Chapter 1

On July 26, 1990, President George Bush signed the Americans with Disabilities Act into law.[2] The ADA provides a host of civil rights protections for individuals with disabilities. The law seeks to ensure for people with disabilities rights such as equal opportunity in employment,[3] full accessibility to government services,[4] public accommodations,[5] telecommunications;[6] and meaningful methods of enforcing those rights.[7] These rights were not always provided, but they have evolved over time.

Historically, in a culture that values a strong mind and body, people with disabilities were viewed by some as deficient and inferior.[9] In colonial America, persons with disabilities were seen as part of the deserving poor and were accepted by their communities.[10] But with the 19th century industrial and market revolution, individuals with disabilities were deemed unable to compete in America's industrial economy and were consequently spurned from society.[11] Early historical accounts describe killing and abandoning imperfect children and adults.[12] People with disabilities were considered weak and unable to contribute to the welfare of the community.[13] Sometimes, they were thought to possess supernatural powers or to be under the influence of Satan.[14] In short, [t]he history of society's formal methods of dealing with handicapped people can be summed up in two words: segregation and inequality. [15]

Before the ADA, most of the nation's disability policies were premised on what has been termed a medical or charity model of disability.[16] In essence, disability laws were enacted to rehabilitate individuals with disabilities because of their perceived inferiority and deficiencies.[17] The primary motivation for rehabilitating people with disabilities was to increase national production and decrease welfare spending.[18] Once these individuals were rehabilitated, they were hired to perform menial jobs in sheltered workshops.[19] In the 1970s and 1980s, however, the public and Congress began to change their perceptions of individuals with disabilities.[20] Following the civil rights movement and protests by persons with disabilities, access to mainstream America was recognized as a fundamental right deserved by all, including persons with disabilities.[21] The focus of legislation for individuals with disabilities shifted from rehabilitation to promotion of their civil rights.[22] Congress moved away from the medical/charity model and incorporated a civil rights model by enacting legislation for people with disabilities.[23]

The basic principle underlying the medical/charity model is that a disability is an infirmity that can only be properly addressed by doctors and rehabilitation professionals who attempt to cure or fix the person with a disability.[24] According to this model, the problem of disability resided in the individual, who must be rehabilitated and returned to gainful employment.[25]

The trend in America during the 19th century was to rehabilitate individuals with disabilities to facilitate their entry or re-entry into the work force.[26] Originally, many of these vocational programs were sponsored by charitable organizations, such as the Salvation Army and the Red Cross, whose primary concern was to provide therapeutic treatment and secure employment for persons with disabilities.[27] As a result of these charitable efforts, people with disabilities were placed in sheltered workshops that employed persons with disabilities exclusively.[28] Because charitable groups influenced the formation of the first vocational rehabilitation act, many believed that the services provided under it were based upon federal charity.[29] In the public's view, this charitable congressional act made nonproductivity by persons with disabilities inexcusable.[30] A 1945 publication noted, With these comprehensive rehabilitation services, if an individual with a disability remains at a disadvantage . . . it will be the fault of that man and his family and his community, in failing to take advantage of the abundance that is provided. [31]

Following the rise of a mechanized society and the resulting high incidence of workplace injuries, the states and the federal government began providing vocational training to injured workers.[32] Initially, states offered financial compensation as well as medical treatment for injuries sustained on the job, but employees with serious injuries required more comprehensive assistance.[33] Thus, restoration of these injured workers to some form of remunerative employment became a national priority.[34] As states enacted legislation to implement vocational rehabilitation programs for injured workers, there was a mass return of injured veterans from World War I.[35] These events prompted Congress to believe that national laws were necessary to govern the rehabilitation of individuals with disabilities,[36] leading to the following laws:

This law was enacted in 1918 to provide for vocational rehabilitation and return to civil employment of disabled persons discharged from the military or naval forces. [37] The act was designed to help the veteran with a disability overcome his disability and seek competitive employment.[38]

This act was signed into law in 1920 by President Woodrow Wilson as the first federal civil vocational rehabilitation act for individuals with disabilities who were not war veterans.[39] The purpose of this act was to provide vocational training, job placement, and counseling by trained professionals to persons who, by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury, or disease [are], or may be expected to be, totally or partially incapacitated. [40] The act covered congenital disabilities, a condition not covered in its predecessor the Smith-Sears Act. The fact that people born with disabilities, not just injured war veterans, were covered under the act illustrated Congress beginning appreciation for all people with disabilities. At the same time, however, the absence of a provision regarding societal discrimination in the language of the bill underscores the continued belief that the lack of participation of people with disabilities in employment and other areas was due to their limited capabilities.[41]

The Randolph-Sheppard Vending Stand Act authorized blind people to operate vending stands on federal property in order to become self-sufficient and to enlarge the opportunities of the blind. [42] While the act provided employment for persons with disabilities, they still were not being integrated into the competitive work force.[43] Rather, they were provided jobs without opportunity for promotion or use of skills.[44] According to one legal commentator, the act reinforced the view of federal charity, as the government provided the equipment and allowed blind vendors to sell their merchandise on federal property.[45]

The civil rights model is based largely on the civil rights movement of the 1950s and 1960s and views society, rather than the individual with a disability, as defective.[46] This model pursues a level playing field, or equality of opportunity, through aggressively securing access to, and independence in, all aspects of society. [47] The passage of the Civil Rights Act of 1964,[48] which prohibited discrimination based on race, color, religion, national origin, and sex, was a major inspiration for the concept of similar protection for people with disabilities.[49] Generally, the 1964 act prohibits discrimination in public accommodations,[50] federally funded programs,[51] and employment.[52] Although the act was instrumental in guaranteeing civil rights to minorities and women, there was no reference to persons with disabilities. Consequently, a disability rights movement developed in the tradition of the 1960's social movements.[53] Persons with disabilities pushed the need for their own civil rights law to the forefront of the legislative arena and in the minds of the American public. Slowly there was a shift away from the medical/charity model to the civil rights model in drafting legislation for individuals with disabilities.

As part of this new movement, the concept of independent living for individuals with disabilities was championed. A small group of students with disabilities at the University of California at Berkeley inspired this concept, as they tried to develop resources and supports to enable themselves to live independently in the community.[54] At the core of the independent living philosophy is a conviction that people with disabilities desire to lead the fullest lives possible, outside of institutions, integrated into the community, exercising full freedom of choice. [55] The concept has been incorporated into a number of federal statutes.[56] In fact, the traditional rehabilitation statutes have been restructured to encompass a wide range of independent living services not limited to vocational and employment goals.[57] These services range from information and referral services to mobility training, transportation, and social and recreation services.[58] In order to provide these services, federal statutes mandate local centers for independent living and statewide independent living councils in each state.[59]

Initially, there were sporadic, unsuccessful attempts to remedy alleged disability discrimination through court litigation. For example, in 1965, a schoolteacher sued the New York City public school system after he was excluded from a teaching position because of his blindness.[60] The New York state court ruled the school board was authorized to disqualify teaching applicants based on vision requirements.[61]

During the late 1960s and early 1970s, complainants were more successful in challenging discrimination against people with disabilities. In 1969, a Utah court applied the principles of equal educational opportunity established in Brown v. Board of Education[62] to people with disabilities, holding that the exclusion of two mentally retarded children from the Utah public schools was unconstitutional.[63] This decision sparked a nationwide onslaught of similar lawsuits, including claims of disability discrimination in transportation, guardianship, housing, medical services, sterilization, contracts, voting, and confinement in residential treatment facilities.[64]

In 1985, the Supreme Court handed down a pivotal decision in Cleburne v. Cleburne Living Center, Inc.[65] In determining whether a state zoning ordinance could legally exclude a group home for persons with mental retardation, the Supreme Court held that the ordinance was unconstitutional.[66] The Court, however, did not find individuals with disabilities were a quasi suspect class ; instead, it applied the minimum level of judicial scrutiny for an equal protection analysis: state legislation must only be rationally related to a legitimate governmental purpose.[67] The Court recognized that individuals with mental retardation are different, immutably so, in relevant respects, [68] but concluded that laws distinguishing between persons with mental retardation and others are not subject to heightened scrutiny by the judiciary.[69]

Most disability discrimination cases were brought under the due process and equal protection guarantees of the United States Constitution, and any success was limited to government-sanctioned discrimination. Private discrimination remained and could not be judicially challenged.[70]

Although attempts to amend the Civil Rights Act of 1964 to address disability discrimination were unsuccessful, other federal nondiscrimination measures on behalf of people with disabilities were enacted from the late 1960s to the 1980s. This section highlights some of the key legislation passed during this period to attempt to provide individuals with disabilities access to all facets of community life.

One of the first pieces of disability legislation incorporating a civil rights approach was the Architectural Barriers Act of 1968.[71] The act required that all new facilities built with public money or those newly renovated be accessible to people with disabilities.[72] The law applied only to new facilities owned or leased by the federal government.[73] Existing facilities were not affected and most remained inaccessible to people with disabilities. Furthermore, the act contained no provisions for enforcement, and compliance by federal agencies was inconsistent.[74] To help ensure compliance, in 1973, Congress created the Architectural and Transportation Barriers Compliance Board (Access Board).[75] In 1978, the Access Board was given authority to establish minimum guidelines and requirements for federal accessibility standards.[76] The Access Board jointly, with other federal agencies, issued Uniform Federal Accessibility Standards, which established a single set of standards for accessibility to all buildings subject to the act's requirements.[77]

In response to the long history of segregation and exclusion of children with disabilities from the American public school system, Congress enacted the Education for All Handicapped Children Act (EAHCA) in 1975.[78] In 1990, the EAHCA was renamed the Individuals with Disabilities Education Act (IDEA).[79] The 1990 law set forth a comprehensive scheme for ensuring two basic substantive rights of eligible children with disabilities: (1) the right to a free appropriate public education,[80] and (2) the right to that education in the least restrictive environment.[81] The act provides federal grants for state and local education agencies on the condition that they meet these two principal criteria and others enumerated in the act.[82] The IDEA was reauthorized and amended in 1997 to clarify and strengthen the act's provisions.[83] For instance, the new emphasis of the law focuses on strengthening the role of parents, ensuring access to the general education curriculum and reforms, and giving increased attention to racial, ethnic, and linguistic diversity to prevent inappropriate identification and mislabeling of students.[84] In its January 2000 report, Back to School on Civil Rights, the National Council on Disability (NCD) found that over the past 25 years states have not met their general supervisory obligations to ensure compliance with the core civil rights requirements of the IDEA.[85] In addition, the NCD found that federal efforts to enforce the law have been inconsistent and ineffective.[86]

This act provides federal funding for care and treatment programs for people who are considered to have developmental disabilities. [87] Pursuant to the act, a developmental disability is a severe life-long disability that manifested before age 22, impairs the functioning of a major life activity, and necessitates extended care or treatment.[88] The act is unique in that it includes a Developmental Disabilities Bill of Rights, [89] which declares that people with developmental disabilities have a right to appropriate treatment, services, and habilitation that maximize the developmental potential of the individual and . . . [that provide] . . . the setting that is least restrictive of the individual's personal liberty. [90] Contrary to the language of the bill, the aforementioned rights were declared unenforceable by the Supreme Court and, therefore, not directly binding on states.[91] The declaration of rights does, however, represent Congress clear preference for the types of services to be provided and the manner in which they should be provided to individuals with developmental disabilities.

This act authorizes the U.S. Attorney General to investigate conditions of confinement of a state or a political subdivision thereof, such as state mental institutions, publicly operated nursing homes, jails, and juvenile detention centers.[92] The act's purpose is to uncover egregious or flagrant conditions . . . causing . . . persons to suffer grievous harm. [93] Furthermore, such conditions must be pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities [protected by the Constitution and other federal laws]. [94] If the Attorney General has reasonable cause to believe that the act has been violated, he or she may initiate a civil suit.[95]

This act amended the Federal Aviation Act to prohibit discrimination against people with disabilities by all air carriers.[96] The act received attention after the National Council on Disability issued a February 1999 report on the overall enforcement of civil rights laws for air travelers with disabilities.[97] The NCD found that the act was ineffective, that public education efforts on the needs and legal rights of air travelers with disabilities were inadequate, and that there was not enough money or staff at the Department of Transportation dedicated to investigating complaints.[98] Although the report recognized improvements in airline access since the act s creation, it noted that air travelers with disabilities continue to encounter frequent, significant discrimination.[99]

This statute was designed to improve access for elderly people and individuals with disabilities at registration facilities and polling places for federal elections.[100] Pursuant to the act, political subdivisions must ensure that a reasonable number of accessible voter registration facilities exist; and that registration and voting aids are available, including posting voting instructions in large print and providing telecommunications devices for the hearing impaired.[101]

These amendments expanded the enforcement provisions of Title VIII of the Civil Rights Act of 1968[102] often referred to as the Fair Housing Act to prohibit discrimination based on race, color, religion, and national origin when selling or renting private housing. The Fair Housing Amendments Act (FHAA) is one of the first major, substantive federal civil rights laws to prohibit discrimination on the basis of a disability by private entities.[103] The act establishes a requirement that housing providers make reasonable accommodations in rules, policies, practices, or services when necessary to afford a person with a disability an equal opportunity to use and enjoy housing.[104] The FHAA also provides that a person with a disability cannot be prohibited from making reasonable modifications in a dwelling at his or her own expense if it is necessary for full enjoyment of the premises.[105]

Earning wages is essential to feelings of pride, self-confidence, and independence. The employment of individuals with disabilities enriches the lives of those employed, and it benefits society to have an infusion of workers with various skills and talents. Over the years, Congress has become increasingly aware that to truly increase the employment of people with disabilities, efforts have to extend beyond rehabilitation. While there is a well-established system to support people with disabilities in dependency, there is relatively little support for their efforts to be independent. Following is a list of key legislation that exemplifies this essential shift from fostering dependency to promoting independence in all facets of life, particularly in employment.

In response to the growing notion that people with disabilities had a civil right to social participation, Congress sought to extend the Vocational Rehabilitation Act[106] beyond its traditional employment focus by identifying ways to improve the overall lives of persons with disabilities.[107] The new law's purpose was to extend rehabilitation to all persons with disabilities, provide for extensive research and training for rehabilitation services, and coordinate federal disability programs.[108] More importantly, the act would include a nondiscrimination provision and mandate to every federal agency to establish an affirmative action plan to encourage the hiring, placement, and promotion of individuals with disabilities.[109]

After passing the Congress twice and being vetoed by President Nixon each time, the act was finally signed into law on September 26, 1973.[110] Although the act fell short of original congressional intent, it proved to be a significant law for people with disabilities.[111] In addition to continuing the federal vocational rehabilitation program, the Rehabilitation Act of 1973 included several new initiatives designed to expand rights and opportunities for people with disabilities.

Patterned generally after Title VI of the Civil Rights Act of 1964[112] and the proposed 1971 amendment to the Civil Rights Act,[113] Section 504 of the Rehabilitation Act states that [n]o otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. [114] According to one disability historian, Richard K. Scotch, this section transformed federal disability policy by conceptualizing access for people with disabilities as a civil right rather than as a welfare benefit [115] a concept rejected in the previous year when legislators fought to include disability as a prohibited ground for discrimination under Title VI.

The purpose of the remaining sections of the Rehabilitation Act is to further equal rights for individuals with disabilities. Section 501 requires affirmative action hiring and advancement programs for federal agencies.[116] Section 503 places an analogous duty on federal government contractors and requires businesses having federal contracts of $10,000 or more to affirmatively hire and advance qualified individuals with disabilities.[117] Pursuant to Section 502, the Architectural and Transportation Barriers Compliance Board (Access Board) was established.[118] The Access Board issued guidelines for accessible designs and through its subsidiary agencies, a uniform set of standards for accessibility of all buildings subject to the act's requirements was issued.[119] To ensure compliance with these guidelines, the Access Board brings administrative actions and lawsuits and conducts studies.[120]

The Department of Health, Education, and Welfare (HEW) was responsible for issuing regulations to interpret and implement Section 504.[121] Prior to implementation of the regulations, Congress enacted the Rehabilitation Act Amendments of 1974,[122] a series of amendments clarifying the new law. Most importantly, the amendments used a new civil rights-oriented definition for a handicap or disability. In recognizing that people with disabilities face attitudinal and physical barriers in their daily lives, Congress redefined handicapped individual as one who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such impairment, or (C) is regarded as having such an impairment. [123] This new definition placed a greater emphasis on the cultural effects of having a disability, recognizing that people who were previously disabled or appear to be disabled face discrimination. This definition is currently used as the primary definition of disability in federal legislation, including the ADA.

There was a substantial delay by three consecutive administrations before HEW issued the regulations implementing and interpreting the Rehabilitation Act. This delay was due, in part, to the absence of an expressed mandate to issue regulations.[124] The process to develop Section 504 regulations was further delayed by administrative inaction, presidential replacements, and unusual rulemaking procedures.[125] To protest the delay, members of the disability community organized large-scale demonstrations to attract national attention to the absence of Section 504 regulations.[126]

On April 28, 1977, Section 504 regulations were finally issued.[127] These regulations established legal standards for nondiscrimination uniquely suited to the civil rights needs of persons with disabilities, which would later be replicated in the ADA. The regulations recognized that ending discrimination for persons with disabilities meant taking proactive steps to remove barriers and making reasonable accommodations.[128] Additionally, the regulations balanced this need against a limit of undue hardship for the federal agencies and contractors covered by the regulations.[129]

The ADA was enacted in July 1990,[130] 17 years after the passage of the Rehabilitation Act of 1973. In enacting the ADA, Congress acknowledged the history of isolation and segregation of people with disabilities.[131] The act recognizes that the disabled community is subject to discrimination in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. [132] It is hailed as the first comprehensive civil rights legislation for people with disabilities.[133] Nonetheless, some critics believe that the ADA is not as effective as it should be and that productivity, rather than constitutional rights, is the backbone of American policy regarding people with disabilities. [134]

The ADA was borne out of the ideals encompassed in the Civil Rights Act of 1964 and the Rehabilitation Act of 1973[135] that all people should be treated equally and fairly. There could be no ADA without them. [136] However, a carte blanche application of legal standards from these civil rights laws to the disability context seemed inappropriate.[137] Applying these prior statutes exposed their weaknesses, which arose from their statutory language, limited coverage, inadequate enforcement mechanisms, and erratic judicial interpretations.[138]

The National Council on Disability[139] was the first organization to draft a federal legislative proposal that attempted to remedy the flaws of previous disability statutes. The NCD was initially established in 1978 as an advisory board within the Department of Education.[140] In 1984, it was transformed into an independent federal agency, led by 15 members appointed by the President of the United States and confirmed by the U.S. Senate.[141] Generally, the NCD is responsible for making recommendations to the President and Congress on issues affecting Americans with disabilities.[142] To meet this objective, the NCD is required to submit an annual report to the President and Congress.[143] While many government agencies deal with issues and programs affecting people with disabilities, the NCD is the only federal agency charged with addressing, analyzing, and making recommendations regarding disability policy.[144]

In its draft proposal of the ADA, the NCD sought to facilitate independence through equal participation while reducing dependence on government and federal outlays.[145] In drafting the ADA proposal, NCD members took care not to recommend funding increases, a strategy that was successful in securing passage of the ADA during a fiscally conservative administration.[146] Although most congressional members supported the concept of a civil rights bill for persons with disabilities, the passage of the ADA was fraught with delay and intense debate over certain provisions. After much strategizing, lobbying, and nationwide consumer forums, as well as the endorsement of President Bush, the ADA was finally enacted.

Throughout the 1980s, the disability community recorded an impressive string of judicial and legislative victories.[147] One of the crowning achievements was the 1986 National Council on Disability report, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities With Legislative Recommendations. The report was the result of a congressional mandate requiring the NCD to produce a comprehensive analysis of federal disability programs and policy by February 1, 1986.[148]

Toward Independence was intended to meet a dual concern: minimizing the federal cost of disability while improving the lives of individuals with disabilities.[149] In meeting its mandate, the NCD presented 45 legislative recommendations in 10 broad topic areas.[150] The first recommendation was that Congress enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap. [151] To make the concept more palatable to reluctant NCD members and ultimately to the Reagan administration, the NCD presented the issue as an equal opportunity law rather than civil rights. [152] The former promoted independence and self-reliance while the latter was more reminiscent of affirmative action.[153] The NCD also suggested a name for the proposed statute the Americans with Disabilities Act.[154]

The report was widely disseminated and well received by the disability community and President Reagan.[155] More than 20,000 copies of the report were distributed to legislators, government officials, disability advocates, and disability organizations.[156] Although virtually every issue and recommendation presented by the NCD had been initiated or proposed at state and local levels, Toward Independence was novel in that it represented a proposal for a national, comprehensive approach to disability policy.[157] The proposal came with a thorough explanation for why such an approach was necessary to facilitate the employment and general life satisfaction of persons with disabilities, and what the law should entail.[158]

The Toward Independence report specified that the law should prohibit discrimination by the federal government, recipients of financial assistance, federal contractors and subcontractors, private employers, housing providers, places of public accommodation, persons and agencies of interstate commerce, transportation providers, insurance providers, and state and local governments.[159] Unlike previous nondiscrimination employment statutes aimed at protecting individuals with disabilities, the draft proposal for the ADA applied to private entities.[160] The legislative proposal also included a reasonable accommodation requirement and affirmative steps to eliminate barriers.[161]

Despite the widespread approval of Toward Independence, it remained only a potential solution.[162] The next hurdle would be putting it on the federal legislative agenda. To underscore the desperate need for an equal opportunity law for persons with disabilities, the NCD joined Louis Harris & Associates and the International Center for the Disabled (ICD) in undertaking a national poll to document how a disability affected a person's ability to participate in life and the community.[163] The nationwide survey was based on 1,000 telephone interviews with noninstitutionalized persons with disabilities aged 16 and older. It was the first comprehensive survey of persons with disabilities that solicited their perceptions of their own quality of life.[164] The poll was published in March 1986, a month too late for inclusion in Toward Independence.[165] Nonetheless, it provided concrete examples of problems encountered by persons with disabilities, particularly in gaining employment.[166] The correlation between employment and life satisfaction was startling.[167] Ultimately, these findings were a ringing endorsement of initiatives to help individuals with disabilities find work.[168] The survey bolstered the recommendations presented in Toward Independence and provided a useful guide for policy development.[169]

While some of the NCD's recommendations were acted on in short order, the proposal for an Americans with Disabilities Act did not result in any prompt legislative action.[170] Consequently, in its 1988 follow-up report, the NCD took the unusual step of publishing its own draft bill.[171] Robert Burgdorf, one of the primary contributors to Toward Independence, drafted a preliminary legislative proposal in the form of an equal opportunity law called for in Toward Independence.[172]

Groups advocating in behalf of individuals with disabilities were instrumental in getting the proposed ADA on the legislative agenda and securing its passage through both houses of Congress. For example, to foster support for the legislative proposal, an informal ADA coalition began to form in Washington, D.C.[173] A number of individuals and variety of organizations formed the coalition.[174] The ADA coalition conducted many of its activities under the auspices of the Consortium for Citizens with Disabilities (CCD).[175] The CCD is a coalition of approximately 100 national disability organizations working together to advocate for national disability policy.[176] Members of the Disability Rights Education and Defense Fund, the Epilepsy Foundation of America, and the National Association of Protection and Advocacy Systems served as coalition leaders.[177] To educate members of Congress about living with a disability, the coalition relied on organizations, such as the Spina Bifida Association, United Cerebral Palsy Associations, the National Association of Developmental Disabilities Councils, and the Paralyzed Veterans of America.[178]

During the spring of 1987, Mr. Burgdorf and others began holding brainstorming sessions with key persons in the disability community to gain their input and facilitate the drafting of the ADA.[179] Two issues caused discord throughout the disability community in drafting the ADA. The first issue was whether health insurance should be included in the act.[180] In most cases, persons with disabilities could not find affordable health care, and this was particularly true if they did not receive federal disability benefits.[181] To some disability advocates, such as the CCD, health insurance was not a right afforded any other group, and providing this new right to a select group of people may alienate persons in the civil rights community.[182] Passage of the ADA would require the full support of the civil rights community, so it was important to advocate the same protections as those afforded to other federally protected groups.[183] Ultimately, the health care provision was omitted from the ADA draft.[184] The second issue that arose was whether to include the affirmative action provisions of Sections 503 and 504 of the Rehabilitation Act[185] in the ADA. In light of the protracted battle to secure the Section 504 regulations and the subsequent attempt to change the regulations by President Reagan's Task Force on Regulatory Relief, the CCD feared that the inclusion of these provisions in the ADA would mean an administration unfriendly to disability rights could substantially rewrite and weaken them. [186] Thus, Sections 503 and 504 provisions were excluded from the proposed ADA.[187]

For congressional sponsorship, the NCD approached Senator Lowell Weicker (R-CT), one of the disability community's greatest advocates in the Senate.[188] Senator Weicker had a son with Down syndrome and had played a pivotal role in securing the NCD s reauthorization in 1983.[189] In November 1987, the NCD secured the sponsorship of Senator Weicker.[190] Congressman Tony Coelho (D-CA), an advocate of disability rights and a person with epilepsy, cosponsored the bill in the House.[191] Senator Tom Harkin, chairman of the Subcommittee on the Handicapped, was also solicited for his support because his subcommittee would likely have jurisdiction over the bill in the Senate.[192] As planned, the bill was introduced simultaneously in both houses. On April 28, 1988, Senator Weicker introduced the Americans with Disabilities Act,[193] stating that discrimination based on handicap was just as intolerable as other types of discrimination that our civil rights laws forbid. [194] The following day, on April 29, 1988, Representative Coelho introduced the same measure in the House.[195]

During the congressional hearings of the 100th Congress, the unanimous sentiment among the witnesses was that people with disabilities struggled with unequal opportunities; and they confronted not only the challenges of their impairments, but also the physical barriers society erects.[196] Some of the testimonials described how registered persons with disabilities were turned away from voting booths because they did not look sufficiently competent to vote, a college student was denied her graduation because college officials deemed her psychologically unfit, and a disability advocate met his untimely death attempting to cross an intersection without curb cuts.[197] In the end, a record of disability discrimination was established, but the 100th Congress expired before either house of Congress took action on the proposed legislation.

Before its reintroduction in the 101st Congress, the ADA bill was substantially revised. During the following two years, Congress held numerous hearings on the ADA. The testimony presented at these hearings, as well as comments by House Representatives and Senators, provided persuasive evidence of the need to promote positive change in the lives of people with disabilities.[198] Nonetheless, there were heated debates about certain proposed provisions of the ADA. The two dominant reservations about the act were cost and litigation.[199] The vagueness of the language was cited as a problem by businesses. Because words such as undue hardship were inadequately defined, businesses argued that they would not know whether they were in compliance, which would ultimately invite frivolous lawsuits.[200] Cost was an issue because the ADA, unlike other civil rights legislation, required businesses and employers to spend money on accommodations and modifications.[201] Small businesses argued that they should be exempt from the public accommodations requirements, or at least be phased in more gradually, as small businesses were exempt from other civil rights legislation.[202] Numerous covered entities also lobbied to have a more concrete definition of disability that listed every covered disability.[203]

In June and July 1989, Senate leaders and the White House attempted to craft a bipartisan compromise bill.[204] The breakthrough compromise, which facilitated agreement on other issues, was an agreement regarding public accommodations and remedies for violation of the public accommodations provisions.[205] The legislative proposal covered a wider scope of public accommodations than other civil rights legislation.[206] Furthermore, the remedies provided pursuant to the draft bill included compensatory and punitive damages.[207] Senate leaders agreed to restrict the public accommodations remedies to the standards of the Civil Rights Act of 1964 in exchange for the administration s consent to apply the ADA to a broad spectrum of public accommodations.[208] Other agreements followed to ensure passage of the ADA. For example, with respect to employment, negotiators incorporated a two-year delay of the effective date for businesses with 25 or more employees.[209] To allay fears about the inclusion of mental disorders and disorders with a moral content, the Senate included in the definition of disability a list of specific conditions or impairments that would not be covered under the proposed bill.[210] After winning President Bush's endorsement, the ADA passed the Senate on September 7, 1989, by a count of 76 to 8.[211]

House consideration of the ADA was more difficult and time consuming, in part, because the bill had to go to four committees and six subcommittees.[212] In contrast to the rapid action in the 101st Senate, the House took almost nine additional months to review and refine the bill. House deliberations were fraught with vigorous lobbying efforts by the business community and staunch partisanship.[213] One of the most controversial amendments to reach the floor was introduced by Congressman Jim Chapman (D-TX). This proposed amendment, known as the Chapman amendment, would enable employers to remove persons with contagious diseases, such as AIDS, from food-handling positions.[214] While supporters of the amendment conceded that there was no known evidence that AIDS could be transmitted through food handling, the House initially voted to support the exclusion of persons with contagious and communicable diseases from food-handling positions.[215] Ultimately, the measure was defeated and replaced with a compromise amendment introduced by Senator Orrin Hatch (R-UT). Commonly referred to as the Hatch amendment, this amendment relied more on science as the basis for decisionmaking.[216] The Hatch amendment proposed that the Secretary of Health and Human Services prepare an annual list of communicable and contagious diseases that were transmitted through food handling.[217] Restaurant operators then would be able to insist that anyone with a disease on that list be removed from food-handling positions.[218] On May 22, 1990, both parties in the House passed the bill overwhelmingly with 95 percent of those voting supporting the measure.[219]

President Bush signed the Americans with Disabilities Act on July 26, 1990.[221] To meet the goal of a universal ban on discrimination against persons with disabilities, Congress enacted five separate titles[222] to prohibit the discrimination enumerated in the ADA's findings.[223] Through efforts to eliminate discrimination, the act strives to ensure equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.[224]

Title I of the act bans discrimination against persons with disabilities in employment.[225] The term employer means a person engaged in an industry affecting commerce who has 15 or more employees.[226] To strike a balance between the rights of individuals with disabilities and the legitimate interests of businesses, there were various phase-in provisions in the ADA.[227] For example, the employment provisions did not take effect for two years following the effective date of the act, for an employer with 25 or more employees.[228] Four years from the act's effective date, coverage was extended to employers with 15 or more employees.[229]

The ADA defines a disability as (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) a record of such impairment, or (3) being regarded as having such an impairment.[230] The person seeking enforcement of the act must be a qualified individual with a disability, meaning an individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires. [231] A qualified individual with a disability does not include an employee or applicant who is currently engaging in the illegal use of drugs.[232]

Pursuant to the act, [n]o covered entity shall discriminate against a qualified individual with a disability because of the disability. [233] This nondiscrimination provision includes making reasonable accommodations. An employer's obligation to provide reasonable accommodation may include:

Employers are not required to make a reasonable accommodation if they can demonstrate that the accommodation would impose an undue hardship on the operation of the business. [235] In addition, businesses may utilize practices that have a discriminatory effect on persons with disabilities if their actions are job related to the position in question and consistent with business necessity, as long as such practices cannot be accomplished by reasonable accommodation.[236] Another defense available to businesses is direct threat. [237] An employer does not have to accommodate an individual who poses a direct threat to the health and safety of others in the workplace.[238]

The purpose of Title II of the ADA is to extend the protections of Section 504 of the Rehabilitation Act to all programs, activities, and services of state or local governments, regardless of the receipt of federal financial assistance.[239] It prohibits discrimination by state and local governments and requires that they ensure all activities, programs, and public transportation services they provide are accessible to persons with disabilities.[240] The act states that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [241] The Department of Justice, which issued implementing regulations for this title in 1991,[242] notes that Title II coverage applies to Executive agencies within state and local governments as well as to activities of the legislative and judicial branches of state and local governments. [243] All government activities of public entities are covered, including those carried out by contractors.[244]

Title II also includes detailed provisions that apply to public transportation systems, including commuter authorities.[245] These provisions resolve some of the controversial and contentious issues regarding accessibility standards for public transportation systems.

This title is particularly important for individuals with psychiatric disabilities. Pursuant to the regulations implementing Title II provisions, a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. [246] In terms of persons with disabilities, this provision mandates that they are not automatically placed in institutions, but in a setting that suits their individualized needs and is conducive to their full participation in community life.

Title III covers public accommodations and services operated by private entities.[247] Its operative provisions provide that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. [248] Although Title III provisions can be traced to the public accommodations provisions of the Civil Rights Act of 1964, the ADA's concept of public accommodations is broader.[249] The 12 covered entities, which range from a hotel to a park, cover almost every facet of American life in which a business or other entity serves or comes into contact with members of the public.[250]

Title IV provisions pertain to two kinds of telecommunications services: telephone transmissions and television public service announcements.[251] Regarding telephone transmissions, the act amends Title II of the Communications Act of 1934,[252] to make available to all individuals . . . a rapid, efficient nationwide communication service . . . and to ensure that interstate and intrastate telecommunications relay services are available . . . and in the most efficient manner, to hearing-impaired and speech-impaired individuals. [253] In addition, this title amends Section 711 of the Communications Act to require closed captioning[254] for any television public service announcement that is produced or funded in whole or in part by an agency or instrumentality of the federal government.[255]

Title V contains miscellaneous provisions clarifying the ADA's relationship to other laws.[256] This title broke new ground when it extended coverage to Congress and federal legislative branch agencies.[257] At the time of the ADA's passage, no other law provided for similar coverage.[258] The act not only provided unprecedented coverage of the Senate and House of Representatives, but also provided that the protections provided pursuant to this Act, the Civil Rights Act of 1964, the Civil Rights Act of 1990, the Age Discrimination in Employment Act of 1967, and the Rehabilitation Act of 1973 shall apply with respect to employment by the United States Senate. [259] In essence, the Senate became subject to four laws upon the ADA's enactment while the House became subject only to the ADA. Title V also contains provisions that prohibit discrimination, coercion, threats, or interference directed at a person who seeks to exercise rights under the act or who testifies or otherwise participates in any investigation or proceeding under the act.[260]

[1] President George Bush s Remarks on Signing the Americans with Disabilities Act of 1990, Public Papers of the Presidents of the United States, George Bush (Washington D.C.: National Archives and Records Administration, 1990), book 2, p. 1071 (hereafter cited as President Bush's Signing Statement).

[2] Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. 12101 12213 (1994)).

[3] 42 U.S.C. 12111 12117.

[4] 42 U.S.C. 12131 12165.

[5] 42 U.S.C. 12181 12189.

[6] 47 U.S.C. 225 (1994).

[7] 42 U.S.C. 12117, 12133, 12188.

[8] Matthew Diller, Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Disability Benefit Programs, Texas Law Review, vol. 76 (1998), p. 1013 (citing Alan Gartner and Tom Joe, eds., Images of the Disabled, Disabling Images, 1987, p. 2).

[9] Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, UCLA Law Review, vol. 40 (1993), pp. 1341, 1343 (hereafter cited as Drimmer, Cripples, Overcomers ).

[10] National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, 1997, p. 5 (hereafter cited as NCD, Equality of Opportunity).

[11] Ibid.

[12] Drimmer, Cripples, Overcomers, p. 1359.

[13] Ibid.

[14] Ibid.

[15] Ibid. (citation omitted).

[16] Ibid., pp. 1345 48, 1355 59.

[17] Ibid., p. 1348.

[18] Ibid., pp. 1361, 1368.

[19] Ibid., pp. 1361, 1366 67.

[20] Ibid., pp. 1358 59.

[21] Ibid., pp. 1375 76.

[22] Ibid., p. 1379.

[23] Ibid., p. 1358. The civil rights model pursues equality of opportunity, through securing access to, and independence in, all aspects of society. Ibid.

[24] Ibid., p. 1347.

[25] Ibid., pp. 1349, 1365.

[26] Ibid, p. 1361.

[27] Ibid.

[28] Ibid.

[29] Ibid., p. 1366.

[30] Ibid.

[31] Ibid., n. 111 (citing Edna Yost and Lillian M. Gilbreth, Normal Lives for the Disabled, 1945, p. 72).

[32] Ibid., p. 1362.

[33] Ibid.

[34] Ibid.

[35] Ibid., p. 1363.

[36] Ibid.

[37] Ch. 107, 40 Stat. 617 (1918) (amended 1919)).

[38] Drimmer, Cripples, Overcomers, p. 1364 (citing Act of July 11, 1919, ch. 12, 41 Stat. 158, 159 (1919)).

[39] Ch. 219, 41 Stat. 735 (1920) (codified as amended at 29 U.S.C. 731 741 (repealed 1973, and re-enacted in the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355)).

[40] Act of June 2, 1920, 41 Stat. 735.

[41] Drimmer, Cripples, Overcomers, p. 1365.

[42] Randolph-Sheppard Act, ch. 638, 49 Stat. 1559 (1936) (codified as amended at 20 U.S.C. 107 (1994)).

[43] Drimmer, Cripples, Overcomers, p. 1366.

[44] Ibid., p. 1367.

[45] Ibid.

[46] Ibid., p. 1355.

[47] Ibid., p. 1358.

[48] Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended in scattered sections of 42 U.S.C. (1994)).

[49] Robert L. Burgdorf Jr., Disability Discrimination in Employment Law (Washington, D.C.: Bureau of National Affairs, 1995), p. 26 (hereafter cited as Burgdorf, Disability Discrimination). Robert L. Burgdorf Jr. was one of the original authors of the Americans with Disabilities Act and is professor of law at David A. Clarke School of Law, University of the District of Columbia.

[50] 42 U.S.C. 2000a (1994).

[51] 42 U.S.C. 2000d (1994).

[52] 42 U.S.C. 2000e (1994).

[53] NCD, Equality of Opportunity, p. 21.

[54] Burgdorf, Disability Discrimination, p. 12.

[55] Ibid., p. 13.

[56] See, e.g., the Americans with Disabilities Act, 42 U.S.C. 12101(a)(8); the Rehabilitation Act, 29 U.S.C. 701(a)(3)(A), 701(a)(4), 701(a)(6)(B), 701(b)(1) (2), and 796f-4; and the Individuals with Disabilities Education Act, 20 U.S.C. 1401(c).

[57] Burgdorf, Disability Discrimination, pp. 12 13.

[58] Ibid., p. 13.

[59] Ibid.

[60] Chavich v. Bd. of Exam rs, 23 A.D.2d 57 (N.Y. App. Div. 1965).

[61] Id. at 60 61.

[62] 349 U.S. 294 (1954).

[63] Burgdorf, Disability Discrimination, p. 24 (citing Wolf v. State Legislature, Civ. No. 182646 (3d Judicial Dist., Salt Lake County, Utah, Jan. 8, 1969)).

[64] Ibid., p. 25.

[65] 473 U.S. 432 (1985).

[66] Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985).

[67] Id. at 446. The Equal Protection Clause of the 14th Amendment directs that all persons similarly situated should be treated alike. Id. at 439. State legislation or other official action that is challenged as denying this right is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Id. at 440. This general rule does not apply when a statute classifies by race, alienage, or national origin. Id. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Id. Therefore, laws that classify based on race, alienage, or national origin are subject to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Id. Gender and illegitimacy, also known as quasi suspect, are also subject to a heightened standard of review. Id. Official discrimination resting on gender or illegitimacy fails unless it is substantially related to a sufficiently important governmental interest. Id. at 441.

[68] Id. at 442.

[69] Id. at 442 47. Following enactment of the ADA, some have argued that classifications based on disability should be subject to heightened review by the courts. See, e.g., Heller v. Doe, 509 U.S. 312 (1993) (Souter, J., dissenting) (stating that laws that discriminate against individuals with mental retardation are subject to heightened review).

[70] Burgdorf, Disability Discrimination, p. 25.

[71] Pub. L. No. 90-480, 82 Stat. 718 (1968) (codified as amended at 42 U.S.C. 4151 4157 (1994)).

[72] 42 U.S.C. 4155.

[73] 42 U.S.C. 4151.

[74] Drimmer, Cripples, Overcomers, p. 1378.

[75] 29 U.S.C. 792 (1994).

[76] 29 U.S.C. 792(b)(7) amended by 29 U.S.C. 792(b)(3)(A) (1994 and Supp. IV 1998).

[77] Burgdorf, Disability Discrimination, p. 28 (citing 49 Fed. Reg. 33,864 (1982)).

[78] Pub L. No. 94-142, 89 Stat. 775 (1975) (codified at 20 U.S.C. 1232, 1401, 1405 1420, and 1453 (1994)). Section 1453 was subsequently repealed.

[79] Pub. L. No. 101-476, 901(a)(2) and (3), 104 Stat. 1142 (1990) (codified as amended at 20 U.S.C. 1400 1485 (1994 & Supp. IV 1998)).

[80] 20 U.S.C. 1412(a)(1) (Supp. IV 1998).

[81] 20 U.S.C. 1412(a)(5)(A) (Supp. IV 1998).

[82] 20 U.S.C. 1412.

[83] Pub. L. No. 105-17, 111 Stat. 37 (1997) (codified at 20 U.S.C. 1401 1420 (1994)). The authorization of appropriations for IDEA programs extends through fiscal year 2002.

[84] U.S. Congress, Committee on Education and the Workforce, Individuals with Disabilities Education Act, 105th Cong., 1st sess., 1997, H. Rept. 105-95, at 85, reprinted in 1997 U.S.C.A.A.N. 78, 82.

[85] National Council on Disability, Back to School on Civil Rights, 2000, p. 10. The report looked at more than two decades of federal monitoring and enforcement of Part B of the IDEA.

[86] Ibid.

[87] 42 U.S.C. 6000(b) (c) (1994).

[88] 42 U.S.C. 6001(8)(A) (E).

[89] 42 U.S.C. 6009.

[90] 42 U.S.C. 6009(1) (2).

[91] Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 11 32 (1981).

[92] 42 U.S.C. 1997(1), 1997a (1994).

[93] 42 U.S.C. 1997a.

[94] 42 U.S.C. 1997a.

[95] 42 U.S.C. 1997a.

[96] 49 U.S.C. 1374(c) (1994).

[97] National Council on Disability, Enforcing the Civil Rights of Air Travelers with Disabilities: Recommendations for the Department of Transportation and Congress, 1999.

[98] Ibid., pp. 9 13.

[99] Ibid., pp. 92 97.

[100] 42 U.S.C. 1973ee 1973ee-6 (1994).

[101] 42 U.S.C. 1973ee-2(a) 3(a). In 1993, the National Voter Registration Act expanded registration opportunities for eligible persons with disabilities. 42 U.S.C. 1973gg-5 (1994). The act enables individuals with disabilities to vote at social service agencies where they receive state-funded benefits. 42 U.S.C. 1973gg-5(a)(2)(B).

[102] 42 U.S.C. 3601 3631 (1994).

[103] 42 U.S.C. 3602, 3604. The Fair Housing Act was amended in 1974 to proscribe discrimination on the basis of sex. See Housing and Community Development Act of 1974, 88(b), 88 Stat. 729. It was again amended in 1988 to include disability and family status. See 42 U.S.C. 3602(k) 1994.

[104] 42 U.S.C. 3604(f)(3)(B).

[105] 42 U.S.C. 3604(f)(3)(A).

[106] The act is also known as the Smith-Fess Act.

[107] NCD, Equality of Opportunity, pp. 12 13.

[108] 29 U.S.C. 701 (1994 & Supp. IV 1998).

[109] 29 U.S.C. 791, 794 (Supp. IV 1998).

[110] Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29 U.S.C. 701 797 (1994 & Supp. IV 1998)).

[111] NCD, Equality of Opportunity, p. 13.

[112] 42 U.S.C. 2000d (1994).

[113] H.R. 12154, 92nd Cong. (1971). A companion bill was introduced in the Senate in 1972 by Senator Hubert Humphrey (D-MN), S. 3044, 92nd Cong. (1972).

[114] 29 U.S.C. 794(a) (1994). The scope of the act extends to all areas in which the government finances or conducts activities and programs, including employment, education, housing, transportation, health services, recreation programs, and others.

[115] NCD, Equality of Opportunity, p. 20 (quoting disability historian Richard K. Scotch, From Goodwill to Civil Rights: Transforming Federal Disability Policy (Philadelphia: Temple University Press, 1984), p. 156).

[116] 29 U.S.C. 791(b) (Supp. IV 1998).

[117] 29 U.S.C. 793(a).

[118] 29 U.S.C. 792(a) (Supp. IV 1998).

[119] 29 U.S.C. 792(b)(3) (Supp. IV 1998).

[120] 29 U.S.C. 792(d) (Supp. IV 1998).

[121] The language of Section 504 did not mention issuing regulations or establishing administrative enforcement mechanisms. Shortly after Section 504 was enacted, the Senate Subcommittee on the Handicapped sent a letter to the Secretary of Health, Education, and Welfare (HEW), Caspar Weinberger, advising him that HEW had the responsibility and authority to secure governmentwide compliance with Section 504. Burgdorf, Disability Discrimination, p. 40.

[122] Pub. L. No. 93-516, 88 Stat. 1617 (1974) (codified as amended at 29 U.S.C. 706(8)(B) (1994).

[123] Pub. L. No. 93-516, 111(a), 88 Stat. 1617, 1619.

[124] NCD, Equality of Opportunity, p. 14.

[125] Ibid.

[126] Ibid., pp. 16 19.

[127] 42 Fed. Reg. 22,677 (1977) (to be codified at 45 C.F.R. pt. 84).

[128] 45 C.F.R. 84.12(b).

[129] 45 C.F.R. 84.12(c).

[130] Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. 12101 12213 (1994)).

[131] 42 U.S.C. 12101.

[132] 42 U.S.C. 12101(a)(3).

[133] President Bush's Signing Statement, book 2, p. 1068 (stating that the signing of the ADA is the world's first comprehensive declaration of equality for people with disabilities the first ); Senator Harkin, the primary sponsor of the ADA, called it the 20th century Emancipation Proclamation for all persons with disabilities. 136 Cong. Rec. S9689 (daily ed. July 13, 1990); Senator McCain proclaimed, This landmark legislation will mark a new era for the disabled in our Nation. 136 Cong. Rec. S9684.

[134] Drimmer, Cripples, Overcomers, p. 1400. The congressional findings stated in the text of the ADA recognize that the pervasive discrimination suffered by individuals with disabilities costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity. 42 U.S.C. 12101(a)(9).

[135] NCD, Equality of Opportunity, p. 20.

[136] Ibid.

[137] Burgdorf, Disability Discrimination, p. 44.

[138] Ibid.

[139] The organization was originally named the National Council on the Handicapped, but its name was changed to the National Council on Disability in 1988.

[140] National Council on Disability, Congressional Mandate, n.d., <http://www.ncd.gov/mandate.html> (July 19, 2000), p. 3.

[141] Ibid., pp. 1 3.

[142] Ibid., pp. 1 2.

[143] Ibid., p. 2.

[144] Ibid.

[145] NCD, Equality of Opportunity, pp. 55 56.

[146] Ibid., p. 55.

[147] Ibid., p. 34.

[148] Ibid., p. 51.

[149] Ibid., p. 55.

[150] Burgdorf, Disability Discrimination, p. 45. Lex Frieden and Robert Burgdorf were the primary contributors of the report. NCD, Equality of Opportunity, p. 55. Mr. Frieden served as the executive director of the NCD, and Mr. Burgdorf was a research specialist with the organization.

[151] National Council on the Handicapped, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities With Legislative Recommendations, 1986, p. 18 (hereafter cited as NCD, Toward Independence).

[152] NCD, Equality of Opportunity, p. 55.

[153] Ibid.

[154] Ibid.

[155] Burgdorf, Disability Discrimination, p. 45.

[156] NCD, Equality of Opportunity, p. 58. The report was also made available over the Internet.

[157] Ibid.

[158] Ibid., p. 57; NCD, Toward Independence, pp. 18 54.

[159] NCD, Toward Independence, p. 19.

[160] Ibid.

[161] Ibid., pp. 19 20.

[162] NCD, Equality of Opportunity, p. 59.

[163] Ibid.

[164] Ibid.

[165] Ibid.

[166] Ibid., p. 60.

[167] Ibid.

[168] Ibid.

[169] Ibid., p. 59.

[170] Burgdorf, Disability Discrimination, p. 45.

[171] Ibid.

[172] NCD, Equality of Opportunity, app. C, Chronology: The ADA's Path to Congress, p. 205. After the preliminary draft, Mr. Burgdorf and Lex Frieden worked most intensely on the law. Ibid., p. 62.

[173] Ibid., p. 71.

[174] Ibid.

[175] Ibid. The CCD was originally called the Consortium for Citizens with Developmental Disabilities (CCDD). In 1989, the name was changed to Consortium for Citizens with Disabilities (CCD). Ibid., p. 64.

[176] Consortium for Citizens with Disabilities, What's New at CCD, n.d., <http://www.c-c-d.org/index.htm> (July 19, 2000), p. 1.

[177] Ibid.

[178] In a report of this kind, it is impossible to mention all the organizations that contributed to the passage of the ADA.

[179] Ibid., p. 62.

[180] Ibid., p. 65.

[181] Ibid.

[182] Ibid.

[183] Ibid.

[184] Ibid.

[185] Section 503 provisions mandate that federal contractors affirmatively hire and promote individuals with disabilities. 29 U.S.C. 793(a). Section 504 provisions prohibit discrimination on the basis of a disability. 29 U.S.C. 794(a).

[186] NCD, Equality of Opportunity, pp. 64 65.

[187] Ibid.

[188] Ibid., p. 63.

[189] Ibid.

[190] Ibid.

[191] Ibid., pp. 63 64.

[192] Ibid.

[193] S. 2345, 100th Cong. (1988).

[194] 134 Cong. Rec. 5107, 5109 10 (1988).

[195] H.R. 4498, 100th Cong. (1988).

[196] NCD, Equality of Opportunity, p. 87.

[197] Ibid., pp. 89 90.

[198] Ibid., pp. 107 11, 116.

[199] Ibid., pp. 111, 132.

[200] Ibid., p. 111.

[201] Ibid.

[202] Ibid., p. 132.

[203] Ibid.

[204] Ibid., app. D, Chronology: Legislative History of the ADA, p. 208.

[205] Ibid., p. 118.

[206] Ibid.

[207] Ibid.

[208] Ibid., p. 119.

[209] Ibid.

[210] Ibid., pp. 121 22.

[211] Ibid., p. 122.

[212] Ibid., p. 127. In the Senate, the bill went only to one committee and one subcommittee. Ibid.

[213] Ibid., p. 129.

[214] H.R. 2273, 101st Cong. 103(d) (1990).

[215] NCD, Equality of Opportunity, pp. 160 61.

[216] Ibid., pp. 172 75.

[217] U.S. Congress, House, Committee on Conference, Joint Explanatory Statement, 101st Cong., 2d Sess., 1990, H. Conf. Rept. 596, at 61 62, reprinted in 1990 U.S.C.A.A.N. 565, 570 71.

[218] Ibid.

[219] NCD, Equality of Opportunity, p. 164.

[220] President Bush's Signing Statement, book 2, p. 1071.

[221] 42 U.S.C. 12101 12213 (1994).

[222] Titles IV and V will not be discussed in this report because they were not subjects of the ADA hearing held in Washington, D.C., Nov. 12 13, 1998.

[223] Congress found that 43 million Americans had physical or mental disabilities and noted the widespread discrimination faced by people with disabilities throughout history. 42 U.S.C. 12101(a)(1) (2). The findings state that individuals with disabilities encounter discrimination in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. Id. 12101(a)(3). In addition, Congress found that the discrimination took numerous forms, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, programs, activities, benefits, jobs, or other opportunities. 42 U.S.C. 12101(a)(5).

[224] 42 U.S.C. 12101(a)(8).

[225] 42 U.S.C. 12111.

[226] 42 U.S.C. 12111(5)(A).

[227] President Bush's Signing Statement, book 2, p. 1071.

[228] 42 U.S.C. 12111(5)(A).

[229] 42 U.S.C. 12111(5)(A).

[230] 42 U.S.C. 12102(2)(A) (C).

[231] 42 U.S.C. 12111(8).

[232] 42 U.S.C. 12114(a).

[233] 42 U.S.C. 12112(a).

[234] 42 U.S.C. 12111(9)(A) (B).

[235] 42 U.S.C. 12112(b)(5)(A).

[236] 42 U.S.C. 12113(a).

[237] 42 U.S.C. 12113(b).

[238] 42 U.S.C. 12113(b).

[239] 42 U.S.C. 12131 12165.

[240] 42 U.S.C. 12131 12165. The majority of Title II deals with transportation, which is beyond the testimony given at the Commission hearing. The testimony regarding Title II centered around individuals with psychiatric disabilities and is discussed in detail in chapter 5 of this report.

[241] 42 U.S.C. 12132.

[242] 28 C.F.R. pt. 35 (1999).

[243] 28 C.F.R. pt. 35, app. A (commentary on 35.102).

[244] 28 C.F.R. pt. 35, app. A (commentary on 35.102).

[245] 42 U.S.C. 12141 12161.

[246] 28 C.F.R. 35.10(d).

[247] 42 U.S.C. 12181.

[248] 42 U.S.C. 12182.

[249] Burgdorf, Disability Discrimination, p. 58.

[250] 42 U.S.C. 12181(7)(A) (L).

[251] 47 U.S.C. 225, 611 (1994).

[252] 47 U.S.C. 225.

[253] 47 U.S.C. 225(b)(1).

[254] Closed captioning refers to a system that allows only viewers with a decoder to view the captions. Burgdorf, Disability Discrimination, p. 66. In contrast open captioning provides subtitles that appear on the screens of all viewers. Ibid.

[255] 47 U.S.C. 611 (1994).

[256] 42 U.S.C. 12201 12212 (1994).

[257] Pub. L. No. 101-336, 509, 104 Stat. 373 75 (1990) (codified at 42 U.S.C. 12209 (1994)).

[258] Burgdorf, Disability Discrimination, p. 117.

[259] 42 U.S.C. 12209(a)(2).

[260] 42 U.S.C. 12203.

U.S. Commission on Civil Rights