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Drafting and Introduction of the Original ADA Bill - Part 11

Completing First Full Draft of ADA Bill and a Gameplan for Introduction

Preparatory work on the ADA bill shifted into a higher gear in July. For a meeting with the Executive Committee of the Council on July 10, I prepared what I consider a significant document in advancing the “staff draft” of the legislation – a “Gameplan for Introduction of the Americans with Disabilities Act.” The three-page paper began with statement of its Goal: “Introduction and enactment of the comprehensive equal opportunity law for Americans with disabilities as proposed by the Council in Toward Independence.” Next, I included what I called a “Reaffirmation” as follows:

At its last quarterly meeting in May, 1987, the National Council on the Handicapped reaffirmed its commitment to the enactment of a comprehensive equal opportunity law as proposed in Toward Independence. The Council expressly rejected an alternative approach of trying to enact more narrow portions of the law in a piecemeal fashion. The Council also restated its desire to move forward with its comprehensive proposal during the current session of Congress.

The remainder of the document consisted of a “Proposed Plan of Action.” In accordance with the hopes expressed by some members of the Council, as a “Target Date for Enactment,” I wrote “During the 100th Congress which ends in October of 1988.” And as “Target Date for Introduction of Bill,” I indicated “Near the end of the 1st session of this Congress in November of 1987.” I was aware that these were very ambitious, probably unrealistic, timetables, but I knew the Council would insist on speedy efforts toward progress on its proposal.

The “Gameplan” continued with an outline of “Steps before Introduction” under five headings. The first was “Continuing to line up support and develop coalitions among disability community.” It called for Council members to meet with, and make calls and write letters to appropriate organizations and individuals; for NCD staff to pursue similar meetings with organizations and individuals; and for presentations and explanations to describe the concept of, and generate support for, the legislative proposal.

The next category was “Obtaining Congressional Support.” Earlier in 1987, Chairperson Parrino had taken the initiative to approach Senator Lowell Weicker (R-Conn.) with whom she was acquainted. He had been chair of the Senate Subcommittee on the Handicapped from 1981 through 1986, but lost that post when the Democrats took control of the Senate in the 1986 election. Nonetheless, he was the ranking minority member on the subcommittee and retained considerable clout in disability policy matters in the Senate. He had indicated that he would be willing to support disability rights legislation if NCD drafted a proposal. In preparing the Gameplan, I drew upon that encounter and comments from some other Council members and Lex about particular members of Congress, and then sat down with Andi, the congressional affairs person on the staff, and developed a bipartisan list of several Senators and Representatives, whose backing would be valuable. We identified the following Senators: Lowell Weicker, Tom Harkin (D-Iowa), Edward Kennedy (D-Mass.), Robert Dole (R-Kans.), and Paul Simon (D-Ill.); and Representatives: Don Edwards (D-Cal.), Pat Schroeder (D-Colo.), Tony Coelho (D. Cal.), Jim Wright (D-Tex.), Steve Bartlett (R-Tex.), Hamilton Fish (R-NY), Mike Synar (D-Okla.), Jim Jeffords (R-Vt.), Claude Pepper (D-Fla.), Major Owens (D-NY), and Henry Waxman (D-Fla.). The plan was for members of the Council to meet with members of Congress, when we were ready and the time was right, and for NCD staff to meet with congressional staff members and committee staff.

A third category of steps to be taken was “Obtaining Support of Important Nondisability Groups”; specifically mentioned were the civil rights community, particularly the Leadership Conference on Civil Rights; “the elderly community”; “potential adversaries,” including the National Association of Homebuilders, the American Public Transportation Association, the insurance industry, hotel and motel organizations, the National Association of Manufacturers, and the Chamber of Commerce; and the Reagan Administration, including the White House, the Department of Justice, the President’s Committee on Employment of the Handicapped, and the President’s Committee on Mental Retardation.

The next heading was “Drafting Bill.” It began by stating an intent to “[c]irculate staff draft of bill to Council members for their informal review, comments, and suggestions” and ended with “[n]egotiate final draft of bill for introduction in Congress.” In between, I envisioned obtaining input from disability litigators, other disability professionals and experts, and “staff of key congressional supporters”; and revising the draft bill in response to comments and suggestions received.

Finally, I listed four tasks in the nature of “Staff Preparation and Prerequisites”:

  • Compile data, studies, and anecdotes to support the need for the bill and to provide documentation for the concepts it contains;
  • Develop Qs-and-As explaining proposals and providing responses to most likely questions and objections;
  • Develop a packet of information providing a brief explanation of the bill for dissemination to groups, individuals, and the media; and
  • Prepare an information dissemination plan for getting the word out to the various disability information networks, the media, and grassroots consumers.

I certainly would not characterize this Gameplan as a highly sophisticated, comprehensive, or exemplary product. It does, however, capture some of the kinds of strategic planning and documentation that are a necessary part of any attempt to do something as ambitious as enacting a major federal law. It encapsulates what we were thinking and planning as we prepared to move ahead with the ADA proposal. I presented the Gameplan to NCD’s Executive Committee and engaged in a two-hour discussion session with them at their July 10 meeting. After considerable back-and-forth dialogue and explanation, they greenlighted the plan.

With the Council's next meeting scheduled for the first week in August, Mrs. Parrino came to meet with Lex and me on July 22, 1987, to tweak the agenda for the meeting and to discuss her ideas about how to proceed with the ADA bill initiative. Her initial admonition was not to discuss the draft-bill-in-progress with people outside the Executive Committee of the Council until we had followed up on her prior contact with Senator Weicker as soon as we could. Her hope was that she/we could get him to endorse our draft bill and agree to sponsor it. She mentioned that we should work with his staff person named “Terry,” whom I knew to be Terry Muilenberg, former Staff Director of the Senate Subcommittee on the Handicapped, and whom I had worked with before. After securing the support of Senator Weicker and getting a draft of the bill approved by the National Council, she hoped to have us find broader backing for having it introduced in Congress by the end of current session in November – a timeframe that seemed unrealistic to me given all the work that still needed to be done. She envisioned that, after getting Senator Weicker on board, in September we would begin seeking wider support from other members of Congress and generally from various disability and other organizations. She indicated that she was hoping for “massive” endorsement of the bill from all sorts of disparate sources, including religious organizations, labor unions, the film industry (Screen Actors Guild), business executives, professional service organizations, vocational rehabilitation professionals, the Children’s Defense Fund (Marian Wright Edelman), educators, Lions Clubs, Rotarians, Optimist Clubs, the Joint Center for Political and Economic Studies (Eddie Williams) – a black policy think tank, Ken Cribb Jr. (advisor to President Reagan), and the Heritage Foundation.

In pursuit of her ambitious agenda for advancing the ADA proposal, Mrs. Parrino told us that by the 1st of September she would like to have us prepare: (1) a “side-by-side,” which I took to mean a section-by-section explanation of the likely provisions of the bill; (2) Qs and As (Questions and Answers) about the bill; and (3) examples of explanatory material about the legislative proposal. As to the last, she mentioned explanations of: why such a law is needed, why it would not involve excessive cost, what the National Council was, why we were not taking a piecemeal approach in our proposal, and what kinds of equal transportation requirements might be imposed.

After the meeting with chairperson Parrino, I got back to work on my draft of the ADA bill. On July 23, I added Findings and Purposes to produce the first full draft with no “To be inserted” notations. The new “Findings” subsection was comprised of six statements of would-be congressional findings. The first declared that “some thirty-six million Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older.” I had tried not to incorporate an estimate of the number of people with disabilities in Toward Independence or in the ADA bill draft. In Toward Independence, I had written:

Various estimates place the number of Americans with disabilities between 20 million and 50 million persons, with a figure of 35 or 36 million being the most commonly quoted estimate. A precise and reliable overall figure is not currently available, due to differing definitions, divergent sources of data, and inconsistent survey methodologies, which together make it impossible to aggregate much of the statistical information that is available.

I believed such concerns were even more germane in the context of the ADA bill, which was intended to protect people alleging discrimination who could demonstrate that they had disabling conditions, but also anyone who had been perceived or treated as having a physical or mental impairment, or had a record of having had one. However, a small deputation from the Rights Task Force of the Legal Committee of the Consortium for Citizens with Developmental Disabilities (CCDD) that included Liz Savage, Pat Wright, and Paul Marchand had come to me with a strong plea that we include an estimate of the population of people with disabilities in our proposed bill; they had had some exploratory discussions with potential sponsors, their staffs, and some disability lobbyists, and had come to believe that being able to convince members of Congress that there was a considerable “constituency” for such legislation would be a key to getting a bill introduced and passed, and that having a number of potential affected beneficiaries right in the bill would be a strong selling point. Knowing that the Findings section of bills is generally treated as not being part of their substantive content, I figured that including a rough estimate of people with disabilities in the U.S. as a congressional finding would be a political concession with little legal significance, so I took “the most commonly quoted estimate” of 36 million and put it in the first Finding in the draft bill.

The second Finding in the July 23 draft was that “historically, society has tended to isolate and segregate persons with disabilities, and, despite some improvements, discrimination against persons with disabilities continues to be a serious and pervasive social problem.” This wording was derived from the first Major Overall Conclusion in the Civil Rights Commission’s report Accommodating the Spectrum of Individual Abilities.[1]  The third Finding stated that “discrimination against persons with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, institutionalization, medical services, insurance, recreation, and access to public services.” This provision expanded upon a similar list of discrimination areas in the Accommodating the Spectrum report.[2]

The fourth Finding proclaimed that “every day, people with disabilities encounter various forms of discrimination, including outright, intentional exclusion; paternalistic overprotection; architectural, transportation, and communication barriers; refusal to make modifications to existing facilities and practices; exclusionary qualification standards and criteria; segregation; and relegation to lesser services, benefits, and opportunities.” The listed areas of discrimination encountered by people with disabilities correlate closely with the types of discrimination identified in Toward Independence as needing to be prohibited in an ADA law.[3]

Number five of the proposed Findings proclaimed that “the Nation’s proper goals regarding persons with disabilities are to assure equality of opportunity, full participation, independent living, and, wherever possible, economic self-sufficiency for such citizens.” When Chris Bell and I were at work writing the Accommodating the Spectrum report for the Civil Rights Commission, our supervisor on the project, Assistant General Counsel Jack P. Hartog, kept harping to us (sometimes to the point of exasperation) about the need to identify the ultimate goal – the “guiding star” as he put it – of legal advocacy and legislation – in this case, regarding prohibiting discrimination on the basis of disability. His relentless prodding led us to develop an entire chapter of the report under the title “The Goal of Full Participation,” based on recognition that “[g]overnment entities at all levels of modern American society have, with relative consistency chosen full participation as the desired objective for [people with disabilities].”[4]  We went on to discuss key, interwoven components of full participation, including equality of opportunity and independent living.[5] To these three overarching principles, in drafting the Finding on the goals of the ADA, I added economic self-sufficiency – a principal theme of Toward Independence and a catchphrase of the Reagan Administration’s disability-related policies.

In crafting the final Finding in the July 23 draft bill, I drew some language from Toward Independence, and borrowed a grandiloquent phrase from writings of Council member Justin Dart to produce the following: “the continuing existence of unfair and unnecessary barriers, discrimination, and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs our Nation billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” I intended this Finding as a simultaneous appeal to justice and fairness, to American pride, and to economic prudence. All six of the findings in the July 23 draft would remain, with only minor changes, in the ADA as ultimately enacted.

The Purposes subsection I added was relatively straightforward. It declared the purposes of the Act to be:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities;

(2) provide a prohibition of discrimination against persons with disabilities commensurate in coverage with that afforded in statutes prohibiting race, sex, national origin, and religious discrimination;

(3) to provide clear, strong, consistent, enforceable standards addressing discrimination against persons with disabilities; and

(4) to address the major areas of discrimination faced day-to-day by people with disabilities.

Apart from the addition of the “to-be-inserted” Findings and Purposes, the July 23 version of the draft bill was almost identical to the one I had developed by the end of January.

With a complete draft of the bill now in hand, the very next day I began tinkering with it. I reworded the fourth Finding slightly by taking out “paternalistic overprotection” and replacing it with “overprotective rules and policies.” I also inserted a new Finding (5) that stated: “census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally,” and required renumbering the subsequent Findings. The new Finding was included to spell out that persons with disabilities are a severely disadvantaged segment of society and that their inferior status is well-documented in census results, polling data, and other studies. On July 29, I made another change at the request of Pat Wright, with whom I had shared confidentially my draft section of “Forms of Discrimination Prohibited.” One provision of that section listed some practices that did not constitute discrimination outlawed under the legislation, including exclusions or other denials of equal treatment based on a “bona fide” application of qualifications standards, selection criteria, and similar criteria. Pat was concerned that the words “bona fide” were too obscure and legalistic for an average citizen to readily understand. After considering some other alternatives, I substituted the word “legitimate” for “bona fide.”

In addition to fine-tuning some language in the bill draft, on July 29, I had a meeting with Jean McGuire, with whom Lex and I had previously discussed the Council’s stance on the Fair Housing Act Amendments legislation. After I explained what we were working on in the ADA initiative, she said it was an exciting idea, adding that “timing is everything.” She asked some questions about the scope of coverage we envisioned, e.g., what activities and entities would be covered, and whether it would apply to recipients of contracts as well as grants. When I mentioned that medical services would be within the areas covered, she suggested that “health services” might be a better term. And when I indicated that our legislation would seek commensurate coverage with that afforded under other types civil rights laws, she questioned exactly what “commensurate” would mean. I found her questions insightful and told her I would consider her concerns and suggestions. I did not have time to deal with them right away, because I was leaving the next day to drive to Denver for the Council’s August meeting.

Continue to Part 12: Refining Draft ADA Bill and Contacts with Capitol Hill

[1] U.S. Comm'n on Civil Rights, Accommodating the Spectrum of Individual Abilities 159 (1983).

[2] Id.

[3] Toward Independence at pp. 19-20.

[4] U.S. Comm'n on Civil Rights, Accommodating the Spectrum of Individual Abilities 67 (1983).

[5] Id. at 67-68, 83-84,