[NAGDU] Pros and Cons of Preferential Treatment

[David Andrews]

I have known independent dog users, and not very independent dog 
users. Likewise I know independent cane users, and not independent 
cane users.  Further, I have known dog users who travel with dignity 
and those who don't, and the same for cane users.  Unfortunately, 
when talking about this stuff there is a tendency to generalize, and 
generalizations are often not true.  There is nothing inherent in the 
tool of a dog guide, or a cane that makes it better or 
worse.  Everything is in how you use your tools.

Dave

At 08:59 AM 12/3/2016, you wrote:
>I have to agree with what Raul just stated. As a matter of fact, he 
>actually stole my words. I would think considering this topic is 
>being talked about on the NAGDU list serve, that would be clear 
>enough of just how supportive the NFB is toward guide dogs. Having 
>been a guide dog handler for almost 15 years, I don
>t agrtee with anyone who says that guide dogs limit a blind person's 
>independence. If anything, a guide dog increases one's independence 
>while throwing in a bit of dignity. I'm happy to report that my 
>current guide dog, Cash and his other guide dog friends are accepted 
>at every NFB event we've ever been a part of.l
>
>--
>Stacie Hardy
>
>In every guide dog, there beats the heart of a puppy raiser.
>Twitter: @PatriotsGirl7
>
>On 12/3/2016 7:44 AM, Raul A. Gallegos via NAGDU wrote:
>>I never understood the perception that the NFB was against guide dogs.
>>I've been a part of this organization in some kind of way, shape, or
>>form since the early 90s and I've had a guide dog, cane, both, and many
>>combinations. Yet, I've never seen that. Not in Colorado, Kansas,
>>Indiana, or any other place. If the NFB was against guide dogs, why
>>would there be a guide dog division? Why would some of its board of
>>directors themselves be guide dog users? I'm not giving you flack, but
>>just pondering because I've never gotten that. What I have seen, is many
>>from the NFB promote independent travel skills. This means that just
>>because you have a guide dog, it doesn't mean you should let your cane
>>skills go by the way side. So, maybe that's the perception, I just don't
>>know.
>>
>>
>>--
>>Raul A. Gallegos
>>Assistive Technology Trainer
>>
>>On 12/3/2016 7:11 AM, Dan Weiner via NAGDU wrote:
>>>And being a founder of the NFB he probably wans't too keen on guide dogs,
>>>but oh ewell, yes I know I'll get flack for that--lol
>>>
>>>Still all grousing aside, the article certainly has merit.
>>>
>>>
>>>Dan
>>>
>>>
>>>
>>>-----Original Message-----
>>>From: NAGDU [mailto:nagdu-bounces at nfbnet.org] On Behalf Of Michael Hingson
>>>via NAGDU
>>>Sent: Friday, December 02, 2016 11:30 PM
>>>To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
>>>Cc: Michael Hingson
>>>Subject: [NAGDU] Pros and Cons of Preferential Treatment
>>>
>>>Hi,
>>>
>>>
>>>
>>>As you are aware Dr. Jacobus tenBroek was the founder of the National
>>>Federation of the Blind in 1940. Yes, others were involved, but Dr. tenBroek
>>>was the impetus and our best ever blindness philosopher. He was a
>>>constitutional law scholar, a good speaker and the author of many speeches
>>>and books.
>>>
>>>
>>>
>>>The following is a speech delivered by Dr. tenBroek in 1955. This is taken
>>>from the Braille Monitor, May, 1996. I believe it is pertinent to our
>>>discussions about reasonable accommodation and preferential treatment. There
>>>is another version of this talk entitled "A Preference For Equality", but I
>>>was unable to find it.
>>>
>>>
>>>
>>>
>>>
>>>Mike Hingson
>>>
>>>
>>>
>>>THE PROS AND CONS OF PREFERENTIAL
>>>TREATMENT OF BLIND PERSONS
>>>
>>>by Jacobus tenBroek
>>>
>>>An address delivered at the American Association of Workers for the Blind
>>>Convention, Quebec, June 1955. First printed in the July 1976, issue of the
>>>Braille Monitor.
>>>
>>>The topic of this discussion immediately suggests the ambivalence, if not
>>>the outright hostility, aroused in most of us by the idea of preferential
>>>treatment. If it implies unwarranted favors and advantages, as it sometimes
>>>seems to, how is such treatment to be justified with reference to the blind
>>>or, for that matter, with reference to any group? If the blind are normal,
>>>as they claim, why do they need to be treated differently? If their
>>>objective is really social equality and integration, is it not true that
>>>preferential treatment serves to perpetuate special status, with all its
>>>connotations of inequality and inferiority? Is there anything about the
>>>problems of the blind or of blindness which makes necessary or desirable
>>>some form of preferential treatment?
>>>
>>>"Any class," wrote one blind man, "which demands special privileges soon
>>>finds itself a dependent class," and "the blind of America have developed a
>>>progressive disease--that of dependency."
>>>
>>>We espouse the principle, wrote another blind man, "that the blind are
>>>normal and competent people, capable of making their own way, on a basis of
>>>equality." At the same time we ask "special concessions and privileges on
>>>the basis that we are helpless and unequal." "We cannot have our cake and
>>>eat it too, and such measures and propaganda stressing the inequality of the
>>>blind are bound to have a most damaging effect upon our primary goal of
>>>equality."
>>>
>>>Let us begin our analysis of the pros and cons of preferential treatment of
>>>the blind at the beginning: that is, by defining the terms used.
>>>
>>>Preferential treatment of the blind is treatment which singles out the blind
>>>for special favors, advantages, or benefits. In short, it is any special
>>>treatment. Preferential treatment may be based on an irrational whim,
>>>prejudice, or taste--as when one prefers strawberries instead of
>>>blueberries, or when it is said "gentlemen prefer blondes." On the other
>>>hand, preferential or special treatment may be based on the possession by
>>>the group receiving it of some distinctive talents or unique qualities or
>>>peculiar needs having a relationship to a proper public policy or socially
>>>desirable objective.
>>>
>>>There are no pros, there are only cons, with regard to the preferential
>>>treatment of the blind which is founded in irrational whim, prejudice, or
>>>taste; and the blind cannot rightly claim, nor do they generally want, mere
>>>favoritism, public or private, any more than they claim or want the
>>>opposite: discriminatory disadvantage, guilt- or shame-motivated rejection,
>>>kindness-inspired overprotection, or unthinking exclusion. The pros and cons
>>>of preferential treatment founded in special qualities or needs of the group
>>>depend in each individual instance upon three factors: (1) upon a faithful
>>>determination and accurate evaluation of the special qualities or needs of
>>>the blind; (2) upon a correct appraisal of the public policy or social
>>>objective sought to be achieved by the particular preferential treatment;
>>>and (3) upon the adaption of means to ends, that is, upon whether the means
>>>are proper and there is a close and substantial relationship between the
>>>special qualities and needs of the blind, on the one hand, and the policy or
>>>objective, on the other.
>>>
>>>The other term that must be defined is "the blind." Who are the blind? What
>>>is blindness?
>>>
>>>The term blindness in its literal denotative sense means loss of eyesight;
>>>the absence of visual acuity. It refers to a strictly physical condition.
>>>The blind, then, are simply those who cannot see. Nothing more, nothing
>>>less! The term blindness, however, also has a wider connotative sense. In
>>>this sense it refers to restricted social and economic contact, opportunity,
>>>and activity. To be stripped of eyesight is to be shorn of full-fledged
>>>membership in society.
>>>
>>>The difference between the denotative and connotative meanings of blindness
>>>is exactly that between disability and handicap. Disability refers to a
>>>physical deprivation; handicap to the social consequences of that
>>>deprivation. The distinction may be seen in the fact that there are many
>>>disabilities which carry little or no handicap, such as the chronic
>>>laryngitis of Andy Devine, the undersize of jockeys, or the oversize of
>>>basketball players. Likewise, there are handicaps with no disability, such
>>>as the black skin of American Negroes or the religion of the Jews in Nazi
>>>Germany. Disability is properly the concern of medical science. We can do
>>>little about the physical fact of blindness except to cure it or live with
>>>it. But it is not blindness alone that we live with. We live with other
>>>people, which is to say we live in society. It is society which creates and
>>>imposes the handicap of blindness, for it consists of the misconceptions of
>>>the sighted about the nature of the physical disability. The principal
>>>misconception, the one that embodies and epitomizes all the rest, is that
>>>blindness means helplessness--social and economic incapacity; the
>>>destruction of the productive powers; the obliteration of the ability to
>>>contribute to or benefit from normal community participation; in short, the
>>>lingering image of the helpless blind man.
>>>
>>>Three comments about the social handicap of blindness are particularly in
>>>order: (1) To place responsibility for it upon the sighted is not to speak
>>>in terms of blame or recrimination. Far from it! The misconceptions are
>>>sanctioned by a society motivated mainly by benevolence, wishing above all
>>>else to be kind and helpful. (2) Wherever, as happens with increasing
>>>frequency, an individual blind person breaks through the social barriers,
>>>his success is likely to be attributed to his possession of special genius
>>>or compensatory powers (either superhuman or supernatural) which leave the
>>>overall image of blindness intact. (3) Public attitudes about the blind
>>>inevitably become the attitudes of the blind. The blind see themselves as
>>>others see them. They accept the public view of their limitations and thus
>>>do much to make them a reality.
>>>
>>>Most people exaggerate the physical and underemphasize the social aspect of
>>>blindness. Our distinguished and able chairman, Father Carroll, has defined
>>>blindness in terms of twenty lacks and losses. I am one of Father Carroll's
>>>numerous admirers. But I admire him more for his willingness to prepare a
>>>list than for the list he has prepared. It seems to me that he falls prey to
>>>the common fallacy. Note what a large percentage of the items on the list
>>>refers to the physical fact of blindness and its immediate physical and
>>>personal consequences; what a small percentage refers to the broadly social.
>>>What may be known hereafter as Father Carroll's Lacks and Losses reads as
>>>follows: (1) loss of physical integrity; (2) loss of confidence in the
>>>remaining senses; (3) loss of reality contact; (4) loss of visual
>>>background; (5) loss of "light"; (6) loss of mobility; (7) loss of visual
>>>perception: beautiful; (8) loss of visual perception: pleasurable; (9) loss
>>>of ease of written communication; (10) loss of ease of spoken communication;
>>>(11) loss of means for informational progress; (12) loss of recreation; (13)
>>>loss of technique, daily living; (14) loss of career: vocation, goal, job
>>>opportunity; (15) loss of financial security; (16) loss of personal
>>>independence; (17) loss of social adequacy; (18) loss of obscurity,
>>>anonymity; (19) loss of self-esteem; (20) loss of total personality
>>>organization.
>>>
>>>I would not have you believe that I underassess the importance of the
>>>physical disability. Without sight the range of perception is narrowed.
>>>Objects which can be seen from afar must be near at hand to be discernible
>>>by other senses. And the blind person who has not scuffed his shins on
>>>low-lying implements and toys carelessly left on the sidewalk or stumbled
>>>over a curb, or bumped his head on an overhanging awning or branch has never
>>>left his armchair. These are undeniably embarrassing or uncomfortable
>>>experiences; but they are properly to be classified as minor annoyances or
>>>distractive nuisances, like shaving in the morning or removing your glass
>>>eyes at night. In my experience, blind people who are willing to move and
>>>put one foot out in front of the other always somehow get where they want to
>>>go.
>>>
>>>In any event, the main point is that the real affliction of blindness is not
>>>the physical disability or its immediate consequences but the social
>>>handicap. It therefore becomes most important to analyze the precise nature
>>>of the handicap. Of what does it consist? What are the elements which
>>>compose it? What does it mean to be excluded from society? What are the
>>>rights of membership of which the blind are thus deprived?
>>>
>>>To answer these questions, one must identify the main features of American
>>>society, for it is denial of participation in these which constitutes the
>>>handicap of blindness. The process of answering the questions therefore is
>>>one of resurveying American social and political thought and constitutional
>>>ideals, one of restating the principles, doctrines, and concepts that are
>>>contained therein.
>>>
>>>The task of restating American social and political assumptions and goals is
>>>complicated by a number of facts and factors. Major American social and
>>>political principles, such as the dignity of the individual, liberty,
>>>equality, and private property, are so intermingled and overlapping that it
>>>is difficult to separate any one of them for single treatment.
>>>
>>>Emphasis on the various elements has shifted at different periods in our
>>>history, in the documents which have embodied and expressed different
>>>movements, forces, and times, and among the prominent political writers and
>>>speakers. Equality was the dominant note in the Declaration of Independence.
>>>Property assumed relatively a stronger position in the Constitution. During
>>>the nineteenth century, when fortune and geography gave the nation military
>>>safety and free land and the open frontier gave individuals a sense of
>>>economic safety, security was assumed and liberty was elevated into a
>>>primary position. Today, as Ralph Henry Gabriel writes, "When the
>>>traditional foundations of culture crumble,...when government by law gives
>>>way to government by irresponsible force, the preoccupation with liberty as
>>>an end in itself is replaced by a new search for security, mental, social,
>>>economic, and even physical."1
>>>
>>>Sometimes, indeed, going far beyond mere shifts in emphasis, the elements
>>>are presented as irreconcilably contradictory. Read for example this passage
>>>from William Graham Sumner: "Let it be understood that we cannot go outside
>>>this alternative: liberty, inequality, survival of the fittest; non-liberty,
>>>equality, survival of the unfittest. The former carries society upwards and
>>>favors all of its best members; the latter carries society downwards and
>>>favors all its worst members."2
>>>
>>>Finally, the task of stating American social and political principles is
>>>made difficult by the fact that they are not fixed and immutable, as the
>>>laws of the Medes and the Persians were reputed to be. To the extent that
>>>they are a living reality in a developing democracy, they are constantly
>>>growing, maturing, and changing. Every generation, every decade is a
>>>formative period in the constitutional life of the nation. In our generation
>>>the creative interpretation and application of American social and political
>>>principles in the sphere of international organization and in the social and
>>>economic sphere are in process.
>>>
>>>Yet, despite these difficulties in stating them, the major elements in the
>>>set of widely accepted and persistently enduring political principles and
>>>social ethics are identifiable and subject to description and
>>>characterization. The "easily remembered" formulations can be found in the
>>>landmark documents of our history. These documents not only express and
>>>embody movements and periods of the past but are as well basic forces of
>>>government in the present and for the future. They include the Declaration
>>>of Independence, the Northwest Ordinance, the Preamble to the United States
>>>Constitution, the state constitutions, the Civil War amendments to the
>>>United States Constitution, and the more famous pronouncements of the United
>>>States Supreme Court.
>>>
>>>(1) Liberty. In American political thought, liberty has many aspects and
>>>sources. It is both positive and negative. It is political, economic,
>>>personal, and, in a broad sense, social. It is founded by some in
>>>positivism; by others in natural law; by still others in moral law. It sets
>>>in equilibrium constitutionalism and democracy. In part liberty consists in
>>>protection against the will of the majority, no matter how regularly
>>>manifested and how lacking in oppressiveness or arbitrariness. In this
>>>aspect it is embodied in an array of restraints on governmental action and
>>>the organized power of society. The existence of a constitutionally arranged
>>>governmental structure and distribution of powers, in fact the existence of
>>>a constitution at all, implies a system of limited government.
>>>
>>>The Constitution, too, contains many explicit prohibitions on government.
>>>Though some exist elsewhere in the Constitution, the Bill of Rights and the
>>>other amendments are, of course, a catalogue of these. Among them are the
>>>protection given life, liberty, and property, the requirement of established
>>>and regular procedures by government, and the guarantee of immunity from
>>>unreasonable intrusions into the privacy of one's person, house, papers, and
>>>effects. The many safeguards against improper conviction for crime refer not
>>>only to the technical aspects of criminal justice, but bespeak the basic
>>>right of personal freedom: i.e., freedom to move about as one pleases and to
>>>be not subject to surveillance and custodialization by the agents of the
>>>state. Likewise, freedom from slavery and peonage is decreed, implying not
>>>only self-ownership but free labor and the right to the rewards of labor.
>>>
>>>A dominant part of American social and political thought has always been a
>>>notion that these rights, thus fixed in the Constitution, are the
>>>indivestible possessions of individuals even when not so guaranteed. Whether
>>>derived from natural law, moral law, higher law, or various other concepts
>>>about the fundamental nature of man and society, this notion has found
>>>constant expression throughout our history. Its standard formulation is in
>>>the Declaration of Independence: "[T]hat [men] are endowed by their Creator
>>>with certain unalienable rights, that among these are life, liberty, and the
>>>pursuit of happiness." These rights governments were instituted to secure
>>>and protect, not to create and confer.3
>>>
>>>The concept that rights which are regarded as very important are somehow
>>>natural rights or derive from a higher law results from a philosophic view
>>>which has lost much of its persuasion and support in recent decades. The
>>>Founding Fathers, however, and most American statesmen down through the
>>>Civil War period, made it their starting point. Natural rights thus became
>>>inextricably woven into the fabric of American social and political thought
>>>and popular belief. They lurk just below the surface of many of our state
>>>papers, judicial pronouncements, and political orations of today. Of those
>>>Americans who do not accept this particular philosophical concept, most
>>>still insist upon the great importance and basic character of the rights
>>>proclaimed.
>>>
>>>So far I have spoken of the constitutional side of constitutional democracy.
>>>The democracy side is a positive aspect of liberty. It has to do with the
>>>individual's right to participate in government, in the determination of
>>>social direction and policy. Its foundation is the doctrine of popular
>>>sovereignty and the consent of the governed. Its implementations are the
>>>right of suffrage, the right to seek and hold office, and the right of the
>>>majority to rule. Its indispensable conditions are freedom of speech, press,
>>>and assembly.4
>>>
>>>Liberty is positive in another phase besides that of the co-sovereignty of
>>>citizens of a republic. Government is responsible for the protection of the
>>>rights of the individual. This cannot be wholly achieved by the government
>>>itself refraining from invading them. It must prevent others from invading
>>>them. It must eliminate and control the conditions which nullify them or
>>>make their exercise impossible. It must foster, promote, establish, and
>>>maintain the conditions which nullify them or make their exercise
>>>impossible. It must foster, promote, establish, and maintain the conditions
>>>which make their exercise possible and significant. This is especially true
>>>if the right is active rather than passive; if it involves doing and not
>>>just being; acquiring and not just having; speaking and not just listening.
>>>Congress, as Webster declared in his famous debate with Hayne, is under an
>>>obligation to exercise the powers delegated to it in the Constitution for
>>>the purpose of achieving the objectives set forth in the Preamble of the
>>>Constitution--to "establish justice, insure domestic tranquility, provide
>>>for the common defense, promote the general welfare, and secure the
>>>blessings of liberty to ourselves and our posterity. . . ."5
>>>
>>>Men have a right to life, personal freedom, and personal security. They have
>>>the right to marry, have and rear children, and maintain a home.6 They have
>>>a right, so far as government can assure it, to that fair opportunity to
>>>earn a livelihood which will make these other rights possible and
>>>significant.7 Men may not be bound to the place of their poverty and
>>>misfortune; they may move freely about the country in search of new
>>>opportunity.8 They have a right freely to choose their fields of endeavor,
>>>unhindered by arbitrary, artificial, and man-made impediments.9 They have a
>>>right to enter the common trades, callings, and occupations of the
>>>community. They have the right, if they are free, to manage their own
>>>affairs as they see fit, unless and until there is interference with the
>>>equal rights of others to manage their affairs or there is injury to the
>>>welfare of the community.
>>>
>>>"It is not enough," wrote the President's Committee on Civil Rights in 1947,
>>>"that full and equal membership in society entitles the individual to an
>>>equal voice in the control of his government; it must also give him the
>>>right to enjoy the benefits of society and to contribute to its progress. .
>>>. . Without this equality of opportunity, the individual is deprived of the
>>>chance to develop his potentialities and to share the fruits of society. The
>>>group also suffers through the loss of the contributions which might have
>>>been made by persons excluded from the main channels of social and economic
>>>activity."
>>>
>>>(2) The Dignity of Man. Deeply imbedded in this concept of liberty is a
>>>democratic view of the individual, of his role in society, relation to the
>>>state, essential dignity and worth. It is the individual who possesses
>>>rights which are fundamental and inalienable. He is at the beginning and the
>>>end of the state. He organizes it and gives it authority. Its powers are
>>>conferred to protect his rights and to assure the conditions necessary for
>>>their maximum expression. The state exists for his benefit, not he for its.
>>>"In democratic society," wrote Charles Merriam, "regard for the dignity of
>>>man stands behind the throne of public order, a constant reminder of the
>>>need for liberty and justice as well as order, a constant plea that the
>>>human personality shall not be forgotten in the multiplications of laws, in
>>>the ramifications of administration, or in the antiquarianism of formal
>>>justice."10
>>>
>>>Democracy breathes respect for all men and seeks to preserve their
>>>individuality and autonomy. This spirit is violated wherever men are
>>>alienated or sheltered from the mainstream, not only in the overt gestures
>>>of rejection but in the sentimental embrace of patronage and protection.
>>>Humanity is degraded and individuality disparaged by treatment of the person
>>>as a unit in a category determined by irrelevant traits, defined and
>>>measured not in unique terms of personal character and achievement but in
>>>the stereotype terms of physical or national or racial difference.
>>>
>>>(3) The Rights of Property and to Contract. The rights to property and to
>>>contract have likewise been regarded as fundamental in the American system.
>>>The right to property along with life and liberty is listed as one of the
>>>three great rights of all free men in Chapter 39 of the Magna Carta. It
>>>appears thus also in the American state constitutions, early and late, in
>>>the Northwest Ordinance of 1787, in the United States Constitution,
>>>Amendments V and XIV, and elsewhere.11
>>>
>>>The rights to liberty, property, and contract are interlocking if not
>>>interchangeable concepts. The right to contract is sometimes stated as an
>>>incident to the right to property; sometimes as an independent aspect of
>>>liberty. Property is described by some as sufficiently broad to incorporate
>>>all other rights of individuals, including liberty; and liberty is often
>>>regarded by others as broad enough to encompass the right to acquire, use,
>>>and enjoy property. The three rights of liberty, property, and contract are
>>>thus intimately associated in American thinking.12
>>>
>>>Property and contract rights are not unlimited but, on the contrary, are
>>>subject to public control in the public interest. They may be abridged and,
>>>in some cases, destroyed altogether, if that is necessary to protect the
>>>community against injury or danger in any form, against fraud or vice or
>>>economic oppression or serious public inconvenience or depression or other
>>>disasters. The power to control is coextensive with the social and economic
>>>activities of men. It finds its limit in the nature of the acts forbidden or
>>>required and its justification in the direct relation of these acts to the
>>>public welfare or to the equal property rights of others.
>>>
>>>The power of the state over property and contract rights, however, is not
>>>merely negative or incidental to the power to legislate for the health,
>>>safety, morals, and general welfare of the community. The basic character of
>>>the right and the purpose of government regarding it cannot be minimized or
>>>ignored. That purpose, as in the case of liberty, is to protect and
>>>preserve, maintain, and nurture the right. The power to regulate the use of
>>>property and contract, consequently, may not, save in very rare and special
>>>circumstances, be converted into the power directly to take property and
>>>contract rights. And in discharging its primary and affirmative duty with
>>>respect to these rights, the state must keep constantly in view the
>>>essential values of private property in our system. It is a central factor
>>>in the organization of society. It is an impelling source of motivation. It
>>>is a principal incentive for productive activity. It is a reward for labor
>>>and contribution. It is at once the object of individual enterprise and
>>>success and the means of achieving success. And contract is the form of
>>>expression and governing instrument, not only of most business activity, but
>>>as well of most of the transactions of daily life.
>>>
>>>(4) Equality. Only second to liberty itself in our history has been the
>>>ideal of equality. In fact, equality has always conditioned liberty and
>>>determined its character just as liberty has always conditioned equality and
>>>determined its character. In the Declaration of Independence, the first of
>>>the "self-evident truths" is that all men are created equal; and all men are
>>>equally "endowed by their Creator with certain unalienable rights," "among
>>>which are life, liberty, and the pursuit of happiness."
>>>
>>>Alexis de Tocqueville, in 1835, described equality in America as "the
>>>fundamental fact from which all others seem to be derived and the central
>>>point at which all my observations constantly terminated." In his view it
>>>gave "a peculiar direction to public opinion and peculiar tenor to the laws;
>>>it imparts new maxims to the governing authorities and peculiar habits to
>>>the governed." It "extends far beyond the political character and the laws
>>>of the country, and...has no less effect on civil society than on the
>>>government; it creates opinions, gives birth to new sentiments, founds novel
>>>customs, and modifies whatever it does not produce."13
>>>
>>>Equality, even more than liberty, stood in the forefront of the historic
>>>struggle in the nation to abolish property in man and the institution of
>>>slavery; and, along with liberty, emerged in the Civil War amendments to the
>>>Constitution. The Thirteenth Amendment, freeing men from slavery and
>>>nationalizing the right of freedom, nationally guaranteed what slavery
>>>denied: the equal right of all to enjoy protection in those natural rights
>>>which constitute freedom. The Fourteenth Amendment, in the three redundant
>>>clauses of Section 1, re-embodied these same objectives and added an
>>>explicit guarantee of the equal protection of the laws, thereby adding
>>>another confirmatory reference to the self-evident truth that all men are
>>>created equal and are equally entitled to the protection of government in
>>>the enjoyment of their natural and inalienable rights.14
>>>
>>>Like liberty, equality has many phases. One of them relates to the doctrine
>>>of proper classification. The laws must be aimed at the achievement of a
>>>public and constitutional purpose. They may not be motivated by hatred,
>>>vengeance, favoritism, or private gain. Legislation framed with a
>>>discriminatory purpose, manifesting "an evil eye and an unequal hand,"
>>>contains an elementary antagonism to the idea of the equality of men. Once
>>>legislation is endowed with a public and constitutional purpose, it still
>>>must meet other tests. Because there are real differences among men,
>>>regulation would be altogether ineffective if it had to apply to all or
>>>none. The law must therefore be selective. But to be equal, it must treat
>>>all those similarly situated alike. The differences between men that
>>>underlie selection must be real differences and must bear an intimate
>>>relationship to the purpose of the law and valid social goals. All other
>>>differences are irrelevant and must be ignored. "Class Legislation," said
>>>Justice Field in summing up this doctrine, "discriminating against some and
>>>favoring others, is prohibited, but legislation which, in carrying out a
>>>public purpose, is limited in its application, if within the sphere of its
>>>operation it affects alike all persons similarly situated, is not within the
>>>amendment."15
>>>
>>>Another phase of the idea of equality is the rule of law. If all men are
>>>created equal and equally possess certain rights, and if governments are
>>>instituted to secure and maintain those rights, and men therefore are
>>>equally entitled to such protection, the protection can only be afforded by
>>>uniform rule, that is, by law. One way of putting this is the expression:
>>>"Equality before the Law." Another way is in the celebrated words of the
>>>Massachusetts Bill of Rights: "That the government of the Commonwealth may
>>>be a government of laws and not of men." Thus, in this aspect, the doctrine
>>>of equality is in effect a command that the government act by established
>>>and regular procedures and by uniform rules. It is a command that the purely
>>>personal, arbitrary, capricious, and whimsical be reduced and eliminated
>>>from the exercise of power. It is a command that the rules be fixed and
>>>announced in advance in a way which will make them freely and publicly
>>>available. It is a requirement of a degree of certainty and predictability
>>>in government action and of a system of rights growing out of uniform rules.
>>>It is finally an order that administrators as well as legislators act within
>>>these confines.
>>>
>>>In still another phase, equality is not negative and procedural but positive
>>>and substantial. Anatole France referred to "the majestic equality of the
>>>laws which forbid rich and poor alike to sleep under the bridges, to beg in
>>>the streets, and to steal their bread." But the demands of equality are not
>>>met by the equal treatment which results from the absence of the laws or
>>>from the indiscriminate application of the laws to those who are
>>>dissimilarly situated. Moreover, the demands of equality are not exhausted
>>>by the doctrine of classification and the rule of law. The equal protection
>>>of the laws refers to the quality of the laws as well as to the mechanics of
>>>their operation. The reign of equal laws involves as well the reign of just
>>>laws, and the maintenance of equality in the enjoyment of rights is at the
>>>heart of the system of justice. Equality thus must be the very purpose of
>>>governmental action and policy as well as a test and measure of its means.
>>>It must "give direction to public opinions," determine the "tenor of the
>>>laws," impart "maxims to the governing authorities," and modify "whatever it
>>>does not produce."
>>>
>>>Particularly is the government under a duty to guarantee equality of
>>>opportunity. Without that, freedom itself cannot last and becomes an
>>>illusion. The only aristocracy that a system founded upon equality can
>>>tolerate is an aristocracy of personal merit and achievement. Uniformity and
>>>regimentation, on the one hand, and status, influence, and power based on
>>>birth, social position, or inheritance, on the other hand, are equally
>>>incompatible with equality. Equality of all men presupposes respect for the
>>>rights of others. In a society of equals, therefore, men are free to be
>>>different. All limitations on opportunity, all restrictions on the
>>>individual based on irrelevant differences of race, color, religion,
>>>national origin, sex, and the like, are in conflict with equality and must
>>>be removed and forbidden. Access to the mainstreams of community life, the
>>>aspirations and achievements of each member of society, are to be limited
>>>only by the skills, energy, talents, and ability he brings to the
>>>opportunities equally open to all Americans.
>>>
>>> From what I have said so far, a number of propositions emerge:
>>>
>>>(1) Preferential treatment of the blind based on favoritism, privilege,
>>>whim, prejudice, patronage, pity, charity, self-interest of others, or
>>>feelings of like or dislike cannot be justified and indeed does a great deal
>>>of harm. On the other hand, preferential treatment which takes account of
>>>the special qualities or needs of the blind or aspects of their situation
>>>not shared by others, which is aimed at a desirable social objective and
>>>which employs proper means properly adapted to this purpose, is not only
>>>justifiable preferential treatment but is treatment which should be at the
>>>foundation of all public and private policy toward the blind.
>>>
>>>(2) Blindness has a dual aspect: the physical and the social. The first is
>>>the disability; the second is the handicap. Treatment of the disability is a
>>>medical task. Overcoming the handicap is the function of rehabilitation.
>>>
>>>(3) The handicap consists mainly of the misconceptions of the sighted about
>>>the physical disability which result in social exclusion. In all but the
>>>physical sense, and even to some extent in that, it consists of a loss of
>>>full membership in society; a denial to the blind of the rights and goals
>>>which others share--liberty, equality, property, dignity.
>>>
>>>(4) Overcoming the handicap of blindness, therefore, means removing the
>>>bars, exclusion, and denials of which the handicap consists: conferring on
>>>the blind the title deeds of social freedom and membership; the rights of
>>>liberty, equality, property, and dignity; in short, their reintegration into
>>>society.
>>>
>>>(5) Programs which address themselves to this purpose or which move in this
>>>direction, while they necessarily involve preferential treatment, meet all
>>>the tests and standards set up for good policy. Such special arrangements
>>>might better go by the name of equal treatment. Indeed, to lift from the
>>>backs of the blind the special, heavy, and unnecessary burdens which society
>>>has caused them to bear and to call this preferential treatment can hardly
>>>be regarded as anything but the bitterest irony. Programs which move in the
>>>opposite direction, which accept and build upon the public misconceptions
>>>about the nature of the physical disability, which presuppose the incapacity
>>>and abnormality of the blind, and which institutionalize that presupposition
>>>in segregation and custodialization--all programs, in other words, which
>>>continue or intensify social exclusion or which are motivated by patronage,
>>>charity, whim, prejudice, or self-interest--involve preferential or special
>>>treatment which increases the handicap. They perpetuate the very attitudes
>>>and conditions which they should be designed to prevent.
>>>
>>>(6) Preferential treatment is also justified which: (a) tends to ameliorate
>>>the immediate physical consequences of the physical disability of blindness;
>>>or (b) pending the day when integration has been achieved, mitigates the
>>>financial and other consequences of social exclusion or offsets the
>>>disadvantage resulting therefrom by means which do not further entrench the
>>>public misconception or which do so as little as possible.
>>>
>>>(7) To be consistent with the standards dictated by the basic principles of
>>>our social, political, and constitutional system, programs for the blind
>>>must:
>>>
>>>(a) Allow the blind to manage their own personal affairs and proceed on the
>>>assumption that they are capable of doing so.
>>>
>>>(b) Not only permit the blind, but stimulate and encourage them to develop
>>>their potentialities, share in the fruits of society, and contribute to its
>>>work and progress.
>>>
>>>(c) And to do this, not only permit, but stimulate and encourage the blind
>>>to work, to engage in individual enterprise, to exercise free judgment and
>>>free movement in the search for opportunity, freely to choose their fields
>>>of endeavor and to enter the common callings, trades, occupations, and
>>>professions of the community.
>>>
>>>(d) To stimulate and encourage the blind to do these things by relying on
>>>the normal incentives, principal among which are financial remuneration and
>>>the improvement of one's economic lot and social status.
>>>
>>>(e) Permit, stimulate, and encourage the blind to acquire, enjoy, and use
>>>property (real and personal), not just for immediate consumption purposes,
>>>but as a motivational source of endeavor and a means of economic
>>>improvement.
>>>
>>>(f) Protect the essential dignity of the individual: by recognizing the
>>>worth of the human personality and treating it as a community asset rather
>>>than a community liability; by supplying aids and services without
>>>humiliation, without undue intrusion into the privacy of the recipient,
>>>without imposing upon him the badges and indicia of a needy and special
>>>status, without subjecting him to the personal judgments of social workers
>>>influenced by humanity, charity, approval, or other emotions; by making
>>>possible a standard and circumstance of living not conspicuously different
>>>from that enjoyed by the rest of the community; by leaving recipients free
>>>to make their own decisions as to spending, living arrangements, and
>>>personal matters.
>>>
>>>(g) If the demands of equality are to be met, public financial aid must be
>>>granted as a matter of right, the element of personal discretion exercised
>>>by administrators and welfare workers must be eliminated, the amount and
>>>conditions of the aid must be specified in uniform rules made accessible to
>>>recipients and prospective recipients and sufficiently exact so that
>>>recipients may determine to what they are entitled and what their
>>>responsibilities are. Legislative and administrative standards must be
>>>established which are uniformly applied, which treat all welfare recipients
>>>alike who are similarly situated with respect to a valid purpose of the
>>>welfare law, and which vary the amount and the condition of the grant when
>>>there are real differences among recipients in terms of their relationship
>>>to the welfare program. Finally, equality requires--as does liberty, the
>>>dignity of the individual, and the essential notion of property--that the
>>>purpose of the welfare law be opportunity as well as security. Relief rolls
>>>should provide relief; but they must also provide the means of escape from
>>>them. Reintegration into society through open and equal access to the
>>>mainstream of community productive activity must be an object of welfare law
>>>and a measure of its adaptation if the fundamental political and
>>>constitutional principles of our system are to be honored in the fact as
>>>well as held out in the promise.
>>>
>>>Measured by these standards, evaluated in the light of these considerations,
>>>how do our programs and provisions for the blind prove out? The answer must
>>>be mixed. Some programs are well adapted to these principles; others poorly;
>>>and still others are in flat contradiction of them. Unfortunately, some of
>>>the most important programs fall into the latter two categories.
>>>
>>>The rapidly growing and recently created system of orientation and
>>>adjustment centers--focusing on mobility training, personal care,
>>>prevocational manual skills, and the development of attitudes which make
>>>these other activities possible and fruitful--are properly oriented and
>>>adjusted to reduce the immediate physical consequences of the disability of
>>>blindness, to uproot the conviction of incompetence, and to impart
>>>self-confidence, hope, and a zest for living.
>>>
>>>The home teacher system, though hampered by the need to deal with the blind
>>>person in his home and then only in occasional short visits, substantially
>>>moves in the same direction as the orientation center. It is most effective
>>>when used as a case-finder for the center and otherwise works in close
>>>collaboration with it. It is least effective when it emphasizes handicraft
>>>as mere busy work or when it teaches Braille to clients who will never have
>>>any use for it.
>>>
>>>White cane laws, now enacted in almost all the states, by giving the blind a
>>>legal position in traffic and moderating the discriminatory harshness of the
>>>contributory negligence rule, make meaningful for the blind the human and
>>>constitutional right of free movement, just as the cane itself makes more
>>>meaningful the physical capacity of free movement.
>>>
>>>What about good vision requirements established in many laws and regulations
>>>dealing with jobs, licenses, and the like? Some of these are, of course,
>>>perfectly in order. Where sight is indispensable to the performance of the
>>>task- -as in hunting with a gun, driving a truck, or working as a
>>>photographer of wildlife for the National Park Service--the blind are
>>>legitimately excluded. Where sight is not indispensable, as is the case in
>>>thousands of jobs public and private from which the blind are now
>>>barred--the continued exclusion of the blind can have no special
>>>justification. In many of these cases the bars remain up because those who
>>>tend them have only their misconceptions to guide them.
>>>
>>>Laws and regulations giving preference to blind persons with respect to jobs
>>>are not mere favoritism if they are based on the special qualifications of
>>>the blind to perform the tasks assigned. This is clearly so when the blind
>>>are called upon to work in or administer programs affecting the blind. In
>>>that circumstance blindness is an enabling asset endowing the worker with
>>>special knowledge, experience, and the confidence of his clients which
>>>probably cannot be secured in any other way than by being blind. Of course
>>>this enabling asset should be given determinative weight only when other
>>>things are equal. For the blind to be given preference in other situations
>>>in which blindness does not contribute to the ability to do the work would
>>>be as unjustifiable as to discriminate against the blind in jobs in which
>>>blindness does not detract from the ability to do the work.
>>>
>>>What about vending stands for which the blind are given rent-free locations
>>>on public property, in connection with the establishment of which they are
>>>given a preference and protection against vending machine competition, and
>>>with respect to the operation of which blindness is not an enabling asset?
>>>These special arrangements will not withstand merited criticism once the
>>>blind have achieved a footing of complete economic equality. Until that time
>>>arrives, however, the vending stand program is preferential treatment which
>>>is justified as a small offset to almost universal economic discrimination
>>>against the blind; and one in which bona fide jobs are provided for
>>>qualified blind workers at comparatively negligible cost to the public; and
>>>one in which the blind are presented to the public in an aspect of
>>>competence and normality.
>>>
>>>If the management of the vending stand programs is to be consistent with the
>>>standards above discussed, it must keep supervision and control at an
>>>absolute minimum; allow the operator to purchase his stand and equipment
>>>with only an option to repurchase by the public; give the operator complete
>>>independence in the management of his business affairs, retaining only the
>>>power to revoke the license if the operator proves incompetent or becomes
>>>publicly obnoxious; protect the operator's profits against confiscation for
>>>the support of supervisory personnel or submarginal stands which the
>>>administrators have mistakenly established in unprofitable locations. The
>>>control system, on the contrary, reflects the custodial attitude toward the
>>>role and the abilities of the blind, a conviction that the blind are
>>>incapable of running their own business and incompetent to lead their own
>>>lives.
>>>
>>>Let us turn next to public assistance. Liberty in the direction of one's
>>>affairs, the whole basic principle of self-management, is violated by the
>>>means test. Under it, the individual recipient soon loses control of his
>>>daily activities and the whole course and direction of his life. The
>>>capacity for self-direction presently atrophies and drops away. With each
>>>new item budgeted or eliminated, with each new resource tracked down and
>>>evaluated, the social worker's influence increases. This is an inevitable
>>>concomitant of the means test. It results from the nature and extent of the
>>>system. It is bred and nourished by the provisions of the statutes and the
>>>rules issued under them. It is in the flexible joints of the cumbersome
>>>machinery. It is in the detail and intimacy of the investigation. It is in
>>>the inescapable confinements of the budget. It is in the idleness,
>>>defeatism, and waning spirit of the recipient. Whatever the social worker's
>>>wishes and intentions, her hand becomes the agency of direction in his
>>>affairs. The "concern of assistance with the whole range of income," wrote
>>>Karl DeSchweinitz, "always contains a threat to the freedom of the
>>>individual. Even when there is no conscious intent to dictate behavior to
>>>the beneficiary, the pervasive power of money dispensed under the means test
>>>may cause the slightest suggestion to have the effects of compulsion. `Whose
>>>bread I eat, his song I sing.'"16
>>>
>>>Not only is liberty violated by the means test, but so also are dignity and
>>>equality--and for many of the same reasons. Dignity is jeopardized by the
>>>initial financial investigation; by the searching inquiry into every
>>>intimate detail of need, living habits, family relations; by the setting up
>>>of a detailed budget of expenditures subject to repeated examination and
>>>review; by the continuously implied and often explicit threat that if
>>>behavior is uncooperative or unapproved, aid will be reduced or stopped, by
>>>the wholesale substitution of agency and social worker controls for the
>>>personal direction of personal affairs; by the unwarrantable intrusions into
>>>privacy involved in each of the foregoing and the galling humiliation of the
>>>whole process; and, finally, by the constant tendency of the whole system to
>>>push living standards down below a minimum of decency and health.
>>>
>>>The excessive individualization of the whole design and process of means
>>>test aid is fundamentally antithetical to the idea of equality. A system
>>>which makes so much depend upon a minute examination of every aspect of the
>>>individual's situation necessarily involves personalized judgments by
>>>officials and invites arbitrary and whimsical exercises of power, prevents
>>>the enforcement of a uniform rule even when the legislative provisions and
>>>administrative regulations are detailed and exact, renders it impossible for
>>>the recipient himself to determine to what he is entitled, constitutes the
>>>very thing intended to be prevented by the idea of "a government of laws and
>>>not of men," and flies in the face of basic requirements of proper
>>>classification. Since with respect to the purposes of public assistance law
>>>most individuals are parts of groups standing in the same relationship,
>>>those who are similarly situated are not treated alike and real differences
>>>are frequently disregarded.
>>>
>>>Means test aid also violates the notion of individual opportunity, access to
>>>the mainstream of community productive activity, and normal incentives.
>>>Since means test aid requires that all income and resources of the recipient
>>>be applied to meet his current needs and since the public assistance grant
>>>is reduced by the amount of any such available income or resources, the
>>>usual financial motive for effort and endeavor is removed from the recipient
>>>unless the recipient can gain enough and with sufficient certainty to be
>>>independent of the relief rolls.
>>>
>>>Granting aid as a matter of right contradicts practically all of the
>>>tendencies inherent in the means test and produces a system more consonant
>>>with the political and constitutional assumptions and goals of American
>>>democracy.
>>>
>>>Aid as a matter of right requires the establishment of fixed and uniform
>>>rules specifying the terms and conditions of the grant. Thus the principal
>>>features of the system must be laid down by the legislature. This contrasts
>>>with the means test variable grant, based on individual need individually
>>>determined by the administrative agency under discretionary authority
>>>conferred by the legislature. Those who are similarly situated are therefore
>>>necessarily treated alike and under standards comparable with those
>>>governing assistance to other groups in the community.
>>>
>>>Granting aid as a matter of right protects the liberty of the individual to
>>>manage his own affairs and conduct his daily life free of authoritarian
>>>controls and caseworker supervision. It protects the dignity of the
>>>individual. He is treated as a member of a class entitled to be dealt with
>>>in a manner determined by law, not by individualized administrative
>>>discretion. The occasion is eliminated for invasion of the individual's
>>>privacy, supervision of his personal behavior, and humiliating probing into
>>>the intimacies of his life; and a seminal principle is established which
>>>stands as a barrier to all such actions.
>>>
>>>Finally, rehabilitation. The primary task of vocational rehabilitation, as I
>>>have said, is the overcoming of the social handicap--not the physical
>>>condition. It consists in the creation of an environment within society,
>>>within public programs, and within the blind themselves, which will be in
>>>the fullest sense conducive to normal livelihood and normal life. It
>>>involves opening up the channels of social participation, that is, enabling
>>>the blind to enjoy the benefits of socially determined standards of liberty,
>>>equality, property, and dignity. Its time-tested tools are vocational
>>>orientation, vocational training, counseling, and guidance which stimulates
>>>and opens up horizons--and finally, of course, placement in remunerative
>>>employment in the common callings, trades, pursuits, and professions of the
>>>community.
>>>
>>>In the proper conceptions of its function as well as in the use of these
>>>time-tested tools, the vocational rehabilitation program of the United
>>>States must in large measure be pronounced a failure. The hope and
>>>opportunity are to be measured in miles; the actual accomplishment must be
>>>measured in inches.
>>>
>>>Rehabilitation so far as the individual rehabilitant is concerned is a
>>>complex process in which mental and emotional elements are predominant. It
>>>involves myriad adaptations not merely physical in nature but social and
>>>psychological. In effect, the entire personality must undergo
>>>reconstruction; the blind person's conviction of his own incompetence,
>>>accepted from the public misconception, must be uprooted; a rebirth, a new
>>>act of creation must be wrought. In this process ambition, hope, and
>>>self-reliance are essential ingredients. Consequently, rehabilitation by the
>>>command of the counselor or submission to his attitudes and preferences or
>>>by the coercion which results from conditioning public assistance upon it is
>>>a contradiction. It is therefore futile. It is as futile as ordering a
>>>person to restore his emotional balance while adding to the very factors
>>>which cause the unbalance.
>>>
>>>Since the objective of rehabilitation is restoration to a normal useful role
>>>in society, the standards of success are in large measure culturally
>>>determined. The rehabilitated person, thus, is one for whom the assumptions
>>>and goals of the community have become as significant as for others, who has
>>>in fact achieved equal opportunity to enter the calling of his choice, to
>>>acquire, use, and dispose of property, to exercise the right of personal
>>>independence, and to operate on the other assumptions and principles before
>>>listed. Just as the habits of freedom are not learned by experiencing
>>>slavery, so ambition is not learned by destitution, self-management by
>>>authoritarian controls, incentive by denying the hope of gain, or
>>>self-respect by second-class citizenship. Rehabilitation by command or
>>>coercion cultivates the very traits which frustrate and prevent
>>>rehabilitation. A rehabilitation program which continually impresses upon
>>>the client a sense of his helplessness and dependency; which enshrouds him
>>>in an atmosphere of disbelief, doubt, and defeatism; and which exhibits
>>>attitudes of guardianship and custodialism must inevitably sap the fibre of
>>>self-reliance, undermine hope, deter self-improvement, and destroy the very
>>>initiative which is indispensable to rehabilitation.
>>>
>>>Rehabilitation by stimulation, by opening up new horizons, by assisting the
>>>client in the achievement of goals of his own choice, by incentives
>>>carefully planned to encourage productive activity by the expectation of
>>>normal rewards--retention of earnings, improvement of standards of living,
>>>accumulation of real and personal property--places rehabilitative effort in
>>>conformity with the political assumptions, economic impulses, and behavioral
>>>standards imposed by democratic thought and current social knowledge.
>>>
>>>Optimistic and skillful counseling, built on personal experience with the
>>>handicap and its problems, is required to accomplish this delicate work.
>>>Under the present program such counseling has not been supplied. On the
>>>contrary, too often rehabilitation officers have themselves subscribed to
>>>the conviction of the incompetence of the blind. Little has been done under
>>>the present program to halt the tendency of shunting the disabled into a
>>>limited series of stereotyped occupations, to provide a staff which will
>>>have and exhibit full confidence in the blind, and which will aid the blind
>>>to enter fields of their own choosing. Little has been done under the
>>>present program to strengthen placement as an inescapable function of the
>>>rehabilitation agency. For the blind this is the arduous culmination of a
>>>long and arduous process. It cannot be accomplished by automatic referral to
>>>employers. It can only be accomplished by the application of highly
>>>specialized and individualized techniques of affirmative contact with
>>>employers, aggressive seeking of employment opportunities, personal
>>>demonstration, and follow-up.
>>>
>>>Little is done under the present program to remove the obstructions to
>>>employment of the physically handicapped which exist in the public mind, in
>>>the statutes, ordinances, administrative rulings, judicial decisions, and
>>>institutional practices. Above all, the true nature of the handicap and the
>>>elements which compose it, particularly the social and the psychological as
>>>distinguished from the physical and medical elements; the proper functions
>>>and goals of rehabilitation; the relationship of disability to dependency,
>>>especially economic dependency; the part presently played and properly to be
>>>played by public financial aid under social insurance and public assistance
>>>in the process of rehabilitation; the determinative character of the
>>>reintegrative objective and the bearing upon it of liberty, equality,
>>>property, and dignity--these basic and urgently pressing questions have
>>>never been sufficiently analyzed by the responsible officials in vocational
>>>rehabilitation.
>>>
>>>Until this whole pattern is changed, until a great deal is done to reorient
>>>the training and functions of rehabilitation workers; to strengthen guidance
>>>and counseling services; to improve techniques and focus rehabilitation
>>>attention on the placement of rehabilitants in competitive employment; and
>>>to remove legal, administrative, and other obstacles to the employment of
>>>the blind in the public service, the trades, professions, and common
>>>callings of the community--until that happy day, rehabilitation of the blind
>>>is likely to continue to be measured in inches and not in miles.
>>>
>>>Americans are familiar with the unhappy divergence between creed and conduct
>>>in many phases of our national life. Myrdal's observation of the disparity
>>>between social equality as a cherished political norm and our unequal
>>>treatment of the Negro is but one instance of a pattern that is all too
>>>pervasive. The field of blind welfare provides another, one which has been
>>>less noticed but is not less conspicuous or significant.
>>>
>>>Footnotes