U. S. Rights - States Rights - Our Rights:  Who's Right?

by Jim Marks

When Jason Ward - not his real name - first arrived on our campus two or three years ago to study history, he uttered a few words that stuck with me. He had just rolled his wheelchair through a door to my office building, a door which came into existence only after a long push for access. The door, constructed in the early 90s, featured a wide, reasonably sloping ramp and large plate style automatic door openers. Before the struggle for the door, the only accessible entrance to the disability service office was through a grotesquely ineffective and mostly inoperable stairlift. The lift once left another wheelchair rider stranded for nearly an hour when she tried to use it after business hours. And the lift, stalled at midpoint on the stairs, caused a blind man to fall and tumble dangerously down the remainder of the flight. Students and employees alike raised their voices to complain that the lift wasn’t access, and the University of Montana responded by building an accessible entrance where there was none before.

“I can tell,” Jason said quietly, as he pressed the door plate, “that someone was here before me.” 
Jason explained his struggles in a small Montana town, where every part of his life meant he had to wrestle with exclusion due to the abundance of physical barriers in the environment. Access was clearly a new experience for Jason, and he knew what it had taken to make it possible for him to get into the disability service office. No one told him. He just knew.

Unfortunately, despite his acknowledgment of the sacrifices of his predecessors, Jason contributes little to the cause. Jason refuses to join in activism, even though he’s been approached multiple times. He says he’s too busy and goes along on his own path under the illusion he can manage discrimination on his own.

While access has improved vastly since the days of the make believe access afforded by the faulty lift, many barriers remain at the University. In the absence of a relentless advocacy for program access by the people who experience denials and limitations, it is unlikely access will improve. Advocacy is a necessary condition for access. Universities don’t tear down walls and eliminate stairs out of the goodness of the corporate heart. They remove barriers because someone, somewhere, sometime holds them accountable. 

I don’t know how to get people to assert their rights. Even the brightest and most able people shy away from the hard labor of holding public entities accountable. In 15 years of working in disability rights, I can only conclude that a person has to be angry before one is ready to champion equal access and opportunity. Anger, channeled in healthy ways, works. The trouble is that few become angry enough to act and no mentor can force another to become angry. It has to come from within.

My own story confirms this. As a student at the University in the late 70s and early 80s, I chose not to get involved. Despite my blindness, I couldn’t understand why a few diehard disability right types kept pestering me to join with them in making our campus more accessible. One time, a wheelchair-using student thrust a petition calling for accessibility in my hands. He asked me to sign so that the administration would take positive steps to comply with the civil rights law, Section 504 of the Rehabilitation Act. I signed, muttering something about how the issue seemed vaguely important, but that it didn’t affect me. I was here to study, I said, and the discrimination although apparent to anyone, required only lukewarm resistance from me.

Anger visited me after graduation when school administrators told me they would like to hire me, but that they couldn’t afford the readers and other accommodations a blind elementary school teacher would obviously require. All my entreaties about the district hiring me as a duty aide, a football coach, a substitute teacher, and my demonstrable skill as a teacher and classroom manager fell on prejudiced ears. “Sorry,” they said, “We found someone else more qualified.”

Left with no alternative to practice the profession, I found myself working in a center for independent living. At first, I hated it. Independent living was little more than a sheltered workshop for the gifted disabled, I said. But the need to work kept me in the saddle. I vowed that I would serve the cause of access so that the next person wouldn’t have to face the same ugly reality. Upon this anger I built my career.

Now, as a director of a sizable higher education disability service office, I encounter many a Jason Ward. And I know that Jason’s story is my story, maybe the story of most.

If there ever was a time to act, that time is now. It’s horrifying to see what’s happening with civil rights for people with disabilities. Two courts, the Seventh and Eighth Circuits, found that the Americans with Disabilities Act violates the Constitution of the United States. It seems that the authority of the federal government to protect individual rights takes a back seat to the authority of the states to govern themselves. In other words, it’s the ADA vs. states rights. Without a doubt the US Supreme Court will take up this legal question. Either the law will grow stronger, or it will die.

Oddly enough, the ADA’s survival may hinge on one factor: Clear and convincing evidence of discrimination. It’s difficult to show discrimination if only a few of us are doing the work. Instead of shrugging off personal responsibility, everyone must get involved.

The threat to the ADA may be a good thing in that it might make more of us angry. It’s almost as though the ADA lulled us into a comfortable sleep and somebody just hollered loudly and turned on the lights. With or without the ADA, the basic assertion of human value remains constant. True, the loss of the ADA would cut deeply. If it happens, people with disabilities will have a deep hole from which to climb. But climb we will, for we have no alternative. As the philosopher said, that which does not kill you makes you stronger. There’s nothing like unjust opposition to give a person identity and power. Going back to Jason, I suspect the discrimination would fire him up. It did me. And I believe many more will fire up if the ADA candle winks out.