(EXCERPT from DAIS Newsletter, October 1999)

** THE SPIRIT OR THE LETTER OF THE LAW??? **

There was a time when I would talk about the differences between the Individuals with Disabilities Education Act (IDEA) and Section 504/ADA, and celebrate the idea that 504/ADA provided better protection and a better spur to action than did IDEA. After all, IDEA contained so many specifics that it was possible to read the law narrowly, do exactly what it said -- but no more! -- and be in compliance with the letter of the law. At the same time, the school district might fall far short of meeting the spirit of a law that offered a hope of integration and inclusion for a population of students previously left to languish in the system. IDEA could force the schools to do something, but it couldn't make them care. By contrast, our laws at the postsecondary level were NOT very specific. They simply stated "you may not discriminate on the basis of disability." It was left to the interpretation of reasonable individuals of good faith to determine what must be done in order to avoid discriminatory treatment. You could not fulfill the letter of the law without fulfilling the spirit of the law.

I don't get to promote this idea much any more. I am not sure it is still true. Over the years, the courts, and the Office for Civil Rights, and our shared experience have brought us to an understanding of what Section 504/ADA entail in the postsecondary setting. In gaining knowledge of what we should do, we seem to have lost contact with why we should do it. Consider the following:

** I recently had a protracted debate with high ranking administrators on a campus that had installed a new pedestrian walkway in a section that had always been used for parking. In so doing, they had eliminated the only close parking spot available to a member of the senior staff with a severe mobility impairment. This gentleman would now have to walk a distance of 40-50 yards to enter the building his office was in, instead of being able to park outside the door. In inclement weather, it will be almost impossible for the individual to safely negotiate the distance involved. I pointed out a place at the back of the building, connected to the loading dock, which is currently being used as a bike rack and suggested that, instead, it be given over to this staff member as a parking spot. "But we called in an ADA consultant and he said it was legal to move the parking out as long as we moved it out for everyone." It is legal. But it isn't right.

** I got an urgent call from someone who wanted to know whether the institution was legally required to provide safe passage for students with disabilities (students who are blind and students in wheelchairs) crossing a very busy and dangerous intersection in order to access temporary facilities (in use during construction on campus) on the far side of the road. Nondisabled students are apprehensive about crossing this particular roadway because of the volume and speed of oncoming traffic and students with disabilities were feeling very uncomfortable with the situation. But the powers-that-be suggested that since other students were required to be fully responsible for their own safety in getting to the other side of the street, students with disabilities should not be given any additional assistance. That's equal treatment, right? Maybe -- but it is foolish and potentially negligent as well!

** Academic examples abound as well. "Are we required to provide realtime captioning for this student if we can prove she does understand some sign language and the interpreters are cheaper?" "Are we required to provide training for students on the use of the adaptive computer equipment? We don't provide special training for the use of the non-adaptive equipment." "Do we HAVE to give this LD student extended time if his documentation just says that extended time might be appropriate?"

In the July edition of the DAIS newsletter I wrote:

"... and every time the conversation about a request for accommodation begins with, 'Are we obligated to provide...' or 'Do we have to...' or 'Where does it say that we must...', we have already taken a step back. Can we replace those questions with, 'Is it reasonable to ask...' or 'Is it appropriate to provide' or 'Should we choose to...', instead?"

These comments were made in the context of looking beyond the civil rights nature of the laws to considering inclusion as a strategy that is healthy for our society as a whole. But this same lament seems appropriate when bemoaning our lost sense of purpose. We seem to be moving toward a focus on rules instead of reasons, logistics instead of logical decision-making.

I understand the need for rules and policies and practices that govern our actions. I am one of the first to remind service providers that they work for the institution, not the students, and that their only obligation to students is to see that the institution does right by them. I am not suggesting that students with disabilities be given anything they want, or think they need, because it MIGHT help them to be successful or more successful. That, too, would be a subversion of the original intent. But I am weary of hearing people defend their decisions to act (or to refuse to act) solely on the basis of whether the decision will stand up in court.

When did we stop thinking about the accommodation process as a means of providing opportunity and start considering it only as a necessary responsibility? Someone recently suggested to me that we live in a society that has come to equate "legal compliance" with "morally and ethically right." They aren't the same. They never were. Section 504 and the ADA were never meant to define what we should do with and for people with disabilities in order to include them -- the laws were drawn to remind us what we could NOT do because it might exclude them!

My grandmother used to say that "Morals are a matter of time and geography." In this time, and in this place, is it possible to recapture our enthusiasm for enhancing possibilities instead of being constrained by our focus on minimal compliance? I hope so.

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