Drafting and Introduction of the Original ADA Bill - Part 2
My First Partial Draft
Whatever reticence I felt initially toward undertaking the drafting of a bill was mitigated somewhat by an increasing impatience on the part of the members of the Council because Congress had not taken any action on the ADA recommendation presented in Toward Independence in 1986. Lex would later recount some conversations with Council members as early as the end of December 1986, in which passing references were made to the possibility of the Council developing an ADA bill. I have no recollection of knowing about those specific conversations, but I gradually got a sense that some members of the Council were beginning to think about the Council considering a do-it-yourself legislative proposal. On January 7, 1987, I met with Chairperson Parrino and I realized she was beginning to entertain the possibility of the Council developing a bill. It had not yet been a year since Toward Independence was issued, and it seemed to me that the growing exasperation of members of the Council over the failure of Congress to have introduced an ADA was a mite premature. But while the Council members’ impatience reflected some naiveté and exaggerated expectations of the impact their report would have, it spoke highly of their commitment to and passion for, the ADA recommendation and their belief in its necessity. I was not inclined to try to dissuade them from their zeal for quick action on the ADA proposal.
The day after my conversation with Chairperson Parrino, I decided that, if the Council chose to develop an ADA proposal on its own, the actual work would almost certainly fall to me, and I should try to get ahead of the process. I decided to begin writing an ADA bill. What does one do to begin writing a major federal bill? I ran out and got a copy of a bill to use as a model for proper format. Based upon that template, I sat down at the word processor in my office at the Council and typed the following:
THE AMERICANS WITH DISABILITIES ACT OF 1987
To establish a clear and comprehensive prohibition of discrimination on the basis of handicap.
Be it enacted by the Senate and House of Representatives of the United States of Amercia in Congress Assembled,
SECTION 1. This Act may be cited as the "Americans with Disabilities Act of 1987".
[Alert and meticulous readers may notice my typo – “the United States of Amercia” – we did not have a spell-checking function on our word processors at the time.]
The next section was FINDINGS AND PURPOSES, for which I typed “[TO BE INSERTED].” After that I put in a DEFINITIONS section that included definitions of “physical or mental impairment,” “perceived impairment,” “record of impairment,” and “reasonable accommodation.” Next came a section titled “SCOPE OF DISCRIMINATION PROHIBITED” that specified which entities would be prohibited from discriminating; this section would include the nine categories listed for coverage in the Toward Independence recommendation, but I typed only the first two – the federal government and recipients of federal financial assistance – before hurrying on to the next section titled “UNLAWFUL HANDICAP DISCRIMINATION.” The section contained five subsections, the first of which made it “an unlawful act of handicap discrimination” to subject someone, because of mental or physical impairment, perceived impairment, or history of impairment, to any of the following: “(a) intentional exclusion; (b) unintentional exclusion; (c) segregation; (d) unequal or inferior services, benefits, or activities; or (e) less effective services, benefits, or activities.” The next three subsections prohibited, respectively, not making “practicable modifications” to permit equal participation, failing or refusing to remove “architectural, transportation, and communication barriers,” and imposing discriminatory “qualifications standards, selection criteria, and eligibility criteria.” The fifth provided that the practicable modifications and barrier removal requirements did not apply to changes that would “fundamentally alter the essential nature or threaten the existence of the program, activity, business, or facility in question.” After completing these provisions, which amounted to a little over two typewritten pages, I put the January 8 draft aside.
Continue to Part 3: Input from Close Colleagues
 Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 61 (1997).