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

Lobbying & Grass Roots Activities

For business organizations such as NFIB, the Senate deliberations represented a failure. “The reason we failed in the Senate,” said Wendy Lechner, the NFIB point person for the ADA, “was we didn’t have time to educate” the members. The ADA was “pushed through as motherhood and apple pie before we had a chance to do anything.” In the House, therefore, the objective was to “slow it down long enough for education."35 NFIB was not alone. Largely under the direction of Nancy Reed Fulco of the U.S. Chamber of Commerce, business groups formed the Disability Rights Working Group to help mold the ADA. Different organizations focused on different provisions: NFIB and the U.S. Chamber of Commerce devoted considerable attention to public accommodations; the American Bus Association (ABA), the American Public Transit Authority (APTA), and Greyhound examined transportation issues; the National Restaurant Association (NRA), the Chamber of Commerce, and the National Association of Manufacturers dealt with employment. But they banded together to lobby members of the House about their common concerns. As illustrated in the Senate testimony, business groups were not completely opposed to the bill. “We really weren’t trying to deep-six it,” said Lechner. “We were really trying to get a better bill, a more livable bill."36

“We really weren’t trying to deep-six it. We were really trying to get a better bill, a more livable bill.” —Wendy Lechner

To create a more “livable” bill, representatives of covered entities developed a list of about 20 to 30 amendments. Throughout the House deliberations they continually updated this list, removing those changes that were accomplished, and adding others as new issues arose. And they lobbied members of Congress to argue the need for those amendments by issuing various position papers and visiting members’ offices. In addition to lobbying inside Washington, organizations such as NFIB sent out action alerts to their members urging people to write their representatives, especially those serving on committees. Some opponents of the ADA took their concerns about the ADA to the mainstream media.

Business groups had a number of overriding concerns. One was the “vagueness of language” contained in the ADA. Business lobbyists argued that such phrases as “undue hardship,” “readily achievable,” and “readily accessible,” were inadequately defined, and would therefore invite frivolous law suits. Businesses, they argued, would not be able to know whether they were in compliance. A second concern was the potential cost of accommodations. One proposed solution was to have the government share some of the burden through tax credits and other mechanisms. Third, numerous covered entities lobbied to have a more concrete definition of disability, ideally one that listed every covered disability instead of relying on a flexible definition. Fourth, small businesses argued that they should be exempt from the public accommodations requirements, or at least be phased in more gradually, because small businesses were exempt from other civil rights legislation. Fifth, scores of organizations protested the enforcement mechanisms available under the ADA, especially private litigation and the availability of punitive damages. Sixth, many business groups proposed that the ADA should preempt all other disability laws, so that there would be no confusion between different statutes, and no possibility for bringing multiple law suits for one violation.

The business community, however, faced a significant problem in educating and lobbying Congress: it had a much more difficult time than the disability community in keeping its coalition together. By the end of the fall of 1990, the coalition had begun to break down, as organizations focused on those provisions that affected them most. They were, therefore, unable to present a united front to Congress. Nevertheless, during the course of the House deliberations, business groups succeeded in obtaining many of the changes they sought.

In response to a variety of objections posed by business groups, some House members took the initiative in undertaking vigorous publicity campaigns against the ADA. Congressman Dan Burton (R-IN), for example, sent out a flyer in which he enumerated “some of the more onerous provisions” of the ADA. According to Burton, the ADA would “federalize American private enterprise,” “wreak havoc in the workplace,” “crush small and medium-sized businesses,” and “confer federal approval on homosexual/ heterosexual ‘domestic partners.’” He also attached an editorial by Gene Antonio that characterized the ADA as “the last ditch attempt of the remorseless sodomy lobby to achieve its national agenda before the impending decimation of AIDS destroys its political clout. This bill simply must be stopped . . . and will become law unless there is a massive public outcry immediately."37

Similarly, Congressman Ron Marlenee (R-MN) issued a flyer to all the postal patrons in his district. The headline read: “Americans With Disabilities Act: Washington’s Latest Way to Crush Businesses, Schools, While Hurting The Disabled.” A subheading announced: “ADA Bill To Give Federal Endorsement For Homosexual ‘Partners’ and ‘AIDS.’"38 Congressman Chuck Douglas (R-NH) distributed a letter that pictured a man pointing a gun at the reader. “Berserkers: Time Bombs in the Workplace,” the headline declared. Douglas favored the general idea of the ADA, but said the bill “needs dramatic rewriting.” He was especially with preventing persons with mental illness from endangering their coworkers and thus proposed excluding such persons from protection under the ADA.39

“The beauty of the ADA was it was an effort where people in the grass roots were just as important, if not more important, than people in Washington.” —Liz Savage

The disability community was more unified than the business community, but the heightened activity of the business community during House deliberations demanded a strong response from the disability community. “The beauty of the ADA,” said Liz Savage, “was it was an effort where people in the grass roots were just as important, if not more important, than people in Washington."40 To facilitate disability grass roots involvement, leaders such as Marilyn Golden developed regional coordination networks: it was too complicated for one or even a handful of people to manage the calls for an entire nation. While in some cases there was a coordinator for an individual state, most states were organized in groups under a regional coordinator. The regional coordinators were selected because they were well known in their states. They came from a variety of organizations, often from independent living centers.

During the House deliberations, the ADA coalition coordinated its lobbying efforts with each of the scheduled committee mark-ups. As the bill went through each committee, members of the legal team responded to virtually every business position paper by issuing rebuttals. They would proceed point-by-point through amendment lists and either show how claims were in error or why the disability community took a different position. ADA Lobbyists used this information in visiting members of the House, presenting a “Disability Rights 101” education course. Lobbyists were not just Washingtonians. Often at their own expense, persons with disabilities flew and drove in from around to be part of the Washington effort. The National Council on Independent Living (NCIL), for example, ensured that at least one of its representatives resided in Washington throughout the congressional deliberations. On many occasions, Liz Savage offered her apartment as a sort of boarding house for outof- town visitors. Once they arrived in Washington, grass roots advocates met with leaders in the ADA coalition to get weekly briefings and plot strategy. They also coordinated their lobbying techniques to ensure that they were presenting a unified message to members of Congress.

Grass roots participation in lobbying helped humanize the ADA. Many members were seeing persons with disabilities for the first time and viewing them as assertive citizens. This helped break down the stereotype of persons with disabilities as dependent children. It also illustrated that disabled people could make a difference and offer valuable contributions to society—if only given the chance. Only a minority of people with disabilities, however, could make personal trips to Washington. Others did what they could in their local communities. Kathleen Kleinmann, for example, wanted to do whatever she could do from her home in rural Pennsylvania. She felt she simply had to be a part of the action. “We had that urgency about us,” she said. “It was contagious. It spread through the whole country."41 For Kleinmann and many others, NCIL was the crucial link to activities taking place in Washington. Through it they could learn when and to whom they should write letters. Moreover, people in various local committees applied pressure on the local offices of their representatives. They also contested erroneous public statements about the ADA by calling into local radio shows and making local television appearances.42

“The President has endorsed it. The Senate has overwhelmingly passed it. Now it’s up to you. Don’t weaken a law that will strengthen America.” —New Year’s Postcard

The largest single letterwriting campaign took place between the 100th and 101st Congresses, during the winter of 1989–90. The campaign was directed at members of the House of Representatives, who were frustrating many in the disability community by taking so much longer than the Senate and proposing “weakening amendments.” Thousands of “New Year’s” postcards were mailed throughout the country with a cover letter from James S. Brady, soliciting individuals to mail to them to their congressman. The front of the card printed “ADA” in giant letters for a background. Set over it was the statement: “Our New Year’s Wish For Congress: Open the Doors to America. Pass the Americans with Disabilities Act.” On the back it said: “The President has endorsed it. The Senate has overwhelmingly passed it.” And in larger letters: “Now it’s up to you. Don’t weaken a law that will strengthen America.” Space was provided for people to add their own personal messages. They were encouraged to send cards to their own Congressperson, committee members from their states, Speaker of the House Foley, and Minority Leader Michel.43

In addition to lobbying, sending letters, and making phone calls, persons in the disability community, both inside and outside Washington, served the important function of presenting testimony at congressional hearings. As with the hearings of 1988 and the Senate hearings of 1989, the House’s ADA hearings included powerful testimony about the need for civil rights protections for persons with disabilities. Persons from the disability community also offered their technical expertise on specific issues and countered the claims of those who proposed weakening amendments.

A final way in which the disability community exerted pressure on Congress and the Bush administration was through demonstrations. One of the most significant protests was organized by ADAPT in September, 1989. In a long ADAPT tradition, the demonstration coincided with the annual meeting of APTA in Atlanta, where Secretary of Transportation Samuel K. Skinner was expected to present an address. On Sunday, September 24, about 100 people throughout the U.S. and Canada, most of whom were in wheelchairs, protested at the entrance of the Hilton Hotel convention site. Stephanie Thomas, a spokesperson for ADAPT, said they were protesting APTA because of its opposition to the ADA.44

At about ten o’clock the following morning, on September 25, more than 100 disability activists occupied the main floor of the Richard B. Russell Federal Building and blockaded the main entrances. Some attached chains and bicycle locks to their necks and locked them to door handles so that security could not simply lift them from their wheelchairs. ADAPT demanded that Secretary Skinner sign an executive order requiring the purchase of accessible vehicles for all new transit buses, which would take effect immediate. “We’re here until the order gets signed,” said Michael W. Auberger, one of the co-founders and leading organizers for ADAPT. “They’ll have to carry everybody out or arrest them."45 Later that day, at around six o’clock, Atlanta police and security officers from the General Services Administration (GSA) did just that. They used bolt cutters to remove demonstrators from the building.

“We’re here until the order gets signed. They’ll have to carry everybody out or arrest them.” —Mike Auberger

About two hours later, only a few protesters still remained in the building. From inside the building, Marca Bristo contacted Evan Kemp, who told her to call Boyden Gray directly. As she was on the phone with Gray, a police officer insisted that she leave the building. Bristo left, but only after she handed the phone to the officer to prove she was talking to Gray from the White House. Gray subsequently contacted President Bush. Within minutes, police and other security officers began letting the disability activists back into the building. After speaking with Gray, President Bush had personally intervened to inform Gary C. Carson, Regional General Services Administration (GSA) administrator, that the protesters should be allowed to stay.46 Carson attributed Bush’s action to the president’s “deep commitment to the handicapped and their right to protest.” Apparently, Bush was also concerned about the alternative of having them stay overnight outside the building in a chilling rain.47 Auberger and others welcomed Bush’s intervention, but threatened to stay until Skinner signed the executive order they demanded.

The sit-in ended the following afternoon subsequent to an agreement between the Urban Mass Transportation Administration (UMTA) and leaders of ADAPT. UMTA agreed to help facilitate a process of identifying and interfering with transit operators that were rushing to buy inaccessible buses before the ADA was enacted. UMTA also agreed to relay to Secretary Skinner ADAPT’s desire to see more effective implementation of the Air Carriers Access Act of 1986, which required accessibility for air travel. The agreement fell short of ADAPT’s demands. Yet it appeared to be the best possible action, since UMTA explained that Skinner did not have the authority to issue such an executive order.

ADAPT, however, was not finished with its demonstrations. The next day, Wednesday, September 27, protesters effectively shut-down the Atlanta Greyhound terminal for several hours by encircling the terminal and blocking buses. They chanted: “We Will ride!” “Access is our civil right!” One protester even climbed into the bus, sat in the driver’s seat, and chained himself to the steering column. Only four buses carrying about 80 passengers left the terminal during the protest, compared with a typical 20 buses carrying 600 passengers. The purpose of the demonstration was to urge Greyhound and other intercity bus services to begin purchasing lift-equipped buses. The protest ended, however, with the arrest of over 20 activists, who received $75 fines the following day.

Five-and-a-half months later, amidst seemingly stalled House deliberations, ADAPT organized another demonstration—the “Wheels of Justice” campaign.48 Disability activists from around the country gathered on Sunday night, March 11, to plan the week’s events. Wade Blank and Michael Auberger, co-founders of ADAPT, were there. Other leading ADAPT organizers included Bob Kafka, Mark Johnson, Stephanie Thomas, Dianne Coleman, Ben Freeman, and Bernard Baker. At noon the following day, hundreds of activists associated with ADAPT and other disability organizations assembled at the White House. From there they marched and rolled to the Capitol, where they gathered at the west front to listen to speeches from ADA supporters. On the way, they chanted: “What do we want?” “ADA!” “When do we want it?” “Now!”

At the Capitol, Justin Dart, now Chairman of the President’s Committee on the Employment of People with Disabilities, addressed the crowd as “pioneer patriarchs of the twentieth century.” He likened the ADA to the Declaration of Independence and urged those assembled to “go forward, in the spirit of Ghandi and Martin Luther King, with love, with reasoned truth, with unyielding insistence on respect for the sacred value of each human life.” Concluding with a demand for immediate passage of the ADA, Dart declared: “We are American citizens and we will be part of the American dream."49 Congresswoman Patricia Schroeder and Congressman Major Owens also spoke in support of the ADA, likening the disability rights movement to the civil rights movement of the 1960s. Additional speakers included I. King Jordan, President of Gallaudet University, Evan Kemp, Chairman of the EEOC, and James Brady, former press secretary for President Ronald Reagan.

“We are American citizens and we will be part of the American dream.” —Justin Dart

Auberger was the final speaker. He, too, likened the efforts of those gathered to earlier movements for equality. He described the plight of people with disabilities and urged that disability activists must remain steadfast in demanding civil rights. Then, sitting in his wheelchair at the base of the Capitol steps, Auberger observed that the steps “were a symbol of discrimination against the disabled.” Yet, he said, he would not let them continue to be an obstruction. “We will not let any barrier prevent us from the equality that is rightfully ours."50 As he concluded his speech in front of television cameras, many individuals left their wheelchairs behind to climb the Capitol steps—a symbol of their fortitude in surmounting barriers.

On Tuesday, March 13, ADAPT continued its campaign by meeting with House Speaker Foley (who assumed the House leadership position after Congressman Wright’s resignation), Republican Leader Michel, and Congressman Hoyer in the Capitol Rotunda. Leaders of the protest insisted on immediate passage of the ADA. When Foley informed the crowd that two months was a likely time frame, more than 100 demonstrators began chanting: “ADA Now!” Foley and Michel subsequently departed. Hoyer stayed a little longer and departed with a thumbs-up signal. Then, Capitol police told the demonstrators to leave, as demonstrating in the Capitol is against federal law. Most demonstrators refused, however, and formed a tight circle; many chained their wheelchairs together. They chanted: “Access is a civil right!” and “The people united will never be defeated!” But police officers, many protected with riot gear, began using chain-cutters and torches to break through the links demonstrators had fashioned. For about two hours, police reportedly arrested 104 people whom charged them with demonstrating in the Capitol building.51 The next day, Wednesday, March 14, protesters assembled in Congressmen Shuster and Fish’s offices. Others crowded the Energy and Commerce Committee markup session. Numbers dwindled over the rest of the week, however, as many were appearing in court.

The “Wheels of Justice” campaign did not bring immediate passage of the ADA. And the ADAPT demonstration in Atlanta did not result in an executive order that required the purchase only of accessible transit buses. Yet the protesters were more concerned with demonstrating the lengths to which persons with disabilities would go to secure their rights. In that sense they succeeded. The events were also an indication that further demonstrations could follow if the ADA got stuck in a quagmire. Combined with the other education and lobbying efforts of the ADA coalition, these activities underscored the nationwide, grass roots demand for passage of the ADA.

Although such demonstrations reflected unity within the disability community, there was not complete unanimity among all people with disabilities. The National Federation of the Blind (NFB), for example, was outspoken in its reservations about the ADA. At its 1989 convention in Denver, Colorado, NFB passed a resolution declaring that if the ADA “could not be amended to cure its weaknesses, it should be opposed.” Early in 1990, Kenneth Jernigan of NFB wrote a brief, “Reflections on the Americans with Disabilities Act,” to explain NFB’s position. The primary concern, he said, was that the ADA might create additional problems for blind people as it attempted to eliminate other problems. In particular, NFB feared that the ADA might force people with disabilities “to accept the special accommodations mandated by the bill and . . . [prevent people] from using the same facilities and services that are available to others.” Such accommodations, Jernigan said, may themselves become discriminatory, and make the ADA “a source of unintentional discrimination against some persons with disabilities."52

For instance, NFB cautioned that the provision of specially-equipped rooms in hotels might require blind persons to use specific rooms and prevent them from staying near friends. To NFB, the alleged need for this accommodation (or for street corners with audible sounds for crossing and specially-designated seats on buses) was based on “the false assumption that sight is essential for successful performance of most tasks.” Blindness, said Jernigan, “is not generally disabling.” Consequently, unwanted accommodations falsely portrayed blind people “as limited in ways that they are not” and imposed unfair and unequal restrictions.53

As a solution, NFB proposed an amendment stipulating that people with disabilities had the right not to participate in programs or activities specially designed for disabled persons. During the fall of 1989, NFB worked with John Wodatch of the Justice Department to elicit the backing of the administration. Following a meeting with White House staff on January 19, 1990, NFB representatives were confident that they would obtain their proposed amendment. But, Jernigan said, if the amendment is rejected, “we must oppose the bill as vigorously as we can . . . we will do anything we can to slow it down and block [the ADA’s] passage.” He concluded his “Reflections” with the cautionary statement: “Simply because a thing calls itself civil rights, that does not mean that it is civil rights."54 NFB eventually attained its goal through an additional clause to the ADA: “an individual with a disability shall not be denied the opportunity to participate in . . . programs or activities that are not separate or different."55 Subsequently, NFB did not oppose the ADA.

35. Wendy Lechner, interview, November 4, 1993.

36. Ibid.

37. Dan Burton to “Colleague,” October 4, 1989, in possession of Feldblum.

38. Ron Marlenee, “Americans with Disabilities Act: Washington’s Latest Way to Crush Businesses, Schools, While Hurting the Disabled,” to Postal Patron, 2nd Congressional District, Montana, in possession of Feldblum.

39. Chuck Douglas, “Berserkers: Time Bombs in the Workplace: How Can We Protect Ourselves From an Apparently Growing Menace?” to Colleague, March 16, 1990, in possession of Feldblum.

40. Liz Savage, interview, February 26, 1997.

41. Kathleen Kleinmann, conversation with author, June 5, 1997, Renaissance Hotel, Washington, D.C.

42. Marca Bristo, interview, February 20, 1997.

43. Consortium for Citizens with Disabilities, “A Message From Jim Brady - Calling on America,” [no date], in possession of Feldblum.

44. Alma E. Hill and Sandra McIntosh, “Handicapped Demonstrators Block Building: Dozens of Disabled Protest Poor Transportation Access,” Atlanta Journal-Constitution, September 25, 1989, p. A8.

45. Pat Burson and Alma E. Hill, “Bush Order Lets Disabled Resume Courthouse Sit-In: Protesters Demanding Access to U.S.-Funded Transit Systems,” Atlanta Journal-Constitution, September 26, 1989, p. A1.

46. Marca Bristo, conversation with author, June 5, 1997, Renaissance Hotel, Washington, D.C.; Evan Kemp, interview, December 16, 1996.

47. Burson and Hill, “Bush Order,” p. A1.

48. Richard Bryant Treanor, We Overcame: The Story of Civil Rights for Disabled People (Falls Church, Virginia: Regal Direct Publishing, 1993), p. 117. Much of the following description of the week’s events are based on Treanor, pp. 117–22.

49. Quoted in Treanor, We Overcame, pp. 118–19.

50. Quoted in ibid., p. 119.

51. Steven A. Holmes, “Disabled Protest and are Arrested,” The New York Times, March 14, 1990, p. B7.

52. Kenneth Jernigan, “Reflections on the Americans with Disabilities Act,” [date: “early 1990”], in possession of author.

53. Ibid.

54. Ibid.

55. ADA of 1990, § 302(b)(1)(C).

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