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 U.S. Supreme Count case, L.C. vs. Olmstead, has been around for over ten years but its full meaning as yet to be realized.  The case basically says that the ADA gives people with disabilities the right not to be unnecessarily segregated.  Just as the government cannot tell all people of a race or religion that they have to live in one place, it can't require people with disabilities to all live together (say, in a nursing home or state training center) in order to receive services.

Just to clear it up right away, the "Olmstead Act" was passed by Congress in 1909 and addressed the authority of the U.S. President over the affairs of Puerto Rico.  Many people use "Olmstead Act" to refer to L.C. vs. Olmstead.  In fact, so many do it that a Google search using "Olmstead Act" results almost entirely in stuff about the ADA case.  This drives me to distraction.  But I digress....

In the last two years, the U.S. Department of Justice (USDOJ) has taken a much more active role in enforcing Olmstead.  One result is a recent Settlement Agreement between the U.S. and Georgia.  In the agreement, Georgia agreed to stop putting people with developmental disabilities in its state hospitals and, instead, create a system of community services to assist them.  It also agreed to build a more comprehensive community mental health system including new 'Assertive Community Treatment Teams," "Community Support Teams," "Intensive Case Management Teams," "Crisis Service Centers," housing, employment, peer services and more.

Fairly soon after completing the settlement in Georgia, USDOJ sent a letter to Oregon saying that it was starting an investigation of how our state is complying with Olmstead.  DRO has asserted for years that Oregon does not do a good job on Olmstead.  We have sued the state a number of times on behalf of state hospital patients who are not discharged for months and years even though the hospital says the patients are no longer needing hospital-level care.  We continue to monitor patients who are stuck in the hospital while a convoluted placement process in which there is no ultimate authority bumbles along.

Oregon has just - just -  started a effort to reform how it uses its community residential beds.  They call it "Aim High."  Oregon still does not have an "Olmstead Plan" which many states have to show how they are working to get people out of state hospitals.  DRO has had to use court action and the threat of court action in local communities that fight to keep people with mental disabilities from living in their neighborhoods.  The state has never asserted these rights for patients. 

Lastly, in the midst of severe budget cuts, Oregon plans to build a new, large state hospital in Junction City.  The cost of operating this "big box" in the middle of a field in the Willamette Valley has to come from somewhere.  Will it come from school budgets?  State police?  Corrections?  Or, maybe, the desperately strapped community mental health budget?  If community mental health is cut to staff Junction City, Oregon will be the anti-Olmstead state: it will create a structure of unnecessary segregation of individuals with mental disabilities.

In sum, Oregon has been and remains content to leave people in expensive, unnecessary state hospital beds.  It is planning for an even greater emphasis on segregated care.  This is why USDOJ is back for more investigation.

I attended a "friend-raising" breakfast this morning for United Cerebral Palsy Association of Oregon & SW Washington.  I've always been impressed by UCP and their director, Bud Thoune, for their high standards and dedication to the lives of the people they serve.

This event did not change my opinion.  On the ticket for the event are listed five principles: Be Visible, Be Independent, Be Involved, Have Friends, Make a Difference.  What a clear expression of how people with disabilities, families and advocates can act to achieve inclusion!  Disability will never be accepted as a normal part of life unless people with disabilities are visible, independent and involved.

We at DRO have been doing our part to be more visible in promoting the rights of our clients and communicating a disability rights perspective to a widening community.  In that spirit, I'm letting you know that Bud reminded us breakfasters that we just marked the tenth anniversary of the Supreme Court's Olmstead decision.  In Olmstead, the Court found that the ADA prohibits unnecessary segregation of people with disabilities in institutions.  That's right.  Congress said, and the Supreme Court agreed, that isolation, dependence and hopelessness must not be promoted by government policies. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

Guest speaker Art Edwards brought home the message of inclusion.  Art is a new member of the UCP Board and a reporter for KOIN.  He told us about his family, including his teenage son A.J. who experiences CP and occasional seizures.  His family is about to move to Tigard because its schools have a more inclusive educational approach than their present school system in Beaverton.  Art talked about life with A.J. including A.J.'s strategic use of the horn on his power wheelchair, his love of baseball, and his delight in yelling "flugelhorn!"  The whole family -- Art, his wife and daughter -- are dedicated to A.J. and are willing to make the sacrifices required for him to thrive.  For example, Art's daughter is accepting the move to Tigard because "it will help A.J."

When DRO changed its name last year, we came up with three words that evoke our vision: Opportunity,  Access & Choice.  Above all, I think that Olmstead, the work of UCP and the hopes of A.J. and his family are about opportunity. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

If you don't know, DRO is part of a national network of Protection and Advocacy organizations.  Our national organization is appropriately called the National Disability Rights Network (NDRN) and is based in Washington, DC.  Every year, the directors of all 57 P&As are called to Washington for a conference.  We hear from federal officials, talk shop, and see colleagues who, in some cases, we have known for decades.

Since Washington is on eastern time, it always turns out that I continue to do my west coast job when it's east coast quitting time.  Today was no exception.

This morning, our group heard from Jeff Crowley who is the Senior Advisory on Disability Policy person in the White House. He said that part of his job is to create a new major AIDS policy and to assist in health care reform efforts.  When asked what it was like to work in the Obama White House, he said that the President does not dictate to staff.  He lets them grapple with issues.  "Great leadership does not eliminate politics and money problems but this president is willing to follow the science in our areas."

After some other issue briefing, I headed off for "the hill" where I met with staff from the offices of Senator Merkley, Senator Wyden and Representatives Schrader and Wu.  Besides talking health reform policy, my major points were the need for more P&A resources, Congressional action to address seclusion and restrain in schools, and blocking a bill that Barney Frank introduced to stop P&As from suing institutions to seek improved conditions.  (I know that last one seems hard to believe, but it's true.)

Then it was moonlighting time.  I went back to the hotel and wrote testimony for two bills that were heard today in the Oregon legislature.  I sent them off via email and then was able to watch part of the hearings on my computer via the legislature's video service.

Finally, I attended a fundraiser for NDRN.  The highlight of the evening was hearing remarks from special guest Lois Curtis.  Ms. Curtis was one of the plaintiffs in the landmark case of L.C. v. Omstead.  That's the case that found that the ADA provides a right to be free of unnecessary institutionalization.  Ms. Curtis was clearly thrilled to be here.

Tomorrow, I have a 7:00 am flight back to Portland where more fun awaits.