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Drafting and Introduction of the Original ADA Bill - Part 12

Refining Draft ADA Bill and Contacts with Capitol Hill

The National Council had a busy agenda for its August 3-5 meeting; discussion of the ADA proposal was only one of many things the members focused on and the Council did not pass any motions or take other formal actions regarding it. The attention that was devoted to the legislative proposal was almost entirely prospective – what the Council members’ expectations and hopes were for its advancement and introduction. I came away from the meeting pleased that the full Council appeared generally to be in accord with the “Proposed Plan of Action” in the “Gameplan” I had presented to the Executive Committee on July 10. At the August meeting, members of the Council echoed Chairperson Parrino’s hope that the bill would be passed in the 100th Congress by the end of 1988 (in fact, the 100th Congress would end in October of 1988). Justin Dart, who attended the August meeting although his term had expired and he was no longer a Council member, was less optimistic. He declared it would take years to obtain passage, but he believed the Council should move forward promptly to begin the process of publicizing the proposal, educating the public and politicians about it, and garnering the public and congressional support necessary to enact such a momentous law. Mrs. Parrino warned members to be ready for reviewing and commenting on drafts of the bill in upcoming months.

After the August meeting, I confided in my longtime colleague and friend, Tim Cook of PILCOP, that I was working on a comprehensive equal opportunity bill along the lines of the Americans with Disabilities Act proposal in Toward Independence. As I hoped and expected, he was very supportive and encouraging about my undertaking. And then, on August 24, he sent me a letter with six pages of the Congressional Record (pp. S 11058 – S 11063) attached. They dealt with the Introduction in the Senate on July 31, 1987, of the “AIDS Federal Policy Act of 1987, S. 1575, sponsored by Senator Ted Kennedy; among 12 cosponsors was Senator Weicker. The legislation tracked Section 504 of the Rehabilitation Act, and prohibited “discrimination against an otherwise qualified individual, solely by reason of the fact that the individual is, or is regarded as being, infected with the etiologic agent for AIDS.” It applied to employment, housing, public accommodations, and governmental services; and to the provision of benefits under any program or activity that receives or benefits from federal financial assistance. This bill was certainly consistent with the spirit of the ADA proposal, even if it differed in many ways in the conceptual and drafting details. But Tim Cook, looking as he often did, at the bigger picture, saw the AIDS Federal Policy as offering an opportunity for advancing our more comprehensive and more innovative legislation. He wrote me: “It occurs to me that we may want to try to utilize the proposed AIDS civil rights measure as a vehicle for pushing the National Council bill as well.” Tim’s suggestion was very prescient, because the ADA proposal would eventually become the major vehicle for outlawing discrimination against people with HIV infection or AIDS.

At the end of August, Lex received a copy of a draft bill titled the Equal Employment Opportunity Act of 1987, developed by William Bradford Reynolds, Assistant Attorney General for Civil Rights at the Department of Justice. Consistent with Reynolds’s preferred “piecemeal approach” instead of a comprehensive piece of legislation like the ADA proposal, the bill addressed only employment discrimination against people with disabilities. The draft bill was forwarded to the Council by EEOC, and accompanying it was a letter from Evan Kemp, a Commissioner at EEOC, commenting on the DOJ proposal.

In his letter, Kemp did not mince words, stating that he “was both surprised and disappointed by the DOJ draft.” He observed that the “draft bill essentially incorporates the section 504 statutory nondiscrimination mandate … and leaves the other substantive rights to be developed by EEOC regulations, presumably along the lines of existing EEOC regulations.” He wrote that he had two principal concerns with that approach. First, he believed it essential that the bill “authorize reasonable accommodation, define reasonable accommodation and undue hardship, establish a process for individualized accommodation, and set standards covering selection criteria, safety rules, and architectural accessibility.” Secondly, he urged that the existing EEOC regulations “provide insufficient guidance, both because they are themselves not specific enough and the standards they set do not go far enough if we as a society really want the integration of the 65% of disabled people of working age who are unemployed and excluded from society.” And while he noted that he had additional specific concerns with particular sections of the Reynolds draft bill, Commissioner Kemp felt it was “more important to concentrate on the central issue of whether to go beyond section 504 standards and to clearly set forth the reasonable accommodation process and require elimination of discriminatory selection, safety and architectural barriers.” He implored Reynolds to “let us begin [the] process with a ‘model bill’ that the disability community can support, not a bill that will be viewed as precatory or at best group oriented.” Perhaps due to Kemp’s critique or because it did not address discrimination outside of employment, the DOJ draft never gained much traction. It was a narrow and weak alternative to the Council’s ADA approach.

At the beginning of September, Mrs. Parrino informed us she had decided it was time to begin following up on Senator Weicker’s earlier tentative commitment to support a law prohibiting disability discrimination if the Council managed to formulate one. She wanted herself and other Council members to contact the Senator, and for us to work with his staff after the Council-member–Senator contact had been made. She was not aware that the common practice is for members of Congress not to meet with constituents, officials, interest groups, or others to discuss legislative proposals and other issues until after the Senator or Representative has been briefed by congressional staff. Thus, protocol called for us to get in touch with Weicker’s staff to bring them up to speed before the Chair and other members of the Council met with him. Accordingly, we decided that it behooved us to touch base pronto with Terry Muilenburg, a member of Senator Weicker’s staff and former Staff Director of the Senate Subcommittee on the Handicapped, which the Senator had chaired. I had learned early in my work in Washington how much power is wielded by staff persons of members of Congress.

What Mrs. Parrino was unaware of was that I already had a working relationship with Senator Weicker’s office going back several years. The Senator had chaired the Senate Subcommittee on the Handicapped from January 1981 to the end of 1986 and had his finger in many pies related to disability rights legislation. Days after publication in September 1983 of the Accommodating the Spectrum of Individual Abilities report that Chris Bell and I had written as staff attorneys for the U.S. Commission on Civil Rights, I received a phone call from Jane West. a staff person for Weicker. She had heard about the report and wanted to discuss it before bringing it to his attention. After talking with me, she extracted key facts and figures about discrimination against people with disabilities from the report for inclusion in a floor statement the Senator delivered on September 26. In it, he called his Senate colleagues’ attention to Accommodating the Spectrum, which he called “a most important and recent report,” and mentioned various areas of discrimination we had documented, including employment, medical services, architectural barriers, transportation, involuntary sexual sterilizations, voting, holding public office, and obtaining driver’s licenses. He called upon his fellow Senators to “fulfill the promise of equal opportunity for America’s disabled citizens.” Of course, Chris and I were delighted to see our work receiving accolades in the Congressional Record (S 12950 (Sept. 25, 1983)).

From reading the report or from talking with me, Jane also learned about my law school casebook on the legal rights of people with disabilities. She kindly crafted a reference to it into the first sentence of an Opening Statement that Senator Weicker delivered at a Subcommittee on the Handicapped hearing on Enforcement of Section 504 of the Rehabilitation Act: Institutional Care and Services for [Citizens with Intellectual Disabilities] in November 1983.[1]  It read: “In his comprehensive casebook The Legal Rights of Handicapped Persons, Robert L. Burgdorf Jr. writes that ‘the history of society’s formal methods for dealing with handicapped people can be summed up in two words: segregation and inequality.’” From time to time after that, we kept in touch about disability matters on which we were working. She kept me posted about things happening on Capitol Hill, for example, pending “Baby Doe” Amendments to the Child Abuse Reauthorization bill; and we discussed matters of common interest that her office was pursuing, such as a Bill of Rights for People with Disabilities, and a protection and advocacy system for people with mental illness. At various times, each of us served as a sounding board or tutor for the other – I on legal matters and she on political and congressional process fronts.

When Chris Bell and I had published our Statutory Blueprint article in February of 1984, I actually had at the back of my mind that Jane or someone else on the Hill would grab onto our ideas and draft a strong disability nondiscrimination law. Only later did I come to understand that such a complex, innovative undertaking would demand a level of civil rights and disability rights analysis, and drafting skills far beyond the scope of expertise, legal knowledge, and job description of even above-average Hill staffers.

After I joined the staff of the National Council in March 1985, I let Jane know about my new work gig. By that time, she was Staff Director of the Senate Subcommittee on the Handicapped. I subsequently learned of the key role that Senator Weicker and his staff person, John Doyle (Jane’s predecessor as Staff Director of the Subcommittee), had played in granting independent federal agency status to the Council. As Council staff, we communicated with the Subcommittee about the Council’s organizational status and funding. At one point, I shared with Jane some of my thinking about needed elements of stronger legal standards for addressing disability discrimination. I mentioned eliminating architectural, transportation, and communication barriers; prohibiting discriminatory qualifications and selection criteria; and requiring reasonable accommodation. She made a few suggestions, including addressing disability stereotypes; creating what she called “special judicial scrutiny” which I took to mean heightened (suspect class?) scrutiny of discriminatory practices; and clarifying what is discrimination and what is not.

The staff-to-staff collaboration between the Council and the Subcommittee continued when Terry Muilenburg succeeded Jane as Staff Director of the Subcommittee in 1986. Thus, communication channels had long been open between Weicker’s staff and me. And I believed that my long-standing relationship with Senate Subcommittee staff could only work in favor of the Council and its ADA proposal.

I met with Terry Muilenberg (Senator Weicker’s staff person and former staff director when he was chair of the Subcommittee on the Handicapped) on September 10, 1987, to discuss our ADA legislative proposal. She began the meeting by updating me on the status of two significant bills pending in the Senate. The first, titled the “Developmental Disabilities Assistance and Bill of Rights Act Amendments of 1987,” included extensive revisions to the Developmental Disabilities Assistance and Bill of Rights Act of 1975. The bill had been introduced by Senator Tom Harkin, with Senator Weicker as a prominent cosponsor. Terry mentioned that the bill would freeze funding for developmental disabilities programs at FY 1986 levels, and, in the interest of ending unnecessary placements of people with disabilities in nursing homes, would require nursing homes to identify the disabilities of residents with disabilities and find appropriate alternative placements. She had high hopes that the bill would be enacted soon.[2]  The second piece of pending legislation that Terry mentioned was the Civil Rights Restoration Act that the Council was supporting and that Lex Frieden had testified in favor of to the Committee on Labor and Human Resources in April. She said she thought that they might have the votes to get it passed during the current Congress.[3]  In any event, she was somewhat optimistic that the Subcommittee on the Handicapped would have finished its work on the Restoration Act so that it would be possible that the Council’s ADA bill could be the principal issue before the subcommittee in 1988.

With that opening, I began filling in Terry on details of our bill proposal, beyond the content of Toward Independence, with which she was already familiar. Basically, I sketched out for her a summary of the draft bill I had been working on. She commented that our proposal was consistent with Senator Weicker’s overriding objective of eliminating discrimination and enhancing opportunities for people with disabilities, and that he had frequently heard complaints about discrimination at hearings held by the subcommittee. She mentioned that timing in the Senate might be a problem, as it was facing a backlog of work after the Bork nomination proceedings. She indicated that she would discuss the information I had given her with the Senator, and asked that I provide her with a draft of a memorandum laying out the thrust of our bill, the need for the legislation, pitfalls that would need to be avoided, and how current laws and legislative proposals do not provide what people with disabilities need to attain equal opportunity under law in American society. She specified that the memo should be brief – a page or so and that she would like me to give it to her within the next two weeks. The memo obviously became a priority for me in the days that followed.

After I had produced a draft of the memorandum and gotten excellent editorial suggestions from Andi, I delivered the document to Terry on September 30. It recited that the Council had developed a “draft of a comprehensive civil rights bill for [people with disabilities],” as a “a fairly straightforward attempt to carry through” on a principal recommendation in Toward Independence. It highlighted the following key elements of the draft bill:

  • clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap; and
  • broad coverage addressing areas of discrimination not covered by current statutes such as Section 504, e.g.,
    • public accommodations
    • housing
    • employment by employers engaged in interstate commerce
    • interstate transportation
    • insurance discrimination.

Based upon the observation Terry had made to me, the draft memorandum declared that “the proposal seems to be right on target with [the Senator’s] overall objective of eliminating discrimination and increasing opportunities for persons with disabilities,” and was responsive to complaints about discrimination that the Senator and his staff had heard repeatedly in congressional hearings.

The memo continued with an assertion that “[t]he biggest question about introducing the Council’s proposal seems to be in regard to timing,” and the remainder of the document addressed the timing issue. It recognized that “the general wisdom has been not to introduce any bills relating to civil rights until after there has been a full Senate vote on the Restoration Act,” while the Council was pushing to have its proposal introduced before the end of the current session of Congress. Arguments for earlier introduction included that “formal introduction of a bill would permit the Council and disabled consumers to present it to the various presidential candidates and get them to take a position on it” and that “[i]f we hold back on the introduction of the Council's proposal, we may risk having the Administration beat us to the punch with a much narrower and less effective bill,” such as DOJ’s piecemeal draft.

The final paragraph of my draft of the memo offered Terry the following reasoning that she might consider presenting to Senator Weicker:

It would seem to be in our and the Council's best interest to try to devise a strategy for introducing the Council's bill, but to carefully control its progress in the Subcommittee and full Committee so that it can pose no threat to the passage of the Restoration Act. If a bill could be introduced before the end of this session, it would give us and other sympathetic Senate offices the opportunity to hold field hearings between sessions, and would allow the Council and its friends to begin to rally grassroots support for the bill to assist its progress during the second session. Moreover, with a Senate bill introduced, the Council might be able to move ahead with efforts to pass a House version of its bill while the Senate is busy with Bork, the Budget, and the Restoration Act.

Without knowing exactly how much or how little use Terry made of the draft memorandum or how much impact the views expressed in it influenced the Senator, we were very gratified that he promptly decided to proceed toward possible introduction. He was a nearly ideal choice for the role. Weicker was the father of a child (Sonny) with Down syndrome and thus had firsthand experience with disability issues. He had served in the Senate since 1971, and as chairman of the Senate Subcommittee on the Handicapped from 1981 through 1986. He had a broad interest in assisting disadvantaged groups, including elderly people and low-income individuals, and persons with disabilities; Terry Muilenburg described him as "a man of very strong principles about the role of government and the responsibility for caring for those who were less fortunate," who acted as "the conscience of the Senate" in support of a vigorous Federal Government.[4] He had sponsored a number of important disability rights bills that were enacted into law, including the Education of the Handicapped Amendments of 1986, the Education of the Deaf Act of 1986, the Protection and Advocacy for Mentally Ill Individuals Act of 1986, and the Handicapped Children's Protection Act of 1986. He had also engineered the continuation of the National Council and granting it independent federal agency status back in 1983.

Weicker later described, in Senate testimony, the Council’s approaching him: “they came and asked, as the Ranking Republican on the Handicapped Subcommittee, if I would be the lead sponsor in the Senate. I said I would be proud to do so.” He advised the Council to proceed in a bipartisan manner:

[A]s one who knew the difficulty of furthering any new legislation, much less legislation for persons with disabilities, I knew that nothing would be accomplished except on a bipartisan basis. And so in the next breath, I asked them to see Tom Harkin. Not because he is a good friend and a compassionate man, but because as the Chairman of the Handicapped Subcommittee, his active leadership was critical to the future of the Americans with Disabilities Act. Together we could do much – separately, nothing.

The fact is, disability legislation has always been a bipartisan effort. There wasn’t a bill that came through the committee in my memory that wasn’t cosponsored and fully supported by the chairmen and ranking members of the full committee, as well as the Handicapped Subcommittee. Every one of those bills was signed into law.[5]

In addition to procuring the involvement of Senator Harkin, Weicker also recommended that the bill be introduced simultaneously in both houses of Congress, and suggested that NCD contact Representative Tony Coelho (D. Cal.) as potential sponsor in the House of Representatives.

Coelho, who had epilepsy and who, as the Democratic Whip, was third in line of control in the House (behind the Speaker and Majority Leader), was an obvious choice for sponsor in the House. However, he had no experience with or knowledge of the National Council, and had the impression, as he declared later, that “they’re Reagan appointees …, so that doesn’t have much credibility .… They aren’t the type that I’m into – you know raving idiots. So I knew what they were doing, but I wasn’t interested.”[6] He changed his tune when he was contacted in person by Council member Roxanne Vierra, accompanied by Council Chair Sandra Parrino. As Coelho described their encounter:

Roxanne’s husband and I are very close friends. He’s Portuguese, Fred Vierra, and he’s in the cable business, and I was close to people in the cable business. And Fred had done some things politically with me, and he was a right-wing Republican. And Roxanne is more conservative than he is, by the way. And so she walks in and brings Sandy with her and says to me, “Look, we’re putting together this bill. Lowell Weicker has agreed to sponsor it, and we would like you to consider being the House sponsor.”

And so I listened, and I knew it wasn’t what the disability community wanted. A lot of people in the disability community wanted quotas and so forth.[7]

Despite this dubious view of what the disability community desired, and despite strongly antithetical advice from his staff, e.g., “they’re going to think you’re crazy to be part of this,” Representative Coelho, after talking with Senator Weicker, decided to sponsor the bill. He explained his decision as follows: “I did it primarily because I loved the idea that it was a Reagan group advocating [it], that the commitment was there from Sandy, and I love Roxanne.”[8]

At the beginning of October, before the results of the Weicker, Harkin, and Coelho contacts were known, I went back to honing and packaging my draft of the bill. On October 1st, I developed summaries of the bill in outline form. One of these that I called a “Line Outline” of the “Need for Expanded Nondiscrimination Protection for Citizens with Disabilities” consisted of succinct bulleted statements under headings of: “I. Background, II. Purpose, and III. Elements of Recommended Law.” The Elements of Recommended Law section contained subheadings of Scope, Forms of Discrimination Prohibited, Limits on Duties of Accommodation and Barrier Removal, Regulations, Private Right of Action, Who Would Be Protected?, Definitions, and Terminology. The second document, the “Narrative Outline of Elements of Equal Opportunity Law,” was organized around the same headings and subheadings as the Line Outline, but replaced the concise bulleted statements with much more detailed explanatory narrative.

The next day, I made a few changes to the text of my draft bill. The most notable change was a recasting of the fourth purpose in the Findings and Purposes section. In my prior draft, the Purpose stated simply that the Act was intended “to address the major areas of discrimination faced day-to-day by people with disabilities.” I decided to replace it with the following: “to invoke the sweep of congressional authority, including its power to enforce the fourteenth amendment, to regulate commerce, and to regulated interstate transportation, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” This formulation was derived from a contention that Chris Bell and I had made in our Statutory Blueprint article – that Congress should use all the legislative power it has to outlaw discrimination on the basis of disability. Moreover, it specified three of the major sources of authority that Congress could rely upon (potentially among others) in enacting such a law. Based on the case law, there seemed no doubt that these three provided very sound foundations for the ADA bill. I made another minor change perhaps worthy of mention: I finally got around to addressing a suggestion made by Jean McGuire at the end of July. In the second Purpose, where I had written that protection against discrimination for people with disabilities should be “commensurate” with that accorded to other minorities and women, I now changed it to a less ambiguous term, “parallel.”

On October 15, I produced another draft of the bill by revising the subsection dealing with regulations for the implementation and enforcement of employment requirements by the Equal Employment Opportunity Commission (EEOC) to add the following sentence: “Such regulations shall prohibit discrimination in regard to job application procedures, the hiring and discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” I considered the additional wording necessary to ensure that the EEOC regulation would apply to the full range of employment practices of covered employers.

In the meantime, Senator Weicker’s office was already ramping up its preparations for introducing the legislation. At Terry Muilenburg’s request, I provided her my most current version of the bill so that she could pass it along to the Senate Office of Legislative Counsel. At the time, I had never had occasion to learn about the role of the Leg. Counsel’s office. I assume most people are not familiar with it (actually, both House of Congress have one). As I learned, its legislative mandate is to “aid in drafting public bills and resolutions or amendments thereto,” but its services are made available only to members of Congress and their staff. In addition to preparing original measures for introduction in the Senate, assisting congressional committees in marking up legislation or originating bills, the Office is charged with “reviewing drafts of legislation prepared by executive agencies and others, at the request of Senate clients and making such revisions as are necessary for technical sufficiency before introduction in the Senate.” The way it worked with the ADA proposal was that Terry would send each of our successive drafts to Leg. Counsel, and the lawyers there would review the documents, put them into proper technical form, and return them to her. I learned that it was then necessary for us to review them carefully, because, while the experts at Leg. Counsel seldom made mistakes of structure or form, at times their attempts to put things in proper legislative form would inadvertently lead to formulations deviating in substance from what the drafters intended; or, when pressured to hurry, even to typographical errors.

It was very exciting when Terry sent me the first Leg. Counsel version of the bill, titled the “Americans with Disabilities Act of 1987,” dated October 15, 1987, in proper bill form, with line numbers down the left margin to facilitate editing, debate, and amendments. Substantively, it was the text of my bill with section and subsection headings added. If a Leg. Counsel version of the bill seemed a major step, things really started happening in the last half of October.

Word gets around quickly in Washington, including word about the Council’s discussion with Senator Weicker. On October 19, Lex reported that Evan Kemp had met with Bradford Reynolds and Mark Disler (Deputy Assistant Attorney General under Reynolds at the Civil Rights Division) and given them a copy of our bill. Evan told Lex that the reaction of Reynolds and Disler was “dire” – that if Weicker went ahead, the Administration would quash the Council’s proposal in favor of the Administration bill, “the Council’s bill will go nowhere.” They advised just amending Title V of the Rehabilitation to include the private sector under Section 504 (Reynolds’s “piecemeal approach”). In any event, they thought that Weicker would not get the bill in before the end of the year. Reynolds indicated that a new Justice Department bill would be forthcoming. Sweeping this dissuasion aside, the Council plowed ahead.

With Senator Weicker on board, Mrs. Parrino let Lex and me know that she had decided it was time to begin sharing the draft ADA bill – first with the Council members and then more broadly. By October 20, I had developed a “Section-by-Section Summary” of the bill. It consisted of a brief synopsis – usually a paragraph or two at most – of each of the nine sections of the bill. Working with Gail Gerebenics, a former colleague of mine when she was an Assistant General Counsel at the U.S. Commission on Civil Rights (serving as a consultant to NCD), we put together a set of “Talking Points” on the bill, covering such topics as why such a law was needed, what it would do, whom it would cover, how it would be enforced, what effect it would have on existing rights under the Rehabilitation Act, and similarities and differences between it and other Civil Rights Laws. I prepared a packet containing my October 15 Staff Draft of the bill, the Section-by-Section Summary, the Line and Narrative Outlines, the Talking Points, and a photocopy of the Equal Opportunity Law recommendations from Toward Independence, put the packets into bright-blue pocket folders and sent them to all the members of the National Council. Actually, some of the officers and Executive Committee members of the Council had already seen a few versions of the bill, in part or in whole.

Shortly, after that I met with Bobby Silverstein, who, earlier in the year, had become Staff Director and Chief Counsel for the Senate Subcommittee on the Handicapped, chaired by Senator Harkin (D-Iowa). I brought him up to speed on the Council’s ADA proposal and plans for having it introduced in Congress. We had a congenial, preliminary discussion.

While the Council had, in a few instances, previously shared the draft bill with selected outside persons, albeit cautiously and conditioned upon promises not to share or distribute it, the next big step was to distribute the bill more broadly. At her suggestion, I prepared a memorandum for Chairperson Parrino to “Members and Friends of the Disability Community,” titled an “Introduction of Council’s Equal Opportunity Proposal.” In the memo, dated October 23, 1987, Mrs. Parrino declared: “I am pleased to report that Senator Lowell Weicker has pledged to initiate action by Congress on this matter by introducing the enclosed bill which was developed by the Council.” The enclosed bill was my October 15, 1987, “Staff Draft.” Parrino’s memo continued as follows:

Senator Weicker has indicated his intent to introduce this bill, entitled “The Americans with Disabilities Act of 1987,” in November. We expect the bill to be cosponsored by another influential member of the Senate so that it represents a truly bipartisan commitment to equality of people with disabilities. We also expect to announce soon that the bill will be introduced by leaders in the House of Representatives. We will report to you as soon as our expectations materialize in this regard.

Parrino pronounced it “an historic moment in the history of the disability rights and independent living movement of people with disabilities and their families in the United States,” but cautioned that “the introduction of this landmark legislation is only one very important step in the struggle for equality and opportunity which dates back centuries.”

Regarding the bill’s substantive content, the memo noted that “[t]he bill which Senator Weicker will introduce goes far beyond the original provisions of Section 504 of the Rehabilitation Act and extends across the whole gamut of social and economic endeavors to ensure equal opportunity and protection against discrimination on the basis of handicap.” Mrs. Parrino asked members and friends of the disability rights community to join the Council in “celebrating this major step in the recognition of rights and responsibilities of persons with disabilities,” and invited them to “write us expressing your views and those of your organizations in regard to this proposed legislation.”

The memorandum, the draft bill, and a one-page “Summary of Proposed Bill: The Americans with Disabilities Act of 1987” were sent to a number of disability leaders and organizations, particularly those with a Washington, DC, presence. At Terry Muilenburg’s suggestion, in the third week of October, I began a series of meetings with a small group of Senate staffers (notably including Muilenburg and Silverstein) plus a few other people to discuss the ADA proposal. The gatherings had no official name, but we variously referred to these get-togethers informally as “the Hill group,” “the legislative group,” or “the legislative drafting group.” The meetings, which often took place in a conference room in Senator Weicker’s office, involved very unscripted, free-wheeling brainstorming about political strategy and timing, additional things the legislation might cover (such as interstate communications and telecommunications, and federally licensed activities), public conveyances, and whatever else those present raised. Senator Weicker would later praise the important role played by Terry Muilenburg in these and other negotiations:

The actual meetings between members of the council and me, where my sponsorship of the bill was sought, were preceded and succeeded by additional in-depth discussions between our staffs and key members of the disability community. In this connection, Terry Muilenburg, the minority staff director of the Subcommittee on the Handicapped, spearheaded the staff discussions for my office.[9]

Continue to Part 13: Addressing Unexpected Opposition


[1] S. Rep. No. 98-599 (Nov.17, 1983).

[2] In fact, it was enacted as Pub. Law No. 100-146, 101 Stat. 840, 42 U.S.C. 6000, on (Oct. 29, 1987.

[3] She was correct; it was enacted by the 100th Congress on March 22, 1988, as Public Law 100-259, 102 STAT. 28.

[4] National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 61 (1997).

[5]Americans with Disabilities Act of 1989: Hearing on S.933 Before the S. Comm. on Labor and Human Resources, 101st Cong. 215-216 (June 22, 1989) (testimony of Sen Weicker); 823-824 (prepared statement of Sen. Weicker) [S. Hrg. 101-156].

[6] Fred Pelka, What We Have Done: An Oral History of the Disability Rights Movement, p. 453 (2012), quoting Tony Coelho.

[7] Id.

[8] Id. at p. 454.

[9] Lowell P. Weicker Jr., “Historical Background of the Americans with Disabilities Act,” 64 Temple Law Review, 387, 391 fn. 42 (1991).