly make the same
arguments in non-disability contexts.
If only in their need to respond to these allegations, all civil
rights constituencies have much in common. Systematic, community-wide
efforts to respond to these contentions could be organized and could
go a long way toward blunting the anti-civil rights drift of many
media, as well as improving public opinion about civil rights. Since
the research suggests that enforcement agencies are politically
cautious, we should remember that every political sensitivity cuts
two ways.
Members of civil rights constituent groups are voters and taxpayers
too. To the degree they can unite to tell their elected officials
(local state and national) they want effective civil rights enforcement,
and to the degree that as business persons, customers of business,
friends or family members of business owners or managers, they can
argue that vigorous enforcement of the law only helps those who
honor it, they can achieve far more than any smaller isolated subgroups
can hope to accomplish alone.
Elements of Effective Enforcement
The three studies published thus far in NCD's Unequal Protection
Under Law series offer key considerations for designing an effective
and culturally competent enforcement strategy. Such a strategy should
be:
- based on an enforcement plan that takes into account available
resources and competing priorities;
- developed with the maximum possible degree of coordination,
information and resource sharing (including technical assistance)
among all the agencies involved;
- developed and administered with input and feedback from the
population groups meant to be protected; and
- organized to facilitate the data collection and other oversight
necessary for regular monitoring of enforcement activities to
determine their consistency with the underlying enforcement plan,
their responsiveness to feedback, and their success in reaching
diverse cultural groups.
IV. The Meaning
of Enforcement
Broadly speaking, "enforcement" includes all the actions undertaken
by government in connection with the administration of a law once
it has been passed. We mean it here to include also the actions
of nongovernmental individuals and groups. Traditional dimensions
of civil rights enforcement would include:
- proposal and adoption after public comment of implementing regulations;
- designation of individuals and entities to take various enforcement
responsibilities;
- public awareness and outreach efforts;
- technical assistance to covered entities;
- compliance monitoring;
- receipt, processing and disposition of complaints of violation;
- record-keeping, and regular agency reporting to Congress and
the Administration.
Let us see what the possibilities for collective effort are in
relation to each of these.
Regulations: Even when we have no new statutes that need
to be interpreted and applied, occasions are never far away to amend
existing regulations, either in response to court decisions, statutory
amendments, or evolving experience. The civil rights constituent
groups should systematically review the implementing regulations
for all key statutes to identify whether:
- they are clear as to obligations of covered entities, procedures
and lines of authority;
- they allow for all the range of outcomes that the authorizing
statutes permit;
- they include adequate provisions for notice to and involvement
of the parties to a dispute in whatever adjudication or referral
process occurs after the filing of a complaint;
- all dealings with the public, including with complainants and
respondents, are fully accessible to persons with disabilities
and culturally sensitive to people of varying backgrounds and
experience (including alternative formats and native languages).
These factors are relevant across all constituent groups and can
be addressed on an inclusive basis, as suggested in NCD's recent
enforcement reports.
Public Education and Culturally Competent Outreach: The
agenda for public education is a broad and inclusive one. The details
of technical assistance do differ by population. (Assistive technology,
for example, has no parallel in non-disability settings). For technical
assistance, public education and outreach to be effective, they
must reach and engage all the diverse cultural groups the law protects.
It is all too easy to forget that some people communicate in different
media or formats, in different languages or in different styles.
No single approach can reach, let alone engage everyone. Leaving
aside content issues for the present, it is enough to note that
the various constituencies can work together to insist upon and
ensure that the responsible government agencies and their nonprofit
or private sector contractors have access to adequate informational
resources to fulfill the clear requirements of the statutes.
Here the usual budgetary arguments against committing resources
to technical assistance (TA) can be countered by presenting data
showing the impact of effective TA on reducing compliance costs
or preventing litigation. The civil rights community should undertake
research designed to document the cost reduction and other benefits
of technical assistance. Satisfied users can attest anecdotally
but persuasively to the intangible benefits of technical assistance.
Models can be developed to calculate the hidden costs of resistance
incurred in attorney fees, litigation costs, and responding to complaints
and claims that drain both material and human resources.
Compliance Monitoring: Because administrative agencies only
know of the cases and issues brought to their attention, and because
any sort of monitoring has acquired the unfortunate image of intrusiveness
and governmental meddling, cross-community strategies must be developed
that will allow systematic monitoring to be done either by nongovernmental
partners or directly by the respective enforcement agencies. Subject
to the establishment of the proper linkages, numerous models can
be identified in the nonprofit sector. But even within government
itself, examples of effective monitoring exist. These range from
the various studies undertaken by the US Commission on Civil Rights,
to the telecommunications industry accessibility monitoring project
(Market Monitor) established by the Federal Communications Commission
under Section 255 of the Communications Act of 1996, to the federal
agency information technology accessibility monitoring reports required
from the Department of Justice under Section 508 of the Rehabilitation
Act. These models should be studied for their applicability to the
civil rights enforcement context.
One example of such compliance monitoring is the Department of
Justice's assessment and reporting to the President and Congress
on the accessibility of "electronic and information technology"
used by federal agencies. This issue of the accessibility and usability
of information technology by people with disabilities has acquired
a civil rights dimension because Section 508 of the Workforce Investment
Act requires such technology to be accessible to federal employees
and members of the public with disabilities. Beginning later this
year, violation of this accessibility requirement by a federal agency
will be grounds for a complaint under Section 504.
Pursuant to Section 508, and independent of its role in civil rights
enforcement or in defending federal agencies alleged to have violated
the law, the DOJ monitors and reports on government-wide accessibility
by surveying all federal agencies on a regular basis. These surveys
provide a source of aggregate data about this important emerging
civil rights concern, and over time, they will provide a means for
comparisons.
Case Finding: Such ongoing compliance monitoring is particularly
useful in identifying pattern- and-practices problems requiring
attention, investigation or action. Again, in some cases the problems
disclosed may relate to an industry practice that tends to exclude
people with one disability from coverage, in another to the recognition
of a governmental practice that restricts opportunities for advancement
of women, in still another a rule that adversely impedes the opportunities
of one or another nationality or ethnic group.
Even short of legislative change, collective efforts to negotiate
with enforcement agencies can go a long way to ensuring the establishment
and effective follow-up of monitoring efforts. These efforts can
be designed readily in a way that is fully voluntary, respectful
of privacy, and non-burdensome within the meaning of current legal
provisions bearing upon the impact of data-collection activities
on small entities. One of the chief obstacles to such an effort
is the absence of data needed to identify adverse practices or emerging
enforcement needs. One major element of the web site proposed by
Think Tank 2000 could be the development of uniform reporting tools
to assist the broad civil rights community in helping the government
to better address these problems. A civil rights data clearinghouse
might represent the fullest expression of this idea.
Case Adjudication: The problems documented in NCD's studies
are assuredly not limited to complainants with disabilities. In
addition to the due process review of regulations already recommended,
the communities must unite in insisting that agencies have the resources
to evaluate and adjudicate complaints and perform all related activities
within the time frames specified by the applicable statutes. This
demand can be supported through litigation if necessary, particularly
in light of the irreversible harm occurring to persons whose right
to sue may be lost due to statutes of limitation even while administrative
agencies are still reviewing their claims. Moreover, a prompt claims
adjudication process is manifestly in the interests of respondents
and defendants as well, who want nothing so much as an end to the
uncertainty and doubt that unresolved complaints create.
It should not be difficult to galvanize significant local governmental
and private sector support for appropriations that do no more or
less than make the already specified statutory time frames meaningful.
The effort is made even more promising by the fact that many of
our key civil rights statutes are enforced by the same agencies
irrespective of constituency. The EEOC's role in respect to employment
discrimination, and the Justice Department's in connection with
public accommodations illustrate such multi-constituency jurisdiction.
Surely therefore, resources invested in their complaint processing
capabilities should help all involved populations.
State Agencies: Working in partnership with the Federal
government (or on their own in the enforcement of state statutes)
many state agencies play a role in securing the civil rights of
members of the constituent groups. Comparatively little is known
about either the effectiveness of state laws or about anomalies
in their makeup, such as provisions allowing the award of damages
or attorney fees to one constituency group while forbidding them
to another. By pooling resources, such data can be collected systematically,
and where administrative weaknesses or statutory anomalies are revealed,
coalition efforts aimed at either legislatures, governors or responsible
state agencies can go much further than isolated efforts by any
single subgroup. Clearly, in cases where a state law extends protection
to the civil rights of some key constituencies but not others, coalition
efforts can be useful in broadening the scope of the law.
A state civil rights database or clearinghouse like the one suggested
above for tracking federal enforcement, could prove valuable in
illuminating the strengths and weaknesses, the opportunities, pitfalls
and needs for reform existing under various state laws. Many other
opportunities for collective action could be cited, including those
in some unlikely areas. The banking and financial services industries
are good examples. People with disabilities have the right to expect
that banks make their facilities and services (including ATM machines)
fully accessible and usable. Members of racial and nationality groups
have the right to expect that credit and retail banking services
will be made fully accessible to them. How much more effective an
alliance of all these groups might be, pursuing the common goal
of equal access to equipment and services, as opposed to each group
separately?
V. The Mobilization
Process
The opportunities for sharing goals and resources as discussed
in the previous section are contingent upon a number of things.
Success in bringing about change depends on people's availability
and commitment. When considering the resources of those who oppose
civil rights and those who simply resent being told what to do (whether
or not it is right), and the impact of the vast residue of indifference
and superficial information that exists in the culture at large,
it becomes clear that the struggle for civil rights, in addition
to being a never-ending one, is highly labor intensive. The struggle
requires the sustained commitment of many, many people. Yet all
too many indications exist that even among core members of the civil
rights constituencies, awareness of the opportunities, commitment
to the effort, and belief in the results may be far less than we
might hope. And ironically, the more one knows about the current
enforcement process, the less likely one is to have faith in it.
In a society whose rank and file members seem less and less interested
in anything resembling politics (that is participation in the electoral
process and in organized efforts to influence the activities and
decisions of government officials and agencies), what can be done
to energize the grass-roots members of civil rights constituencies
to actively and jointly pursue the systems-change, reform and oversight
needed to secure the hard-won rights granted by law?
This question has no easy answers but is a vital consideration,
if only because new enforcement strategies will require new and
sustained energies. Galvanizing and mobilizing all affected constituencies
for action is crucial to fulfilling the promises of the law. This
reality strongly suggests that the work of the upcoming Civil Rights
Retreat must attend to both the substance and process of creating
public awareness leading to informed action. People will need to
be educated about what these laws mean and what they can do; about
the intricacies of how they do and don't work; about the strategies
available for making them effective; and, about the need for documentation
to create a powerful and irrefutable record.
But without motivation, even such education may count for little.
Unless outreach is done in a way that unites new activism with reciprocal
understanding and mutual commitment among constituent groups, the
results will be disappointing. Accordingly, outreach must include
not only efforts to reach rank and file members of all groups, but
also measures designed to bring together people who may have little
or no previous knowledge or even sympathy with one another's aspirations
and frustrations. Only structured contact and discussion can lead
to the personal awareness and experience of others that is the basis
of human fellow feeling.
How can this be done? Facilitated discussion including members
of all covered constituencies should be organized in communities
around the nation. These should focus on descriptions by members
of each population to the others of the barriers they face and of
the aspirations for civil rights they hold. These discussions should
involve efforts to address any underlying resentments that may be
all too common in our culture where competition for victimization
sometimes seems the best access route to resources and attention.
Furthermore, they should be designed to develop agendas, strategies
and emphases that combine the various civil rights objectives into
workable programs all can support. Also required from time to time
will be the selection of agenda items for short-term focus that
are more central to the needs of one constituency than another.
If the proper baseline of interaction and cooperation has been established,
and if initial results pursuing joint objectives have been sufficient
to generate optimism and confidence, then some alternation of focus
should in due course be possible so that the particular needs of
each constituency receives special attention in turn. Ideally, leaders
and potential leaders who come from more than one civil rights constituency
can be identified and encouraged to play key roles in bridging cultural
and informational gaps.
VI. Models of Coalition
Building
Shared agendas have brought together diverse groups of people on
many occasions. The disability community comes to coalition-building
with considerable experience, both in terms of its own internal
diversity and in terms of linkages to "outside" interests and communities.
Achievements such as enactment of the ADA came about through an
unprecedented collaboration among groups from across the disability
spectrum. At the same time, the ADA would not have been possible
without the support of major non-disability constituencies, including
the traditional civil rights community and major sectors of the
business community.
Likewise, the traditional civil rights community has vast experience
in building alliances to achieve broad and important goals. Today
in public policy we can point by way of example to a number of initiatives
that demonstrate the potential for the melding of civil rights agendas
into common purposes.
The Digital Divide: By "the digital divide" we refer to
the disparity between technological haves and have-nots. What makes
this a powerful cross-cutting issue is that denial of opportunity
affects so many different kinds of people, and recognition is rapidly
growing of the common barriers they face. Among those most affected
are people with economic disadvantage including persons from diverse
cultural communities; underserved inner city and rural populations
(that is people living in areas which no one much wants to "wire
up"); and, people with disabilities whose opportunity to participate
in the information society is limited by different, but by no means
less serious, factors.
In the digital divide initiative, these diverse groups are coming
together in order to secure the benefits of computer access and
the Internet to all. The model bears study for the techniques that
show promise in helping people work together to formulate both a
common frame of reference and a shared vision of action. Other like
initiatives can also be found, many of them also spurred by the
new realities created by technology. For instance, the principle
of universal service, once understood as our nation's commitment
to making basic telephone service available to every community in
the country, regardless of income, now includes access to the telephone
system for people with disabilities as well.
These and comparably inclusive initiatives need not be further
detailed here. It is enough to urge that the Civil Rights Retreat
participants use their experience to identify other examples of
cross-platform work and to extract the organizing principles, educational
and outreach techniques, goal-setting strategies and motivational
tools contributing to the viability of these efforts.
As important as such examples may be, we must be careful about
the lessons we draw from them. The strategies and techniques of
effective action vary with the nature and context of the problem,
and the results sought. That is why, for the retreat to achieve
its goals, the strategies identified must be measured against the
particular barriers to be overcome and the specific issues faced
today. To facilitate this process, let us now examine some cutting-edge
civil rights enforcement techniques, with a view to describing how
each lends itself to united efforts. Let us also consider how the
embrace of each would influence the kind of organizing and communication
that needs to take place.
VII. New Civil Rights
Enforcement Strategies
As NCD's three research studies strongly suggest, traditional enforcement
models, encompassing federal regulation, agency oversight and claims
processing, have not worked. The reasons why are amply documented
in the reports. What cannot be documented is whether the methods,
the money, the people or a combination of all three are responsible
for the deficiencies. In other words, if the agencies were staffed
by people who believed passionately in civil rights as the primary
mission of their work, and if appropriations of funds were adequate
for what they regarded as full staffing and prompt action, would
this traditional model, which we shall call the executive branch/administrative
law model, work? Is it working in other civil rights venues? Is
it better for enforcement of some kinds of rights, say to accessible
public buildings, than for other kinds, say freedom from subtle
but pervasive discrimination in employment?
These questions go beyond the scope of this paper. While it is
important to strengthen enforcement along all the traditional lines
the law allows and history endorses, it is equally imperative to
look to new and innovative enforcement strategies. In particular,
we need to look for enforcement strategies that maximize stakeholder
involvement and the role of the community in the enforcement process.
Alternative Dispute Resolution: In all areas of civil rights,
and indeed in almost all areas of potential conflict between the
federal government and private entities in non-criminal, legal contexts,
federal law and policy reflect an increasing preference for alternative
dispute resolution (i.e., mediation and negotiated settlement) over
litigation. In civil rights, this preference has resulted in enforcement
agencies such as the Department of Justice relying increasingly
on mediation in the civil rights context. It has also led to changes
and new patterns under a number of other statutes.
But as the NCD studies make clear, the way alternative dispute
resolution is being implemented is not necessarily consistent with
the spirit of the underlying laws. In the civil rights enforcement
process, mediation may be used as an alternative to formal investigation
and adjudication of individual complaints of discrimination. When
determinations of discrimination have been made, out of court negotiated
settlements are sought wherever possible as an alternative to litigation.
As used in the enforcement process, the main goal of both mediation
and out of court negotiations, is to terminate complaints or lawsuits
on terms voluntarily agreed to by both parties.
As implemented in the civil rights enforcement context, mechanisms
for ensuring that mediation agreements meet the minimum requirements
of the law generally are not in place. Nor are mechanisms for ensuring
that mediation does not serve to disguise pattern and practice discrimination
by a covered entity that requires aggressive enforcement action.
The adoption of guidelines for mediating civil rights claims, such
as the ADA Mediation Standards, would be an important step toward
a mediation process fully compatible with the objectives of civil
rights enforcement.
By the same token, out of court settlement agreements negotiated
between a federal agency and a covered entity may not produce the
rigorous protections against future acts of discrimination that
are the goal of litigation. These concerns must be addressed to
ensure that alternative dispute resolution does not inadvertently
result in obstructing the law's intent.
Another option to be considered to ensure fair outcomes from mediation
is to mediate claims through panels consisting of representatives
from the consumer and the respondent communities --in other words
by peers of those whose rights, and in many cases whose futures,
are being decided. Some may suggest that people from the stakeholder
communities are unsuitable as mediators, but the experience with
school-based conflict resolution programs around the country suggests
that just the opposite may be the case. Complaints filed under IDEA
are being successfully mediated in communities around the country
by parents and attorneys trained as mediators. The possibilities
should in any event be explored, for if community involvement proves
as viable in the civil rights setting as it appears, mediation could
be a tool for generating new interest and commitment at the grass-roots
level to a dynamic civil and human rights agenda under law.
For example, potential of alternative dispute resolution as a tool
for public participation in policy-making around enforcement has
not been fully explored. There needs to be a mechanism for ongoing
public participation in formulating, implementing and evaluating
enforcement strategies that goes beyond regulatory negotiations.
Such a mechanism might involve panels consisting of stakeholders
from the federal enforcement agencies, civil rights groups, businesses,
and community-based organizations, trained in accordance with the
governing law, the principles of negotiation, and knowledgeable
about the issues and concerns of their communities around enforcement.
Facilitators well-versed in the issues and trained in the relevant
law would guide the panels in framing the issues, policy options
and recommendations for enforcement. A vibrant civil rights coalition
reflecting the interests of all those affected, would be in a far
stronger position than any one subgroup alone to negotiate with
the Department of Justice, the Department of Education, the Equal
Employment Opportunity Commission (EEOC), the Department of Transportation,
etc. and opposing stakeholder groups for systemic reforms in the
enforcement process overall.
Advanced Certification: The ADA contains a provision allowing
Justice Department certification of state building codes as complying
with the requirements of the Act. Such certification creates a presumption,
a rebuttable presumption to be sure, in favor of the legality of
the state's action when following that building code.
The ADA also contains a provision that has immeasurably contributed
to understanding and awareness when taken seriously and used for
its intended purpose though it has vexed many public sector entities
covered by Title II of the law. This provision is the requirement
for ADA self-studies or self-assessment of an entity's level of
compliance. What if provisions like advanced certification and self-assessment
could be combined to create some sort of certification regarding
commitment to civil rights and certifying that the practices reviewed
are consistent with the goals of equal opportunity and full inclusion
for all. Ideally this would include a community-based, ongoing audit
process.
Such a procedure could create new incentives for business and government
to extend themselves in new and better ways to work with civil rights
constituencies and to ensure their compliance with the law. Close
and ongoing contact between organizations that agreed to participate
in the process and the civil rights community would be required,
and some tangible incentives for participation would need to be
provided. No blanket immunity from legal process should ever be
offered, but much confidence and mutual goodwill could be generated
without conferring absolute immunity from suit. For example, entities
that implement agreed-upon self assessment (civil rights auditing)
tools on a regular basis could be offered time-limited but renewable
certificates of good practice which, much like the state building
code certification process under the ADA, would give rise to an
initial presumption in favor of the legality and propriety of their
actions.
Again, such an approach taking root and form at the community level
could have many subsidiary benefits as well. It could bring members
of otherwise marginalized or overlooked groups into contact with
employers and with public accommodations in positive ways that have
not typically occurred before. It could create meaningful new roles
for activism and involvement, while giving well-intentioned companies
and government agencies an opportunity to learn more and to act
responsibly without fear or the need to adopt a bunker mentality.
Such a structure could also get to the root of many disputes, especially
those involving patterns and practices, by identifying and addressing
the problems long in advance of the time they would otherwise be
noticed, and under circumstances where resolution is possible without
recourse to an adversarial posture.
Many variants exist for such relationships and arrangements, and
there are many names to describe them. One interesting variation,
particularly useful for entities that in the past have been found
guilty of discrimination, is the inclusion of a civil rights representative
or advocate as a regular participant in the organization's internal
policymaking or grievance procedure.
Enforcement Targeting: To the extent that enforcement resources
are likely to remain somewhat limited for the foreseeable future,
a question naturally arises concerning how these resources can be
targeted for most effective and instrumental use. In an era when
mandated record-keeping of any kind is more and more under pressure,
when statistical evidence plays less and less of a role in establishing
prima facie evidence of discrimination, when changing judicial interpretations
(even of seemingly settled principles of law) create a host of new
issues and significant uncertainties, when new technological frontiers
place the question of what constitutes equal access into the domains
of cyberspace--at a time when all these developments are occurring,
the question of how monitoring and enforcement resources are to
be prioritized becomes both more pressing and more complex than
ever before.
Once again, nothing lends itself to the efforts of a civil rights
coalition more than a systematic effort to engage the major enforcement
agencies over these very questions. Only through such efforts will
answers emerge to questions such as what is the right balance between
technical assistance and monitoring, or the correct allocation of
resources between adjudication of filed complaints and aggressive
case finding, or the proper balance between the vindication of individual
rights through case-by-case adjudication and the attempt to identify
practices and trends that will warrant attention because of their
implications for entire groups.
What can be said with certainty is that the grass-roots civil rights
communities have had little or no input into the enforcement policies
and practices of the federal oversight and implementing agencies.
This must and can change. The variety of enforcement strategies
disclosed in different agencies under the same laws reflects the
enormous discretion agencies have in this area. Key resource allocation
decisions are being made every day. While they are impacted by the
total amount of available resources, they are in many significant
respects independent of budgets. Rather they reflect turf issues,
philosophies, established relationships, and many other factors
as well.
Coming together as a community, the civil rights constituencies
must identify the major goals that enforcement should pursue. Perhaps
these will differ according to the issues. For instance, vigorous
enforcement, including the levying of fines in all instances where
possible, might be considered appropriate in cases involving employment
discrimination, whereas training and technical assistance might
be more effective strategies for eliminating barriers to public
accommodations or public services. The community needs to work together
to thrash these out, then undertake negotiations and discussions
with the responsible agencies in a cooperative spirit, but with
the quiet strength that comes from unity and commitment.
VIII. Legislative
and Judicial Strategies
Although much can be accomplished by direct negotiation with the
executive branch of government and with a number of independent
agencies, there are points beyond which the role of Congress and
of the courts cannot be ignored. If the Supreme Court eventually
holds that Title II of the ADA is invalid, as it has already held
that subjecting state government to the requirements of the Age
Discrimination in Employment Act (ADEA) is invalid, there would
be no way for the Department of Justice to modify its enforcement
practices in relation to Title II. There would be nothing there
to enforce. Depending upon the grounds of such a decision, it might
or might not even be possible for Congress, without a constitutional
amendment and by statute, to revive the law.
The Congress: Congress is heavily implicated in all our
day-to-day dealings around civil rights. If Congress chooses to
tie various Federal expenditure programs to compliance with civil
rights norms, the results are potentially very different from situations
in which moneys are provided to states with few or no strings attached.
And if appropriations for agency enforcement staff are too small,
then even the options for independent enforcement-policy formulation
are severely inhibited.
This being so, how can the civil rights community of persons with
disabilities, of women, of people from diverse cultural and racial
backgrounds influence federal bureaucracies toward greater recognition
and support of their aspirations? To this question the answer that
must be given is: a lot and not very much.
Congress offers important opportunities for advocacy and progress.
Efforts must focus on making clear that broad constituencies are
pressing for reform, on making the case that sensible enforcement
policies are a separate issue from one's original support for or
opposition to federal civil rights laws, and on enlisting the support
of those who might normally be considered opposed to enforcement
reforms, such as representatives of business and local government,
who can testify from their own experience how civil rights has been
good for them, maybe even benefitted their bottom lines. Surely,
many such cases touching upon all disability and traditional civil
rights subgroups, can be identified and brought forward.
All the civil rights constituencies are fortunate in having experience
and skill in negotiating with Congress. None are neophytes in this
regard. Provided each can effectively mobilize its constituents
and supporters by describing the realities of working with Congress
as it is today and not 50 years ago, it should be possible to bring
to bear a more focused and instrumental activism than ever before.
The Courts: With regard to the courts, the careful selection
and skilled prosecution of appropriate test cases represents, today
as it has for the past 65 years, the best strategy for engaging
the judicial branch on the side of equity and justice. Today's litigation
must be undertaken with full regard to the new legal, political
and economic realities. It may need to concentrate more on state
law and state courts; it may need to educate judges about technology,
develop new analogies to better describe the benefits and harm to
individuals and society resulting from certain practices, and accomplish
a host of new objectives.
Follow-up will also be an increasingly important matter. For as
successful litigation under Medicaid in the area of health care
rights for the poor has demonstrated, follow-up by implementing
and administrative agencies is often the missing link in the translation
of individual victory into communal gain.
The civil rights community must assess the legal resources available
to it, including opportunities for involvement of the private bar
and of the public interest legal sector. Questions regarding the
emphasis to be placed on specialized versus general expertise, on
the development of technical assistance and training resources for
the bar, on the identification of case-finding and case-funding
mechanisms will also all be crucial to the outcome in the courts.
IX. The Building
Blocks of a New Community
Throughout this paper we have taken the potential for a new civil
rights community as the starting point for our discussion. A number
of suggestions have also been made for how such a community can
be created and sustained. Short of an architectural blueprint (which
if offered here would in any event disenfranchise those who will
be the eventual builders), a few observations may nevertheless be
in order.
First, a shared consciousness is the indispensable baseline and
key first step for concerted, coordinated action. It is important
to foster the consciousness among advocates that they are working
on behalf of, not merely their group, not so much even on behalf
of any particular issue of immediate concern, but for the sake of
a vision of what an open, just and inclusive society can be. In
this 21st century, as the population ages, as people of diverse
ethnic and cultural backgrounds become themselves a majority, as
the number of people with disabilities rises in proportion to demographic
change and technological and medical advances--in such an era, the
agenda of inclusiveness is the only agenda that makes any possible
sense for this country. As such, those who proudly and insistently
assert this agenda, far from being put on the defensive or marginalized,
should know that they speak not only for themselves, but surely
for a vast and growing number of relatively silent but thoughtful
and well-intentioned citizens. The task of their new consciousness
therefore must be to communicate with the public, and to negate
the attempts of others to marginalize and trivialize them.
But such consciousness and any associated optimism and goodwill
are by no means enough. Pain and anger are not always easy things
to share, and to the extent that the new consciousness requires
the submersion of one's own frustrations, it is not always an easy
thing to do. It is aided by nothing so much as by contact, shared
experience and reciprocal knowledge. As indicated earlier, every
effort to bring together people from all the involved groups, formally
and informally, will be rewarded in shared and mutual understanding
and in heightened respect.
Consonant with the building of community must be the fashioning
of specific objectives, the development of organizational structures
for decision-making and coordination, and the development of methods
for bringing the new unified consciousness into the service of agreed-upon
goals. These steps must be accomplished from the ground up, through
the involvement and input of those who do the work and make the
commitments. Moreover, an emphasis on communities, with much opportunity
for local decision-making, is critical to maintaining enthusiasm
and effort.
In the matter of coalition building, the civil rights community
may well draw some lessons from the business sector, particularly
as to what happens when short-term agendas come into conflict, or
when the question of whose agenda should be pushed first becomes
an issue. It is worth noting in this regard how, politically, even
in the face of issues that ought to pit one sector of business against
another, such as whether to allow taxation of the Internet, business
groups maintain a relatively high degree of unity. While there are
certainly groups who regard the tax-free status of e-commerce as
a form of unfair competition with brick-and-mortar trade, there
seems little major controversy over this point. To the degree that
there is controversy over whether to extend Internet exemption from
taxes, it appears to derive from the fear of state governments that
they are losing significant revenues from commerce taking place
within their borders. One might suppose the established store-based
retailing sector would more strongly support taxation of e-commerce,
or in the alternative seek comparable abatements. Why do they not?
Is every Mom and Pop corner store planning to start selling on the
Web?
We do not propose to solve the mystery here, except to say that
they have good, practical, long-term reasons for their positions.
Our community has come a long way in the era of what may be called
identity politics. It is time now to don a larger mantle, the broader
identity of those who seek and can lead a meaningful new vision
for America at the dawn of a new millennium. Nothing less will inspire
enough people to do enough hard work; nothing less will carry us
through to success. |
