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>> >> Nick: Thank you all for coming. This is a fabulous turn out. I am the Chairman of the Board and proud to be the Chairman of the
Board of Art Beyond Sight. Before I begin I want to say a couple of
big thank yous. First to the Museum of Modern Art for hosting
today. Francesca, Glenn, what a great day and thank you for
having us. Second thanks to the New York City Department of
Cultural Affairs and the Mayor's Office for People with Disabilities
for taking the initiative in making the cultural riches of our great city
accessible to all people. Jason, you have been a huge supporter of
ours and I think a fair and reasonable proponent of access in your
dealings. The topic today is accessible arts and culture. This
morning we will talk about making your programming and your
institution as accessible and inclusive as possible to all people.
There are three good reasons to do that. First of all it's necessary.
We're going to be talking in detail in a few moments about the legal
implications of accessibility but suffice to say it is something that
you have to do. Second, it is the right thing to do. Ethically. I think
that we can all agree on that. And third, I think Jason mentioned
this, it is good for business. It can build your audience, your
support base and your revenue. The word disability covers a broad
spectrum. If you use a wheelchair you have a disability. If you
wear reading glasses and the only reason I'm not because I have
got this in large type, you also have a disability. Disability used to
be defined as a medical condition. Not any more. Now we look at
disability as a part of what it means to be human. You have a
disability if you need an accommodation of some sort and to
provide that accommodation some barriers must be removed. The
barrier could be physical like steps you can't climb. But it could
also be intellectual, cultural or educational. There are 56
Americans, 56 million Americans with a disabilities today. It is the
largest growing minority in the country. And with the baby boom
generation entering retirement, the numbers will only grow. But any
one of us can join this minority at any time because of sickness,
accident or just growing old. So what does access mean? One
way to start looking at this issue is by examining the law as it
relates to accessibility. For this I would like to introduce Edward
O'Callaghan. Ed O'Callaghan is my partner at Clifford Chance's
litigation and dispute resolution practice in New York, with extensive
litigation experience in civil and criminal matters both in private
practice and in governmental service. His practice focuses on
defending organizations and individuals in international and
domestic regulatory investigations and criminal prosecutions,
including cases involving allegations of securities fraud, bank fraud,
money laundering, accounting fraud and numerous other
fraud-related activities. From 1999 to -- through 2008, Ed was an
assistant United States Attorney for the Southern District of
New York and Co-Chief of the Terrorism and National Security Unit
during the last three years of his tenure. He acted as the lead
prosecutor on a number of high-profile matters including the
Department of Justice's International Financial Fraud Investigation
and prosecutions related to corruption in the UN's Oil For Food
Program, RICO prosecutions of organized crime families, numerous
banks and securities fraud cases. Ed is a 2008 recipient of the US
Attorney General's Award for Distinguished Service and the 2000
Director's Award for Superior Performance as an Assistant US
Attorney. He received his Bachelor of Arts in Government from
Georgetown University in 1991 where he graduated with honors
and JD from New York University School of Law in 1994. Following
Law School, Ed was Law Clerk to the Honorable Kevin Thomas
Duffy, United States District Judge for the Southern District of New York.
Ed, thank you. Ladies and gentlemen, let the games
begin. >> Edward: A lot of this is just common sense, and how
you can work within the parameters and the requirements of the ADA
to reach a reasonable accommodation and provide access to the various
members of the population with the various disabilities that
we run into. It really is the governmental entities that are charged
with the responsibility for enforcing the ADA, really do want to work
with the institutions, because it is not anyone's intent to close
the door of any cultural institution because of the fact that they
are trying to reach a reasonable accommodation under the ADA but
rather make it more accessible to more people and so I think that
that's something really take heart to. And just to amplify the
point of some of these -- the common sense applications of this and
how it has come out in some of the cases that we have seen, I think
it would be interesting to learn about some of the cases. For instance,
the Metropolitan Opera Consent Decree which the Southern District
of New York entered into back in 2011. It was principally
a wheelchair access case but one of the kind of common sense additional
components of that was that in their review they found
that the Metropolitan Opera didn't have a visual alarm system in
place. And that obviously creates some safety concerns. We
want to have our cultural institutions be safe for everyone
that is attending and, so, one of -- as part of the consent decree that
if you go on the website and take a look at you'll see that the Met
also agreed in place of installing a full visual alarm system they
agreed to use their already in place Met title system to display emergency
information to have -- and to have members of the staff inspect
all areas accessible to the public in the event of an emergency. That's
just common sense. And that is utilizing a system that
is already in place so that people can enjoy and be sure that they are
safe in their enjoyment of those places. Then some of the other things
I would like to point out is in addition to wheelchair access obviously
some of the agreements that have been entered into also
take into account assistive listening systems that are -- that
are key and they go beyond New York if you could imagine and they
go beyond traditional ideas of the cultural system -- institution
and one of the cases that I will just mention is the Quicken Arena in
Cleveland. In Cleveland the DOJ entered into a fairly comprehensive
voluntary settlement agreement just in December of 2012 with the
operators of the Quicken Arena and that consent decree is interesting
because it does focus on ensuring full access for deaf
and hearing impaired patrons and it is a pretty broad and encompassing
agreement where the operators of Quicken Arena agreed
to provide methods of effective real-time communication for patrons
seeking to contact the arena via text telephone access. They
agreed to ensure that visual messaging is used on score boards and
video monitors to provide emergency information much like the
Met Opera. They take steps to provide equal and meaningful
access to all aural information provided over public address systems
and again to acquire 233 fully functional receivers for
assistive listening systems and make them available to patrons. Again,
that is just an example of now, the Cleveland Cavaliers have the capability
to welcome fans because they have adopted these procedures
under this settlement with The Department of Justice
whereas those fans would not have bought tickets to a Cleveland
Cavaliers game if they could not enjoy the experience as much
as they can now. I think again there is another example just
quickly that I will address in Cheyenne, Wyoming. In the Taco Johns Event
Center. This is a municipal operated center where the Taco Johns
Event Center agreed through settlement to remedy ADA access
violations that they found. And in addition to the wheelchair
access, they also agreed to provide assistive listening systems
for 4% of the total seats in the audience. I think that that again
is just a show of how the reasonable accommodations can be made.
One area that I think is interesting to touch upon if we have
a few more minutes is, you know, in our internet based business
these days, much of your advertising I would imagine is done through
websites and your advertisements for upcoming programs and
just exactly what you can -- what you can do is put on your website.
And there's actually an interesting state of the law as to whether
or not websites are considered sites of public accommodation.
And in that Cleveland Cavaliers Quicken Arena settlement agreement
the Cavaliers agreed to ensure that the website for their
team and the Quicken Arena was accessible for blind patrons and
now again they would have to work with the government agency that
was going to enforce that settlement agreement to just come up
with what a reasonable accommodation on the website would be but
they have already agreed to do that. I just want to bring to your
attention -- lawyers always like when we can bring circuit court
splits, that's the appellate courts in the federal system, because a circuit
court split means that there might be an area of law that might
actually be heard by the Supreme Court and we have that here. And
one area in the ADA enforcement is this website area and whether
the website can be considered a place of public accommodation
for purposes of the ADA. And what we've seen is that certain circuits
that have addressed it, for instance the Ninth Circuit
is that they -- I'm not going to say the case names but say Ninth
Circuit in California, they have held that a place of public accommodation
is limited to an actual physical place and, therefore, the
website access is not considered an area of public accommodation.
However, in the First Circuit, which is Massachusetts, generally
speaking, and the Seventh Circuit which is generally Chicago,
they have held or at least noted in portions of decisions that
public accommodations are not limited to physical locations and they
can accommodate -- and public accommodation can encompass facilities
in electronic space. That is an interesting area of the ADA that
is ripe for continued judicial scrutiny and I think that is an
area that will even further progress because it is a critical component
of any institution's advertisement. So if you have a website even
though there is a circuit court split, it probably is a good
idea to consider how you can make that, you know, readily accessible under
the ADA if you're ultimately going to make sure that your institution
is compliant.
>> Susan: Susan Rao,
advisor to Art Beyond Sight.
We would appreciate the perspective in terms of how the senior management
and trustees of cultural and public entities that could be considered
sports culture, how they should be thinking about accessibility. Is
this a core risk topic? Is it a marketing topic, a sales topic,
operational? Is it solely a legal topic? What is your thinking in
terms of how management and boards should begin to think about access?
>> Edward: My quick response is all of the
above, no doubt. It is no secret that certainly in the sports arena
and those types of activities that the economy has had an effect
on the ability of them to sell out their seats. It was unheard of,
right, not too long ago for Yankee Stadium and Madison Square Garden not
to be sold out. Now that is a reality that they're dealing
with. And I think that clearly providing more accessibility to those
with the various disabilities that we're talking about just
gives them a pool of potential audience members and again as everyone
has been saying it is just the right thing to do. So
I think that they should understand that. And frankly -- they do. I
think the concern comes where they just -- they really do have a concern
that essentially once they do start making reasonable accommodations
in either structural or as required or in their ticketing
practices, what have you, when you go into program content, you
know, that is -- that is the area that they have had a little reluctance
and again I think you'll hear throughout the course of the day
that the idea of a reasonable accommodation also goes to program
content. There is no one that is on the side of accessibility
that is promoting the taking over of a cultural institution's program
content. What we are hoping to achieve is a reasonable accommodation
with that program content that somehow accommodates
or maybe even will cater to a segment of the population that
is inclined to utilize the services of that particular institution. So
I think that that's where -- that is where I think some board members and
some senior operators of the institutions might have more
reluctance. There is always going to be the issue of the monetary
cost of something and, frankly, I think that is something that
is relatively -- at least concrete, right, to be able to work to -- work through.
When you're talking about program content I think it is a little bit more difficult of an issue.