Notice From Uncle Dale: I Need Your Wit and Wisdom… and Thoughts and Prayers.

In the epic Stephen King “Gunslinger” series there is a concept called Ka. It is the guidance force that moves us toward our purpose in life. Fate? Destiny? Maybe both, on steroids.

There is a saying in the universe of the Gunslinger, “Ka is a wheel.” It always rolls back around to a new beginning.

I started this blog in March of 2017 as I was confined to my bed following abdominal surgery. It was kind of a rehabilitation exercise and a way to keep my sanity when it hurt to move my body.

On Thursday, this coming week I go under the knife again, this time for my sinuses. The doctor has been honest with me in that I can expect the first couple of days to be a three ring circus of pain. But my life should be greatly improved shortly thereafter.

For a few days I will look like I talked about fight club.

Ka is a wheel.

Just to give you an idea, this is a normal sinus:

And this is mine:

Not good to say the least!

The whole point of this post is to let you all know The Rules may go silent for a couple of days.

Don’t think I’ve abandoned you.

Keep me in your thoughts.

And send me suggestions for Rules because, to be honest I’m keeping a brave face (no pun intended) but I’m nervous. And when the surgery is done I’m not sure how witty or clever I will be feeling. So I’m asking to borrow some of your wit and wisdom.

We all know you have it! You’ve been pondering Rules of your own.

Someone may even get a tee-shirt out of it!

Thanks Everyone!

UD

Uncle Dale’s “You Probably Should Know”: Borderline.

There was a question posed on social media today by a woman who is Deaf. The very short version of the story involved being stopped by Customs and Border Patrol as they returned from Canada. During the encounter they requested that the Agent communicate in writing.

The Agent refused to do so.

The Agent gave verbal commands to the Deaf couple that they did not understand and as the encounter progressed the Agent became more agitated and the Deaf couple more fearful. The power differential is obvious and the turmoil nationally gave them reason to be anxious.

When this woman who is Deaf posted her story she relied heavily on references to Title II of the ADA. I suggested she may wish to frame this under Section 504 as well.

She asked me to explain why I suggested Section 504, as she understood it to be an education law.

https://uncledalesrulesforinterpreters.wordpress.com/2017/03/10/rule-11/

I find that Rule 11 applies equally to the Deaf Community as well. This past week I presented a workshop at NAD/RID Region I that covers this very topic (just a side note. I gave an “hour and a half” version of a day long workshop where I physically walk attendees through federal laws like each is its own foreign country, with its own customs and language.

I will post a description of the workshop at the end.

I have submitted this workshop to several regional RID conferences but sadly no takers. NAD attendees and State Associations who have asked me to present it rave about it; its the clearest way to understand how the ADA, Section 504, IDEA and the ACA are similar and how each is markedly DIFFERENT. Anyway…)

I have been asked to post my answer to the question “why 504” on the Rules Blog so more people can see it.

Here is my answer:

“I can’t give you legal advice because I don’t have half enough facts. I am just giving a general idea of the differences and similarities between federal laws so you understand why you may want to look at Section 504 when framing the issue with these facts.

Customs/Border Patrol/ICE/Homeland Security are Federal Executive agencies which is one of the two entities 504 was designed to obligate (the other being any entity or business that accepts federal funds) so it seems 504 would be uniquely applicable.

I would still suggest including Title II in any discussion of a possible complaint you have with an attorney. Title II is good because it requires the agency to give “primary consideration” to the request made by the Deaf person (in this case writing). Understand that because Title II requires “primary consideration” when Section 504 overlaps with Title II, then Section 504 cannot be interpreted to provide less protection than Title II-so it would also require “Primary Consideration.”

However, Title II may have complications in enforcement. The more remote possible issue comes from a case called Tennessee v. Lane (and another case out of Georgia) that seem to indicate that there may be a requirement that you prove a Constitutional violation in order to enforce Title II. As this argument stems from an 11th Amendment conflict it may only be a problem if the State Police, not the Feds as it was according to the facts you laid out, were involved. But with the Federal Courts, including the Supreme Court, almost daily becoming more conservative and less responsive to the rights of individuals it is easy to imagine a Federal Agency making an argument for a more expansive application of the requirement or at least favoring the need for a Constitutional violation; from the brief description you gave I don’t see a Constitutional violation in your case.

Again, the courts have never said you MUST include a Constitutional violation, they have just said that they supported decisions in favor of the person with the disability “because” there was a Constitutional violation. One way or another it’s a possible extra fight you would not need.

The protections of Section 504 are equal in almost every respect to Title II in that Section 504 cannot be interpreted to provide less protection than Title II. In places where Section 504 is not equal to Title II there is an argument that it is better.

504 applies to all Executive Branch agencies and any entity accepting federal funds. As it must be interpreted in equity with (and sometimes better than) the ADA it covers the same ground as Title II but does not have the same possibility of needing to show a Constitutional violation (again the requirement for a Constitutional violation, if it exists at all, likely only applies to actions against States… but better safe than sorry as it were).

The second problem for a Title II action is one of wording and interpretation. Title II says that persons with disabilities are to be given equal access to the “programs, benefits and services” offered by government agencies.

Is the border patrol a benefit to you?

Is being searched a program?

Was searching you a service?

There is case law that goes both ways.

But 504 says:

(a) No otherwise qualified individual with a disability in the United States, as defined in section 705(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service (emphasis added).

Applying the facts as you stated them you have a strong case that you were “subjected to discrimination” under the “activity” of Border Patrol conducting a search.

Again. This is not legal advice, just an observation. Talk to a lawyer in your area.

Hope that helps.

(My recent NAD workshop:

Federal Laws such as the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (504) and the Individuals with Disabilities Education Act are complex and confusing. It is vital for both deaf people and interpreters to understand the differences and similarities between, and even within, these laws. It is also vital to know the authorities through which each was passed in order to know which law applies to any specific situation, how a complaint is filed, what is and is not evidence of a violation and what remedies may be available if a violation is proven. There are so many differences it can be hard to keep it all straight! This workshop is presented as a “tour” of the laws as if each was its own country. “Uncle Dale Tours” lays each out like a map of a foreign land and the participants walk through each, see the sights and landmarks unique to each as well as their shared heritage. Each are issued a passport with certain knowledge points needed to earn a “visa” to the next law. It is equally fun and beneficial for the interpreter and community member. [0.125 PS])

Uncle Dale’s “You Probably Should Know”: A Lie Is A Lie, But Sometimes It’s A Violation

I have been jumping back and forth between this being a Note or a You Probably Should Know. The later are usually explanations of law or policy which is not exactly what this is, but I’m staying with it.

A interpreter sent me a private message about Rule 439 today.

Just as a refresher:

https://uncledalesrulesforinterpreters.wordpress.com/2017/12/19/rule-439/

With her permission I will tell you that she asked me if this Rule was excusing audism.

I understand her asking this in light of the recent discussions regarding interpreters being paid as expert witnesses to offer expert opinions against the interests of Deaf persons (an issue that, it turns out, seems to go right to the top), it is a natural concern.

I asked her if she was thinking of a specific example where the interpreter faced with a lie during a police interview might cross into audism.

She asked if I would first give an example of where it was acceptable for the police to lie and an interpreter to knowingly interpret the lie according to this Rule.

A police officer tells the Deaf suspect that they have his accomplice in the next room and he is ready to confess.

Whomever confesses first, the officer says, will get the better deal.

This is a lie oft used by police when interviewing a suspect. It is used both when there is no suspect in the other room and when there is. If there are accomplices in separate rooms the lie is told to both of them in order to encourage them to be forthcoming.

This is not a problem.

This is a legitimate interrogation technique employed by police forces world wide and throughout history.

It is a two part lie, the second part being that the police can not control the kind of “deal” the suspect gets. That is a decision made above the detective pay grade.

I asked if that helped?

The interpreter said, “ok, but what if the detective tells the Deaf suspect that he will only keep the interpreter there for a short time more and so if he wants to tell his story, and have a discussion in a ‘civilized’ manner, now was the time to do it. But, if he just wanted to jerk [the police] around the police department was not going to pay for an interpreter while he did it and he could just figure out how to communicate on his own.”

I did not ask if this was or was not a hypothetical.

And um, THAT is a completely different issue than “lying” to a suspect.

This is not so much a lie (because the officer may very well have meant it when he said it) as it is a threat to violate the Deaf suspect’s civil rights.

In the life of an interpreter we sometimes are thrust into situations where we feel trouble is unavoidable.

Ninety percent of the real ethical screw ups we land in happen, in my opinion, because we are to apt to say nothing lest we say too much.

Ten percent are because we speak without thinking.

One of my Rules says that ethical questions are not about right and wrong, those are moral questions. Ethical questions are about more wrong and less wrong. No matter what we choose it will be “wrong,” but we are tasked with finding the path that is the “least wrong.”

In the situation raised by the interpreter who messaged me there is no clear path to the right answer, so I have to go with my own internal compass to guide me on the path that is the least wrong.

I will not be made a party to a civil rights violation.

The police officer in this example may very well be lying; he may have no intention of sending the interpreter away. But what he is doing is telling the Deaf suspect that his right to effective communication is contingent on his confessing to a crime.

It is not.

In this situation, taking every fact I was given at face value, I would take what many interpreters would consider to be the most drastic step possible; I would stop the interview and ask to step out of the room.

Outside I would tell the officer that, while I respect his position, I cannot be made a party to his threatening to violate the civil rights of the suspect, his right to effective communication, as a tool of interrogation. Carry on in any matter he sees fit but do not make me a party to it.

This may seem shocking or uncomfortable to some readers. But remember I did not insert myself into the discussion, the officer tore open my role by making my role a part of his threat.

I would then tell the officer he has a choice, he can rescind the threat, or make good on it and I will leave now. If I leave he can find another interpreter or let the possible civil rights violation stand in the record but, if asked, I will not hesitate to testify as to why I left.

Again. I don’t expect everyone to agree with me. I just said, taking all the facts as they were stated at face value, that is what I would do.

I can back up my decision using the CPC (see: 3.8, 4.4, 6.2-6.3 and 6.6) but I measure ethical decisions using something my wife once said:

A woman can wear ugly shoes, as long as she knows they are ugly.

This situation (again I never asked if it was hypothetical) and its repercussions are ugly.

What I stated I would do is ugly.

But just because something is ugly does not mean it’s not the right choice.

I know why I would do it, and I can back it up with the CPC.

Despite not everyone agreeing with my choice, I would be prepared to wear those shoes right out in public.

Note from Uncle Dale: Meeting A Hero

You know when you hear the story of an event over and over, or tell the story of that event as an example or to support your point over and over, but you have never actually met any of the players involved.

And then you meet one of them.

Meeting the person you have talked about for what feels like your whole life, having that person is right there in front of you, it’s a weird feeling.

If the reason you tell the story is highly significant to your work or culture or personal interests, but not to people in general, it’s hard to explain to the “uninitiated” why you are so excited to meet a person they may never have heard of. They just don’t get it.

It’s like trying to explain a meme to your grandma.

So, this happened yesterday:

If you do not know who this is, you should. It was a moment where two of my great passions, Deafness and the Law, came together.

This is Amy June Rowley.

I have said her name and told her story easily a thousand times in classrooms and court rooms for the past 20 years.

Now, like I said, if you don’t recognize the name, as an interpreter or a member of the Deaf community, you should. Take a minute and read this.

https://supreme.justia.com/cases/federal/us/458/176/

I’m an advocate. I was born that way. My mother encouraged my journey down that road. This case has always made my blood boil.

I disagree with the decision. I disagree with the reasoning for it.

But, I have always loved the idea of Amy Rowley. She has always occupied the same place in my mind as Linda Brown (who recently passed away).

https://supreme.justia.com/cases/federal/us/347/483/case.html

I can’t think of one without the other. Proud and strong little girls standing up before a system that is ultimately unfair to proud and strong little girls who stand up to the system.

When I thought of Amy Rowley I saw this iconic image in my head:

But now I will see this:

I will see a brilliant and strong woman who, unlike Linda Brown who was vindicated by nine white men, was disappointed by nine hearing justices but did not allow that moment to define who she is.

That is the most important thing I learned from meeting Amy Rowley, Board of Educ. v. Rowley, is part of her history but is not who she is.

That is when Amy Rowley changed in my mind from a character in a story to a real live hero.

Amy June Rowley is a hero not because she and her parents stood up against impossible odds and lost. Amy June Rowley is a hero because the best revenge is a good life and she has done just that!

She is a proud and strong mother who is Deaf of proud and strong children who are Deaf. She is a hero because “Dr. Amy June Rowley is the Coordinator of the American Sign Language Program in Modern Languages and Literatures department. She completed her dissertation in 2014 in Second Language Education in Urban Education from the University of Wisconsin, Milwaukee which focused on American SignLanguage Advanced Studies Programs: Implementation Procedures and Identifying Empowering Practices. She holds a professional level certification inAmerican Sign Language Teachers Association (ASLTA). Her research interests are systemic and hierarchal structure of American Sign Language programs in postsecondary institutions; and relationships between students/interpreters and the Deaf community. She has published articles related to Audism, oppression and special education experiences. Prior to coming to Cal State- East Bay, she was the coordinator of the American Sign Language Program at the University of Wisconsin- Milwaukee for nine years” (from her bio).

Just as the Supreme Court had the chance to clean up its own mess in Plessy v. Ferguson with its decision in Brown v. Board of Education it took a positive step in redeeming itself for Board of ed. v. Rowley with is recent decision in Endrew F. v. Douglas County.

http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/

It’s nowhere near enough, but it’s a start.

Anyway.

If you get a chance to attend a lecture or presentation by Dr. Rowley don’t miss it. Afterward please shake her hand and let her know she is the hero we all need. Not because she stood up to injustice and was knocked down, but because she got up and became the person she is without the permission of history.

That is what a hero does.

Uncle Dale Says Thank You!

Thank you!

It’s important to say it.

I love to celebrate milestones and we hit one yesterday. Over 18,000 of you stopped by for a visit over 50,000 times this year.

When I first started this I hoped it would resonate with the experiences of many Sign Language Interpreters, but I had no idea it would resonate with all kinds of interpreters in over 90 countries.

Thank you all so much for enjoying this journey with me!

UD!

Note from Uncle Dale: Year One

Hello everyone! It’s official. This blog is one year old. Since the first post, made from my bed as I recovered from surgery, about 50,000 of you have dropped by about to say hello over 120,000 times.

It’s always good to see you!

I have met a lot of you in person at workshops, conventions and through webinars. I will be lucky enough to see more of you this summer, both nationally and internationally.

We have had great discussions on what it means to interpret, to be an interpreter. We have laughed and cried together as we learn to communicate across cultures.

You have shared the quirks and joys of what we do and thank you for that!

We have talked about how law impacts the communities we serve, how we see ourselves, how we are defined by the world around us and what is expected of us as interpreters

We have looked at skill development as well as personal development. We have exercised our mental, emotional and actual muscles.

This next year will be bigger and better.

The non-profit I am establishing to support certification will be up and running soon, the book is moving along, and the Goddesses will introduce more swag.

Most important, if we do this right, we will learn more about ourselves!

Thank you for everything you are, everything you do and, as always, thanks for stopping by!

UD

Uncle Dale’s “You Probably Should Know”: Title I of the Americans with Disabilities Act and Authority.

Hi everybody!

Title I of the ADA.  Ok ok! I know I have been down this road once, but I got ahead of myself.   My previous blog is still valid (awesome even) but it will make much more sense after this blog/vlog. So go I would suggest you look at that one again after you finish this.

So, we already talked about Section 504.  Remember, federal executive agencies, any State agency or political subdivision (counties, cities, towns…) or private business that receives federal funds must not discriminate against people with disabilities under Section 504.  If 504 covers that then why do we need the ADA?  Well, because a whole lot of agencies and private businesses don’t accept federal money, so don’t have to follow Section 504; what about them?  The answer is the ADA.

And that brings us back the authority question. According to the 10th Amendment Congress can only pass laws over the things the Constitution gives them specific authority.  The Constitution never mentions Deaf people or people with disabilities, so Congress needed  to find Constitutional authority that would give it the power to pass a law requiring both States and private businesses not to discriminate against people with disabilities.

In the end they had to go with two; The 14th Amendment for anything relating to “state actors” and the Commerce Clause for private businesses.

Commerce Clause

This authority is important, but it is much easier to explain the Commerce Clause when we talk about Title III of the ADA.  So I will just say that the Commerce Clause is the authority Congress used to pass a law that obligates private businesses not to discriminate against people with disabilities. Specifically, under Title I, not to discriminate against people with disabilities in the area of employment.  I will explain how to actually enforce Title I in another vlog.  Stay tuned!

The 14th Amendment 

The 14th Amendment was proposed to dismantle slavery following the Civil War and so it pronounces a list of Rights. Our discussion will focus on Equal Protection, Due Process and Section 5 or the Enforcement Clause of the 14th Amendment, that enables Congress to pass laws enforcing the Rights listed in the 14th Amendment’s other provisions.

I know it sounds like a cop out but it is much easier to explain the principles of Equal Protection and Due Process when we talk about Title II so I will get deeper into it there, but here is what you need to know, the authority of the 14th Amendment is locked in a death battle with the 11th Amendment.

The 11th Amendment

The idea of the 11th Amendment pre-dates the Constitution.  It’s based on an English legal theory called Sovereign Immunity (you can’t sue the king).  What the Supreme Court says is that the 11th Amendment makes States immune from suit (because we are the State and so if you sue the State you are really just suing yourself… whatever). However, you can sue the State if State agrees to be sued (happens more often than you think) or the Constitution gives Congress the authority to “abrogate” (step-around) the 11th Amendment.

(If you read the 11th Amendment you will say, “hey! It doesn’t say that!”  Well, if you on were the Supreme Court your opinion on that topic may matter… but you’re not, so it doesn’t.)

14th vs 11th  

So, the 14th Amendment gives Congress the power to pass laws that obligate the State (meaning Utah, Massachusetts, California…) and its political subdivisions (counties, cities, towns…) to obey civil rights laws, like Title I of the ADA, if (there is always an if), the reason Congress is passing the law is to correct a history of discrimination (it must have already happened… its not to prevent possible future discrimination) and the law Congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination (congruence and proportionality).

A few years ago the University of Alabama argued that it was reasonable (rational) to demote an administrative nurse who had returned to work following treatment for breast cancer because it was rational to want a person without a history of cancer (a healthy person misses fewer days at work) in an administrative position. Alabama never really claimed that their position was not discrimination, it claimed that it was not illegal discrimination because Congress did not have the authority to pass Title I of the ADA because could not show a sufficient history of discrimination against people with disabilities by States to warrant abrogation of the 11th Amendment (psst there are pages and pages of examples going State by State in the Congressional record in alphabetical order of discrimination against people with disabilities). Alabama claimed the lack of evidence meant that the ADA lacked congruence and proportionality. The level of discrimination did not warrant the burden the law imposed on the 11th Amendment.

The Supreme Court agreed.

The Court found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I so far as making the States pay money (like back pay, compensation or punitive damages) if it discriminated against people with disabilities.  Furthermore the Court decided it was rational to want a person without cancer (person without a disability) in the job of administrative nurse.

So Title I, for all real and useful purposes, went away as it applied to State employers.

BUT

Section 504 still applies and it gives very similar protections to Title I.

Wait? Why does 504 still apply? Because the AUTHORITY Congress used to pass it is different.  If a State employer accepts federal money it agrees to being sued for violating Section 504.  See I told you States would actually agree sometimes.  THAT is your first taste of why we need BOTH Section 504 and the ADA.

Private Companies

This of course has no impact on Private Companies; they still have to follow the ADA (if… the have 15 or more employees— discussion for another time).  Title I applies to private companies because Congress used a different authority to pass the part of Title I that obligates them to follow Title I. As I mentioned, it’s called the Commerce Clause and we will get to that when we discuss Title III. We will get a little deeper into 14th Amendment when talking about Title II.

Title II is next…