Who Really Wrote the ADA?

On July 26, 1990, on the South Lawn of the White House prior to the Presidential signing ceremony of the Americans with Disabilities Act, I wandered through the crowd of nearly 3,000 joyful people, predominantly individuals with disabilities, exchanging congratulations and hugs. I ran into John Kemp, a top-notch lawyer and well-known disability rights advocate. John is also a personal friend of mine, impressive in many ways; I once joined him and some other guys on a basketball court outside a meeting in Chicago, and watched him use his arm and leg prosthetics to swish basket after basket. At the ADA signing, after he and I exchanged greetings, he said, “Bob, “I have never heard of so many people who claimed to have written a law as I have today with the ADA.” He added, “As I recall, you were actually the one who was most responsible for writing it. Isn’t that right?”

The question “Who wrote the ADA?” may sound simple and straightforward, but it requires a complicated, layered, and nuanced answer. When I began my work on what came to be the Americans with Disabilities Act, I was not thinking about getting recognition or acclaim for my efforts. I had heard President Truman’s line, frequently bandied about in D.C., “It is amazing what you can accomplish if you don’t care who gets the credit,” and I thought I would stay very happily in the background if I could help get comprehensive civil rights protection for persons with disabilities codified in American law.

But following enactment of the ADA, I watched as people came out of the woodwork claiming to have written all or part of the statute, to have “authored” it, or “drafted” it; to have “inspired” it, been “the architect” of it, or even “the person most responsible for the passage of the Americans with Disabilities Act.” One list of “some of the people who contributed to the writing of the Americans with Disabilities Act” contained some 445 names.[1] A number of people played a variety of roles, some larger, some smaller. As DREDF attorney and prominent ADA activist and scholar Arlene Mayerson has aptly and eloquently written:

The ADA owes its birthright not to any one person, or any few, but to the many thousands of people who make up the disability rights movement – people who have worked for years organizing and attending protests, licking envelopes, sending out alerts, drafting legislation, speaking, testifying, negotiating, lobbying, filing lawsuits, being arrested – doing whatever they could for a cause they believed in. There are far too many people whose commitment and hard work contributed to the passage of this historic piece of disability civil rights legislation to be able to give appropriate credit by name. Without the work of so many – without the disability rights movement – there would be no ADA.[2]

No one knows how many people contributed to the ADA, but the number of people involved was certainly quite large, and there ought to be plenty of kudos to go around. But imprecise and exaggerated assertions of responsibility and involvement have engendered confusion and obscured actual accomplishments; and, in honor of the ADA’s 30^th anniversary, it’s time to set the record straight.

While I was not focused on ensuring that I was getting sufficient credit when we were fighting the tough battle to get the ADA passed, once it was enacted I became more and more surprised and dismayed by a few people claiming more credit than they deserved. Let’s give credit where credit is due, but credit only for things that people actually did, no more and no less. My purpose in this essay is, as they say in current vernacular, to “unpack” the underlying reality by summarizing my front-row perspective of who wrote/authored/drafted the ADA, and who contributed in a major way to its development, or to getting it introduced in Congress and signed into law.

No, I Did Not “Author” the ADA

One thing is very clear, no one person wrote the ADA. I think of the ADA as a tapestry that was woven out of many, many pieces of thread by a large number of specialized weavers. I wrote an article for the Washington Post that appeared in 2015 under the title “Why I Wrote the ADA,” which may cause some to wonder how I can now say that no single person wrote the law. However, like most authors of newspaper pieces, I did not choose the title – the Post’s editors, not I, chose it – after I unsuccessfully fought tenaciously to get them to change it. It was otherwise delightful to work with the editorial executives of the newspaper, who were insightful, congenial, and supportive; but they felt strongly that the “Why I Wrote” formulation made a much more dramatic, compelling headline than other options.

The United States Supreme Court has recognized me as “the drafter of the original ADA bill introduced in Congress in 1988.” While I lay claim to having written the entirety of the 1988 bill, and to playing a key role in drafting the revised version that was introduced and passed in the next Congress, I do not and would not ever claim to have single-handedly written the ADA.

Sponsors, Cosponsors, and Congressional Supporters

A difficulty in attributing authorship of a law is imprecise, misleading wording often used in ascribing credit. Members of Congress – Senators and Representatives – introduce bills; the chief, original introducer is the sponsor of the legislation, and other members who join in supporting the introduction of a bill are co-sponsors. In 1988, Senator Lowell Weicker was the Senate sponsor of the ADA in the 100^th Congress. One day after Weicker introduced his bill, Representative Tony Coelho sponsored an identical bill in the House of Representatives. In 1989, Senator Tom Harkin sponsored a revised version of the ADA bill in the Senate in the 101^st Congress; Tony Coelho was again the sponsor in the House.

The identity of the sponsors is a documented fact. Not so clear-cut are claims that a member of Congress “authored” or “wrote” a piece of legislation. Though such claims or attributions are fairly common, they are based upon a fiction that most legislation is written by members of Congress themselves. Actually, it is unusual for Senators or Representatives to write bills in whole or in substantial part. Congressional staffers (either working for an individual congress member or for a congressional committee), federal government agencies, and interest groups draft most bills. The member of Congress may suggest what type of bill she or he wants drafted or the approach to be taken, provide an outline or even suggest some language, and will usually review draft bills and direct changes to be made, but it would be a rare instance in which a Congress member would sit down at a keyboard (much less pen and paper) and write the text of a bill. The designation of “sponsor” is both technically accurate and unambiguous. But referring to the sponsor as the “author” or “writer” of a piece of legislation, though frequently done, is almost always inaccurate and obfuscates the actual roles played in developing a bill.

The sponsor is the essential figure in advancing any piece of legislation. Sponsors take the critical initial step in advancing a bill by formally placing it for consideration on the congressional agenda. If the legislation is not well-received by constituents, or is rejected by Congress, the sponsors and co-sponsors face the risk of harmful ramifications to their reputations, standing, and perhaps even their political careers. The sponsors and co-sponsors of the ADA bills deserve much acclaim for having the courage and foresight to lend their public support to this momentous, revolutionary, unprecedented, and at times controversial legislative proposal – to put it before the Congress and the general public as a potential federal law. Particulars of many of the parts they played in the enactment of the ADA are described in THE MAKING OF THE ADA webpage sections, of which only a few highlights are mentioned here.

Enormous credit obviously is due to Senators Weicker and Harkin, and Representative Coelho. Senator Weicker took the lead by standing up in the Senate and putting the first ADA bill on the congressional stage. Among numerous other contributions to advancing the legislation, he and his staff, including especially Terry Muilenberg, Staff Director of the Senate Subcommittee on the Handicapped, helped tweak and fine-tune drafts of the ADA to produce the version introduced in 1988. Weicker was also instrumental in garnering early support for the bill, including enlisting the involvement of Senator Harkin and Representative Coelho. Senator Harkin not only sponsored the 1989 version of the ADA, he had Bobby Silverstein, Staff Director and Chief Counsel for the Senate Subcommittee on the Handicapped that Harkin chaired, lead negotiations with disability rights attorneys (the Legal Team) to revise the 1988 bill to produce the 1989 bill. Moreover, Harkin spearheaded strategic and political maneuvering to get the legislation passed in the Senate.

Representative Tony Coelho was an early supporter and original sponsor of the ADA; he provided strong testimony in favor of ADA bills in both the 100^th and 101^st Congresses, and played a significant role in some behind-the-scenes advocacy and arm-twisting in favor of the legislation. His strong commitment to the ADA might have led to even greater contributions to its enactment had he not resigned from Congress because of accusations of financial ethics violations in May 1989.

In addition to the sponsors, scores of members of Congress were heroes in the passage of the ADA. Among many others, very substantial contributions were made by Senators Edward Kennedy, Robert Dole (Senate Minority Leader), Paul Simon, James Jeffords, David Durenberger, and Orrin Hatch; and Representatives Steny Hoyer, Major Owens, Hamilton Fish Jr., and Silvio Conte. Although the efforts of these and many others were pivotal at various points in the congressional proceedings, the involvement of Senator Kennedy and Representative Hoyer was particularly important.

Kennedy chaired the Senate Committee on Labor and Human Resources, the key committee to which the ADA was referred in both the 100^th and 101^st Congresses. In that role, he was a strong and consistent voice in support of the legislation. And through Carolyn Osolinik, his Chief Counsel, his office had a major positive influence on deliberations of the Legal Team (to be discussed later in this essay) to develop the revised bill introduced in 1989. When Tony Coelho left Congress, the task of shepherding the ADA through the House of Representatives devolved to Steny Hoyer, the fourth ranking Democrat in the House. Though his wife had epilepsy and he had supported various pieces of traditional civil rights legislation, to that point Hoyer had not been extensively involved with disability rights legislation. But he and his Legislative Director, Melissa Schulman, proved to be quick studies and soon mastered the intricacies of the ADA bill, enabling them to handle sensitive negotiations and successfully guide the bill through four different substantive committees and several subcommittees in the House, plus the House Rules Committee. Along the way, they helped to forge many compromises and refinements in the statutory language and to thwart attempts to weaken the bill.

Ultimately, a high percentage of members from both parties in the 100^th and 101^st Congresses could legitimately lay claim to having supported the enactment of the ADA. The votes to pass the ADA were overwhelmingly in favor of passage; all of the formal up-or-down committee votes on reporting out the ADA, and all of the floor votes on passage of the legislation, had at least a 90 percent majority in favor of the ADA bills. As far as “having contributed to the writing of the ADA,” no one really knows how many members and staffers wrote language that found its way into the bills, whether as a word or two, a new or revised subsection, or even a whole section. For example, Title II of the ADA includes extensive sections covering public transportation systems, Amtrak, and commuter authorities, and Title III includes analogous provisions regarding much private transportation by bus, rail, or any other conveyance (other than aircraft). These detailed parts of the ADA, though based on the scope of coverage in the original ADA bill, were primarily drafted in the House Committees on Public Works and Transportation, and on Energy and Commerce, with considerable input from and collaboration with the U.S. Department of Transportation. Another provision was added to Title V to spell out the accessibility requirements to be applied to federal wilderness areas; it was added to the bill by congressional staffers with the input of the U.S. Forest Service, the National Park Service, and the National Council on Disability. Thus, a lot of people on Capitol Hill put their two-cents-worth, or quite a bit more, into the ADA bills as they progressed through Congress.

National Council on Disability

As the Senate passed the ADA in September 1989, Senator Robert Dole, the Senate minority leader, noted that the “bill originated with an initiative of the National Council on Disability, an independent federal body composed of 15 members appointed by President Reagan and charged with reviewing all laws, programs, and policies of the Federal Government affecting individuals with disabilities.”[3]  The path to introduction of the original ADA bill was highly unusual. Even if bills are written by an interest group or a federal agency, they normally surface in the public arena only when the sponsor introduces them in Congress. The ADA bill that Senator Weicker and Representative Coelho introduced, however, was a complete bill developed by the National Council on Disability.

When in the Spring of 1987 the Council, in the face of congressional inaction on its ADA concept, decided it wanted to produce its own bill, it called upon me, as the Council’s only lawyer, to do the drafting. In fact, I had previously penned, with my good friend and former Civil Rights Commission colleague Chris Bell, a “Statutory Blueprint” for a comprehensive disability civil rights law, and while working at the Council, I had developed recommendations in the Toward Independence report prescribing key elements of such a law, and already had produced a rough draft of what such a bill could look like.

After having previously shared an outline and portions of a draft ADA bill with Executive Director Lex Frieden and the officers and staff of the National Council, in October of 1987 I had a full draft ready for consideration by all the members of the Council. Over the next several months, at quarterly meetings of the Council and, in between, the members reviewed numerous drafts of the bill, pored over them line-by-line, raised concerns, asked questions, suggested changes, argued about them, and ultimately reached consensus on most issues.

While few of the members had legal or legislative experience, I was highly impressed with their commitment to improving the lives of people with disabilities, and their unflagging conviction that enactment of the ADA was essential. I was also gratified by how much they trusted me and listened to my explanations, and, as they made valid objections or offered useful additions, I was pleased to take their ideas and translate them into proper legal language consistent with the thrust and form of the legislation and relevant legal precedents. They put their best efforts into making the bill as good as possible before giving it their stamp of approval.

On January 29, 1988, the Council published its then current draft bill in its report On the Threshold of Independence, which generated much more public attention to and support for the proposal. Disability groups entered into further negotiations with the Council over proposed changes to the On the Threshold version of the bill, and we continued to consider and make other refinements of our own. On March 11, Lex Frieden and I sent out to the Council a “Proposed Final Draft” of the ADA bill I had prepared, including revisions the Council had approved, with a mail ballot for the members’ approval or disapproval. With unanimous approval of the draft by the Council, on March 18, I removed the words “proposed final” and designated the document simply “The Americans with Disabilities Act: A Draft Bill.”

On April 28, 1988, on the floor of the United States Senate, Senator Weicker proceeded to introduce the Council’s March 18 ADA bill. The 15 members of the Council, led by Chairperson Sandra Parrino and Justin Dart, were the towering force behind the inception and development of the bill. The Council members’ goals and decisions regarding the legislation were ably executed and implemented by the Council staff, directed by Lex Frieden, who was a key broker of the legislation between disparate factions inside and outside the Council throughout the course of the development of the ADA, with crucial involvement of staff members Andi Farbman, Kathy Roy, and Ethel Briggs, who made many valuable contributions. Together, the Council members and staff all featured prominently in the achievement of this milestone in disability rights history and in the history of our country.

Legal Team Plus

A crucial influence on the revision of the 1988 ADA bill leading to the version of the bill enacted in 1990 was a group of top-flight lawyers who represented the disability community in preparation for and during ADA consideration in the 101^st Congress – a group that disability rights advocate and ADA honcho Pat Wright assembled and christened the “Legal Team.” The membership and roles seemed to vary somewhat depending largely upon Pat’s sense of what was needed at a particular time, but the core group usually consisted of Arlene Mayerson of the Disability Rights Education and Defense Fund (DREDF), David Capozzi of the Paralyzed Veterans of America (PVA), Bonnie Milstein of the Mental Health Law Project, Tim Cook of the National Disability Action Center, Jim Weisman of the Eastern Paralyzed Veterans of America (EPVA), Karen Peltz-Strauss of the National Center for Law and the Deaf (NCLD), Ralph Neas of the Leadership Conference on Civil Rights (LCCR), Liz Savage of the Epilepsy Foundation, Chai Feldblum of the American Civil Liberties Union (ACLU), and me. I tended to think of a slightly larger group that I called the “Legal Team Plus,” because I included Pat Wright who was almost always present, her DREDF colleagues, including Marilyn Golden, who were often available for consultation by phone, and Senate staffers Bobby Silverstein and Carolyn Osolinik, who, though they were meeting with us to get our input, actually worked collaboratively with us as part of the team on enhancing the ADA bill. The Legal Team met frequently, though not on a regular schedule, to review potential changes, draft new language, discuss problems with particular provisions, and argue about issues and approaches, including deciding which provisions were so critical that we would “fall on our swords for” rather than concede them. The Team oversaw a restructuring of the sections of the bill, and various modifications to the language of the 1988 bill, to produce the bill introduced in the 101^st Congress in 1989. Whenever possible, I tried to be the one who translated what we had agreed to into new statutory language. Overall, the Legal Team served a vital function in shaping revisions to the 1988 bill and in maintaining the integrity of the proposed ADA.

Other Contributors

In addition to the previously mentioned Department of Transportation, Forest Service, and National Park Service, a number of other federal agencies, including the Department of Justice, the Equal Employment Opportunity Commission, the Access Board, the Department of Health and Human Services, and the Department of Justice, weighed in at various times during congressional consideration of the ADA – making comments, identifying concerns, and suggesting alternative approaches and language. Attorney General Dick Thornburgh was pivotal in supporting the legislation and testifying in favor of it. And the ADA’s road to passage would have been much rockier or even impossible were it not for the strong support of President George H.W. Bush, whose support of the ADA dated from when he was Vice President.

Many interest groups, constituents, and miscellaneous individuals made suggestions to members of Congress, congressional staffers, or the Legal Team about the content and wording of the pending legislation; some fraction of these suggestions may have been incorporated into the legislation or proposed amendments, and a small subset may have survived in the ADA as enacted. Thus, in addition to folks in the legislative branch, any number of people and entities, both inside and outside the government, contributed to or helped with the writing of various portions of the ADA.

In addition to those who had some impact, to a greater or lesser degree, on the content of the ADA, another crucial category was those who supported the ADA – by lobbying for it, participating in demonstrations and marches, contacting their members of Congress, writing op-ed pieces and letters to the editor, pushing their organizations to back it, courting positive media coverage of the legislation, and engaging in countless other kinds of actions, from the grassroots level to the halls of power in Washington, to promote and advance the cause of the ADA.

A small army of lobbyists under the leadership of Liz Savage filled the halls of Congress, educating members of Congress and wooing their votes, explaining and defending the legislation, anticipating and answering concerns and questions, and stressing the political and humanitarian merits of the ADA. People with disabilities and their organizations undertook numerous direct action activities, including marches on and picketing at the White House, a sit-in in the Rotunda of the Capitol, cramming the halls of Congress and streets around the White House with people with disabilities, and protesters getting out of their wheelchairs and crawling up the steps of the Capitol. Such demonstrations, many of which were organized by ADAPT (Americans Disabled for Accessible Public Transit at the time) or the National Council on Independent Living (NCIL), and other actions in the same period, including the marches and rallies associated with the “Deaf President Now” protests at Gallaudet University in March 1988, confirmed the passion and commitment of persons with disabilities for having their rights recognized and respected, underscored the need for the ADA, and dramatically increased visibility of the ADA legislation.

Another powerful way in which tens of thousands of people with disabilities contributed to congressional consideration and passage of the ADA was by testifying – attending hearings, forums, and other official gatherings to tell their personal stories of disability and discrimination, and putting a human face on the unjust treatment accorded those with physical or mental impairments. On May 2, 1988, Representative Major Owens, Chair of the House Subcommittee on Select Education, established the Congressional Taskforce on the Rights and Empowerment of Americans with Disabilities to collect information and make recommendations to assist Congress in its consideration of the ADA. Justin Dart, esteemed disability activist and former National Council on Disability member, chaired the Task Force and Elizabeth Boggs, a disability rights pioneer, and authority on intellectual disability, and a nuclear physicist, was co-chair. Its 38 members and officers constituted a veritable Who’s Who of disability organization leadership in the United States.[4] The Task Force heard from “more than 10,000 persons with disabilities and their advocates attending 63 Task Force forums and eight congressional hearings in 50 states,” and reported that the ADA was supported by over 99% of those who testified.[5] Between 1988 and 1990 Justin Dart, personally chaired 63 forums in each of the fifty states, plus Guam and Puerto Rico, attended by more than 7,000 people; in the process he also collected more than 5,000 documents in support of the ADA bill. And Congress held 18 formal hearings to consider the ADA. All the people who attended and testified in favor of the legislation at these forums and hearings played an integral part in moving the ADA forward.

The foregoing examples, though but a drop in the bucket, serve to illustrate that many, many people had an enormous impact on enactment of the ADA other than by writing its provisions.

False and Exaggerated Claims

The main purpose of this essay is to chronicle positive things that people did to further the ADA, not to list things that people were inaccurately said to have done. A few attributions, however, have been so distorted as to warrant discussion. One exaggerated narrative was associated with the 1997 movie, Music Within, about the life of Richard Pimentel, a motivational speaker with a hearing impairment. It describes two men with disabilities whose encounters with discrimination caused them to become militant disability rights advocates. The film offers dramatic insights into disability discrimination and prejudice, but, toward its end, and especially in its promotion, the movie ascribes to Richard Pimentel an outsized role in the origin and enactment of the ADA. In promoting its use as a teaching tool, the website of Teach with Movies (Teachwithmovies.org/music) declared, “Richard Pimentel is one of the people most responsible for the passage of the Americans with Disabilities Act in 1990” and further “The film is a biography of Richard Pimentel (1947 -), one of the people most responsible for the movement to recognize the disabled as full-fledged human beings. His advocacy was a major factor in passage of the ADA.” The Village Voice said that Music Within “tells the true life tale of Richard Pimentel, the man more or less behind the Americans with Disabilities Act” (Robert Wilonsky, “Music Within,” October 16, 2007, Villagevoice.com).

As a person who has spent the best part of five decades of my professional career in the disability rights movement and has been intimately involved with the ADA from its inception to the present, I had never heard of Richard Pimentel until the movie came out. I am unaware of anything of any major significance that he contributed to the movement; he may have made motivational speeches in favor of disability rights and in support of the ADA, but in my opinion he was not a prominent figure. Shortly after the film hit theaters, movie review icon Roger Ebert decided to set the record straight. In a review he wrote:

[A]lthough the movie doesn’t quite say so, he [Pementel] must have been the driving force behind the Americans with Disabilities Act (1990), because no one else is mentioned.

The national disability rights movement had many parents. Such men as Robert Burgdorf, Justin Whitlock Dart Jr. and Sen. Bob Dole were instrumental. … Here in Chicago, my friend Marca Bristo founded Access Living to support the disabled who wanted to live independently. … She was appointed chair of the National Council on Disability. No, she didn’t create the Americans with Disabilities Act. But Google both her and Pimentel, and decide for yourself who played a larger role in the movement.

Richard Pimentel was more of a beneficiary of the disability rights movement than a pioneer. … Just remember that [the movie’s] hero stands for countless others.

Roger Ebert, Music Within (2007), at http://rogerebert.suntimes.com

Equally apocryphal are claims of prior conceptualizations or versions of the ADA. In the days leading up to the 25^th anniversary of the ADA’s enactment, several museums were tweeting and blogging about the history of the law as part of #DisabilityStories. At 11:54 a.m. on July 15, 2015, the George H.W. Bush (Bush 41) Presidential Library and Museum tweeted a copy of the first two pages of a document titled “Working Outline, Draft One, Disabled Americans Act, 11/26/80.” About an hour later, the Library tweeted the other two pages with the caption “Pages 3, 4 from the first draft of the Disabled Americans Act that would become the ADA” (emphasis added). Spreading such inaccurate information about the origin of the ADA, especially by a Presidential Library, is a serious lapse. Upon examination, it turned out that the document was not a disability civil rights legislative proposal at all and contained nothing faintly resembling the ADA. Its first provision declared its purpose to be “establishment of local and state area agencies for disabled individuals re need for coordination, linkage programs to address gaps in service, wholistic [sic] approach.” It certainly was not a step toward a comprehensive law prohibiting discrimination on the basis of disability – it did not even mention discrimination. Its objective was to recast federal disability service programs as state and local programs.

An even more unusual claim was the assertion by one man that in 1968, when he was 16 years old, he “co-conceived” the ADA with then U.S. Attorney General Ramsey Clark, and that Ramsey coined the law’s name. Research did not disclose any affirmation or verification by the former A.G. of these assertions, and I know for a fact that no such preconception of an ADA was known or somehow played a role in the development and naming of the ADA. A problem with claims that, before the ADA was drafted and introduced, someone had previously conceived, thought of, envisioned, etc., an ADA, is that the supposed pre-ADA concept or idea of an ADA is very general and fuzzy. Simply suggesting that there should be a law protecting people with disabilities from discrimination is not a proposal or conceptualization of the ADA. Drafting something with the words equal rights, or disability rights, or discrimination is not the same as writing a version of the ADA. Ideas or documents that do not look like the ADA, did not have any influence on the original bill introduced in 1988 nor on the legislation that finally passed, were not part of the legislative drafting that culminated in the ADA, and were unknown to the actual drafters of the ADA, cannot be considered as early renditions of the ADA.

From its inception in the Toward Independence report, through to its enactment, the essence of the ADA proposal was to enact “a comprehensive law … with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap.” Anything less was not a conception, version, or forerunner of the ADA.

My Contributions to the ADA

In this section, I seek to present an honest self-assessment of the part(s) I played in the development of the Americans with Disabilities Act. I grew up in the Midwest, where the culture commonly favors Midwestern understatement – “shucks ma’am, tweren’t nothing,” and “don’t get too big for your britches” – over anything that even faintly suggests self-aggrandizement or boasting. Swimming against that tide, I want to straightforwardly recount my contributions to the ADA, without false humility or selling myself short.

When I joined the staff of the National Council on Disability in 1985, a renowned member of the Council was Dr. Henry Viscardi, who had been born without legs and became a leader in rehabilitation and disability activism. It was an honor to work with Dr. Viscardi. In mid-1960s, he and Abilities, Inc., which he founded, had modified “An American’s Creed” penned by Dean Alfange in the early fifties, to produce a “Credo” of people with disabilities, which ends, “[I]t is my heritage to stand erect, proud, and unafraid; to think and act for myself, enjoy the benefit of my creations and face the world boldly and say, ‘This I have done.’ For our disabled millions, for you and me, all this is what it means to be an American.” I would like to borrow from Viscardi’s wisdom and say. “This I have done,” in relation to the ADA.

During the first decade of my career, I gained a wealth of first-hand experience with disability rights law in America, through extensive involvement in litigation, research, and writing (including the first law school casebook on the subject) at the National Center for Law and the Handicapped and the Developmental Disabilities Law Project. After joining the General Counsel’s Office of the U.S. Commission on Civil Rights in 1982, I had the opportunity to devote some three additional years to concentrated study of disability and disability rights. Drawing upon all of this groundwork, in 1984, Chris Bell, my friend and colleague at the Commission, and I concluded that better federal legislation prohibiting discrimination on the basis of disability was desperately needed.

In our Statutory Blueprint article, we suggested elements that should be included in “any new legislative proposals addressing [disability] discrimination”; these included (1) a definition of discrimination on the basis of disability; (2) a reasonable accommodation requirement and a definition of that term; (3) standards governing the extent to which costs and other factors should limit the duty to make reasonable accommodations; (4) a prohibition of qualifications, selection, and eligibility criteria used to limit opportunities without regard to an individual’s actual ability; (5) a requirement of architectural, transportation, and communication accessibility; (6) clear and effective enforcement mechanisms; and, critically, (7) broader coverage. Regarding the last of these, we noted that coverage of existing disability nondiscrimination laws was significantly narrower than other civil rights laws, in large part because they did not make use of Congress’s power to regulate interstate commerce. By the time I drafted the “Equal Opportunity Laws” section of the National Council on Disability’s Toward Independence report in 1986, I had refined my thinking to the point that I formulated the first recommendation in the report as follows: “Congress should enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination of the basis of handicap.” The second recommendation I drafted identified nine categories of entities that the nondiscrimination law should cover.

Some individuals and disability organizations had previously recognized a need for a disability rights law coextensive in scope of coverage with existing civil rights laws, to be accomplished by adding the word “disability” to the types of discrimination prohibited under those laws. I was more ambitious in advocating a comprehensive law going beyond the scope of those statutes and one that would establish what elements a disability discrimination law should include. This approach was reflected in the draft ADA bill I wrote for the National Council, which was published in the Council’s report On the Threshold of Independence and was introduced in Congress in 1988. As the long title of that bill, I wrote “To establish a clear and comprehensive prohibition of discrimination on the basis of handicap,” a formulation that was echoed by the first provision in the “Purposes” subsection: “to provide a clear and comprehensive National mandate for the elimination of discrimination against persons with disabilities.” That long title and primary purpose were retained in the ADA as enacted in 1990, framing the body of the law and its substantive provisions.

At the time that I was formulating a comprehensive bill, I was pretty much on my own, as no other organizations or individuals were advancing such a legislative proposal. Indeed, the prevalent view in Washington was that under the Reagan administration, the disability community was barely holding onto existing disability rights provisions, and there was no hope of moving forward to expand on current rights. Accordingly, I believe that pushing for and drafting a comprehensive disability civil rights law at that time, often in the face of zealous opposition, was at the top of my contributions to the ADA.

After having drafted the original bill, I was heavily involved in the development of ADA language, and negotiations and revisions that produced the final legislation. From the writing of all the Findings and Purposes of the law; to formulating the expansive scope of its coverage (which, although it was restructured in the 1989 bill, shaped the breadth of coverage in the final enacted version); to fighting for and defending broad coverage of public accommodations, to coining the term “readily achievable” and writing its definition; to conceiving the “donut approach” to covering a periphery of activities around a nucleus of federal and federally funded activities already covered by sections 501 to 504 of the Rehabilitation Act; to putting pre-employment inquiries provisions in the statutory text – my fingerprints are all over the final ADA.

Even in regard to some issues on which I lost in the legislative negotiations – including prohibiting discrimination by insurance providers; organizing the body of the bill to match the format of the Civil Rights Act; providing a clear definition of reasonable accommodation; focusing on discrimination “on the basis of disability” with a more inclusive, less technical definition of “disability”; the need to set a deadline in the future after which full accessibility would be required in all government facilities and public accommodations; and setting “fundamental alteration” instead of “undue financial and administrative burdens” as a limit on the requirement not to engage in discriminatory actions – I came away, despite regrets and frustrations, with a conviction that I had “fought the good fight” over matters on which I had been battling for many years and continue to feel were well worth fighting for.

I’m also proud of the scores (maybe hundreds) of bill drafts, memos, outlines, summaries, talking points, charts, side-by-side analyses, congressional testimony, and a variety of other documents I produced that proved critical to moving forward toward introduction and enactment of the ADA. I was gratified at getting the chance to testify as a technical expert at hearings on the ADA in both the Senate and the House. It was also a proud accomplishment to participate with the impressive and passionate members of the Legal Team Plus to hammer out ideas and compromises. Another highlight for me was working in partnership with Marilyn Golden of DREDF to negotiate, with representatives of the business community, regulatory standards spelling out what percentage of spending on renovation projects by public accommodations was required to be spent on accessibility improvements.

Sections on this website on the web page headed “THE MAKING OF THE ADA” spell out in much greater detail my description of who did what in the development and enactment of the ADA. It took many people doing various great things to make the ADA a reality. I feel incredibly fortunate to have worked with so many wonderful human beings on such a remarkable and worthwhile undertaking. Insofar as I have been able to occupy a prominent place in that historic effort, and to have been a preeminent writer of the ADA, I am pleased and proud to say, à la Henry Viscardi, “This I have done.”

 

[1] The full list appeared in the Able newspaper. July 2010 issue; portions were reprinted, with the names interspersed at the tops and bottoms of pages in the July 2015 issue, found at

http://ablenews.com/wp-content/uploads/2015/06/ADA-pages-for-website.pdf and

http://ablenews.com/wp-content/uploads/2015/06/JULY-2015-LI-1.pdf

[2] Arlene Mayerson, “The History of the Americans with Disabilities Act: A Movement Perspective,” (1992) at https://dredf.org/about-us/publications/the-history-of-the-ada/

[3] 135 Cong. Rec S10790 (daily ed. Sept. 7, 1989).

[4] A list of the Task Force members is found at http://dolearchivecollections.ku.edu/collections/ada
/files/s-leg_761_006_all.pdf. Details about the creation and members of the Task Force are found at https://mn.gov/mnddc/ada-legacy/ada-legacy-moment22.html#:~:text=To%20gather%20and
%20present%20on,Empowerment%20of%20Americans
%20with%20Disabilities.&text=Dart%20was%20a
%20leader%20of,a%20renowned%20human%20
rights%20activist.

[5] Report of the Task Force on the Rights and Empowerment of Americans with Disabilities – Executive Summary of findings and recommendations, August 20, 1989, http://digitalcollections.library.cmu.edu/awweb
/awarchive?type=file&item=418356