Marylanders live in a time of great opportunity – an opportunity to widen the circle of inclusion. Public policy leaders must ensure the accessibility, affordability and usability of technological developments that could help to widen this circle. As the first chair with a guide dog at the Maryland Commission on Civil Rights, I will spotlight in this column the impact of technology on civil rights and disability rights.
The 1990 Americans with Disabilities Act (ADA) embodies a promise that participation in American society, which involves public services and accommodations, will be open to people with disabilities. The act has had a remarkable impact, enabling, for example, this blind guy from Ohio to forge, even if slowly, a career. While this act has existed for decades, people with disabilities remain our largest minority and unemployed population facing discrimination.
Arguably, discrimination is not always overt, nor always even intentional. This means that no single piece of law, or even lawsuit, can address discrimination comprehensively. In my experience, an utter lack of awareness exists as to how blind lawyers can practice law. However, we need to start somewhere. I am convinced that technological developments in the next 25 years will drastically reshape society, including civil rights as we know them, allowing for more opportunities for leaders with disabilities.
Technology has helped me to be a productive member of the working public. I encounter, however, members of the public, as well as members of the profession, who marvel at accessibility improvements such as the text-to-speech feature on my mobile phone. I now often record notes at meetings via a Bluetooth keyboard connected to my text-to-speech-enabled phone. Assuming that a blind person can afford such a mobile device, this replaces more expensive blindness-specific note-taking hardware that can cost thousands of dollars. While a decade ago, you may have found me at a coffeehouse reading clunky cassettes via a tape-playing device, now I have 50 books on my phone at the touch of my fingertips. This demonstrates that technology has indeed shaped my opportunities to work and to socialize. However, a range of issues prevents my demographic from full societal and economic inclusion.
Many of our important spaces remain inaccessible to people with disabilities. Specifically, physical spaces have increasingly been replaced by web-based spaces, which neither statutorily nor regulatorily fall within the traditional definition of a place of public accommodation. This lack of liberal interpretation will prevent expansion of civil rights as long as monkish ignorance prevails. We must therefore have visionary leaders, if not leaders with disabilities, in the halls of national power. Maryland law is not so expansive either and needs serious updating.
In the absence of further guidance from Congress, which wrote the ADA to begin with, and regulatory promulgation by the U.S. Department of Justice regarding the scope of Title III, businesses can expect uneven decisions from the courts, which are struggling to interpret Title III – places of public accommodations. The Justice Department announced at the end of 2017 that it had rescinded two Advanced Notices of Proposed Rulemaking related to website accessibility under Title II of the Americans with Disabilities Act, which is applicable to state and local governments, as well as under Title III, which is applicable to places open to the public.
In 2010, the Justice Department issued a proposal concerning how the ADA applies to website accessibility. Although one wonders if the courts could not just accept judicial notice that most rational, thoughtful people understand that a website, whether accessed via a desktop computer or a smartphone, falls within this important legal definition that attaches rights. Nevertheless, the reality is that Congress passed and the president enacted the ADA at a time when we used fax machines as a newer form of technology and may have never imagined conveying most of our documents via something called email. Digital access has expanded beyond desktop web access to mobile applications, to wearable technologies and to the “internet of things.” So we must expand our notions of public accommodations.
This is where Maryland could set the trend with visionary leadership. Unfortunately, this past session, Maryland missed such an opportunity by failing to expand civil monetary remedies available under the public accommodation statute. The Human Services Title, which discusses disability-related concerns often in a hortatory way, also needs to be revisited.
This February, I hosted an important public policy dialogue at the German Marshall Fund of the United States. My invited stakeholders and I discussed the ever-changing impact of technology on civil rights and disability rights and the need for collective action. There is still the need for this conversation and for public officials with disabilities to convene it.
Gary C. Norman, Esq. LL.M. serves as the chair of the Maryland Commission on Civil Rights. He can be reached at email@example.com.