[Nfbnet-members-list] Good is Simply Not Good Enough

Freeh, Jessica JFreeh at nfb.org
Sat Aug 24 03:28:59 UTC 2013

Good is Simply Not Good Enough

By Anil Lewis

I received a copy of 
memorandum written by Curt Decker, executive 
director of the National Disability Rights 
Network (NDRN).  The memo purported to be a 
rebuttal of 
analysis of Title V, Section 511 of the Workforce 
Investment Act reauthorization, written by 
Professor Samuel R. Bagenstos, who was requested 
by the National Federation of the Blind to give 
his professional opinion of the reauthorization 
language.  Mr. Decker is unjustly critical of 
Professor Bagenstos’s findings.  Contrary to Mr. 
Decker’s assertion, in his report Professor 
Bagenstos does not ignore the positive components 
of the overall bill, nor does he ignore the fact 
that there are over 400,000 individuals with 
disabilities currently employed at wages far 
below the federal minimum.  Moreover, he does not 
ignore what Mr. Decker states is “the largest 
segment of people with disabilities that Section 
511, in conjunction with other provisions of the 
bill, will ultimately help.” (Note Mr. Decker’s 
careful wording that includes “in conjunction 
with other provisions of the bill,” which 
confuses the matter of determining whether 
Section 511 is helpful or harmful on its own 
merit.) Professor Bagenstos properly considered 
the section in context and determined, overall, 
that the language would represent “a stunning step backwards.”

We appreciate NDRN’s continued support of the 
growing effort to repeal the unfair, 
discriminatory, and immoral subminimum-wage 
provision found in Section 14(c) of the Fair 
Labor Standards Act (FLSA).  We continue to point 
out that the subminimum-wage provision is the 
root of the problem and we, along with 
fifty other national and local cross-disability 
organizations, believe that Section 14(c) of the 
FLSA should be repealed.  Moreover, we agree with 
NDRN’s assessment of the other forward-thinking 
provisions in the WIA language. However, we 
choose not to mask the detrimental consequences 
of Section 511 with the numerous other positive 
improvements listed in Mr. Decker’s memorandum.

The mantra of the Decker memorandum is, “I choose 
to not let the perfect be the enemy of the 
good.”  As the executive director of the 
Protection and Advocacy System charged with the 
responsibility to zealously advocate on behalf of 
people with disabilities, it is truly 
disappointing that Mr. Decker is so passionate 
about defending a piece of legislation that he 
concedes is inadequate to address the real 
problem.  Some are afraid that our advocacy 
efforts to strike Section 511 from the bill will 
kill the WIA reauthorization. We cannot afford to 
be afraid.  We are not advocating for the perfect 
versus the good; we are advocating against the 
bad.  We seek only the most basic step toward the 
fair and just treatment of individuals with 
disabilities­payment of at least the federal 
minimum wage, in line with the protection 
provided to all other American workers.  The true 
enemy is the unfair, discriminatory, and immoral 
subminimum-wage provision found in Section 14(c) 
of the Fair Labor Standards Act (FLSA).

Mr. Decker’s argument rests on the assumption 
that we must accept incremental progress toward 
the elimination of subminimum wages. We believe 
that such incremental progress is inappropriate, 
even as an interim goal. Furthermore, Professor 
Bagenstos’s analysis reveals that Section 511 
will not make even the incremental progress that 
we are urged to accept. It will instead authorize 
subminimum-wage work as a training and 
work-readiness component of the rehabilitation 
system and, therefore, will ultimately, if 
unintentionally, lead to more rehabilitation 
clients being tracked into subminimum-wage work. 
Our response to Mr. Decker is that if he feels 
Section 511 is good, then good is simply not good enough.

Those who advocate for the elimination of the 
wage disparity between men and women, or for the 
raising of the minimum wage itself, or for better 
services to assist the unemployed to re-enter the 
workforce, are not asked to, and would never 
accept the suggestion that they should accept 
only incremental progress toward their goals, or 
that they should accept solutions like 
commensurate wages or employment training in 
subminimum-wage environments as a step to 
achieving goals. It appears to only be 
problematic for people to advocate on behalf of 
fairness and wage equality when the advocates are 
people with disabilities.  The unfortunate 
reality is that we cannot align our efforts to 
obtain fairness in the workplace with those of 
the general public because society fails to 
understand that with the proper training, 
opportunity, and supports, individuals with 
disabilities can be productive workers.  Until we 
overcome this pervasive misconception, hundreds 
of thousands of individuals with disabilities 
will continue to be denied the proper training, 
opportunities, and supports to obtain 
competitive, integrated employment.  As long as 
society can legally relegate workers with 
disabilities to subminimum-wage employment, we 
will never change societal perceptions that such 
work is all that can be expected of workers with disabilities.

The different standard to which advocates with 
disabilities are held has been apparent 
throughout the process of producing the WIA bill. 
We attempted to discuss our concerns with HELP 
Committee staff before the committee 
vote.  However, we were only able to secure a few 
meetings in the time provided.  In fact, members 
of the HELP Committee staff were discouraged from 
communicating with us.  We were assured that 
amendments to the Rehabilitation Act language 
would be offered during the committee markup, but 
no such amendments were offered or considered. 
Our attempts to engage in informed advocacy have 
been labeled a smear campaign.  Many of our 
members are requesting meetings with their 
Senators during the recess, but are being 
ignored.  How will good policy be developed 
without open, honest, informed dialogue?

There is a false perception that there is 
tremendous support for Section 511.  That is 
because support for Section 511 is being wrongly 
conflated with support for the WIA bill in its 
entirety.  However, there is, to our knowledge, 
only one stakeholder entity that is opposed to 
the removal of Section 511 from the WIA 
reauthorization, and that entity is NDRN.  More 
to the point, the question is not who supports 
Section 511?  The question should be: who opposes 
the removal of Section 511? Again, the answer is only one entity: NDRN.

Section 511 is doubtless well-intentioned, but 
its proponents would do well to remember the 
famous proverb regarding good intentions being 
paving stones on a  particular, and undesirable, 
road. Section 511 cannot and does not accomplish 
its purported purpose and will actually make 
matters worse. We urge the Senate to remove it 
from the WIA reauthorization, and we urge all 
organizations of people with disabilities to 
affirmatively support its removal rather than silently accepting it.

The below organizations all oppose Section 511 
and support its removal from WIA:

Autistic Self-Advocacy Network
Autism Society of America
National Coalition of State Rehabilitation Councils
National Council on Disability
National Council of State Agencies for the Blind
National Down Syndrome Congress
National Down Syndrome Society
National Federation of the Blind
National Fragile X Foundation
National Organization of Nurses with Disabilities
Parent to Parent USA
Physician-Parent Caregivers

As of August 23, 2013

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