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Burke's Law: When we disagree on discrimination, no one wins

  • Author: Jill Burke
  • Updated: June 30, 2016
  • Published November 1, 2015

The iconic giant white roller skate towering on the side of the Seward Highway in Anchorage has perched above Dimond Skateland for decades. A family-run business, the roller rink has entertained generations of skaters.

But after a wheelchair-bound 6-year-old girl with cerebral palsy was denied entry to the rink at a recent birthday party, the giant skate has, for the girl's father, come to symbolize an intolerable act of discrimination.

The father, David Newman, has filed a physical disability discrimination complaint with the city. Ed Caldwell, owner of Dimond Skateland, says it's the first time he's had a rink access dispute go that far.

There's a pretty straightforward question about whether Caldwell has the right to deny skating-surface access to wheelchairs. But the argument at the rink that day also underscores how perceptions about people's intentions and motives affect our own reactions.

'I don't know how you sleep at night'

It started when Newman's twin girls were invited to a birthday party at the rink. Julia and Gabrielle are the surviving two children of premature triplets, delivered 10 weeks early. Gabrielle is healthy and has no lasting effects. After a post-birth brain bleed, Julia was diagnosed with cerebral palsy when she was 18 months old.

Now a first-grader, she speaks fine and has no mental impairment, according to her father. Figuring out how to accommodate her physical needs, though, is a journey without end.

Most people bend over backward to help, he said. Julia plays soccer with an adaptive team, plays the drums with one arm and has even been bowling. Rolling her bright-orange wheelchair around a roller skating rink seemed like a no-brainer.

At the party, Gabrielle got to go skating right away. Julia was more hesitant and took some time to warm up to the idea. When she was ready, her father asked the rink's referee if he could go out with her in street shoes or if he needed to put skates on. The referee wasn't sure and went to get additional input.

"No! No. No. Absolutely no. It's not allowed," said the man who emerged from the back, according to Julie Calcoate, a friend of Newman who was at the party with her own child. "It's dangerous out there for the wheelchair. Somebody could bump into it."

The man was Ed Caldwell, the rink's owner.

"From the moment he came over, he was very aggressive, confrontational and unkind," Calcoate said. "I felt very bad for Julia. She was right there the entire time. He did it right in front of her. She just had her head down and didn't say anything."

"I was completely calm at first, but the more I spoke to him I thought he was being a total jerk," Newman said.

Newman grew increasingly frustrated. The idea that his daughter's slow roll around the rink would somehow be a hazard to her or to other skaters seemed ridiculous.

"The fact that he would tell me that someone that bumping into a girl into a wheelchair was somehow more unsafe than having no pads on the walls, no helmets, and kids walking all over that whole place, even in the food area, with their skates on, was hilarious. It just made absolutely no sense," Newman said.

Exasperated, Newman ended the conversation with "So you are telling me that you are going to stand in front of this little girl and tell her she can't go onto the rink? I don't know how you sleep at night."

Caldwell's response? "I sleep just fine."

'No big scene'

"I sleep just fine because I try to keep my customers as safe as possible," Caldwell said in an interview last week. "A wheelchair, a stroller, (these) can be pretty dangerous to the person in it or to the people that might run into it."

What would happen if a motorized wheelchair's controls got stuck and it took off? What if a child fell against it and got a hand or arm caught in the spoke? Caldwell said his intent is to keep things as safe as possible.

Dimond Skateland has had the same policy since it began operating in 1981, Caldwell said. "Our skating floor is designed for skaters. Period. We can't have anything on the floor that can hurt our skaters," he said. "People come in, they buy their ticket and think they can do whatever they want. They can't."

Caldwell has a dispassionate take on the discussion that took place at the rink with Newman. The music is loud. There are lots of people in the building. Often, he said, he has to speak loudly to be heard.

"I state the policy politely and firmly. It's not worth my time to argue with people. He (Newman) was trying to goad me into some kind of argument which I walked away from," Caldwell said. "No big deal. No big scene. It's just the way it was."

Caldwell also does not believe Julia was within earshot and blames her dad for not keeping a cooler head.

"He's being totally unreasonable. And he is not understanding the real-life situation. People in wheelchairs have limitations. You can't get around those limitations," Caldwell said.

'I don't expect the rules to be bent for her'

Being confronted at the roller rink with what seemed like an unfair limitation, and fueled by a sense that it was unkindly administered, has motivated Newman to file the discrimination complaint.

"Amy (my wife) and I don't expect the rules to be bent for her (Julia) -- we, and she, recognize that there are things she can't do because of her wheelchair, either because it's impossible or it would be unsafe for her or others. She is used to not being able to participate in a lot of things, and while she doesn't like it, she accepts it as well as a 6-year-old possibly can," Newman said in a follow-up interview via email.

"But that is why we thought roller skating, where everybody is riding around on wheels, seemed like an activity that could easily accommodate her and allow her to interact with her peers without us having to help her at all. Because really, 6-year-olds don't want their parents doing everything with them, and as she's getting older she is becoming more independent," he said.

Julia's parents -- like any parents -- want her to have as normal a life as possible, with the added wish that she "be able to have as many of the same experiences as her able-bodied peers as possible," Newman said.

A canceled event

Caldwell eases his policies for private parties, when the rink is closed to the public and only people invited to the event are in attendance. In those situations, the safety risk isn't as great, he said, because everyone there should in theory be familiar and comfortable with being around someone in a wheelchair and how it works.

The twins' Anchorage elementary school planned just such a trip, one Julia and Gabrielle were planning to attend. The Anchorage School District confirmed that the trip was scheduled and that Julia and her chair would be allowed on the rink.

So when the girls were invited to a separate birthday party before that school trip, Newman and his wife didn't think much of it. They assumed there wouldn't be an issue.

In the wake of the Newmans' unhappiness and the ensuing discrimination complaint, Caldwell said the school has since canceled the trip.

"I don't understand why, if he wanted his child to have some fun, he would spoil it for her and all the other kids at her school," Caldwell said.

Who's right?

At issue is whether under the law Caldwell can deny access to Julia during public sessions at the rink. Caldwell thinks so, citing a provision within the Americans with Disabilities Act that allows exclusion "if that individual poses a direct threat to the health or safety of others." In providing services to people with disabilities, the law allows for a public accommodation "...to establish objective safety criteria for the operation of its business."

"I am well within my rights," Caldwell said.

Newman doesn't think so. And he appears to have support.

"Most cases like this one are resolved in favor of the person with the disability," said Angel Bailey, a legal rights advocate for the Disability Law Center of Alaska.

The rink's owner "can impose safety rules as long as those rules are necessary for the safe operation of the facility," but the law also says those rules "... must be based on actual risks and not on mere speculation, stereotypes or generalizations about individuals with disabilities," Bailey said.

"It sounds like unfair discrimination," said Ken Stern, a disability rights attorney and founder of the Michigan-based nonprofit cerebralpalsy.org, an information clearinghouse and call center for parents and families affected by cerebral palsy. He applauds Newman for speaking up.

"I think it is very important for the family to do what they did. It's very important for their own child and for the entire community. This is not the kind of discrimination that gets reported on a lot," Stern said.

Caldwell and Newman are scheduled to have an informal meeting with the Equal Rights Commission on Nov. 3. Newman says he's not looking for any money -- just fair and equal access for kids like his.

Jill Burke is a longtime Alaska journalist writing from the center of a busy family life. Her father swore by "Burke's Law No. 1 -- never take no for an answer." Meaning, don't give up in the face of adversity. The lesson stuck. Share your ideas with her at jill@alaskadispatch.com, on Facebook or on Twitter.

The views expressed here are the writers' own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints.

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