It s Congress response to the Florida election mess by HC120831103615


									Hello, and welcome to Disability Nation - an audio magazine by and for people with
disabilities. I'm Larry, your host, and thanks for listening.

Well, I've got a packed show for you this week. First of all, we're going to hear about a
new event that's happening in the disability world. You might be familiar with the Ms.
Wheelchair event that happens. There are state competitions across the country and
then a national event where one individual is crowned Ms. Wheelchair America. Well,
Ross Wine-Sky is here to report on the Mr. Wheelchair America event that is just getting
started, and you have just a couple more weeks to get signed up and register to
participate in the 2007 event, so you'll learn how to do that on this episode, and more
about the event and why it was started.

Also, I'm pleased to bring you a presentation from a conference that I recently attended.
The presentation focuses on the Americans with Disabilities Act, or ADA: Its Past and
Prospects for the Future. In addition to that, we'll bring you an interview with Jim Dixon
of the American Association of People with Disabilities, or AAPD. There's a bill pending
right now in the House of Representatives that could dramatically alter your right to an
accessible vote in the future, so we'll learn more about that.

Finally, Dave Reynolds from Inclusion Daily Express will stop in with the latest news
from the disability community.

If you wish to contact Disability Nation, you can send e-mail to; phone 206.338.6225; or stop by the Disability Nation
website at

[waves on the beach] Doesn't that sound relaxing? A day at the beach? How about a
week? For those of you who are regular listeners to Disability Nation, I just want to let
you know I'm going on vacation. I'm getting out of this hot desert and taking it easy at
the beach for a week. So there won't be any new episodes of Disability Nation for a
couple weeks, but I plan on returning August 12th. So be sure to stop by the website, and
don't forget about us when we come back in August.

Have a great summer!                                                    Page 1
DN 36 - July 15, 2007

Many of us in the disability community are very familiar with the Help America Vote
Act, or HAVA, which took effect several years ago, and was an effort by Congress to
increase accessibility of voting for people with disabilities across the United States. Well,
lately you might have heard a lot of about a paper trail and efforts to change voting
requirements in the United States. Here to talk about how the implementation issues
still facing voters with disabilities, and this paper trail issue, is Ross Wine-Sky, with an
interview with Jim Dixon of the American Association for People with Disabilities.

Ross Wine-Sky:          I'm here with Jim Dixon, who is the vice president of government
                        affairs for the American Association for People with Disabilities.
                        And Mr. Dixon is one of the foremost authorities on voting for
                        people with disabilities.

                        Can you tell us a little bit about the HAVA act and the history of that

Jim Dixon:              Sure, Ross. The Help America Vote Act, HAVA, was passed in 2002.
                        It's Congress' response to the Florida election mess; and as part of
                        that law, thanks to the leadership of Senator Dodd, so the first time
                        people with disabilities have the right to vote privately, secretly, and

                        Incidentally, it's the first time in federal law where it states that
                        anybody has the right to vote secretly and independently.

Ross Wine-Sky:          That's interesting. How's it been going with that law and states'

Jim Dixon:              It's mixed. Accessibility has two pieces. There's mobility access and
                        then access to the voting machine or process. About 35% of the
                        country's polling places were wheelchair accessible in 2006. In the
                        same year, about 40% of polling places had a machine which would
                        allow people with a variety of disabilities to vote secretly.

                        So, we've made a lot of progress, but we have a long way to go.

Ross Wine-Sky:          There's been a lot of talk about a paper trail. Can you tell us what
                        that really means, or what people are talking about when they say a
                        paper trail?

Jim Dixon:              Well, that's a very good point, because as it turns out, lots of people
                        have a whole lot of different ideas about what a paper trail is; and
                        while it's a very vocal and well-organized minority that want the
                        paper trail, polling over and over indicates that the overwhelming
                        majority of voters are comfortable and in fact like voting on a
                        touch-screen computer.                                                          Page 2
DN 36 - July 15, 2007

                        Paper trail - it is not a receipt that the voter can take with them.
                        That's not going to happen because it would stimulate vote buying.
                        Now, if some crook wants to steal an election, basically the crook
                        has to trust the voter who voted for who the crook wants. There are
                        some complex, tricky schemes that people have devised to buy
                        votes, but they're very complicated and usually get caught. In any
                        voting system, there's going to be somebody who figures out a way
                        to mess with it.

                        A paper trail means that in addition to the electronic data storing
                        the vote, there's also a piece of paper that has the vote on it.

Ross Wine-Sky:          So would that paper be stored inside the machine?

Jim Dixon:              Yes. And in fact, on the models that are in place now, the paper is
                        stored inside the machine and under glass, so the voter can never
                        actually touch the paper.

Ross Wine-Sky:          So it really wouldn't be much different than it is now.

Jim Dixon:              That's right.

Ross Wine-Sky:          I must admit that even I thought they were talking about a receipt. I
                        think this is a really confusing issue for people.

Jim Dixon:              It is. Running elections aren't rocket science. It's more complicated
                        than that. The amount of detail is just mind-blowing. I actually
                        think that paper is counterintuitive. But beside the fact that there's
                        no device that would make paper accessible to the blind, or that
                        would allow people who can't use their hands to vote without
                        handling the paper, paper's a bad idea.

                        We've been voting on paper for years, and it's crystal clear people
                        can cheat. The problem with paper votes is when you get a close
                        race, you get into the problem of voter intent. That's what Florida
                        was all about; deciding is this a vote, or is that a vote? And in a close
                        election, the last thing you want is human beings deciding whether
                        or not this piece of paper is going to count or not.

                        Plus -- and this doesn't get brought up, but to me, it seems to be a
                        really important point -- when you start talking about hundreds and
                        thousands and even millions of ballots, you can't count them twice
                        and get the same result. Experiments were done at MIT that shows
                        that no matter how careful you are, there will be three errors for
                        every 10,000 ballots. Well, that doesn't make a whole lot of
                        difference is you've got a winning margin of five or six percentage                                                           Page 3
DN 36 - July 15, 2007

                        points. But in a case like Florida or the governor's election in
                        Washington State in 2004, where you had less than 600 votes
                        dividing the winner and loser out of 2 million pieces of paper; I
                        think it was about 3.5 million pieces of paper in Florida. You can't
                        count it twice and get the same result.

Ross Wine-Sky:          So what's Congress doing? I hear that Congress is actually looking
                        at passing some legislation on paper voting.

Jim Dixon:              There's a bill in the House of Representatives, H.R. 811, which as
                        currently drafted, would require new voting systems for the
                        presidential election in 2008. It takes away the accessible machines
                        and makes them illegal to use. I'm afraid the House is going to pass
                        it, but I think we've got a decent chance in the Senate of either
                        fixing it or killing it.

Ross Wine-Sky:          And I know that also I've been reading in the paper that certain
                        states have been looking at people's competency to vote. What's the
                        difference between eligibility to vote and competency to vote?

Jim Dixon:              Well, that's a very big problem. Competency used in the voting
                        sense turns out to be in the eye of the beholder, which makes it not
                        unlike the whole problem of looking at a paper ballot, is this a vote
                        or not. AAPD believes that if a person is capable of wanting to vote,
                        and knows that they're voting for president or governor, they
                        should have the right to vote.

                        There is no law that says people have to cast an informed vote. In
                        fact, we've got a lot of experience that says a lot of Americans cast
                        uninformed votes. We can't have a separate standard for people
                        with disabilities where we have to prove competency, but other
                        people don't.

                        AAPD's position is a person has the right to vote. This often comes
                        up in the situation where there's a guardian. If a person has a
                        guardian, that person is assumed to have the right to vote unless the
                        guardianship explicitly says the person can't vote, and that has to be
                        determined by a court based on sound, objective medical evidence,
                        and not any one or two or a group of individuals saying this
                        person's not competent.

Ross Wine-Sky:          So what can people that are listening out there do in terms of the
                        paper trail and making sure that they have the right to vote
                        independently?                                                        Page 4
DN 36 - July 15, 2007

Jim Dixon:              People should immediately contact their Congressperson and say
                        we do not want to take any steps backwards on voting access, and
                        urge their Congressperson to vote against H.R. 811.

Ross Wine-Sky:          Do you know when this will be coming for a vote?

Jim Dixon:              They're hoping to bring it up before July 31st when the Congress
                        goes out for August recess. But with the Congress, you never know
                        until a few days before.

And now, here's the latest news from the disability community from the editor of
Inclusion Daily Express, Dave Reynolds.

Hello, I'm Dave Reynolds, editor of Inclusion Daily Express, the international disability
rights news service. Here's a look at some of the things that happened in disability rights
and advocacy during the week that ended July 13th.

The Senate Health, Education, Labor, and Pensions Committee heard testimony
Tuesday about the need for community based supports and the current bias towards
institutional services within the nation's long-term care system. One of those invited to
testify in support of Senate Bill 799, the Community Choice Act of 2007, was Andy
Imperato of the American Association of People with Disabilities; who spoke on behalf
of AAPD, ADAPT, the National Council on Independent Living, and Self-Advocates
Becoming Empowered. Others who testified included a home-care worker, the parent of
the child with the disability, a service provider, and a consumer of community services.

The measure, introduced in March, would change Title XIX of the Social Security Act to
allow people receiving long-term care funds to have equal access to community-based
in-home services as an alternative to nursing homes and other institutions. Imperato
told the panel that people with disabilities are facing a crisis, and the government should
deal with it like a crisis.

Two senators on the panel also joined members of the House in introducing the
Community Living Assistance Services and Supports Act of 2007 on Tuesday. The class
act would provide a cash benefit to help people who acquire a disability to purchase
services and supports, while providing them more choices with community
participation, education, and employment. The measure is already supported by 80
groups, including major disability organizations and labor unions.

The AAPD announced this week that four of the candidates for U.S. President for 2008
have submitted their answers to a survey on issues that are important to Americans with
disabilities. The questionnaire, which was sent on April 5th to all of the candidates from
both major parties, included questions on political leadership, employment, health care,                                                     Page 5
DN 36 - July 15, 2007

long-term care services, housing, transportation, education, technology and
communication, voting, civil rights, and international human rights. So far, only
Democrat Senator Barack Obama, Senator Hillary Clinton, former Senator John
Edwards, and New Mexico Governor Bill Richardson has responded directly to the
questionnaire. Readers can access the questions and answers at the AAPD website.

Some current and former nurses at Delaware Psychiatric Hospital told the News-
Journal this week that they are facing harassment and intimidation after they reported
incidents of patient abuse by attendant staff at the facility. They said the emissions unit
has even been dubbed "Little Vegas" because if patient abuse happens there, it stays
there. The newspaper painted a disturbing picture of staff-on-resident violence, and an
atmosphere of fear toward anyone who reports problems or tries to intervene.

The city of Joliet, Illinois has decided to start issuing fines for businesses that are not
accessible to people with disabilities. The Herald-News reported that the fines would
start at $75, and that in some cases, that could mean $75 a day. The decision to penalize
offending businesses comes two years into the city's ADA program. Only one-fifth of
businesses comply with the 17-year-old federal law.

A former guard is suing Hamptons Roads regional jail in Virginia, claiming that officials
dismissed her on her first day at work when they learned that she has only one arm.
Chanelle Taylor says in her suit that she was offered the job after she interviewed and
passed both the physical and written test to show she could perform the necessary tasks.
But when she showed up for work in December 2005, a human resources official told
her she no longer had the job. Even after she explained that she used a prosthetic arm
because she was born without a right arm, the official allegedly told Taylor the job was
still revoked. Taylor claims that the jail failed to consider any accommodations. She is
seeking $300,000 in damages and two years of back pay.

This week, disability rights advocates across Ontario, Canada celebrated the announced
appointment of David Onley to the post of provincial lieutenant governor. Onley, a
prominent newscaster for more than 20 years, is regarded as a strong supporter of
rights for people with disabilities. He contracted polio when he was a child and has since
used leg braces and a motorized scooter. Instead of hiding his disability, he has insisted
on reporting and anchoring from his scooter. Onley is expected to focus on accessibility
during his five-year term, which begins August 1st. He said he believes it's important to
be a role model for other Canadians with disabilities, particularly children.

As of Friday, police in Indiana County, Pennsylvania, have not yet charged a couple with
a crime, after it was revealed that they allegedly chained their 30-year-old son to his
bed. According to the Pittsburgh Tribune-Review, Nancy and Jerry Ewing are defending
their decision to secure one end of a twelve and a half-foot stainless steel chain to the                                                     Page 6
DN 36 - July 15, 2007

ankle of their son, Thomas, and the other end to his bed. The couple said they did it to
keep Thomas, whom they described as having the mental age of a five-year-old, from
climbing out his bedroom window and peeking through the windows of neighbors in
their trailer park at night. The owner of the trailer park said he contacted the local
mental health agency at Thomas' request. The couple said Thomas was not hurt, and
they just wanted to teach him a lesson. Authorities said Thomas was staying in a safe
place while they investigate.

Kimberly-Clark announced this week that it's distributing the world's first electronic
touch-free bathroom tissue dispenser. Just placing a hand under the professional GRT
dispenser causes it to automatically spit out a predetermined amount of TP into your
hand. "It's sanitary, doesn't leave half the roll on the floor, and is designed to comply
with the ADA," according to a company press statement.

And finally, Allan and Susan Griffin of Ogawa, Massachusetts say they want to keep
Snow White and Cinderella at home, but zoning officials for the city say no. That's
because local zoning laws do not allow people to keep livestock on properties as small as
the Griffin's one acre parcel. Snow White and Cinderella are goats, and Mrs. Griffin says
they can provide her with milk that would ease discomfort related to her colitis, a
painful digestive condition. The Griffins this week filed a lawsuit against city officials,
claiming that their rule violates Susan's federal rights and the ADA.

This is Inclusion Daily Express editor Dave Reynolds.

For daily updates, expanded coverage, and commentary on disability rights news
from around the world, go to and sign up for the Inclusion
Daily Express today!

For links and more information about topics featured on today's show, to download a
transcript, or to download this or any other episode of Disability Nation, visit our
website at

From time to time, we in the disability community hear about court cases that could
have a negative effect or impact on disability laws, such as the Americans with
Disabilities Act. There's often great speculation about how these cases will affect things
in the future for us. You may also know that there's an effort to re-open or re-examine
the Americans with Disabilities Act, to attempt to address or resolve some of the
shortcomings in the law and challenges facing it because of recent case law decisions. I
recently attended a conference where a presentation was given, entitled "The American
with Disabilities Act: Its Past and Prospects For the Future." This presentation was
given by Dr. Otis Stephens, who is with the University of Tennessee College of Law. I
thought this was an interesting presentation and that he did a great job highlighting how                                                     Page 7
DN 36 - July 15, 2007

case law impacts the overall disability landscape, and what we might expect in the

Dr. Otis Stephens:

Good morning, everybody. We had a very interesting Supreme Court term just finished;
doesn't bode well, I'm afraid, for the ADA, although, that could change, depending on
who next goes on the Supreme Court.

But I would like to tell you, just at the outset, before I begin talking about recent
developments under the ADA and a little background on that legislation, that one of our
friends, as a matter of fact, a fellow who has actively worked with ACB over the years,
Ralph Neas -- you remember his name -- he's head of People for the American Way. He
was commenting on the court's departure from precedent during its recent term, and of
course, Chief Justice Roberts had made a big deal out of saying that he liked to back
precedent. However, he participated in overruling, if not formally, in fact, several
important ones this past term, which led Neas to say that, "The Court's treatment of
precedent this year is like a wrecking ball treats a glass window." So that's more or less
where we stand.

The Court, however, interestingly enough, has handed down in the last three years, two
rather important ADA decisions. One, of course, that you're familiar with, is Tennessee
v. Lane in 2004, in which the Court held that, by a 5-4 vote with Justice O'Connor
having switched sides from an earlier case, that Title II of the Americans with
Disabilities Act does, in fact, contain recognition of a fundamental right of access to
courthouses; which means that the Constitution of the United States supports that
interpretation of Title II, and individuals are, at least legally, guaranteed full access to
direct participation in courtroom proceedings; and the implications of this decision go,
of course, a good deal further than just courthouses. That's now being worked on in the
lower courts, and we're seeing some expansion of the Lane precedent.

Just last year, interestingly enough, the Court, in another Title II case, said that "the
rights of individuals may be protected under Title II if the state actually violates a
constitutional right of an individual." In this particular case, it involved a prisoner who
was not provided with the kind of conditions that he was entitled to in his jail cell. He
was in a wheelchair; it was a matter of health, hygiene, and he was not being given what
he needed. The Court recognized the state's behavior of failure to perform in this case as
actually amounting to cruel and unusual punishment, which violates the 8th
amendment of the Constitution. Justice Scalia, of all people, recognized this right and
upheld the claim of the prisoner in this case, which really amounted to something -- it
was a rather unusual case, but it really represented almost an oblique expansion of the
Lane decision.

So in that respect, the Court is, I think, on the right track for disability rights. But there
have been other decisions in other areas that tend to move in the other direction.                                                        Page 8
DN 36 - July 15, 2007

As you know, United State disabilities law is almost entirely statutory; that is, it is set
forth in legislation, which in turn, is elaborated on and implemented y administrative
regulations that have the force of law. Statutes and regulations under our complicated
legal system must ultimately conform to the requirements of the federal Constitution;
and of course, here's where a federal judge is, including the nine justices of the Supreme
Court, enter the picture.

Because the statutes and regulations are drawn up by human beings -- in other words,
because, as James Madison once said, "Men are not angels. And because these human
beings are by no means perfect, the statutes are not always clear and consistent." You
can say that again.

For better or worse, under our system or government, the primary responsibility for
interpreting, unscrambling, explaining the meaning of statutes and regulations falls
primarily on judges; and this includes the ultimate power to determine whether a
particular statutory or regulatory provision is being applied in accordance with
provisions of the Constitution of the United States.

With reference to disability law in both the national and state levels, constitutional
requirements of equal protection and due process of law are most important. In recent
years, the 11th amendment, recognizing the principle of state sovereign immunity, has
also become an important yardstick on constitutional interpretation. All this is highly
abstract and legalistic, and I apologize for boring you with it; but it is essential to have a
working knowledge and to remind ourselves at the same time, regarding the theory
underlying our legal system, if we expect to make sense out of the ADA.

I might mention, under the 11th Amendment, that the Supreme Court back in 2001,
denied the right -- an employee case under Title I of the ADA -- denied the right of a
woman to bring a damage suit against the state of Alabama because, in the words of the
majority, a five-member majority of the Court, Congress had not properly abrogated or
abolished state sovereign immunity. So the state claimed sovereign immunity in that
case and won. The Lane case that came down three years later under Title II of the ADA
went the other way, as I mentioned before; simply because Sandra Day O'Connor
changed her vote. Sandra Day O'Connor is no longer there. Her replacement is Samuel
Alito, who aligned him closely this year with the most conservative wing of the Supreme
Court. However, I understand just from scuttlebutt and personal comments from a few
people who know Alito, that he does have some concern about disability rights.

Now it's important to place the ADA in historical perspective, so I'm going to drop back
in time, just for a couple minutes here, and remind you of a few past events that seem to
be important in understanding what we are now considering.

Since the late 1960s, disability law and policy has attracted the widespread attention of
policymakers, academics, courts, researchers, employers, and advocates; great
attention. Prof. Peter Black, whose textbook I'm going to be using this fall -- he co-
authored a major disability law textbook, a very good textbook -- he noted recently that                                                        Page 9
DN 36 - July 15, 2007

the ADA has become America's national policy statement affecting the lives of persons
with disabilities. That's a pretty sweeping endorsement of the importance of this law.

Since the mid-1970s, the disability movement switched from a medical model to what
can best be designated as a civil rights model, but not completely. The shift is by no
means complete. Remarkably, even today, employment, health care, governmental
services, rehabilitation programs for people with disabilities are still modeled, to a large
extent, on outmoded medicalized stereotypes about disabilities. These views date back
at least as far as the American Civil War, with the birth of a military pension system that
linked the definition of disability to an inability or perceived inability to work. This
applied to the veterans of the Civil War, and recognized medical doctors as the
gatekeepers of disability benefits.

A lot of research has been done on this subject. It has shown, not surprisingly -- this
won't come as any surprise -- how politics, believe it or not, influenced the allocation of
federal pension benefits even after the Civil War. The medical model was really designed
to address the needs, as distinguished from the rights of people with disabilities. This
led to government policies that viewed assistance to people with disabilities as a form of
charity or welfare. As an example, as late as the early 1940s, the Georgia Academy for
the Blind, the public residential school for blind students in my home state of Georgia,
was administered under the supervision of the state welfare department, not the state
board of education.

And Georgia wasn't the only state in that situation back in the early '40s. Little if any
consideration was given at that time by those in authority at both the state and the
national levels, to discrimination in education, employment, transportation,
communication, and other areas as a form of civil rights violations against people with
disabilities. All this came out of a gradual shift from the medical model, because we were
given some attention by the post-World War I period. We were giving some attention to
employment for people with disabilities, including the Randolph-Sheppard Act, which
passed in 1936 and was a premier example of the federal government's commitment to
employment of people, black people, specifically, with disabilities. But that movement
was slow in coming.

But the civil rights movement of the 1950s and 1960s changed all that. People with
disabilities began to see themselves as excluded, disadvantaged minorities of
individuals; much like African-Americans and much like women; who although they're
not a minority by any means, certainly were, and in some cases, still are disadvantaged
in our system.

So the disability rights movement got underway, influenced heavily by the civil rights
movement involving African-Americans, involving ethnic and racial minorities, and
involving women. Problem was -- one problem, at least, for racial discrimination and
gender discrimination, a higher standard was developed by the Supreme Court in
examining alleged instances of discrimination. Any racial classification would be upheld,
the Court said, only -- only if it advanced a compelling governmental interest; and it                                                     Page 10
DN 36 - July 15, 2007

would be subject to very strict scrutiny; the "strict scrutiny/compelling governmental
interest" test. For gender discrimination, the words were a little softer; it was not "strict
scrutiny," it was "heightened scrutiny." And it was not actually "compelling interest,"
but "important interest."

Now these are not precise terms. Judges don't often deal with precise terms when
they're interpreting equal protection and due process clauses, but that's what happened
for race discrimination and gender discrimination. For disability discrimination,
however, the Court dropped back to the lowest standard of acceptability, which it
applies to economic regulation, to regulation based on age; governmental regulations of
that kind are subject to what the Court calls "rational basis analysis." In other words, if
it's halfway reasonable, the Court will uphold it; and the burden of proof rests on the
individual who is challenging the statute or regulation, rather than the other way
around, which is what's done if you're dealing with racial discrimination or gender

So right off the bat, disability discrimination is determined in court on the basis of a
rational basis test, and that makes it a little harder. As you know, the Americans with
Disabilities Act draws heavily on the language of the Rehabilitation Act of 1973 and its
accompanying regulations. Now this law, this 1973 act, was actually intended initially,
primarily as a rehabilitation measure, thus the title. At the last minute, they put in a
little section called 504. You've heard about 504. That is the section, by the way, that's
still very much alive, still very important.

But let me tell you about one, though, that really fascinates me. I'm going to have to tell
you about it; and this is not a Supreme Court case; this is a Fifth Circuit Court of
Appeals -- I'm sorry, an Eleventh Circuit. The Eleventh Circuit includes the states of, I
believe, Georgia, Alabama, and Florida. This is the Littleton case. Some of you may have
heard about this: Littleton v. Wal-Mart Stores.

Littleton is a mentally retarded individual. He claimed job discrimination. He claimed
that there is at least a genuine issue of material fact in his case, tending to show that his
mental retardation substantially limited him as to certain major life activities, in
violation of Title I of the ADA, regarding the major life activities of learning, thinking,
communicating, and social interaction. But he somehow couldn't convince this panel of
the Circuit Court that those limitations amounted to a disability; so what the court
wound up saying is that this certified mentally retarded individual does not meet the
standard of disability under the ADA, and therefore, summary judgment in favor of Wal-
Mart was okay. That drew a tremendous amount of criticism from the community of
scholars that I e-mail with. They were sending around e-mails calling it the worst ADA
decision yet.

The court winds up saying, "It is unclear whether thinking, communicating and social
interaction are “major life activities." We acknowledge that a review of Littleton’s
deposition --" he apparently tried to do an interview by himself with Wal-Mart and he
just fell apart, and the court says in a rather pompous way, "We acknowledge that a
review of Littleton’s deposition testimony is not inconsistent with his assertion that he                                                      Page 11
DN 36 - July 15, 2007

sometimes has difficulty thinking or communicating. Even if thinking and
communicating are major life activities, however, Littleton has not shown that he is
substantially limited in those activities. As Wal-Mart contends, moreover, the fact that
Littleton drives a car might be determined to be inconsistent with his assertion that his
abilities to think and learn are substantially limited."

In any event, you see the difficulty here. "Major life activity," that's the definition that
the law puts forward. Here's a court in Alabama that says "That doesn't really amount to
a disability." That's just one example. At first glance, the answer to the question, "What
is a disability?" might seem simple or straightforward; an inability to see, hear, walk,
and so on. But in a legal context, the reason for the question may shape the answer.

Is the question asked for the purpose of forming a legislative response to high
unemployment rates among, for example, injured veterans? Is it asked to provide an
answer to parents who want to be able to send their children who use wheelchairs to
neighborhood schools? Is it asked to explain why people with limited hearing or eyesight
don't have access to movies? Any one of these and many other perspectives affecting the
lives of people with disabilities may shape the answer to the simple question, "What is a
disability?" This helps to explain why the ADA definition of disability is so broad and

Wouldn't it be better, many people ask, to narrow the definition; focus it more
specifically on what might be perceived as more obvious and serious disabilities, leaving
out, notably, those of people other than ourselves? Well, that might sound good at first.
But, when you think about what it takes to get a law passed by Congress, or by a single
state legislature, you being to understand the problem. It's necessary almost always to
accommodate many competing interests and to form coalitions consisting of a wide
array of organized groups and individuals to accomplish anything by way of legislation.

One word about the Supreme Court decision on desegregation that came down last
Thursday. The Supreme Court basically threw out two voluntary racial desegregation
plans, one in Louisville, Kentucky, one in Seattle, Washington; 5-4 vote. Justice
Kennedy in concurring opinion left a slight bit of room open to consider race in some
context, but very, very limited. Otherwise, this decision is very, very unforgiving when it
comes to any kind of racial distinction. Now you carry that over to the disability field,
you can see the implications. That's something to watch.

Finally, in closing, what do we do if Congress decides to reopen the ADA? What should
we change? It may be too much to ask, but I think -- and I'm going to run this idea by
you; you might not agree with me, but here it is: I frankly think Congress should
consider dropping the very term "disability" from the language of the statute. Even
under the expanded rights-oriented definition now on the books, the term "disability"
still carries a negative connotation. It suggests something less than equality. It still
carries a stigma, believe it or not.

Why not use a term that is less negative in tone? Take a term like "differences."
Something as simple as that, rather than disabilities. "Disability" just doesn’t convey a                                                     Page 12
DN 36 - July 15, 2007

neutral idea. There are, of course, differences, physical, mental, psychological, that the
law can take into account without labeling them disabilities. It's something to think
about. And it will take a lot of time and effort to come up with a better alternative than
the one now in place, that is the disability civil rights model.

But frankly, if we can't improve the law substantially, I suggest that we leave it alone. In
this climate, which is not favorable to disability rights - in this climate, a change might
make it worse.

Thank you very much. Nice to be here.

Ross Wine-Sky:          Probably most of us have heard about Ms. Wheelchair, but there's
                        now a Mr. Wheelchair contest.

Judy Hoit:              Contest or competition. We kind of go back and forth between the
                        two words. Just to tell you; it's not a pageant.

Ross Wine-Sky:          I have here Judy Hoit, who has a non-profit, who has started the
                        Mr. Wheelchair competition. Judy, can you tell us a little bit about

Judy Hoit:              Well, my partner and I decided to launch the Mr. Wheelchair
                        competition, just because we thought it was time that men had a
                        change to compete and show what they had to offer the world as far
                        as their perspective of being in a wheelchair, and they're judged on
                        their acheivements and accomplishments since the onset of their
                        disability. So all these guys have a lot of stories to tell.

Ross Wine-Sky:          Are there qualifications that someone has? What are you looking for
                        in a Mr. Wheelchair?

Judy Hoit:              Well, a man that uses a wheelchair for 100% of their daily mobility,
                        and are between the ages of 21 and 60, and are U.S. citizens. We
                        would like them to have high-quality communication skills and be
                        willing to travel.

Ross Wine-Sky:          And is it a one-year reign that Mr. Wheelchair will have?

Judy Hoit:              Yes. And we just think this is a great opportunity for a person to be
                        a national spokesperson, an ambassador for people with disabilities
                        across the nation.

Ross Wine-Sky:          You had mentioned that there was a little bit of controversy going
                        on in that not everyone was in agreement with this. Can you tell me
                        a little bit about that?                                                      Page 13
DN 36 - July 15, 2007

Judy Hoit:              Well, I've had a couple of calls or e-mails from people saying that
                        they think it's derogatory and that it's not a good thing. They didn't
                        like the Ms. Wheelchair pageant, and they for sure didn't want men
                        to be involved in such -- I'm trying to think of the words they used;
                        some kind of negative exposure, I guess. I just look at it more of just
                        being a positive thing than a negative thing to have somebody
                        represent people in wheelchairs.

Ross Wine-Sky:          How long has Ms. Wheelchair been going on?

Judy Hoit:              35th anniversary this year.

Ross Wine-Sky:          Can you tell us a little bit about yourself and your history?

Judy Hoit:              Well, I had polio when I was four, so I've pretty much been in a
                        wheelchair all my life. And somebody else can do the math as to
                        how old I am.

Ross Wine-Sky:          And I know that you had done some interesting things as a child.
                        Can you tell me about that?

Judy Hoit:              Interesting things? Well, I was a March of Dimes poster child, and I
                        spent a lot of time in Warm Springs, Georgia, as a patient from
                        about the ages of 7 to 13. I came back to Iowa -- I'm originally from
                        Iowa -- and went to school; got married right out of high school. I
                        have two grown sons now.

                        Shortly after my youngest one started into kindergarten, I decided I
                        wanted to work, because I had never worked before, and I had
                        always wanted to be a secretary; and I ended up getting a job with
                        the Easter Seals Society in Des Moines at Camp Sunnyside, and I
                        worked for the home-bound training program; and I remember
                        starting there, wondering why a lot of the people that came into the
                        office for services were so negative, and I had to realize that a lot of
                        the people that came in were in wheelchairs or disabled because of a
                        car accident or strokes and that kind of thing.

                        I guess I'd been disabled since I was so young, that to me, being
                        disabled was not something I focus on. But I soon had to learn to
                        appreciate the people that came into their disability at different
                        ages, and I still thought there's so many things to do with positive
                        outlooks that you still don't have to be negative, even if you're older
                        and you become disabled.

                        I was crowned Handicapped Woman of Iowa in 1991, and it was
                        after that I saw an article in a magazine about Ms. Wheelchair                                                         Page 14
DN 36 - July 15, 2007

                        America, and I thought, "Well, that sounds kind of interesting," so I
                        called to inquire about it, and I think I was like about a month out
                        before the pageant was actually going to be. So I asked this person,
                        "Where's the pageant going to be at?" And I was told it was going to
                        be in Warm Springs, Georgia. I thought, "Oh my gosh! Maybe I
                        should do this."

                        I hadn't been to Warm Springs since I was 13, but I only had a few
                        weeks to get my entry fee, and I thought, "Oh, there's no way I'm
                        going to be able to raise the money for the entry fee." But I sent out
                        a bunch of letters asking for some sponsors, and I had my entry fee
                        within two weeks, and I thought then, "I think I'm supposed to go."
                        So I did go and compete in the national Ms. Wheelchair America
                        pageant. I didn't win, but I did come back to Iowa and start the Ms.
                        Wheelchair Iowa program, because we didn't have a program in the

                        And so I got involved after that with Ms. Wheelchair America, and
                        like I said, this past year, my partner and I, with Dreams,
                        Incorporated, decided to launch a Mr. Wheelchair because we're
                        constantly getting asked, "Well, where's Mr. Wheelchair at? Why
                        isn't there a Mr.?" And so we decided we would just open the door
                        and see who came in, and we've definitely generated a lot of

Ross Wine-Sky:          Did you get a lot of applications?

Judy Hoit:              Yes.

Ross Wine-Sky:          Who's doing the judging, and what's the judging process?

Judy Hoit:              The judges have not been selected yet, but there again, they will
                        have individual sessions with judges, and then they'll be judged on
                        the speeches that they actually give themselves on stage; and then
                        they'll also be asked questions, drawn out of a hat.

Ross Wine-Sky:          I see.

Judy Hoit:              So the judges will have several different opportunities to score how
                        well they do; because we really want somebody that speaks well and
                        presents themselves well, because this person's going to make
                        appearances all over the country.

Ross Wine-Sky:          Is there a particular event at which this will take place?

Judy Hoit:              Yes. The week of the competition, it will be on that Saturday nighht
                        of that week. We don't have that locked in yet. It's looking like it's                                                         Page 15
DN 36 - July 15, 2007

                        going to be more -- we planned on August, but since we've extended
                        the deadline, it's probably going to be in September.

Ross Wine-Sky:          And when is the end of the deadline, so that if some of our listeners
                        want to apply, they can do that?

Judy Hoit:              It's the end of July; I'm going to say July 31st. And they can call me
                        for an application. They can also fill out an application online.

Ross Wine-Sky:          Why don't you give out your number and your website so people
                        can do that?

Judy Hoit:              The 800 number is              800.351.8375.     The     website    is

Ross Wine-Sky:          Well, we've certainly just gotten the word out to a lot of potential
                        Mr. Wheelchairs, and if anyone wants to do that, they now know
                        how to apply. Anything you might want to add?

Judy Hoit:              We're really anxious to launch this program, and we're really
                        anxious to have a Mr. Wheelchair America.

Ross Wine-Sky:          And this is Ross Wine-Sky reporting for Disability Nation.

 To contact Disability Nation in the United States, call 206.338.6225 or send an e-mail
            to Be sure to visit our website at

    Disability Nation is produced by Larry Wanger and is licensed under a Creative
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   Thanks for listening and be sure to tune into the next episode of Disability Nation!                                                       Page 16

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