TAKING A MOMENT TO REFLECT ON THE ADA…MARKING THE TWENTY-FIFTH ANNIVERSARY YEAR
By Attorney Lawrence Berliner
July 26, 2015 marks the twenty-fifth anniversary of the enactment of the Americans with Disabilities Act, commonly referred to as the ADA. This landmark civil rights law for individuals with disabilities was enacted by the Congress and signed by President George H.W. Bush who stated that this law would tear down a shameful wall of exclusion. During the past twenty-five years more individuals with disabilities are in the mainstream of our society because of accessible public buildings, state and local government services are accessible, colleges and universities are opening their doors to students with disabilities, and more employers are recognizing the valuable contributions that people with disabilities can add to a place of employment. Is there more work to do to expand the reach of the ADA, of course, but that should not prevent us from taking a moment to reflect on the accomplishments during the past twenty-five years.
People with disabilities are still being excluded, however, there is progress to celebrate. For example, this year the U.S. Department of Justice announced a landmark settlement with the State of Rhode Island to eliminate sheltered works shop and place individuals with disabilities into competitive employment and training opportunities. The Big Y Supermarket chain announced that it has purchased shopping carts for that will hold children with disabilities so they are included with their family rather than being left at home. Walgreens has announced that it has expanded competitive employment opportunities for people with disabilities at their regional distribution center in Connecticut. The Connecticut Department of Transportation has expanded the number of accessible buses and trains to ensure that people with disabilities can travel without restrictions. Our public schools are increasing the number of high school students with disabilities who are ready to enter the work force and/or continue their post -secondary education. Recently, the Huffington Post reported on a student with a disability who wanted to become a nurse and the obstacles she had to overcome in order to gain entry into a nursing school. Today she is competitively employed as a school nurse in a public school located not too far from her home. Without the ADA, these employment, post-secondary education, shopping, and transportation opportunities would not have occurred for people with disabilities.
The ADA did not happen overnight. It was the product of many years of trial and error and the study of public policies that excluded or tended to exclude people with disabilities from our schools, employment, places of public accommodations, and our communities. The genesis of the ADA can be traced back to President Kennedy’s administration that began to look at the federal policies that promoted the warehousing of people with disabilities in large state-run institutions rather than community placements. As we all know, with the death of President Kennedy on November 22, 1963, other Presidents continued the torch of his civil rights legacy. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were signed into law by President Johnson. However, for people with disabilities, they would have to wait for the Nixon Administration to enact the Rehabilitation Act of 1973, which contained Section 504. That short paragraph within the Rehabilitation Act of 1973, prohibiting discrimination by recipients of federal funding, became the first comprehensive federal civil rights law for people with disabilities. However, it took from 1973 to 1977 for the federal government to enact regulations designed to implement Section 504, when Joseph Califano, President Carter’s Secretary of Health, Education, and Welfare (HEW) issued final regulations. In the meantime, in 1975 Congress had enacted the Education for All Handicapped Children Act, that was signed into law by President Ford, effective in 1977, expanding the civil rights protections for students with disabilities and providing federal funding to support the expansion of educational opportunities for students with disabilities by ensuring that their local school districts provided a Free Appropriate Public Education (FAPE).
With the enactment of all these federal laws and regulations during the 1970’s many people thought that Congress had finally ended the pervasive exclusion and discrimination against people with disabilities that permeated our society. However, it became apparent that the protections provided by these laws were limited to public and private entities that received federal funding such as school districts, state and local government agencies, and federal contractors, to name a few. During the next ten years, leaders in the disability rights community and in Congress met to consider expanding the scope of the federal civil rights protections by not limiting those protections to recipients of federal funding. Piecemeal legislation such as the Handicapped Children’s Protection Act or the Civil Rights Restoration Act promoted by Connecticut’s Senators Dodd and Weicker helped to fill a void in federal civil rights protections created several Supreme Court decisions, however that was not enough. Leaders in the Senate such as Connecticut’s Senator Lowell Weicker took the lead to better understand the limits of the federal laws enacted during the 1970’s. Senator Weicker, joined by other Senators on the Senate’s Health, Education, Labor and Pensions Committee (HELP), including Senators Ted Kennedy, Orrin Hatch, and Robert Dole, eventually crafted a bill during 1988 that became the tentative framework for the ADA. Senator Weicker did not have a chance to finish his legislative work on the ADA after he lost his seat in the Senate during the 1988 election. However, that loss did not prevent others from continuing the work on this proposal and moving this landmark legislation forward two years later when President George H.W. Bush enthusiastically signed the ADA into law. The ADA expanded the civil rights protections for people with disabilities to ensure that schools, stores, government services, transportation, telecommunication services, places of employment and many other parts of our society were truly accessible and useable by people with disabilities, regardless of whether or not the places of public accommodations and the public entities were recipients of federal funding.
Even with the broad reach of the ADA, often compliance and implementation of this law was uncertain and many of the promises of the law remained unfulfilled. While there were Supreme Court decisions such as Abbot clarifying the definition of major life activities and Olmstead that expanded access to community based placements; there were other decisions that eviscerated rights under the ADA such as those involving United Parcel Service, United Airlines, and Toyota Motors that interpreted the definition of disability in a narrow and restrictive manner that was entirely inconsistent with Congressional intent. Consequently, thousands of individuals with disabilities were no longer considered disabled and lost the ADA’s protections in the workplace. In addition, many employers were often reluctant to hire individuals with disabilities because they feared that the costs of providing reasonable accommodations would be excessive, even though study after study had demonstrated that the average annual costs of accommodating an employee with a disability was less than $100.00 per year. Recognizing that there was a need to address some of the Supreme Court’s interpretation of the ADA, Congress revisited the limits of the ADA and eventually enacted the Americans with Disabilities Act Amendments of 2008, to clearly define the contours of the definition of disability, to provide interpretive guidance to evaluate a disability, and to ensure that people with disabilities were no longer being arbitrarily excluded from the protections of this law. Ironically it was President George W. Bush, son of President George H.W. Bush, who signed the 2008 legislative enactment.
As we pause to take stock of the ADA’s accomplishments during the past twenty-five years, there is more work ahead to ensure that the full promise of the ADA reaches all Americans with disabilities, so we as a nation can prosper and enjoy the valuable contributions that all citizens add to this country. Just imagine where our country and the world would be today if we did not have people with disabilities such as Albert Einstein, Alexander Graham Bell, Thomas Edison, Temple Grandin, Helen Keller, Ray Charles, Stevie Wonder, Marlee Matlin, Christopher Reeve, Itzhak Perlman, Stephen Hawking, Richard Branson, Jim Abbott, Casey Martin, Franklin Delano Roosevelt, Woodrow Wilson, or Nelson Rockefeller, each contributing in their own way to advancements in industry, business, science, arts, music, sports, literature, and/or government. There are countless others who have contributed to the betterment of society because they were not being locked away or excluded from equal and effective participation in our society. As a civil rights attorney who has championed the rights of people with disabilities under state and federal law for over thirty years, having the privilege and opportunity to work with Senator Weicker’s staff while I was employed at the State Office of Protection and Advocacy, advocating each day for the rights of children with disabilities in public and private schools, assisting students in colleges and universities, and helping individual access state and local government services, I believe that I have been able to make a meaningful difference in the lives of the individuals and families that I have assisted because of the ADA, along with the enactment of progressive state legislation by Connecticut’s General Assembly, including a 1984 Amendment to the Connecticut State Constitution, that removed barriers, increased access, eliminated discrimination, and tore down that shameful wall of exclusion that President Bush had promised the nation on July 26, 1990.