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Language is needed in the Americans With Disabilities Act to prevent the use of unintended restrictions based on disability in the name of compliance with the act.

This is a lesson which we should have learned from enactment of the Air Carrier Access Act, not to bring up a sore subject or anything. But, you know, this experience tells us that unintended restrictions, things that we never thought would have come about, based on disability, can easily and unexpectedly evolve from a law which you had a lot to do with. That law was forthrightly aimed at prohibiting discrimination. But it hasn't worked that way.

The audible traffic signal is another example of how an accommodation can become discriminatory. The sound made by the signal is a beeping or an electronic chirping noise which is intended to imitate a bird call. That is one of the common forms of the signal. The accommodation has been promoted by persons who assume that blind people will not know when or where to cross the street if they are not given some special audible cue.

But rather than being a form of assistance to blind people, this adaptation falsely presumes that blindness is an impairment to street crossing. It is not, I assure you. The fact is that blind people cross streets by themselves every day. We have been doing so without audible traffic signals and we have been doing it since cars, street crossings, blind people, and traffic lights were invented.

The sound of the traffic and the direction of its flow give us plenty of information. An audible traffic signal adds nothing, and many blind people say that it only confuses them to have the additional sounds.

Most significantly, this modification implies that blind people cannot cross ordinary streets. In this respect, it is a damaging and false public statement that the blind are disabled in ways that we are not.

So-called accommodations such as these come before us in an almost endless stream. Some of the cities in California-and you may have seen this, Mr. Chairman-have the big idea, now, of placing surface coverings called pathfinder tiles at some street intersections. They are doing it quite a bit in Sacramento and some of the other cities out there. Some of these pathfinder tiles even run across the street. The idea is that they are supposed to guide the blind across the street-never mind, you may not want to cross the street, by the way, and then there isn't a guide that just goes somewhere else.

Along a similar line, a college professor in New Mexico thought up the idea and got a federal grant to develop this—to create a cane which would follow an electronic field, provided, of course, that all of the very highly expensive and technical equipment is installed and that it is operating correctly.

Can you imagine the cost to the taxpayers if modifications such as beeping traffic lights, pathfinder tiles and electronic fields become in vogue as the result of the Americans With Disabilities Act? This could happen.

Beyond the needless expense involved in doing this, it is harmful when accommodations are made that falsely imply limitations caused by blindness. Opportunities necessarily depend on public understanding and public and social acceptance. This will be the case with or without the Americans With Disabilities Act

The best accommodation for a blind person in moving about is a long white cane and the training to use it. Both are available in abundance.

Mr. Chairman, from the moment the Americans With Disabil. ities Act is signed into law, that act will affect blind persons and millions of others in almost every activity of our lives. Think about that. If that act sets accommodation as the standard for using transportation facilities and services, as it currently does, then many thousands of us will be forced to travel and move about even, perhaps, on the public streets under discriminatory conditions.

Accommodation for persons with disabilities is, no doubt, a very necessary standard to provide equal rights for some persons in some instances. However, the right to access for some should not also become the basis for discrimination against those of us who already have access.

If access, under the accommodated terms of the Americans with Disabilities Act is our only choice, then we would have no choice but to oppose that Act. I hope that would not be our choice, however. The law must strike a balance. We are prepared to offer language in the form of an amendment to the act to achieve just exactly this kind of balance.

We are prepared both to be flexible and reasonable about this language. But I can tell you one thing. We are not prepared to endure what could become the practices of legalized discrimination. We are already experiencing that kind of incident in respect to the airlines. It is not real pleasant for us.

Mr. Chairman, discrimination against persons with disabilities is absolutely wrong. The Americans With Disabilities Act should, emphatically, and forthrightly prohibit it in any form. The right of individual choice to participate with or without accommodation is a central, unresolved ambiguity in the act, but it is a principle that the act should uphold. I gather that Mr. Miller agrees with that.

If that ambiguity is not resolved by specific, statutory language, then the act could become a civil rights fiasco. We have a chance to prevent that from happening. I think that with your help, we can. do it.

Thanks a lot. Mr. MINETA. Thank you very much, Mr. Gashel, for a very fine statement. The National Federation of the Blind supports the principle of the right of the individual to choose to use surface transportation services with or without special accommodations. From the testimony that we have heard today from other representatives of the community of people with disabilities, including the American Council of the Blind, there are, obvious disagreement on whether or not special accommodations are needed to achieve accessibility.

How would you propose to balance the individual's desire or need for special accommodations against another individual's desire or need to not be specifically accommodated?

Mr. GASHEL. I think we have to balance that by what the Americans With Disabilities Act is seeking to do. The Americans With Disabilities Act is seeking to end discrimination. The kinds of

things that we are talking about in respect to blind people using transportation are—that is, the accommodation items that may be discussed-are really not discrimination issues.

For example, let's take not a bus example but a street-crossing. I use the beeping traffic light. It is a plain fact that a street crossing is not discriminatory against a blind person if it doesn't have a beeping traffic light. You can cross the street without it. As a matter of fact, it is a different situation than what you have if you are in a wheel chair.

You see, if you have got a street crossing that doesn't have a curb cut and you are in a wheel chair, you can't make that street crossing. You have got a barrier, and that barrier should be removed. And that is the social policy that would be set by the Americans With Disabilities Act, and very appropriately so.

It is a different situation for us. We don't really face that kind of barrier in crossing the street. As Mr. Miller said, it is really not that kind of issue. You can still cross the street or ride the bus or do any of the things without those things being done.

So those are things, Mr. Chairman, which might fall in the category-even if we agreed that they should be done—they might fall in the category of things that are nice to do. Quite frankly, we happen to think that some of those things should not be done, that they are not nice to do and, in fact, to install them is discriminatory rather than the other way around.

In the case of the beeping traffic light, it is discriminatory because it conveys a false public message to the public about blind people. It says that we can't cross the street, God forbid, if it wasn't for the beeping traffic light. That limits me. If somebody believes that I depend upon some device that, all of a sudden Congress in 1989 decided to order somebody to install, they leave out the whole rest of my life, the ability that I have shown to do things.

Our ability comes from the training we have and the tools we can use. So I don't think that we are dealing with the same situation. I think the focus of the Americans With Disabilities Act has to be on ending discrimination in all forms, attitudinally as well as otherwise.

If these special beepers and so forth discriminate attitudinally, we ought to outlaw them.

Mr. MINETA. Again, Mr. Gashel, thank you very, very much for your fine testimony. I look forward to working with you on resolving this issue and making sure that we don't have any unintended results.

Mr. GASHEL. We just don't want to replay the airlines.
Mr. MINETA. That is for sure. Thank you very, very much.
Mr. GASHEL. Thank you.

Mr. MINETA. Thanks to everyone who has so patiently listened or been participating up to this point. Again, there being no further business before the Subcommittee, we stand adjourned until the 26th when these hearings will continue.

Thank you very much
(Whereupon, at 8:18 p.m., the subcommittee recessed.]
[The prepared statement of Mr. Gashel follows:)









SEPTEMBER 20, 1989

Mr. Chairman, I am James Gashel. I am Director of Governmental Affairs for the National Federation of the Blind. My address is 1800 Johnson Street, Baltimore, Maryland 21230; telephone: (301) 659-9314. Thank you for giving me the opportunity to participate in this hearing today.

In this hearing you are examining the proposed Americans with Disabilities Act and its effects on programs within the jurisdiction of the Surface Transportation subcommittee. This is a vital subject to blind people. We are transit consumers. Our lives will be greatly affected every day in the future by what you decide to do with respect to the provisions of the Americans with Disabilities Act. We have some specific advice to offer and lots of experience (the experience of our own lives) to support our recommendations.

The Federation's national membership exceeds 50,000. We have an affiliate in each state and the District of Columbia. There are local NFB chapters in most sizable population areas in the United States. All of our officers and the vast majority of

our members are blind.

The Federation is not an organization

speaking for the blind; it is the blind speaking for themselves.

The members of the National Federation of the Blind represent the

largest single organized group of blind transit consumers in the United States. We depend heavily on public mass transit and

inter-city transit.

Most of these services are currently

provided without discrimination against the blind. Even so, the Americans with disabilities Act will have an inevitable impact on the provision of transit services and the relationship between transit providers and blind consumers.

The National Federation of the Blind was organized in 1940. Since that time we have worked hard to insure (by law and otherwise) that blind persons will not be the victims of discrimination when they use public streets, public buildings, public accommodations, and public transportation facilities. Jacobus tenBroek, the principal founder and first president of

the Federation, authored a law designed for use by states.


call it the Model White Cane Law.

Most states have enacted it in

one form or another. California, Mr. Chairman, was one of the first states to enact the Model White Cane Law. For most of his academic career Dr. tenBroek was a distinguished professor of law at the University of California at Berkeley.

The standard for nondiscrimination is stated succinctly in

the Model White Cane Law: "The blind, the visually handicapped, and the otherwise physically disabled are entitled to full and equal accommodations, advantages, facilities and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, street cars, boats or any other public conveyances

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