Toward Independence and the Vision of an ADA - Part 2

Selecting Topics and Arriving at Overall Approach for 1986 Report

Based upon the Council’s 1983 National Policy for Persons with Disabilities, additional suggestions of the Council members, and our own ideas, Lex and I compiled a list of 41 prospective topics. This list was sent to the members of the Council prior to its April 1985 quarterly meeting. At that meeting, the Council adopted Lex’s recommendations that the report should focus on a manageable number of issue areas, and that the Council should determine the ultimate makeup of the list through a process he referred to as a form of “Delphi technique.” The Delphi technique, I learned, typically involves a series or “rounds” of questionnaires, alternating with controlled feedback from participants, aimed at obtaining a reliable consensus of opinion of a group. In this case, the approach consisted of a series of ballot votes in which the members would initially rank their top preferences from the original list of 41. Then the members would be presented a smaller list based upon the top vote-getting topics from the prior round. After a period of discussion and feedback on the reduced list, another vote would be taken, and the process repeated until the group felt comfortable that a consensus was reached.

Through this process, the Council arrived at and adopted the following list of ten topics the 1986 report would address:

• Effective and Comprehensive Equal Opportunity Laws [subsequently retitled Equal Opportunity Laws]
• Employment
• Disincentives to Work [subsequently retitled Disincentives to Work Under Social Security Laws]
• Prevention of Disabilities
• Transportation
• Housing
• Community-Based Services for Independent Living
• Children with Disabilities [subsequently retitled Educating Children with Disabilities]
• Attendant Services [subsequently retitled Personal Assistance: Attendant Services, Readers, and Interpreters]
• Coordination

Selecting these topics from all the possibilities was a difficult task and hardly anyone was completely happy with what was included and what was left out. Many significant issue areas did not make the final list – higher education, recreation, Census and demographic information, guardianship, medical treatment and health care issues, and rural area concerns, to name but a few examples. Some issues that made the list at some point during the deliberations – “transition from school to work,” a “federal office on disability,” “placement,” and “private sector involvement” – were removed (sometimes on the rationale that they would be subsumed into another paper). Several factors had a major influence on the deliberations and choices: Council members’ perceptions that influential portions of the disability community considered an issue area particularly problematic or important, the existence of a prior federal presence in the issue area, the perception that there were constructive solutions to be offered, and the championing of a topic by one or more members of the Council.

The first factor, perceived views of the disability community, proved to be a paramount consideration for the Council. A critical strength of the Council members was that they took very seriously the idea that their role was to represent the disability community within the federal government. Accordingly, whatever their individual views and priorities, they considered it their obligation to find out what individuals with disabilities needed and what the disability community wanted them to say to the president and Congress. Pivotal in shaping the Council’s message, therefore, was getting grassroots input and feedback, and a principal method the Council devised for obtaining the views of people with disabilities was what it designated as "consumer forums." These grassroots sessions were convened either in conjunction with the quarterly meetings of the Council or organized separately by the indefatigable Justin Dart. After the Council was accorded independent-federal-agency status, Justin began a new round of local meetings in various locations around the country similar to, and piggybacking on, those he had held when the prior version of the Council was developing the National Policy for Persons with Disabilities. Through these processes the Council eventually had the benefit of consumer-forum input from each of the states, the District of Columbia, and some of the territories. And the members of the Council paid real attention to this input. They deserve considerable credit for being open-minded and listening to what people with disabilities at the local grassroots level said to them.

The voice of the grassroots was a major influence on the Council’s choice of the 10 issue areas it would address in its report, and particularly determinative as to the Equal Opportunity Laws topic. It turned out that I did not miss the mark in anticipating some reluctance among Council members regarding the inclusion of such an initiative. I did not hear any of them declare personal antagonism toward the notion of prohibiting discrimination on the basis of disability, but there were expressions of concern about how such an approach would be received by the Administration. A few members took another tack: the minutes of the April 29 to May 1, 1985, meeting of the Council recorded that some members, again not willing to oppose civil rights protection directly, expressed doubts "whether the subject of civil rights is a topic that should be addressed in the 1986 report, in view of the breadth and complexity of the subject."[1] Justin and others who had been present at consumer forums countered, however, that the need for civil rights protection for people with disabilities was consistently brought up at the consumer forums, and that "there is no question about its central importance."[2] Council member Marian North Koonce, the mother of three children with disabilities, stressed that many consumers who spoke at Council consumer forums emphasized civil rights. The Council would subsequently summarize the consumer input it had received as follows: “In forums with citizens with disabilities across the Nation, the Council has heard over and over that discrimination is the number one problem faced by individuals with disabilities.”[3] In the face of the repeatedly articulated view that the biggest problem for people with disabilities was discrimination – people treating us unfairly because of our disabilities – it would have been difficult for the Council not to address the problem. So these fiscally conservative Council members ultimately put Equal Opportunity Laws at the top of their list of priorities.

Narrowing the scope of the report’s assessment of federal laws and programs and the legislative proposals it would call for to 10 issues instead of the nearly limitless breadth of the congressional mandate, or even of the 41 topic areas we had identified, represented a significant culling down of the report’s focus. But almost all of the 10 topics selected were very broad, critical, and complex issues that could not be cogently analyzed and thoughtfully addressed with simple observations and quick answers in a few pages. And since the congressional directive explicitly called for legislative recommendations, these would have to be carefully articulated with expertise and a level of detail. The undertaking remained daunting.

Running counter to the need for the report to be sophisticated and detailed in dealing with the issues it addressed and the legislative proposals it would offer, was the notion of several Council members that the report should take as its model a short document titled A Nation at Risk that had been issued by the National Commission on Education in 1983. In 36 pages of text on small pages with wide margins, A Nation at Risk had put a serious scare into the American population, beginning with its assertions that “[o]ur Nation is at risk” and “the educational foundations of our society are presently being eroded by a rising tide of mediocrity that threatens our very future as a Nation and a people.” While its sky-is-falling tone, its findings, and its conclusions were, and continue to be, somewhat controversial, the little booklet struck a chord with politicians, the media, many educators, and the general public. It was still the talk of the town in D.C. as we were working on the preparation of the Council’s 1986 report, and many of the Council members thought that A Nation at Risk’s pithiness and brevity should characterize our report as well.

Conciseness, clarity, and directness are certainly desirable in writing, but, as a model for the report of the Council, A Nation at Risk was not completely suitable. The National Commission on Excellence in Education characterized its report as “An Open Letter to the American People”; its major objective was to raise the alarm that something was seriously amiss in the U.S. educational system; and its recommendations were generally worded in terms of broad aspirations and did not include any specific legislative proposals. The National Council, in contrast, was directed by Congress to review all laws and programs affecting people with disabilities; evaluate whether they were meeting objectives of promoting independence, community integration, self-sufficiency, and dignity; and to provide the Congress and the President with legislative recommendations. Describing the limitations and flaws in the numerous relevant federal laws and programs, crafting and explaining legislative recommendations for correcting the problems identified, and making the case for the recommended legislative proposals, could not realistically be accomplished in a short booklet. On the other hand, we all knew that very few people, and especially political officials in the Congress and the Administration, would plow through a lengthy document, and would probably not read any of it if they recognized it as such. Moreover, a vocal contingent of the Council members favored a short report.

Under Lex’s leadership, we found a solution to the dilemma between producing a user-friendly, conveniently brief report and one that would have breadth, specificity, and depth. We proceeded to do both. The approach was that for each of the ten topics on which the Council had chosen to focus, an extensive, detailed draft of a topic paper would be written, primarily by staff or consultants. After incorporating Council input and revisions, the final approved papers would be published as a lengthy appendix. The recommendations contained in the various topic papers would form the basis of a short, separately bound, summary report that would be sent to the White House and members of Congress, and disseminated broadly. To make it even more palatable to those with limited time or short attention spans, the summary report would contain an even more abridged “Executive Summary.” Those who wanted the more elaborate information could request a copy of the appendix from the Council.

Continue on to Part 3: Drafting the Topic Papers Including One on Equal Opportunity Laws

[1] NCD Minutes, Apr. 29 – May 1, 1985, p. 15, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 54 (1997).

[2] Id.

[3] National Council on Disability, On the Threshold of Independence, p. 20 (1988).