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

Drafting the ADA

As Frieden’s successor Paul Hearne observed in 1988, NCD’s preparation of Toward Independence and instigation of the ICD Survey helped “put the Council on the map.”46 NCD member Michael Marge said of the reports: “We were very well received by both sides of the aisle as a valuable, worthwhile group. Our entree to the Congress was fantastic."47 Despite the tremendous respect NCD gained, however, Congress took little action—a great frustration to NCD members. Although Congress pointed to Toward Independence as “the Manifesto, the Declaration of Independence for people with disabilities,” said Frieden, “nobody bothered to do anything about it."48 NCD members and staff—especially Burgdorf, Dart, Frieden, and Parrino—were frustrated most by the lack of attention to their number-one recommendation, an equal opportunity law.

“Congress pointed to Toward Independence as the Manifesto, the Declaration of Independence for people with disabilities,” but “nobody bothered to do anything about it.” —Lex Frieden

After waiting for nearly a year, they began discussing what NCD could do. They concluded that the only way to overcome legislative inertia was for NCD to take the lead. Frieden remembers talking about drafting a civil rights proposal as early as December, 1986.49 There was some early dispute over whether disability rights legislation should come in the form of an amendment to the Civil Rights Act or whether it should be an independent initiative. At a strategy meeting, Burgdorf and Frieden solicited the input from such disability rights advocates as Marca Bristo, Evan Kemp, and Robert Funk. They discussed whether using the vehicle of a separate law might ironically reinforce discrimination by underscoring the separateness of people with disabilities. But they decided that an adequate foundation for disability rights required unique provisions and that a separate law could serve as an energizing force for the disability community.50

The framework for such a law was already sketched out. In Toward Independence, Burgdorf specified that the law should prohibit discrimination by the Federal Government, recipients of financial assistance, federal contractors and subcontractors, employers, housing providers, places of public accommodation, persons and agencies of interstate commerce, transportation providers, insurance providers, and state and local governments. He also proposed that the law secure private right to action to remedy discrimination, give the Architectural and Transportation Barriers Compliance Board (ATBCB) the authority to remove barriers according to universal accessibility standards, and establish Protection and Advocacy Systems in each state to protect and advocate for the rights of persons with disabilities. To make nondiscrimination on the basis of handicap meaningful, he stressed, the law would have to be founded on the concept of providing reasonable accommodations and taking affirmative steps to eliminate barriers. Among the proposal’s most ambitious provisions was that all existing barriers to accessibility would have to be removed in two to five years, except where a private business or public entity received a special waiver.

Yet it was not an optimal time to introduce new civil rights legislation. The disability community, the civil rights community, and Congress were just beginning their campaign for the Civil Rights Restoration Act, which was introduced on February 19, 1987. Another civil rights measure might adversely affect its passage. Burgdorf nonetheless began putting the law on paper, expecting it could be used eventually, and finished a preliminary draft in February.51 During the spring of 1987, he and others began holding brainstorming sessions with “important and knowledgeable persons in the disability community” to include them in the process and facilitate the drafting.52 At the May quarterly meeting, NCD decided to move forward and give official sanction to crafting a legislative proposal, deciding that a comprehensive law, rather than a piecemeal approach, was the best way to protect disabled persons’ civil rights. Staff members Burgdorf and Frieden worked most intensively on the law. And NCD members reviewed draft after draft of the proposal prepared by Burgdorf, who advanced his own vision for the law while helping to put NCD members’ thoughts in proper legal form.

By August, 1987, Robert Burgdorf had a complete draft of what was now called, at the suggestion of NCD member Kent Waldrep, the Americans with Disabilities Act of 1987.

By August, 1987, Burgdorf had a complete draft of what was now called, at the suggestion of NCD member Kent Waldrep, the Americans with Disabilities Act of 1987.53 Principal strategic planning for the legislative proposal was carried out by Parrino, Frieden, and Burgdorf. They concluded that success required a body of individuals and organizations to support the endeavor and good timing of its introduction so as not to obstruct the efforts of the civil rights community. At the August Council meeting, members hoped that the bill would be passed in the 100th Congress—by the end of 1988. Dart, who was in attendance at the meeting though no longer a Council member, was more cautious. He suggested it would take years to obtain passage. Nevertheless, he fully supported moving forward to initiate the requisite education process.54

Senator Weicker officially agreed to be the bill’s sponsor: he was absolutely crucial in giving the ADA its life.

For congressional sponsorship, Parrino turned first to Senator Weicker, with whom NCD had a longstanding relationship. Weicker was one of the disability community’s greatest advocates in the Senate. This was in part because Weicker had personal experience with disability through his son, who had Down’s Syndrome. For Weicker, however, interest in disability issues stemmed from a broader philosophical and political commitment to assisting those in need. “He was a man of very strong principles about the role of government and the responsibility for caring for those who were less fortunate,” said Terry Muilenburg who worked on his staff. This applied to elderly persons and people of lower-income as well as to people with disabilities. At times Weicker acted as “the conscience of the Senate” to defend the constitutionality of an active Federal Government, Muilenburg added.55 Weicker was a fitting congressional contact because he had played a pivotal role in ensuring that NCD stayed alive in 1983. Early in 1987, during a meeting with Parrino, he had indicated a willingness to support disability rights legislation if NCD drafted a proposal. Now Weicker officially agreed to be the bill’s sponsor: he was absolutely crucial in giving the ADA its life.

For the ADA to succeed, Senator Weicker emphasized that the bill would have to be introduced simultaneously in both houses of Congress. He recommended that NCD contact Congressman Coelho, who was, coincidentally, a close friend of NCD member Roxanne Vierra’s husband, to sponsor the House bill. Coelho also had epilepsy, and was becoming a public advocate for people with disabilities. Although Congressman Coelho’s staff cautioned him against sponsoring the bill for fear that it would not win the support of the broader disability community, Coelho agreed to sponsor it.56 Senator Weicker later encouraged NCD to begin working closely with Senator Tom Harkin (D-IA). Harkin was Chairman of the Subcommittee on the Handicapped, which would likely have jurisdiction over the bill in the Senate.

While NCD’s solid reputation with Congress helped in finding congressional sponsors, enlisting the support of the disability community proved more difficult. Many persons in the disability community had been working toward the goals, shared by NCD, of equal opportunity and full participation; some strove for civil rights legislation akin to NCD’s proposal. But many people in the disability community viewed NCD with apprehension. While NCD collaborated with persons with disabilities throughout the country, NCD generally did not work closely with leading disability organizations, especially those that had been championing recent legislative campaigns. Moreover, given the context of the Reagan administration’s civil rights record, some questioned NCD’s motives. Some NCD members, on the other hand, suspected that others were envious of NCD for being the first to draft civil rights legislation.57 For these and other reasons, the relationship between much of the disability community and NCD was strained.

Prior to the November Council meeting, Burgdorf met with representatives of the Consortium for Citizens with Developmental Disabilities (CCD)* to discuss the bill. At a later meeting convened by Terry Muilenburg of Senator Weicker’s staff, CCD members stated that they opposed the bill as written. Their greatest concern was that they did not want the ADA to undermine the coverage of Sections 503 and 504 of the Rehabilitation Act. Securing the Section 504 regulations had been a protracted battle, and the regulations had been subsequently assaulted by President Reagan’s Task Force on Regulatory Relief just a few years before. CCD feared that if the provisions of Section 503 and 504 were included in the ADA it would mean the regulations were back on the bloc, and an administration unfriendly to disability rights could substantially rewrite and weaken them. As an alternative, CCD proposed what became known as the “donut-hole” approach: leave what was alone, and write the ADA around it to cover everything left out.

CCD also argued that the ADA should not enforce standards inconsistent with those afforded to other minority groups. The disability community was in the midst of working with the civil rights community on the Fair Housing Amendments Act. Passage of the ADA would require the full backing of the civil rights community, so it was important to advocate the same protections. For example, while many people in the disability community believed health insurance should be a part of the ADA because people with disabilities often could not find affordable health care, health insurance was not a protection afforded to any other group. In a more general sense, CCD expressed concern about incorporating new language and new terms, such as a revised definition of disability. They urged that NCD use language from Section 504, which would help secure congressional support because it was familiar. At the November Council meeting, members voted on the draft of the ADA and rejected changes proposed by CCD. Three days later, however, Senator Weicker met with a variety of disability groups and decided, together with Senator Harkin, that Sections 503 and 504 and health insurance needed to be dropped from the ADA. Although a variety of factors warranted the exclusion of health insurance, Weicker’s representation of Connecticut, where insurance was a major industry, made the inclusion impractical.

Senator Weicker urged NCD to accede to the disability community’s changes, but NCD bristled because it was afraid to weaken its legislative proposal. Chairperson Parrino suggested getting a broader range of opinion from persons outside Washington at a meeting coinciding with the February Council meeting, on February 9, 1988. In the meantime, NCD was preparing its 1988 report, On the Threshold of Independence.† The report evaluated progress made since its 1986 report, Toward Independence, on each of the ten topics. At the suggestion of Public Affairs Specialist Andrea Farbman, NCD decided to include the current draft of the ADA in its discussion of the equal opportunity law recomme further attention to the ADA and enlist grass roots support.58

On February 9, representatives from around the country gathered at NCD’s quarterly meeting. There they formed working groups and unanimously agreed to remove Sections 503 and 504 and health insurance from the purview of the Americans with Disabilities Act. On the following day, NCD decided to circulate the bill, with these changes, to Congress and the Reagan administration. Negotiations with the disability community continued after the February Council meeting, but Weicker, faced with a string of proposals from the disability community, decided to honor NCD’s work in drafting the legislation and forge ahead with its version of the ADA.

Discrimination on the basis of disability is “just as intolerable as other types of discrimination that our civil rights laws forbid.” —Senator Lowell Weicker

On April 28, 1988, Senator Weicker introduced the Americans with Disabilities Act on the floor of the United States Senate. He called the legislation “historic,” and said that it “will establish a broad-scoped prohibition of discrimination and will describe specific methods by which such discrimination is to be eliminated.” He compared the conditions faced by persons with disabilities to those faced by minorities in the 1960s. Civil rights advocates then argued forcefully and demonstratively that no person, because of race or national origin, should be discriminated against in obtaining access to public accommodations, use of transit, employment opportunities, services of state and local governments, and housing. Laws prohibited this type of discrimination by business owners, employers, and governments, Weicker said. “Yet, today,” he noted, “it is not unlawful for these same establishments to exclude, mistreat, or otherwise discriminate against people because of their disabilities.” He contended that discrimination on the basis of handicap was “just as intolerable as other types of discrimination that our civil rights laws forbid."59 The following day, Congressman Coelho joined Weicker by introducing an identical bill to the floor of the House of Representatives. Civil rights for persons with disabilities had entered the national, legislative agenda.

NCD’s role did not end with Senator Weicker’s final acceptance and introduction of their proposal, but in a very real sense the baton was being passed from NCD to congressional sponsors and the disability community. NCD was in an awkward position. Although NCD could present legislative proposals and justify its recommendations by offering “technical information,” federal law at the time prevented NCD members and staff, as all employees of federal agencies, from personally lobbying members of Congress. In lieu of formal lobbying, NCD members made presentations in their home towns and in their professional circles. Chairperson Parrino met extensively with officials in the White House and helped pave the way for favorable action on the ADA by the Bush administration.  She also gave important congressional testimony on multiple occasions.

NCD performed the crucial function of documenting a problem, crafting a solution, and securing a foothold in Congress.

NCD’s presence was also carried forward as Frieden and Burgdorf resigned to take positions where they could exert more direct influence. Frieden, for example, became Executive Director of the congressional Task Force on the Rights and Empowerment of Persons with Disabilities, which played an important role in documenting the need for the ADA. Some members felt slighted by the transition in ADA leadership. But it was actually a testament to their success—NCD had accomplished its mission. No other single disability organization could have introduced a proposal to Congress with the same authority NCD possessed as an independent federal agency. NCD had performed the crucial function of documenting a problem, crafting a solution, and securing a foothold in Congress. It brought people to the table to develop a workable solution with substantial consensus. Now NCD would join the ranks of other organizations and thousands of individuals in educating America about the ADA.

*The Consortium for Citizens with Developmental Disabilities (CCDD) changed its name to the Consortium for Citizens with Disabilities (CCD) in 1989. Since this name change took place midway through the ADA deliberations, and to avoid confusion, CCD will be used consistently throughout this work when identified in relation to the ADA.

† NCD members at the time were: Sandra Swift Parrino, Chairperson; John S. Erthein, Theresa L. Gardner, Marian N. Koonce, Leslie Lenkowsky, Nanette Fabray MacDougall, Robert Muller, Brenda Premo, Harry J. Sutcliffe, Joni Eareckson Tada, Roxanne Vierra, A. Kent Waldrep, and Phyllis Zlotnick. NCD staff were: Lex Frieden, Executive Director, Brenda Bratton, Stacey Brown, Ethel Briggs, Robert Burgdorf, Frances Curtis, Andrea Farbman, Kathleen Roy, and Deborah Shuck. National Council on the Handicapped Fellows were: LaVerne Chase and D. Ray Fuller.

46. Quoted in NCD Minutes, July 30–August 1, 1988, p. 3.

47. Marge, interview.

48. Frieden, interview, December 27, 1996.

49. Frieden, interview, December 28, 1996.

50. Marca Bristo, telephone conversation with author, May 28, 1997.

51. Burgdorf, interview.

52. NCD Minutes, May 18–20, 1987, p. 21.

53. Burgdorf, interview.

54. NCD Minutes, August 3–5, 1988, p. 12.

55. Terry Muilenburg, interview, December 11, 1996.

56. Tony Coelho, interview, November 22, 1997.

57. Burgdorf, interview.

58. Ibid.

59. Senator Lowell Weicker, statement, Cong. Rec., vol. 134 (April 28, 1988), p. S5107, S5109–10.

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