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April
29, 2002 8:45 a.m.
The
Concert Right
The
ADA statute needs a fix.
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April 9, the U.S. Department of Justice's civil-rights division sued SFX
Entertainment Inc. — now called Clear Channel Entertainment —
because it prohibits anyone from taking a syringe into a rock concert.
Huh? Well, the problem is that this policy makes no exception for insulin-using
diabetics. In the Justice Department's view, this violates the Americans
with Disabilities Act. Rock concerts are "public accommodations"
under the ADA, insulin-dependent diabetics are "disabled," and
letting them take their syringes with them is a "reasonable modification"
of Clear Channel's general anti-syringe policy.
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Clear Channel says
it was surprised by the lawsuit. It says it had explained to the division
that diabetics were welcome to bring their insulin kits (including syringe)
to the concert, but they had to check the kits at a first-aid station.
The division rejected this accommodation as not going far enough, pointing
out that it can take 20 minutes or more to get from the mosh pit to the
first-aid station, which may prove to be too long in an emergency.
The elderly should
not have to choose between eating and their prescription medication —
as Al Gore reminded us during the last election campaign — and by
the same token the young should not have to choose between a rock concert
and their insulin. Right?
Apparently so. In
the Justice Department's press release, civil-rights division head Ralph
Boyd declared, "Individuals with diabetes are entitled to attend
and enjoy community events, like everyone else, without putting their
lives at risk."
Boyd added: "[Clear
Channel's] policy is unnecessary and reflects outdated fears about individuals
with disabilities." This is a silly statement. Surely Clear Channel's
fear has nothing to do with the way it views diabetics, and everything
to do with the way it views syringes at rock concerts. "The proper
disposal of a syringe or needle is a public safety concern," according
to Clear Channel.
I would add the obvious
point that, even before disposal, syringes can create public-health concerns
at rock concerts. They might be used to inject drugs besides insulin.
Not only might the syringes brought into the concert by diabetics end
up being abused in this way by the diabetic or his friend or someone who
one way or another gets hold of his syringe, but soon nondiabetics will
pretend to be diabetics and bring in syringes, too. Sure, you could require
a certified doctor's note, and no junkie would dream of trying to forge
that. Right.
There are two bad
guys here. The major villain is Congress, which drafted an incredibly
broad and vague statute begging to be abused, and which has turned a blind
eye — so to speak — to the problems it has created. On Crossfire,
former U.S. Representative and ADA sponsor Tony Coelho said of the law,
"It was deliberately written vaguely." Now, as a consequence,
everyone has his favorite story of a silly claim made under the ADA. We
can add one more to the list, but don't hold your breath waiting for Congress
to clean up its mess.
And so, for the foreseeable
future, it is up to federal courts and bureaucrats to use good judgment
in interpreting a civil-rights law (stop laughing) and strike a reasonable
balance between accommodating the disabled and accommodating everyone
else. In this instance, the system has not worked. Yes, it would be nice
if little Caitlin could see the Backstreet Boys at a live concert without
having to worry about going into a diabetic coma, but weighed against
this is the real danger that some other kid is going to get jabbed with
an infected needle, or overdose, or be assaulted by an addict too high
to know what he's doing, and so on and so on.
Clear Channel, which
runs these concerts in order to make money and presumably doesn't want
to turn away anyone unless it has a good reason, has decided that, all
in all, maybe it's not too much to tell little Caitlin that, if she thinks
she shouldn't be without her syringe, then maybe she should watch the
concert at home on TV. It's not clear why a judge or a bureaucrat ought
to be second-guessing that decision. If Caitlin is really unhappy, then
maybe daddy's lawyer can sue. But the civil-rights division should not
have thrown the weight of the federal government into this dispute.
—
Roger Clegg is general counsel of the Center
for Equal Opportunity.
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