Drafting and Introduction of the Original ADA Bill - Part 19

Dancing to Our Music: Impact and Legacy of 1988 ADA Bill

The Americans with Disabilities Act bill introduced in the U.S. Congress on April 28, 1988, was the proximate cause, the precipitating forerunner, the catalyst, the inspiration, and the model, for the bill enacted in 1990. Some have likened the legislative process to a dance (e.g., Eric Redman, The Dance of Legislation (1973)); in the spirit of that analogy, the strains of the 1988 ADA bill did not fade away at the end of the 100^th Congress – all of those involved in refining and honing the bill in the lead-up to, and, during, the next Congress were dancing to the music of the 1988 bill.

Successes in 1988

As 1988 drew to a close, there was a lot for the National Council on Disability (NCD) (as it was officially renamed on November 7); disability organizations; grassroots individuals with disabilities; and Lex Frieden, Andi Farbman, and I (each of whom had decamped from the Council by that point), to be satisfied about. We had managed to get the ADA bill drafted and introduced in Congress, to spark considerable excitement in the disability community, to have two congressional hearings on the bill, to have observed impassioned oratory by congressional leaders in support of the bill; to have garnered some media attention; and generally to have participated in moving the ADA from an idea to a tangible piece of groundbreaking legislation. Personally, I left the Council in November 1988 with a sense of accomplishment in achieving more than I had dared to imagine, but with a hungry awareness of how much more there needed to be done. To this day, I am astonished at how much a new and tiny federal agency, with a very undersized staff, was able to get done in a ridiculously short time. I think much of that productivity was the result of the Council members’ passionate belief that they had been appointed to the Council to serve Americans with disabilities, and that they we called upon to do big things to improve the lives of that constituency.

Second-Guessing and Disparagement

Despite the impressive progress of the ADA bill in the 100^th Congress, there was some carping. The dissatisfied souls were few in number, but they used lots of verbiage complaining of purported shortcomings in the bill introduced in 1988. Among their assertions were that the bill: was a bust and almost universally disregarded; was too revolutionary, woefully unrealistic, could never pass; was inappropriately proposed by a Council with no legislative expertise; and had no potential for enactment. Additionally, they called the 1988 bill “pie-in-the-sky,” Alice in Wonderland stuff, and doomed to fail. One Washington politico said the members of NCD were right wing extremists and “raving idiots.” The most common, and probably the most damaging of the epithets directed at the 1988 version of the ADA was “the make the earth flat bill,”[1]

I have no problem with people having and expressing their own views in opposition to mine, NCD’s, and that of the sponsors and supporters of the bill. But, where someone’s erroneous negative comments are in print and in oral history recordings in the public record, I can’t bear the thought that the narrative created by unfair, misleading, and inaccurate information may sully the historical record about the ADA’s development. Thirty years after the ADA was enacted, I think it’s now high time to set the record straight, and this website provides me the perfect opportunity to do just that. Accordingly, let me try to clear up a few things.

Types of Attacks

Problematic mischaracterizations regarding the 1988 ADA usually fell into one of three types:

(1) Attacks on the National Council on Disability;

(2) Attacks on me; and

(3) Attacks on the 1988 ADA bill.

Dissing NCD

Disparagement and mistrust of NCD within the disability community had some obvious causes: the Council was appointed by President Ronald Reagan who had an aggressively negative attitude and record toward disability rights protections; some Council members were very conservative Republicans; Council members did not have significant Washington experience, and, like many other presidential appointees, were almost totally lacking in legal and legislative expertise and sophistication; certain Council members were “fiscal hawks” known more for their interest in conserving federal budget dollars than in promoting progressive social initiatives; only a few of the members of NCD were known to have close ties to disability rights and civil rights organizations; the views of the Council members on some social issues, such as HIV and AIDS, alcoholism and drug addiction, and attitudes toward gays and lesbians, were not known and thus open to suspicion, based on their generally conservative outlook. As the Council began to do its work, such qualms were not unfounded. At the beginning of my employment at NCD, I shared many such misgivings, which is why I had the “summit meeting” with Justin Dart and asked him whether he thought it was worthwhile to bring my ideas about a comprehensive equal opportunity law forward to the very conservative Council.

But whatever initial unease toward, and mistrust there was about NCD at its inception, the Council’s track record from 1985 onward was more than enough to refute such reservations and fears. The Toward Independence report at the beginning of 1986 made it clear where the Council stood on critical issues, and the positions and recommendations the Council espoused were progressive, socially responsible, and anchored in the needs and desires of the disability community in America. As I worked with the Council, I generally found the members, whatever their political affiliations, fiscal predilections, and philosophical approaches, to take incredibly seriously their understanding that they had been appointed to the Council to represent the will and desires of people with disabilities. Nearly all of the NCD members had disabilities themselves, had one or more children with a disability, or had years of work experience in disability services. Informed by the consumer forums held around the country and input received from grassroots attendees at quarterly Council meetings in various locations, the Council took enlightened and forward-looking positions on the broad range of issues it addressed. Even the very fiscally conservative members were open to listening to other viewpoints. When I asked Jeremiah Milbank, the most budgetarily conscious and fiscally vigilant of the members, whether he would support federal housing (and other) programs for people with disabilities if I could provide him with data to show that those programs would save federal money in the long run. He said he would, so I did, and he did.

The Council’s support of various pieces of disability rights and civil rights legislation, such as the Civil Rights Restoration Act, the Fair Housing Amendments Act, 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, and the content of its reports and recommendations, demonstrated definitively that the Council was in the mainstream, and sometimes on the leading edge, of disability rights legislative initiatives. The proof is in the pudding, and most reservations about the ADA initiative were that it went too far, not that it was too constricted by right-wing political ideology.

Prejudice against NCD on the theory that it was too conservative, too Republican, too out of touch, or too lacking in expertise, was contrary to its track record, and entailed holding onto a superficial, outdated misperception of the Council. I came to feel that knee-jerk dismissal of NCD and its work was rooted in part in hostility against those who were not part of the regular Washington disability legislation in-crowd.

Dissing Me

I believe that some of that same not-in-our-clique mentality lay beneath the second category of attacks – badmouthing me. I had previously been involved in enough litigative, legislative, and policy battles in my disability rights career that I was not surprised to be the subject of some ad hominem affronts. If you are trying to do something big and new, then you can expect some serious pushback. What surprised me though was, first, that the slights came from people from within the disability advocacy community, from people who I thought were on our side; and, second, that they tried to impugn my credentials and expertise.

Disability legal rights advocacy at that time was a small field. Without replicating the description of my professional positions and accomplishments found in the “About the Author” section of this website, I can say that I had handled legal proceedings in the Supreme Court, the federal circuit courts, federal district courts, and state courts, including at the state supreme court level. I had had the chance to do serious research and extensive study about the origins of the disability rights movement, the conceptual and legal basis of significant lawsuits, and analysis of federal and state statutes and regulations. I had taught disability rights courses at two different law schools, and had written a bunch of articles on disability rights, some of them seminal, plus the first law school casebook on the subject. I had done important work as the expert on disability rights at the General Counsel’s Office of the U.S. Commission on Civil Rights, and had co-written a “Statutory Blueprint” article in an American Bar Association journal. I believe that my credentials would stack up favorably against almost anyone in the disability rights field, except maybe a few historical superstars like Jacobus tenBroek, Gunnar Dybwad, and Tom Gilhool.

So I was taken aback that my experience and credentials to draft the ADA bill were challenged on the grounds that I did not have sufficient experience in disability rights, did not have sufficient political clout, and did not understand the political realities of Capitol Hill. What made it doubly confounding was that such slights were mainly leveled at me by less-experienced advocates who had little track record of representing clients with disabilities, scholarship, or drafting legislation. I would have thought that my years of working with disability rights experts, advocates, and organizations in a variety of contexts and cases, and my connections with members of Congress and their staffs certainly gave me considerable political weight, especially compared to novices. Even many years later, one of the detractors, a lobbyist/lawyer who was still maligning the 1988 ADA bill, went so far as to suggest that I was not a lawyer in 1988 when I drafted it for NCD, when in fact, I had been a licensed attorney for 15 years by 1988. Such frivolous misrepresentations turned out to be little more than a minor annoyance to me in the long run, but they were totally unnecessary and I wish they had not occurred.

Dissing the 1988 ADA Bill

What concerns me much more than petty criticisms targeted at the National Council on Disability or at me, are potshots at the ADA bill. Casting aspersions on me or NCD for supposed shortcomings is one thing, but attacking the bill that we put so much effort and energy in developing, fine-tuning, and vetting, a bill that thousands of Americans with disabilities, including experts and disability community leaders, had input on and were supporting, and that was endorsed and cosponsored by many congressional leaders, is really beyond the pale, and leaves a blemish on the integrity and historical record of the bill, and the people who backed it and whose rights were at stake.

What exactly did the naysayers think was wrong with the ADA bill introduced in Congress in April of 1988? There were a handful of criticisms, but by far the most often repeated and problematic was that the 1988 bill was a “make the world flat” bill, often amplified as the “make the world flat in two years” bill. This criticism resulted from an exaggeration of provisions in the 1988 bill, and a total lack of understanding of the purpose of, and strategy behind, those provisions.

My original January 31, 1987, draft of an ADA bill contained a section headed “Limitations on the Duties of Accommodation and Barrier Removal,” which provided that substantial modifications to existing buildings and facilities did not have to be made if they “would result in a fundamental alteration or threaten the existence of a program, activity, business, or facility.” Moreover, when substantial modifications to buildings and facilities would be necessary to remove barriers, they were required to be made “within a reasonable time, not to exceed two years from the date of enactment” of the bill, unless federal regulations under the law “allow up to 5 years” for particular classes of buildings and facilities. So, if the latter provision had been enacted exactly as written, it would have created a standard of from two to five years for facilities and buildings of entities covered by the law to make accessibility modifications if necessary to permit equal access for people with disabilities. It would have only required accessibility to those parts of buildings and facilities where people with disabilities might seek access as employees, customers, or visitors of public accommodations, employers of a certain size, and state and local governments. It might have required the installations of ramps, and sometimes elevators or lifts, but it would not have made anything flat – not the world, not America, not even entities covered by the law.

More importantly, neither I, nor the Council, nor the sponsors ever expected these provisions to be enacted in the form in the 1988 bill. In Part 5: Composing My First Full Draft of an ADA Bill, I explained in detail the strategic thinking that led me to articulate the limitation on barrier removal and reasonable accommodations as I did. I will not repeat that rationale in full here, but let me hit the main points:

• Newly constructed buildings and facilities should be required to be accessible, since studies had shown that, when planned from the get-go, expenses associated with making structures accessible (barrier free) are very doable at only a tiny percentage of overall construction costs.
• Retrofitting an existing structure to make it accessible could sometimes involve drastic alterations entailing significant costs, or in some cases be nearly impossible, but that does not mean that businesses located in inaccessible buildings should get a pass and be permitted to operate in premises that bar access to many individuals with disabilities and continue to do so indefinitely.
• A day should come when government agencies and all businesses in America serving the general public are obliged to conduct their trades in places that offer equal access and use by those with disabilities.
• How soon such a day would come would have to be a matter of debate and compromise, but inaccessible public buildings and public accommodations should not be permitted to remain so forever; the best way to inject a degree of flexibility into an accessibility mandate was in regard to how much time covered entities should be given in making substantial modifications.
• With adequate lead time, it would be totally realistic and appropriate to give covered entities a choice between: (a) renovating their existing facilities to achieve accessibility if doing so was practicable, or (b) if it was not doable or they preferred not to retrofit, to relocate to an accessible space.
• The renovate-or-relocate requirement would be subject to the limitation discussed above that the option under consideration not threaten the existence or otherwise fundamentally alter the essential nature of the program, activity, business, or facility.
• The length of the transition period before the full requirement of accessibility of public accommodations and governmental buildings would take effect would be negotiated during congressional consideration of the legislation.
• Given the reality in our society that accessibility for people with disabilities was not the rule, but a sporadic, rare exception to the norm, considerable pressure would be applied to delay any existing-buildings-accessibility mandate.
• For negotiation purposes, it would be preferable to start with a precipitous target of 2 to 5 years, with the expectation that that timeframe would be extended during congressional consideration and debates; compromises on this issue in Congress would be a virtual certainty.
• Most likely, the accessibility timelines might be postponed a decade or more, but even in a worst case scenario, a fully accessible society in twenty or thirty years would be preferable to accepting inaccessibility indefinitely.

The above points seemed to me valid, and a very good negotiation strategy, in 1987, and I still think they were today. Perhaps it wouldn’t have worked, but it was very much worth trying. We never got the chance, however, because a few nervous nates among the Washington disability community started saying to each other that seeking accessibility of existing building and facilities was unrealistic and “pie in the sky.” I don’t think many people who use wheelchairs or have other mobility impairments would have chosen to give up on the notion that we shall one day have a fully accessible society, or at least get as close to that goal as possible.

In its On the Threshold of Independence report, in which it first published its proposed ADA bill, NCD observed that “the drafting of legislation is a developmental process that reflects negotiation, compromise, and continuous revision; the Council recognizes that the draft proposal presented on the succeeding pages is not the final version.”[2]  Our critics seemed to have ignored the obvious and elementary fact that negotiation and compromise are the lifeblood of the congressional process[3] – a deplorable, amateurish lapse by folks who seemed to think they knew more about the legislative process than the rest of us. An elementary axiom of negotiation strategy is to not preemptively “give away the farm.”

We missed an opportunity to try to pursue a fully accessible America; now that 30 years have passed since the ADA’s enactment, our approach of negotiating for a full accessibility deadline seems like it would have been a better move even if we had had to allow 30 years as a compromise. Today, we are still not even close to a fully accessible society.

On the full accessibility issue, a few of our colleagues gave away the farm before we even had a chance to plow the first field. They ridiculed the accessibility provisions recklessly and their misinformed grousing was soon picked up and parroted by opponents of the legislation, and by members of the press. And they did their damage without ever having come to me or the Council to share their concerns and ask for any explanation of the approach we were taking. I would have been happy to have explained to them the well-thought-out rationale behind our approach, and why it would be advantageous to start negotiations with a stronger, more ambitious stance. Instead, they held onto their suppositions and misreadings, griped about them to a few colleagues, spread their toxic criticism surreptitiously, only owning up to their condemnation of the full accessibility provisions long after it was too late to undo the harm. We missed an opportunity to try to pursue a fully accessible America; now that 30 years have passed since the ADA’s enactment, our approach of negotiating for a full accessibility deadline seems like it would have been a better move even if we had had to allow 30 years as a compromise. Today, we are still not even close to a fully accessible society.

Upshot of 1988 ADA Bill

Moving beyond the shortsighted rebuffs by a few individuals of some aspects of the 1988 bill, the much more important question is what impact and legacy did it actually have. One, not-widely-held, narrative is that the 1988 bill was a bust, that it did not go anywhere, and Washington insiders had to come to the rescue to breathe life back into it in the 101^st Congress. I picture the cartoon figure of the bill from “I’m Just a Bill,” the 1976 episode of the TV program Schoolhouse Rock, but with a frail-looking bill, reeling, gasping for breath, and about to expire, hoping some kind D.C. politico will come along to give it mouth-to-mouth resuscitation. Such a characterization is terribly misleading – I would say “flat-out wrong.”

...until NCD picked up the mantle in 1986, no one was pushing to enact a comprehensive federal law to prohibit discrimination against people with disabilities, and the 1988 ADA bill the Council developed and approved was the first-ever piece of federal legislation introduced in Congress seeking to enact such a law. It was a quantum leap forward from what went before.

There would have been no ADA in 1990 (or maybe ever?) without the NCD bill introduced in 1988. It was the sine qua non of the Americans with Disabilities Act – an absolutely essential, indispensable prerequisite or condition precedent. Before the National Council proposed the idea of an ADA in Toward Independence in 1986, no one was talking about a comprehensive federal law prohibiting discrimination on the basis of disability. I have heard Pat Wright tell the story of how after coming to Washington in the early 80s to set up a lobbying office for the Disability Rights Education and Defense Fund (DREDF) she told some folks involved in the Consortium for Citizens with Developmental Disabilities (CCDD), “I do civil rights,” and got the response, “We do budgets. We don’t do civil rights.” Pat retorted, “You will.”[4]  She was right, and she and CCDD became involved in a number of civil rights battles for people with disabilities, including successfully fighting to save the Section 504 regulations. But neither DREDF, CCDD, nor other disability advocacy organizations had the time or wherewithal to begin work on a comprehensive federal disability rights law, although they certainly made many connections and relationships that would prove critical to the ultimate advancement and passage of the ADA. Some disability organizations periodically called for adding the word “disability” to Title VII of the Civil Rights Act, and occasionally to Title VI, and some pieces of legislation to do so were introduced, but never got very far. But until NCD picked up the mantle in 1986, no one was pushing to enact a comprehensive federal law to prohibit discrimination against people with disabilities, and the 1988 ADA bill the Council developed and approved was the first-ever piece of federal legislation introduced in Congress seeking to enact such a law. It was a quantum leap forward from what went before.

The primary “failing” of the 1988 version of the ADA that led a few people to consider it a “bust” seems to be that it did not get enacted. And yet, by the time it was introduced, on April 28, 1988, NCD, the sponsors and cosponsors, the lobbyists, and everyone else with even an ounce of knowledge of congressional affairs, knew that it was not going to pass in the 100^th Congress. Although the National Council initially had hopes of getting a final version of its bill completed by the end of 1987, it was not until March 18, 1988, that the Council had finally approved its bill. Even with relatively quick work by the sponsors, during a period shortened by congressional recesses, to get it introduced on April 28, less than six months was left before the 100th Congress ended on October 22. It was clearly impossible to hold subcommittee and committee hearings; get the bill approved in what turned out to be six congressional committees; have floor debates; have votes on amendments and motions, and on final passage in the Senate and House; reconcile the House and Senate versions of the bill in conference committee; with Congress about to flee Washington for the 1988 elections. At the joint hearing in September the sponsors confirmed, to no one’s surprise, that the bill would not be passed before the end of the session. But this was hardly a shocker nor did it signify that the 1988 bill was a failure.

In their statements at the introduction of the bill and at the hearings, the sponsors and cosponsors were effusive in their acclaim for the legislation, illustrated by just a few examples”: Senator Weicker called it “historic legislation,” and praised NCD “for its fine work in developing this legislation”;[5]  Representative Owens [Hearing] extolled the ADA as “grant[ing] full rights to Americans with Disabilities,” and declared that the 1988 bill “represents the next giant step in the American civil rights movement”; Senator Harkin said the ADA was “good legislation, important legislation, needed legislation, and … the right thing to do,” and he stated his expectation “that this legislation will become the law of the land”; Senator Kennedy pronounced the bill “the essential next step in our ongoing effort to guarantee that [the citizens with disabilities] of our nation enjoy the same fundamental rights as all other Americans.”[6]

There was no wringing of hands or expressions of disappointment by members of Congress that the legislation could not be acted on in the 100^th Congress. To the contrary, the sponsors were full of optimism and enthusiasm. Senator Kennedy said, and repeated twice, that the legislation “will become law,” and promised his congressional colleagues that “this will be the first order of business when the next Congress meets,” and pledged, “The Americans with Disabilities Act deserves our high priority in Congress, and I intend to do all I can as chairman of the Labor and Human Resources Committee to expedite its enactment.” Representative Owens underscored Senator Kennedy’s sentiment: “[W]e will pass this bill. It will become law.” Senator Harkin stated his expectation equally bluntly “that this legislation will become the law of the land”; he said this after having acknowledging that “[t]his bill is not going anywhere this year. The Congress, the 100^th Congress, is about to adjourn. But we enter the 101^st Congress next year and the bill will be reintroduced right away,” and added, “It is going to be a tough battle. I am convinced we can do it.” Representative James Jeffords called upon members of Congress to “work together to make the ADA a fact, not a gesture; reflected in practice, not promises; and grounded in commitment, not hope,” and made a commitment and prediction that “the ADA will be enacted.” In his written statement included in the hearing record, Senator Paul Simon also sounded an optimistic note: “I sense we are ready to take the final steps to bring about full equality for Americans with disabilities – and we will be a far richer nation when we do.”

At the field hearing by the Subcommittee on Select Education of the House Committee on Education and Labor on October 24, 1988, when congressional proceedings in Washington for the 100^th Congress had already concluded, Representative Owens looked forward to the upcoming 101^st Congress. He declared that “[t]he crown jewel for the disability rights movement in the legislative arena … will be the enactment by the Federal Government of the Americans with Disabilities Act.” He noted the substantial support that had been generated for the ADA bill, and observed that “[o]ur task today, and in the months ahead, is to guarantee that none of this monumental support is eroded.” He elaborated:

Our hearing today is an important step toward assuring that the final legislation will be as great as the present bill. If there is a clear understanding of the great empowerment movement behind this effort, Congress will act to produce a bill which is not shackled by weakening amendments, damaging compromises or gross distortions. We need your testimony in order to preserve the Americans with Disabilities Act as it is written. We all have good reason to believe that a bill will pass. But when the process is completed, we want to celebrate a final product as good as the proposal we have initiated.[7]

The sponsors and supporters of the ADA in Congress were not surprised, disenchanted, or discouraged that the bill had not been miraculously passed in the 100^th Congress. They were preparing, enthusiastically, determinedly, and feistily, to continue the battle for its enactment in 1989 and 1990.

We who worked on developing the 1988 ADA bill certainly did not think it had missed the mark. NCD, its staff, and all those who had pitched in with ideas, feedback, and support for the proposal had much to be proud of. People who testified at the hearings didn’t think it was a dead end. Huge numbers of people with disabilities across the country didn’t think it was a failure. We were pleased and satisfied, elated really, for getting the bill this far in the legislative process in so short a time (the ADA had gone from a proposal in 1986 to an introduced bill with considerable momentum in 1988), and we were looking forward to taking it all the way to the finish line in the next Congress. Those who called the progress we had made a bust or a failure were like someone complaining to a construction contractor who had just completed the foundation for a house in record time, because it wasn’t already finished and ready to be moved into.

The 1988 bill did an excellent job of greasing the wheels for the passage of the ADA. In 1997, four years after he had published his book No Pity, in which he gave an extensive account of the proposal and enactment of the ADA, writer Joe Shapiro said that, because the ADA had so much support, its passage was not a daunting task.[8]

Impact on Content of the Enacted Bill

The 1988 ADA bill did not just pave the way for the bill that was signed into law in 1990; it had a profound, determinative impact on the structure, organization, tone, and content of the law enacted in 1990. And, even more fundamentally, NCD’s recommendations and its 1988 bill provided the raison d’être – the ultimate purpose, the reason a thing exists – of the statute. The defining characteristics of the ADA were established in Toward Independence: “a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of [disability].”[9]  When I drafted the first lines, the long-title, in my early versions of the NCD bill, I wrote: “To establish a clear and comprehensive prohibition of discrimination on the basis of [disability].” When enacted in 1990, the ADA’s first lines read: “To establish a clear and comprehensive prohibition of discrimination on the basis of disability.” More important than that the long-title is unchanged, is that what the Act was designed to do is also identical. All the work done in 1989 and 1990 to revise, refine, and improve the legislation was done to establish a clear and comprehensive prohibition of discrimination on the basis of disability. We members of the Legal Team, the congressional staffers, members of the Bush Administration, lobbyists, and others who got their two-cents in about the content of the bill were all working and striving in an attempt to augment and embellish what the Council had recommended and the 1988 bill had embodied – a comprehensive law prohibiting discrimination on the basis of disability.

The final ADA law looks quite a bit different from the bill introduced in 1988. It is much longer and more detailed than the original; it is organized around separate titles for each area of coverage like the Civil Rights Act of 1964, while the 1988 bill had a “Scope of Discrimination” section that listed all the categories of entities whose operations would be prohibited from discriminating. The final version has deletions and additions from the 1988 version, and some totally new stuff such as coverage of congressional branch agencies. But the essence and much of the language of the ADA as enacted is identical to, or clearly and closely derivative from, the 1988 bill. The substantial Findings and Purposes of the original version and the version signed by the President in 1990 are almost completely identical, with the only change of note (apart from changing the estimate of the number of people with disabilities in the U.S. from 36 million to 43 million) being moving a reference to paralleling protection against disability discrimination to that provided from discrimination on the basis of race, sex, national origin, and religion, from the Purposes to the Findings.

The central thrust of the 1988 bill was retained in the 1989/1990 bill. The six broad areas in which discrimination was prohibited in the first bill – employment, housing, public accommodations, transportation, state and local government programs and services, and communications and telecommunications – were all covered in the bill that was passed, except that housing was taken out after the Fair Housing Amendments Act was enacted and became effective on March 12, 1989. The “Forms of Discrimination” in the 1988 bill were repackaged and relocated in separate titles of the later bill, but as the content of both was based upon Section 504 regulations, they were not widely divergent. The biggest obvious difference in the two versions of the ADA were the numerous provisions (many pages) in Titles II and III of the 101^st Congress version applicable to public transportation programs and transportation services provided by private entities (public accommodations), respectively. These provision were added in transportation committees in the House of Representatives, with the support and input of the U.S. Department of Transportation (DOT), primarily to end repeated challenges in the courts by the mass transit industry and disability rights organizations of several sets of regulations DOT had issued. The transportation additions to the ADA were intended to settle, once and for all, what was or was not required to eliminate discrimination on the basis of disability in transportation. Though the added provisions were lengthy, detailed, and numerous, they were fully consistent with the 1988 bill, and in furtherance of the transportation recommendations of NCD in Toward Independence (including its extensive Appendix topic paper E on Transportation).

The 1989/1990 version of the ADA was not a repudiation of its predecessor, it was an attempt to refine and make it stronger.

The transportation provisions added during the 101^st Congress, along with other additions such as coverage of Congress and agencies of the legislative branch, provisions relating to access to federal wilderness areas, and expansion of coverage of public accommodations were in fulfilment, not in conflict, with the 1988 bill. NCD and the sponsors and supporters of the prior bill welcomed such changes. The 1989/1990 version of the ADA was not a repudiation of its predecessor, it was an attempt to refine and make it stronger.

I believe some of the changes made in the bill in the lead-up to the 101^st Congress and during its consideration of the legislation were bad decisions that weakened the bill; and I would end up fighting tooth and nail, sometimes unsuccessfully, trying to stop them, as I will describe in future sections of the MAKING OF THE ADA section of this website. But I do not think the battles I lost mean that the essence of the 1988 bill was lost. The core of the bill proposed by NCD and introduced in the 100^th Congress – to establish a clear and comprehensive prohibition of discrimination on the basis of disability – was achieved with the signing of the ADA by the President on July 26, 1990. The 101^st Congress did not reject or invalidate the prior Congress’s bill, but built upon and supplemented it in a way that, for the most part, delivered on the predecessor bill’s promise.

The ADA as passed comports closely with the ADA recommendations of the National Council in Toward Independence as well as with the bill introduced in 1988. It is highly enlightening to compare the final statute with the Fact Sheet about the Americans with Disabilities Act of 1988 that I had developed for dissemination of April 18, 1988, which gives a concise summary of what the 1988 bill was about. The Fact Sheet is presented in Part 17 of this section, but for convenience I am repeating it here:

Fact Sheet

about the Americans with Disabilities Act of 1988

• The Americans with Disabilities Act of 1988 was a key recommendation of the National Council on the Handicapped in its 1986 report, Toward Independence.
• The Act prohibits discrimination on the basis of handicap in areas such as employment, housing, public accommodations, travel, communications, and activities of state and local governments.
• The Act covers employers engaged in commerce who have 15 or more employees; housing providers covered by federal fair housing laws; public accommodations; transportation companies; those engaged in broadcasting or communications; and state and local governments.
• The Act specifically defines discrimination, including various types of intentional and unintentional exclusion; segregation; inferior or less effective services, benefits, or activities; architectural, transportation, and communication barriers; failing to make reasonable accommodations; and discriminatory qualifications and performance standards.
• The Act specifies those actions that do not constitute discrimination. They include unequal treatment wholly unrelated to a disability or that which is the result of legitimate application of qualifications and performance standards necessary and substantially related to the ability to perform or participate in the essential components of a job or activity.
• The Architectural and Transportation Barriers Compliance Board will issue minimum accessibility guidelines. Other regulations will be issued by the Attorney General, the U.S. Equal Employment Opportunity Commission, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Federal Communications Commission, and the Secretary of Commerce.
• The Act will not repeal Section 503 and 504 of the Rehabilitation Act of 1973 and all regulations issued under those sections will remain in full force and effect.
• Enforcement procedures include administrative remedies, a private right of action in federal court, monetary damages, injunctive relief, attorney’s fees, and cutoffs of federal funds.

The ADA as eventually enacted stands up quite well against this synopsis of the 1988 version.

Whenever I got wind of people saying that NCD’s ADA bill had flopped or was a bust, and that it would have to be reincarnated in the next Congress, it would make me grimace, but underneath there was a hidden grin because I knew that our ADA proposal was alive and well.

In later years, when I was teaching in my Legislation Clinic at the David A. Clarke School of law, each semester I would assign students, as a complement to their clinical legislation work, to read one of a list of books giving the inside story of how a particular piece of federal legislation was drafted and passed. The first such book I had on the list was an old one from 1973 by Eric Redman, titled The Dance of Legislation. Redman derived the title of his book from a quotation by President Woodrow Wilson: “Once begin the dance of legislation, and you must struggle through its mazes as best you can to the breathless end—if any end there be.” Throughout the book Redman used the analogy of dancing for various parts of the legislative process, e.g., likening finding cosponsors to trying to find dance partners at a college mixer, viewing trying to get a federal agency’s support for the National Health Service bill as a “pas de deux,” and so on. As I was working on the ADA leading up to its enactment, I was not aware of Redman’s book and his use of the dance metaphor. I landed upon it on my own, however, as I was contemplating the notion that some people were considering our 1998 bill as having failed. From time to time, I confided to Andi that the people who thought that way didn’t seem to realize it, but they were “dancing to our music.” That’s how I feel about it: though the torch had been passed from NCD to a whole bunch of people contributing to the refining of the ADA bill in the 101^st Congress, some of whom might take discordant steps and even step on the toes of people with disabilities in some ways, they were undoubtedly dancing to the tune of the 1988 ADA bill, and that music would play on until the last chords were heard at the ADA signing ceremony and then all over America.

 

 

[1] Paula Yost, “Tedious Meetings, Testy Exchanges Produced Disability-Rights Bill,” Washington Post, August 7, 1989, p. A4.

[2] National Council on Disability, On the Threshold of Independence (1988) at p. 23.

[3] At least prior to the uncivil proclivities and ruthless partisanship of recent years.

[4] Joseph Shapiro, included a version of the story in his book, No Pity: People with Disabilities Forging a New Civil Rights Movement (1993) at p. 112.

[5] Senator Weicker’s introductory statement is discussed above in Part 17: Introduction of 1988 ADA Bill and Making Headway in the 100^th Congress.

[6] The Congress members’ statements at the hearings are discussed above in Part 18: 1988 ADA Congressional Hearings and End of 100^th Congress.

[7] Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988 Before the Subcommittee on Select Education of the House Committee on Education and Labor, 100^th Cong. 2^nd Sess. (1988), reprinted in Legislative History of Public Law 101-336, prepared for the House Committee on Education and Labor [Committee Print], serial No. 102-A (December 1990) vol. 2, p. 1026, at pp. 1031-1032 (remarks of Rep. Owens).

[8] Reported in Doris Zames Fleischer & Frieda Zames, The Disability Rights Movement: From Charity to Confrontation (2001) at p. 88.

[9] The word “handicap” was used in the original.