Drafting and Introduction of the Original ADA Bill - Part 15

On the Threshold of Independence and High-Stakes Council Meeting

At the end of 1987 and the beginning of 1988, staff members of the Council were preoccupied with two major endeavors, each with a firm deadline. The first was the completion and issuance, no later than January 30, 1988, of the congressionally required report to the President and Congress on progress made in implementing the recommendations in Toward Independence. The second was refining the proposed changes to the draft ADA bill upon which a decision was to be made at the February Council meeting.

The 1988 report had been looming in the background since October 21, 1986, when Congress mandated the Council to produce it. Section 502(b) of the Rehabilitation Act Amendments of 1986 declared: “Not later than January 30, 1988, and annually thereafter, the National Council on the Handicapped shall issue a report to the President and Congress on the progress that has been made in implementing the recommendations contained in the Council's January 30, 1986, report Toward Independence.”[1]  Ordering the report represented congressional determination to take the recommendations in Toward Independence seriously, by commissioning the Council to provide the Administration and Congress a scorecard telling them how well they were doing in following through on the Council’s recommendations. Given the broad scope and number of recommendations in the 1986 report, such an assessment was no mean task.

Though she had not joined the Council staff until after Toward Independence had been published, Andi Farbman had demonstrated competence, knowledge, and writing skills on several work assignments, including, in particular, writing testimony and drafting Qs-and-As on Council appropriations for Chairperson Parrino and Executive Director Frieden for House hearings. Accordingly, by the end of summer in 1987, Lex and Mrs. Parrino had gained sufficient confidence in her expertise and abilities to entrust her with responsibility for coordinating, managing, and editing the 1988 report.

Dr. Farbman confided that she was honored and delighted to have been chosen to spearhead the Council’s second major report to the President and Congress. She identified the heart of the challenge facing her, in the limited time available for preparing the report, as formulating an assessment of progress made since Toward Independence that balanced both the micro and the macro – describing the overall situation in sufficient detail to make it tangible and compelling, without bogging down in masses of minutiae.

She organized the report around the ten topic areas addressed in the forty-five legislative recommendations in Toward Independence, and also added an emphasis on recent data and trends. In tracking accomplishments related to the topic recommendations, she enlisted the aid of fellow staff members Kathy Roy, Ethel Briggs, and me; along with Council Fellows D. Ray Fuller, and Laverne Chaise. As the body of the report shaped up in the fall of 1987, it contained a specific assessment in each of the ten topic areas in Toward Independence of the extent to which the legislative recommendations had been implemented.

As we began to gather and examine materials documenting progress in pursuing the Council’s recommendations, we were generally surprised at how much had been accomplished. As she worked on an Executive Summary of the report, Andi was able to write that “significant progress has occurred in the two years since Toward Independence was published. The Council has identified some twenty-one statutory provisions consistent with its recommendations … that have been enacted into law.” She added that this was in addition to eight bills currently pending in Congress that would further Toward Independence proposals. One of the biggest headlines of the 1988 report would be that “[o]f the forty-five legislative recommendations, eighty percent have been either partially or fully accomplished.” Andi added, however, that “[m]any doors to independence have been opened, others remain closed or only partially opened.” While she felt strongly that she wanted to give credit where it was due, she did not want to paint an overly rosy picture of where things stood.

In a section titled “Recent Data and Trends,” the report summarized new statistical data about people with disabilities derived from various sources, particularly a Census Bureau study of “Disability, Functional Limitation, and Health Insurance,” and two landmark Harris polls – one of individuals with disabilities and one on employers’ perceptions of employees with disabilities. The report summarized information uncovered in the several studies, much of which had implications for disability policy related to the Council’s recommendations.

As I had co-written the topic paper and recommendations on housing in Toward Independence and was in the process of writing a paper on the implications on federal government policies of the Harris polls, I worked closely with Andi on the parts of the report on those issues. I also got to consult with her about the name of the report, which with my wholehearted support she titled On the Threshold of Independence: Progress on Legislative Recommendations from Toward Independence. I very much liked the idea that the 1988 report was advocating another step toward the independence that the 1986 report had endorsed, but that we had not reached yet.

As progress was being made on all the topic issues sections of the report, I was particularly focused on the ADA proposal. I worked with Andi on the part of the report titled “Equal Opportunity Laws.” In it, we began by noting that “[i]n Toward Independence, the Council made ten legislative recommendations regarding equal opportunity laws for persons with disabilities,” and added that “[f]ive of those recommendations were directly concerned with the enactment of a comprehensive law prohibiting discrimination against people with disabilities.” Recognizing that the call for “a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards,” was the first legislative proposal in Toward Independence, we elaborated:

Its primacy in the proposals presented to Congress and the President reflects the Council’s view that protection from discrimination is a baseline necessity, and one that is not being adequately addressed in the existing statutes and legal precedents. In forums with citizens with disabilities across the Nation, the Council has heard over and over that discrimination is the number one problem faced by individuals with disabilities.

In the pages that followed, we provided additional information about the need for such a law, and reported:

[T}he Council sought additional input in regard to the actual drafting of a comprehensive equal opportunity statute. Over the past eighteen months, the Council has engaged in numerous meetings and discussions with members of Congress, congressional staff members, officers of national organizations, grassroots consumers, and other interested parties to explore the content and wording of the statutory proposal. Based on the approach outlined in the equal opportunity recommendations in Toward Independence, augmented by the comments and advice received, the Council developed a draft of a comprehensive equal opportunity proposal titled “The Americans with Disabilities Act of 1988.”

Having drafted this announcement that the Council had developed a draft ADA bill, we were faced with the next question of what else we should say about its content and details in the report. Or should we not go even this far in admitting that we had drafted a bill?

From the Council’s viewpoint, after incorporating the 34 changes approved at the November meeting, it basically had a completed bill with which it was satisfied. However, objections over the Section 504, 503, and 501 coverage and regulations, backed by Senator Harkin and, tentatively, by Senator Weicker, had made some of the bill’s language contentious and perhaps precarious. Support for the draft bill by that time, moreover, was not as great and widespread as we had hoped; no great groundswell of support had arisen from our early circulation of draft versions. We were faced with the tricky question of what to do next to move forward with what we believed to be a great draft bill.

It turned out that the answers to these questions had to be decided by Andi and me, because at the time we had to arrive at a final version of On the Threshold to get to the printer in mid-December, Lex had been hospitalized with pneumonia and, realizing the seriousness of his condition, we knew we could not contact him. Andi, the editor of the report, was aware that I had a version of the ADA bill approved by the Council, and made the bold suggestion that we should publish our draft bill as part of the report. At first I was hesitant about taking the step Andi was suggesting. I knew that many members of Congress like to engage in the fiction that they write or author legislation, even though most bills are actually written by constituency groups or federal agency personnel, or by staff members of committees or individual members' offices, rather than by members of Congress themselves. Often the illusion is maintained, at least publicly, that Senator and Representatives write laws. I thought that for the Council to publish its own legislative proposal might actually hamper the chances of getting it enacted if potential sponsors and cosponsors shied away because they could not get the credit for having authored the bills. Andi argued, however, that the Council had not kept its development of a draft bill a secret; our draft bill had already been circulated to numerous people in the disability community, in the Administration, and on Capitol Hill. The fact that the proposed bill was the product of an independent federal agency was actually a drawing card for many potential supporters, including prospective sponsors. She pointed out, moreover, that publishing the draft bill would get it broad dissemination and put it in the hands of many grassroots individuals with disabilities and organizations, who could ask their congressional representatives to support it. And getting the word out about the bill might force organizations that were waffling about supporting the bill (either privately or publicly) to get off the fence and endorse the Council’s proposal.

Ultimately, Andi’s rationale convinced me, and we agreed to include the draft bill and a section-by-section summary of its provisions in On the Threshold. And so it came to pass that pages 24-26 of On the Threshold contained “The Americans with Disabilities Act of 1998 Section by Section Summary,” and pages 27-39 contained the Draft Bill. On January 29, 1988, On the Threshold of Independence, including the Council’s draft ADA, was published.

To mark the report’s issuance, the Council hosted a briefing event in Washington DC. Council member Robert Muller welcomed the attendees, and introduced Councilmembers Kent Waldrep and Nanette Fabray MacDougall, and Council staff who were present. Waldrep delivered an address, in which he recounted highlights of the 1986 Toward Independence report, and then summarized On the Threshold of Independence. He noted that “[t]focal point of the 1986 report was a proposal for a comprehensive equal opportunity statue for persons with disabilities to protect them from discrimination…. Over and over again the Council heard persons with disabilities cry out for this needed protection.” He hailed the enclosure of the draft “Americans with Disabilities Act” in On the Threshold, declared that “we look forward to the bill being introduced, moving through Congress, and becoming a reality,” and pledged that “we are dedicated to working toward the Americans with Disabilities Act becoming a reality, thereby making persons with disabilities first class citizens in America.” By issuing the report on January 29, 1988, the National Council had met the statutory deadline for the report, and the Council’s proposed ADA bill was officially in print!

Andi’s foresight soon brought rewards and inclusion of the ADA proposal in On the Threshold of Independence proved to be a major turning point. As she had predicted, publication and distribution of the draft bill generated much more public attention to and support for the proposal. With the issuance of the report, people with disabilities at the grass roots level learned about this proposal, and could take a copy of it to their members of Congress and say, "Do you support this legislation or not?" They also began to pose similar questions for the disability organizations they belonged to. Faced with this grassroots clamor, most disability organizations found themselves forced to take a position on the proposal, and usually found it impossible not to say publicly that they supported it.

Despite the milestone that the formal unveiling of the proposed ADA bill represented, the content of that bill was still a subject of uncertainty and dispute. On February 9, less than two weeks after On the Threshold was launched, the Council would meet with disability leaders and stakeholders from around the country to get a broader range of opinion from outside Washington, after which the Council would confirm or reverse the proposed changes it had previously rejected. In the lead-up to that gathering, the number of changes upon which the Council was seeking input grew. Four of the five changes that the Council had voted down related to overlapping coverage of the bill with Sections 504, 503, and 501, and guaranteeing that regulations under them would remain in place; these changes were part of my “donut approach.” For simplicity and ease at the meeting, we combined these together in a single category that I referred to as Section 501, 503, and 504 “overlap.” In addition to the “donut approach” provisions, the other modification that the Council had rebuffed was to add a provision specifying that special programs for people with particular disabilities are not prohibited.

In addition to those two alterations, several others that the Council had not rejected were added to the list for consideration at the February 9 meeting, primarily because of second thoughts on the part of some Council members. One related to the removal of insurance from the coverage of the bill; actually the Council had reluctantly voted in favor of this change at the November meeting, but several members wanted to reconsider that decision. Another change to be deliberated was to add more specificity to the bill’s provision on housing discrimination; essentially this was more of an update than a substantive change because it would incorporate into the bill provisions in the Fair Housing Amendments bill that was pending in the Senate Judiciary Committee, provisions that the Council supported. Another proposed modification was to add language to the bill drawn from Section 504 that would restrict employers’ use of preemployment inquiries and medical examinations or inquiries to disadvantage job applicant with disabilities. Finally, the Council would reconsider whether to retain a provision of the bill that added a requirement of standards for accessible public transportation vehicles and rolling stock, consistent with recommendations in Toward Independence. The proposed changes relating to insurance, housing, preemployment inquiries, and public transportation vehicles and rolling stock had been approved by the Council in November, and were included in the ADA draft published in On the Threshold on January 29th, but some factions on the Council believed they merited further consideration and debate.

Thus, at the February meeting the Council was seeking input on six potential areas of modification:

1. Removal of Section 504, 503, and 501 Overlap
2. Removal of Insurance from Coverage of the Bill
3. Addition of Provision regarding Disability-Specific Services and Programs
4. Addition of Section with Specific Provisions regarding Housing Discrimination
5. Addition of Provisions regarding Preemployment Inquiries
6. Addition of Provisions regarding Transportation Requirements

To facilitate deliberations at the meeting, I developed two new, interrelated documents to be disseminated to the participants. The first was a section-by-section explanation of the Council’s draft bill without incorporating the suggested changes. It was in side-by-side format on 8½-by-14-inch pages. The left column presented the specific provisions of the bill, while the right offered an explanation of each provision. The explanations were much more elaborate and detailed than those included in the Section by Section Summary in On the Threshold. The second document, framed as an attachment to the first, was titled “Proposed Changes Submitted to the Council for Consideration  Proposed Changes Submitted to the Council for Consideration.” It provided the language of the six proposed changes listed above, accompanied by an explanation of the gist and purpose of each modification. I considered this pair of documents very important in enabling attendees, who had varying degrees of familiarity with the Council proposed bill and the changes being debated for revising it, to engage effectively in the discussions at the meeting and to provide informed input to the Council. They also provide a good snapshot of the content of the proposed ADA bill at the time, and of the issues at stake in the deliberations over proposed changes.

On February 9. 1988, the second day of the Council’s quarterly meeting, 34 individuals from various parts of America came together and met with the Council members at a gathering the Council called a “Working Conference on the NCH Equal Opportunity Initiative.” The invitees were a diverse collection of disability leaders, scholars, advocates, organization officials, and grassroots consumers. Chairperson Sandra Parrino made opening remarks welcoming the attendees and giving a general idea of what she hoped would be achieved at the conference. She then turned to me to provide a “Technical Review” of the Council’s ADA proposal. In addition to an overview of the draft ADA bill, I briefly described the six proposed changes the participants were being asked to discuss: (1) Removal of the Sections 504, 503, and 501 Overlap; (2) Removal of Insurance from Coverage of the Bill; (3) Addition of a Provision Regarding Disability-Specific Services and Program; (4) Addition of Specific Provisions Regarding Housing Discrimination; Addition of Provisions Regarding Preemployment Inquiries; and (6) Addition of Provisions Regarding Transportation Requirements (Vehicles and Rolling Stock). Attendees were then divided into four groups that met in small meeting rooms for an allotted three hours for discussions and voting on the proposed modifications. They would then reconvene in a plenary session to report the results of their deliberations.

Before the conference and as it began, one could sense friction in the air. Council members were miffed that others were raising criticisms and seeking to redraft language of what members called “our bill.” Some participants were annoyed that the Council had not simply acceded to the advice of likely sponsors, their staffers, the legislative drafting group, and DC disability lobbyists. I was in the awkward position of having negotiated some of the recommended modifications to language that I had drafted, meaning that the Council was bristling about how people dared to change their bill, when I had, with their input and approval, written the language of that bill, and now, as their lawyer, was urging them to accept changes that I had a hand in orchestrating.

When the working groups reconvened at the end of the day and reported their outcomes, they unanimously agreed to approve, and advised the Council to accept, all of the recommended changes. Though certainly not overjoyed at this result, the Council members bowed to the consensus of the working groups, and were gracious about the outcome. The consensus of the attendees turned any expected controversy into something of a tempest in a teapot.

Continue on to Part 16: Deaf Attorneys, American Indian Tribes, and Finalizing the Council’s Bill

[1] Pub.L. No. 99-506, Section 502(b) (Oct. 21, 1986), 100 Stat. 1829, codified as amended at 29 U.S.C. § 781(b).