Tools of choice in the fight for equal access: sledgehammer vs. constructive engagement


Amongst the many topics listed in my open file of future articles and other writing projects, you would not find the topic about which I am writing today. In fact, even if I was forced to augment the list by including unsavory subject matter such as disabled abuse or institutionalization, I would have avoided adding this topic. Not because I have nothing to say on the matter, but because I’m not so sure I can express myself in a way that is logical and articulate. It seems that the more removed a topic from my personal feelings, the more easily I am able to make a point. Yet, when it’s time for me to write about a topic which is philosophical, and may differ from the opinions of others, I veer off into the land of couching and justifications. Unlike so many who can write using language learned from having been steeped in academia, I have not learned the glib rejection of an argument as illogical, nor have I developed the thick skin necessary to take criticism of my core beliefs and shake it off. As a result, the final version of this post is likely to be a well watered-down version of the original draft. In a way, that’s a real shame, but I try to resist editorializing here, even though that is one purpose of this platform. The problem is, I’m a listener, and a thinker, not an arguer. It isn’t that I stand for nothing, it’s that I’m willing to take into consideration another viewpoint, which may make my own arguments appear weaker.

The day I began this post was a very interesting one for me. I found myself in discussions (or, more accurately, debates), with fellow persons who are blind, who might well have considered themselves to be intellectually or morally authoritative. These are people with whom one can win no argument, as there is no winning, there is only debate for the sport of it. Gratuitous argument is not my way. I love a spirited debate as much as the next person, but only if the exchange is not conducted at the expense of another’s dignity. One learns in marriage, for example, that going straight for the jugular, seeking to crush the spouse as though they are the enemy, reducing the partner by way of condescension and contempt is a fast track to marital dissolution. This, for the academics in my audience who would demand a source, is from Dr Gottman’s research at his Relationship Institute. Dr. John Gottman is the nation’s foremost researcher in marriage and parenting. He often refers to contempt as one of the “four horseman of the apocalypse” when it comes to argument. Admittedly, this is in reference to marriage, and not meant as one of the tools of successful intellectual debate, but I haven’t taken debate class since high school, so I may be at a disadvantage.

What does any of this have to do with a blog about accessibility? Everything, if you follow some of the important issues that affect people with disabilities every day. Within the disability community, there is an ongoing disagreement as to the nature of the techniques that should be used as a way to enforce compliance with the Americans with Disabilities Act. I found myself unexpectedly involved in such a debate, and just as unexpectedly feeling dissatisfied with the substance of that debate. It’s not that I maintained an opposing viewpoint, rather, it’s that I found that I was in fact, not agreeing strongly enough to suit the people with whom I was having that debate. Wow…I’ve never thought of myself as not feeling something strongly enough before. Typically, I’m advised to adopt a less reactionary position.

As is so often the case when we fall into the trap of the ease with which to express an opinion in 140 characters, remarks can tend to be more pointed than they might otherwise be, given more digital real estate. Brevity may be the soul of wit, but it is also the soul of insult and offense.

On May 14th, 2013, there was a full committee hearing on disability and accessible media, called The ADA and Entertainment Technologies: Improving Accessibility from the Movie Screen to Your Mobile Device. The hearing was streamed live. I watched the hearing with great interest, and commented via Twitter as I did so, while encouraging others to watch as well. I found the panel members to be articulate and reasoned in their comments, and I felt that the disability community was well represented by these advocates. The discussion that resulted on Twitter, however, and other discussion held offline, made me realize that I may need to examine my views about advocacy and the methods we use to gain equal access to the world.

Unwilling to go so far as to say, “one attracts more flies with honey,” I will say that my advocacy style has been one of constructive engagement, rather than one that requires use of a sledgehammer. That is not to say I do not own a sledgehammer, or that I see no value in using one, or that there is no place for a sledgehammer in one’s blunt-instrument drawer. Nor do I make any judgements about those who choose to use a hammer, the judicious use of which is admirable.

There is a long history of disagreement in the disability community regarding the best way to fight for equal access. Some believe that forcible compliance through litigation is the only way, since voluntary compliance is practically unheard of. Even with the passage of the ADA in 1990, the consensus in the community seems to be that progress has been slow, and that change has been affected only by way of threat of ruination through legal action. A friend with whom I found myself “debating” pointed out that there are no web site owners, none, who voluntarily comply with accessibility. I was incensed. “That’s ridiculous.” I said. “Name one,” he shot back. I couldn’t.

Surely, I thought, there is a company out there who voluntarily designed their web site to be accessible to people who have disabilities. “Not without the threat of a lawsuit, there isn’t.” My friend commented. “They wouldn’t bother if the law didn’t require it.”

“So, what are you saying?” I demanded. “The only way to have equal access is to hit people over the head with a hammer? what if they don’t know? Isn’t that what raising awareness is all about?”

With the unhurried pace of a predator toying with his prey, my friend said, “Amazon is aware. So are all the big players. But they don’t do anything about it until they have to. Being nice, writing letters, saying ‘pretty please’ has gotten us nowhere. It’s been twenty years.”

“But…but…there’s been progress,” I protested. “It’s a process. We can’t fix everything overnight. What about education? what about winning hearts and minds? Getting people on our side?” I felt my argument losing strength. Partially because at the center of his comment was an implicit accusation that my work is worthless, that I, and others like me, have proved to be a failure, and that all the awareness-raising in the world has not made a bit of difference. In fact, the words “sitting around and singing Kum Ba Yah,” came out of his mouth. Okay, minus 1 point for lack of originality.

He went on to point out a few interesting facts, which I will not bore you with here. I do want to point you to a couple of links from which to gather some statistics, should you ever need to do some research, cite a source, craft an argument. Keep in mind, though, the old joke that goes, “only lawyers and painters can change black to white.” Same goes for statistics. I think, though, that the Justice Department and the United Nations are at least somewhat reliable, so check out these links:

U. S. Department of Justice Accessibility report:

http://www.justice.gov/crt/508/report/content.php

United Nations Convention on Human Rights and Disability:

http://is.gd/PmlPrU

Ultimately, the question is one of approach. Do we begin to make changes by applying the least intrusive, education-oriented techniques, and only bring out the hammer as a last resort? This negotiated approach can sometimes take years to affect change, as is the case with businesses to which I have personally contacted. Sometimes, the response has been a sympathetic but impotent, “we’re so sorry, but we’re working on it, stay tuned” sort of response, other times it has been to placate me and then utterly ignore my complaint. There have been more than a few times, however, when I have been contacted by someone in the corporate hierarchy, who asked me for help right then and there, to find ways to make changes immediately. One company actually labeled a button within a few minutes of my request. Granted, all I wanted was an alt-tag, which took seconds to add, but they did it right away, then asked me to do some quick testing. Now, that’s responsive. No hammer required.

What about the small business, though, an ecommerce site that serves to be the only contact point for consumers, where the site developer was most likely the business owner’s college-age kid? He certainly cannot afford to hire an accessibility remediation expert, even if he was made aware of the web site usability shortcomings. I’ll just go out on a limb and use myself as an example here. I may regret this, but here I go.

I have a number of web properties, all of which fall into the pathetically inadequate, not one-hundred percent accessible column. Why? Because when I put the sites together, I didn’t know enough about programming to know what to ask for with regard to access, and while I was able to impart a certain amount of education as to alt-tags and headers, I quickly reached the limit of what to instruct my employee to do. Now, I’m in the awkward position of advocating for web accessibility when my own sites are barely navigable at best. As a small business owner, I lack the funds to hire someone to rebuild the sites with say, html5. What is this type of business owner to do?

One question I have to ask is, what is the real point of direct legal action? In my opinion, it should be more about making change, and less about pecuniary interest. Instead of merely filling the coffers of an advocacy organization, why not make those funds available for remediation assistance? That way, businesses who want to comply, yet lack the skills, or resources, can tap into these funds. That way, we can accomplish two things at once.

Back to the argument in favor of the hammer for a moment. In late 2011, the Federal Communications Commission (“FCC” or “Commission”) released a Report and Order implementing provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) to ensure that people with disabilities have access to advanced communications services (“ACS”). Providers of ACS and manufacturers of equipment used for ACS will be required to make their products and services accessible to people with disabilities, unless it is not “achievable” to do so. Failure to comply results in fines of up to $100,000 per violation, or each day of a continuing violation up to a maximum of $1 million. Obviously, this is meant to be extremely punitive, and while I concede that this requirement is likely to affect only large companies, and that there appears to be a bit of wiggle room here, thanks to the use of the term “achievable,” one wonders if the only beneficiaries will be the lawyers and bureaucrats involved in the documentation, certification, and enforcement rules.

My concern about this type of action is that while it may force compliance, it may also create catastrophic hardship for a business that is unable to bear the cost, put established businesses in peril, and further solidify negative attitudes towards people with disabilities and the organizations that represent us as tyrannical or heavy-handed. Yet, perception seems to be the last concern of the advocates in favor of the hammer. Why does it matter what any company thinks of people with disabilities, it’s the law of the land. Comply, or you will be forced to do so.

What is problematic for me with regard to this type of thinking is that one thing we cannot legislate is the attitudinal barriers we must overcome as a result of systemic discrimination. Once the hammer falls, and the business has been litigated into compliance, there is no room left for goodwill. In the world in which I choose to live, I need there to exist compassion, forgiveness, and goodwill. For others, though, goodwill has no place in the framework of this argument.

I’ve built a career speaking to audiences about disability awareness and the need for equal access. I can tell you from personal experience that there is a line that can be crossed, no matter how justified your argument may be, where the group whom you are attempting to convince simply will cease to listen. Once we alienate others by shoving our views down their throat, they may do what they are required to do to make the noise go away, but they won’t like it, and there may be unintended consequences that we may suffer as a result. If you look at the civil rights movement as an example, African Americans are still fighting to overcome discrimination, despite gaining equal access over 40 years ago. What that tells me is that we have an attitudinal problem as well as an accessibility problem. Therefore, I believe there is a place for awareness education as well as constructive engagement as part of a negotiated solution.

The day after the Senate hearing and subsequent “debate,” I received a letter from one of the friends with whom I had a heated verbal exchange. He admitted that my compassionate approach had merit, and that he had been thinking about our conversation, and realized that the awareness component should be included as part of an action plan for developers. He wrote:

“I’ve started sketching out a blog piece about a multi-stage approach to web accessibility that begins with a compassionate approach to site publishers. I agree that we first need to educate. It would probably be good if the highly visible advocacy organizations who are rightfully pushing for accessibility also offered remediation steps on their web sites.

For most web sites, accessibility can be done pretty easily by a novice to both accessibility and web development. From googling around, I could find a number of web validation and repair tools. Some of these are no cost and I’ve no idea how to judge which are good and which aren’t. Nonetheless, NFB, ACB and AFB, as far as I can tell, have nothing on their web sites giving a basic set of steps for a person to try to do their own remediation. I could envision a tutorial for individuals, small businesses, mid-sized and even enormous sites. It should include links to the standards and guidelines but not be filled with the sort of jargon that goes into such things. I guess, I’m admitting that you were more right than I thought yesterday. During our conversation, I added the constructive engagement to my set of steps for approaching web developers; today, I’ve added your awareness component.”

My friend went on to point out that if there was a simple English set of steps for web site remediation, something that anyone who uses WordPress could follow, more of the non-technical site owners would do it. He also wrote:

“I also think that our web consultant friends do the community a disservice. I don’t begrudge them their big hourly rates but I think they intentionally try to maintain a level of mystery surrounding the topic so they can maintain their guru status. None of them has a page on their sites saying, most people cannot afford our services and we work for wealthy businesses with very complicated needs. You, however, can probably do your own site remediation if you follow these simple steps: 1. For WordPress, 2. For Drupal, 3. For Joomla, etc. I think this is the dirty little secret of web accessibility, it’s relatively easy. Obviously, for it to be easy to the gal on the street, though, it needs easy documentation, something that my searches did not find.”

Finally, my friend wrote: “So, yes, awareness is probably even more important than legislation and should certainly come sooner in the process than filing complaints or taking direct legal action through a suit,” he concluded.

Great. One down, six billion to go.

The irony here is that my use of constructive engagement with regard to this conversation netted a fought-for result. This proved to be the case on Twitter as well, when an exchange began with, “hammer all the way,” and finally concluded, 18 direct messages later, with “constructive engagement is the only way.” Maybe mine is a velvet hammer.

To see a replay of the Senate hearing, go here:
http://tinyurl.com/aqf5dm4

For your own edification, here is a link to a timeline of disability rights by Wikipedia:

http://en.wikipedia.org/wiki/Timeline_of_disability_rights_in_the_United_States

LL