Berkeley Speaks Editorial Comment:
Three members of the Berkeley Commission on Disability have filed suit against the City for violations of the Americans with Disabilities Act (ADA), which requires reasonable accommodations for persons with disabilities. The issue is Berkeley’s insistence that members of most commissions either attend meetings in public, or use their home as a publicly listed remote venue where anyone can attend for virtual participation in the meeting.
Many in Berkeley are proud of the city’s leading role in promoting disability rights and access as a social justice issue. We like to think we are all about taking down barriers, physical and bureaucratic, so disabled people can fully take part in community life. But the three commissioners describe in the press release below a number of the ways that the City’s interpretation of the “open meetings act” invents new kinds of barriers for the disabled.
Precita Eyes Muralists, Directed by Susan Cervantes
The expectation that people who are immunocompromised should come to public indoor meetings, when the Covid-19 epidemic is still killing people, is problematic for obvious reasons. The offered alternative, that disabled people agree to allow their home address to be publicized, and to let strangers come into their home—perhaps into their bedroom—is startling.
While it is true that remote and hybrid meetings were pioneered during the pandemic, and that Covid has retreated from the heights of its ferocity, it’s also true that it demonstrated how much these technologies can serve to increase public participation in government. We still believe in public participation, don’t we? Another good question would be: do we only believe in expanding democracy when it is convenient? If that’s the case, how are we any better than those red-staters we scorn, whose goal is voter suppression?
It is truly ironic to use the open meeting law, known as the Brown Act, to effectively bar members of a legislative body (a city commission) from full participation in decision-making. The ADA was created to remove barriers to increased participation in community life, but also to remove stigmas from our perception of disabled persons. The City government is doing the opposite.
We agree with plaintiff Rena Fischer: Hey Berkeley, where’s the ramp?
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Disability Rights Advocates press release
The City of Berkeley fails to provide disability accommodations for Commission on Disability members to participate in the Commission
August 24, 2023—Berkeley, CA—Three disabled members of the Berkeley Commission on Disability—Rena Fischer, Kathi Pugh, and Helen Walsh—have filed a lawsuit against the City of Berkeley for violating the Americans with Disabilities Act by failing to allow them to attend Commission meetings remotely as an accommodation unless they subject themselves to burdensome, dangerous, and invasive requirements. Read the complaint here.
Rather than grant federally required disability accommodations for members who require remote attendance, the City forces disabled Commission members to have their home addresses posted publicly as teleconference locations, and open up their homes to any member of the public who wishes to enter and attend the meeting from there, ostensibly to comply with state law, despite the dangers to them and aggravations to their health that can result from doing so.
Plaintiff Rena Fischer said, “When I needed to participate remotely—from bed—in a Commission on Disability meeting, I was shocked that the City of Berkeley required me to open my one-bedroom apartment to the public, even while I can’t independently get out of bed. The policy is unsafe and it puts me, and other disabled Commissioners, at risk. While the ADA secures our right to fully participate in City programs, Berkeley, a birthplace of the Disability Rights Movement, is putting obstacles in the way of disabled people. Hey Berkeley, where’s the ramp?”
In addition to violating federal law, Defendant’s requirements are dangerous. Plaintiff Walsh is immunocompromised: requiring her to allow the public into her home places her in the exact danger she seeks to avoid, exposing her to unpredictable and unknown additional risk of infection. Both Plaintiffs Fischer and Pugh at times must attend Commission meetings remotely from bed—requiring them to allow strangers into their homes, and potentially even bedrooms, during evening Commission meetings is both dangerous and intrusive and invades their privacy in a manner not required of non-disabled people. This places them in an unreasonably vulnerable position simply to serve their community and participate in the Commission. Opening Commission members’ homes to the public may be dangerous for the public as well, as private homes may not be safe for or accessible to members of the public with disabilities in the same way a public City meeting location is.
Plaintiff Kathi Pugh said, “It’s a sad irony that the City of Berkeley, where the movement for full participation and independence started, is placing roadblocks in the path of people with disabilities. The City’s ludicrous and untenable position is denying us the right to full participation in City government. The City of Berkeley was asked repeatedly to change their position. Unfortunately, we are forced to sue to secure our rights.”
Plaintiff Helen Walsh said, “For all the time I have put in assisting the City of Berkeley with improvement of digital accessibility I have been very disappointed with how I have been treated. I saw early on how digital technology such as hybrid meetings could and would create more access. Implementing accessibility allows for more public participation and welcomes those with disabilities to serve the City of Berkeley as a commissioner.”
Jinny Kim, Managing Attorney at Disability Rights Advocates, said, “It is ironic that the City of Berkeley’s failure to modify their policies is excluding disabled members from the Commission on Disability. The ADA requires that the City of Berkeley make reasonable modifications to policies, practices, or procedures to avoid discrimination based on disability. Many other City meetings are hybrid or were previously remote—we already know that remote participation by a commission member is compatible with their service on the commission.”
Plaintiffs are represented by Disability Rights Advocates, a national legal nonprofit that protects and advances the civil rights of people with disabilities.
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Disability Rights Advocates is a national nonprofit disability rights legal center. DRA’s mission is to advance the rights, inclusion, and equity of people with disabilities nationwide through high-impact litigation, education, and advocacy. DRA represents people with all types of disabilities in complex, system-changing class action cases. For more information, visit https://dralegal.org/.
Contacts
Jinny Kim, Disability Rights Advocates:
510-519-9790