COMMENTARY: Needs of disabled take unnecessary back seat - again


By Jacob Kahn

Despite what you may have heard about lawyers tending to be organized, I have always been a bit slovenly. Growing up, I put my mother through the ringer, trashing another room just as soon as she finished tidying one. Watching the tumult of today’s various civil rights movements throughout the United States, I cannot help but analogize the struggle. It seems as soon as progressives clean up one mess, some person or group runs to tear down another area that has already been somewhat straightened out.

By now, everyone is familiar with the atrocities visited on the City of Detroit these past few weeks, as its residents attempted to exercise their most fundamental right – the right to vote. To be sure, it is no coincidence we are witnessing the most concerted effort to disenfranchise minority voters that Michigan has seen in decades, in regard to a race between an overt racist and a man who served at the pleasure of America’s first Black president.

Nonetheless, it pains me to have to point out that while tremendous effort was made by countless people of color and allies, who fought tirelessly to ensure that the voters of Detroiters (and greater Wayne County) would have their voices heard, another downtrodden group fell by the wayside. In the time I spent at the TCF building on November 4, and during the six-hour meeting I attended November 17 of Wayne County’s Board of Canvassers, I was nothing short of appalled by the total and utter lack of accommodations granted to people with disabilities. Incidentally, it is important to bear in mind that people of color and people with disabilities, are not mutually exclusive groups. In fact, according to the CDC, Black people experience disabilities at a markedly higher rate than other demographics (1 in 4). Delving into the systemic failures of our health care system, which undoubtedly contribute to this rate, would take a book report, or maybe a series. Suffice to say, there is significant overlap between these two communities, both of which find themselves the object of significant discrimination and exclusion.

The Americans with Disabilities Act, signed into law in 1990 by George H.W. Bush, was to people with disabilities as the Civil Rights Act of 1964 was to people of color. The Act, which was amended in in 2008 to actually give it some teeth, exists to guard against the disparate treatment of persons with disabilities, in both the public and private sectors, as well as everyday life. However, because persons with disabilities often tend to be persons with limited income and resources, many violations of the Act go by the wayside, as people with disabilities struggle to access our system of justice (again, a distinct but related issue which could fill another set of books). The Act, as amended, states in pertinent part, “…No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §?12132.

Yet, despite the plain and comprehensible language of the law, I witnessed an election process that absolutely failed to accommodate many people entitled to the protection of the aforementioned statute. This is not a political football to be thrown at one party or another – the boards which control our election processes are bipartisan, and plenty of representatives of both parties have held positions of prominence from which they could have easily solved the shortcomings I witnessed. No one party holds the monopoly on blame for these failures.

At the TCF building on November 4, I witnessed the 100 of diligent and dedicated election workers get up to take a well-deserved lunch break – except for those who could not. Many of the volunteers who sacrificed their time, risked their health, and summoned extraordinary patience to deal with a multitude of inept election challengers, were confined to a wheelchair. Poll workers, for the most part, did not bring their own food to the TCF building because they were told in advance it would be provided. When the leadership at the central dais announced that it was time for lunch, and that poll workers should head upstairs to the second floor to collect their boxed lunches and take a break, people using wheelchairs attempted to leave the room to access the elevator. They were then informed that if they left, they would not be permitted to return under any circumstances. At the same time, election workers who were able to walk upstairs were told they would not be permitted to collect a second lunch for their co-workers stuck downstairs without jumping through convoluted bureaucratic hoops that involved getting a “ticket” from a supervisor.

To many readers, this might appear to be much ado about nothing. Who cares about missing lunch, or having to get a supervisor to sign off so that a coworker can grab something for you? It is crucial not to allow one’s self to be swayed by this ableist line of thinking. The term “ableism” came to prominence in the United States somewhere in the last quarter of the 20th century, and it refers to discrimination in favor of able-bodied people. Aside from the fact that poll workers who use a wheelchair are just as entitled by law as their colleagues to be provided a lunch and a place to recreate, there is something particularly slighting about forcing adults to ask perfect strangers for a permission slip for a measly box lunch,  or in telling them that if they use the elevator, they will be denied re-entry into the tabulating center. To single out persons with disabilities for this form of disparate treatment is not only infantilizing, but it forces yet another indignity upon a class of people who are already forced to fight twice as hard for respect and recognition. I spoke with a number of poll workers using wheelchairs who were justifiably upset, and equally concerned about how they would safely depart the TCF Center. To be clear, all of us in the room were concerned about how we would safely depart, given the alarming ratio of the “Stop the count” mob to police officers, but for people who cannot walk or run, this concern was especially important.

Furthermore, the facility itself was not sufficiently accommodating. None of the restrooms to which the poll workers had access were handicap accessible. As previously stated, the many comforts which non-disabled people enjoy and take for granted, were not extended to people with disabilities throughout this election process. As leaders from both parties look to the successes, and failures, of the election process of 2020, in an effort to ensure an even smoother and more accurate experience in the future, granting appropriate accommodations to people with disabilities must be at the forefront of everyone’s mind.

In addition to the state’s failure to accommodate people with disabilities at the TCF building, I also participated in a recent meeting which struck me as wholly unaccommodating. Prior to the Wayne County Board of Canvasser’s circus show, e-mails and text messages were circulating among election challengers and poll workers who volunteered at TCF on November 4 so that they could present the board with a first-hand account of the events that transpired. In spite of Zoom’s features that do promote accessibility for deaf and blind users, one could scarcely argue that the manner in which the meeting was conducted afforded persons with disabilities an equal opportunity to comment. Some may argue that it is not feasible for every publicly held meeting to be attended by an interpreted and transcriptionist. Assuming, for the sake of the argument, that this contention is accurate, it seems clear that a meeting to determine the fate of an entire county’s votes would rise to a level of significance worthy of accommodation services.

The story of discrimination against people with disabilities is as old as that of any marginalized group. Aspects of life that might strike some folks as dull and insignificant, such as lunch, or a gathering of feckless bureaucrats, take on an entirely different meaning in the context of groups who are routinely regarded as a secondary, underclass of people. Now that the election has been held, the votes tabulated, and the results certified by the county, many people will want to look to future elections, to ameliorate the current system in an effort to mitigate the degree of misconduct, as well as blatant racism exhibited by a great many key players. Some may wish to limit election challengers to county residents, or to people who have had prior training. Some may wish to improve media access, to dispel post-tabulation conspiracy theories. Whatever suggestions Michigan’s bright and competent citizens put forth for improving our fractured system, it is my sincere hope that people with disabilities will not be again excluded from the conversation, and that their needs will be accommodated, too. People with disabilities do not have special needs – they have the same needs as everyone, which simply might require a more nuanced approach.
Jacob Kahn attends Wayne State University Law School, where he is a student attorney through Wayne Law’s Disability Law Clinic and its Access to Bankruptcy Court program. He serves as editor of Wayne Law’s Journal of Business Law.