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])

Rule 573

The Americans with Disabilities Act is not a law. It is five laws (two of which you will likely NEVER use) that are kept in one three-ring-binder.

Never presume that understanding Title I gives you any insight into Title II or knowing the first two means you get Title III.

Section 501 (raise your hand if you knew that was a thing!), Section 504 and IDE(E)A are in separate binders, but heavily cross-referenced.

Rule 532

Dear Concert Security,

If you need something, maybe talk to the interpreter who is NOT actively interpreting.

Just a thought.

Love,

Logic & Courtesy

Rule 528

Legal interpreting is not as scary as you think; Medical interpreting is scarier than you think; and, Educational interpreting is more challenging than you think.

Note from Uncle Dale: Uncle Dale at NAD

Hi. So my friends what are your plans this summer?

I know, I know, you are looking out your window and thinking, “summer? You’re kidding right??” With the Nor’easter (what is it now?? Round Four?) right outside your door, summer feels a thousand years away. But you’ve got to have plans for the sun or you’ll never survive the snow!

I have been asked to give several workshops this summer and I will make some announcements of times and dates as the details are finalized.

My last Zaboosh workshop was Saturday March 17, 2018 (I will wear green).

But, as the title of this Note says, I am thrilled to announce that I will be presenting this summer at the NAD Biennial Convention in Hartford Connecticut July 3-7, 2018.

I am so excited to be going back east to my heart’s home!

In 1994 I spent a fantastic summer at the Mill in Chester Connecticut attending the summer program for The National Theatre of the Deaf. This was a life changing experience learning at the feet of Bernard Bragg, Adrian Blue, Camille Jeter, Shanny Mow, Andy Vasnick, Sandi Inches and so many other giants. I built friendships that summer that I treasure (those of you who wonder if Anthony Natale could really be as kind and supportive as he seems, the answer is yes. He is a beautiful person, inside and out). I plan to sneak away for a couple of hours and walk the streets of Chester once again.

NAD is a combined conference with RID Region I, so I hope to see my Boston family turn out! I miss you all daily! I mean it when I say family.

My workshop will be a “tour” of federal laws set up as if each were a different country. We will learn the “history and culture” of each law. It’s a blast! I hope to see you there!

See the Sights: A Tour of Federal Laws

Dale H Boam Esq.

Civil Rights & Legal Advocacy

Workshop Abstract:

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 persons who are Deaf and Interpreters to understand the differences and similarities between, and even within, these laws. Its 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 though 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. Its equally fun and beneficial for the interpreter and community member.

Workshop Partner:

General

Workshop Presenters:

Dale H Boam

Dale is a Tenured Associate Professor of Deaf Studies at Utah Valley University and an attorney advocating for the rights of persons who are Deaf. He consults and presents nationally on both interpreting and legal topics, including: The Physiology of Interpreting; The Physics of Processing Time; Cohesion and Orphans in Interpretation; Legal Rights of Individuals with Disabilities: Law, Deafness and Personhood; Vote: The Power is in Your Hands; Making the ADA Effective for the Deaf Community; and Serving the Client Who is Deaf. Dale recently received a favorable decision from the 9th Circuit Court making Section 504 more accessible to persons who are Deaf (See Ervine v. Desert View Regional Medical Center). Dale has advised NAD, the Organizing Board of the 2007 Deaflympic Games and the Organizing Board for Deaf Studies, Today!

Note from Uncle Dale: “Nothing” May Actually Be Better

Hello one and all!  Uncle Dale (you know me, I’m the one typing on my phone).  This is actually my second swing at this Note.  I posted it once before but I was not happy with it. It was easy to misunderstand the point and it may cause some emotional response.  I am expecting it and ready for your comments.  I ask only that you think about the overall point before hammering me on any single point. Also remember I have a hard time shutting the attorney out completely when I write, and I have invited him in on this Note.

Today is alllll about the phrase “well, it’s better than nothing” specifically when a hearing person uses it to excuse bringing in an unqualified interpreter.

This is a hot issue right now, and I have heard the phrase from hearing people, who have no idea, after they finish chuckling about those videos from the Florida news conferences. They laugh and then get very pensive and say, “still, I guess it’s better than nothing.”

Or

When I have to deal with my brother’s friend who has a small business and spouts off things like:

“Hearing Impaired people are just ungrateful! They keep complaining that they don’t want to write back and forth during appointments, so I brought my niece to help me out with them. I go to all that trouble even though I think we’re getting along an fine, because they keep complaining they want an interpreter (as often as not he still says ‘translator’), so I get them an interpreter and now they complain about THAT TOO!”

You realize you didn’t get an interpreter right?  You got your 16-year-old niece who has had like three community ed “Signing SEE is Fun” classes.  

“She did a real nice job.”

You are evaluating how well she did based on… the Deaf Client complaining?

“Well I think she did fine. It looks really pretty when she does the Sign Language and her mother says her teacher says she could be an interpreter. ”

Could be, not is.

“Anyway,  It’s better than nothing.”

Using an unqualified Sign Language interpreter is actually notbetter than nothing.” If you don’t have a qualified (certified) interpreter then, for several reasons “nothing” is almost always better!

I felt the collective shudder of at least some within the Deaf community.  But, please let me state my case.

When the Client has nothing hearing people may tend to make some little bit of effort or take the smallest bit of responsibility for the communication! (well, hearing people with good intentions may anyway). With nothing hearing people at least feel compelled to invest little time and energy into making sure communication happens, even as a reflex. It’s mostly exaggerated lip movements and yelling but sometimes they will even slow down and start to think. It’s not perfect, but it is educational.

More important however is when there is nothing hearing people may give a little “communication benefit of the doubt” to the person who is Deaf. When there is nothing it’s easier to convince the hearing person that despite all the fish mouth, yelling and modern dance-maybe, just maybe-the whole message might not have been effectively communicated, and maybe, just maybe, they should not expect that the person who is Deaf actually understood everything by magic or divine intervention. The hearing person might not get to all the way to that epiphany on their own, but is more apt to understand that communication was “spotty at best,” when it’s pointed out that there was nothing to make it effective.

But, if you put any person in the room, pick them off the street, and then have that person waive their hands around, you will never convince the hearing person that hand waiving is not a magic incantation that restores hearing.

“They wanted Signs so I brought in a person who Signs; my niece.  They said it would make communication easier, but now they are trying to tell me they didn’t pay on the Amortization schedule because they didn’t understand it!  What an excuse! I explained it very clearly”

So you had your niece Sign this explanation for them?

“Yep and she told me they didn’t even ask a question.”

Ok. We will get to that in a second. Does your niece know what amortization is?  

“She doesn’t need to know, she just had to Sign the word.”

Does your niece know what the Sign for amortization is?

“What kind of silly question is that?  I think she just spelled it out.”

If she spelled it out what would that do for the people who are Deaf except show them how to spell a-m-o-r-t-i-z-a-t-i-o-n and assume that it is a word and that your niece spelled it right. Was she teaching spelling or vocabulary?

“Well I am sure they would have asked if they had questions. Why didn’t they ask some questions?”

You said that twice now. Do you know for a fact they didn’t ask a question?  

“They waived their hands a lot to each other. I’m sure my niece would have told me.”

Only if they understood enough to know the question they should ask or if she understood them enough to understand their question, you mean.

“Why wouldn’t she? She does that Signing for the ‘death’ real well!  No they are just trying to get out of the deal!  They wanted Sign Language and I gave them Sign Language they can’t pretend now that it wasn’t the RIGHT Sign Language. Even I know that Sign Language is universal or maybe not the whole universe but international…”

And so on and so on.

Put a warm body in the chair, no matter how limited their skills, and wham! for all the hearing people realize it’s like the message was proclaimed through a burning bush.

Put a warm body in the chair and I have seen judges and juries begin the trial with the assumption that communication was effective, and then hold on to that assumption despite all evidence to the contrary.  “Nothing” is sometimes better as it shows to juries and judges that there is no POSSIBLE way communication could have happened at all, let alone been effective.

I read a police report once where the officer interviewed the drunk Deaf suspect using the equally drunk hard-of-hearing guy who happened to be sitting in the back seat.  On the stand when confronted with the Defendant’s denial that he understood what the officer said, the officer testified under oath “oh no, he understood every word! EVERY WORD!”

How do you know that for sure?

“Because [the other drunk passenger] was waiving his hands around as fast as I was talking!”

Sigh.

Truth be told, if there is not a qualified interpreter I’m not even a huge fan of writing to communicate. Because it often has the same “magical” impact as nonsensical hand waiving.  In fact written communication proves less beneficial than “nothing” all the time, because hearing people (Judges especially for some reason) seem to have a kind of special blindness that impacts their ability to see words written by persons who are Deaf as anything less than pure Shakespearean poetry.

I’m gonna get all lawyery on you for a minute now.

In a case called Patrice v Murphy for example the Judge found that the Deaf Plaintiff’s position-that an interpreter was necessary for effective communication with the police-was a very narrow view of the capabilities of people who are Deaf (Notice the hearing centric assumption that use of ASL or of an interpreter was somehow a lesser capability-let me point out that you can’t do it, your honor).

In the decision the Judge decided an interpreter was not needed and (I swear this is true) potentially dangerous for the police officers. The Judge stated:

Where plaintiff is able to communicate with the officers using printed forms and her written statements, with no apparent difficulty or loss of meaning (as was the case here), no additional accommodation is required. 

Read that part again for me would you? Got it?  The Judge based his assessment of “no apparent difficulty” on this writing sample taken directly from the police report the Plaintiff filled out. Ready? It said:

Jim thought I use the knife to kill it was misunderstand as I use it to hold the page of cooking book. Jim put knife away I was enough made to hit him He hits me back continue fight. He took my hands squeeze bend fingers all way His leg hold my head and hit my back. My daughter Katherine was the witness. All this morning was hard Jim used bad verbal languages on my both daughters that influence my feelings mixed to carry until now I blow my temper. no weapon. just use my first.

She got arrested and based on this writing sample the Judge determined that she had no difficulty communicating in writing.

Oh, they also gave her a card with the Miranda Rights on it and the officers said they were not sure if she understood it-but the Judge quieted their troubled hearts and found their concerns lacked relevance because she acknowledged that she understood by signing her name at each place the officer pointed.  (Total proof she understood don’t ya think? NOT).

I look at this case and have to wonder, if the Judge can read what she wrote and still say “oh that’s fine!!!” wouldn’t she have been better off with nothing!

I had a case where the police improperly searched the home of a Deaf person (I can’t even say Deaf suspect, because they could not connect him in any way to the matter–quick run down, for reasons obnoxious the police jumped to the conclusion that a murder victim they found was Deaf… she was not… and decided to knock on the door of every person in the area named in a police report along with the words Deaf, Hearing-Impaired or Hard of Hearing. People tend to kill within their own cultural group so lets at least recognize that the police acknowledged Deaf as a culture.)  The Deaf person said he did not understand what the police wanted.  The police said he was being belligerent (which is odd because “belligerent” is not an exigent circumstance allowing for a search without a warrant.)

The police hung their case on a series of written notes between themselves and my Client.  The notes consisted mainly of the police writing questions and my Client either responding “I don’t understand,” or with a non-sequitur.  The Judge (who I respect highly) read the notes and saw, as he said, “question, answer, question, answer, it looks like a conversation.”

I said but the answers don’t match the questions!

The Judge said, “I’m not seeing that.”

In frustration I said that even the police report stated that communication was not effective!

Well.  The Attorney for the police department DID NOT LIKE THAT! He denied that the police report said anything like that.

So, I had him read the police report into the record (ok all you attorneys I know the pitfalls… I was ready for them). The attorney for the police department read, “communication was difficult,” and “communication was very difficult,” and “we struggled to communicate,” and at least 5 other similar references.  I folded my arms in a SEEEEEEEE THERE IT IS, kind of way.

The Attorney for the police department said “difficult and not effective are not the same thing.”

WHAT?

The Judge said, “do you have any case law that says I should interpret ‘very difficult’ to mean ‘not effective?'”

No, I said. But I can give you legal support as to why you should.

The Judge said “Go ahead.”

Ok. In order to gain entrance to this Courthouse a person has to walk up three sets of stairs, five stone steps parallel to the street, a landing, five stone steps perpendicular to the street, a landing, and five more parallel to the street up to the door. Am I right?

The Judge pondered that for a moment and then said “If you want the Court to take judicial notice of that it will.”

Please do, I replied. Now, on the North side of the building there is a long ramp that leads from the street to the old prisoner’s transport door. What is the purpose of that ramp?

The Judge replied, “that is for ADA compliance, because with the steps it would not be possible for persons using wheelchairs to access the building.”

Your Honor, of course it would be possible, it would just be very difficult. A person could flop out of the wheelchair, strap it on their back, and crawl arm over arm up the three sets of steps and right through the door, but! it would be a struggle and very difficult!

Moreover, we would never subject a person in a wheelchair to that kind of humiliation.  It would be undignified and embarrassing.  But the police department is arguing that it is fine to subject my Client to the indignity and humiliation of a communication process that it labels very difficult for him because… well, I’m not sure why. They do however appear to think people using wheelchairs are more deserving of dignity and respect than a person who is Deaf even though the same law is being applied.

The Judge leaned back and smiled (ruefully) and said “I feel a bit like you set me up.”

You asked the question your Honor.

So, there it was in his lap.  He thought for a minute and said, “I am not sure I want to make new law today.”

And that was it.  I also was not interested in making new law, but I was interested in enforcing what I think the law already says. So I filed an appeal. The case settled before we had a real answer.

With “nothing” there would have been no question.  With no written conversation everyone would know effective communication is not happening.

But, as I said, if someone is sitting in the chair, waiving their hands, people assume some magic spell of understanding-or when almost anything is written on a paper the words become some kind of mystical incantation that calls forth the old gods of effective communication.  When anyone tries to point out that neither is true and that effective communication is not happening, then hearing people always seem to blame the person who is Deaf for not understanding.

The Florida unqualified interpreter videos are not funny. They are a tragic symptom of a systemic problem.

One last stop before we’re done.  There will be more than a few of you, Deaf and hearing, who will hate this! But, it has to be said.  Its not just the unqualified interpreters that are the problem.  The ADA and 504 are not magic talismans that create access by their very existence in this world. They must be enforced and if they are not then they continue to be useless.

What does that mean? It means that if a doctor or a lawyer or an accountant or a training course says “we wont provide an interpreter but you can bring your own,” bringing your own just makes the problem worse. It means if a person who is Deaf calls a qualified/certified interpreter and says “I asked my doctor for an interpreter and he says I have to bring my own,” or an interpreter calls me and says “can the ADA make that lawyer pay me because I HAVE TO go with my friend to her meeting tomorrow or she’ll have no interpreter.  I know I should get paid but I can’t leave my friend with nothing!

Ready?

Yes you can. And (gulp) yes you should!

Because NOTHING is the only way to fix this! NOTHING is the strongest basis for a lawsuit that may bring about real change! If you, as a qualified interpreter show up at the appointment then 1) there is no legal reason the Lawyer or Doctor or Accountant needs to pay you; not under the ADA anyway (There may be an argument under quantum meruit but that is a way different topic); and, 2) if you show up it is harder to make the case in court that the Lawyer or Doctor or whatever failed to afford effective communication, because if you were there, then there was effective communication. communication actually happened, it was not denied.  The case all but goes away because the person who is Deaf was not denied access (yes there are actually some other legal arguments under the ADA… but they are so much more technical to argue than “no interpreter = no effective communication.”)

In short, if you show up you are letting the Doctor or Lawyer or Other get away with it-you are a Band-Aid on a gushing artery.

It sucks.  I know. We all thought the ADA would be the end of the problem when it was really just the start of the journey.  Almost 30 years on this road and we are still fighting the same fights. And I know it must be exhausting for the Deaf community, the same old oppressive bull. But it will never end unless you are willing to fight.  From a legal point of view to start to fix the problem, nothing is once again better.  I would so love to get put out of the business of suing professionals for this oppressive petty crap, but I don’t see that happening soon.

Members of the Deaf community, forgive me. I know I just told interpreters not to go with you to that VERY IMPORTANT APPOINTMENT.  I’m sorry.  But, the Doctor or Lawyer you are meeting with is like a bad boyfriend, they are not going to commit to do right by you )by paying for interpreters) as long as they can get it for free.

Before anyone accuses me I DID NOT SAY DON’T VOLUNTEER!  There are many good and worthy causes for which interpreters should provide services for free.  But if the interpreter is the ONLY volunteer in the room it is just another form of oppression perpetrated on the Deaf community.

I hate to tell you all this.  I wish the world was a better place.  I wish the ADA was easy to enforce, but its not.  The ADA is, well, it’s really tough to enforce. But its really important that we actively engage, hearing and Deaf, in enforcement! The only way it will be enforceable tomorrow is if the violation today is so obvious that a hearing judge or a bunch of hearing people on the jury can understand it or, lets be honest, can’t figure out how not to enforce it; and they will search for reasons not to enforce it! It sucks. But… it’s better than nothing?

Ok. I know it’s Uncle Dale’s Rules for Interpreters, and I spouted a bunch of lawyer stuff today but… it’s the water we all swim in.   We need to collectively (both interpreter and Deaf consumer) think more about exactly how much we know about the ADA and 504 and IDEA when we consider how deeply and daily they impact our lives.

I get shocked looks every now and then when I ask a question like, “how does the ADA define a ‘qualified’ interpreter?” And someone says CERTITIFED! and I answer NOPE. I wish. But nope.

I can’t dig into that any more today. Today I am going to bed and fix alll the typos in this thumb typed essay in the morning.  I finally got it typed out though and maybe that’s better than… um, maybe that’s good enough.