L. Neil Smith's
Number 330, July 31, 2005

"For THIS we survived Auschwitz?"

Not Equal to Equal Treatment
by Lady Liberty

Special to TLE

Earlier this year, a Colorado couple was in the news over the struggle they were having to obtain a license to offer daycare in their home. The issue didn't relate to any specific safety issues in their home or troubling incidents involving children in their past. Instead, the state apparently denied licensing because the pair are blind. After taking the matter to court, a judge ruled in their favor. In his decision, the judge wrote that the state had violated the Americans With Disabilities Act when it denied them a license.

Now, the truth be told, I don't really favor government red tape licensing procedures for small home businesses, and that includes day care. But such licensing exists whether I like it or not, and it exists with certain parameters in mind. One of those is the ability of the business owner to provide services that are up to certain standards.

As anyone who has ever cared for small children knows, they can move faster than you think and they're typically into just about everything. It's a simple fact that even the most child safe home has dangers for unmonitored children. Toddlers can drown in toilets; they can trip over their own two feet. They can choke without making a sound. Such accidents can happen when a parent or caretaker merely looks the other way for a moment. What if the caretaker can't see what's going on at all? While I agree that blind people can do many things, I can see why the state might believe that caring for multiple small children isn't one of them. Alleging discrimination in a case such as this has nothing to do with discrimination and everything to do with reality.

A few weeks ago, a group of wheelchair-bound activists sued Amtrak claiming that their rights had been violated. Although Amtrak makes space available for handicapped passengers at the same ticket prices paid by other riders, the group wanted to travel together which would have necessitated the removal of regular seats to accommodate all of the wheelchairs. Amtrak assessed an additional fee to cover the labor, and the activists objected. A judge, however, sided with Amtrak saying that such charges would apply to any group that needed regular seats removed for any reason.

The activists are doubtless displeased by the ruling. But they sued demanding equal treatment, and the judge rightly ruled that Amtrak's policies would have applied to anyone else on an equal basis. To insist on being treated differently would prove that the activists aren't interested in equal treatment, but in special treatment.

In the town where I currently live, a local resident confined to a wheelchair sued the city after being arrested for driving her powered wheelchair in the streets. She claimed that she had to do so because the city didn't comply with laws that mandate sidewalks have slopes rather than curbs at intersections to facilitate wheelchair access. Because the law was made after some of the sidewalks had been poured, and because the city was including ramps in all of its new or repair work, she lost the case. But that wasn't the end of legal issues for the city...

When the woman's case was heard, the courtroom was filled to overflowing with people in wheelchairs there from across the region to lend moral support. The overflow crowd blocked hallways in the court facility, and when a fire marshal ordered people to move to one side to ensure clear access, the city was accused both of having too little space in its courtrooms for the disabled and of discrimination by its fire department. (As an aside, it's interesting to note that the same woman was later arrested again for riding down the middle of a busy downtown street—one which is, by the way, bordered by new sidewalks dutifully ramped.)

Anyone who represents a danger to traffic is going to find themselves the recipient of some kind of ticket from the police. And anyone who blocks hallways in a public building is going to be asked to move under the threat of a citation of their own. But because these people happened to be disabled, they claimed that being treated like anybody else would have been was actually discrimination rather than the entirely equal treatment that it was.

People who are perfectly abled also demand special treatment. When fire departments don't have sufficient numbers of women on their rosters, they're all too often accused of discrimination. In order to rectify what is perceived by some women as a problem, requirements are lowered until women—who, whether we like it or not, are all too often not as physically capable as many men—can meet those requirements.

If people really want equal opportunity, the standards for a job should be set and held immovable. Anyone who can pass those standards satisfactorily should then be eligible for hire regardless of their color, gender, religion, or anything else. But to lower the bar so as to hire people who are obviously less qualified results in workers who are quite literally unable to do what the realities of the job require. Sure, a female firefighter who can lift only two thirds of the weight that a qualified man can carry would doubtless be just as brave as that man and just as capable of rescuing a child. But what happens when the only people needing rescue are a couple of 180 pound adults?

It seems to me that there's absolutely zero comparison between political correctness in a fire department and the loss of life when less qualified personnel are hired. There happens to be (at the moment) exactly one woman in the entire fire department of the city where I live. She passed the same physical tests that the men who were hired did, and I have no qualms whatsoever about her ability to do the job. But how much longer will the city be "allowed" to hire only those people who are adequately capable? How soon might it be forced to lower its standards and thus its capabilities accordingly? I frankly don't want to see that happen anywhere because I think that saving lives and property is more important than some woman somewhere saving face.

In another matter ongoing in my town, the local School Board is being accused of racial discrimination. Teachers, especially good ones, are in short supply. The Board is looking to hire more teachers, and is having a difficult time finding enough qualified people to fill the open positions. Despite broad recruitment efforts in a variety of places, the Board is now being accused of failing to hire a sufficient number of minority teachers. Never mind the fact that teachers of all colors and abilities are scarce and that the Board would best serve the district by hiring every qualified individual who's willing to live and work here; it's apparently more important than qualifications to some that the teacher's skin color or gender be "right."

Because of the threat of a potential lawsuit, the School Board is extending its search to focus specifically on minorities. Forget that public schools are in trouble almost everywhere, and that a substandard education has now become virtually systemic. Forget seeking the most qualified teachers possible in some attempt (vain though it might be without reform at the top end of the hierarchy) to reverse that trend. Instead, place race above qualification, and then lament that the downward trend continues.

It's often struck me as ridiculous that people could complain about the lack of female firefighters or of minority-race school teachers, and at the same time don't bat an eye at the mostly black NBA, for example. There's no question in my mind that sports teams want the best possible players to ensure the best possible team performances. That the majority of the best basketball players happen to be black at the moment is no comment whatsoever on racism in the NBA. After all, a sufficiently tall and talented Chinese man was snapped up by an American team because he was good, not because somebody complained that there weren't enough Asians represented in professional basketball!

Equal treatment under the law means only that the law applies equally to everybody. It doesn't mean artificially "leveling the playing field" nor does it mean that different standards must, by force of law, be applied to people of differing abilities. As long as the same standards are applied to everybody across the board, then there's no discrimination taking place. To artificially alter circumstances otherwise is, in and of itself, discriminatory.

I'm sorry if a woman who has always dreamed of being a firefighter turns out to be 5'2" and 110 pounds soaking wet. I'm sorry if a man who's always dreamed of being a surgeon finds himself stricken with some degenerative disorder that will result in blindness. But I'd be even sorrier if the woman were hired, and someone died because she couldn't extricate them from a burning building, or if the man couldn't admit his difficulties early enough in the process to avoid some mistake in the operating room. It only makes matters worse when someone who could have done the job isn't hired because those doing the hiring were forced, by some anti-discrimination law or another, to accept less qualified applicants in order to have a certain percentage of this or that minority on staff.

There are lots of things that I personally can't do. I refuse to focus on something that I can't do—no matter how cool or wonderful it might be if I could—or to demand that someone make that thing possible for me regardless of the repercussions. Instead, I'm going to focus on all those things that I can do, and work to get better at a few of those. Unfortunately, there are activists who disagree. Even more unfortunately, there is a meddlesome government which seems to think that equal opportunity means everyone should be able to do everything they want to do, and which will work to mandate that those opportunities are provided no matter what sacrifices are necessary to make that happen. I can only hope that no innocent lives end up being sacrificed along with the standards.

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