The Disability Pendulum

The First Decade of the Americans With Disabilities Act

Ruth Colker

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814772331
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Signed into law in July 1990, the Americans with Disabilities Act (ADA) became effective two years later, and court decisions about the law began to multiply in the middle of the decade. In The Disability Pendulum, Ruth Colker presents the first legislative history of the enactment of the ADA in Congress and analyzes the first decade of judicial decisions under the act. She assesses the success and failure of the first ten years of litigation under the ADA, focusing on its three major titles: employment, public entities, and public accommodations.

The Disability Pendulum argues that despite an initial atmosphere of bipartisan support with the expectation that the ADA would make a significant difference in the lives of individuals with disabilities, judicial decisions have not been consistent with Congress' intentions. The courts have operated like a pendulum, at times swinging to a pro-disabled plaintiff and then back again to a pro-defendant stance. Colker, whose work on the ADA has been cited by the Supreme Court, offers insightful and practical suggestions on where to amend the act to make it more effective in defending disability rights, and also explains judicial hostility toward enforcing the act.

1
Introduction
High Hope Followed by Public Backlash

Look, I’m not going to pick on an invalid.¹

—President Ronald Reagan, August 1988

(Response to a reporter’s question about

presidential candidate Michael Dukakis)

The Americans with Disabilities Act presents us all with an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life. As the Declaration of Independence has been a beacon for people all over the world seeking freedom, it is my hope that the Americans with Disabilities Act will likewise come to be a model for the choices and opportunities of future generations around the world.

—President George Herbert Walker Bush,

July 26, 1990 (ADA Signing Statement)

In 1988, the enactment of the Americans with Disabilities Act was virtually unthinkable. The president of the United States considered it appropriate to describe a presidential candidate as an “invalid.” Yet, in 1990, the president considered it important to support and sign the Americans with Disabilities Act. No longer could public figures appear to be against the rights of individuals with disabilities. As the New York Times aptly commented a year before the ADA’s passage: “No politician can vote against this bill and survive.”² How did the idea of supporting disability rights move from a joking matter to a serious one that nearly all public figures supported? This book will critically examine the effectiveness of the ADA and ask why it may have fallen short of its high hopes and aspirations. This chapter will provide a general introduction to the ADA.

Chapter 2 will provide a basic overview of the history underlying the enactment of the ADA. We will see that Congress understood itself to be passing a broad-based disability statute. To the extent that there were compromises, they did not modify the basic commitment to broad civil rights protection. Businesses were given some extra time to comply and the restaurant industry received some of the protection it requested to permit it not to employ individuals with contagious diseases. Otherwise, as we shall see, the ADA reflected a boldly proplaintiff piece of legislation that Congress understood to protect unpopular groups such as individuals with HIV infection and former drug users.

Chapter 3 will use empirical tools to assess the effectiveness of ADA Title I. ADA Title I prohibits discrimination in the employment sector. Empirical data suggest that the courts have overwhelmingly interpreted Title I in favor of defendants. Chapter 3 will ask whether the data reflect a judicial backlash against the ADA or whether other factors might also explain these negative results.

Chapter 4 will explore two explanations for the strongly proplaintiff results under the ADA: (1) an inappropriately narrow definition of the term “disability,” and (2) misuse of the summary judgment standard to the disservice of plaintiffs. Case law concerning the definition of disability has had a profound impact on the effectiveness of the statute because plaintiffs cannot bring suit under the ADA unless they meet the definition of disability.³ Although Congress indicated in the findings section that it expected the statute to protect more than 43 million disabled Americans, the effect of these prodefendant rulings has been to limit statutory coverage to a relatively narrow band of plaintiffs. In particular, the “mitigating measures” rule has required plaintiffs to demonstrate that they are disabled after a court takes into account the ameliorative effects of mitigating measures. That rule has made it nearly impossible for plaintiffs to demonstrate that they are both “qualified” and “disabled” because the mitigating measure that they use to help them be qualified then renders them nondisabled.

Abuse of the summary judgment process has harmed those plaintiffs who may have managed to survive the courts’ stringent definition of disability. Despite Congress’s instructions that terms like “reasonable accommodation” and “direct threat” were to be determined in a fact-intensive setting, most amenable to a jury, trial court judges have routinely decided those issues adversely to plaintiffs without sending them to the jury. This abuse of the jury process is inconsistent with the legal standard that is supposed to govern this area of the law.

Chapter 5 will examine ADA Title II. ADA Title II prohibits discrimination by state or local government. The constitutionality of the entirety of ADA Title II with respect to suits by private individuals against state actors remains in doubt following a recent but narrow Supreme Court decision that upheld the constitutionality of some of ADA Title II. This chapter will demonstrate how the Court’s decisions under ADA Title II have followed a pendulum—the Court interprets the statute broadly, then restrictively, and then more broadly. Further, the lower courts have put pressure on the Court to relax its narrow interpretations of ADA Title II. Because of various narrow interpretations of ADA Title II, state law is an important backup protection for many individuals with disabilities. Chapter 5 will argue, however, that state law typically provides very inadequate legal recourse for individuals with disabilities when they face discrimination by the state.

Chapter 6 will examine ADA Title III. ADA Title III prohibits discrimination at private entities such as restaurants, motels, and places of amusement. Although ADA Title III provides for a broad scope of coverage, it has a very limited enforcement mechanism. Typically, aggrieved individuals can sue only for injunctive relief and may not seek monetary damages. That limited enforcement scheme has provided few incentives for private entities to comply with the law.

To be a more effective enforcement mechanism for individuals with disabilities, the ADA would benefit from some modest statutory amendments. The definition of disability should be amended to clarify that individuals should be considered disabled even if mitigating measures can ameliorate some of their disabilities. Further, the enforcement scheme under ADA Title III should be amended to include monetary relief. Nonetheless, seeking to amend the ADA would be a poor political strategy because it would open up the statute to amendments that might further limit its effectiveness. Amending the ADA also might not markedly improve its effectiveness. If the problem with the ADA is judicial hostility, rather than poor drafting, then the amendment process is unlikely to solve the problems discussed in this book.

Chapter 7 examines the Supreme Court’s treatment of the ADA in the larger context of its treatment of Congress in the past decade. It concludes that the Supreme Court has “dissed” Congress in interpreting the ADA and other pieces of major legislation. The problem with the ADA’s failed promises, therefore, largely lies with the Supreme Court rather than Congress’s basic framework in enacting the ADA.

Before we can explore those assertions in depth, it is helpful to have a broad overview of the ADA. That overview follows.

I. From Insensitivity to Endorsement to Backlash

Congress first enacted modest disability rights legislation in the early 1970s, although active enforcement of those laws did not begin until at least 1978, when groups of individuals with disabilities began to stage sitins at federal buildings. Beginning in the 1980s, disability rights advocates sought to enact broad-based legislation that would accord civil rights to individuals with disabilities that would be comparable to those available to African Americans and women. For more than a decade, those efforts stalled because the disability rights community did not have sufficient support among the civil rights community or the political branches of government to attain such legislation. Many of its efforts were geared toward preventing the Reagan administration from dismantling the gains from the 1970s rather than moving forward with new legislation.

One jump-start for passage of broad-based disability rights legislation came from the insensitive remark by President Ronald Reagan, quoted at the beginning of this chapter. During the Bush-Dukakis presidential campaign in August 1988, rumors began to circulate from supporters of political extremist Lyndon H. LaRouche, Jr. that Governor Michael Dukakis had undergone psychiatric treatment during two stressful times in his life—when his brother died in 1973 after being hit by an automobile and when he lost the Democratic gubernatorial primary in 1978. In light of the negative public reaction to Senator Thomas Eagleton’s (DMo.) disclosure that he had received treatment for mental illness soon after he was chosen as Senator George McGovern’s (D-S.D.) running mate in the 1972 presidential campaign, these rumors were thought to be hurting the Dukakis presidential campaign. A reporter for a LaRouche-controlled publication, the Executive Intelligence Review, asked Reagan at a press conference what he thought about Dukakis’s refusal up to that point to give the public access to his medical records concerning his alleged treatment for mental illness. Reagan responded: “Look, I’m not going to pick on an invalid.”⁴ Reagan later said he had “attempted a joke” but “it didn’t work.”⁵ He never offered a full apology. Vice President (and presidential nominee) George H. W. Bush, at a visit to a defense plant in Annapolis, Maryland, said he was “not going to get drawn into this mini-controversy.”⁶ The media soon predicted that Reagan could hurt the presidential election campaign of Vice President Bush through such offhand and insensitive remarks.

After initially refusing to be drawn into the controversy, Vice President Bush responded on August 11, 1988, by urging Congress to enact the Americans with Disabilities Act.⁷ Although it is difficult to imagine that candidate Bush was aware of the fine details of the sweeping disability rights legislation then pending in Congress, he did make this campaign pledge. (Some people trace his support of disabilities rights legislation to the fact that his son Neil is dyslexic and his son Marvin had had a colostomy.)⁸ Following his inauguration as president, Bush instructed Attorney General Richard Thornburgh to work with Congress to pass major disability discrimination legislation. Reagan’s insensitive “invalid” comment, therefore, may have helped lead to George H. W. Bush’s support of the ADA.

For many reasons—both personal and political—Thornburgh took seriously his instructions from President Bush. Thornburgh’s son Peter had suffered a serious brain injury in a 1960 car accident, and Thornburgh and his wife, Ginny, thereafter became leading advocates for individuals with disabilities. As the parent of a child with a disability and the spouse of a partner who was very active in working on disability rights issues, Thornburgh was supportive of the president’s request. Moreover, the request permitted Thornburgh to increase his power base in the executive branch as he performed an important task at the request of the president.

Thornburgh worked with Congress and a group of dedicated disability activists to draft legislation that would be acceptable to both the disability and business communities. A year and a half later, Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990.

The story of the passage of the ADA is a story of unprecedented bipartisan support for civil rights legislation, as well as one of very close scrutiny by Congress. On May 9, 1989, Senator Tom Harkin (D-Iowa),⁹ along with 33 of his colleagues, introduced the ADA in the Senate as S. 933. The House version of the ADA—H.R. 2273—was introduced on the same day. The Senate Committee on Labor and Human Resources held four hearings on the bill. It reported the bill out on August 2, 1989, by a vote of 16 to 0. After two full days of debate, the Senate passed a version of the ADA on September 8, 1989, by a vote of 76 to 8.

More than twenty hearings were held on the ADA in the House. The Education and Labor Committee reported the bill out on November 14, 1989, by a vote of 35 to 0. The Energy and Commerce Committee reported the bill out on May 13, 1990, by a vote of 40 to 3. The Public Works Committee reported the bill out on April 3, 1990, by a vote of 45 to 5. The Judiciary Committee reported the bill out on May 2, 1990, by a vote of 32 to 3. The House passed this version of the ADA on May 22, 1990, by a vote of 403 to 20.

After two conferences convened to resolve differences between the Senate and House versions, the ADA passed Congress with overwhelming bipartisan support. The final vote in the House of Representatives was 377 to 28; in the Senate, 91 to 6. Unlike the Civil Rights Act of 1964, it faced neither serious opposition nor a threat of filibuster. Democratic Senator Edward M. Kennedy (Mass.)¹⁰ heralded the ADA as an “emancipation proclamation” for people with disabilities;¹¹ Republican Senator Orrin Hatch (Utah) called the act “the most sweeping piece of civil rights legislation possibly in the history of our country.”¹² As the chapter’s first epigraph suggests, President Bush signed the ADA into law with the hope that it would be a model for the world. The political climate within the executive branch had changed markedly concerning disability issues within a several-year period.

The United States has been a worldwide leader in enacting a broad bill of rights for individuals with disabilities. Other countries, such as Great Britain, Australia, and Canada, have also enacted nondiscrimination statutes but none of these protections are as comprehensive as those found in the ADA.¹³ The U.S. Congress applied the disability nondiscrimination standards that had existed for the public sector under Section 504 of the Rehabilitation Act to the private sector when it enacted the ADA. It also used the racial nondiscrimination standards found in Titles II and VII of the Civil Rights Act of 1964 as models in drafting many of the nondiscrimination provisions found in the ADA. The ADA benefitted from our experience in enforcing prior disability nondiscrimination statutes, as well as racial nondiscrimination statutes.

Despite the high hopes that surrounded the enactment of the ADA, its passage soon produced a public backlash. Following a few years of enforcement activity, columnist Ruth Shalit reported in the New Republic that the ADA has created a “lifelong buffet of perks, special breaks and procedural protections” for people with questionable disabilities.¹⁴ A senior editor at Reader’s Digest asserted that plaintiffs “have used the ADA to trigger an avalanche of frivolous suits clogging federal courts.”¹⁵ Similarly, author Walter Olson complained that the ADA has the potential “to force the rethinking and watering down of every imaginable standard of competence, whether of mind, body, or character.”¹⁶

The media barrage against the ADA caused some people to think that the ADA was producing an inappropriate windfall for disability plaintiffs and their lawyers. As we will see in chapter 3, there is, in fact, no empirical support for such a conclusion. Hence, the U.S. Commission on Civil Rights has blamed “misleading and sometimes inaccurate news coverage” for the public’s negative perception and “gross misunderstanding” of the ADA.

The Supreme Court has interpreted the ADA narrowly, often disappointing the disability rights community. Narrow judicial interpretations of the term “individual with disability” have limited the applicability of the act. Decisions protecting states’ rights have exempted the public sector from coverage. These decisions have been contrary to Congress’s intentions in passing the ADA.

Rather than take responsibility for narrowing the reach of the statute beyond what was envisioned by Congress, Justice Sandra Day O’Connor has criticized the drafters of the ADA for writing an ambiguous statute. She said that the ADA is an example of what happens when a bill’s “sponsors are so eager to get something passed that what passes hasn’t been as carefully written as a group of law professors might put together.”¹⁷ Justice O’Connor made those remarks at Georgetown Law School. Georgetown’s Professor Chai Feldblum, who clerked for Supreme Court Justice Harry Blackmun during O’Connor’s tenure on the Court a...