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

Epilogue

The Americans with Disabilities Act of 1990, as so many people have said, was truly landmark legislation. It promoted an America in which all persons have the right to participate as valuable citizens. In the areas of employment, public services, public accommodations, and telecommunications, the ADA took steps to break down barriers that stood in the way of persons with disabilities and prevented them from reaping the benefits of our society and offering their own contributions.

It should be clear that the ADA is not the starting point of United States disability policy. The ADA stands on the legal foundation of the “twin pillars”: the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The former provided the philosophical foundation, the general principle of nondiscrimination. The latter offered a framework for applying nondiscrimination to persons with disabilities. These two legislative initiatives represent two streams of policy: civil rights and disability rights. With respect to each, elements of the ADA represent a portion of a continuum as well as a unique departure.

The ADA is similar to other civil rights laws in that it provides the same basic protections. Making employment decisions according to circumstances that do not have a bearing on actual performance is simply wrong. All individuals must have an equal opportunity to partake of such social services as public transportation. No one should be denied access to places of public accommodation. All must be able to share in our nation’s communication system.

Applying these principles to persons with disabilities, however, required unique attention. By the end of the 1980s, state and federal laws had established a central principle of the ADA: that in granting civil rights to persons with disabilities, equal treatment alone is inadequate. Truly equal opportunity for people with disabilities required that governments and businesses take proactive steps to provide opportunity. This might mean adding a lift to a bus, providing an employee with an amplified telephone headset, ramping a few steps, installing braille signs, or allowing an individual to modify his or her work schedule. Unlike providing civil rights to minorities or to women, however, bestowing civil rights upon persons with disabilities could therefore require governments and businesses to spend money. Unique among civil rights laws, this meant that disability rights had to be balanced against the fiscal responsibility of society.

In the context of disability rights legislation, the various provisions of the ADA are not unique. In fact, virtually every one had been implemented somewhere in the nation by a state or local government in the form of new laws and constitutional amendments. The ADA built on these provisions as well as on federal statutes and court cases. The ADA was nonetheless unique amidst this growing nationwide recognition of disability rights in its comprehensive application to the entire nation and the private sector.

Pat Wright likens disability policy before the ADA to Swiss cheese covering a map of the United States: there were many holes where there were little to no civil rights protections for persons with disabilities. Disability policy under the ADA, by contrast, is more like a piece of American cheese: it covers the entire nation thoroughly and uniformly.¹ Every new building must follow accessibility guidelines. Every new transit bus must be accessible. No place of public accommodation can willfully exclude persons with disabilities. Every state must provide a telecommunication relay service. No employer can overlook an applicant because he or she required a reasonable accommodation.

These two unique aspects of the ADA—civil rights that had financial implications and comprehensive application to the public and private sectors—are what made the ADA’s passage so difficult. The overwhelming margins in both the House and the Senate with which the ADA was finally approved mask how challenging it was to work the bill through Congress and acquire a signature from the president. By the fall of 1989, it was evident that an ADA would pass in some form, but the provisions it would contain were still very much contested. Only through intense efforts were disability rights advocates able to achieve their goals.

No single factor alone can account for the ADA’s success. Rather, a whole host of factors worked in its favor. First and foremost, the ADA is a tribute to the growth and organization of the disability rights movement. Through such pivotal developments as the protests to issue the Section 504 regulations and the nationwide outcry against President Ronald Reagan’s Task Force on Regulatory Relief, the disability community asserted itself and became a political force to be reckoned with. On the state and local levels, persons and parents of persons with disabilities fought aggressively to obtain for themselves and their children decent education and employment opportunities. Students on college campuses organized to demand greater accessibility. Centers for independent living built systems of community support and helped people with disabilities understand and exercise their rights. Disability-specific and cross-disability organizations advocated for state and federal laws that became building blocks for the ADA. And people with disabilities demonstrated a willingness to take to the streets and risk arrest to bring public attention to the problems they faced. There could have been no successful and meaningful ADA without a ground swell of people who demonstrated what happened in the absence of significant legal protections and told positive stories of how legislative initiatives helped improve their lives.

In addition to providing sheer numbers to demand passage of the ADA, the disability rights movement produced extraordinarily effective leaders. Disability rights advocates such as Pat Wright, Ralph Neas, Justin and Yoshiko Dart, Liz Savage, Paul Marchand, Marilyn Golden, and Lex Frieden were simply remarkable. The legal expertise of people such as Arlene Mayerson, Chai Feldblum, Robert Burgdorf, Jim Weisman, David Capozzi, Timothy Cook, Karen Peltz- Strauss, and Bonnie Milstein was indispensable. Scores of organizations and their members contributed countless hours to the ADA campaign. Over the course of the 1980s, the disability community proved that it could stand its own ground in the court room and in the halls of Congress. Moreover, the disability community effectively formed crucial relationships with members of Congress and the White House. By the time the ADA emerged on the national scene, people were in place to move it.

The success of the ADA is due in no small part to the American civil rights heritage. The Civil Rights Act of 1964 provided not only a legal principle that could be extended to other constituencies, but also a model for civil protest to achieve political goals. Although during the 1970s and 1980s there were attempts to roll back some of the achievements of the civil rights movement, the basic notion that no individual should be denied basic civil rights endured. Because the disability community successfully presented the ADA as a civil rights initiative, few could afford to take the position of opposing the ADA outright. Indeed, a crucial development in the ADA’s success was that even those organizations that worked to tighten and refine the ADA in Congress called themselves the Disability Rights Working Group. The disability community forced opponents to fight the battle on its own terms: opponents had to explain why disability advocates’ proposals should not be implemented. Forming a tight bond with Neas and the Leadership Conference on Civil Rights (LCCR) was essential for that achievement.

More than any other single player, the role of President Bush cannot be overestimated. The ADA would have made little headway were it not for the early and consistent support from the nation’s highest office. Of course, the president did not do the detail work: there were plenty of others to assume that role. But, by speaking out on behalf of the ADA, Bush made passage more certain. In Congress, Democrats were primarily responsible for pushing the ADA aggressively forward. The president’s support brought people to the table to work out a bipartisan compromise bill that could attain the support of the business community as well as that of the disability community.

The ADA’s progress in Congress and the administration was dependent largely on the roles of key individuals who were extraordinarily dedicated to the objectives of the ADA. Part of this was due to personal experience, either from having a disability or through a relative’s disability. Senator Tom Harkin’s (D-IA) brother was deaf. Senator Edward M. Kennedy (D-MA) had a son who lost a leg to cancer and a sister with mental retardation. Senator Orrin G. Hatch’s (R-UT) brotherin- law was paralyzed from polio. Senator Robert Dole (R-KS) acquired partial paralysis from a war injury. Senator Lowell P. Weicker, Jr. (R-CT) had a son with Down’s Syndrome. Congressman Tony Coelho (D-CA) had epilepsy. Congressman Steny H. Hoyer’s (D-MD) wife had epilepsy. These and other personal encounters with disability made the ADA vitally real to many members of Congress.

The same was true for the Bush administration. President George Bush had a daughter who died from leukemia, a son with a learning disability, an uncle with quadriplegia, and a son whose cancer required a plastic ostomy bag. Attorney General Richard Thornburgh’s son had a traumatic head injury. EEOC Chairman Evan J. Kemp used a wheelchair because of a form of muscular dystrophy. White House negotiator Robert Funk had part of one leg amputated due to a disease similar to leprosy and tuberculosis. These and other members of Congress and White House officials approached the ADA with a passionate desire to see not only their own and their children’s lives improved, but those of the entire population of Americans with disabilities.

One of the key factors of the ADA’s success was, as President Bush said, the desire of members of Congress and representatives of the Bush administration, “on both sides of the political aisle,” to “put politics aside” and “do something decent, something right."² This is seen most clearly in the negotiations between the Senate and the White House during the summer of 1989 and the member-to-member negotiations of Congressmen Steny Hoyer and Steve Bartlett (D-TX). Although working out the details was frequently intense, most Washington political leaders supported the basic goals of the ADA and wanted to see people with disabilities enter the mainstream of American life. This cooperation was critical. Voting on the ADA “would have come out as deep partisan splits,” said Chai Feldblum, “if people had not committed to engage in a negotiation process and if the negotiation process did not have effective people in them."³

Another crucial factor that helps explain the ADA’s positive reception in Congress was the extent to which the ADA drew on ideological justifications from both the left and the right. Historically, the disability community has had a powerful Democratic contingency because of its insistence on governmental support and its identity as a disadvantaged class. But the ADA entered Congress at the behest of a Republican federal agency: the National Council on the Handicapped (NCD). NCD’s work in reviewing federal disability programs, identifying problems, and making legislative proposals, among them passage of equal opportunity laws, rooted the ADA in principles of independence, personal choice, and fiscal responsibility. By presenting the ADA as a way to reduce dependence on government, the NCD helped win over people who might otherwise be reluctant to extend civil rights protections.

There was a certain inherent righteousness to the ADA. How could one argue with the desire of people who wanted simply to become part of the American mainstream and to share in the fruits of society that others took for granted? “What’s wrong with a person trying to work instead of securing welfare?” asked Wright.⁴ People involved in the ADA’s passage recognized that the cause was just. “I’m convinced that maybe more than anything else I ever worked on,” said Ralph Neas, “people were motivated primarily by what they perceived as the right thing to do.” There was comparatively little negative fallout for advocating the ADA: “you could do the right thing without really getting anybody that upset."⁵ Some people question whether pity played a role in the ADA’s passage. Congressman Coelho appropriately said the issue is irrelevant. “If what you want to do is really right,” he said, “get the votes and worry about those other things later."⁶

One factor that helped secure the necessary votes was that the deliberations over the ADA were, for the most part, kept out of the “gutter.” Although ADA advocates wanted to educate the public about the ADA, especially administration officials and members of Congress, they worked to control the level of press coverage. People such as Congressman Coelho and Pat Wright feared that the press might distort the ADA. As Rochelle Dornatt of Coelho’s staff explained: “it would be too easy to lose control over the spin of what this bill was supposed to be, which was a bill to help people realize their potential and incorporate them and assimilate them into . . . American society, as opposed to boiling it down to its dollar figures."⁷ Coelho repeatedly told those around him, “I don’t want fanfare, I don’t want a lot of publicity.” Rather, the goal was to work toward agreement with members of Congress and the Bush administration quietly and efficiently.⁸ Wright described it as “a press blackout."⁹ While this helped the ADA make it through Congress, Denise Figueroa noted that it had the side effect of limiting the general public’s knowledge of the ADA, which complicates the implementation process. Nevertheless, “in retrospect, I would do it again,” says Wright, “because the final bill simply would not have looked the same if we had carried the debate into the press."¹⁰

Although this historical account closes with the signing of the ADA into public law, the history of the ADA does not end on July 26, 1990. It continues through the important process of regulation-writing and implementation. In stark contrast to the regulatory delay regarding Section 504, the Department of Justice and the Equal Employment Opportunity Commission moved with striking speed to issue their regulations within a year of the ADA’s signing. On July 26, 1991, Attorney General Thornburgh signed the regulations at a ceremony reminiscent of President Bush’s signing a year before.

In the years since the ADA’s passage, the act has proved remarkably durable. This is a tribute to the deliberative process that refined the ADA. Many critics have claimed that the ADA was passed as motherhood and apple pie and without serious consideration. But the Senate and House records indicate that such assertions are false. Members, staff, disability advocates, officials from the Bush administration, and representatives of covered entities scrutinized every title, section, paragraph, line, and word of the ADA—countless times. The intense and detailed deliberations, especially those in the House, served an important function. Although businesses and other covered entities were not entirely satisfied with the outcome, the ability of the business and disability constituencies to work together toward scores of compromises helped make a bill that can achieve broad support, promote voluntary compliance, and avoid subsequent amendments.

Truly, the process by which the ADA became public law stands as a model for the legislative process and for cooperation between Congress and the White House. Neas observed that it is an example others would do well to follow “in terms of bipartisanship, in terms of broad coalitions, in terms of strategies, and media efforts, and grassroots efforts, as well as the legislation lobbying effort."¹¹ The ADA did not solve every predicament facing people with disabilities. But it took giant steps forward, shattering the barriers of today and tomorrow, so that the future may be shared by all. “It is the world’s first declaration of equality for people with disabilities,” said Justin Dart. “It will proclaim to America and to the world that people with disabilities are fully human; that paternalistic, discriminatory, segregationist attitudes are no longer acceptable; and that henceforth people with disabilities must be accorded the same personal respect and the same social and economic opportunities as other people."¹²

The dawn of a new day.

1. Pat Wright, interview, February 7, 1997.

2. George Bush to Jonathan M. Young, February 26, 1997, in possession of author.

3. Feldblum, interview, March 14, 1997.

4. Wright, telephone conversation with author, April 30, 1997.

5. Ralph Neas, interview, January 21, 1994.

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

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

8. Coelho, interview, December 2, 1996.

9. Wright, telephone conversation with author, April 30, 1997.

10. Ibid.

11. Neas, interview, January 21, 1994.

12. Justin Dart, “ADA: Landmark Declaration of Equality,” Worklife 3:3 (Fall 1990), p. 1.