Prelude to Drafting the Original ADA Bill - Part 9
Memorandum Explaining and Defending the Equal Opportunity Law Proposal
While I certainly had plenty of other work on my plate, the Toward Independence recommendations, and particularly the ADA initiative, were never far from my thoughts. At the end of April, I found time to write a memo to the disability community to address “questions, misconceptions, and concerns about [the Council’s] equal opportunity law proposal.” This was, in part, my formal response to Sy Dubow’s “Why NCH’s Proposed Bill Must Be Opposed” memo. But it was also intended to provide further explanation and defense of the thinking that went into the comprehensive-disability-nondiscrimination-law proposal. In the memo, I made several significant points. In the first of these, I observed that in calling for broad civil rights protection for individuals who encountered discrimination on the basis of disability, the Council was not taking a maverick or outlier position: “The Council’s proposal of a comprehensive equal opportunity law reflects the views of many consumer organization, commentators, public officials, and a strong consensus of persons with disabilities around the country.” In support of this observation, I noted that in June of 1985, a number of disability organization, including – as they were named at the time – the Association of Retarded Citizens, the American Council of the Blind, the Association of Children with Learning Disabilities, the Disability Rights Center, the National Easter Seal Society, the Paralyzed Veterans of America, and the National Network of Learning Disabled Adults, had joined with ACCD in endorsing congressional testimony that called for expanding the scope of coverage of laws prohibiting disability discrimination to make it coextensive with other civil rights laws and that would “be tailored to provide clear and effective remedies to the types of discrimination faced by Americans with disabilities.” And I cited similar sentiments expressed in recommendations from the White House Conference on Handicapped Individuals, in prior congressional pronouncements, in the Council’s National Policy for Persons with Disabilities, in numerous journal articles, and in the Harris poll results.
I also addressed Sy Dubow’s misguided contention that the Council’s ADA recommendation would “sever [the] handicap constituency support from the [Civil Rights] Restoration Act by creating a separate handicap bill.” I countered that the Council’s proposal in no way undercut or was inconsistent with the Restoration Act that, in fact, was fully in accord with Council policy, and that the Council had made no suggestion that the disability community should abandon or reduce its commitment to the passage of the Restoration Act. I added, however, that the Restoration Act legislation did not attempt to address many other shortcomings of existing laws prohibiting discrimination on the basis of disability, including restrictive coverage and inadequate standards of nondiscrimination, and its enactment would not remedy such problems.
I then devoted two pages to detailing shortcomings with the existing laws. I listed eight inadequacies in the scope of coverage of the then-current laws, including their failure to address discrimination by public accommodations, private employers, and housing providers; and their unenforceability in federal courts for discrimination by states or state agencies. And I catalogued 10 deficiencies with the existing statutory language, interpretation, and enforcement, including failure to delineate the elements of nondiscrimination, including requirements to remove barriers, to provide reasonable accommodations, to eliminate discriminatory eligibility standards; the creation of a limited eligibility class of persons protected from discrimination; and several blatant drafting mistakes in the language of Section 504.
Dubow’s memorandum contained some inflammatory accusations that the Council was “recommending a total replacement of the existing handicap law,” and that its ADA proposal “would replace all existing federal handicapped laws and regulations.” I responded that the Council did not propose or support the repeal of Section 504 and similar statutes, and nothing in Toward Independence suggested that it would take such an extreme position. I noted several examples in which Congress had enacted nondiscrimination laws without repealing prior, weaker statutes, and pointed out that, while more robust regulations would eventually have to be promulgated under a new ADA law to implement more explicit, broader, and stronger standards of nondiscrimination imposed by the new law, such strengthening of the legal standards would hardly be the same as simply jettisoning the previous regulations. Sy’s mistaken notion that enactment of an ADA would repeal prior laws also apparently led him to write that the Council’s proposal “would dilute existing employment protection by removing the affirmative action requirements of Section 501 and 503 for federal employers and federal contractors. Instead, the proposed bill would encourage outreach and recruitment efforts.” It is inconceivable to me that the Council would ever have taken such a stance. It is true that Toward Independence recommended that “a requirement [not an encouragement as Sy would have it] of outreach and recruitment should be established,” but the Council never indicated that such a requirement would be “instead of” other affirmative action obligations. Jack Hartog and other colleagues at the Civil Rights Commission had thoroughly instructed me on the necessity, purposes, and elements of affirmative action requirements, clearly and powerfully summarized in the Commission’s authoritative report Affirmative Action in the 1980s: Dismantling the Process of Discrimination. I would never, nor would the Council have ever let me, seek to eliminate disability affirmative action programs.
My memo did not respond to various other contentions in Dubow’s hatchet piece, such as that “comprehensive regulations such as those covering employment are already in place,” that I believed were ridiculous on their face and needed no rebuttal. In the final section of my memo, I took pains to clarify that the Council was not seeking to act unilaterally nor to push its recommendations down the throat of the disability community. I emphasized that the Council had fulfilled its statutorily-imposed job by delivering legislative recommendations to the President and the Congress, but recognized that implementation of its proposals would only occur if a significant portion of the disability community agreed with particular recommendations and worked effectively to have an appropriate legislative proposal introduced at the right time and shepherded thorough the legislative process. In regard to the proposal of an ADA, I closed the memo with the following call for collaboration in moving it forward:
The Council hopes that members of the disability community, both in leadership roles and at the grassroots level, will concur with the Council’s recommendation, and will work with Council and appropriate legislative personnel to cooperatively devise a legislative strategy and timelines for the drafting, introduction, and passage of such a law guaranteeing equal opportunities for all people with disabilities.
 Robert L. Burgdorf Jr., “Clarification Regarding Council’s Equal Opportunity Law Proposal, May 1, 1986.
 U.S. Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination (1981).
 Given that existing laws and regulations did not prohibit disability discrimination by private employers at all, except for federal contractors, how could anyone maintain that the regulations covering employment were “comprehensive”?