Equality of Opportunity: The Making of the Americans with Disabilities Act

Building a Winning Record

Washington likes winners. Throughout the 1980s, the disability community recorded an impressive string of judicial and legislative victories that helped build the disability movement’s credibility in Washington. In the process, crucial networks continued to develop. The DREDF-arranged San Francisco conference of 1980 laid the foundation for forming an alliance with the civil rights community. Neas reports meeting with Wright and Mayerson at the conference and notes one occasion in which Wright emphasized that it was extremely important to be victorious in the first civil rights battle for people with disabilities. They therefore decided to tackle something comparatively small: the issue of voting accessibility.⁵⁸ The goal was to ensure that the principle of the 1965 Voting Rights Act, equal access to voting, encompassed persons with physical impairments. Wright and Neas and others achieved this goal with the passage of the Voting Accessibility for the Elderly and Handicapped Act of 1984. Neas explains that this victory was absolutely crucial: “If we had not won on the Voting Rights extension, . . . I don’t think we would have won any civil rights bills after."⁵⁹ Indeed, many more difficult challenges lay ahead, and that victory was an important foundation for facing them.

The activities of the disability community in the 1980s may largely be viewed as a defensive effort to sustain the gains of the 1970s. In addition to the deregulation efforts of the Reagan administration, the disability community also faced a Supreme Court that did not enforce the disability rights that had been attained and threatened to overturn established provisions. In fact, the preponderance of legal activity within the disability community during the 1980s related to the Supreme Court and its rulings. Things did not start out well. In a 1979 Supreme Court ruling in Southeastern Community College v. Davis, the Court questioned the viability of the regulations developed to implement Section 504. The case addressed a nursing school’s responsibility to accommodate the needs of a hearing-impaired applicant. The Court’s conclusion that such accommodations were not required by the school was a significant defeat for the disability community.

The Supreme Court did not take on another Section 504 case for five years, but in 1984 the results were much more encouraging. In Consolidated Rail Corporation v. Darrone, the Court affirmed that the Section 504 regulations did indeed apply to employment discrimination. DREDF had taken the lead in arguing the case for the disability community and was pleased to see its efforts pay off: the Court established that courts must give considerable deference to the 504 regulations. This decision reflected the results of a Pennsylvania District Court case, Nelson v. Thornburgh, which ruled that the state’s Department of Public Welfare was obligated to absorb the costs of readers or electronic devices for visually-impaired employees, because the cost did not constitute an “undue hardship.”

The Supreme Court’s decisions, however, were not all positive for the disability community in the 1980s. From 1984 to 1986, the Supreme Court handed down six cases with, at best, mixed results. In the 1985 decision Alexander v. Choate, the Court ruled against a group of Medicaid claimants, alleging the state violated Section 504 by reducing the number of days Medicaid covered for inpatient hospitalization. They argued the policy had a disparate impact* on persons with disabilities and that the policy should therefore be prohibited. Although the Court decided against the plaintiffs by affirming the policy, it made an important ruling on the nature of disability. The Court stressed that disability discrimination came most often not in the form of direct, conscious discrimination, but rather by unconscious neglect: curbs without ramps for wheelchairs, for example. Laws directed against disability discrimination therefore had to target discriminatory practices deeply embedded in society.

Also in 1985, in City of Cleburne, Texas v. Cleburne Living Center, the Court considered whether a state zoning agency could exclude a group home for persons with developmental disabilities. The Court rejected an argument that persons with disabilities should be treated as a “quasi-suspect” class, which would warrant heightened judicial scrutiny for policies treating a group as a class. But it did establish an important principle by ruling that the exclusion was unconstitutional. The Court decided that the group home did not pose any “special threat” to the city’s “legitimate interests.” Rather, the exclusion was based on “irrational prejudice.” Discrimination against persons with disabilities, in other words, could not be justified by ignorance.

The four remaining cases prompted the disability community to solicit Congress to pass legislation devoted to overturning the Supreme Court’s rulings. In 1986 alone, Congress passed three acts to reverse Supreme Court decisions. The Handicapped Children’s Protection Act reversed the 1984 ruling Smith v. Robinson by ensuring that parents had the right to reasonable attorneys’ fees when successful in litigation. The Civil Rights and Remedies Equalization Act overturned Atascadero State Hospital v. Scanlon by establishing that states may not be immune from alleged Section 504 violations filed in federal court. And the Air Carriers Access Act overturned U.S. Department of Transportation v. Paralyzed Veterans of America by requiring that commercial airlines be subject to the accessibility standards of Section 504, regardless of whether they received federal assistance. Through these cases, the disability community attained a new level of legal sophistication. It also developed important connections. For the Handicapped Children’s Protection Act, for example, Wright and Mayerson worked extensively with Robert Silverstein, who later helped orchestrate the ADA deliberations in the Senate.

The most significant Supreme Court decision was the 1984 ruling in Grove City College v. Bell. This case concerned Title IX of the Education Amendments Act, which prohibited discrimination on the basis of sex in all programs receiving federal assistance. Although the Court sustained the principle of nondiscrimination, it ruled that the Title IX sanction of cutting off federal funds would be applied only to the particular program in question and not the entire institution. This decision had a profound impact on the entire civil rights community. Since the language prohibiting discrimination on the basis of sex in federally assisted programs or activities was identical to that for discrimination on the basis of race, age, and disability, it affected all groups equally. Consequently, overturning this decision and returning the civil rights statutes to their previous interpretation became the top priority for LCCR and the civil rights community.

This gave the disability community a perfect opportunity to work side-by-side with other civil rights groups as equal members and partners. It took three years for them to see their objective met in the Civil Rights Restoration Act, which had to be passed over President Reagan’s veto. Mayerson, the chief attorney for the disability community, explained the significance of this act: “Not only could [the civil rights community] see that we could again do the work as well as they could and do the legal analysis as well as they could, but we were also actually able to open a few doors that weren’t traditionally open in the civil rights community."⁶⁰ Wright and Mayerson could build on the contacts they had made in their own disability-specific work and bring them to bear on the civil rights community’s endeavors. Moreover, as Neas explained, “those four years enabled about thirty or forty people to get to know one another really well, and we went to hell and back [on] a legislative roller coaster ride.”  Those experiences, while trying, made for meaningful relationships and developed the trust necessary for effective collaboration.⁶¹

Two further victories are important to understanding the ADA’s future success. The first is another Supreme Court case, the 1987 decision in School Board of Nassau County, Florida v. Arline. In this case a school board fired a teacher exclusively because she was found to be susceptible to tuberculosis. Her attorneys tried to gain her protection under Section 504 as a handicapped person. The Court obliged them, ruling that a person with a contagious disease may be deemed a “handicapped person.” Such a decision, however, had to be based on an individual basis to determine whether an individual could do a job with or without a reasonable accommodation and if there were scientific evidence that the person posed a substantial health risk to others. This was a significant victory for the disability community because it made a powerful statement against “fearful, reflexive reactions” to people and confirmed that the discrimination faced by persons with disabilities is often based on fear and misapprehension, not on reality.⁶²

A final major victory for the disability community in the 1980s came with the Fair Housing Amendments Act of 1988, which expanded the protections afforded by the Fair Housing Act of 1968 and prohibited discrimination in the sale or rental of housing on the basis of disability. The Fair Housing Amendments Act was significant for several reasons. First, it added to the momentum the disability had been building throughout the 1980s. Its passage in September, following introduction of the ADA in April, gave a big boost to the ADA. Second, it afforded people with disabilities another opportunity to work with the civil rights community on one of its top priorities. But now, for the first time, disability was an important component in a major civil rights legislative initiative. Moreover, the disability community formed a close alliance with organizations advocating the rights of persons with the Human Immunodeficiency Virus (HIV) and Acquired Immunodeficiency Syndrome (AIDS), who were protected under this act as persons with disabilities. Third, the Fair Housing Amendments Act broke new ground with respect to civil rights for persons with disabilities by incorporating provisions that applied to the private business sector as well as to recipients of federal funding. And Fourth, the act provided an important foundation for the ADA by building on the Arline decision: it provided that unless an individual with a contagious disease posed a “direct threat” to the health and safety of others, discriminatory practices against such persons was unlawful.

Enactment of the Fair Housing Amendments Act on September 13, 1988, marked the end of a string of national, legislative victories during the 1980s. These accomplishments were crucial for the ADA’s success. As Mayerson explained: “The respect for the legal, organizational, and negotiation skills gained during these legislative efforts formed the basis of working relationships with members of Congress and officials of the administration that proved indispensable in passing the ADA."⁶³

*“Disparate impact” refers to indirect results of policy or action. In this case, plaintiffs alleged that the policy of reducing the number of covered days, while not expressly discriminating against persons with disabilities, would nonetheless have that effect because persons with disabilities were the most likely to require longer hospital stays.

58. Neas, interview, January 21, 1994.

59. Neas, interview, December 10, 1983.

60. Mayerson, interview, October 13, 1993.

61. Neas, interview, December, 10, 1993.

62. School Board of Nassau County, Florida v. Gene H. Arline, 107 S.Ct. 1124 (1987).

63. Arlene Mayerson, “The History of the ADA: A Movement Perspective,” in Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans, ed., Lawrence O. Gostin and Henry A. Beyer (Baltimore: Paul H. Brookes Publishing Co., 1993), p. 21.