Honoring the history that led to the passing of the American With Disabilities Act

A BRIEF HISTORY OF DISABILITY POLICY IN THE U.S.

Throughout history, many practitioners and policymakers treated individuals with disabilities as “defective” or in need of “fixing.” Individuals were excluded from public education, isolated from their neighbors and forced into institutions against their will. Some cities even enacted “ugly laws,” which barred persons with impairments from being seen in public. Justice Thurgood Marshall in Cleburne v. Cleburne Living Center, Inc. characterized the "lengthy and tragic history” of treatment of individuals with developmental disabilities as “grotesque.”

In the 1970s and 80s, state and federal policymakers began to change their views of individuals with disabilities, recognizing the precept that a disability is a natural and normal part of life. This paradigm shift followed the model of the civil rights movement and led to the recognition that many barriers for individuals with disabilities were, in fact, rooted in our society. These barriers included cultural stigma, public policies that made it challenging for individuals to live independently and self-advocate, physical structures, and transportation and communication infrastructures that excluded individuals with disabilities.

The first federal law addressing barriers faced by individuals with disabilities was the Architectural Barriers Act of 1968, which focused on the accessibility of federal buildings. Five years later, the Rehabilitation Act of 1973 included civil rights protections for individuals with disabilities in programs and activities receiving federal assistance and prohibited employment discrimination by federal agencies and federal contractors.

Shortly after the passage of The Rehabilitation Act, federal policymakers enacted the landmark 1975 Education for All Handicapped Children Act — later known as the Individuals with Disabilities Education Act (IDEA) — which guarantees to every child with a disability a free appropriate public education in the least restrictive environment.

THE AMERICANS WITH DISABILITIES ACT

The Rehabilitation Act of 1973 was groundbreaking but limited in its reach. It did not address discrimination on the basis of disability by entities that did not receive federal assistance. As a result, widespread discrimination persisted.

On May 8, 1989, the Americans with Disabilities Act (ADA) was introduced by both the U.S. House and Senate. After lengthy negotiations and a number of amendments, President George H.W. Bush signed the ADA into law on July 26, 1990. An act modeled after the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act, the ADA represented the most comprehensive disability rights legislation in history.

“The passage of the ADA occurred during a window of opportunity created by several key factors: strong bi-partisan support, a compelling case for change made by both legislators and members of the disability community, the inclusion of all appropriate stakeholders including state and local governments and business interests, and the recognition that civil rights goals needed to be balanced by legitimate community interests,” said Bobby Silverstein, former staff director and chief counsel for the Senate Subcommittee on Disability Policy, who served as a behind-the-scenes architect of the ADA. “There were incredible profiles in courage exercised by policymakers.”

Policymakers from both sides of the isle including President Bush, Senators Tom Harkin (the primary sponsor), Orrin Hatch, Bob Dole and Kennedy Representatives Tony Coelho, Steny Hoyer, Steve Bartlett and Hamilton Fish and Illinois Attorney General Neil Hartigan risked their careers to advocate for the omnibus civil rights bill, Silverstein said. Many participants even spoke out to share their own experiences with disabilities, including personal and family experiences, and some directly countered party beliefs.

Beyond the strong advocacy of policymakers, the ADA was successful as a result of the involvement of numerous stakeholders in its formation, ranging from state and local governments to business interests and the disability community. While the disability advocacy community provided a compelling case for nondiscrimination, the business community ensured that that the legislation balanced the rights of people with disabilities with the legitimate concerns of employers and businesses.

The ADA outlines four goals:

1. Equality of opportunity

2. Full participation

3. Independent living

4. Economic self-sufficiency

The ADA guarantees equal opportunities for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications. The legislation sought not to “fix” people with disabilities, but rather to remove barriers within the social and physical environment that create access and engagement in every aspect of life.

“From a policy perspective, the ADA boils down to treating people with disabilities with dignity and respect, focusing on individuals’ strengths and abilities, recognizing and celebrating differences, fostering self-determination and removing architectural, communication and transportation barriers,” Silverstein said. “I like to think of the ADA as an acronym for both the Americans with Disabilities Act and the American Dream for All. The ADA serves as a handle for making the promise of equality a reality for our neighbors with disabilities.”

I like to think of the ADA as an acronym for both the Americans with Disabilities Act and the American Dream for All. The ADA serves as a handle for making the promise of equality a reality for our neighbors with disabilities.”

— BOBBY SILVERSTEIN, former staff director and chief counsel for the Senate Subcommittee on Disability Policy

The ADA defines disability, with respect to an individual, as a physical or mental impairment that substantially limits one or more major life activities, a record or history of such an impairment or being regarded by others as having such an impairment. The ADA does not specifically list each disability that it covers.

“Across our nation, mothers are giving birth to infants with disabilities, so I want to dedicate the ADA to these: the next generation of children and their families,” said Sen. Tom Harkin, chief sponsor and floor manager of the ADA on the law’s enactment. “With the passage of the ADA, we as a society make a pledge that every child with a disability will have the opportunity to maximize his or her potential to live proud, productive and prosperous lives in the mainstream of our society. We love you all and welcome you into the world. We look forward to becoming your friends, neighbors and co-workers. We say, whatever you decide as your goal, go for it. The doors are open, and the barriers are coming down.”

Over the past 30 years, the ADA has continued to evolve and shape state and federal legislation. Other critical policy changes have included the 1993 National Voter Registration Act, Civil Rights of Institutionalized Persons Act, the Telecommunications Act of 1996, additions to the IDEA and Rehabilitation Acts and a number of other critical supreme court rulings including Spector v. Norwegian Cruise Line Ltd. (2005), Olmstead v. L.C. (2009) and Fry v. Napoleon Community Schools (2017). Most notably, the 2008 ADA Amendments Act (ADAAA) made changes to clarify the original definition of disability under the ADA, making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.

THE ADA EXPLAINED

TITLE I |EMPLOYMENT

Title I is designed to prohibit discrimination on the basis of disability and ensure individuals with disabilities access the same employment opportunities as those without disabilities, including access to reasonable accommodations.

TITLE II | STATE AND LOCAL GOVERNMENT

Title II prohibits discrimination against individuals with disabilities in all programs, activities and services of public entities, including state and local governments and agencies. This act also imposes standards for the operation of public transit systems and requirements for making reasonable modifications to policies, practices and procedures where necessary to avoid discrimination.

TITLE III | PUBLIC ACCOMMODATIONS

Title III requires that public accommodations do not discriminate against persons with disabilities, including making reasonable modifications to their policies and requiring that all new construction and modifications in public accommodations — such as restaurants, hotels, grocery stores, etc. — be accessible to individuals with disabilities.

TITLE IV | TELECOMMUNICATIONS

Title IV requires that telephone companies must have telephone relay services available for individuals who use telecommunication devices for the deaf (TTYs) or similar devices.

TITLE V | MISCELLANEOUS

Title V includes a provision prohibiting coercing, threatening or retaliating against individuals with disabilities or those attempting to aid people with disabilities in asserting their rights under the ADA.

SOURCE: ADA.GOV

CSG thanks Bobby Silverstein for his contributions to this article.