Drafting and Introduction of the Original ADA Bill - Part 16

Deaf Attorneys, American Indian Tribes, and Finalizing the Council’s Bill

Negotiations with the disability community continued after the February Council meeting. One issue that surfaced at the February meeting was the need for provisions addressing communications access, beyond a general prohibition of discrimination in the form of establishing or refusing to remove “communication barriers” that was already included.[1]  Although communications accessibility had not been selected as one of the ten issues addressed in the Toward Independence report, the Council had consistently considered communications accessibility as an important priority. After all, at the time, two of the Council members, Latham Breunig and Nanette Fabray MacDougall; Council Fellow, Ray Fuller Jr.; and Council consultant and advisor, Frank Bowe; had hearing impairments. When the issue arose at the February meeting, Executive Director Frieden and several Council members readily agreed that it needed to be given more emphasis in the ADA bill, and directed me to craft legislative language to better address the issue. On February 10, the day after the Working Conference at the Council meeting, Gary Olsen, Executive Director of the National Association of the Deaf (NAD), delivered a letter to me, with which he enclosed two pages of what he called a “rough idea” of a new section on communications that he believed should be considered for inclusion in the Council’s ADA bill. He quoted Lex’s statement at the meeting, that “this area is too important to overlook,” and urged that such an added section “would strengthen the proposed legislation.” He added that I “should feel free to work with the wording …. The ideas and concept are there for you to play with.” And he indicated that his “staff attorney at NAD will be happy to assist.” Gary’s “rough idea” actually involved two single-spaced pages of detailed language, but it seemed to boil down to a few principal objectives: (1) having a clear requirement that communication barriers be prohibited in a broad range of specified categories of entities, facilities, and services; (2) clarifying types of assistive communication systems, devices, or personnel that must be provided; and (3) requiring the Federal Communication Commission (FCC) and other appropriate agencies to issue regulations implementing communication accessibility requirements.

In preparing to address Gary’s concerns, I reviewed the current version of the Council’s bill and made a list of eight places in which it addressed communication barriers in some fashion in conjunction with architectural and transportation barriers. I found, however, that there was no indication of what “communication barriers” were nor how one is to go about removing them. Based upon several documents I had collected, including Section 504 regulations for the Community Services Administration that had been written by Jill Robinson some years before, draft regulations I had worked on at the Civil Rights Commission, and “auxiliary aids” provisions of the Department of Justice Section 504 “Prototype” regulation, I began to piece together some ideas for defining “communication barriers.” In regard to Gary’s concern about the need to mandate the FCC to issue regulations covering communication providers, when I looked more closely, I came to the conclusion that such a requirement had been implicit in the Council’s proposal because it had prohibited discrimination by licensees of federal agencies that would have included FCC licensing. Inadvertently, in removing the coverage of federal agencies, grant recipients, and contractors as a result of the February meeting, the provision regarding licensees also had been dropped.

I spoke to Marc Charmatz, the staff attorney Gary had mentioned at NAD (who had worked there since 1977 as the organization’s first attorney) about some of my preliminary thinking, and sent him some rough draft language on February 18. My dialogue with Marc led to the idea that we needed to convene a meeting of representatives of the hearing impaired community to thresh out what language we should add to the draft bill. Not wasting any time, we scheduled the meeting, at the Council’s office, for February 29, leap day. Eleven individuals, almost all of them hearing impaired, lawyers, or both, were scheduled to attend. I began to refer to the gathering as the “deaf lawyers meeting.”

By the meeting day, eight renowned, expert individuals managed to rearrange their schedules to attend: Gary Olsen of the National Association of the Deaf, Marc Charmatz of the National Association of the Deaf, Rocky Stone of Self Help for Hard of Hearing People (SHHH), Debora Van Der Weijde of the U.S. Department of Justice, Robert Silber of the National Captioning Institute, Sheila Conlon-Mentkowski of the National Center for Law and the Deaf, Jeff Rosen of the EEOC, Ray Fuller of NCD. Three others, Jill Robinson of the U.S. Commission on Civil Rights, Robert Mather of the U.S. Department of Justice, and Mary Jean Moore of the EEOC, had last-minute complications that prevented them from participating in person, but each of them subsequently provided significant input and comments.

At the meeting, I handed out a one-page summary and a section-by-section breakdown of the current version of the Council’s bill. After brief self-introductions, my charge to the group was straightforward, along the lines of, here’s what we currently have in the bill, what do we need to add to adequately address communication barriers and discrimination against people with hearing impairments? As the discussions proceeded, I was highly impressed by the individuals in the room and by the depth, clarity, and sophistication of the thinking and reasoning they advanced. A lot of brainpower and experience were on display. Ideas, both big-picture and specific details were bandied about, and the interactions were rapid-fire and energized, yet collegial. As the moderator and scrivener, I found the proceedings highly stimulating, but had a hard time keeping up with my note-taking at times. After a couple of hours of conferring, we had reached no firm conclusions about proposed language or provisions, but had put a lot of approaches and possibilities on the table. I pledged to the group that I would digest the wealth of input they had provided, and try to boil it down to some approaches and proposed provisions that I would circulate to them for their further input and, hopefully, see if we could reach a consensus.

As an aside, I should add that, while I knew and admired many of the folks at the table that day, I encountered some colorful characters whom I had not met before. One of those was Rocky Stone (a colorful man with a colorful name), who founded SHHH in 1979 and served as its executive director until 1993. During World War II military service at age 19, Rocky’s proximity to an explosion resulted in a bilateral profound hearing loss. Prior to founding SHHH, he had work for the Central Intelligence Agency for 25 years. I found him to be a gregarious, jovial character. He was an inveterate jokester, whom people who knew him well said had a 100 jokes at the tip of his tongue. On the other hand, he was said to have a low tolerance for fools; he wore a large volume control hanging from his neck and nestled prominently in the middle of his chest, and his colleagues reported that he turned the knob to tune them out when he found their conversations dull. For 14 years Rocky wrote a column titled “An Invisible Condition,” in which he dispensed homespun philosophy and insights about hearing loss. The editorials were eventually collected in a book, An Invisible Condition: The Human Side of Hearing Loss.

Another attendee whom I had not known previously but who made quite an impression on me was one of the youngest at the meeting, Jeff Rosen, a lawyer and Gallaudet University graduate. Unbeknownst to me Jeff was already en route to a leadership role in what would become the “Deaf President Now” demonstrations at Gallaudet. Jeff had recently proposed to friends in the Gallaudet community that they should hold a rally on March 1 to challenge Gallaudet’s decision to hire a non-deaf president. When that rally took place, Jeff would be a major participant: picture a young man with a pile of curly hair in a red T-shirt emblazoned with the words “Deaf Prexy Now,” standing in the back of a friend’s pickup truck, signing messages of encouragement and provocation to the crowds of protestors.

At our meeting – two days before the Gallaudet rally – Jeffrey Rosen was wearing informal business attire and not showing his fiercer side. He held his own in the discussions in a polite, respectful manner, though one could imagine him being more combative in his work as a staff attorney at the EEOC. Jeff surprised me at the meeting by mentioning that he knew of me, primarily because of my casebook, and afterwards told me that the book had had a great impact on him by making him aware of the disability rights movement and its potential to challenge injustices visited on people with disabilities. Over time, Jeff and I became friends and long-term colleagues, as he became the General Counsel and later the Chairperson of the National Council on Disability, and I worked with him on many projects.

After the meeting, I set to work distilling the many pages of my notes and the pieces of paper handed to me by the participants into appropriate legislative proposals to circulate to them. Two days later, on Wednesday March 2, with the assistance of other NCD staff and, in particular, the help of Ray Fuller, who generously pitched in even though he had by that time completed his fellowship with the Council. We hurriedly prepared a memorandum describing what I had come up with, with three options of possible language for the group to consider. In my haste to get the memo together and sent, I misdated it as February 2^nd (27 days before the meeting had taken place), instead of March 2.

I began the memo by expressing my appreciation for the thoughtful and frank interchange of ideas, and observed that our extended discussions seemed to have produced “a fair degree of consensus on some of the major points.” I articulated my understanding of the charge that the attendees had given me at the end of the meeting as being “to take the advice and approaches that the group had suggested and try to reflect them in some proposed language for you to critique and react to.” Accordingly, I had developed some draft language that I attached. It addressed two areas: (1) coverage of the broadcasting and communications industries, including TV stations and raising the issue of captioning; and (2) the removal of communication barriers in all programs and activities that would be covered by the law, including public accommodations, transportation, and state and local government activities. As to the first, I expressed my impression that the group was unanimous that broadcasters and communication providers should be covered by the bill, and that there was general agreement to require increased captioning of television programs without specifying any particular percentage of programs. In an attachment, I presented a provision applying the general nondiscrimination mandate to “broadcasts, communications, or telecommunication services provided by a person, company or agency engaged in the principal business of broadcasting or of communication by wire” as defined under the Communications Act; and a second provision that mandated the FCC to promulgate regulations for implementation of the law regarding those in the broadcasting or communication businesses. In such regulations, in regard to captioning, the idea was that every year each TV station and network would have to have a higher percentage of captioned programs than the year before. So I crafted language requiring the FCC regulations to mandate television broadcast stations to “progressively increas[e] the proportion of programs, advertisements, and announcements that are closed captioned.” I posed some questions about the reaction of the meeting participants to these approaches and language.

As to the second category, prohibiting communications barriers in all programs and activities subject to the new law, I drafted three options for addressing this issue. All three options created a subsection titled “Effective Communication,” that imposed a duty to prevent or remove communication barriers and to make reasonable accommodations to ensure effective communication to persons with disabilities; and all three incorporated the same definition of “communication barriers” in the following terms: “the absence of devices, services, systems, or signage and information media that are necessary to achieve effective communications with persons with a [disability].” The three options differed in the extent and manner in which they required examples of the kinds of things that might be needed to prevent or remove communications barriers.

The February 29 meeting participants had agreed that many statutory provisions and regulations had required that communication barriers be prevented or removed without giving any idea what kinds services, devices, or systems might be necessary, and most people and companies were almost completely unaware of the array of possibilities. So each of the three options included a variation on a list of examples of measures that might be required to achieve communication accessibility. Despite minor difference in wording or format, the three options all included essentially the same examples:

• Telecommunications Devices for the Deaf (TDDs);
• Visual aids such as flashing alarms and indicators, and augmentative communications devices for nonvocal persons such as language symbol or alphabet boards;
• Interpreting, reading, taping, or notetaking services by qualified personnel;
• Captioning, audio loops, infrared communications, or telephone relay services systems;
• Brailled or audio information;
• Visual alerts for audio announcements and other information;
• Audio input/output on a computer terminal, or adapted software; and
• Addition of a flashing light on a telephone or amplifiers on telephone headsets.

Under Option 1, the list of examples was intended to be included in the opening statements of the sponsors of the bill and in congressional committee reports, while Options 2 and 3 would place the examples in the text of the bill. Option 3 included more explanatory and contextual language about the categories of communication barriers removal. I asked the members of the group to indicate their preference among the three options, to indicate whether the definition of “communication barriers” was adequate or whether anything else should be included, and to offer any additional suggestions, comments, or advice they might have.

We could not seek Council approval of a final version of the bill until we could include the communication barrier material, so I was under some serious time pressure. Consequently, I informed the group that I would be contacting them in the “next day or so” to get their reaction to the memo and attachments. I managed get in touch with group members, and got their reactions to the draft provisions and options I had sent them. By March 11, I synthesized the results into a Communications Barriers proposal for the Council’s consideration for inclusion in the Council’s ADA bill.

Another issue that surfaced at the Working Conference at the February Council meeting was the need for additional coverage of American Indian tribes in the ADA proposal. Some of the advisors had spoken about the frequency and seriousness of discrimination against Indians with disabilities, and expressed the need for explicit proscription of such discrimination. Actually, after closely examining the issue, I determined that American Indians were protected under the Council’s bill. If an Indian person was discriminated against on the basis of handicap by any of the persons or agencies included in the coverage section of the bill (employers, housing providers, public accommodations, transportation systems, or state and local governments), then that individual would be protected under the bill, and could file a legal action challenging that discrimination. And such protection would exist whether the discrimination occurred on a reservation or elsewhere.

The only real question was whether American Indian tribes would themselves be covered by the legislation – whether tribes would be prohibited from discriminating on the basis of disability. This turned out to be a somewhat thorny and complex issue. Arguably, tribes would be covered under the current language of the bill if their activities fell within one of the categories of covered entities, such as a public accommodation, transportation company, or housing provider. The definition of employer in the bill, however, was based on Title VII of the Civil Rights Act, which specifically exempts Indian tribes. It was not totally settled whether the federal government has the legal authority to regulate the affairs and activities of Indian tribes. Most legal authorities appear to take the position that such regulation can be valid if it is explicitly authorized by Congress. Some tribes, however, were maintaining the position that such regulation is beyond the authority of the federal government, and would illegally breech the tribes’ sovereignty. In 1988, the issue of civil rights regulations of Indian tribes was particularly controversial. The U.S. Commission on Civil Rights was about to hold public hearings on the issue of alleged violations of civil rights by certain tribes, leading to a storm of protests and disputes.

Fortunately, I had a lot of excellent assistance in trying to sort out this issue. At this time, Julie Clay, a member of the Omaha Tribe, well-connected with several Indian organizations, including the National Congress on American Indians (and who would later direct the American Indian Disability Technical Assistance Center), was a Fellow at the Council. She was an irreplaceable asset in educating me and testing the waters among Indian leaders. Glenna Jojola of the Speech, Language and Hearing Program, at the All Indian Pueblo in Albuquerque, NM, was one of the attendees who raised the issue of American Indian tribe coverage at the February meeting, and she made herself available to discuss the strategy and mechanics of how we should proceed. I also had helpful consultations with Alan R. Parker, Staff Director of the Senate Select Committee on Indian Affairs; and Franklin Ducheneaux, Counsel on Indian Affairs of the House Office of Indian Affairs.

After considerable discussion and deliberation, we arrived at a recommendation that represented a consensus among those with whom we consulted. It was agreed that nothing would be more likely to arouse indignation than any attempt to “force something down the throats” of the tribes without prior consultation with them. Accordingly, we were advised that no provisions applicable to Indian tribes should be included until after in-depth communications with, and input received from, the tribal organizations; considerable education and review of disability discrimination issues with the tribes was needed prior to incorporating such coverage in the bill. Glenna Jojola concurred with the need for educational and consciousness-raising efforts with the tribes before moving ahead with specific legislative language. Thus, my recommendation to the Council was that no additional language regarding the coverage of American Indian tribes be added at that time, but that the Council should inform pertinent congressional committee (Indian Affairs) members of this concern and urge them to keep it in mind for addressing as the bill moved forward in Congress. Glenna agreed that this approach would permit her and other interested people to approach the tribal organizations to begin to educate them on the need for such provisions, and get their input, and said that this was the most constructive means at this time for addressing the concerns she had raised at the February meeting.

Having addressed the two major issues that the Council, at the February meeting, had directed the staff to do further work on – communication barriers and coverage of American Indian tribes – on March 11, Lex and I sent a memo to Council members titled “Proposed Final Draft of Bill.” It began, “We are happy to enclose a proposed final draft of the Americans with Disabilities Act, reflecting the changes made at the February meeting of the Council.” We added that, as directed by the Council, we also had addressed communication barriers and coverage of Indian tribes. I provided an extensive description of how we arrived at the communication barriers provisions we were recommending, and of our examination and conclusions regarding coverage of Indian tribes. After sections on these two important issues, I included one titled “Tidying Up,” which described five corrections of grammatical and typographical errors that needed to be made to produce a truly final version.

The final paragraph of the March 11 memo was headed “Ballot” and read as follows:

Pursuant to the expedited process for getting approval of a final draft of the bill you agreed to at the February meeting, we are enclosing a mail ballot for you to sign. Please fill it out and return it us in the enclosed addressed and stamped envelope at your earliest convenience. We hope to receive all the ballots by the end of next week – March 18. Thank you for your cooperation in taking this momentous step by the Council on behalf of all Americans with disabilities.

The hurry-up mail ballot process had its desired effect: the Council completed the “momentous step” of approving a final version of its ADA bill in less than a week. With unanimous approval of the draft by the Council, on March 18, I removed the words “proposed final” and designated the document simply “The Americans with Disabilities Act: A Draft Bill.”

Continue to Part 17: Introduction of 1988 ADA Bill and Making Headway in the 100th Congress

[1] “The Americans with Disabilities Act of 1988: A Draft Bill,” Section 5(a)(2), National Council on the Handicapped, On the Threshold of Independence, p. 31 (1988).