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

Executive Summary

Laying the Foundation:
Disability Policy & Activism, 1968-1988

In retrospect, it seems as if the Americans with Disabilities Act (ADA) passed Congress easily. But most people aware of the proposal in 1987 thought success, at that time, was doubtful. The fact that the ADA did reach President Bush’s desk and was signed into law is a tribute to the groundwork that had been laid in the previous two decades. A string of legal precedents expanded upon the foundation of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. A nationwide disability rights movement emerged from within the disability community. Attorneys in the disability community attained a high degree of legal sophistication. Disability organizations successfully united with the civil rights community to promote disability policy as a civil rights issue. The disability community established extensive networks among its constituencies, Congress, and the White House. Numerous effective and talented leaders emerged from within the disability community to help guide the ADA through Congress. Without these developments, the ADA likely would have failed.

Putting the ADA on the Legislative Agenda:
The National Council on Disability

Successful passage of a law depends first on getting a proposal to Congress as a viable policy option. For the ADA, this role as facilitator was performed by the National Council on the Handicapped (now National Council on Disability, [NCD]). In 1984, Congress issued NCD a mandate to review all federal programs relating to disability and offer recommendations on how Congress could best promote the independence of persons with disabilities and minimize dependence on governmental programs. NCD’s primary recommendation to Congress was a call for passage of a comprehensive, equal opportunity law for persons with disabilities. Subsequently, NCD decided to take action by drafting its own legislative proposal for congressional consideration. NCD successfully solicited Senator Lowell P. Weicker, Jr. (R-CT) and Congressman Tony Coelho (D-CA) to sponsor the ADA and introduce the bill to Congress. After incorporating recommendations offered by representatives from the disability community at large, Weicker and Coelho introduced the ADA to the Senate and House on April 28 and April 29, 1988.

Publicizing the ADA:
Advocacy and the Government Response

ADA advocates introduced their proposal in 1988 not with the expectation of passing the bill that year, but as an opportunity to create momentum by empowering people throughout the nation to advocate for the bill. They planned to use the politics of an election year as a way to publicize the ADA and gain a foothold as a top priority for the next session of Congress. During this year, representatives from the disability community began to form an ADA coalition to promote passage of the ADA. This coalition worked with members of Congress to solicit cosponsors and encouraged the presidential candidates to endorse the bill. It also effectively used this time to begin mobilizing nationwide grassroots advocacy for the ADA to demonstrate that people throughout the country (not just a few persons from a think tank) demanded its passage. Powerful testimony from persons with disabilities helped document the desperate need for legislation such as the ADA. As a consequence, ADA advocates successfully positioned the ADA for serious introduction in 1989.

Creating a Workable ADA:
The Senate and the White House

George Bush, who advocated for the rights of disabled persons in his campaign, was elected president in 1988 and subsequently promoted passage of the ADA. At the same time, however, Lowell Weicker lost his bid for reelection to the Senate. In Weicker’s absence, Senator Tom Harkin (D-IA) became the Senate ADA sponsor. In conjunction with Senator Edward M. Kennedy (D-MA) and with the participation of a variety of constituencies, Harkin rewrote the ADA in a form that stood a reasonable chance at passage. On May 9, 1989, Harkin and Congressman Coelho simultaneously introduced the ADA to both houses of Congress. Coelho, Kennedy and Harkin decided to begin deliberations in the Senate. After hearings held in May and June, 1989, the Senate entered a series of negotiations sessions with the Bush administration to craft a bipartisan, compromise bill. On August 2, the Senate Committee on Labor and Human Resources voted unanimously to report the ADA, as amended, to the Senate floor. The Senate passed the ADA by a vote of 76 to 8 on September 7, 1989.

Fashioning a Durable ADA:
The House of Representatives

Under the leadership of Congressman Coelho and, later, Congressman Steny H. Hoyer (D-MD), the House began its deliberations by using the bill approved by the Senate. The House process was more complicated than the Senate’s, in part because the bill went to four committees and six subcommittees. In contrast to the rapid action in the Senate, the House took nearly nine additional months to analyze and refine the bill. The dynamic was also much different because business organizations, who had deep concerns about the cost burden and the litigation potential of the ADA, lobbied vigorously by applying constituent pressure on members. The disability community now worked to hold the ground it had achieved in the Senate. The main issue in the House was the effect of the ADA on businesses and governments covered by the ADA’s provisions; many changes were made to make the ADA more acceptable to entities covered by the ADA. A series of “weakening” amendments were proposed and defeated at the committee level and on the House floor, where the House passed the ADA by a vote of 403 to 20, on May 22, 1990. One controversial amendment, however, did succeed. The Chapman amendment said that employers could legally remove persons with contagious diseases, such as AIDS, from food handling positions, even where there was no evidence that the disease could be transmitted.

Enshrining the ADA:
House-Senate Conference and the Signing

The overwhelming votes in favor of the ADA in both the House and the Senate seemingly destined the ADA for success. But the Chapman amendment passed in the House threatened to kill the bill: the disability community and its congressional sponsors decided not to support an ADA with the amendment. The conflict over food handling and contagious diseases had to be settled by a conference between the House and Senate, where conferees rejected the Chapman amendment, only to have members in both the House and Senate try to put it back into the ADA. After nearly two months of wrangling over the provision, the Senate developed a compromise through the leadership of Senator Orrin G. Hatch (R-UT). The House and Senate then passed the ADA in final form on July 12 and 13, 1990. On July 26, before about 3,000 persons, President Bush signed the ADA into law as Public Law 101-336.

Epilogue

The ADA is unique in the context of civil rights legislation because it requires that businesses and governments do more than just cease discriminatory actions. They must also take proactive steps to offer equal opportunity to persons with disabilities, commensurate with their economic resources. The ADA is distinctive in the context of disability legislation not for its individual provisions, most of which were already established in some form by various state and local governments, but in its comprehensive nature and application to much of the private sector. No single factor can explain the ADA’s success. A whole host of circumstances worked in its favor: effective leadership; advocates in key government positions; the rightness of the cause; the mobilization of the grassroots disability community; a string of legislative successes offering momentum; legal and lobbying expertise in the disability community; the willingness of persons with disabilities to unite for a common cause; the cautious support of the business community; and ideological justifications from both the right and the left. The time was right and the cause was just.