Equality of Opportunity: The Making of the Americans with Disabilities Act

Fashioning a Durable ADA: The House of Representatives

The overwhelming affirmative vote in the Senate contributed to the ADA’s remarkable momentum. The intense negotiations with the White House had resulted in a bill that earned President Bush’s endorsement, which essentially guaranteed passage of the bill in some form. The Senate Committee on Labor and Human Resources had been unanimous in its support of the ADA. A grassroots disability community had made its presence known on Capitol Hill by uniting to advocate aggressively for the ADA. Meanwhile, no considerable opposition had organized. By the time the Senate voted on September 7, 1989, nearly half the House had cosponsored the bill—almost enough votes to pass it.¹ These factors led many senators and the Bush administration to anticipate and hope for swift passage in the House before year’s end. Other factors, however, pointed to a more challenging process.

Whereas 185 Democrats signed on as cosponsors (88 percent of all House signatures), only 25 Republicans attached their names to the bill. Moreover, while House Democrats had worked with the Senate in redrafting the ADA and were kept informed about the negotiations with the administration, House Republicans had kept their distance. They did not contribute substantively to the redrafting process; they also declined from participating in the White House negotiations to avoid being bound by them, and because they wanted to convey “that they were trying to look out for [the] needs” of the business community.² Consequently, though the Senate crafted a breakthrough compromise bill, House deliberations would have to cover the same issues all over again. Much more work had to be done to achieve the bipartisan support that ADA advocates sought. Hopes for quick passage were dashed; debate in the House took nearly nine more months.

1. 210 voting members of the House were cosponsors. Seven non-voting members also cosponsored the bill.

2. Rochelle Dornatt, interview, December 4, 1996.

Early Actions in the House

Compared with the Senate, where there were powerful and passionate advocates of disability in leadership positions on both sides of the aisle, Republican and Democratic leadership in the House, with the exception of Majority Whip Tony Coelho (D-CA), were much more cautious. House Speaker James C. Wright, Jr. (D-TX) and Majority Leader Thomas S. Foley (D-WA) were skeptical of the ADA’s wide-ranging impact and viewed the bill more as a private agenda of Congressman Coelho than an issue of national policy importance.³ “I had the leadership unwilling to tell me no because it was me,” Coelho said. But they were not openly supportive and would have “killed” the ADA, “if it hadn’t been [for] my making it so personal."⁴ Although in time the ADA would come to be viewed as a leadership bill, largely because of Coelho’s status as Majority Whip, the initially weak support of Democratic leadership placed Republicans in a position to shape the ADA to their interests.⁵

Congressman Coelho was the first member of the House to join the campaign to pass the ADA. He was the bill’s sponsor both in 1988 and in 1989. He also collaborated with Senators Tom Harkin (D-IA) and Edward M. Kennedy (D-MA) to rewrite the ADA and craft a master strategy for passage. House Republicans did not demonstrate significant interest in the ADA until it entered Congress for the second time in the spring of 1989. The leader among Republicans was Congressman Steve Bartlett (R-TX). He had played an integral role in recasting disability policy in terms of independence and in issuing a mandate to the National Council on the Handicapped (NCD) to review federal programs and make recommendations. Although he generally supported the proposals in Toward Independence, Bartlett was cautious about the lead recommendation pertaining to an equal opportunity law. Throughout 1988 he had watched the ADA from a distance. But after President-elect Bush promised support of an act similar to the ADA at a pre-inaugural event on January 19, making passage seem imminent, Bartlett decided to become involved to ensure that it was a reasonable bill.⁶

In April, 1989, Congressman Bartlett joined with Minority Leader Robert H. Michel (R-IL) and Congressman William F. Goodling (R-PA) to propose a partnership with Congressman Coelho. “We would like to work with you to develop a good bipartisan bill,” they wrote to Coelho on April 25. “By working together, we hope to develop language that we can agree upon, support, and introduce together."⁷ But the revised draft was already completed and Bartlett, Michel, and Goodling did not cosponsor the ADA at the time of its introduction. Michel also wrote a letter to President Bush, on April 26, urging him to join in the efforts of working toward a bipartisan bill. Such an effort, Michel said “is appropriate, definitely warranted, and most importantly, deserved by individuals with disabilities and others who will be affected by it."⁸ Bush fulfilled this request by working with the Senate to develop a compromise bill.

Shortly into the House deliberations in the spring of 1989, ADA supporters received a significant blow that paralleled the 1988 defeat of Senator Lowell P. Weicker, Jr. (R-CT). While House Speaker Wright was under scrutiny for alleged ethics violations, some members accused Congressman Coelho of violating House ethical standards by investing in certain bonds. Unlike Wright, however, who dragged out his own investigation before leaving Congress, Coelho promptly submitted his resignation, effective June 15. His commitment to the ADA influenced this decision. Coelho had become a national leader for disability policy. And, though he flatly denied the charges against him, he feared that an investigation might, by association, embarrass the disability community and consequently hurt its prospects for success on the ADA.⁹

Although Congressman Coelho’s career as a U.S. Representative drew to a close, his advocacy for the ADA did not. According to Ralph Neas, “he played a key role, if not a crucial role, on many different occasions with Democrats in the House and the Senate, with Republicans in the House and the Senate, and with President Bush, pushing the calendar on a number of occasions, really helping get us through some difficult times."¹⁰ For example, he took the lead in the House cosponsorship drive and capitalized on his personal attachment to the bill and the trust he had cultivated among colleagues. Moreover, though he was a partisan Democrat, Coelho was well known for his desire to bring opponents to his side by working to empower them with shared ownership and finding common ground, rather than pitch battles.¹¹

Accordingly, Congressman Coelho joined with Democratic Congressman Major R. Owens (DNY), and Republican Congressmen Silvio O. Conte (R-MA) and Hamilton Fish, Jr. (R-NY), to facilitate cosponsorship. In a letter to the rest of their colleagues on June 1, they emphasized the Republican origins of the bill through NCD and the problem of paying persons with disabilities not to work. “Persons with disabilities want to be productive, self-supporting, and tax-paying participants in society,” they wrote. “This bill will grant them that dignity and that right."¹² Because the ADA was a civil rights bill, ADA supporters anticipated that members would readily support it. Yet, despite the bipartisan effort, the process of enlisting House cosponsors was slow: the issue of costs caused people to hesitate. Whereas members often cosponsor a bill when certain colleagues do, in this case they wanted to scrutinize the bill individually.¹³

The House cosponsorship drive was less successful than that in the Senate—33 percent of all senators and 19 percent of all representatives were cosponsors on May 9. But Congressman Coelho secured a crucial commitment from Congressman Steny H. Hoyer (D-MD). The two members had become close friends since Coelho, as Chairman of the Democratic Congressional Campaign Committee, had assisted Hoyer in his first campaign. At Coelho’s request, Hoyer assumed the role of managing the ADA in the House. This meant organizing committee deliberations, serving as the principal negotiator, and leading floor deliberations. Out of respect for Coelho’s commitment to the ADA, Hoyer called himself “chief cosponsor,” and continued to identify Coelho as the ADA’s sponsor. Like so many other members of Congress, the ADA had personal significance for Hoyer: his wife had epilepsy. He became a zealous advocate for the ADA.

3. Dornatt, interview, December 4, 1996.

4. Tony Coelho, interview, December 2, 1996.

5. Coelho, interview, December 2, 1996.

6. Steve Bartlett, interview, March 10, 1997.

7. Robert H. Michel, William F. Goodling, and Steve Bartlett to Honorable Tony Coelho, April 25, 1989, in possession of Chai Feldblum.

8. Robert Michel to George Bush, April 26, 1989, in possession of Feldblum.

9. Coelho, interview, December 2, 1996.

10. Ralph Neas, interview, December 10, 1993.

11. Dornatt, interview, December 4, 1996.

12. Tony Coelho, Major Owens, Silvio Conte, and Hamilton Fish to Members of the House of Representatives, June 1, 1989, in possession of Feldblum.

13. Dornatt, interview, December 4, 1996.

A Bird’s Eye View of the House Deliberations

By the time the ADA reached the House committees, the basic goals of the bill had been widely affirmed. Many members, however, viewed the legislative process as an incremental one, whereby major policies would be assembled step by step over many years. Passing the ADA was especially challenging because, as Rochelle Dornatt of Coelho’s staff observed, “we were creating a whole new set of rights . . . a whole new set of civil rights.” The principal focus in the House was not the needs of persons with disabilities, which had already been well-established by the Senate, but, rather, the bill’s effect on “covered entities.”* As Melissa Schulman of Congressman Hoyer’s office explained: “What the House was doing . . . was making the bill more acceptable to business."¹⁴ Coelho often noted that “the trick” in the legislative process was “to find that magic number, that 218, to get the bill passed."¹⁵ With the ADA, advocates were trying to get much more than that, but it required extensive work at the committee level to satisfy members concerned with covered entities in their districts.

House consideration of the ADA was different and more complicated than the Senate’s for several reasons. First, the committee structure was more complex. In the Senate, the bill went only to one committee and one subcommittee. There it was considered primarily as a civil rights bill and did not undergo the technical scrutiny of the commerce and transportation committees. In the House it went to four committees (Education and Labor, Public Works and Transportation, Energy and Commerce, and Judiciary), and six subcommittees (Select Education; Employment Opportunities; Surface Transportation; Telecommunications and Finance; Transportation, Tourism, and Hazardous Materials; and Civil and Constitutional Rights). In addition, the Committee on Small Business held a non-legislative hearing to generate information that could be used by other committees or during floor deliberations. These multiple committee referrals meant that the ADA would have to withstand the scrutiny of various technical experts, especially with regard to transportation. Moreover, 164 representatives, compared with 16 senators, and many more House staff than Senate staff reviewed the bill in committee. This increased the chance of a committee altering, delaying, or even killing the bill and posed a major challenge to coordinating the deliberative process and keeping the bill intact. All indications suggested that a bill would pass. But, as Neas explained, “there was always the possibility that having to go through four committees . . . could endanger some of the best and strongest provisions."¹⁶ According to Arlene Mayerson, it was “an overwhelming strategic nightmare."¹⁷

A second factor also complicated the House deliberations. In the Senate, the chief sponsors of the bill, Senators Kennedy and Harkin, were chairmen of the full committee and subcommittee with jurisdiction. In the House, however, Congressman Hoyer was not even a member of any of the committees reviewing the bill. He was “responsible for shepherding . . . the bill through the process,” explained Schulman, even though he had to do it without committee authority, relying on forming relationships with chairmen who often guarded their committee jurisdiction jealously. Keeping everything together was a challenging task indeed. But Hoyer rose to the challenge. As Neas said, he “put on one of the best legislative shows of all time."¹⁸ One cannot underestimate Hoyer’s importance. “Unless you have somebody who is going to take responsibility for seeing that it all gets done and there is some cohesion in the process,” Schulman said, “it never would have happened."¹⁹

Congressman Hoyer and staff member Schulman were central players, if not the leaders, in every aspect of the bill’s development in the House—cosponsorship, hearings, committee review, negotiations, committee and floor amendments, interactions with the White House, floor deliberations, conference proceedings, and crisis management. They feared that the committees might significantly weaken the bill, and that the disability community might walk out of the process in frustration. Hoyer thus committed to meeting with any member who wanted to discuss the bill. He even walked through a Giant Food store with concerned parties to explore the practical impact of the ADA.²⁰ Schulman remained confident that the bill would pass. But at times, she said, “it just looked next to impossible."²¹

The legislative process in the House also differed in a third respect: the roles assumed by the business and disability communities and the Bush administration. The ADA went through the Senate like a “blitzkrieg."²² This had compelled many business lobbyists essentially to throw in the towel with respect to the Senate and strategically focus their efforts on the House. The disability community, on the other hand, had been very much on the offensive throughout the Senate deliberations, seeking to persuade senators and the Bush administration to support its goals for an accessible America. Although many compromises had to be made to achieve presidential and Senate support, the disability community had been generally satisfied with an ADA that emerged from the Senate. And with respect to the Bush administration, it had been an active participant in hammering out a compromise bill that could win the endorsement of President Bush, which Bush granted on August 2, 1989.

The circumstances were much different in the House. While business groups worked extensively with the Senate and the Bush administration in developing a compromise bill, activity was primarily in Washington: there were only limited efforts to apply pressure on members from their constituents at home. But, during House deliberations, the business community vigorously lobbied the House by mobilizing constituent pressure. By the time the ADA reached the House, Mayerson said, the National Federation of Independent Business (NFIB) was distributing “millions of flyers to every business across the country."²³ Moreover, because of President Bush’s endorsement of the ADA, outright opposition was futile and apathy was dangerous. Barring an unexpected calamity, the bill was going to pass, at least in some form. If businesses wanted their voice to make a difference and meet some of their objectives, they had to support the overall concept of the bill. Persons with disabilities, on the other hand, were now more on the defensive. Their chief goal was to hold as much ground as possible amidst an onslaught of proposed revisions.

The disability community continually reminded opponents that a Republican president backed the ADA.²⁴ Indeed, President Bush was a strong advocate of the ADA and had been in the forefront of promoting civil rights legislation for people with disabilities. By endorsing the negotiated version of the ADA on August 2, 1989, President Bush set the stage for the House deliberations, where passage consequently seemed imminent. Attorney General Richard Thornburgh most actively articulated the Bush administration’s support. For example, on September 19, Thornburgh wrote a powerful letter to the editor of the New York Times on behalf of the ADA. He underscored his and the president’s support of the ADA. In particular, he challenged the errors of a Times article—for example, its allegation that there had been “surprisingly narrow public scrutiny” of the ADA. Thornburgh described how the Bush administration, the Senate, and interested parties had entered “painstaking negotiations” that resulted in “a carefully balanced measure."²⁵

On October 12, Attorney General Thornburgh testified on behalf of the administration, before the House Subcommittee on Civil and Constitutional Rights and gave a ringing endorsement of the ADA. He noted that many people with disabilities continue to live “in an intolerable state of isolation and dependence” and argued that the ADA could be “the vehicle that brings persons with disabilities into the mainstream of American life.” It was a “historic opportunity,” he said, to have the chance to help move the ADA through Congress.²⁶ Thornburgh’s testimony was important because it demonstrated the Bush administration’s continued support of the ADA and reflected President Bush’s desire to see the ADA passed quickly.

For the most part, however, compared with its intense and consistent interaction with the Senate, the Bush administration participated in the House deliberations only intermittently. Proponents of the ADA widely assumed that the administration stayed in the background because the administration was willing to let the House modify the bill and perhaps implement proposals the administration had been unable to negotiate with the Senate.²⁷ House Republicans, for their part, preferred that the White House let them have the freedom to conduct their own analysis and revisions of the bill. House Democrats wanted the administration to speak out more authoritatively on behalf of the negotiated ADA, but they would settle for not having the administration advocate any weakening amendments.²⁸ President Bush satisfied all parties by remaining outside the fray. 

The House deliberations were also characterized by ideological distinctions. ADA supporters widely hailed the bill as bipartisan legislation.²⁹ Indeed, in the final analysis the ADA received overwhelming support from both parties—93 percent of the vote in each chamber and at least 86 percent of the vote in each party.³⁰ There were also key advocates on both sides of the aisle, especially in the Senate, where Senators Harkin, Kennedy, Orrin G. Hatch (R-UT), Dave Durenberger (R-MN), and Robert Dole (R-KS) were deeply committed to the ADA. Moreover, Republicans and Democrats found common ground: they agreed “that it was a bad idea to pay people not to work, to stay home."³¹ Nevertheless, an ideological fault line emerged between the interests of the business and disability communities. Republicans tended to vote in favor of easing the demands imposed on business. This became evident during the Senate floor deliberations. For example, Senator Hatch’s amendment to include a tax credit for businesses (the only vote to be recorded) split along party lines. Whereas 71 percent of Republicans supported the amendment, 64 percent of Democrats opposed it.³² In the House, the division was even more clear. For example, whereas 85 percent of Democratic committee members were cosponsors of the ADA, only 10 percent of Republican committee members were.³³ In the committees, members tended to split along party lines regarding amendments that most viewed as helping businesses.³⁴

It is important, however, not to lose sight of the enormous area of agreement on the ADA, which was established in the course of negotiations. Although Republicans and Democrats had their differences, it is a testament to their talents and commitment to a laudable objective that they were largely able to put aside partisanship to find common ground.  

* “Covered entity,” as defined in § 101(2) of the final version of the ADA, means “an employer, employment agency, labor organization, or joint labormanagement committee.” For the purpose of this work, however, “covered entities” is defined more broadly to mean any entity covered by any portion of the ADA. This would include, for example, employers, operators of public transit, owners of places of public accommodation, and communications providers.

14. Melissa Schulman, interview, December 6, 1996.

15. Dornatt, interview, December 4, 1996.

16. Neas, interview, January 21, 1994.

17. Arlene Mayerson, interview, October 13, 1993.

18. Neas, interview, December 10, 1993.

19. Schulman, interview, December 6, 1996.

20. Schulman, interview, July 9, 1993.

21. Ibid.

22. Mayerson, interview, October 13, 1993.

23. Mayerson, interview, October 28, 1993.

24. Paul Marchand, interview, October 26, 1993.

25. Dick Thornburgh to the Editor of The New York Times, September 19, 1989, in possession of Virginia Thornburgh. See also Thornburgh, “Toward Independence for the Disabled,” Wall Street Journal, October 3, 1989, p. A13, in which Thornburgh similarly criticizes the Journal for misrepresenting the ADA.

26. Richard Thornburgh, statement, Hearings Before the Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 101st Cong., 1st Sess., (October 12, 1989), Serial No. 58, in Leg. Hist., pp. 2014, 2020.

27. Schulman, interview, July 9, 1993.

28. Neas, interview, January 21, 1994.

29. For example, Elizabeth Boggs, Co-chair of the Task Force on the Rights and Empowerment of Persons with Disabilities, stated: “In a remarkable demonstration of bipartisan support for the bill, dozens of potentially weakening amendments were rejected in committee or on the floor by Congressmen who became folk heroes in the disability rights movement.” From ADA to Empowerment: The Report of the Task Force on the Rights and Empowerment of Persons with Disabilities (October 12, 1990), p. 13.

30. Senate: 91 of 97 (93.8%) voted yes. Senate Democrats: 54 of 54 (100%) voted yes. Senate Republicans: 37 of 43 (86.0%) voted yes. 3 Senators did not vote. House: 377 of 405 (93.1%) voted yes. House Democrats: 233 of 238 (97.9%) voted yes. House Republicans: 144 of 167 (86.2%) voted yes. 27 Congressmen did not vote.

31. Jim Weisman, interview, November 16, 1993.

32. Senate: 48 of 92 (52.2%) voted yes. Republicans: 30 of 42 (71.4%) voted yes. Democrats: 32 of 50 (64.0%) voted no. Eight Senators did not vote.

33. Democrats: 93 of 110 (84.5%) were cosponsors. Republicans: 7 of 67 (10.4%) were cosponsors. This includes members on the Rules Committee. These results are tabulated according to total number of seats on the committees, not according to the actual number of members. Representatives sitting on more than one of these committees are thus counted twice.

34. Schulman, interview, July 9, 1993.

Lobbying & Grass Roots Activities

For business organizations such as NFIB, the Senate deliberations represented a failure. “The reason we failed in the Senate,” said Wendy Lechner, the NFIB point person for the ADA, “was we didn’t have time to educate” the members. The ADA was “pushed through as motherhood and apple pie before we had a chance to do anything.” In the House, therefore, the objective was to “slow it down long enough for education."³⁵ NFIB was not alone. Largely under the direction of Nancy Reed Fulco of the U.S. Chamber of Commerce, business groups formed the Disability Rights Working Group to help mold the ADA. Different organizations focused on different provisions: NFIB and the U.S. Chamber of Commerce devoted considerable attention to public accommodations; the American Bus Association (ABA), the American Public Transit Authority (APTA), and Greyhound examined transportation issues; the National Restaurant Association (NRA), the Chamber of Commerce, and the National Association of Manufacturers dealt with employment. But they banded together to lobby members of the House about their common concerns. As illustrated in the Senate testimony, business groups were not completely opposed to the bill. “We really weren’t trying to deep-six it,” said Lechner. “We were really trying to get a better bill, a more livable bill."³⁶

To create a more “livable” bill, representatives of covered entities developed a list of about 20 to 30 amendments. Throughout the House deliberations they continually updated this list, removing those changes that were accomplished, and adding others as new issues arose. And they lobbied members of Congress to argue the need for those amendments by issuing various position papers and visiting members’ offices. In addition to lobbying inside Washington, organizations such as NFIB sent out action alerts to their members urging people to write their representatives, especially those serving on committees. Some opponents of the ADA took their concerns about the ADA to the mainstream media.

Business groups had a number of overriding concerns. One was the “vagueness of language” contained in the ADA. Business lobbyists argued that such phrases as “undue hardship,” “readily achievable,” and “readily accessible,” were inadequately defined, and would therefore invite frivolous law suits. Businesses, they argued, would not be able to know whether they were in compliance. A second concern was the potential cost of accommodations. One proposed solution was to have the government share some of the burden through tax credits and other mechanisms. Third, numerous covered entities lobbied to have a more concrete definition of disability, ideally one that listed every covered disability instead of relying on a flexible definition. Fourth, small businesses argued that they should be exempt from the public accommodations requirements, or at least be phased in more gradually, because small businesses were exempt from other civil rights legislation. Fifth, scores of organizations protested the enforcement mechanisms available under the ADA, especially private litigation and the availability of punitive damages. Sixth, many business groups proposed that the ADA should preempt all other disability laws, so that there would be no confusion between different statutes, and no possibility for bringing multiple law suits for one violation.

The business community, however, faced a significant problem in educating and lobbying Congress: it had a much more difficult time than the disability community in keeping its coalition together. By the end of the fall of 1990, the coalition had begun to break down, as organizations focused on those provisions that affected them most. They were, therefore, unable to present a united front to Congress. Nevertheless, during the course of the House deliberations, business groups succeeded in obtaining many of the changes they sought.

In response to a variety of objections posed by business groups, some House members took the initiative in undertaking vigorous publicity campaigns against the ADA. Congressman Dan Burton (R-IN), for example, sent out a flyer in which he enumerated “some of the more onerous provisions” of the ADA. According to Burton, the ADA would “federalize American private enterprise,” “wreak havoc in the workplace,” “crush small and medium-sized businesses,” and “confer federal approval on homosexual/ heterosexual ‘domestic partners.’” He also attached an editorial by Gene Antonio that characterized the ADA as “the last ditch attempt of the remorseless sodomy lobby to achieve its national agenda before the impending decimation of AIDS destroys its political clout. This bill simply must be stopped . . . and will become law unless there is a massive public outcry immediately."³⁷

Similarly, Congressman Ron Marlenee (R-MN) issued a flyer to all the postal patrons in his district. The headline read: “Americans With Disabilities Act: Washington’s Latest Way to Crush Businesses, Schools, While Hurting The Disabled.” A subheading announced: “ADA Bill To Give Federal Endorsement For Homosexual ‘Partners’ and ‘AIDS.’"³⁸ Congressman Chuck Douglas (R-NH) distributed a letter that pictured a man pointing a gun at the reader. “Berserkers: Time Bombs in the Workplace,” the headline declared. Douglas favored the general idea of the ADA, but said the bill “needs dramatic rewriting.” He was especially with preventing persons with mental illness from endangering their coworkers and thus proposed excluding such persons from protection under the ADA.³⁹

The disability community was more unified than the business community, but the heightened activity of the business community during House deliberations demanded a strong response from the disability community. “The beauty of the ADA,” said Liz Savage, “was it was an effort where people in the grass roots were just as important, if not more important, than people in Washington."⁴⁰ To facilitate disability grass roots involvement, leaders such as Marilyn Golden developed regional coordination networks: it was too complicated for one or even a handful of people to manage the calls for an entire nation. While in some cases there was a coordinator for an individual state, most states were organized in groups under a regional coordinator. The regional coordinators were selected because they were well known in their states. They came from a variety of organizations, often from independent living centers.

During the House deliberations, the ADA coalition coordinated its lobbying efforts with each of the scheduled committee mark-ups. As the bill went through each committee, members of the legal team responded to virtually every business position paper by issuing rebuttals. They would proceed point-by-point through amendment lists and either show how claims were in error or why the disability community took a different position. ADA Lobbyists used this information in visiting members of the House, presenting a “Disability Rights 101” education course. Lobbyists were not just Washingtonians. Often at their own expense, persons with disabilities flew and drove in from around to be part of the Washington effort. The National Council on Independent Living (NCIL), for example, ensured that at least one of its representatives resided in Washington throughout the congressional deliberations. On many occasions, Liz Savage offered her apartment as a sort of boarding house for outof- town visitors. Once they arrived in Washington, grass roots advocates met with leaders in the ADA coalition to get weekly briefings and plot strategy. They also coordinated their lobbying techniques to ensure that they were presenting a unified message to members of Congress.

Grass roots participation in lobbying helped humanize the ADA. Many members were seeing persons with disabilities for the first time and viewing them as assertive citizens. This helped break down the stereotype of persons with disabilities as dependent children. It also illustrated that disabled people could make a difference and offer valuable contributions to society—if only given the chance. Only a minority of people with disabilities, however, could make personal trips to Washington. Others did what they could in their local communities. Kathleen Kleinmann, for example, wanted to do whatever she could do from her home in rural Pennsylvania. She felt she simply had to be a part of the action. “We had that urgency about us,” she said. “It was contagious. It spread through the whole country."⁴¹ For Kleinmann and many others, NCIL was the crucial link to activities taking place in Washington. Through it they could learn when and to whom they should write letters. Moreover, people in various local committees applied pressure on the local offices of their representatives. They also contested erroneous public statements about the ADA by calling into local radio shows and making local television appearances.⁴²

The largest single letterwriting campaign took place between the 100th and 101st Congresses, during the winter of 1989–90. The campaign was directed at members of the House of Representatives, who were frustrating many in the disability community by taking so much longer than the Senate and proposing “weakening amendments.” Thousands of “New Year’s” postcards were mailed throughout the country with a cover letter from James S. Brady, soliciting individuals to mail to them to their congressman. The front of the card printed “ADA” in giant letters for a background. Set over it was the statement: “Our New Year’s Wish For Congress: Open the Doors to America. Pass the Americans with Disabilities Act.” On the back it said: “The President has endorsed it. The Senate has overwhelmingly passed it.” And in larger letters: “Now it’s up to you. Don’t weaken a law that will strengthen America.” Space was provided for people to add their own personal messages. They were encouraged to send cards to their own Congressperson, committee members from their states, Speaker of the House Foley, and Minority Leader Michel.⁴³

In addition to lobbying, sending letters, and making phone calls, persons in the disability community, both inside and outside Washington, served the important function of presenting testimony at congressional hearings. As with the hearings of 1988 and the Senate hearings of 1989, the House’s ADA hearings included powerful testimony about the need for civil rights protections for persons with disabilities. Persons from the disability community also offered their technical expertise on specific issues and countered the claims of those who proposed weakening amendments.

A final way in which the disability community exerted pressure on Congress and the Bush administration was through demonstrations. One of the most significant protests was organized by ADAPT in September, 1989. In a long ADAPT tradition, the demonstration coincided with the annual meeting of APTA in Atlanta, where Secretary of Transportation Samuel K. Skinner was expected to present an address. On Sunday, September 24, about 100 people throughout the U.S. and Canada, most of whom were in wheelchairs, protested at the entrance of the Hilton Hotel convention site. Stephanie Thomas, a spokesperson for ADAPT, said they were protesting APTA because of its opposition to the ADA.⁴⁴

At about ten o’clock the following morning, on September 25, more than 100 disability activists occupied the main floor of the Richard B. Russell Federal Building and blockaded the main entrances. Some attached chains and bicycle locks to their necks and locked them to door handles so that security could not simply lift them from their wheelchairs. ADAPT demanded that Secretary Skinner sign an executive order requiring the purchase of accessible vehicles for all new transit buses, which would take effect immediate. “We’re here until the order gets signed,” said Michael W. Auberger, one of the co-founders and leading organizers for ADAPT. “They’ll have to carry everybody out or arrest them."⁴⁵ Later that day, at around six o’clock, Atlanta police and security officers from the General Services Administration (GSA) did just that. They used bolt cutters to remove demonstrators from the building.

About two hours later, only a few protesters still remained in the building. From inside the building, Marca Bristo contacted Evan Kemp, who told her to call Boyden Gray directly. As she was on the phone with Gray, a police officer insisted that she leave the building. Bristo left, but only after she handed the phone to the officer to prove she was talking to Gray from the White House. Gray subsequently contacted President Bush. Within minutes, police and other security officers began letting the disability activists back into the building. After speaking with Gray, President Bush had personally intervened to inform Gary C. Carson, Regional General Services Administration (GSA) administrator, that the protesters should be allowed to stay.⁴⁶ Carson attributed Bush’s action to the president’s “deep commitment to the handicapped and their right to protest.” Apparently, Bush was also concerned about the alternative of having them stay overnight outside the building in a chilling rain.⁴⁷ Auberger and others welcomed Bush’s intervention, but threatened to stay until Skinner signed the executive order they demanded.

The sit-in ended the following afternoon subsequent to an agreement between the Urban Mass Transportation Administration (UMTA) and leaders of ADAPT. UMTA agreed to help facilitate a process of identifying and interfering with transit operators that were rushing to buy inaccessible buses before the ADA was enacted. UMTA also agreed to relay to Secretary Skinner ADAPT’s desire to see more effective implementation of the Air Carriers Access Act of 1986, which required accessibility for air travel. The agreement fell short of ADAPT’s demands. Yet it appeared to be the best possible action, since UMTA explained that Skinner did not have the authority to issue such an executive order.

ADAPT, however, was not finished with its demonstrations. The next day, Wednesday, September 27, protesters effectively shut-down the Atlanta Greyhound terminal for several hours by encircling the terminal and blocking buses. They chanted: “We Will ride!” “Access is our civil right!” One protester even climbed into the bus, sat in the driver’s seat, and chained himself to the steering column. Only four buses carrying about 80 passengers left the terminal during the protest, compared with a typical 20 buses carrying 600 passengers. The purpose of the demonstration was to urge Greyhound and other intercity bus services to begin purchasing lift-equipped buses. The protest ended, however, with the arrest of over 20 activists, who received $75 fines the following day.

Five-and-a-half months later, amidst seemingly stalled House deliberations, ADAPT organized another demonstration—the “Wheels of Justice” campaign.⁴⁸ Disability activists from around the country gathered on Sunday night, March 11, to plan the week’s events. Wade Blank and Michael Auberger, co-founders of ADAPT, were there. Other leading ADAPT organizers included Bob Kafka, Mark Johnson, Stephanie Thomas, Dianne Coleman, Ben Freeman, and Bernard Baker. At noon the following day, hundreds of activists associated with ADAPT and other disability organizations assembled at the White House. From there they marched and rolled to the Capitol, where they gathered at the west front to listen to speeches from ADA supporters. On the way, they chanted: “What do we want?” “ADA!” “When do we want it?” “Now!”

At the Capitol, Justin Dart, now Chairman of the President’s Committee on the Employment of People with Disabilities, addressed the crowd as “pioneer patriarchs of the twentieth century.” He likened the ADA to the Declaration of Independence and urged those assembled to “go forward, in the spirit of Ghandi and Martin Luther King, with love, with reasoned truth, with unyielding insistence on respect for the sacred value of each human life.” Concluding with a demand for immediate passage of the ADA, Dart declared: “We are American citizens and we will be part of the American dream."⁴⁹ Congresswoman Patricia Schroeder and Congressman Major Owens also spoke in support of the ADA, likening the disability rights movement to the civil rights movement of the 1960s. Additional speakers included I. King Jordan, President of Gallaudet University, Evan Kemp, Chairman of the EEOC, and James Brady, former press secretary for President Ronald Reagan.

Auberger was the final speaker. He, too, likened the efforts of those gathered to earlier movements for equality. He described the plight of people with disabilities and urged that disability activists must remain steadfast in demanding civil rights. Then, sitting in his wheelchair at the base of the Capitol steps, Auberger observed that the steps “were a symbol of discrimination against the disabled.” Yet, he said, he would not let them continue to be an obstruction. “We will not let any barrier prevent us from the equality that is rightfully ours."⁵⁰ As he concluded his speech in front of television cameras, many individuals left their wheelchairs behind to climb the Capitol steps—a symbol of their fortitude in surmounting barriers.

On Tuesday, March 13, ADAPT continued its campaign by meeting with House Speaker Foley (who assumed the House leadership position after Congressman Wright’s resignation), Republican Leader Michel, and Congressman Hoyer in the Capitol Rotunda. Leaders of the protest insisted on immediate passage of the ADA. When Foley informed the crowd that two months was a likely time frame, more than 100 demonstrators began chanting: “ADA Now!” Foley and Michel subsequently departed. Hoyer stayed a little longer and departed with a thumbs-up signal. Then, Capitol police told the demonstrators to leave, as demonstrating in the Capitol is against federal law. Most demonstrators refused, however, and formed a tight circle; many chained their wheelchairs together. They chanted: “Access is a civil right!” and “The people united will never be defeated!” But police officers, many protected with riot gear, began using chain-cutters and torches to break through the links demonstrators had fashioned. For about two hours, police reportedly arrested 104 people whom charged them with demonstrating in the Capitol building.⁵¹ The next day, Wednesday, March 14, protesters assembled in Congressmen Shuster and Fish’s offices. Others crowded the Energy and Commerce Committee markup session. Numbers dwindled over the rest of the week, however, as many were appearing in court.

The “Wheels of Justice” campaign did not bring immediate passage of the ADA. And the ADAPT demonstration in Atlanta did not result in an executive order that required the purchase only of accessible transit buses. Yet the protesters were more concerned with demonstrating the lengths to which persons with disabilities would go to secure their rights. In that sense they succeeded. The events were also an indication that further demonstrations could follow if the ADA got stuck in a quagmire. Combined with the other education and lobbying efforts of the ADA coalition, these activities underscored the nationwide, grass roots demand for passage of the ADA.

Although such demonstrations reflected unity within the disability community, there was not complete unanimity among all people with disabilities. The National Federation of the Blind (NFB), for example, was outspoken in its reservations about the ADA. At its 1989 convention in Denver, Colorado, NFB passed a resolution declaring that if the ADA “could not be amended to cure its weaknesses, it should be opposed.” Early in 1990, Kenneth Jernigan of NFB wrote a brief, “Reflections on the Americans with Disabilities Act,” to explain NFB’s position. The primary concern, he said, was that the ADA might create additional problems for blind people as it attempted to eliminate other problems. In particular, NFB feared that the ADA might force people with disabilities “to accept the special accommodations mandated by the bill and . . . [prevent people] from using the same facilities and services that are available to others.” Such accommodations, Jernigan said, may themselves become discriminatory, and make the ADA “a source of unintentional discrimination against some persons with disabilities."⁵²

For instance, NFB cautioned that the provision of specially-equipped rooms in hotels might require blind persons to use specific rooms and prevent them from staying near friends. To NFB, the alleged need for this accommodation (or for street corners with audible sounds for crossing and specially-designated seats on buses) was based on “the false assumption that sight is essential for successful performance of most tasks.” Blindness, said Jernigan, “is not generally disabling.” Consequently, unwanted accommodations falsely portrayed blind people “as limited in ways that they are not” and imposed unfair and unequal restrictions.⁵³

As a solution, NFB proposed an amendment stipulating that people with disabilities had the right not to participate in programs or activities specially designed for disabled persons. During the fall of 1989, NFB worked with John Wodatch of the Justice Department to elicit the backing of the administration. Following a meeting with White House staff on January 19, 1990, NFB representatives were confident that they would obtain their proposed amendment. But, Jernigan said, if the amendment is rejected, “we must oppose the bill as vigorously as we can . . . we will do anything we can to slow it down and block [the ADA’s] passage.” He concluded his “Reflections” with the cautionary statement: “Simply because a thing calls itself civil rights, that does not mean that it is civil rights."⁵⁴ NFB eventually attained its goal through an additional clause to the ADA: “an individual with a disability shall not be denied the opportunity to participate in . . . programs or activities that are not separate or different."⁵⁵ Subsequently, NFB did not oppose the ADA.

35. Wendy Lechner, interview, November 4, 1993.

36. Ibid.

37. Dan Burton to “Colleague,” October 4, 1989, in possession of Feldblum.

38. Ron Marlenee, “Americans with Disabilities Act: Washington’s Latest Way to Crush Businesses, Schools, While Hurting the Disabled,” to Postal Patron, 2nd Congressional District, Montana, in possession of Feldblum.

39. Chuck Douglas, “Berserkers: Time Bombs in the Workplace: How Can We Protect Ourselves From an Apparently Growing Menace?” to Colleague, March 16, 1990, in possession of Feldblum.

40. Liz Savage, interview, February 26, 1997.

41. Kathleen Kleinmann, conversation with author, June 5, 1997, Renaissance Hotel, Washington, D.C.

42. Marca Bristo, interview, February 20, 1997.

43. Consortium for Citizens with Disabilities, “A Message From Jim Brady - Calling on America,” [no date], in possession of Feldblum.

44. Alma E. Hill and Sandra McIntosh, “Handicapped Demonstrators Block Building: Dozens of Disabled Protest Poor Transportation Access,” Atlanta Journal-Constitution, September 25, 1989, p. A8.

45. Pat Burson and Alma E. Hill, “Bush Order Lets Disabled Resume Courthouse Sit-In: Protesters Demanding Access to U.S.-Funded Transit Systems,” Atlanta Journal-Constitution, September 26, 1989, p. A1.

46. Marca Bristo, conversation with author, June 5, 1997, Renaissance Hotel, Washington, D.C.; Evan Kemp, interview, December 16, 1996.

47. Burson and Hill, “Bush Order,” p. A1.

48. Richard Bryant Treanor, We Overcame: The Story of Civil Rights for Disabled People (Falls Church, Virginia: Regal Direct Publishing, 1993), p. 117. Much of the following description of the week’s events are based on Treanor, pp. 117–22.

49. Quoted in Treanor, We Overcame, pp. 118–19.

50. Quoted in ibid., p. 119.

51. Steven A. Holmes, “Disabled Protest and are Arrested,” The New York Times, March 14, 1990, p. B7.

52. Kenneth Jernigan, “Reflections on the Americans with Disabilities Act,” [date: “early 1990”], in possession of author.

53. Ibid.

54. Ibid.

55. ADA of 1990, § 302(b)(1)(C).

The ADA and the House Committees: Three Phases

Part of the master strategy for passing the ADA involved organizing the committee deliberations in the House. Leading ADA supporters among Democrats, including Congressmen Coelho, Hoyer, and Owens, wanted to start the bill in a committee that was familiar with and favorable to civil rights. In consultation with each of the committee Chairs—Augustus F. Hawkins (D-CA), for Education and Labor; John D. Dingell (D-MI), for Energy and Commerce; Glenn M. Anderson (D-CA), for Public Works and Transportation; and Jack Brooks (D-TX), for Judiciary— they decided to begin with Education and Labor. Several factors made this a logical choice. First, most of its Democratic members supported disability rights. Second, Democratic leadership included Congressman Owens, Chairman of the Subcommittee on Select Education, who had created the Task Force on the Rights and Empowerment of People with Disabilities and was a strong advocate of civil rights and grass roots activism. Third, the ranking Republican for the Subcommittee on Select Education was Congressman Bartlett, who had a strong record on disability policy and was instrumental in shaping the mission of NCD. Bartlett, in fact, urged Republicans on other committees to promote letting Education and Labor go first. Fourth, Pat Morrisey, a leading Republican staff member, had also worked extensively with disability policy and, in addition, had a disability.⁵⁶ Ideally, the Education and Labor Committee would complete its review of the ADA as a starting point for the rest of the committees.

Although committees operate differently, they tend to follow a similar process of deliberation. The committee chair and committee members give overall guidance to their staff regarding what they would desire to achieve. Then, hearings are scheduled, designed, and held. The purpose of hearings is to solicit justification and document the need for the bill, as well as to hear and discuss reservations about the bill. As much as possible, staff try to settle issues raised by the hearings on their own, which is generally the vast majority of a given bill. For issues that remain unresolved, however, there is a ladder of conflict resolution. Usually, the first step the staff take is to prepare memos for their congressmen about the issues in dispute and then obtain the member’s feedback, which can be used in negotiations. If this proves inadequate, members meet directly with one another. Finally, issues that members cannot settle get carried to committee mark-up sessions where they can be introduced as amendments for member voting. Typically, mark-up sessions begin with the consideration of one collective amendment that incorporates all the agreed upon changes. Then, members proceed to discuss and vote upon individual amendments concerning the disputed issues.⁵⁷

Although the activities of all four committees often overlapped, there were three distinguishable phases in the committees’ review process. Deliberations by the Education and Labor Committee marked the first phase. A focus on transportation provisions by two committees, the Energy and Commerce Committee and the Public Works and Transportation Committee, constituted the second phase. Activities by the Judiciary committee represented the third and final phase before moving the deliberations to the House floor.

56. Neas, interview, January 21, 1994.

57. Roger Slagle, interview, December 2, 1996.

Phase I: Education and Labor Committee

The Education and Labor Committee conducted the most thorough evaluation of the bill, at least with respect to the volume of testimony received. Two subcommittees had jurisdiction over the bill: Select Education, chaired by Congressman Owens, and Employment Opportunities, chaired by Matthew G. Martinez (D-CA). In the interest of facilitating rapid consideration of the ADA, Owens negotiated with Martinez to have Employment Opportunities yield to Owens’s Select Education Subcommittee. Moreover, Congressman Hawkins, Chairman of the full committee, essentially deferred to Owens for leading the committee’s consideration. In addition to the two hearings held in 1988, the Subcommittee on Select Education hosted four hearings between July 18 and October 6, 1989, two of which were joint hearings with the Employment Opportunities Subcommittee.

Perhaps the most significant of the four hearings was the field hearing of the Subcommittee on Select Education held on August 28, in Houston, Texas. Lex Frieden and Justin Dart had recommended such a hearing to Congressman Owens due to concerns that Congressman Bartlett might not be fully supportive of the ADA because of his close associations with such business groups as NFIB. Owens approved of the idea and enjoyed playing the role of bringing the U.S. Congress to local communities. The purpose of the field hearing was to demonstrate to Bartlett that his own constituents strongly supported the ADA. Hundreds of persons with disabilities attended the hearing and an open forum that followed. At the hearing, businessmen, government officials, and transit authorities gave a ringing endorsement to the ADA. And dozens of people with disabilities spoke about their personal experiences at the forum. The proceedings appeared to have a significant impact on Bartlett. Later that evening, he told Frieden and others that he had been “kind of a skeptic” of the ADA. But the day of discussions “made me a believer,” and he pledged to do what he could to support the legislation.⁵⁸

Contrary to the typical committee process, where staff settle most disagreements following the hearings, negotiations for the Committee on Education and Labor were led by Congressmen Hoyer and Bartlett in a lengthy series of member-to-member meetings. This was also a unique circumstance because Hoyer was not even on the committee. Although Chairman Hawkins could have exercised his authority over the full committee, he “graciously,” as Ralph Neas described it, allowed Hoyer to take the lead. This gave Hoyer, the House manager of the ADA, an opportunity to set the tone for the rest of the House deliberations. Congressman Owens welcomed Hoyer as the leader of committee negotiations, because it gave Owens an opportunity to be a “Watch Dog” for the disability community: he could help ensure that negotiations did not result in a net loss for people with disabilities.⁵⁹

Congressmen Hoyer and Bartlett represented different parties and different clientele—Hoyer spoke mostly on behalf of Democrats and the disability community, Bartlett mostly on behalf of Republicans and the business community. But they shared enough in common to produce extraordinarily productive negotiations.⁶⁰ Bartlett wanted to foster business development. His position as Republican point man was to prepare a bill that could gain the support of Republicans and the business community. Hoyer shared similar goals. As Schulman explained: “we weren’t interested in creating a new right and doing it in such a way that it would have been impossible for the private sector, for employers and businesses, to meet their responsibilities."⁶¹ Rather, in meeting the needs of persons with disabilities, Hoyer wanted to ensure that businesses knew what was expected of them, that language was clear and fair, and that the bill did not impose an undue burden on business.⁶² By working together, the two congressmen were able to help craft legislation that would be acceptable to both sides of the aisle and foster a level of bipartisanship comparable to what had developed in the Senate. The meetings were “the most productive and satisfying legislative negotiations that I had ever been involved with,” said Bartlett.⁶³

Throughout October, Congressmen Hoyer and Bartlett met extensively and negotiated fourteen amendments that would later be brought up for a vote in committee. Although the committee had jurisdiction mainly over portions of the Employment and Public Accommodations titles, some of their proposed amendments affected the entire bill. The most significant amendment concerned the application of “undue hardship” and “readily achievable.” Business lobbyists wanted precise dollar figures to determine exactly how much businesses had to spend on accommodations and modifications. Rather than offer a price cap, the Senate bill specified that three factors should be evaluated in determining whether an accommodation was “reasonable” or a structural modification was “readily achievable”—the size of a business, the type of operation, and the cost of the accommodation. Although this provision fell mainly under the jurisdiction of the Judiciary Committee, and was ultimately settled there, Hoyer and Bartlett began discussions about “site-specific” factors.⁶⁴ They suggested that in determining whether an accommodation was “reasonable” a court should consider the financial resources of the local facility as well as those of the entire covered entity. Thus, a local K-Mart in financial difficulty would not be evaluated only according to the resources of the entire K-Mart corporation. Hoyer and Bartlett also clarified that an employer’s obligation to provide a reasonable accommodation was always limited by the standard of “undue hardship”: there would be no loopholes.

Congressmen Hoyer and Bartlett addressed another persistent concern of employers by adding tougher language for drug and alcohol abuse. They agreed that past drug users who had completed, or were actively engaged in, drug rehabilitation treatment were protected under the ADA. They also decided that covered entities should be free to administer drug tests and exclude individuals who used drugs and had not sought treatment.

Congressmen Hoyer and Bartlett also worked to help minimize the potential for excessive litigation. They added language requiring that all complaints filed under the ADA or Sections 503 and 504 of the Rehabilitation Act must be coordinated so that only one case could be brought against the covered entity; a claimant could not file two claims under two different statutes. They also developed a procedure whereby the attorney general could certify state or local building codes that met ADA accessibility standards, which would be a defense against discrimination charges. In cases where the attorney general exercised authority to pursue monetary damages for aggrieved persons, the two congressmen proposed to exclude punitive damages. They also suggested that when courts considered assessing civil penalties, they must consider the “good faith” efforts of the covered entity. Finally, Congressmen Bartlett and Hoyer incorporated into the bill requirements that executive agencies prepare technical assistance manuals to be disseminated to those with rights and responsibilities under the ADA.

These changes were brought before, and approved by, members of the Committee on Education and Labor at the mark-up sessions on November 9 and 16. Eight additional amendments came up for consideration.⁶⁵ Among other things, these amendments would have:

• linked the determination of reasonableness for accommodations and modifications exclusively to the resources of a local facility;

• reduced the penalties the attorney general could assess;

• substituted “significant risk” for “direct threat” as the standard according to which persons with contagious diseases could be discriminated against;

• capped the amount a business had to spend on “readily achievable” modifications to 5 percent of a company’s profits;

• delayed implementation until regulations were completed; and,

• limited nondiscrimination protection for association with someone who had AIDS to one’s family members.†

Except for the package of amendments introduced by Congressmen Hoyer and Bartlett, all amendments introduced at the committee mark-up were voted down, predominantly along party lines. The Democratic position was a “no” vote on all amendments besides the Hoyer-Bartlett package.⁶⁶ In the final vote, the committee voted unanimously, 35 to 0, to report H.R. 2273 to the House, as amended by the committee. Despite the contested amendments, this was another strong endorsement of the ADA, and gave the bill a boost similar to that given by the Senate vote. Tough battles lay ahead. But the Hoyer-Bartlett compromises positioned the ADA for future success, and Hoyer and Bartlett would continue to play central roles in the negotiations of other committees.

† According to the ADA, an individual is protected not only from discrimination because of having a disability but also from discrimination based on being associated with a person with a disability. Thus, one could not be fired because one’s spouse had a disability such as AIDS. This amendment would have restricted the types of associations that were protected by the ADA to biological and legal relationships. As a result, one would not have been protected by the ADA if discriminated against because a friend had AIDS.

58. Quotation attributed to Steve Bartlett by Lex Frieden. Lex Frieden, interview, December 28, 1996.

59. Major Owens, interview, April 29, 1997.

60. Feldblum, interview, March 14, 1997.

61. Schulman, interview, December 6, 1997.

62. Schulman, interview, December 6, 1997.

63. Bartlett, interview.

64. Maria Cuprill, telephone conversation with author, May 15, 1997.

65. Two more amendments were proposed but withdrawn.

66. Five amendments received roll call votes. Two fell strictly along party lines. On one amendment, one member from each party switched sides. In the remaining two votes Republicans accounted for all but one “aye” vote, and some Republicans voted no.

Phase II: Energy and Commerce & Public Works and Transportation Committees

Although the Committee on Education and Labor reached a significant compromise that drew the support of many members, it accomplished little with respect to transportation and telecommunications provisions. These responsibilities fell to two committees: Energy and Commerce, and Public Works and Transportation. Their deliberations constituted the second phase of the House process of committee review.

From the beginning of the ADA campaign, advocates worried most about the transportation provisions. Transit authorities had historically posed vigorous challenges to accessibility for persons with disabilities. When the Department of Transportation issued its original Section 504 regulations, APTA responded with a lawsuit—and won. The court ruled that requiring lifts on every bus went beyond the purview of Section 504 and left it up to transit authorities to decide whether to have accessible buses, provide paratransit service, or use a mixture. As a result of this so called “local option,” transportation operators throughout the country provided widely varying levels of accessible transportation. Cities such as New York and Seattle had achieved nearly 100 percent accessible buses, while Chicago had virtually none. Railroad systems had other problems. Accessibility standards for Amtrak, for example, had been in effect for nearly two decades; the regulations simply were not being enforced. By proposing fully accessible public transportation vehicles, the ADA would thus face resistance from such powerful lobbying groups as the ABA, Greyhound, Amtrak, and APTA.

Working the transportation provisions of the ADA through the committee was also challenging because the scope was so broad. The ADA covered all public transportation by both public and private entities, with the exception of air travel, which had been addressed in the Air Carriers Access Act. This included: fixed route systems‡ (including buses, light and rapid rail§), paratransit service** (which applied only to public entities), demand responsive systems,†† intercity rail,‡‡ commuter rail,§§ over-the-road buses*** (which applied only to private entities), and transportation facilities. To avoid presenting executive agencies with any ambiguity, the transportation committees prepared extraordinarily detailed provisions. Given the memory of the regulatory nightmare of Section 504, where lack of detail in the statute resulted in intense conflict over the regulations, many people in the disability community welcomed the specificity promoted by the transportation committees. Although the two transportation committees upheld the basic principles of the Senate bill, they made the most changes—nearly tripling the amount of space dedicated to transportation provisions.

The two committees operated simultaneously, but the Energy and Commerce Committee was the first to complete its review. It held its hearings on September 27 and 28, 1989 and met for mark-up six months later on March 13, 1990, at which time it reported the ADA, as amended, to the House. The ADA’s fate in the transportation committees was largely a function of personalities. Working with the Energy and Commerce Committee was difficult for the disability community. Chairman Dingell was notorious for jealously guarding his committee’s jurisdiction, and he was one of Amtrak’s greatest advocates. Over the course of the 1980s, funding for Amtrak had plummeted, and Dingell was reluctant to impose any new demands on the struggling public service. This made for a much different dynamic than the other three House committees, where Democrats generally sided with disability advocates to prevent any “weakening” amendments. In this case, Democrats tended to side with the public rail company and were thus more skeptical of the ADA’s objectives. The principal staff person for the Energy and Commerce Committee was Alan Roth. By the end of the process he became a hero of sorts for the disability community, but in the beginning Roth posed a great challenge. He thought things had happened too quickly in the Senate, where there was little expert review of transportation provisions, and he wanted to conduct a thorough review of the bill’s provisions within his committee’s jurisdiction. This had the effect of extending the deliberative process.

Unlike the Education and Labor Committee, and its open negotiations, the Energy and Commerce Committee began its consideration privately, without consulting the disability community. The relationship between disability advocates and the committee was not improved when Pat Wright and Ralph Neas worked with Michigan constituents to apply pressure on the Chairman. It was not until the committee circulated a draft of its own version of the bill, which invited a 30-page rebuttal from the outraged disability community, that Congressman Hoyer could persuade the committee to work with him in developing a bill that the disability community could support.⁶⁷

Although the Energy and Commerce Committee could introduce amendments that affected the entire bill, its jurisdiction over the ADA centered on two main components: telecommunications and railroads. Telecommunications provisions were the least controversial of the ADA’s four main titles. Karen Peltz-Strauss and Sy Dubow were the principal attorneys from the deaf community who worked with congressional staff. The National Association of the Deaf (NAD), Telecommunications for the Deaf, Inc., and Self-Help for the Hard of Hearing (SHHH) were active in demonstrating broad support for changes in the nation’s telecommunications system. Peltz-Strauss described Congressman Edward J. Markey (D-MA), Chairman of the Subcommittee on Telecommunications and Finance, as the deaf community’s “chief advocate” in the House. He was “very interested in expanding telecommunications access for people with disabilities."⁶⁸ This made for “smooth and harmonious” deliberations, as Congressman Bob Whittaker (R-KS) later described them.⁶⁹ “There was striking cooperation among industry, commerce, and Congress,” said Peltz-Strauss, which produced provisions “that met the needs of people who were deaf and hard of hearing."⁷⁰

Historically, three of the main telecommunications issues for the deaf and hard of hearing were hearing-aid compatibility, teletype devices, and television decoding. During the 1980s, the deaf community succeeded in passing legislation that required employers to provide hearing-aid compatible telephones, which were equipped to transmit electromagnetic signals to certain hearing aids. In 1988, the Hearing Aid Compatibility (HAC) Act expanded this requirement such that nearly all telephones manufactured or imported into the country had to be compatible. The issue the ADA addressed most directly were teletype (TTY) devices, often called a Telecommunication Device for the Deaf (TDD). Under the original bill introduced to the House and Senate, the ADA required states to establish telecommunications relay services that would allow people to communicate, through an operator, with people who did not have TTY devices. During House deliberations, the basic requirement was affirmed, though the implementation date was extended from two to three years. The most significant change was the removal of the “undue burden” limit on the mandate to provide relay service. The committee also addressed the issue of closed captioning for televisions. Earlier legislation required public television to broadcast with closed captioning. During the House deliberations, Congressman Markey’s subcommittee stipulated that all public service announcements partly- or fully-funded by the Federal Government must be produced with closed captioned text.

The Subcommittee on Telecommunications and Finance was the first of all House subcommittees to complete its action, on October 12, 1989. Subsequently, the Energy and Commerce Committee devoted several months to deliberating transportation provisions. The committee held the preponderance of jurisdiction over railroads and had absolute jurisdiction over Amtrak. It began its deliberations with the Senate bill, which required that all new rail cars had to be accessible, and mandated that at least one car per train had to be accessible within five years. Since Amtrak was standardized throughout the nation, the committee could be extraordinarily detailed about what accessibility meant for Amtrak. For example, the committee delineated distinctions between single- and bi-level cars. It also designed separate provisions for sleeping, dining, and passenger cars. For Amtrak, the Energy and Commerce Committee even developed a formula to determine precisely how many spaces had to be available for persons using wheelchairs, including space to store wheelchairs. Perhaps the most important decision coming out of this committee, however, was that it sustained the Senate’s one-car-per-train rule and the stipulation that all new cars had to be accessible. This was significant because the Public Works and Transportation Committee shared partial jurisdiction over railroads, and wrestled with whether all cars had to be accessible.

Although negotiating over transportation provisions was difficult, the most controversial and intense negotiations in the Energy and Commerce Committee had nothing to do with structural transportation accessibility. Members of the Energy and Commerce Committee were concerned that the ADA’s protection of persons who were mentally ill could result in uncontrollable train disturbances, where train operators would be unable to ask meddlesome riders to leave. Consequently, their initial draft of the ADA excluded persons who were mentally ill from the definition of disability. This caused an uproar in the disability community. “Persons with mental disabilities, among all the disabled, have suffered the greatest stigmatization and resulting discrimination,” said the American Psychological Association. “The perpetuation of prejudice and discrimination against persons with mental disorders in a vehicle designed to end discrimination is sadly ironic."⁷¹

The committee ultimately removed the exclusion, but the issue came back up at mark-up. Congressman William E. Dannemeyer (R-CA) proposed an amendment that would have supplemented the established exclusion of compulsive gambling, kleptomania, and pyromania by prohibiting all “behavior disorders.” Based upon his belief that the ADA was “a homosexual rights bill in disguise,” his amendment also proposed the exclusion of anyone with a contagious or sexually transmitted disease.⁷² These proposals posed a major threat to the ADA, for they applied not just to transportation, but to the entire bill. Although the committee rejected the Dannemeyer amendment, these issues were only temporarily put to rest.

The Public Works and Transportation Committee held its hearings on the ADA before Energy and Commerce, on September 20 and 26, 1989. But it held its mark-up several weeks after the Energy and Commerce Committee, on April 3, 1990. For disability advocates, the Public Works and Transportation Committee was much easier to work with than the Energy and Commerce Committee, but it ultimately posed a significant threat to their objectives. Chairman Anderson was a strong supporter of the ADA and charged staff member Roger Slagle, whom he appointed to take the lead on the ADA, with a clear mission: “Get the people on the bus."⁷³ Slagle was not a detached mediator; he strove for optimal accessibility. From the disability community, he worked especially with attorney Chai Feldblum, whom he described as “one of the brightest people I’ve ever worked with in my life."⁷⁴ But Slagle had one major reservation: unwarranted litigation against transit authorities. Slagle said people on the House side referred to the Senate bill as the “we’re-going-to-sue-your-ass” bill. They feared that under the Senate bill a person with a disability might be able to sue a transit authority simply because a lift-equipped bus was late. “We in the House felt an obligation to . . . fine tune” the ADA, said Slagle, “in a way the transit authorities could embrace [the act] and make it work."⁷⁵

The Chairman of the Subcommittee on Surface Transportation was Congressman Norman Y. Mineta (D-CA). Congressman Coelho, who was a close friend of Mineta’s, vigorously lobbied Mineta to be more than a passive supporter of the ADA; Coelho wanted him to be an active advocate. The fact that Mineta was indebted to Coelho for crucial help on one of his own legislative endeavors helped persuade him. And Congressman Mineta came through: he was “absolutely wonderful,” said Coelho.⁷⁶ 

Although there were strong advocates for the ADA on the Public Works and Transportation Committee, there was also a powerful counter-voice in Congressman Bud Shuster (R-PA). Shuster repeatedly referred to his mother, who was “a double amputee in a wheelchair,” and how he “skinned my knuckles more times than I can count trying to jiggle her wheelchair through a door that should have been wider . . . or trying to lug a wheelchair up a set of stairs where there should have been a ramp."⁷⁷ There was no reason, he thought, that she would ever want or need to get on a bus, and he outright opposed equipping all buses with lifts. Many persons in the disability community, however, thought Shuster was out of touch with their sentiments. Persons in wheelchairs did not want to be pushed around and transported; rather, they wanted to control their own mobility and travel as independently as possible—which required accessible vehicles.

The Public Works and Transportation Committee had jurisdiction over transit: that is, transportation used primarily for commuter purposes. One of the biggest issues the committee faced was whether to include a lift on every transit bus. Eastern Paralyzed Veterans of America (EPVA) attorney Jim Weisman, who served as a transportation expert for the disability community, was amazed that some members were opposed to putting lifts on buses. It seemed “ridiculous to me,” he said, “because it was academic. . . . Transit authorities had just about given this up. [Everybody] who was anybody knew transit authorities knew that the handwriting was on the wall."⁷⁸

The alternative to equipping buses with lifts was providing paratransit service. Congressman Shuster emphasized that persons with disabilities in his district preferred paratransit over fixed-route buses. So might most people, given a chance to have door-to-door transportation. The problem with paratransit service was that its expenses were unlimited, whereas for fixed route systems the primary cost was a onetime lift installation. Fixed-route buses collected money with every ride; each ride on paratransit cost the operator substantial money. Consequently, paratransit service was unable to meet the demand of its clientele. Transit authorities such as APTA, as Weisman observed, were becoming convinced that it was more cost-effective for them to purchase lift-equipped buses and were thus very moderate in their reservations about the ADA. Members of Congress were the most vigorous opponents. Ultimately, however, the committee sided with its constituents who pushed for lift-equipped, fixed-route bus systems and a supplemental paratransit service for those unable to use standard service.

Debate about what to do with intercity bus services such as Greyhound was much more contentious. Senators had responded by removing the original lift mandate and requiring that a three-year study assess the most effective and cost-efficient accessibility. Greyhound and the ABA argued that people who could not manage the steps into an intercity bus should simply be carried onto the bus. The difference with intercity (“over-the-road”) buses was that a lift potentially took away seats and luggage space. Companies such as Greyhound were in many cases the only transportation serving rural areas. They argued that the loss of revenue from lift-installation would necessitate reduced service areas, and that many people would thus be deprived of their only form of transportation. The disability community used the same evidence to make the opposite point: since buses were in some cases the only available form of transportation, it was imperative that persons with disabilities be able to use them. They also argued that it was unfair for Greyhound, which was struggling financially, to point to accessibility as the cause or potential cause of its problems. Ultimately, the committee agreed with the Senate’s provision requiring a study and thereby delayed the final decision.

The Public Works and Transportation Committee’s primary responsibility with respect to the ADA was bus transit, subways, paratransit, and intercity buses, but it had jurisdiction over rail systems operated by transit authorities. Thus, certain commuter rail routes—for example, from Baltimore to Washington—fell under its jurisdiction. This meant that two different committees had the opportunity to craft rail requirements. The bill the Public Works and Transportation Committee brought before the mark-up, like that of the Energy and Commerce Committee, endorsed the Senate requirements for one car per train, and accessibility for all new vehicles. But an amendment was introduced at the Public Works and Transportation Committee mark-up that removed the accessibility requirement for all new vehicles. Proponents of the amendment contended that trains should be approached like airplanes, where only designated seats, not the entire plane, had to be accessible. The amendment attracted a small number of Democrats whose districts had made little headway in rail accessibility. Combined with the votes of Republicans, who almost unanimously supported the amendment, these Democrats’ votes helped give the amendment a majority. It was a significant defeat for the disability community, since the provision violated one of the community’s main principles: accessibility for all new vehicles.

The matter was not, however, settled. The amendment created a jurisdictional conflict that had to be settled by House leadership, the House Parliamentarian, and the Rules Committee. Chairman Dingell characteristically and vigorously argued that his committee’s jurisdiction should prevail. Democratic leadership on the Public Works and Transportation Committee, on the other hand, especially Congressman Mineta, subtly revealed to Congressman Hoyer and the House leadership that they supported the Energy and Commerce version of the ADA. To the relief of the disability community, the House Parliamentarian and the Rules Committee ruled in favor of Energy and Commerce.

‡ A fixed route system is one where public transportation is provided by vehicles that follow prescribed routes according to a fixed time schedule.

§ Light and rapid (or heavy) rail are categorized according to the volume of passengers carried, and have nothing to do with weight. An example of a light rail vehicle is a street car like those in San Francisco. An example of a rapid (or heavy) rail vehicle is one used for the Washington Metro subway system.

** Paratransit service is door-to-door service provided to qualified persons according to the inability to use standard public transportation. Use must be scheduled in advance, sometimes as much as a week, and can be restricted only to certain destinations, like doctors’ offices.

†† Demand responsive transportation means any system of providing transportation to the general public that does not operate according to a fixed schedule: for example, a hotel or rental car company running an airport shuttle.

‡‡ Intercity rail, as defined in the ADA, refers exclusively to transportation provided by the National Railroad Passenger Corporation (Amtrak).

§§ Commuter rail refers to any rail service, provided by public or private entities, used by the general public primarily for commuter purposes, as opposed to rail systems with dining and sleeping cars. Some routes may be “intercity” in nature: for example, commuting from Baltimore to Washington.

*** Over-the-road buses are those where passengers are elevated above a luggage compartment: for example, Greyhound buses.

67. Neas, interview, January 21, 1994.

68. Karen Peltz-Strauss, telephone conversation with author, June 5, 1997.

69. Congressman Bob Whittaker, 136 Cong. Rec. (May 17, 1990), p. H2433.

70. Karen Peltz-Strauss, telephone conversation with author, June 5, 1997.

71. American Psychological Association, “Comments on Energy and Commerce Committee ADA Staff Discussion Draft,” [no date], in possession of Feldblum.

72. Bill Dannemeyer, Joe Barton, Don Ritter, “Dissenting Views on the Americans with Disabilities Act,” in Committee on Energy and Commerce of the U.S. House of Representatives, Americans with Disabilities Act of 1990: Report Together with Dissenting Views, reprinted in Legislative History of Public Law 101-336, p. 615–17.

73. Quotation attributed to Glenn Anderson by Roger Slagle. Slagle, interview.

74. Ibid.

75. Ibid.

76. Coelho, interview, November 22, 1996.

77. Congressman Bud Shuster, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2436. As transcribed for the Cong. Rec., Shuster’s statement reads that he “skimmed” his knuckles. This appears to be a transcription error, and has been corrected silently in the text to read “skinned.” This is consistent with another reference to this experience where Shuster says he “banged up my knuckles.” Congressman Bud Shuster, statement, Committee on Public Works and Transportation, Hearings Before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, 101st Cong., 1st sess., Serial No. 101-32, (September 20, 1989), reprinted in Leg. Hist., p. 2561.

78. Weisman, interview.

Phase III: Judiciary Committee

After surviving review by the first three committees—Education and Labor, Energy and Commerce, and Public Works and Transportation—the ADA’s final committee hurdle was the Judiciary Committee. This final phase of the House committee process was also a symbolic one: the last chance for opponents of the bill to offer unrestricted amendments. Once the bill went to the House floor, the Rules Committee would allow only certain amendments for consideration. Similar to the Education and Labor Committee, where Subcommittee Chairman Major Owens effectively led the committee’s deliberations, Don Edwards (D-CA), Chairman of the Subcommittee on Civil and Constitutional Rights, essentially took the lead in the Judiciary Committee’s consideration of the ADA. Moreover, as with the Education and Labor Committee, Congressman Hoyer played a central role in shaping the Judiciary Committee’s negotiations and Congressman Bartlett continued to represent the Republican party.

The Judiciary Committee held three hearings, on August 3, October 11, and October 12, 1989. The Subcommittee on Civil and Constitutional Rights met for mark-up on April 25, 1990. The full committee held mark-up sessions on May 1 and 2, at which time it reported the ADA favorably to the House, as amended.

One of the hottest issues for the Judiciary Committee, which had jurisdiction over portions of the employment and public accommodations titles, was remedies. Prior to the Judiciary Committee’s consideration of the ADA, the Senate and the White House had reached a breakthrough compromise on the issue of remedies: the Senate agreed to restrict available employment and public accommodations remedies to those in the Civil Rights Act, which omitted punitive damages. As a result of this agreement, the Education and Labor Committee never even considered changing the available remedies. A crucial development during the Judiciary Committee’s deliberations, however, made them a live issue once again.

On February 7, 1990, Senator Kennedy and Congressman Hawkins introduced the Civil Rights Act of 1990. This bill amended the Civil Rights Act of 1964 by allowing courts to award compensatory and punitive damages at jury trials, to persons who successfully proved they were victims of discrimination. Because the ADA merely incorporated the remedies of the Civil Rights Act by reference, this proposed change to the Civil Rights Act would also apply to the ADA. Representatives from the disability community contended that this was consistent with earlier agreements with the White House, that the principle all along had been parity with the Civil Rights Act of 1964, regardless of whether those provisions were strengthened or weakened over time.

The Bush administration, however, felt betrayed and argued that their negotiated agreement expressly excluded punitive damages from the bill. On March 12, The Washington Post reported rumors that President Bush might withdraw his endorsement of the bill if the ADA did not expressly limit its remedial provisions to injunctive relief, reinstatement, and back pay. That same night, Attorney General Richard Thornburgh wrote a letter to Congressman Steny Hoyer. He said the administration opposed the link to the Civil Rights Act of 1964 and proposed that the conflict be resolved by specifying the current standards of the Act.⁷⁹

When the committee introduced an amended version of the ADA to the Subcommittee on Civil and Constitutional Rights on April 25, it sided with the disability community and retained the cross reference to the Civil Rights Act of 1964. Congressman F. James Sensenbrenner, Jr. (R-WI), however, introduced an amendment to eliminate the reference. Some people with disabilities suggested giving up on the remedies issue in order to save the rest of the bill, but the disability community generally lobbied vigorously to oppose this and all other “weakening amendments.” To the relief of disability activists, the Sensenbrenner amendment failed. Sensenbrenner tried to pass the amendment a second time when the full committee met on May 1 and 2, but it was voted down again. In its report on the bill, the Judiciary Committee argued that the Sensenbrenner amendment was “antithetical” to the very nature of the ADA. It also referred directly to the Civil rights Act of 1990 and stated that any changes there would be applied to the ADA.⁸⁰ Sensenbrenner joined five colleagues in authoring “Additional Views” for the report, where they continued to insist on the need for the Sensenbrenner amendment. They also cryptically threatened that a failure to pass it might jeopardize the entire ADA.⁸¹

The most significant contribution of the Judiciary Committee concerned “site specific” factors for the determination of “reasonable accommodation” and “readily achievable”. Discussions on the topic had begun in earnest between Congressmen Hoyer and Bartlett during the Education and Labor Committee’s deliberations and continued throughout the House deliberations. For the most part, the Judiciary Committee introduced the same changes proposed by the Education and Labor Committee. But the Judiciary Committee rearranged the factors for clarity and for different emphasis. It was primarily concerned with avoiding a determination that sided either with the local facility or the covered entity. Rather, the committee stressed that, on a case-by-case and flexible basis, both entities should be evaluated. Moreover, it emphasized that the relationship between the parent company and the local facility should be taken into consideration.

The committee made many other changes, most of which were technicalities compared with earlier, more sweeping compromises. In addition to clarifying the cross-referencing on remedies and site-specific factors, the Judiciary Committee added a new section to the bill that encouraged alternative dispute resolution through reconciliation before moving to litigation. And it made technical changes to the interim standards of accessibility. The final amendment accepted by the Judiciary Committee was a package of six amendments introduced by Congressman Fish, based on negotiations that included the disability community, the White House, and Congressmen Hoyer and Bartlett. Essentially, three of the amendments came from the disability community, and three from the administration. For the administration, the committee added language clarifying: the meaning of “direct threat,” the standards by which “anticipatory discrimination” were valid, and that an employer’s view of what constituted “essential functions” would be considered by courts. For the disability community, the package included clarification about which entities were covered in the public accommodations title and what was meant by “commercial facilities.” It also provided that places where exams were administered had to be accessible.⁸²

Additional amendments were introduced, but they failed. Two of these failed amendments—a proposal to cap an employer’s obligation to provide accommodations at 10 percent of an employee’s salary, and a proposal to enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions—would reemerge on the House floor. On May 2, the Judiciary Committee concluded its deliberations by favorably reporting its version of the ADA to the full House.

79. Richard Thornburgh to Hamilton Fish, March 12, 1990, printed in Cong. Rec., vol. 136 (May 22, 1990), p. H2613.

80. House Committee on the Judiciary, Americans with Disabilities Act of 1990: Report together with Additional and Dissenting Views, 101st Cong., 2nd sess., Rept. 101-485, Pt. 3, May 15, 1990, reprinted in Leg. Hist., p. 488.

81. “Additional Views of Hon. F. James Sensenbrenner, Jr., Hon. Bill McCollum, Hon. George W. Gekas, Hon. William E. Dannemeyer, Hon. Lamar S. Smith, and Hon. Craig T. James,” in ibid., pp. 528–31.

82. Feldblum, interview, March 14, 1997.

Moving to the House Floor

The ADA proceeded rapidly to the House floor after the Judiciary Committee completed its work. On May 14 and 15, 1990, the four committees submitted their reports, which included four different drafts of the ADA. It was then the task of the Rules Committee to produce a bill that synthesized the four versions. A bipartisan staff working group collaborated to sort out the different texts. The only conflict was between the transportation committees over whether new rail vehicles had to be accessible. Otherwise, it was a matter, albeit a challenging one, of piecing everything together. The staff working group crafted a new bill, H.R. 4807, which they substituted for the text of H.R. 2273. On May 16, the Rules Committee submitted its own report that included the new version of H.R. 2273 and a resolution, H. Res. 394. This resolution provided that, at any subsequent time, the Speaker of the House could take up H.R. 2273, the Americans with Disabilities Act, for consideration on the House floor.

Floor deliberations are somewhat of a free-for-all in the Senate: a senator may introduce virtually any amendment, even one that is not germane to the bill, and also filibuster—dominating the floor for unlimited time. The House, by contrast, conducts its floor proceedings according to rules established by the Rules Committee. In the case of the ADA, H. Res. 394 submitted a modified closed rule, meaning that general debate would be restricted and that only specific amendments would be allowed for consideration. The resolution provided that at any time after adoption of the resolution the Speaker of the House could resolve the House into the Committee of the Whole House on the State of the Union for consideration of the ADA and the proposed amendments.††† There would be two hours of general debate: 30 minutes for each committee, split equally between majority and minority members. Eight amendments were approved for consideration.

On May 17, only one day after the Rules Committee presented its resolution, the House met to consider passage of the ADA. The first order of business was to accept the closed rule. Minority congressmen protested. Congressman Robert S. Walker (R-PA) called it a “totalitarian rule” and said the committee used “a process which is both undemocratic and . . . sad."⁸³ Congressman Bill McCollum (R-FL) said the rule was “an abomination” and “ridiculous” and suggested that the lack of House activity that session provided plenty of time for free debate.⁸⁴ Congressman Lynn Martin (R-IL) complained that only 8 of the 45 amendments proposed to the Rules Committee were accepted, and noted that a proposal to have an open rule was defeated on a strict party line vote.⁸⁵ Congressman Newt Gingrich (R-GA) said the ADA was an “extraordinarily important bill” and that consideration of every amendment submitted to the Rules Committee was therefore appropriate.⁸⁶ Congressmen in the majority, however, generally supported the rule and argued that allowing open debate would undermine all the agreements made in the committees and defeat the basic purpose of committee deliberations. As is customary, the House passed the rule on virtually a straight, party-line vote.⁸⁷

Immediately following the vote, the House resolved itself into the Committee of the Whole. Congressman Hoyer took the lead for ADA supporters throughout the deliberations and frequently entered debate to clarify various aspects of the ADA. The general debate provided members an opportunity to make basic statements about the virtues and problems of the bill, review the history of committee deliberations, and note key accomplishments. Hoyer drew special attention to how the ADA was “truly the product of thousands and thousands and thousands of people."⁸⁸ Similarly, Congressman Owens thanked “all of the members of the community of people with disabilities, who 43 million strong raised their voices across the Nation, and it was their push, their sense of empowerment, that has brought us to where we are."⁸⁹ Hoyer also emphasized how much business interests were taken into consideration: “We have worked closely with them, and adopted numerous amendments, to ensure that American business can work with the ADA."⁹⁰

Others, however, thought more work needed to be done. Congressman Bartlett was Congressman Hoyer’s counterpart in coordinating the efforts to amend the ADA. Congressman McCollum said the issue was not whether to bestow civil rights, but how to “minimize costs to the employers while still doing that."⁹¹ Back and forth across the aisle, Democrats emphasized the bill’s balance and the need to reject “weakening” amendments, and Republicans stressed the potential pitfalls of the bill and the need to fine tune it with further amendments.

The House considered four of the seven amendments on May 17. Two were non-controversial. Congressman John J. LaFalce (D-NY), based on the Small Business Committee hearing he chaired, proposed postponing the time at which civil actions could be brought against a covered entity. Republicans and Democrats united in unanimous support.⁹² The House also approved, by voice vote, Congressman James V. Hansen’s (R-UT) amendment to allow wheelchair use in wilderness areas.

Congressman Jim Olin’s (D-VA) amendment, to impose a 10 percent salary cap on the amount of accommodations an employer had to provide an employee, was more contentious. The NFIB strongly endorsed the amendment, and Congressman McCollum called it “the small business amendment in this legislation.” He suggested that a vote against it would be a vote against small business—a position no member was eager to take.⁹³ The bill would have put a finite dollar cap on accommodations. But, according to ADA supporters, there were two main problems. First, as Congresswoman Patricia Schroeder (D-CO) said: “It is great for Donald Drumpf. It is lousy for the person who is cleaning up after Donald Drumpf."⁹⁴ The amendment would mean that persons with similar disabilities would not be given individualized treatment—a central premise of the ADA. Rather, they would be grouped according to income level.

Second, as Congressman Bartlett stated forcefully, the amendment “would in fact be harmful both to those who are disabled and to the employers themselves.” By setting a dollar cap, persons with disabilities might insist on 10 percent of their income as a mandatory level of accommodation, when much less might be needed. “The Olin amendment attempts to set a ceiling,” said Bartlett, “but in fact it sets a floor."⁹⁵ Members on both sides argued that they had the White House’s support. Congressman Fish, on one hand, said the Bush administration had tried to negotiate a similar amendment at the committee level but concluded that the principle was unacceptable. Congressman Olin, on the other hand, said he had called the White House during the course of deliberations and was told the administration “very much favors” the amendment.⁹⁶ Bartlett put an end to the discussion by declaring that the White House had no position. The final vote was close. The 32 members who did not vote could have passed the amendment, which failed 187 to 213. As with each of the contested amendments, votes split along party lines. Whereas 71 percent of Democrats voted no, 74 percent of Republicans voted yes.⁹⁷

The most controversial amendment to reach the floor was the Chapman amendment, which would enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions. The issue of AIDS was not new. It had always been covered by the ADA. From the beginning, many organizations supported the bill precisely because it offered protection to persons with HIV and AIDS. Moreover, the provisions in the ADA that protected persons with AIDS essentially replicated what had already been settled in the Fair Housing Amendments Act. Nevertheless, the Chapman amendment posed a significant challenge to members, most of whom would have preferred the issue did not exist. By this time, in May, 1990, it appeared the ADA would pass; few wanted to stand in its way. But members also feared that being forced to vote on an “AIDS” amendment during an election year could be damaging: a perfect ten-second sound bite. Moreover, the Chapman amendment was precisely the kind of issue that could kill the ADA. It seemed to represent more than just concerns about contagious diseases: it looked like a way to stop the ADA in its tracks.⁹⁸

Congressman Jim Chapman (D-TX) led the debate in favor of his amendment. By having a Democrat such as Chapman lead the charge, supporters of the amendment might counter the perception that it was a Republican amendment and enlist the support of more Democrats. For similar reasons, the lead floor opponent of the amendment was Republican Congressman Fish. Arguments in support of the amendment rested on the claim that customers who knew that food handlers at a given establishment had AIDS would discontinue taking their business there. “The reality is that many Americans would refuse to patronize any food establishment if an employee were known to have a communicable disease,” said Chapman. He also argued that the “hospitality” industry was the best employer of persons with disabilities and that it would be foolish to harm that source of employment.⁹⁹ Congressman Douglas, who introduced the same amendment in the Judiciary Committee, supported it “because perception is reality."¹⁰⁰ Significantly, Chapman, Douglas and others admitted that there was no known evidence that AIDS could be transmitted through food handling. The amendment was needed not to stop the spread of AIDS, they said, but to protect businesses from fears and prejudice.

For ADA supporters, as Congressman Ted Weiss (D-NY) said, “The Chapman amendment flies in the face of the very purpose of the ADA” by institutionalizing irrational discrimination.¹⁰¹ Congressman Jim McDermott (D-WA), who was also a physician, said he would support the amendment if it protected public health. “But the amendment is not about the reality of contagious disease,” he explained. “It is about the fear of contagious disease.” The amendment established public policy in contradistinction to known facts “in deliberate deference to the fears and prejudice of others.” This, he said, was “bad medicine, bad science, bad public policy."¹⁰² Congressmen Don Edwards (D-CA) and Steny Hoyer likened the amendment to arguments used against the Civil Rights Act: that “white customers would not eat in restaurants where black Americans were served,” as Edwards put it.¹⁰³ Hoyer simply called it “the Jim Crow amendment of 1990."¹⁰⁴

Largely due to the efforts of Congressman Hoyer, the Bush administration entered the Chapman debate by issuing formal statements on the medical facts of AIDS and food handling. Louis W. Sullivan, Secretary of Health and Human Services (HHS), and Dr. William L. Roper, Director of the Centers for Disease Control (CDC), wrote letters on the issue. They flatly repudiated the notion that persons diagnosed with HIV or AIDS posed a health risk in the context of food handling.

Congressman Fish brought the floor debate to a close by pleading: “We should not make exceptions to the principle in ADA that employment decisions should not be based on myth or stereotype. Mr. Chairman, the Congress must not enshrine ignorance and prejudice in the law."¹⁰⁵ Congressman Chapman, however, prevailed. In a strikingly close vote—199 to 187—the House supported the exclusion of persons with contagious and communicable diseases from food handling. The 46 members who abstained from voting easily could have swayed the tally. Although it was not as pronounced as in some of the other amendments, this issue also tended to split on party lines. Whereas 80 percent of Republicans supported the measure, 67 percent Democrats opposed it.¹⁰⁶

The Chapman amendment was the last of the day. The disability community, which made a commitment to staying united no matter what the cost, had encountered a significant defeat. Persons with HIV and AIDS, they believed, were equally entitled to civil rights protections. They also feared that allowing one group to fall prey to prejudice might establish a trend. Would persons with mental illness, for whom exclusions had also been proposed, be next? Where would it stop? More than anything else, it seemed inconceivable to embrace a nondiscrimination law that patently enshrined discrimination based on irrational fear.

Although the Chapman amendment was the first major defeat for the disability community in congressional floor deliberations, three more threatening amendments were left for consideration on May 22, 1990. Two concerned transportation. The Lipinski amendment was a repeat of the amendment passed by the Public Works and Transportation Committee and overruled by the Rules Committee: it rejected the requirement that all new rail vehicles had to be accessible. William O. Lipinski (D-IL) argued that his amendment provided better accessibility and did not weaken the ADA: it would guarantee space according to demand. But most members and spectators viewed it as undermining one of the basic premises of the ADA: that all new buildings and vehicles will be accessible, that society will not consciously build obstacles to persons with disabilities. Moreover, they pointed out that the Lipinski amendment would mean that spaces accessible for wheelchairs would be confined to one car, providing a sort of “cattle car” effect. The White House chose not to take a stand on the issue. The amendment failed decisively, with 75 percent of members voting against it.¹⁰⁷

The second transportation amendment came from Congressman Shuster. With the Rules Committee having supported the principle of all new transit buses being lift-equipped, Shuster proposed an alternative. He suggested that the Secretary of Transportation should be allowed to waive the requirements of accessible vehicles for urban areas of less than 200,000, or in non-urban areas, provided that the community designed an alternative based on input from persons with disabilities. Shuster was concerned that the lift mandate would be implemented at the expense of paratransit. But Congressman Mineta’s argument, that “local option simply does not work as a national policy,” prevailed.¹⁰⁸ Democrats tended to side with Mineta, and Republicans with Shuster. But, overall, the disability community won with a favorable margin: 64 percent of the House opposed the amendment.¹⁰⁹

The final amendment taken up by the House was a revisit of the Sensenbrenner amendment: restricting remedies to those currently stated in the Civil Rights Act of 1964. The basic argument on behalf of the amendment was that the potential to add punitive damages through the Civil Rights Act of 1990 represented a violation of the negotiated agreement with the White House. Congressman Bartlett, speaking in favor of the amendment, said it “simply codifies” what the Education and Labor Committee reported in principle.¹¹⁰ Although representatives of the disability community felt all along that the principle was parity, representatives of the administration and many Republicans felt that the compromise was a fixed reference to the Civil Rights Act, and that they therefore had been double-crossed. Congressman Sensenbrenner also expressed the widespread fear that the ADA would lead to excessive litigation and that the availability of punitive damages would do nothing but encourage adversarial law suits. The Bush administration expressly supported this amendment.

Opponents, however, thought that this amendment, like the Chapman amendment, struck at the very essence of the ADA. The philosophical basis of the ADA was the Civil Rights Act of 1964—that persons with disabilities should share the same civil rights protections as those possessed by other disadvantaged groups. To provide persons with disabilities with a different standard of remedies was discriminatory, they said. Congressman Dan Glickman (D-KS) conceded that there might be legitimate reasons for excluding punitive damages from civil rights laws, but said it was “unfair to lock the disabled into a lesser set of remedies."¹¹¹ As Congresswoman Schroeder said: “you have lesser rights if you have lesser remedies."¹¹² Congressman Bruce A. Morrison (D-CT) argued that it was an “abomination” to “plant the seeds of . . . discriminatory treatment before the courts, discriminatory treatment before the law,” in a bill expressly designed to prohibit discrimination.¹¹³

The voting results for this amendment were the most strictly partisan of all the amendments. Overall, the House rejected the amendment by a narrow margin of 54 percent. Democrats, however, opposed the amendment with an 81 percent majority, while Republicans supported the amendment with an 86 percent majority.¹¹⁴ After the vote on the Sensenbrenner amendment, the House Committee on the Whole reported the bill back to the full House for a final vote. Although no member requested a second vote on any of the amendments, Congressman Tom DeLay (R-TX) exercised his right to offer a motion to recommit the bill back to the Rules Committee for consideration. He proposed the committee consider two further amendments: one giving employers more latitude in evaluating drug and alcohol history in employment decisions, and another applying the entirety of the ADA to the executive and judicial branches. But the House rejected the motion with a 66 percent majority. As with the other votes, this decision split largely on party lines: 96 percent of Democrats opposed the amendment; 78 percent of Republicans supported it.¹¹⁵ After the DeLay motion was defeated, the House turned immediately to a recorded vote on the ADA. Both parties passed the bill overwhelmingly. Of the 423 members voting, 403 (95 percent) supported the ADA.¹¹⁶ The ADA was now destined for passage, but still more challenges lay ahead.

††† For most minor legislative initiatives that make it to the floor of the House, as in the Senate, there is only brief consideration, there are no amendments, and members approve the bill unanimously or by a voice vote. For major legislation such as the ADA, however, members generally want to debate the bill and offer amendments. In the House, such extensive consideration usually takes place by the House resolving into the Committee of the Whole House on the State of the Union, where fewer members are required to be present to conduct business and all amendments unrelated to the legislation in question are prohibited. Final passage must take place after reporting the bill, as amended, back to the House, where the amendments approved in the Committee of the Whole must be approved either en bloc or individually. Before the final vote, members have the option of requesting that the bill be recommitted back to committee for further consideration.

83. Congressman Robert S. Walker, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2412.

84. Congressman Bill McCollum, statement, ibid., p. H2414.

85. Congresswoman Lynn Martin, statement, ibid., p. H2411.

86. Congressman Newt Gingrich, statement, ibid., p. H2422.

87. Motion to vote on resolution. House: 251 of 413 (60.8%) voted yes. Democrats: 245 of 248 (98.8%) voted yes. Republicans: 159 of 165 (96.4%) voted no. 19 members did not vote. Resolution to adopt rule. House: 236 of 409 (57.7%) voted yes. Democrats: 222 of 242 (91.7%) voted yes. Republicans: 153 of 167 (91.6%) voted no. 23 members did not vote.

88. Congressman Steny Hoyer, statement, Cong. Rec., v.136 (May 17, 1990), p. H2426.

89. Congressman Major Owens, statement, ibid., p. H2431.

90. Congressman Steny Hoyer, statement, ibid., p. H2426.

91. Congressman Bill McCollum, statement, ibid., p. H2442.

92. House: 401 (100%) voted yes. Democrats: 249 (100%) voted yes. Republicans: 152 (100%) voted yes. 31 members did not vote.

93. Congressman Bill McCollum, statement, Cong. Rec., v. 136 (May 17, 1990), p. 2475.

94. Congresswoman Patricia Schroeder, statement, ibid., p. H2473.

95. Congressman Steve Bartlett, statement, ibid., p. H2472.

96. Congressman Jim Olin, statement, ibid., p. H2473.

97. House: 213 of 400 (53.3%) voted no. Democrats: 71 of 243 (70.8%) voted no. Republicans: 116 of 157 (73.9%) voted yes. 32 members did not vote.

98. Curtis Decker, interview, October 12, 1993.

99. Congressman Jim Chapman, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2478.

100. Congressman Chuck Douglas, statement, ibid., p. H2481.

101. Congressman Ted Weiss, statement, ibid., p. H2482.

102. Congressman Jim McDermott, statement, ibid., p. H2480.

103. Congressman Don Edwards, statement, ibid., p. H2480.

104. Congressman Steny Hoyer, statement, ibid., p. H2482.

105. Congressman Hamilton Fish, statement, ibid., p. H2483.

106. House: 199 of 386 (51.6%) voted yes. Democrats: 157 of 236 (66.5%) voted no. Republicans: 120 of 150 (80.0%) voted yes. 46 members did not vote.

107. House: 290 of 400 (72.5%) voted no. Democrats: 213 of 237 (89.9%) voted no. Republicans: 86 of 163 (52.8%) voted yes. 32 members did not vote.

108. Congressman Norman Mineta, statement, Cong. Rec., v. 136 (May 22, 1990), p. H2609.

109. House: 266 of 414 (64.3%) voted no. Democrats: 212 of 246 (86.2%) voted no. Republicans: 114 of 168 (67.9%) voted yes. 18 members did not vote.

110. Congressman Steve Bartlett, statement, Cong. Rec., v. 136 (May 22, 1990), p. H2616.

111. Congressman Dan Glickman, statement, ibid., p. H2616.

112. Congresswoman Patricia Schroeder, statement, ibid., p. H2615.

113. Congressman Bruce A. Morrison, statement, ibid., p. H2618.

114. House: 227 of 419 (54.2%) voted no. Democrats: 203 of 251 (80.9%) voted no. Republicans: 144 of 168 (85.7%) voted yes. 13 members did not vote.

115. House: 280 of 423 (66.2%) voted no. Democrats: 243 of 253 (96.0%) voted no. Republicans: 133 of 179 (78.2%) voted yes. 9 members did not vote.

116. House: 403 of 423 (95.3%) voted yes. Democrats: 250 of 253 (98.8%) voted yes. Republicans: 153 of 170 (90.0%) voted yes. 17 of 20 (85%) “no” votes were Republicans. 9 members did not vote.