Toward Independence and the Vision of an ADA - Part 1

Developing the 1986 Report and the Dart-Burgdorf Summit Meeting on an Equal Opportunity Proposal

Elevated to independent federal agency status and assigned to perform a bundle of formidable tasks prior to a precipitous deadline, early in 1985 the National Council and its tiny staff needed to hit the ground running. To his professional staff of two – Ethel Briggs and me – Lex soon added Naomi Karp, on detail from the National Institute for Handicapped Research, as the Children's Services Specialist. The Council also initiated a National Disability Policy Fellowship Program and named two young women with disabilities, Laura Rauscher and Janet Anderson, as fellows for 1985. In addition to other activities, each of the two would play a role in writing topic papers for the 1986 Council report. In January 1985, President Reagan restored the Council to its full complement of 15 members by naming Jeremiah Milbank, Jr., former chair of the Republican National Finance Committee, a director of the Milbank Foundation for Rehabilitation, and President of the ICD-International Center for the Disabled, to replace Council member Carmine Lavieri, who had passed away in 1984.

At the Council’s quarterly meeting on January 23, 1985, Chairperson Parrino underscored the significance of the congressionally mandated 1986 report by declaring that “[t]he contribution of this Council and its continued existence will rest almost entirely on the content of our February 1986 report to the President.”[1] Although the Council continued to attend to its other responsibilities, including monitoring research and rehabilitation programs in the Department of Education, the Council members and particularly the staff increasingly turned their focus to preparing the statutorily mandated report. A sober appraisal of the enterprise facing the Council would probably have been that it was too large a task, to be performed in too short a time, by too small a work force.

As to the magnitude of the task that confronted us – basically to review all federal statutes affecting individuals with disabilities; to assess the extent to which each of them promoted or hampered development of community-based services, full integration, and independence and dignity; to develop for the President and Congress legislative proposals for increasing incentives and eliminating disincentives in Federal programs; and to incorporate this information and recommendations in a formal written report – some of us on the staff were afraid that the Council members might believe that they really could review all federal laws and programs affecting people with disabilities and make recommendations for improving them. I expressed my concern that identifying every federal law having either a positive or negative effect upon individuals with disabilities in some way would necessitate a methodical examination of the thousands of federal statutes in the U.S. Code, a task that was far beyond the Council’s capabilities and the timeframe for producing the report. Lex quickly and perceptively grasped the need to cut the undertaking down to a workable scale, and suggested that we provide the Council with a list of potential topic areas and ask members to cull it down to eight or ten that they considered most important.

In brainstorming possible topics to include on the list for the Council to consider for inclusion in the report, I was acutely aware of the possibility that I could advocate that the Council propose clear and comprehensive civil rights protection for people with disabilities, as Chris and I had envisioned in our Statutory Blueprint article – the idea that would eventually lead to the proposal of an Americans with Disabilities Act. As it happened, someone at the Council, probably echoing the call in the National Policy for Persons with Disabilities for an “internally unified body of disability-related law,” had articulated the issue, somewhat obliquely, as "Unified Disability Laws including Civil Rights." I did not, however, immediately leap at the chance to grab hold of this topic proposal, support it, rephrase it more eloquently, and try to use it to generate the legislative proposal that I yearned to instigate. Despite my deep conviction that a comprehensive and comprehensible disability nondiscrimination mandate was vitally necessary, I initially had some qualms as to whether getting it onto the Council’s agenda for the 1986 report was feasible or perhaps even prudent.

Both Justin Dart and Chairperson Parrino told me early on that they were in favor of including a civil rights measure in the report, which was, to some extent, music to my ears. I knew, however, that their passionate support for the general concepts of equality and nondiscrimination for people with disabilities reflected only a nebulous idea of what a civil rights law prohibiting disability discrimination should actually look like, what it should contain, and the hurdles that would have to be overcome for it to be enacted. Moreover, although I did know of Henry Viscardi through his work and reputation, and had a very high impression of him, I did not personally know any Council members other than Justin and, to a very limited extent, Sandy, when I joined the staff, and was skeptical about the receptiveness of the other members to a civil rights proposal. The Council that worked on the 1986 report was comprised of 15 President Reagan appointees (including Nanette Fabray MacDougall who was reappointed by Reagan as a carryover from the Carter Council). Most of them were fiscally conservative people, many of whom were named to the Council because they had helped with the Reagan-Bush campaign, primarily by fund-raising. Nearly every one of them had a personal connection to disability – some were parents of children with disabilities, some had disabilities themselves, and some were associated with organizations, agencies, or businesses that dealt with disability issues – but they knew next to nothing about federal legislation and how things got done in Washington.

Knowing of their ties to the Reagan Administration, I wondered whether civil rights for people with disabilities might be a very negative hot-button issue for some of them. After all, President Reagan, within a month of taking office in 1981, had created a Task Force on Regulatory Relief, which, among other targeted federal laws and programs, set out to weaken or withdraw key protections that had been established under Section 504 of the Rehabilitation Act of 1973 and the Education for All Handicapped Children Act (EAHCA, later IDEA) – the two most significant federal disability nondiscrimination laws at the time. I certainly did not want to have a civil rights proposal rejected by the Council nor, even worse, have a weak, incomplete, or defective version of it adopted.

While we were in the process of identifying and considering possible topic areas for the report, I had a chance to meet with Justin and share my concerns about presenting the Council a nondiscrimination law proposal. I felt I owed it to him (and myself) to give him fair notice of some of the problems and hazards that might await us if we took this momentous, unprecedented step. I told him that I had been working as a disability rights lawyer since I graduated from law school, and that I was strongly committed to pursuing the goal of equal rights for individuals with disabilities and believed that a strong and comprehensive federal nondiscrimination law would be an epic step toward that goal. I added that, while I knew of the critical need for such a law, I had encountered, in society, in the courts, in government agencies, and among politicians, considerable resistance and opposition to the prospect of ensuring legal equality for people with disabilities. I candidly described my uncertainty about where the various members of the Council would come down on this issue, and what pushback might come from the Administration, and how members would stand their ground if it did.

Finally, I flat out asked Justin whether, with his knowledge of the backgrounds and viewpoints of his colleagues on the Council and the political circumstances, he thought we should go ahead and push for the inclusion of a civil rights measure. Admirably, he responded simply, “Bob, I don’t see how we could not do it.” He added that the members of the Council were charged by law with the duty to recommend to the President and the Congress what needs to be done, and that they were going to affix their names to the report the Council issued, and he did not see how we would be able to sleep at night if we did not try to have the civil rights proposal included. Though I was still unsure how receptive the other members of the Council might be, and did not underestimate the magnitude of the challenges we faced going forward, I told Justin that I thought he was right. In the course of that conversation, we made the decision to cross our metaphorical Rubicon and commence the battle for comprehensive civil rights protection for people with disabilities. After the ADA was enacted, Senator Lowell Weicker, sponsor of the original bill, described my tête-à-tête with Justin as “a fateful meeting.”[2]

Shortly thereafter, I reframed the topic as “Effective and Comprehensive Equal Opportunity Laws.” I substituted the phrase “equal opportunity laws” for “civil rights” in the interest of avoiding discomfort for some of the Council’s conservative Republican members who at the time were uneasy about supporting something explicitly labeled as a civil rights initiative, and also to enhance the marketability of the topic to the Reagan Administration and right wing members of Congress. As a report of the Council would describe it later, “The former [equal opportunity] coincided with independence and self-reliance; the latter [civil rights] smacked of affirmative action.”[3]

I added the words “effective and comprehensive” to emphasize the critical improvements over existing laws, such as Section 504, that were needed to produce a truly good law: “effective” in that legal standards needed to be specific, clear, and workable; and “comprehensive” in that coverage of the law should be sufficiently broad to prohibit discrimination in all activities that Congress has power to regulate. Breadth of coverage and clarity of nondiscrimination requirements were the twin pillars Chris and I had advocated in our Statutory Blueprint.

Continue on to Part 2: Selecting Topics and Arriving at Overall Approach for 1986 Report

[1] NCD Minutes, Jan. 23-25, 1985, pp. 6-7, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 54 (1997).

[2] Lowell P. Weicker, Jr., “Historical Background of the Americans with Disabilities Act,” Temple Law Review, vol. 64, p. 387, at p. 390 (1991).

[3] National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 55 (1997).