Accessibility of web information: What's the Department of Justice up to?

BY HAYLEY KOTEEN

As we all know, the Internet has replaced many of the public accommodations that Congress regulated in the ADA. The Internet replaces some of the more antiquated systems for shopping, entertainment, and media access, but as it currently stands, the ADA does not regulate the Internet. In 1990, Congress could not have anticipated the pervasiveness of the Internet in our culture today. As it becomes easier to make websites accessible through modern technology, web providers are failing to utilize the technology at the expense of the Deaf community. Currently, the ADA and its accompanying regulations do not explicitly require accessibility, thus Courts were left to determine whether web accessibility falls under the ADA mandate.

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As it becomes easier to make websites accessible through modern technology, web providers are failing to utilize the technology at the expense of the Deaf community.

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In the last decade, the Department of Justice (DOJ) has taken the position that the ADA as it currently stands includes Internet accessibility. The DOJ made this opinion apparent through Congressional Testimony before the House Judiciary’s Subcommittee on the Constitution and through amicus briefs filed in web accessibility litigation. Accordingly, the DOJ never issued a regulation discussing Internet accessibility and left individuals who could not access a website with litigation as their only recourse. Courts, however, have struggled to provide adequate recourse for a number of reasons.

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Accordingly, the DOJ never issued a regulation discussing Internet accessibility and left individuals who could not access a website with litigation as their only recourse.

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First, Federal Circuit Courts of Appeals cannot agree as to whether a virtual place is a “place of public accommodation” under the ADA. Some Circuits have determined that the Internet, as virtual place, is a place of public accommodation, other Circuits have determined that the ADA does not include virtual places at all, and further Circuits have concluded that any virtual places must have a connection to a physical place. This third opinion has been extended the most at the trial court level.

A second reason that the Courts cannot help is that people do not want to have to go to court! An individual who reach an inaccessible website is not going to run to a lawyer and spend time and money litigating an issue that is so unclear.

Third, many cases have been settled out of court which fails to set any judicial precedent for future litigants. In other words, when a case is settled out of court it definitely helps the individual who is suing, but in the future when other individuals sue, they cannot rely on the decision from before. For systemic change to occur, the law must explicitly mandate that public accommodations make their websites accessible.

Consequently, after frustration with the judiciary’s stance on the issue, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) to solicit comments regarding what issues and language a Notice of Proposed Rulemaking (NPRM) about web accessibility should address. This is the first step toward mandating accessibility for Internet materials provided by public accommodations under Title III. As many of you may know the captioning bill was recently passed. This bill, however, does not require captioning on video that is published only on the Internet. The DOJ’s proposed ANPRM would close that loophole. The comment period closed for the ANPRM so right now the DOJ is analyzing the public’s comments and making decisions as to what they think should be incorporated in the regulation.

After they make this decision, which will likely take months or even a year, the DOJ will issue an NPRM with more specific language that it will want to implement. This process overall will take years before we see any changes to the regulation but stay tuned for updates regarding any changes.


ABOUT HAYLEY KOTEEN
Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.

Everyday advocacy

BY ALICIA LANE-OUTLAW

“Eighty percent of success is showing up."

I used to wonder about this saying. Just show up? That seems too simple. Especially when it comes to advocacy. Aren’t there letters to write, people to call, meetings to organize, news alerts to read?

Some years ago I made a simple decision that ultimately drove home the power of this saying. The decision? Go to McDonald’s for lunch.

As I pulled into the parking lot, I pondered a familiar dilemma. Should I go directly to the drive-through window, risking possible delays and rudeness if the cashier didn’t know how to deal with a deaf customer who had bypassed the intercom ordering system? Or, should I just park, go inside, and wait in line?

I reasoned that since this McDonald’s was near my workplace, they might as well get used to having a deaf patron. I decided that from this point on, I would use their drive-through—whether they liked it or not.

With renewed resolute, I took my place in the line of cars. As I waited my turn, I wrote down my order on a piece of paper. When I pulled up to the window, I held out my written order with a smile … and braced myself.

The cashier at the window was a sweet-looking elderly gentleman with twinkly eyes. He peered at my paper, pecked at the cash register, wrote down the price on the paper and handed it back to me with a cheerful smile. I paid and proceeded to the next window where, to my relief, I got what I ordered.

Over the next few months, I frequented the drive-through and was warmly greeted by the gentleman. I began referring to him as my “McDonald’s friend” and looked forward to seeing him whenever he was on duty.

My trips to McDonald’s were not without mishaps. When my “friend” wasn’t there, my orders occasionally got mangled or delays were caused by the cashier having to get management for help. Each time, I reminded myself that the more embarrassment the employees felt, the more likely they would improve the system.

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Each time, I reminded myself that the more embarrassment the employees felt, the more likely they would improve the system.

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I drove up one day and was startled. The McDonald’s was gone. The building had been razed to make way for a new development. What had become of my friend?

A few months later, the new building was complete: another McDonald’s. Was my friend there? I drove up, and sure enough he was there, greeting me with an even bigger smile.

“I haven’t seen you in a long time!” he warmly exclaimed. But something was different. On the window next to him, there was bright blue lettering that read, “Hearing or speech-impaired assistance available at this window."

Wow. Political correctness of the wording aside, this McDonalds had finally made serving our community a formal part of their drive-through ordering system. And all I did was show up at their window.

How much did my showing up influence the improvements to their ordering system? I don’t know. Most likely others were already working with McDonald’s on this issue at the national level. But at minimum, my showing up at that window again and again gave the employees a concrete reason to embrace the new improvements to their ordering system. Most policies aren’t created from abstract concepts, but are based on the experiences of real people.

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Most policies aren’t created from abstract concepts, but are based on the experiences of real people.

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That’s the power of showing up. It puts a human face on our community’s needs. It adds momentum behind our leaders already in the trenches. And it reveals allies in unexpected places. I have no doubt that if there was any discussion of the need to better serve us at this particular McDonald’s, my twinkly-eyed friend would have been a vocal ally.

Sometimes advocacy really can be as simple as showing up. Where will you show up next?

Originally published in The Deaf Advocate by the Minnesota Association of Deaf Citizens.


ABOUT ALICIA LANE-OUTLAW
Alicia Lane-Outlaw is a past state association president and web accessibility advocate. A recent transplant from Minnesota, she is now learning the New York Way while working as a print/web creative director. At home, she chases after her tot with various clothing items and retrieves items for the vertically challenged in her family, including two felines. Follow Alicia on Twitter!

Why I am political: #7

BY RYAN COMMERSON

"I am political because we all have the right to reclaim our dignity."

Why I am political: #6

BY DON CULLEN

"I'm political because it affects me. It is foolish to allow something to affect me, and stand by and do nothing. We have the ability to control what affects us and in what way, so it is prudent to exercise that control."

Why I am political: #5

BY KELBY BRICK

"I'm not political. I'm a citizen who wants to help make the world a better place."

Why I am political: #4

BY ALIM CHANDANI

"Who isn't? To get what you want, you have to learn how to be political."

Getting to know Howard A. Rosenblum, the next CEO of NAD

BY JESSICA THURBER

Howard A. Rosenblum is a busy man—and understandably so. In a handful of weeks, he is going to be taking on his role as the next Chief Executive Officer of the National Association of the Deaf (NAD) and I feel lucky having the opportunity to interview him for Deaf Politics.

Prior to the interview, I did not know much about the man and I figured I was not the only one unfamiliar with the new CEO. I decided that conducting an interview with Rosenblum would be beneficial for the deaf and hard of hearing community. After all, he's going to be the next Big Leader™ of the deaf community for the next decade, or two, or three.

Howard A. Rosenblum

From childhood to adulthood

How did you get interested in law and politics? Was there a moment of clarity that brought you to where you are today?

My parents have always encouraged me to go into any type of career I wanted, including the legal and medical professions. When I was twelve, my mother dragged me to go and listen to Lowell Myers, who was the only deaf lawyer in the country at the time. It was a life-changing moment for me. Seeing Mr. Myers speak about his experiences made me realize that deaf people can indeed be lawyers, and that I wanted to be one.

What's your favorite thing about law and politics? What about the most disliked?

My favorite aspect of the type of law I practice allows me to intervene in acts of discrimination against deaf people and other people with disabilities. The part I dislike most is dealing with the lack of understanding among many people who are unaware of the rights of deaf people and other people with disabilities. It takes a great deal of work to educate people to prevent discrimination.

How did you decide to toss in your hat for the CEO position of the National Association of the Deaf (NAD)?

Several people encouraged me to apply, but I was not sure I wanted to leave my current job as an attorney or my hometown of Chicago. In the end, I decided to apply and see what happens. I felt that if I did get the position, I could do much more to change the system from the NAD than I could as a lawyer litigating on a case-by-case basis.

What would you consider your biggest achievement, and why?

While I never feel as if my work is done, I am proud of creating the Midwest Center on Law and the Deaf (MCLD). It is a 501(c)(3) tax exempt organization that provides information and referrals to deaf people seeking accessible legal representation. To me, this is critically important because it is extremely difficult to attain justice without a lawyer representing you, but many lawyers will not provide interpreters or other communication access to deaf clients. It was my hope that MCLD could become a way for deaf and hard of hearing consumers to find lawyers willing to be accessible.


The future, and what we can do to help

What's your vision for the NAD? What about for the deaf community?

The short answer of what I see for the NAD is to achieve equality for all deaf people in many areas including education, employment, and the enjoyment of life.

Deaf children and adults must have quality education to compete in jobs and enhance the quality of their everyday life. Employment opportunities must be equally accessible to deaf people without exception. All the programs and services available to the public must also be equally accessible to deaf people without exception. This includes the enjoyment of movies, television, restaurants, vacation spots, and the like. In addition, there must be equal access to professional services such as medical and mental health services, legal representation, courts, and government program.

In short, the vision is that deaf people are no longer treated like second class citizens but are treated equally like everyone else.

How can the deaf community help you in bettering the NAD?

There are several ways to help the NAD! The NAD is really a representation of the ideas, wishes, dreams, and goals of the deaf community. This means that the deaf community needs to share such ideas, wishes, dreams, and goals with the NAD. The NAD needs to hear from everyone. More importantly, the NAD can only survive if it has the deaf community as members who support it. Join us at the NAD to be part of the change for the better!

Do you have any advice for young deaf and hard of hearing people interested in law/politics?

My advice is to go for it! There are many deaf people now who are lawyers or work in politics. But we need many more! We need to become a part of the system that we seek to change. Change can only happen if we are working from within, and this becomes more possible when we increase the number of deaf people that are lawyers or working in politics.

Becoming a lawyer or getting a job in politics is not easy, but that is no reason to give up on such a goal. It takes a lot of hard work and study, but it is possible as evidenced by the many deaf people who are working in these fields now.

ABOUT HOWARD A. ROSENBLUM
Howard Rosenblum is, as of April 2011, the Chief Executive Officer of the National Association of the Deaf. He has been a Senior Attorney for the last nine years at Equip for Equality, a nonprofit organization designated as Illinois’ Protection and Advocacy entity, after nearly ten years with a private law firm. His legal practice for nineteen years has been in the areas of disability rights and special education. He has provided numerous workshops nationally and internationally on the Americans with Disability Act, the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act. Mr. Rosenblum received his law degree from IIT Chicago-Kent College of Law (1992), and his Bachelor of Science degree in Computer Engineering from the University of Arizona (1988).

Why I am political: #3

BY OCTAVIAN ROBINSON

I am political because I care. I don’t care for partisanship. I don’t care for politicians. I don’t care for politics for politics’ sake.

This is what I care about: people. Children. My friends. My deaf brethren. My fellow human beings. The creatures that inhabit this planet’s rivers, land, and air.

I also care about social justice. Equality. Opportunity. First-class citizenship for all regardless of sex, gender, sexual orientation, race, class, disability, religion, et al.

I, too, care about my hard earned paycheck. For every penny squeezed out of my hard earned money that goes towards taxes, I damn well want to know how it’s spent. I want to make sure that my hard earned money doesn’t fund hate or oppression. And if it does, I want to be ready to react.

As a scholar of history, history has taught me that we must care. We must learn lessons from history if we want to be an open, progressive, egalitarian society where every single individual is empowered to pursue life, liberty, and happiness. History has taught us time and time again that our civil liberties suffer the moment citizens drop their guard, are uninformed about politics, and relax their vigilance against the powers of big business and government. The poor and the powerless also suffer. The underclasses—including deaf people—suffer. I cherish my rights to free speech, free press, free assembly, trial by a jury of my peers, protection from unreasonable searches and seizures, and all the other rights outlined in our Constitution and subsequent legislation.

The moment we stop watching, reading, writing, speaking, voting, and especially when we stop caring, is the moment that our hard-earned rights and privileges of citizenship are stripped from us. Not in one sudden, swift move but rather in a gradual and piecemeal process.

Most importantly, as a deaf person, as a historian of the American Deaf Community, I am keenly familiar with the struggles that our deaf predecessors have experienced since the 19th century in order to provide deaf people with first-class citizenship.

Citizenship was something they treasured above all. Deaf leaders argued that deaf people’s education, economic opportunities, home ownership, and the very fabric of the deaf community depended on active, vigorous political participation that began with the pen and the ballot. With that, they achieved so much for future generations of deaf people. I care about their achievements. I want to guard and further those achievements for the sake of my deaf brethren and for future generations of deaf people.

If we want to guarantee our own happiness and future as well as the well-being of future generations of our children and the American Deaf community, we must care.

We may be wrong. We may be confused about issues. About who to vote for or what each party truly stands for. But political participation begins with one simple step: caring. For politics affects everything in our waking lives: from the air we breathe to the food we eat to the gas that fuels our cars and gets us to work to our evening entertainment on the television to the very beds we sleep on. How can one not care?

I am political because I care.


ABOUT OCTAVIAN ROBINSON
Octavian Robinson graduated from Gallaudet and is currently a Ph.D candidate at Ohio State. He lives in Ohio with his Weimaraner and three angry felines.