Toward Independence and the Vision of an ADA - Part 14

Pre-Briefing and a Pre-Release Attack on the Equal Opportunity Laws Proposal

As the final galleys came back from the printer, I got to continue my hands-on involvement with the details of the report by doing intensive proofreading. This was before electronic spell-checking, so there were quite a few typographical errors to be found. It would have been very unfortunate if I had not noticed that “disabilities” was misspelled in the subtitle on the cover of the report.

There was quite a bit of excitement in the weeks leading up to the release of the report. We decided it would be helpful to give a heads-up on the report, and especially the Equal Opportunity Laws recommendations, to lawyers in Washington who represented disability organizations, whom judged were likely to be supportive. Our hope was that such a sneak preview would help to dispose them favorably toward what the Council was proposing, and give them advance information to prepare for explaining it to their organizational leadership and members. We scheduled an “attorneys briefing meeting” for January 15, 1986 – two weeks before the official release of the report. Ten attorneys attended: Lynn Abbott, from the American Council of the Blind; Arlene Battis, from Paralyzed Veterans of America; Ted Doremus, who was in private practice; Sy Dubow, of the National Center for Law and the Deaf; Bonnie Milstein, from the Center for Law and Social Policy; Barbara Nelson, from the American Bar Association’s Commission on Law and Aging; Jill Robinson, from the U.S. Commission on Civil Rights; Norman Rosenberg, from the Mental Health Law Project (later named the Bazelon Center for Mental Health Law); Liz Savage, of the Epilepsy Foundation; and Richard Verville, of the law firm of White, Fine, and Verville.

We handed out copies of the Executive Summary of Toward Independence and the recommendations from the Equal Opportunity Laws paper. After welcoming remarks and introduction of the attendees and their affiliations, Lex described the process by which the report was developed, stressing the broad input we had obtained. He then turned the meeting over to me to present an overview and brief explanation of the recommendations in the 10 topic areas. After that, Justin gave an introduction to the EOL topic, which in vintage Justin form, was a ringing affirmation of the critical importance of equality and justice for people with disabilities. Then I walked the participants through the EOL recommendations, chief among which was the call for a comprehensive law prohibiting discrimination that might be named the “Americans with Disabilities Act.” The lawyers in attendance listed attentively and asked a few questions. I thought the meeting went well.

About a week after the meeting, one of the attorneys who had been present at the meeting dropped by my office and asked if I was aware of a document opposing the ADA recommendation, and when I said no, replied “I think you ought to see this” and handed me a paper titled “WHY NCH’S PROPOSED BILL MUST BE OPPOSED.” At the top of the three-page paper, was an attribution that read “Sy Dubow, National Association of the Deaf, January 20, 1986.” Seymour “Sy” Dubow was the Legal Director of the National Center for Law and the Deaf. I had known him for some time and considered him a friend. Over the years, we had collaborated on several matters, and I had gotten to know him socially once I began working in Washington. In 1981, while I was at the Developmental Disabilities Law Project, I had written and submitted a brief amicus curiae to the Supreme Court on behalf of eight disability organizations, including ACCD, the Epilepsy Foundation, the United Cerebral Palsy Association, and the National Association of Protection and Advocacy Agencies, in the case of University of Texas v. Camenisch; our brief was in support of the plaintiff, Walter Camenisch, a deaf graduate student who had been denied a sign language interpreter. Sy had been one of the attorneys who represented Mr. Camenisch in the lower courts, and I had coordinated with him in preparing our brief.

Sy’s opposition document began with the ringing declaration that “[t]he National Council on the Handicapped’s (NCH) recommendation for a new comprehensive law for disabled people would throw the baby out with the bath water.” It then asserted that the Council’s recommendation “would replace all existing federal handicapped laws and regulations” and that “[t]he National Council says it is recommending a total replacement of the existing handicapped law….” Another supposed destructive effect was that “the proposed National Council bill would dilute existing employment protection by removing the affirmative action requirements of Sections 501 and 503 for federal employers and federal contractors.” I was sorely disappointed not only by the inaccuracy of these and other characterizations in his paper, but also by the method and vehicle Sy chose to deliver them. I would have thought that Sy knew me and my prior work well enough not to jump to the conclusion that I would author a proposal that was going to undercut and eliminate existing civil rights protections for people with disabilities. I would have thought that if he had concerns he would have come and talked to me about them before launching a broadside attack in writing. I would have thought that if he was going to produce a written diatribe against the ADA recommendation, he would at the very least have done me the courtesy, as a friend and professional colleague, of sending me a copy, rather than disseminating it to others in the disability advocacy community and having me only find out about it later and indirectly.

After I got over my immediate surprise and distress at the “WHY NCH’S PROPOSED BILL MUST BE OPPOSED” document, I decided that nothing in it was so compelling or urgent that it demanded an immediate response. I waited to let the dust settle a bit, and then responded to Sy’s attacks in the context of a memorandum I sent out in May to the disability community to clarify issues and dispel any confusion that might have arisen in regard to the Council’s Equal Opportunity Law proposal. I sent a copy to Sy along with a note in which I said “I wish that you would have done me the courtesy of sending me a copy of your memo attacking the proposal.” I did not hear back from Sy about it, then or in the intervening years. The long and the short of it is, however, that the recommendation for enactment of a comprehensive ADA law was attacked vociferously, in writing, even before it was publicly proposed, and that, surprisingly, such opposition came from within the ranks of disability rights advocates.

Continue to Part 15: Overview of the Final Toward Independence Package