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

The Government Response

While persons with disabilities throughout the country were mobilizing to learn about and support the ADA, the general public remained largely unaware of the legislation. Prior to the ADA’s introduction, The Washington Post pointed to the ADA as a potential rallying point for the disability community. But there was virtually no mainstream press coverage, either of the bill’s introduction, or during the rest of 1988. This was due in part to the lateness of the bill’s entree to Congress. Since the ADA’s advocates were not pushing for immediate passage, the bill drew neither the press coverage nor the opposition it would when the bill became a serious proposal in 1989. Individuals throughout the country, however, helped raise consciousness about the ADA by talking with their circles of friends and family. And scores of disability and non-disability organizations endorsed the ADA and funneled information to their members.

Disability and congressional advocates focused much more on the executive branch and Congress than on the general public.¹⁹ The ADA was first introduced, as Congressman Coelho said, “to just get reaction, to get people to respond."²⁰ A prominent executive branch voice was Evan Kemp, who approached the issue both as a Commissioner of EEOC and as a disability rights advocate. He made his first public declaration on the ADA before hundreds of people at the Employers Banquet of the President’s Committee on Employment of the Handicapped. The event took place in the International Ballroom of the Washington Hilton Hotel, just a week after the bill’s introduction on May 5. Kemp wanted a bill that President Bush could support and therefore alerted people to problematic provisions. Kemp spoke primarily about employment issues, of how it made good business sense to tap the market of disabled persons by promoting accessibility, and good government sense to reduce federal spending through employment. For these reasons he applauded the ADA, but he also questioned its current form. Kemp thought the bill needed to be more detailed to avoid control by bureaucratic regulators. He was especially concerned about the definition of “reasonable accommodation” and advocated federal economic assistance to employers to ease the economic burden the ADA might cause. He also thought the proposed limit on reasonable accommodations was “unrealistic” because an employer would have to demonstrate either that the business would be “fundamentally changed” or that it would be forced to file bankruptcy. The definition of “handicap” was also problematic for Kemp. He proposed a restricted definition that focused on what he termed the “truly disabled”: the “severely handicapped” and persons “excluded because of myths, fears and stereotypes.” Kemp’s emphasis on the vagueness of language, limits for accommodation, and definition of disability, foreshadowed several issues that would dominate congressional deliberations.²¹

A vigorous response came from Thomas M. Boyd, Acting Assistant Attorney General, who presented the position of the Reagan administration. While the administration “is deeply committed to the goal of bringing individuals with handicaps into the mainstream of American life,” wrote Boyd, “we have very serious reservations” about the extent and standards of the ADA. Highlighting the potential costs associated with disability rights, and rejecting the link to provisions for minorities and women, Boyd emphasized the need to keep the pursuit of equal opportunity “within manageable bounds.” Especially problematic were the ways in which the ADA departed from Section 504 in two ways: first, by requiring barrier removal uniformly for both existing and new facilities; second, by incorporating the “utterly unrealistic and extreme” provision that a business could defend itself against charges of discrimination only if its basic existence was threatened by the cost of accommodations. The administration objected to the ADA’s novel definitions of “handicap” and “reasonable accommodation,” and questioned the application of reasonable accommodation beyond employment settings. Boyd also repudiated the proposal for requiring all new transportation vehicles to be accessible, and demurred to ordering implementation of universal design in new housing. Finally, the administration proposed a more limited standard of accessibility to public accommodations, and demanded that the effective date for the bill be delayed at least a year.²²

Although the Reagan administration, as illustrated in Boyd’s letter, was at best cautious in its support of the ADA, the disability community’s sights were set on the next president. In fact, one of the principal reasons for introducing the ADA in 1988 was to use the politics of a presidential election year to solicit candidate endorsement and induce the candidates to outbid one another. People in the disability community correctly believed that presidential support was crucial for the ADA’s success. They worked for both campaigns to encourage disabled persons to vote and make disability a campaign issue. They had some leverage. On June 30, 1988, the Louis Harris polling company determined that the disability community comprised 10 percent of the electorate, was “a force to be reckoned with in the politics of the future,” and could be the deciding factor in a close election.²³

Vice President Bush’s personal experience with disability shaped his relationship with the disability community. He had a daughter who died from leukemia, a son with a learning disability, an uncle with quadriplegia, and a son whose cancer required a plastic ostomy bag. In conjunction with his leadership of President Reagan’s Task Force on Regulatory Relief, his support of the disability community had grown steadily since 1983. This was due in no small part to Kemp, who worked with Bush by writing many of his public statements.

In the September issue of the disability magazine Mainstream, Kemp faced off with Timothy Cook of the Public Interest Law Center of Philadelphia (PILCOP) to argue the respective attributes of the two presidential candidates. Kemp noted how, on March 1, 1988, Vice President Bush wrote to the Gallaudet Board of Trustees and urged the Board “to set an example and . . . appoint a president who is not only highly qualified, but who is also deaf.” A month before the ADA was introduced, on March 31, Bush also pledged to support legislation providing persons with disabilities “the same protection in private employment that is now enjoyed by women and minorities."²⁴ Kemp noted how Bush made an even stronger commitment when he participated in the swearing in ceremony of Paul Hearne as Executive Director of the National Council on Disability, on August 12, 1988. Bush’s presence alone, before nearly 100 persons with disabilities and the organization that authored the original ADA, symbolized his support of the disability community. But Bush went further and, while he did not endorse the ADA introduced to Congress, said that he would promote a civil rights act for people with disabilities.²⁵ Kemp’s efforts in courting Bush also bore fruit at the Republican convention in August, where Bush incorporated the rights of disabled persons into his acceptance speech. He did not say much, but it was the first time disability was included on such an occasion: “I am going to do whatever it takes to make sure the disabled are included in the mainstream. For too long, they have been left out, but they are not going to be left out anymore."²⁶

Cook, a leading disability advocate for Dukakis, focused on Michael Dukakis’s strong record on disability as Governor of Massachusetts. Similar to other states, Massachusetts provided full access for persons with disabilities in all state assisted programs and activities. It was also one of few states to have an executive level independent agency to enforce disability civil rights. Cook noted that Governor Dukakis strengthened enforcement mechanisms for accessibility standards, including barrier-free sidewalks and roadways. He also made concerted efforts to recruit persons with disabilities for government offices, including high-level leadership positions such as the Massachusetts’s Rehabilitation Commission. Moreover, Governor Dukakis had augmented Massachusetts’ health insurance, attendant care, and education programs for persons with disabilities.²⁷

Yet, while Dukakis promoted accessibility in campaign functions and gave a mild endorsement to the principles of the ADA, he did not court the disability community as vigorously as Vice President Bush. In addition to his personal experiences with disability, Bush’s leadership of the Task Force on Regulatory Relief and the disability community’s defensive effort helped convinced Bush of the power of the community as a voting block: it commanded respect and could pay high dividends. Bush did not let the opportunity escape him. For example, at the suggestion of Kemp he made a point to incorporate disability issues into his presidential debates.

Dukakis, on the other hand, was facing criticism that he and the Democratic party were too beholden to interest groups, which led him to downplay rather than accentuate direct appeals to specific constituencies such as persons with disabilities. He thereby alienated much of the disability community. Some of Dukakis’s tempered support of the disability community may in fact be attributed to the disability community itself. Some disability advocates had advised Dukakis not to come out too strong on behalf of the ADA. Their goal was to have both candidates endorse the principles of the ADA so that whoever was elected would be on their side. They thus wanted to encourage Bush to support the ADA by giving him room to outbid Dukakis, rather than make Bush feel as if he needed to contrast himself with Dukakis by being more reserved in his support of the ADA.²⁸

ADA advocates also sought the support of members of Congress. The disability community joined congressional staff and members in a cosponsorship drive that began before the ADA was first introduced and continued throughout the entire session of Congress. Cosponsorship is crucial to the success of any bill. It promises affirmative votes and enables advocates to gauge the level of support. Cosponsorship is also important because, if one can achieve a cross-section of party and ideology, it helps thwart reflexive, negative reaction and partisan labeling. Although ADA advocates anticipated a high level of cosponsorship because they presented the ADA as a civil rights bill, the process proved to be very difficult. Members did not take the issue of costs lightly and were reluctant to attach their name simply because someone else had done so.²⁹ Nevertheless, by the close of the 100th Congress on October 22, 1988, 26 senators and 117 representatives had endorsed the bill.

19. Denise Figueroa, interview, March 12, 1997.

20. Tony Coelho, interview, November 22, 1996.

21. Evan J. Kemp, Jr., “Before the Employers’ Banquet of The President’s Committee on Employment of the Handicapped,” May 5, 1988, in possession of Evan Kemp.

22. Thomas M. Boyd to Honorable Edward M. Kennedy, [1988], in possession of Chai Feldblum.

23. Louis Harris, “Disabled, 10 percent in Electorate, Could be Pivotal in November,” Press Release, June 30, 1988, National Rehabilitation Hospital Research Center Library.

24. Quoted in Evan J. Kemp, Jr., “Where Was George?” Mainstream 13:5 (September 1988), pp. 13–14.

25. Paul Hearne to Billie Jean Keith, May 9, 1997, in possession of author; Hearne, telephone conversation with author, May 14, 1997.

26. Quoted in Mark Johnson, statement, Senate Hrgs. (May 16, 1989), pp. 145–46.

27. Timothy Cook, “Why Disabled People Should Vote for Mike Dukakis,” Mainstream 13:5 (September 1988), pp. 17–19.

28. Wright, interview, November 19, 1993.

29. Rochelle Dornatt, interview, December 4, 1996.