[NAGDU] My Thoughts on the NAGDU Seminar

[Al Elia]

Mike and all, On behalf of myself and the NAGDU executive board:

Regarding the ACAA: We are hopeful  that the pilot program that was included in the draft FAA reauthorization will pass. That is the best chance for something to happen soon, meaning in less than two to three years. We sought statutory provisions to prohibit forms entirely, but that was rejected on a partisan basis. We sought a statutory restriction that the forms could not be required before boarding and that airlines needed to provide both the forms and assistance completing them, but that was similarly rejected on a partisan basis. We also sought a private right of action to sue in the FAA reauthorization, but that was similarly rejected on a partisan basis. I should add that when I say "a partisan  basis," I mean that one party told us that they would not agree to anything that the airline lobby opposed. The pilot program was the best we could do, so we did it.

We are also drafting a petition for a new rulemaking regarding service animals on airlines that we plan to submit to the DOT before the end of the summer. We could petition for things to go back to pre-2021 rules, but we have been told that such a petition will be rejected. We plan to propose that if an airline requires attestation forms, they must provide assistance completing them. That means that they must assist completing them at the airport at the gate and at no earlier time, or that if they require them in advance of travel, they must assist in completing the forms over the phone. That new rulemaking will take two to three years. The airlines will oppose it. We should protest when they do.

 There are two possible ways to address the forms discrimination issue in a shorter period of time. One is to pursue an APA action to set aside the current regulations as unlawful. I have been told by the NFB's general counsel that the likelihood of success with an APA action is low, and the risk of losing is that our rights could be rolled back further if a court holds that requiring forms from guide dog users is lawful. That said, we are still considering filing such an action, with the requirement that if, after reviewing the administrative record NFB believes we are likely to lose, we will seek dismissal of the action in order to avoid making bad law. If it looks like we might win, we should mobilize guide dog users to show up at the court house.

The second option is something that we will be attempting by the fall, as it has no risk but may not succeed. I have discussed it with the board and with NFB, and we are agreed that we should try it. However, we are not discussing it openly because we do not want the airlines or others to have advance warning of our plans, as they would then have an opportunity to prepare to thwart our efforts. Again we should plan a march in support once we have pulled the trigger on this.

We have discussed a more immediate   protest at the DOT. We and NFB are not opposed to such a protest. However, we will need enough folks with guide dogs to attend such a protest to make it worth everyone's time and effort, and to ensure that it may be effective.. Unlike other protests where the NFB can easily mobilize lots of blind protesters, we feel it would be important for the bulk of the protesters to be guide dog users. That is harder to mobilize just based on membership numbers. If there is support for such a protest at the business meeting, we will work with NFB's advocacy team to move forward on that. We still may hold off until we have a petition filed for a new rulemaking, as a protest in support of something we just filed is more likely to be helpful in making change than a protest just because we don't like what is happening now.

We have also been coordinating our advocacy efforts with GDUI, the ACB's guide dog division, as our interests are aligned on this issue. We may be able to work with them on a joint protest in order to boost numbers.

One concern that we must think about is the public reaction to such a protest. It is one thing to protest to demand access to public buildings, jobs, accommodations, etc. However, the public may feel that filling out forms to bring your dog somewhere is no big deal, especially if it keeps others from bringing their fake service animals places and bothering all of the non-disabled people. The airlines and media did a great job publicizing the few instances of fake service animals and ESAs causing mayhem. We will have a very uphill battle if we want to try to re-cork that bottle. I'm not saying we shouldn't try, but we should consider the possible public backlash.

We all know that guide dogs are not the problem, and that people aren't faking blindness and falsely claiming their pet is a guide dog. They are falsely claiming an invisible disability and a need for a fake service animal for that disability. However, agencies are loathe to apply different rules to guide dogs than to service animals for other disabilities. In addition, advocacy organizations for other disabilities have opposed and will oppose any differentiation between guide dogs and other types of service animals.

As an aside, I would like to point out that we are now facing similar treatment as non-blind service animal users have always faced when flying. In other areas of life we frequently still maintain a privileged position relative to other service animal users. We may wish to consider that before insisting on a return to the status quo ante. We are no longer the only (or at least near only) users of service animals, as we used to be. That is largely why we are dealing with these new impositions. We may want to consider accepting this new world, and only requiring accommodations rather than our previously privileged status.

That said, I have always represented the interests of guide dog users specifically, and will continue to do so. Where there is a conflict between our interests and the interests of non-blind service animal users, I will pursue our interests. Where I can find common ground on an intersectional basis, I will pursue that with a "rising tides lift all boats" mindset.

Regarding JetBlue: I think that, given the multiple denials of different members by JetBlue, we should consider a protest at their headquarters in Long Island City, NY. Again we need numbers. I would welcome your and any others' assistance with organizing.

Regarding the pilot: It will be open to everyone, regardless of how frequently they travel. It will be open to everyone, regardless of their facility with technology. Airlines will have to take a service animal number by phone just as they take a pre-check number by phone. As for your comment that " it still leaves the door open for discrimination at the airport,"  I don't understand. airlines were always able to discriminate without facing consequences, even pre-2021. I used to avoid flying Southwest because I faced discrimination nearly every time I flew them pre-2021 when staff required me to sit in the bulkhead even if I didn't want to. I was threatened with being removed from the aircraft if I didn't move. MY complaints to DOT went nowhere. Again, the pilot is an improvement, not a cure-all.

As for your belief that we may be able to find enough republican support for a bill that provides for a cause of action to sue airlines, I respectfully disagree. As I mentioned above, one party has essentially outsourced decision-making on their support to the airlines. If you know of members who would buck their party on this, please connect John PAre, Justin Young, and me with their offices and  we will happily make that a priority. However, we are all volunteers here, and our time is valuable. We do not want the perfect to be the enemy of the good. Right now we are facing bad to very bad. Good would be better. We can achieve good. Once we achieve good, we may pursue perfect. However, if perfect is unattainable, as seems certain given partisan efforts to strip causes of action from the ADA, partisan rhetoric about the negative effects of ADA lawsuits on businesses, partisan outsourcing to the airlines, and the information we have gleaned from hill staffers regarding partisan attitudes, we have chosen to seek the good. We do not want to spend our time fruitlessly tilting at a perfect windmill when we can successfully achieve good and   make our lives better than they are now. That is true even  if making our lives better still falls short of being as good as the past.

As for Uber: We are never going to get all drivers to stop denying us, just as we never got all taxis to stop denying us. All we can do is make it so that when a driver denies us, they are not permitted to continue driving for paying passengers. Over time, the result will be that long-time drivers will be the drivers who take their obligations seriously and don't deny us, and newer drivers who get the message that denying service-animal users is not tolerated and will be swiftly punished. Uber has raised the priority of service-animal denial complaints to the highest  level, which is the same level as investigations of sexual and physical assault complaints. We have been told that Uber is now requiring evidence that a driver did not deny based on a service animal when a complaint is made. As for past denials, We were also  told that even when we received emails saying that a driver was educated, those drivers were also removed from Uber's platform. We continue to push Uber to provide us with outcome determinations after investigations of service animal denials, as we have gotten from Lyft.

The Self-ID pilot will automatically suspend drivers when they deny based on a service animal. That is not nothing. Right now drivers are only suspended pending an investigation when a complaint is lodged by a rider. That often doesn't happen because lodging a complaint is difficult and time-consuming. We have tried to address that difficulty as well, and as a result of our efforts Uber implemented a change to require their trust and safety hotline to accept complaints about service animal denials. However, that is still frustrating and time-consuming, especially when multiple drivers deny. The automated system will immediately suspend in the moment of the denial without the rider having to take any action. That should help eliminate denying drivers from the platform over time in a much more efficient manner than the current system provides. We can't stop drivers from betting  that they aren't likely to be faced with transporting a service animal in their car, and refusing to do so when they lose that bet. What we can do is make it so that the consequences of refusing are immediate and serious. The Self -ID system I proposed and Uber agreed to pilot does that.

We are also encouraging riders to file DOJ complaints because our attorneys have said that DOJ is actively investigating such complaints. a DOJ investigation is far more concerning to Uber than a potential lawsuit by NFB or its members.

Regarding PR: We are not afraid of Uber and others' PR. However, we are not mindless of it either. For reasons to be mindful, see above regarding airlines and the media surrounding fake service animal and ESA mayhem. I think a protest of Uber may be effective. I am also mindful of similar public perception, turnout, and other  concerns as above with respect to airline/DOT  protests.

In short, we are working on making the lives of guide dog users better, particularly with respect to airlines and rideshare companies. Those have been the absolute priority of the board, and of my personal NAGDU advocacy since joining the board two years ago. It is my opinion that we will get farther faster with the incremental approach I have been pursuing than with the swing-for-the-fences approach you seem to prefer. After all, the home-run hitters are also strike-out kings.

I appreciate your thoughts and hope to continue our discussion at the business meting.

Yours,

Al (undersigned by   Raul, Paul, Jessica, and Stacie)



On 2 Jul 2023 at 9:57:21 AM, Michael Forzano wrote:

>> It was nice to see quite a bit of discussion about what are arguably the biggest issues of discrimination facing guide dog users today, rideshare and the airlines. Unfortunately, there was not a whole lot in the way of even working towards solutions that truly eliminate these problems. What I heard is that the best hope of changing the airline situation is a pilot program in the FAA reauthorization Act that would create essentially TSA pre-check for guide dogs. This would make things easier for frequent travelers, but what about folks who don't travel often? What about folks who aren't good with technology? And at the end of the day, it still leaves the door open for discrimination at the airport. On rideshare, we are working with Uber on a pilot program where riders can identify themselves as service animal users before a ride and have reports automatically filed if they are denied. Considering some of the drivers I've encountered, I would not be surprised if drivers continue to deny us even if they're threatened by a message in their app. And when they do, Uber has a terrible track record of handling reports and taking action, as we all know. Even during the settlement period when Uber was required to deactivate drivers in certain situations, they rarely did.
>>
>> It seems to me that the NAGDU board has taken the position that we now live in a world where these discriminations are our reality. As was pointed out by a NAGDU member, guide dog access was better 25 years ago and our rights are being rolled back. But there is no realistic way to go back to "the good old days".  We are so afraid of losing more, that we're not willing to demand back the rights that the blind fought so hard for. While that's a perfectly valid position for someone to take at an individual level, is that the position we want the NFB, the voice of the nation's blind, to take?
>>
>> Protesting was brought up multiple times during the seminar. The response from our leaders was that they did not think it would be effective. The fact is that we don't know if it will be unless we try. Protesting has helped advance civil rights causes in the past, including those of the blind. In my opinion, the NAGDU board should not be worrying about members traveling across the country for a protest that turns out to be ineffective. Advocacy takes work, and I'd like to think that people signing up for a protest are well aware that it probably won't yield immediate results. As was pointed out, we would not have the ADA if disabled advocates hadn't crawled up the steps of the capitol. The NFB has protested on a number of issues as well.
>>
>> Particularly when it comes to Uber, I think a protest is long overdue. We've sued them, settled with them, and tried to work with them for almost 10 years. It is long past time to change our strategy, and yet we're too afraid because of their PR resources.
>>
>> Another argument that I heard was that we would be unable to advance legislation due to Republican control of Congress. My question is, do other civil rights orgs put their advocacy on hold when the party that most supports their cause isn't in power? The split in Congress is quite narrow and I doart think it's that far fetched that we could convince some Republicans on the importance of some of our legislation.
>>
>> I am curious if other members have similar sentiments, and thoughts on what actions we can take. I have thought about bringing a resolution to the convention to make these issues a top priority for the NFB as a whole but I assume it's too late this year. Open to ideas, and happy to help in any way I can. That said, doing this work as an individual doesn't make a lot of sense, we need to be aligned as an organization in order to make real progress.
>>
>> -Mike
>>
>> Sent from my iPhone
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