[nfbmi-talk] Pros and Cons of Preferential Treatment

Fred Wurtzel f.wurtzel at comcast.net
Wed Mar 17 00:10:40 UTC 2010


Here is the Dr. ten Broek article.

wWarmest Regards,

Fred 
  _____  


)

PROS AND CONS OF PREFERENTIAL TREATMENT OF BLIND PERSONS

Address by Professor Jacobus tenBroek

AAWB Convention, Quebec, June 19, 1955

     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." Yet

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 as 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 adaptation 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 the 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 under-assess 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 re-surveying
American

social and political thought and constitution 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 out 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 inalienable 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 conception 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
conception

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 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 live, to personal freedom and personal security.
They have

the right to marry, have and rear children, and to 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
field 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 conception 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 to Property and to Contract. The rights to property and
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 Charta. 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 interests. 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 inalienable 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 a 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 I, 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,
the 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 tile
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 opinion," 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 there
from

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 sub-marginal stands which the
administrators

have mistakenly established in unprofitable locations. The control system,
on the

contrary, reflects the custodial attitude toward the role and abilities of
the blind,

a conviction that the blind are incapable of running their own businesses
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 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 of 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

     1. Gabriel, THE COURSE OF AMERICAN DEMOCRATIC THOUGHT 22 (1940).

     2. Sumner, THE  CHALLENGE  OF  FACTS  AND  OTHER  ESSAYS 25 (Keller ed.
1914).

     3. For illustrative statements of this doctrine see, Johnson and
Graham's Lessee

v. McIntosh, 8 Wheat 543, 572 (U.S. 1823); Story, MISC. WRITINGS 74 (1835);
Justice

Matthews in Yick Wo v. Hopkins, 118 U.S. 356 (1886); Justice Cardozo in
Palko v.

Connecticut, 302 U.S. 319, 325, 328 (1937); see also Justice Murphy
dissenting in

Yamashita v. Styer 327  U.S. 1, 26 (1946).

     4. Winston Churchill speaking at Fulton, Missouri, March 1946.

     5. Under the general power of the states, often called the "police
power," wrote

Justice Barbour in City of New York v. Miln, 11 Pet. 102, 139 (U.S. 1837),
"[I]t

is not only the right, but the bounden and solemn duty of a State to advance
the

safety, happiness and prosperity of its people, and to provide for its
general welfare..."

Said Justice Field in Barbier v.  Connolly 113 U.S. 27, 31 (1884),
"[N]either the

[14th] amendment--broad and comprehensive as it is--nor any other amendment,
was

designed to interfere with the power of the state ... to prescribe
regulations to

promote the health, peace, morals, education, and good order of the people,
and to

legislate so as to increase the industries of the state, develop its
resources, and

add to its wealth and prosperity."

     6. See Meyer v. Nebraska, 263 U.S. 390, 399 (1923).

     7. Truax v. Raich, 239 U.S. 33, 41 (1915). Justice Hughes there said,
"It requires

no argument to show that the right to work for a living in the common
occupations

of the community is of the very essence of the personal freedom and
opportunity that

it was the purpose of the amendment [14th] to secure."

     8. Edwards v. California, 314 U.S. 160 (1941).

     9. Truax v. Raich supra note 7; Allgeyer v. Louisiana, 165 U.S. 578
(1897).

     10. Merriam, THE NEW DEMOCRACY AND THE NEW DESPOTISM 84-85(1939).

     11. Justice Chase in Calder v. Bull 3 Dall. 386 (1798); Chancellor
Kent, 2 KENT.

COMM. 1 (1827).

     12. Braceville Coal Co. v. People 147 Ill. 66 (1893).

     13. DeTocqueville, DEMOCRACY IN AMERICA 3 (1945 ed.).

     14. tenBroek, ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951).

     15. Barbier v. Connolly 113 U.S. 27 (1885).

     16. DeSchweinitz, PEOPLE AND PROCESS IN SOCIAL SECURITY 56-57 (1948).

(




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