Technology and the Rights of People with Disabilities
Brandon Bagley
In order to comply with the foundational ideals of Western Democracy, which are so heavily modeled after by American citizens and policy makers, it is necessary for all individuals of the United States to be given an equal opportunity to contribute to our society. As the technological world makes advances at a rapid rate, legal policies also must adjust in order to decrease the physical and societal restrictions put on disabled citizens. Rather than quick-fixes for problems, legislators must join together to make permanent changes to enable technology for everyone. Furthermore, altering technology goes beyond access for the disabled; it should facilitate engagement and inclusion.[1] Through important statutes such as The Assistive Technology Act of 1998[2], The Individuals with Disabilities Educational Act[3], and the Americans with Disabilities Act of 1990[4], policy makers have taken the right measures to ensure equal opportunities for the disabled. When discussing technology and its effects on the rights of people with disabilities, it is essential to analyze all viewpoints, legal issues, parties involved, and relevant documented legislation.
When dealing with hindrances of the disabled, a handicap usually coincides with a person's lack of ability to use one of their senses. Technology exists to improve these conditions. For instance, the blind have benefited greatly from the implementation of brail. People who are deaf can enjoy movies and television thanks to closed captioning. If somebody has lost their voice due to complications of smoking, there are electronic speaking devices which can amplify their words. There are now robotic artificial limbs for people lacking an arm or a leg. Lastly, for most forms of mental disability or any other disability that are unmentioned, there probably exists some form of computer software to engage an individual in making progress towards an easier life. All of the following solutions to handicaps are referred to as assistive technology.[5] As discussed by Sandra Tanenbaum, being disabled goes far beyond just physical or mental impairment. She states how, if someone hypothetically loses an elbow, there would be both social and physical implications, monetary issues, rehabilitation, and replacement.[6] This paper will discuss the measures taken by the United States government to ensure it has accounted for all the aforementioned examples.
Although technology associates with looking forward, it is important to discuss the foundation of American law in relation to the rights of people with disabilities. Two particular Amendments of the United States Constitution come into focus when discussing the rights of people with disabilities. The Tenth Amendment of the Constitution states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."[7] This amendment proves relevant to the Individuals with Disabilities Educational Act, because states are not forced to comply, and the federal government can only provide incentives for states to participate.3 Because of the Tenth Amendment, the states have the right not to enact this statute because it is not delegated in the Constitution. As well, the Fourteenth Amendment of the Constitution is pertinent to the rights of people with disabilities. This amendment has five different sections, the first which applies to disabilities, as it states:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."[8]
This amendment applies to race, gender, religion, and the disabled. Furthermore, although there are no laws directly segregating people with disabilities, people are being denied the privileges of being an American citizen.
Those who are not necessarily in favor of certain rights for people with disabilities, or specific statutes, build several different arguments. A major argument concerns exactly where the government should be allocating funds. With an ailing economy, and the constant threat of terrorism, disputes arise over whether to spend too much money on improving the lives of the disabled. American policy makers often look for guidance across the globe, and the fact that the European Union often shelves the importance of disability rights does not help.[9] The theory of universal design, which ideally desires "the design of all products and environments to be usable by people of all ages and disabilities to the greatest extent possible," has proven a tough task.7 Stepping away from employment, those who counter the skeptics of the Americans with Disabilities Act more generally will argue that the U.S. Department of Justice does not contain the resources to enforce against all companies and buildings that do not meet government standards.[10] Specifically relating to the Individuals with Disabilities Educational Act, there are students who do not qualify because they are not actually disabled. However, on the other side of the spectrum, there is no limit as to being too disabled. Therefore, there are students who may be both physically and mentally disabled that need an extreme amount of supervision and resources, both at a costly rate to taxpayers.[11] Outside of using costly resources, People criticize the Individuals with Disabilities Educational Act for another reason. Certain people would argue that forcing disabled students into regular public schools only instigates more discrimination and harassment from the nondisabled students, which would not occur if the disabled students were segregated away.
Those who are opposed to the Americans with Disabilities Act feel that, in many circumstances, certain people are being over accommodated when it is not actually necessary. An article written anonymously on The Onion, the satirical online news site, refers to those who receive the benefits of the act as "talentless," lacking any "real skills," and unable to "carve out a meaningful role for themselves in American society." Furthermore, this columnist argues that over 25 million unimportant white collar positions were created by the Americans with Disabilities Act, providing people with a false sense of accomplishment. As well, this writer argues that more qualified people are losing their jobs in favor of less capable people.[12] Referring to the statute and the rights of people with disabilities in general, some would argue that employers will treat disabled people differently in fear of a mishap, and that being disabled will always carry a certain stigma.[13]
To make a counterargument to those opposed to the American with Disabilities Act, the courts have taken measures to make individualized assessment tests for those attempting to acquire benefits of the statue. Furthermore, the majority of people who are not actually worthy of attaining the benefits presented by the statute should have an immensely difficult time making it past the assessment test.[14] Several organizations that fight for the justice of disability rights include the Disability Rights Advocates, The Council for Disability Rights, and the Disability Rights Advocates for Technology.
Another important question comes up when deciding which individuals should get financial preference, if necessary, based on the severity of their disability or how the disability occurred. For instance, should a person who was born disabled get preference for monetary benefits over people who became disabled after not using reasonable care in their life, such as speeding on a motorcycle without a helmet? Furthermore, there is the scenario of people who were not always disabled, but became so due to fighting for their country, such as wounded war veterans with amputations6. Should someone who served their country always get first preference for government funding? These are all highly debated questions. When looking for answers, it is important to analyze the law as set forth through relevant statutes and case law.
The Assistive Technology Act of 1998 states that because of our developments in technology, disabilities should not impair a person's ability to live independently, make their own choices, receive an education, maintain a career, and feel completely included in American society. The latter point refers to engaging in politics, being social, and feeling integrated into culture. When drafting this Act, the Senate and House of Representatives also understood that in order for the approximate 50,000,000 Americans with a disability to achieve these ways of life, technology proves a necessity. This piece of legislation also states some hindrances to enabling rights of the disabled, including a lack of resources, a shortage of trained personnel, and being able to reach all individuals who would benefit from the legislation. As well, producers of assistive technology devices are hesitant to become commercial due to the perceived limited market of the disabled community of America. Hints here can be taken from the United Kingdom, which holds a Design Challenge for its Design Business Association, in which some of their top design firms are pushed to develop inclusive new products for disabled youth.[15] Referring back to the Act, goals include increasing funds to the states for improved assistive technology, informing more disabled people about the capabilities at their disposal, enabling more professionals in the field of aiding people with disabilities, forcing more public and private buildings to accommodate the disabled, and increasing general awareness of the importance for assistive technology.2 This Act was amended in 2004 with hopes of enabling more developmental programs within the state level.[16]
To diverge into a specific area mentioned by the Assistive Technology Act, The Individuals with Disabilities Educational Act requires that all schools provide an approximate 6,500,000 eligible American students with special education needs the proper technology necessary to receive a suitable education.3 Before this Act was created in 1975, most public schools would only agree to educate 20 percent of disabled students, and some states would discriminate the entirety of students with disabilities.[17] Children qualify under this act if they suffer from mental retardation, autism, impairment of hearing, impairment of sight, impairment of speech, inability to transport, and several other forms of disability. A primary goal of this Act is to ensure that families with a disabled child are entitled to the same free public education as every other American family, and they should not have to pay extra finances. Other goals of this Act include providing educational institutions with the proper funding needed to meet governmental standards, and to make certain that disabled students still receive as good an education as anyone else. In compliance with the Act, each disabled student is given an Individualized Education Program or Individualized Family Service Plan specific to their needs. Teachers are given much more flexibility when there is computer-assisted instruction involved with an Individualized Education Program.[18] There are studies that show autistic students actually respond better to computer robots than to human teachers7. As well, many special education programs have even instituted virtual field trips[19]. Nonetheless, this Act was amended in 2004 because special needs children were being completely isolated from the public school system, educational institutions lacked the correct resources to educate these children, and many children were disabled, but remained undiagnosed.3
The Americans with Disabilities Act attempts to provide equal opportunity realistically, without sacrificing over costly litigation. When legislated, Assistant Attorney General of the Civil Rights Division of the U.S. Department of Justice, John R. Dunne, felt confident that Americans would voluntarily make a strong effort to comply with the Americans with Disabilities Act.[20] Title I of the statue states that every employer should conform to three different reasonable accommodations: modifying the job application process, altering the work environment, and enabling all benefits and privileges. All three feasible adjustments should be made as long as the disabled person is equally able to perform the overall function of the job[1]. Title II deals with public services, Title III describes public accommodations, and Title IV covers telecommunications.[21] The main goals of the Act are eliminate discrimination and to provide clear standards. This Act was amended in 2008 in order to clarify decisions made by the Supreme Court in specific cases relevant to the Act. Several cases occurred since the 1990 construction of the Act in which the exact definitions of certain terms set forth in the Act came into question.4
A specific case questioning the definition of a disability, although the circumstances did not lead the case to court, was discovered after a personal interview was conducted with Bruce Bagley. Bagley is a labor and employment attorney with McNees Wallace and Nurrick LLC, based out of Harrisburg, Pennsylvania. One of Bagley's top clients, Hershey Foods Corporation, dealt with an obese employee who demanded that she receive expensive accommodations in her office to help meet the needs of her excessive size. Because her weight problems did not stem from any sort of diagnosed gland disorder, but simply from eating heavily and a lack of exercise, Hershey Foods was able to throw out the case. In this example, the disgruntled employee's physical hindrance did not fall under the definition of a disability under the American with Disabilities Act.[22]
Another relevant case concerning disability rights was Access Now v. Southwest Airlines, which focuses on more modern forms of technology, such as computers and the internet. Access Now, a disability rights advocacy group, supporting a blind individual, sued Southwest concerning their website. The group argued that the website itself, and its virtual ticket counters, were both not accessible to blind people. The plaintiffs also argued that Southwest was in violation of Title III of the Americans with Disabilities Act. The case was dismissed in District Court because the court decided that the internet did not constitute as real space.[23] This case is sure to be one of many, and the future of technology law has its hands full with multiple substantive arguments for both sides.
There are some other important laws that were not discussed in depth. The Telecommunications Act of 1934, and amended in 1996, makes sure that all telecommunication equipment is accessible to people with disabilities. The Fair Housing Act of 1988 bans any housing institutions from discriminating against a person based on race, gender, religion, or being disabled. The Air Carrier Access Act permits all people, regardless of disability, the right to engage in air transportation. The Voting Accessibility for the Elderly and Handicapped Act of 1984 requires that all places which partake in voting provide accessibility to the disabled. The Civil Rights of Institutionalized Persons Act permits the Attorney General to investigate all public areas, such as prisons and mental wards, to ensure they are meeting the standards of the disabled. The Rehabilitation Act prevents discrimination in all programs supervised by federal agencies. Lastly, the Architectural Barriers Act of 1968 requires that all federal built or financed buildings be in full compliance with accessibility standards of the federal government.[24] Sometimes, the federal government will provide incentives to comply with specific acts, but on other occasions the government will enforce compliance deadline dates.[25]
There are also other policy issues that relate directly to the rights of people with disabilities, such as affirmative action[26] and the No Child Left Behind Act.[27] The idea of affirmative action began after the Civil Rights Movement in 1965 when President Lyndon B. Johnson created an executive order to ensure that women and racial minorities were given opportunities in the work place. Affirmative action has evolved from the workplace to involve college admissions and other forums, and spans from women and racial minorities to religious minorities and people with disabilities.12 As discussed later in this text, the classic argument here arises over whether the most qualified individual should always get the job. Interestingly, the largest unemployment rate amongst people with disabilities belongs to a minority: African Americans.[28] No longer referring to affirmative action, but with the No Child Left Behind Act, instituted by President George W. Bush13 to ensure that public schools make annual progress in respect to standardized test scores, there are several issues which relate to disabled students. For one, a question arises as to whether a disabled student, pending the impairment, should be included in a school's average standardized test score. Also, with respect to the act, people would argue that certain students, including some disabled students, are simply not as intelligent as other students. Furthermore, to enforce this act would be having audacious expectations for the public school system.
With all issues relating to technology, the Office of Science and Technology Policy is pushing for many forms of improvement. Among the major goals of this office, the following have relevance to technology and people with disabilities: lowering health care by improving information technology, updating public safety forms of communication, modernizing education, improving manufacturing methods, protecting the internet from malicious intruders, protecting internet users, and promoting general innovation. Additional focus and care from the government concerning these issues will improve the lives of people with disabilities, as well as all American citizens.[29]
When looking towards the future of technology and the rights of people with disabilities, a major point of discussion arises again relating to the internet. If a particular commercial website has no intentions of targeting any sort of disabled people, should that website still be forced to meet certain regulations? Some companies take measures to ensure that their sites are accessible to disabled people regardless, either for ethical reasons or for trying to deter a future lawsuit. As seen with Access Now v. Southwest Airlines, there are no relevant statutes directly pertaining to this area of law, and it remains very much open. The World Wide Augmentative and Alternative Communication project, started in 2001 by the European Union, aims to achieve four particular objectives: developing adaptable Internet applications, adding to the development of accessibility guidelines, creating an entirely new infrastructure, and producing new forms of coding.7 This project is ambitious, but like all other movements for the rights of people with disabilities, no easy road exists. As described by Norris Hansell, there are seven essential necessities in life: things that are necessary for survival such as food and air, a self identity, making connections with other humans, finding a group, filling a social role, obtaining finances, and reaching a sense of meaning.[30] Going forward, it is clear that the internet is a necessary factor in many of these areas, and public policy will have to adjust accordingly.
Brandon Bagley (2009)
[1] Blamires, Mike. Enabling technology for inclusion. 1999.
[2] Assistive Technology Act of 1998, Public Law 105-394 (1998)
[3] Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (1975)
[4] Americans with Disabilities Act, 42 U.S.C. § 12101 (1990)
[5] Assistive Technology for Persons with Disabilities: An Overview.
Disability Rights Network of Pennsylvania, http://drnpa.org/File/overat9-08.pdf
[6] Tanenbaum, Sandra J. Engineering disability: public policy and compensatory technology. 1986.
[7] U.S. Constitution, amendment X.
[8] U.S. Constitution, amendment XIV.
9 EurActiv. EU Makes Limited Pledge on Disabled Rights. http://www.euractiv.com/en/socialeurope/eu-limited-pledge-disabled- rights/article-162931
[10] The Impact of the Americans with Disabilities Act: Assessing the Progress toward Achieving the Goals of the ADA. National Council on Disability, http://www.ncd.gov/newsroom/publications/2007/ada_impact_07-26-07.htm
11 U.S. Department of Justice, Disability Rights Section, A Guide to Disability Rights
Laws. http://www.ada.gov/cguide.htm
[12] Congress Passes Americans with No Abilities Act, available at the onion http://www.theonion.com/content/node/28982
[13] DeLeire, Thomas. The Wage and Employment Effects of the Americans with
Disabilities Act. Vol. 35. Journal of Human Resources. Issue 4, 2000.
[14]Vierling, Lewis. Proving Disability Remains Difficult. Vol.15. The case manager. Issue
1, 2004.
15 Keates, Simeon and John Clarkson and Patrick Langdon. Designing a more inclusive world. 2004.
[16] Assistive Technology Act of 1998, As Amended. Association of Assistive Technology Act Programs, http://www.ataporg.org/atap/index.php
[17] U.S. Department of Education, Office of Special Education and Rehabilitative
Services. History: Twenty-Five Years of Progress in Educating Children with Disabilities through IDEA. http://www.ed.gov/policy/speced/leg/idea/history.pdf
[18] Woodward, John. Technology, curriculum, and professional development: adapting schools to meet the needs of students with disabilities. 2001.
[19] Higgins, Kyle and Therese M. Smedley. Virtual Technology: Bringing The World Into the Special Education Classroom. Vol. 41. Intervention in school & clinic, Issue
2, 2005.
[20] U.S. Department of Justice, Office on the Americans with Disabilities Act, The Americans with Disabilities Act: Title III Technical Assistance Manual. 1990
[21] U.S. Congress, Office of Technology Assessment, Psychiatric, disabilities,
employment, and the Americans with Disabilities Act. 1994.
[22] Bagley, Bruce. McNees Wallace & Nurrick LLC. Personal interview. (2009)
[23] Fair Disclosure Wire. The ADA the internet and technology: accessibility in cyberspace for disabled employees and consumers. 2005.
[24] Lazzaro, Joseph J. Adaptive technologies for learning & work environments. 2001.
[25] McCormick, John A. Computers and the Americans with Disabilities Act a manager's guide. 1993.
[26] Stanford Encyclopedia of Philosophy. Affirmative Action, http://plato.stanford.edu/entries/affirmative-action/#1
[27] No Child Left Behind Act, Public Law 107-110 (2001)
[28] Simpson, Jennifer. How Civil Rights for People with Disabilities Impact the Private Sector. The International Center for Disability Resources on the Internet, http://www.icdri.org/JeniferS/how_civil_rights_for_people_with.htm
[29] Office of Science & Technology Policy. Technology. http://www.ostp.gov/cs/issues/technology
[30] Scherer, Marcia J. Connecting to learn educational and assistive technology for
people with disabilities. 2004.
