Drafting and Introduction of the Original ADA Bill - Part 6

Council Meeting in Miami, February 1-4, 1987

In the year after Toward Independence was issued in February 1986, a modicum of legislative attention in Washington was devoted to disability rights proposals. On January 6, 1987, Representative John Joseph (Joe) Moakley (D-Mass.) followed his practice of many years by introducing H.R. 192, the latest iteration of a bill he had sponsored regularly for many years to amend the Civil Rights Act of 1964 to make discrimination against people with disabilities an unlawful employment practice.[1]  While none of these measures ever made it to the floor of the House, Representative Moakley’s 1987 bill would later be the subject of a Subcommittee Hearing.[2]  On the same day that Moakley introduced his 1987 bill, Representative Edward Bennett (D-Fla.) introduced a bill to amend Section 504 of the Rehabilitation Act to eliminate discrimination against “handicapped or disabled individuals” by recipients of federal financial assistance;[3] the measure never made it out of subcommittee.

During 1986, Congress had enacted some distinctly targeted, but significant, legislation consistent with equal opportunity recommendations in Toward Independence, notably: (1) by enacting the Air Carrier Access Act of 1986 (Public Law 99435), which prohibits discrimination on the basis of disability by all air carriers; (2) in section 1003 of the Rehabilitation Act Amendments of 1986 (Public Law 99-506) which took away states’ ability to invoke immunity under the Eleventh Amendment when they are charged with discrimination on the basis of disability in violation of Section 504 of the Rehabilitation Act; and (3) in section 601 (a) (3) of the Rehabilitation Act Amendments of 1986 (Public Law 99-506), which amended Section 502 of the Rehabilitation Act in accordance with the Council's recommendation that the wording of the statute regarding succession of Board members should be amended to avoid unfilled vacancies.

While these few legislative advances represented substantial efforts to expand or clarify nondiscrimination protection for persons with disabilities in specific ways, they left a lot more work to be done, particularly in regard to the Council's primary recommendation for enactment of a clear and comprehensive statute guaranteeing equal opportunities for people with disabilities. Such thoughts were in the minds of both the members and staff of the National Council as we arrived in Miami for the Feb. 1-4 Council meeting.

Not surprisingly, a major focus of the Council’s agenda for the meeting was to discuss progress made on the Toward Independence recommendations, including the ADA proposal. We distributed to Council members copies of the “Outline of Elements of Equal Opportunity Law” I had written and circulated to Council staff earlier; to make clear that the Council had not yet seen this document, I labeled it as an “NCH Staff Draft.” The Council appeared to appreciate the Outline of Elements and expressed no misgivings about it or need for any changes.

Reaffirming Priority of Equal Opportunity Law

Lex and I reported to the members that Congress had not yet taken any actions related to the ADA proposal. In the year between the publication of Toward Independence in February of 1986 and the February 1987 Council meeting, members of the Council had become increasingly impatient. They fully expected that once they had put into writing what Congress should do, then Congress would hasten to do it – an expectation that I found naïve but well-meaning. During discussions at the February meeting, some Council members expressed the opinion that if Congress does not do anything, “we may want to do it ourselves.” Ordinarily, most agencies do not write their own laws, at least not publicly; members of Congress are purportedly the authors of legislation – they get to take the credit. Without warning, Chairperson Parrino then turned to me and said, "Bob, could you write such a law?" I replied spontaneously, “Sandy, "I've been waiting most of my life for the chance to write such a law."

As discussed earlier, strictly speaking, it was not totally true that I was “waiting” to write an ADA bill, because I had anticipated that the Council might at some point assign me that responsibility, had begun working on a legislative proposal based on the recommendations in Toward Independence, and, by the end of January, had already put together a rudimentary draft bill. But I would not be ready to present the draft to the Council until I’d had a chance to get some more outside input and massaged the draft some more. And I was very aware that, although Chairperson Parrino had asked me if I could write an ADA bill, the Council had not actually authorized me to do so. My hope was to proceed to get a first-rate draft bill done promptly but to keep it quiet for the time being.

I had not yet put a date on my secret working draft of the bill, but after the meeting ended, I hand wrote “Draft 2/3/87” at the top of the first page. In the two weeks after the meeting, I drafted for the Council a short notification titled, “Council Reaffirms Priority of Equal Opportunity Law.” It announced that at its February meeting the Council had “reiterated its commitment to enactment of a comprehensive statute guaranteeing equal opportunity for persons with disabilities … tentatively referred to as ‘The Americans with Disabilities Act.’” It also noted that the Council had chosen promotion of such a statute as one of its major priorities. The paper indicated that the Council envisioned that the prohibition of discrimination against people with disabilities should apply to employers engaged in interstate commerce, to public accommodations, to providers of housing, and to other agencies and persons covered under other civil rights laws. It further recited the Council’s advice that certain elements of the prohibition of discrimination should be spelled out, i.e., the duties to: remove architectural, transportation, and communication barriers; provide individualized reasonable accommodations; and eliminate discriminatory qualifications standards and eligibility criteria.

While the Council was making a high priority of the ADA proposal, there was still other Council business to do. After the February meeting, Dr. Latham Breunig, Chair of the Council’s Research Committee, leaned on me to put time in on my staff duties as the Research Specialist. In particular, I had work to do attending meetings of the ICHR (Interagency Committee on Handicapped Research) on the disability questions for the 2000 U.S. Census, and helping the Council formulate policies for the National Institute on Disability and Rehabilitation Research (NIDRR). I fulfilled those responsibilities and kept Dr. Breunig informed.

Nonetheless, by February 26, I managed also to write a three-page “Discussion Draft” on the “Need for Expanded Nondiscrimination Protection for Citizens with Disabilities.” It formulated the Purpose of the proposed law in the following terms:

• Coverage commensurate with civil rights laws dealing with race, sex, national origin, and religious discrimination;
• Clear, strong, consistent standard of nondiscrimination; and
• Coverage of major areas of day-to-day discrimination faced by people with disabilities.

It also presented a bulleted list outlining elements that needed to be included in such a law: its scope, the forms of discrimination to be prohibited, limits on duties of reasonable accommodation and barrier removal, regulations, a private right of action, who would be protected, definitions (terms used in defining “person with a disability” should be those used in Section 504 regulations; “reasonable accommodation” to be defined as in Accommodating the Spectrum of Individuals Abilities), and terminology to be used.

Toward the end of March, I had an additional. but related, task to complete. On February 19, 1987, Senator Edward Kennedy (D-Mass.) had introduced the Civil Rights Restoration Act bill (S. 557, 100^th Congress (1986)), to undo two Supreme Court rulings that narrowed the coverage of civil rights laws – Grove City College v. Bell, which had sharply restricted the scope of “programs and activities” covered by Title IX of the Education Amendments Act of 1972, and Consolidated Rail Corporation v. Darrone, which made the Grove City holding applicable to the prohibition on disability discrimination in Section 504 of the Rehabilitation Act. Sen. Kennedy’s bill (the most recent version of bills initially introduced in 1985) provided that recipients of federal funds must comply with civil rights laws in all areas, not just in the particular program or activity that received federal funding. On March 27, 1987, Sen. Kennedy invited the Council to testify on the bill to his Committee on Labor and Human Resources. I worked with Lex Frieden to draft the testimony that he delivered on April 1. It stressed the importance of civil rights protection to people with disabilities, and the key role played by Section 504, then the “primary statute” prohibiting discrimination against them. Lex’s testimony rebutted fears that providing equal opportunities for employees would be very burdensome to employers. It exhorted that

If our Nation’s commitment to equality for its citizens is to have any meaning, the Council believes that Congress must restore Section 504 and other civil rights laws to the breadth of coverage that they had prior to the Grove City and Darrone decisions.

And, foreshadowing the Council’s ADA proposal, Lex declared that “[a]t sometime in the future, the Council intends to provide this Committee with its views regarding a more comprehensive approach to prohibiting the discrimination faced by people with disabilities.”

Apart from support by the National Council, congressional consideration of the Civil Rights Restoration Act benefitted considerably from extensive, productive, and largely unprecedented involvement of the disability community. Such efforts, led by Arlene Mayerson and Pat Wright of the Disability Rights Education and Defense Fund, working closely with Ralph Neas, Executive Director of the Leadership Conference on Civil Rights, brought together a number of disability advocates with activists for other civil rights causes. Mayerson was quoted as saying, "Not only could [the civil rights community] see that we could do the work as well as they could and do the legal analysis as well as they could, but we were also able to open a few doors that weren't traditionally open in the civil rights community."[4] The Civil Rights Restoration Act was enacted on March 22, 1988, over President Reagan's veto. Ralph Neas observed that "those four years enabled about thirty or forty people to get to know one another really well, and we went to hell and back [on] a legislative roller coaster ride."[5] The side-by-side cooperation between the disability activists and traditional civil rights advocates on this legislation would prove to be a helpful foretaste of the collaboration that would prove critical in the battle to pass the ADA.

Continue to Part 7: Early Input on the Council’s ADA Approach

[1] H.R. 192, 100^th Cong. (1987). See also, e.g., H.R. 3345, 96^th Cong. (1979); H.R, 1919, 97^th Cong. (1981); H.R. 1200, 98^th Cong. (1983); H.R. 370, 99^th Cong. (1985). Moakley continued a tradition begun when Representative Charles Vanik (D‑Oh.) and Senator Hubert Humphrey (D-Minn.) first introduced similar legislation in 1971 and 1972; these bills would have amended title VI of the 1964 Act. See, H.R. 12154, 92^nd Cong. (1971); S. 3044, 92^nd Cong. (1972). In a separate bill introduced in 1972, Representative Vanik sought also to amend Title VII of the Civil Rights Act to make discrimination because of physical or mental disability an unlawful employment practice. H.R. 14033, 92^nd Cong. (1972). All of these prior bills had died in committee.

[2] Hearing on Discrimination Against Cancer Victims and the Handicapped: Before the Subcomm. on Employment Opportunities of the House Comm. On Educ. and Labor, on June 17, 1987, H.R. Rep. No. 100-31(1987). In addition to Moakley’s bill the hearing focused on Representative Mario Biaggi’s bill, the Cancer Patient’s Employment Rights Act, H.R. 1546, 100^th Cong. (1987), which also did not make it out of committee.

[3] H.R. 55, 100^th Congress (1987).

[4] Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 37 (1997).

[5] Id.