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Drafting and Introduction of the Original ADA Bill - Part 7

Early Input on the Council’s ADA Approach

Shortly after the Council meeting at the beginning of February, the staff brainstormed a list of people to meet with to seek their input on the ADA proposal. It was a long list (just under 50 names) that included many of the leading lights in disability policy activism. The Council would later refer to those on the list as “important and knowledgeable persons in the disability community.”[1]

During the next few months after the February Council meeting, most of the people on the list were contacted by Lex, or by staff members Kathy Roy, Andi Farbman, Ethel Briggs, and me; or in a few instances by D. Ray Fuller, an attorney with a hearing impairment who had joined us as a Council Fellow in 1987 (along with Laverne Chaise, a wheelchair-using housing and homelessness advocate). The persons we contacted were given a brief summary of what the Council was up to regarding its ADA concept including information about the Toward Independence recommendations, along the lines of the information in the “Outline of Elements of Equal Opportunity Law,” and asked for their reaction and input.

Most of the responses we got were civil and polite – either encouraging or noncommittal. The flavor of those discussions may be suggested by a sampling of some of the early ones. On February 19, 1987, Gordon Mansfield and David Capozzi told us that they “had no problems” with the scope of the Council’s initiative, as they believed a “broad, all-encompassing” law was needed. They advised us to marshal studies documenting discrimination, stressed that positive language in congressional committee reports would be critical, and said that there should be no limits on the duty to accommodate. They told us to get all of our documentation together and be ready to go in September, and to have a first immediate fallback position ready once negotiations began. They suggested that we try to make contacts with the AFL-CIO, and trade associations including the National Association of Homebuilders (NAHB) (stressing that jobs would be created for necessary renovations), the National Restaurant Association, the National Association of Realtors, the American Hotel and Motel Association, and the American Insurance Association.

On February 29, we met with Evan Kemp, Bob Funk, and Chris Bell. At the time Kemp was executive director of the Disability Rights Center, but he was in the process of being named a member of the Equal Employment Opportunity Commission (EEOC), which he would later chair. Bob Funk was the director of the Disability Rights Education and Defense Fund (DREDF), and Chris Bell was a staff attorney at the U.S. Commission on Civil Rights. Once Kemp was appointed to the EEOC a short time later, Funk and Bell would join him as staff members. Their input at this time was not extensive, but helpful. They stressed that specificity would be critical in any law that we were able to get passed and regulations that were issued to enforce it, and added that getting regulations promulgated would take considerable time and effort. They observed that there was a danger of trying to blend civil rights and services (though I did not see the Council’s proposals as confusing the two), and advocated that coverage of employment should be limited to employers having 15 or more employees in interstate commerce. Finally, Evan, Bob, and Chris emphasized the importance of what they called “the 1982 Department of Labor accommodations report,” which I knew to be the landmark report developed for DOL by the Berkeley Planning Associates, A Study of Accommodations Provided to Handicapped Employees by Federal Contractors that documented that accommodations for workers with disabilities do not actually involve much in the way of costs.

Lex and I met with Pat Wright of DREDF on February 25. After we described to her where we were with the Council’s ADA concept, her first recommendation was that we needed to call legal experts together as we worked on the proposal and ask them, “Could you litigate with this?” She specified that we especially should consult the litigators, and suggested the kind of people she meant – Tim Cook of PILCOP, Arlene Mayerson of DREDF, Reed Martin of Advocacy, Inc., Kathy Boundy of the Center for Law and Education, and Jill Robinson of the U.S. Commission on Civil Rights. She told us that our key mission with the Council’s proposal was to “Peddle It.” She stressed the importance of the upcoming Senate Hearings on the Civil Rights Restoration Act and, when told that the Council had been asked to testify, she advised that the testimony take the approach that the Restoration Act isn’t nearly enough, but the Congress should, at a bare minimum, give civil rights litigants what they had before the Supreme Court severely curtailed their rights. She suggested that we might want to contact the Leadership Conference on Civil Rights and the League of Women Voters, who were spearheading Restoration Act efforts.

We talked with Paul Marchand of the Association for Retarded Citizens (ARC) on March 6. He advised us that the Council’s ADA proposal should elicit a full round of oversight hearings, probably in the Judiciary Committees. He offered some advice on presentation and marketing of the proposal, stressing both the importance of and cautions about media coverage. At this stage, he advised trying to respond to questions about thorny details of the Council’s initiative (such as scope and limits) by acknowledging them but not necessarily answering them, observing that too much specificity (even as in P.L. 94-142 (IDEA)) sometimes gets us in trouble. Similarly, he advised responding to early expressions of concerns about aspects of the proposal by reframing them as questions. He expressed the view that in addressing disability discrimination in areas other than education, the state of the art is not very advanced. He identified three key principles or objectives in outlawing discrimination on the basis of disability: (1) guaranteeing access, (2) ensuring appropriateness, as in FAPE (free appropriate public education), and (3) providing programs and activities in the least restrictive environment. He suggested that we carefully word any provisions regarding qualifications to get at ability to perform essential components of a job or opportunity. Finally, he told us that, in light of other pending legislation, we should tread lightly on pushing the proposal forward for a month or two.

We got together with Marca Bristo of the National Council on Independent Living (NCIL), and Judy Heumann and Ed Roberts of the World Institute on Disability, on March 9. Lex and I outlined our current thinking about an ADA proposal, and answered their questions about it. A big part of the conversation was why we were not simply amending the Civil Rights Act of 1964 to include disability. Although the Council had not reached a consensus on the choice of vehicle for an ADA bill, I explained some of the disadvantages of amending the 1964 Act. Marca and Judy raised the names of Senator Joe Biden (D-Del.) and Representative Don Edwards (D-Cal.) as people who might be useful allies for the proposed legislation. They expressed their belief that recent studies of voting patterns by people with disabilities might be helpful in garnering support. They suggested working with NCIL and networking with Deidre Davis, at the time, chief of the independent living branch at the Department of Education’s Rehabilitation Services Administration (RSA).

As these meetings with “important and knowledgeable persons in the disability community” were going on, there was some contact with Reagan Administration officials about the Council’s ADA initiative. As described previously, copies of Toward Independence, in which the ADA was featured conspicuously, had been transmitted to President Reagan; Vice President Bush; the Vice President’s legal counsel, Boyden Gray; Bob Sweet, the Deputy Executive Secretary of the Domestic Policy Council at the White House; Dr. William L. Roper, Special Assistant to the President for Health Policy; and a variety of other high-level Administration officials. Except for Vice President Bush, who had engaged in extensive discussions with Council members Parrino, Dart, and Milbank, and Lex the week Toward Independence was issued and obviously had read the report, it was not clear how much of the report and its recommendations the other executive branch personnel had read and whether they had paid any attention to the ADA recommendations. Although President Reagan’s letter to the Council on the publication of the report declared his agreement “with the goals implicit in Toward Independence – equal opportunity and full social participation for all Americans,” it is a good bet that he had not personally reviewed the report nor examined its specific recommendations.

By the Spring of 1987, some members of the Council sought additional contact with the Reagan Administration regarding the Council’s proposals. Justin Dart informed Lex and me that he had spoken with Attorney General Meese about the Council’s ADA proposal (Justin’s father and Meese had both been members of President Reagan’s “kitchen cabinet), and the A.G. indicated that he was very interested in having Justice Department personnel discuss it with our staff. Justin indicated that Meese said that he would have Brad Reynolds call Council member Jeremiah Milbank to set up a meeting with Reynolds in the next week. On May 6, Milbank informed us that Deputy Attorney General Arnold Burns and Assistant Attorney General for Civil Rights Reynolds would meet with us on May 8.

At the time, I knew little about Arnold Burns, other than that as Deputy Attorney General he was the second highest ranking official in the Department of Justice, and previously had spent 25 years practicing corporate and securities law. My attitude toward Brad Reynolds was ambivalent at best. During my years in the General Counsel’s Office of the Civil Rights Commission, I was aware of Reynolds’s reputation as an opponent of vigorous remedial measures for addressing inequality. He may have begun by opposing primarily mandatory busing and racial hiring quotas, but he had very quickly moved to condemning all forms of affirmative action and other approaches that he considered to violate racial, gender, religious, and ethnic “blindness.” Within three months of his being appointed head of the Civil Rights Division, Reynolds was publicly denouncing as illegal “preferences,” any forms of combatting discrimination that involved race-conscious, sex-conscious, national origin-conscious, or religion-conscious remedies; on October 20, 1981, he delivered a speech at a Conference on Equal Employment Opportunity, in which, in discussing “Title VII and similar statutes,” he declared:

The Justice Department will not retreat one step from its historic commitment to enforce the federal civil rights laws, but we will no longer insist upon, or in any respect support, the use of quotas or any other numerical or statistical formulas designed to provide to nonvictims of discrimination preferential treatment based on race, sex, national origin, or religion.[2]

He added that “[r]ace-conscious and sex-conscious preferences are … divisive techniques that go well beyond the remedy necessary ….”[3] In a speech at the 1983 Convention of the National Federation of the Blind, he declared: “[W]e have declined to wage th[e] battle [against discrimination] by assigning to any group an artificial preference – a so-called “catch-up factor” – that favors some to the disadvantage of others who are innocent of any wrongdoing.”[4]

My knowledge of civil rights analysis, including insights gained during my work at the Civil Rights Commission, caused me to consider Reynolds’s approach simplistic and unenlightened. Discrimination is not just a phenomenon of random, unrelated actions by a few bad actors. Civil rights laws are necessary because discrimination involves individual discrimination, organizational discrimination, structural discrimination, and the ongoing effects of systemic discrimination.[5] The Civil Rights Commission has found that “[t]he blatant racial and sexual discrimination that originated in our conveniently forgotten past … continues to manifest itself today in a complex interaction of attitudes and actions of individuals, organizations, and the network of social structures that make up our society.”[6] And “[d]iscrimination can feed on discrimination in self-perpetuating cycles.”[7] Neutral or “blind” measures cannot effectively address the basic sources of entrenched discrimination.

If the views expressed by Assistant A.G. Reynolds were (and are) controversial in the context of other civil rights laws, they have additional problems when applied to discrimination on the basis of disability. Neutrality toward disability is not compatible with reasonable accommodation and barriers removal requirements that are essential to eliminating discrimination against persons with disabilities. In drafting Accommodating the Spectrum of Individual Abilities for the Civil Rights Commission, Chris Bell and I stressed that identical/neutral/non-preferential treatment

would not foster the provision of alternative ways of achieving given tasks or objectives so that [people with disabilities] could have meaningful opportunities to participate. When decisionmakers forget that social contexts almost always are structured for [people without disabilities], they are apt to view anything beyond such identical treatment as special, unequal treatment necessitated by the [disabling condition] … Such an approach would give the form, but not the substance, of equal opportunity.[8]

We quoted the words of the Supreme Court in a landmark race discrimination employment case:

Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the jobseeker be taken into account. It has—to resort again to the fable— provided that the vessel in which the milk is proffered be one all seekers can use.[9]

Removal of architectural, transportation, and communication barriers is an essential prerequisite for equal access for people with disabilities that ought to be done in anticipation of persons with disabilities seeking to use facilities, services, programs, etc.; reasonable accommodations are changes and modifications in the employment environment and other circumstances and settings covered by civil rights laws to permit a particular person with a disability to have equal access to opportunities, services, programs, etc., by taking into account the particular needs and abilities of that individual. Neither of these is, nor can be, disability neutral.

Reynolds had fallen short of vigorous enforcement in the area of disability civil rights in a variety of other ways. Many such shortcomings were discussed in a 1984 article in the Washington Post by Tim Cook, longtime disability rights advocate extraordinaire, who worked under Reynolds in the Civil Rights Division from 1981 to 1983, and fought a battle of charges and memos with his superiors in the Justice Department, particularly Reynolds, about inadequate enforcement of disability rights laws, until Tim resigned on October 18, 1983.[10] In Cook’s Post article, he took the Department to task for not having brought a single lawsuit under the Institutional Persons Act, for not having filed any lawsuits to redress discrimination under Section 504, for terminating well-founded litigation recommended by the Civil Rights Division to address disturbing harmful conditions in residential institutions, for refusing even to investigate some serious discrimination complaints, for negotiating out-of-court settlements that allegedly sold out the rights of institutionalized plaintiffs with disabilities, and for redrafting a proposed regulation for the application of Section 504 to DOJ activities to narrow the scope of activities to be covered. The latter DOJ regulation became the model for a so-called “prototype regulation” issued by Reynolds that I had pushed up against in trying to write strong Section 504 regulations for the Civil Rights Commission and the National Council on Disability. Among other problematic provisions in the prototype, Reynolds took dicta from the Supreme Court’s Davis v. Southeastern Community College and created an unfortunate “undue hardship” defense to making reasonable accommodations to permit a person with a disability to participate equally.

On the other side of the ledger, Brad Reynolds liked to boast about Section 504 litigation in which the Department of Justice had taken pro-disability positions, e.g., that Section 504 covers all employment activities of covered entities, not just those discrete programs where the primary purpose is employment-related; that a private right of action is available under Section 504; that back pay is available as a remedy under Section 504 for victims of purposeful discrimination; that Section 504 required a state to provide a reader at state expense for a blind case worker employee; and that a deaf juror was entitled to reimbursement for the cost of a sign language interpreter necessary to permit her to perform responsibilities as juror.[11] My impression was that these examples were laudable but did not match enforcement lapses in Reynolds’s Civil Rights Division.

More directly compelling, however, was the invaluable support, described in a previous posting, that Brad Reynolds lent to the Council’s Toward Independence report within the Administration when it was threatened with efforts to block it led by Bob Sweet, the Deputy Executive Secretary of the Domestic Policy Council at the White House. After discussing the situation with Justin Dart, the Assistant Attorney General had pledged to see to it that “[n]ot only is the President not going to oppose this, he is going to support your proposal, and you are going to get it in writing.” He followed through by calling the White House and arranging for President Reagan to sign a letter in which he congratulated the Council on the completion of Toward Independence and declared his agreement “with the goals implicit in [it] – equal opportunity and full social participation for all Americans.” Accordingly, Reynolds had intervened to keep the Council’s ADA proposal from being derailed before it even got out of the station, and obtained the President’s blessing, very significant, even if somewhat circumspect.

I went into the May 8 meeting with Burns and Reynolds not knowing quite what to expect, but Lex and I were received cordially and straightforwardly, albeit a bit patronizingly at times. They began addressing the ADA proposal by saying “the closer to Section 504 the better,” encouraging us to stay as close to existing law as possible in putting forward new legislative language proposals. They acknowledged that reasonable accommodation would need to be an important element in a new disability rights bill. They suggested that employment provisions should cover employers with 15 or more employees. They suggested that we should begin to work on drafting a bill and, equally surprisingly, said that such a piece of legislation “will sail through.” They also informed us that they believed that Evan Kemp, who was awaiting Senate confirmation as a member of the EEOC, was working on his own version of a disability nondiscrimination bill. Apparently trying to nudge us toward a narrower ADA proposal, they expressed the dubious opinion that 80 percent of access to public accommodations problems could be solved by prohibiting discrimination in employment. Finally, they told us (quite unnecessarily) that the Council would need to work closely with the disability community. We did not learn anything really new, except that the Deputy Attorney General and the head of the Civil Rights Division in the Reagan Administration were generally disposed toward, or at least not patently opposed to, expanding civil rights laws protecting people with disabilities (at least to some degree), and that was quite significant.

Continue to Part 8: Brad Reynolds’s Piecemeal Approach

[1] NCD Minutes, May 18-20, 1987, p.21, quoted in Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 62 & n.52 (1997).

[2] U.S. Department of Justice, The Focus of Equal Employment Opportunity Programs under the Reagan Administration: Remarks by William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Before the Fourth Annual Conference on Equal Employment Opportunity (October 30, 1981) at pp. 4-5.

[3] Id. at 5.

[4] U.S. Department of Justice, Remarks of the Honorable Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Before the 1983 Convention of the National Federation of the Blind (July 5, 1983) at p. 3.

[5] An in-depth analysis of the forms and elements of discrimination is presented in U.S. Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination (1981).

[6] Id. at 10.

[7] Id. at 11.

[8] U.S. Commission on Civil Rights Accommodating the Spectrum of Individual Abilities (1983) at p. 99.

[9] Id., quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[10] Timothy M. Cook, The Civil Rights Division: Criticism from the Inside, Washington Post, May 13, 1984, p. C1.

[11] U.S. Department of Justice, Remarks of the Honorable Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Before the 1983 Convention of the Disabled American Veterans (August 1, 1983) at p. 1-11.