THE STRUGGLE

The roots of the ADA are imbedded in the civil rights struggles of the 1960s.

Martin Luther King wrote in his Letter From A Birmingham Jail on April 16, 1963:

All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.  Segregation … ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. 

Overcoming disability-based discrimination has required, and continues to require, "struggle."  Every step toward equality has been hard-fought against entrenched interests and attitudes.  Each victory has needed to be defended.  This experience is common to all civil rights movements.  Disability rights may, however, demand a particularly large change in thinking, both about disabilities and about society.  This new way of thinking is imbedded in the ADA.

The first major step toward the ADA occurred in 1973 with the passage of Section 504 of the 1973 Rehabilitation Act.  Section 504 banned discrimination on the basis of disability by recipients of federal funds.  It was modeled after other civil rights laws that banned discrimination based upon race, ethnic origin and sex by federal fund recipients.

This represented the first time federal law recognized the exclusion and segregation of people with disabilities as "discrimination," and the first time people with disabilities were legally recognized as a class, in effect a minority group.

In 1973 the State of Oregon also passed its first law prohibiting discrimination against people with disabilities.

The Federal Department of Health, Education and Welfare was tasked with developing regulations to implement Section 504.  Only after numerous demonstrations and political actions did that job get done: four years later.  The regulations enacted on May 4, 1977 formed the basis of the ADA.  Disability advocates fought successfully to keep the regulations from being revoked in the early 1980s when business interests wanted to be free from federal interference. 

During the 1980s, there was also resistance from the US Supreme Court.  Disability rights advocates joined in the effort to pass the Civil Rights Restoration Act which overturned a Supreme Court decision that had severely limited the reach of all statutes prohibiting discrimination by recipients of federal funds.  (Grove City College v. Bell).

Legislation was also enacted to overturn Supreme Court decisions and reinstate prohibitions against disability-based discrimination by airlines, reinstate the right to sue states for violations of Section 504, and reinstate the right of parents to recover attorney fees under the Education for Handicapped Children's Act (now called IDEA).

In 1988, the Fair Housing Act was amended to prohibit discrimination against individuals with disabilities and the first version of the ADA was introduced in Congress.

The version of the ADA that passed on July 26, 1990 was introduced Senators Harkin and Durrenberger and Representatives Coelho and Fish (father of City Commissioner Nick Fish).  Justin Dart, Chair of the Congressional Task Force on the Rights and Empowerment of People with Disabilities, traversed the country holding public hearings which were attended by thousands of people with disabilities, friends, and families documenting the injustice of discrimination in the lives of people with disabilities.

THE ACT

The ADA has five sections, or "titles" which are regulated by different federal agencies:

• Title I - Employment - directed by the U.S. Equal Employment Opportunity Commission (EEOC); and the U.S. Department of Labor (DOL).
• Title II - Public Services - (and public transportation) directed by the Federal Transit Administration (FTA); U.S. Department of Health and Human Services (HHS); U.S. Department of Education (ED); U.S. Department of Housing and Urban Development (HUD).
• Title III - Public Accommodations - directed by U.S. Department of the Interior (DOI); U.S. Department of Agriculture (USDA).
• Title IV - Telecommunications - directed by the Federal Communications Commission (FCC).
• Title V - Miscellaneous Provisions.

Some of the key Findings and Purposes set out in Section 2 of the ADA are:

1. Some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
2. Historically, society has tended to isolate and segregate individuals with disabilities, and, this continues to be a serious and pervasive social problem;
3. Discrimination against individuals with disabilities persists in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
4. Individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
5. Individuals with disabilities continually encounter various forms of discrimination, 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, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
6. People with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
7. Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
8. The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
9. The continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.

It is the purpose of this Act--

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
3. to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and
4. to invoke the sweep of congressional authority to address the major areas of discrimination faced day-to-day by people with disabilities.

THE ADAAA

With passage of the ADA, Americans with disabilities had a new civil rights law and regulations, but again the US Supreme Court, in a series of cases, began to chip away at their protections.  And again, disability rights activists fought back and were able to obtain passage of the ADA Amendments Act of 2008.

The ADAAA makes four major adjustments to how the ADA is to be applied:

• The term “disability” is to be construed in favor of broad coverage of individuals protected by the Act;
• An impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability;
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the positive effects of mitigating measures.

OLMSTEAD

Not to be overly negative about the US Supreme Court, it has made some positive decisions for disability rights over the years.  One was the case of Olmstead v. L.C. and E.W. in 1999.  By a 6-3 vote, the Court found that the 'integration mandate' of the ADA requires public agencies to provide services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities."  In this instance, the Court told Georgia's department of human resources that it could not segregate two women with mental disabilities in a state psychiatric hospital long after the agency's own treatment professionals had recommended their transfer to community care.

THE PRINCIPLES

At the beginning of this short history, I said that a new way of thinking about disabilities and society are imbedded in the ADA.  In short, the ADA recognizes that:

Disability is a natural and normal part of the human experience that does not limit the right to:

• Live independently
• Enjoy self-determination
• Make choices
• Contribute to society
• Pursue meaningful careers and
• Enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.

Rather than focusing on “fixing” the individual, actions must be taken to “fix” or modify the natural, constructed, cultural, and social environment.

Attitudinal and institutional barriers that preclude persons with disabilities from participating fully in society’s mainstream must be changed.

For more information about the ADA, go to: http://www.ada.gov.

The 2011 version of the Oregon legislature has closed to rave reviews.  All of the major news outlets and commentators have congratulated the Governor and legislative leadership for their cooperation, willingness to compromise and progress on many important issues.  Oregon, we are told, is once more leading the way by demonstrating that, even in tough economic times, representative democracy can work and government can solve problems.  So how did we get here?  Masterfully.

When the legislative session opened, the general understanding among lobbyists was that the budget process would be a bloodbath and that very few bills would pass.  On the budget side, fiscal projections had us in a $5 billion hole.  As for bills, the House of Representatives was evenly split between Republicans and Democrats who would therefore have to agree for any bill to pass.  Given the partisan resentments of past years, few thought that cooperation would be forthcoming.  But it was.  Here are some possible reasons.

1.  Lowered expectations:  The legislature always engages in the psychological tactic of getting people ready for something awful and then delivering, to everyone's relief, something that is merely bad.  Even in the richest of years, we are always told that there is not any money.  This, of course, was not one of those years.

2.  Unsustainability:  Most policy makers realize that our aging demographics have made the structure and financing of government services unworkable for the next twenty years or so.  

3.  Willingness to innovate:  When cuts in services are inevitable, it encourages new ways to doing things.  For example, a person may insist that having a cappuccino every day is essential until the money to pay for it must come out of his beer budget.

4.  Forging new commonality:  Many have observed that all three legislative leaders come from rural Oregon and share a small town willingness to get along.  Whatever the merits of this suggestion, the urban/rural divide is as traditional in politics as the liberal/conservative one.

5.  Taxes off the table:  Ballot measures that increased tax rates for businesses and the more wealthy were behind this legislature.  This assured that tax reform would not be on the agenda, creating opportunities for discord.  With only so much money, even big campaign contributors could be told that their interests would have to wait.  Most would understand that Grandma should not be thrown under the bus to maintain the status quo.

6.  Shared reasons to gamble:  Despite all the highly charged national rhetoric on health care reform, it's well understood that the driver of reform is cost.  The balanced budget passed by the legislature is gambling that publicly-funded heath care costs can be dramatically lowered in the years ahead.  Most folks can agree to this because it delays big cuts throughout the budget and the reform strategy is to bring down high-expense care by keeping people healthier, rather than throwing them off insurance.  To go back to the beer analogy, this approach has something for both sides:  tastes great (healthy), less filling (costly).  

At the end of the session, legislators were willing to hold hands and jump off the cliff.  They began a number of reforms that will have to be implemented and tested.  Business as usual was not a winning formula.  Doing this required veteran leadership and, fortunately, it was there.  Oregon has chosen not to go down the road of Wisconsin or Minnesota which have opted for confrontation rather than innovation.  

We are nowhere near being out of the economic woods, and more needs to be done to correct some misguided policy directions, but Oregonians should be proud of what their government accomplished in this legislative session.