[nfbmi-talk] on the barricades in the courtroom

joe harcz Comcast joeharcz at comcast.net
Mon Feb 24 12:51:55 UTC 2014


Don't these same principles apply to Michigan? And also don't they go even further in that we shouuld be on the barricades in the courtroom to fight for quality, responsive VR and IL programs for the blind? Note the use of open records laws herein as well.

Joe

Good morning, my name is Susan Kern, and many of you know me as a 
former deputy attorney general in Hawaii. It is wonderful to see all of your 
familiar faces, and I look forward to getting to know those of you that I 
haven’t yet had the pleasure of meeting. 
Kevan Worley asked me to speak on a topic entitled “On the Barricades in 
the Courtroom.” Of course I asked my friend James Gashel what he meant 
by that, and Jim sent me right to the NFB website to find out. While 
listening to Dr. Jernigan, I realized that what he was talking about – the 
insidious discrimination that underlies the obstacles that blind persons 
experience – is really at the heart of the reason that there are so many 
legal impediments to the implementation of the Randolph-Sheppard Act, 
both at the state and at the federal level. 
As I am sure you all know, but it bears repeating, Dr. Jernigan concluded 
his 1971 address to this Convention as follows: 
Since 1969 we have talked a great deal about joining each other on 
the barricades. If there was ever a time, that time is now. What we in 
the Federation do during the next decade may well determine the fate 
of the blind for a hundred years to come. To win through to success 
will require all that we have in the way of purpose, dedication, loyalty, 
good sense, and guts. Above all, we need front-line soldiers, who are 
willing to make sacrifices and work for the cause. Therefore, I ask you 
again today (as I did last year and the year before): Will you join me 
on the barricades? 
The 1969 address noted: 
we have come to recognize these sordid myths and misconceptions 
for the lies which they are; that we have organized; that we have 
mobilized ourselves into a powerful movement to change the total 
landscape of the country of the blind; that we have not only won 
friends and influenced people in our cause but have won battles and 
influenced the course of public policy. 
And concluded with: Will you join me on the barricades? 
Today the sordid myths and misconceptions remain. While it is evident that 
the blatant condescension that Dr. Jernigan exposed in his 1971 speech 
here in Texas is mostly part of the past, everyone of you in this room knows 
that there are individuals who make decisions concerning the placement of 
blind-operated businesses that still see the blind as incapable. 
Well, I know that the blind are just as capable of any endeavor as anyone 
else. As Federationists are wont to say, except for driving a car, but we are 
working on changing that! 
Nevertheless, because of the attitude of some employees of some SLAs, 
and some hearing officers, arbitration panel members, and state and 
federal judges, there are barricades in the courtroom that prevent the 
enforcement of the blind vending laws, both state and federal. I recall a 
hearing I had before a federal judge where he asked me whether I was 
really saying that the blind were capable of – I think it was managing a 
large and complicated enterprise. I was speechless. Then, realizing what 
he had just said, in front of a room full of successful blind operators of large 
and complicated enterprises, the judge recovered somewhat and said 
something along the lines of, well, of course there are many blind 
individuals who are very accomplished, why I personally know and have a 
lot of respect for a blind federal judge. I think it’s important to remember 
that the blind federal judge probably would not have secured his position 
without the organized blind movement. 
So, back to barricades in (and to) the courtroom. Those consist of some 
very unfavorable decisions to blind vendors – those barricades were 
caused by the attitudes of decision makers that blind people are incapable, 
or even worse, that the law granting them a priority should not be enforced 
because it offends their perception of what is equitable. 
Now Hawaii’s state law grants a priority to the blind to operate vending 
facilities in state buildings. It’s a pretty strong law. Yet, at one time the 
Director of Health decided that she did not want a blind vending facility in 
her building, because she wanted the space for a conference room. The 
vending facility served fresh sandwiches, salads, and the like, was large, 
with several tables, and lots of natural light – a very pleasant space. The 
Director of Health said it was her building and she wanted the space for a 
conference room. Gee, I thought it was the taxpayers’ building! 
Thankfully Dave Eveland was the Administrator of the Services for the 
Blind Branch, and Joe Cordova was, and still is, the administrator of the 
Division of Vocational Rehabilitation and Services for the Blind. They 
understood that the state law leaves it up to the SLA to decide where to 
establish a vending facility. It took quite a bit of convincing, as well as 
political pressure, for the Director of Health to understand that she did not 
have the right to put the blind vendor out of a job. Thankfully she was 
convinced. If she had not been, the blind vendor would have no recourse 
but to file a grievance. 
Unfortunately it is all too often the state of affairs that once a case gets 
before before a state hearings officer, or an arbitration panel, that the 
decision-makers have that same attitude as the Director of Health. 
Also some SLA staff hold a belief that because they see themselves as 
more capable than the licensed blind vendors, that they should not earn 
less than those vendors who have many years of experience as blind 
vendors and manage very complex facilities. What these SLA staff fail to 
understand is that they have chosen to accept employment as a public 
servant, and their role is to serve. If they want to earn a large income, then 
they have chosen the wrong venue. Rather than feeling resentful, the SLA 
staff should take pride in the vendor who gets ahead financially and pride in 
their role in making a successful vending program. 
In the courtroom, there is a PHYSICAL barricade that separates the judge, 
bailiff, clerks, and parties and their attorneys from spectators and 
witnesses. 
In the courtroom, there are also very subtle metaphorical barricades that 
inhibit the enforcement of the law. These come from beliefs, which are 
often unconsciously held, that blind people are incapable. 
A 1984 article published in the Army Lawyer, entitled: The Randolph-
Sheppard Act: A Trap for the Unwary Judge Advocate, exemplifies the 
attitudinal barricade. I quote from that article: 
The original Randolph-Sheppard Act began as a modest, 
uncomplicated statute which was designed to promote a worthwhile 
cause and which made imminent sense in the context of the times. 
The forces of bureaucracy, attorney scrutiny, and the march of time 
have transformed the once simple Act into a cobweb of statutory and 
regulatory requirements. 
The writer also claims that the 100 federal employee provision includes 
only civilian employees. Since when is a member of the military not an 
employee? Do they not get paid for services rendered? The statute does 
not contain the word civilian in front of the word employee, yet that is how 
the military believes the statute should be interpreted. 
With respect to vending machine income, the writer’s advice is for the 
military to maximize its earnings by keeping its annual income at $3000 
unless it can generate income greater than $6000. If normal earnings 
would fall between $3000 and $6000, it is in the agency's best interest to 
reduce the price of merchandise (thus providing a collateral benefit to its 
employees) and limit income to $3000 (thus maximizing profit). 
And, oh, by the way, circumventing the law! 
And this is only a very small example of a barricade erected. The writer 
was probably completely unconscious of the prejudice and small minded 
thinking he was exhibiting. 
Given the barricades erected by so many government decision makers, it is 
incumbent upon the merchants to keep on top of what their SLAs are 
doing. Every state has an open records law. You must use it! File a 
request to access records of site surveys, and written communications with 
federal, state, and municipal agencies. The R-S Act also requires such 
information be provided to you. Of course, if it is not provided, your 
arbitration remedy will take two to three years. You don’t have to wait that 
long – you can seek a resolution through your state’s open records agency 
or file a lawsuit under your state’s open records laws to get the information. 
Go to your own state government’s website or sites such as the website of 
the Reporter’s Committee for Freedom of the Press, where each state’s 
open records laws are set out. 
Another way to stay on top of what your SLA is doing is for your State 
Committee of Blind Vendors to take the lead in placing matters on the 
agenda. In other words, it is your committee, and you should control the 
agenda. The SLA should contribute agenda items as a means to ”ensure 
the continuing and active participation of the State Committee of Blind 
Vendors in matters affecting policy and program development and 
administration,” as required by the regulation, 34 C.F.R. § 395.3(a)(4). 
That is the SLA’s obligation, to keep you informed! 
Besides the need for SLAs to work to ensure the growth of the blind 
vending program, I see four main issues as barricades TO the courtroom, 
in other words, as legal obstacles that prevent the growth of the Randolph-
Sheppard program. The four are: damages and other remedies, bid 
protests filed by disappointed non-blind enterprises, insurmountable 
hurdles to the blind obtaining preliminary injunctions, and delay (and even 
failure) by the Department of Education to convene arbitration panels. 
Before we go into each of these areas, I want to take a minute to 
summarize the legislative history of the 1974 amendments with respect to 
those four main obstructions: The committee report makes it clear that the 
legislation was intended to provide for “adequate administrative and judicial 
remedies” that it was Congress’s belief that the bill “does create all the 
important safeguards,” that the arbitration procedures would resolve the 
issue of of lack of “machinery for prompt and satisfactory disposition of 
blind licensee and state agency complaints,” and that “if a Federal agency 
is found in violation of the Act or regulation, its head shall cause such 
violation to be terminated, and shall take such other action as necessary to 
carry out the panel’s decision.” 
As to the issue of damages, to be paid to blind vendors, we are all 
familiar with the Premo v. Martin case, where the Blind vendor awarded 
was damages by the arbitration panel, and Ninth Circuit ruling that 
damages and attorneys fees are permissible in Randolph-Sheppard cases. 
Nonetheless, the same Ninth Circuit, in Sauer v. U.S. Dept. of Educ., 668 
F.3d 644, 652 (9th Cir. 2012), recently ruled that: 
the plain language of the statute weighs against interpreting the Act 
as imposing a duty on state licensing agencies to sue federal 
agencies, and holding them liable for damages if they fail to do so. 
Sauer v. U.S. Dept. of Educ., 668 F.3d 644, 652 (9th Cir. 2012) 
As I read these two cases, Premo is still good law. However, the agency’s 
failure to sue to enforce the damage award did not obligate the agency to 
pay the damages in Sauer. This could have the effect of weakening SLA 
enforcement of the blind vending laws at the federal level. Nevertheless, It 
is crucial that blind vendors establish a paper trail (maybe the better term 
would be “electronic trail”) to ensure that agencies move forward whenever 
there are threats to the blind vendor’s livelihood. I know that no one wants 
to be perceived as being difficult, but there is nothing wrong with being 
persistent when it concerns your right to earn a living on government 
property. 
A safeguard that is missing is that of a preliminary injunction. As I will 
discuss, incumbent nonblind enterprises have an immediate remedy, they 
can file a protest with the Government Accountability Office, which prevents 
the award to a blind vendor. Yet, incumbent blind enterprises are denied 
that GAO protest right. An incumbent blind enterprise was recently denied 
a preliminary injunction by a Colorado court to prevent a cafeteria contract 
from being awarded to a non-blind enterprise, stating that “there must be a 
virtual certainty of irreparable harm” and that economic losses do not 
constitute irreparable harm. The court stated that “a contrary finding would 
result in a windfall to any incumbent R-SA contractor who bids 
unsuccessfully on a contract's renewal.” What about the windfall to the 
non-blind incumbent? There is a case in Hawaii where the SLA won the 
bid to operate a military dining facility, yet the incumbent non-blind 
enterprise is still operating that facility, having filed a series of GAO 
protests. What about the windfall to that incumbent non-blind enterprise? 
The blind vendor is scheduled to start August 1, but only because the SLA 
has vigorously pursued the opportunity. 
Still, the best course would appear to be to make sure that bids are very 
carefully crafted to stay within the competitive range. 
The military has stated that it wants to “reduce the costs associated with 
contracting with R-S Act vendors.” I find that kind of a statement to be 
dismissive of the priority, and contrary to the language in the regulations 
imposing the priority that the priority applies when “the operation can be 
provided at a reasonable cost, with food of a high quality comparable to 
that currently provided employees.” 
If there is language in the solicitation establishing a competitive range 
based on lowest price, I would recommend filing both an arbitration and a 
protest with the Government Accountability Office. While protests filed with 
the GAO are routinely dismissed, an arbitration panel is likely to rule that 
the protest should have been filed and this would likely be upheld on 
appeal. 
So, the only avenue remaining is the federal arbitration path. All would 
agree that the right to arbitration is an improvement over the state of affairs 
that existed prior to R-S Act’s 1974 amendments, to get through the 
process involves, at a minimum, a good share of tenacity, that very same 
tenacity that Congress mentioned in 1974 as forming the basis for the 
success of the blind vending program. 
Personally, one of my pet peeves the length of time it takes the Department 
of Education to convene an arbitration panel. I have seen the Department 
of Education ignore repeated requests to appoint a panel member when 
the federal agency refused to do so. I have seen the Department of 
Education, when panel members did not agree on a third panel member, 
appoint a panel member who refused to set a hearing date, saying he was 
very good at mediating cases! I found it to be reprehensible that a panel 
chair would refuse to convene a panel, when the law plainly requires 
convening of a panel. 
Another issue that I would like to see this group take up is the selection of 
the third member of the panel. This panel member is generally based on a 
list provided by the Department of Education. 
That list is very outdated. Individuals who are neutral should be on the list. 
I think to be neutral in this context an individual would need to have an 
understanding that blind people are capable of all that they are capable of. 
I don’t see how a panel chair could be neutral without that understanding. I 
would urge you to think about finding a way to address this issue with the 
Department of Education. 
Getting back to your active participation role, and your duty to be articulate 
and well informed in your dealings with the SLA, there remains the issue of 
the failure of many SLAs to work to ensure the growth of the blind vending 
program. 
You are all aware of the Enzi Committee Report’s statement that “Although 
the program is specifically directed at a population with very high 
unemployment numbers, only a relative handful are reaping the benefits 
and receiving the support this program provides.” What the report fails to 
take into account is that some state agencies are not taking the initiative to 
contact federal, state and municipal authorities to assert the priority. This is 
a task, that in my opinion and experience, takes a great deal of time and 
effort on the part of the SLA, the attorney assigned to the SLA, and the 
blind vendors. Where a SLA does an exemplary job to grow the program, 
consider an award – such as the Jacob Bolotin award. 
Meanwhile, The chair of the elected committee has to devote many, many 
hours to countless meetings, and require accountability from the SLA. It 
can be a thankless task, and it is an unpaid task. We all know how easy it 
is criticize. Nevertheless, you should insist on more specific site surveys, 
and obtain a copy of site surveys. Those past, and future, elected 
Committee chairs deserve our respect and gratitude. 
Every successful and every blind vendor on the road to financial 
excellence, acting in the best interests of all blind vendors, must continually 
urge that the SLA recruit more individuals to the vending program, and 
establish more sites. This group could work to create standards for 
successful vending facilities, and urge the adoption of these standards on a 
state by state basis. 
So I urge you, in the words of Dr. Jernigan, to man AND WOMAN the 
barricades. Push your state agencies to obtain more locations, to provide 
quality mentoring and training programs, to support the merchants. The 
issues that I have identified will persist. They may never go away. That 
does not mean that you cannot create more opportunities and improve the 
lives of blind merchants. You must be the catalyst. 
 Aloha and mahalo. It is a honor to be asked to speak to this group. 
 


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