To the National Council - Part 5

Reinventing the National Council

Dusenbury and Hirschi were not the only ones dissatisfied with the status and performance of the Council. Some critics thought that it had not accomplished much of substance and was largely a waste of federal money. Senator Lowell Weicker, chairman of the Senate Subcommittee on the Handicapped, was reportedly considering “sunsetting” it (letting it expire without legislative reauthorization).[1] In the House of Representatives, Congressman Steve Bartlett from Dallas, Texas, prompted by a suggestion of Lex Frieden during subcommittee hearings,[2] got the Subcommittee on Select Education to include in proposed Rehabilitation Act amendments a provision that, either oblivious to or disdainful of the role of the National Council, would have established a new “National Commission on Federal Assistance to Disabled Americans.” This Commission was expected to operate for no more than 24 months, and the House committee report described its mission as being “to review and make recommendations to the President and to the Congress on federal programs which assist persons with disabilities.”[3]

Senator Weicker was not pleased to see that the House bill would create another advisory commission.[4] His staff person, John Doyle, Majority Staff Director of the Senate Subcommittee on the Handicapped, however, believed that fragmented advocacy by competitive, single-interest (often single-disability-focused) organizations, each with its own ax to grind, made it almost impossible to develop broad, forward-looking disability policy initiatives. He felt it was necessary to establish “a think tank within the federal government to develop broad-based disability policy,” and to serve as an “honest broker” between competing disability interest groups.[5] Recognizing Senator Weicker’s general disdain for advisory bodies, and disparagement by him and others of the existing National Council on the Handicapped, Doyle had the idea of taking what he called the “moribund advisory committee buried in the bowels of the Department of Education,” turning it into an independent federal agency, and giving it “broad-based authority and necessary funding to be the think tank on disability policy.” When he took this idea to Weicker, Doyle recounted, the Senator “hit the ceiling” and barked, “Goddamn advisory committee! We have too many advisory committees! I’m not going for it!”[6] According to Doyle, he persisted in coming back again and again to the Senator with arguments for establishing an independent Council, and was rewarded with some heated invective along the way, including Weicker calling him “nothing but a damned bureaucrat.”[7]

Ultimately, Doyle prevailed: “[I]t took us five times before I finally wore him down to let me put the National Council on the Handicapped in as an independent federal agency, and he wasn’t convinced. He just got worn down and, in a moment of weakness, let me do it.”[8] With this begrudging approval, provisions establishing the Council as an independent federal agency were inserted in the House and Senate bills.

The committee reports accompanying the final Senate and House versions of the Rehabilitation Amendments of 1984 both included recognition by the respective committees that the Council in its previous form had fallen short of congressional expectations, largely because of its lack of independence. The Senate report declared:

The Committee finds that under the Department of Education the Council has not been able to meet congressional intent for an independent body to advise on all matters in the Government affecting [individuals with disabilities]. Its placement within the Department of Education has required policy clearance and bureaucratic compliance with Department policies and procedures. It is the intent of the Committee that the Council function independently of administrative constraints so that it can advise the President and the Congress as objectively and as freely as possible.[9]

The House report language was very similar.[10]

To make the Council independent, the bill passed by the Senate declared that, instead of it being situated in the Department of Health, Education, and Welfare as the previous law had provided, it would now be “within the executive branch of the Federal Government.” The comparable language in the House bill stated that the Council would be “within the Federal Government.” In conference, the House language was adopted, and additional language added to clarify that the Council “shall not be an agency within the Department of Education or any other department or agency of the United States.”[11] The final outcome in the conference committee basically followed Senator Weicker’s position that the National Commission should not be created, while the National Council should be given one more chance, but this time in independent federal agency form.

Although the House’s National Commission on Federal Assistance to Disabled Americans proposal was jettisoned, it nonetheless had significant repercussions regarding the responsibilities assigned to the National Council. The Senate version of the bill had retained the statement of Council duties from the prior legislation, adding only a single new provision obligating the Council to provide Congress, on a continuous basis, advice, recommendations, and any additional information which Congress or the Council deemed appropriate.[12] When the conference committee decided to drop the National Commission, it transferred to the National Council most of the duties the House bill would have imposed on the Commission. These included reviewing all statutes pertaining to Federal programs affecting individuals with disabilities; assessing their effectiveness in providing incentives to the establishment of community-based services, and in promoting integration and independence and dignity; recommending to the President and the Congress legislative proposals for increasing incentives and eliminating disincentives in Federal programs; and submitting a report to the President and to the Congress on or before February 1, 1986, reflecting the results of its review, assessment, and recommendations. Members of Congress viewed the fulfillment of these express statutory responsibilities as a test of the Council’s effectiveness and worth, on which the Council’s continuation would largely depend.

Accordingly, in passing the 1984 amendments to the Rehabilitation Act, Congress made two major changes to the Council: (1) granting it independence, and (2) assigning it a very challenging list of specific duties within tight timelines. These changes reflected a shift of congressional priority from merely seeking policy advice on specific disability program agencies, such as the National Institute for Handicapped Research, the Rehabilitation Services Administration, and the Office of Special Education and Rehabilitation Services, to procuring recommendations concerning the broad sweep of federal disability policy. John Doyle, who had been an early advocate of independence for the National Council and, on leave from his position as the Majority Staff Director of the Senate Subcommittee on the Handicapped, had served as acting Executive Director of the Council during its transitional period before Lex was hired, described the import of the change in the Council’s status as follows: "For the first time, disability as an issue is institutionalized, by statute, in the structure of the Federal Government."[13] These changes might have overwhelmed and immobilized the Council, or at least caused it merely to go through the motions, to make a feeble pretense of tackling its daunting missions. Instead, these lofty challenges stimulated the Council to become the major force for equal rights and independence for people with disabilities that it turned into. For me, the Council’s status as an independent federal agency and the overly ambitious but vitally important responsibilities assigned to it were exactly the two things in the 1984 law that attracted my attention and enticed me to hitch my horse to the Council’s wagon.

Continue on to Toward Independence and the Vision of an ADA: Part 1

[1] Fred Pelka, What We Have Done: An Oral History of the Disability Rights Movement, p. 424 (University of Mass. Press, 2012).

[2] Oversight and Reauthorization Hearing on the Rehabilitation Act of 1983: Hearings Before the Subcomm. on Select Education of the H. Comm. on Education and Labor, 98^th Cong. 88 (1983) (testimony of Lex Frieden); Fred Pelka, What We Have Done: An Oral History of the Disability Rights Movement, pp. 423-424 (University of Mass. Press, 2012).

[3] H.R. Rep. No. 98-298, at 27 (1983).

[4] Fred Pelka, What We Have Done: An Oral History of the Disability Rights Movement, p. 424 (University of Mass. Press, 2012).

[5] Id.

[6] Lowell P. Weicker, Jr. Oral History and Papers Collection: Interviews, Interview with John Doyle and Jane E. West, by Phyllis Leffler, March 16, 2011, http://staging.gibsondesign.com/weicker/interviews/doyle-west.html

[7] CT Disabilities Rights Pioneer – Phyllis Zlotnick: John Doyle Interview, by Leslie Tervo, https://sites.google.com/site/phylliszlotnick/announcements/john-doyle-interview

[8] Lowell P. Weicker, Jr. Oral History and Papers Collection: Interviews, Interview with John Doyle and Jane E. West, by Phyllis Leffler, March 16, 2011, http://staging.gibsondesign.com/weicker/interviews/doyle-west.html

[9] S. Rep. No. 98-168, at 18-19 (1983) (Comm. on Labor and Human Resources).

[10] It declared:

The Committee believes that the Council has not been able to meet Congressional intent for an independent body to advise on all matters in the government affecting individuals. Its placement within the Department of Education has required of it policy clearance and bureaucratic compliance with Department of Education policies. As amended, the Council’s autonomous status will help assure that it is representative of a broader constituency and not subject to political influence or pressure from the Executive or either side of the legislative branch of the government. The amendments in the Committee bill should further ensure objectivity and independence in its representation of the best interests of [Americans with disabilities].

H.R. Rep. No. 98-595, at 24 (1983) (Comm. on Education and Labor).

[11] H.R. Rep. No. 98-595, at 11, § 141(b)(1) (1984) (Conf. Rep.).

[12] S. Rep. No. 98-168, at 76-77, § 401(7) (1983) (Comm. on Labor and Human Resources).

[13] NCD Minutes, Apr. 30 – May 2, 1984, p. 3, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 53 (1997).