Why Shouldn’t Money Be Accessible?

By Gary C. Norman, Esq.

Gary C. Norman, Esq. is an attorney partnered with a dog guide, vice president of the American Association of Visually Impaired Attorneys, an American Council of the Blind affiliated nonprofit, and is a consultant on access issues. The opinions expressed in this article are the author’s own and do not necessarily reflect those of the Guide .

Remunerating an individual for a well prepared cream of crab soup at a bistro may be problematic for the sight disabled, as paper currency is inaccessible. The American Council of the Blind, a consumer based advocacy nonprofit, and the National Federation of the Blind, a well known advocacy nonprofit, find themselves at divergent ends of the efficacious and feasible means by which to address this issue.

Myriad interviews and commentaries furnished by the president of the federation, Mark Maurer, as well as the amicus brief filed on its behalf, tout electronic reading equipment as the solution to inaccessible paper currency. The federation also suggests that, if inaccessible paper currency truly poses a problem, then blind people can use all $1 bills or credit cards to transact business.

In July, the counsel-of-record for the American Council of the Blind, Jeff Lovitky, Esq., furnished comments at the council’s national convention. He stated that the U.S. Mint, in seeking to prevent counterfeiting, will issue a new $100 bill by December 2008 or January 2009. The redesigned bill will possess a tactile feature. He also stated that this redesign of the $100 bill reflects the manner in which improvements to goods or services can concomitantly benefit the able-bodied and disabled public alike.

Two years ago, the district court for the District of Columbia found that paper currency, as it exists, does not ensure meaningful access to a person with a visual impairment ( American Council of the Blind v. Paulson , 463 F. Supp. 2d 51 (D.C.D.C. 2006)). In May 2008, the U.S. Court of Appeals for the District of Columbia Circuit delivered a plurality opinion in American Council of the Blind v. Paulson (525 F.3d 1256). The opinion held that the failure to design and issue paper currency readily distinguishable to the blind denied such individuals meaningful access to paper currency in violation of the Rehabilitation Act of 1973, and that the Department of the Treasury failed to demonstrate that ensuring access to paper currency would be unduly burdensome.

“The government might as well argue that there’s no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help,” the court wrote when reviewing and conducting analysis of the Treasury’s arguments. Neither court went so far as to state what a remedy would be under the circumstances. The appellate court remanded the appeal to the district court for a determination of a proper remedy. The Bureau of Engraving and Printing has hired a contractor to consider ways to ensure greater access to paper currency for the blind.

ACB, NFB Point and Counterpoint

In a May 2008 press release, the federation denounced the court’s opinion, expressing that its holdings are not only misguided but could perpetrate harm on blind people. It said that declaring that blind people cannot access goods — unless they are specifically enabled through tactile access — enforces a stereotype “that blind people are unable to function in the world as it currently is.”

Despite its recent disagreement with the opinions, the federation once strived to have a congressional resolution passed that encouraged the secretary of the Department of the Treasury and its delegate, the Bureau of Engraving and Printing, to ensure tactile access to paper currency. (See H.Res.122, 105th Cong. 1st Ses. 143 Cong. Rec. H. 10371-10372 (Nov. 8, 1997).)

Speeches recorded in the Congressional Record reflect that the federation consulted with the sponsors of H.Res.122. Expressing the praise of the sponsors for the work of the federation on behalf of the blind to the issue of societal access, including access to paper currency, the remarks refer to the view of the federation that the addition of tactile accessibility to paper currency would ensure easier and safer transactions for the blind.

Impeachment, based on pecuniary interest (Fed. R. Evid. 607), naturally extends as a basis on which to interpose questions of the position of an organization, where a potential financial interest may cloud the faculties of rational judgment.

An organization named Our Money Too emphasizes that the federation has changed its position from the 1990s, when it successfully advocated the passage of a congressional resolution that posited money readers are not as effective as tactile accessibility, to its stance since 2002 that the court decisions comprise invalid and superfluous judicial action. That organization indicates that the possible source of this change finds its genesis in the federation’s development and sale of a portable electronic reading machine that identifies paper currency.

In a 2003 article published in the Information Technology and Disabilities E-Journal , Melanie Brunson, executive director of the American Council of the Blind, aptly refuted the claim of the federation that identifiers should be employed as a solution. Brunson said that such devices are expensive and are not as fool-proof as the federation would have the public believe, especially when bills are obliterated or when ambient noise prevents hearing such devices.

Furthermore, the director of the U.S. Mint recently unveiled the design of a commemorative silver dollar coin at a federation special ceremony. The Mint will issue the coin in 2009 in honor of the 200th anniversary of the birth of Louis Braille. Braille will be embossed on the face of the coin and the federation will receive a proportion of the proceeds from the sales of the coin that could potentially equal $4,000,000, according to a Braille Monitor article.

Affirmative Obligation

This author respectfully disagrees with the article by Burton J. Fishman, Esq., Fumbling for Dollars (see July 2008 newsletter), which posits that the decisions delivered, first by the district court and then by a plurality of the appellate court, either comprise potential advisory opinions or, in any event, constitute an improper exercise of judicial intrusion into the concept of co-equal branches of government.

If, in the words of Chief Justice John Marshall, the judicial department possesses the capability to proclaim the law, then the deduction that naturally emanates from this principle is that, in doing so, the judicial department also possesses the discretion to alter discriminatory practices and procedures. (See Marbury v. Madison , 5 U.S. 137 (1803).) That any given opinion may call on a unit of government to evolve its conscience through affirmative action neither derogates this power nor results in the shibboleth of judicial activism that individuals of conservative mind often banter in response to what they perceive as incorrect judicial holdings.

Today’s social fabric would be less mosaic, if Chief Justice Warren, for example, had bowed to arguments of kritocracy in Brown v. Bd. of Ed. (347 U.S. 483 (1954)). The function to interpret and declare the law, both written and natural, rests with the judicial department, even when it involves abolishing invidious discrimination, through the imposition of, albeit unfunded, mandates such as accessible paper currency.

It seems that, in writing of the recent judicial opinions regarding accessible paper currency, the principle that conservatives would have citizens believe is that of jus dicere, non jus dare — to declare the law, not to make the law. But as noted, that line of thinking, as embodied in the shibboleth of activism, is not in keeping with the logical extension that in declaring the law, the judicial department has the power, if not obligation, especially in the content of discrimination, of rendering the law.