July 26, 1990 won’t be soon forgotten. On that day, President George H. W. Bush signed what White House staff publicized as as “the most sweeping civil rights statute since the 1964 Civil Rights Bill." The legislation prohibited discrimination in employment, public services, accomidations, and transportation, while simultaneously improving communication services for disabled individuals.
Last week, H.R.620, the “ADA Education and Reform Act of 2017”, moved out of committee and will soon be voted on by the full house. On the surface, it’s five pages of double-spaced text that reinvents the Americans with Disabilities Act (ADA); updating it for a more modern world. But like many congressional bills, inner political machinery is rarely made apparent by the title. Allow me to explain how the passage of H.R.620 would drastically hamper disability rights.
A Brief History of Disability Rights Legislation
“Three weeks ago, we celebrated our nation’s Independence Day. Today, we’re here to rejoice in and celebrate another ‘Independence Day,’ one that is long overdue.” These are the words Bush chose to describe his signing of the ADA, and to believe reports from the time, it certainly was a victory worth celebrating.
The main question then becomes: what exactly were Americans with disabilities liberated from? Many of my friends in chronic illness communities were, like myself, affected by disabilities during their childhood, each to a greater or lesser degree. Because of these radically differing experiences, few of my peers truly understand and appreciate the work advocates who have come before. I still have much to learn.
In a 2015 essay entitled, “Why I Wrote the Americans with Disabilities Act," Robert L. Burgdorf Jr., the legislation’s primary author, deftly turns back time and allows us to peer into our past:
Large numbers of children with disabilities were systematically excluded from American public schools. In the early 1970s, according to widely quoted estimates, approximately 1 million school-aged individuals with disabilities were totally excluded from public educational programs, and another 3 million pupils with disabilities attended public schools but were not provided services to meet their basic educational needs. This meant that well over half of all kids with disabilities were not receiving minimally adequate education.
Prior to 1990, discrimination against disabled individuals was rampant thoughout public and private life, presenting a social disease that if left untouched would consume the best ideals of our country. Disabled infants were murdered by a society that denied them lifesaving medical care, the mentally disabled were placed into segregated schools, and individuals with undesirable physical or mental traits were subjected to forced sterilization. Those are horrors we never want repeated.
Mark my words, the Americans with Disabilities Act mattered when it was passed twenty-seven years ago, and it matters today, in 2017, when the party of Bush is attempting to take away the rights they were once proud to erect.
As frequent readers of my journal are already aware, I recently became a wheelchair user, after months on crutches took a heavy toll on my hands and wrists. As my condition marches on, it also makes walking long distances extremely difficult. Will I need a wheelchair indefinitely? Only time will tell, but after spending several months relatively homebound, I welcomed the freedom that a wheelchair provided. When paired with accessible public transit, I can travel almost anywhere in the Denver metro.
However, two offices that I’m medically required to frequent remain difficult to access even after months of conversation. My experience, I’m told, is far from unique. Perhaps, if I drove, the buildings would be accessible, as most facilities have ramps from the parking lot. Instead, if I take public transit, I’m consigned to enter via the rear entrance or roll up the motor vehicle driveway, both less-than-ideal situations, and the latter of which places me in significant unnecessary risk. I have injured my shoulder many times due to the steep incline which wasn’t intended for wheelchair use.
This is the story of many disabled individuals. Most, I expect, will calmly ask for access until they can no longer function without it. Speaking for myself, it’s good to know when the conversation becomes too much, federal law is on my side.
Last week, the ACLU blog ran with a stunning headline: “Congress Wants to Change the Americans With Disabilities Act and Undermine the Civil Rights of People With Disabilities." I read the post thanks to a friend who shared it on Facebook, and it didn’t take long before critics appeared, with one sharing an article from the Twin Cities Pioneer Press (Minnesota). The Twin Cities is a seemingly evolved community, but several local businesses still had feisty comments when asked about being sued for access.
The article, which I should add is but one among many, employs terms like “drive-by,” “shake down,” and “legalized extortion,” to describe the actions taken against inaccessible businesses. This represents a fundamental (if popular) misunderstanding of how these lawsuits work, and only serves to sensationalize these business owners’ accounts in the press.
While I’ll be the first to admit that legal scams exist, it’s inaccurate to attribute most ADA-related litigation to enterprising, unscruplous lawyers. In fact, while I didn’t begin this post with the intent of explaining the rising number of ADA-related lawsuits, I believe that with some surety, I can.
It seems the tide of disability advocacy began to rise once again in 2005, when the National Council on Disability, an independent federal agency charged with advising the President, Congress, and other federal agencies, recommended stronger ADA enforcement. In its memo, “Righting the ADA”, the NCD directly asked Congress to “increase the inclusion, independence, and empowerment of all Americans with disabilities.”
Explaining the Rise in ADA Lawsuits
Following the trail of updates made to the ADA system since, it seems that the most relevant changes came in 2010 to the widely criticized Title III, which covers accessibility in public accomidations and commercial facilities. Restaurants, hotels, and the like are were all affected. Mainly, public commenters were frustrated by updates made to sections 4.1.3(8) and 4.1.6(1)(h), the specification for accessible public entrances. In Appendix B to Part 36 of the 2010 ADA Standards for Accessible Design, the Department of Justice decided to comment on its detractors:
Commenters representing small businesses recommended retaining the 1991 requirement for fifty percent (50%) of public entrances of covered entities to be accessible. These commenters also raised concerns about the impact upon existing facilities of the new sixty percent (60%) requirement.
The rule in question involved a slight increase in the number of wheelchair-accessible entrances, even though, as the Department wrote that requiring at least sixty percent of entrances to be accessible “is not expected to result in a substantial increase in the number of accessible entrances compared to the requirements of the 1991 Standards.”
By comparison, the 1991 publication employed opaque language that I expect was difficult to implement correctly. In the same sections, at least 50% of public entrances were required to be accessible, with an additional stipulation that the number of accessible entrances be equivalent to the number of exits required by building and fire codes. Thus, beginning in 1991, newly contructed facilities should have been accessible from both mandantory entrances, a point the Department acknowledged, too, writing in 2010 that they believe “commenters misunderstand” the previous regulation.
I believe this subtle change in regulatory policy explains the uptick in claims regarding the Americans with Disabilities Act. While some publications (namely Insurance Journal) seem to have beat me on this otherwise timely analysis, all media outlets nevertheless read it as a negative. To the contrary, I believe this theory explains a trend that is overall positive, but I’d be a hypocrite if I didn’t reveal how the ADA has already helped me.
Remember that I mentioned how important accessible public transit has become for me in recent months? Denver’s metro transit agency, RTD, recently settled a complaint wherein they will retrofit 172 lightrail trains to improve accessibility. These coming changes are the result of a 2014 lawsuit by the Colorado Cross Disability Coalition, a nonprofit dedicated to advocating a progressive disability rights agenda. The lightrail operators, RTD says, will be receiving annual mandatory training to refresh their memory on ADA regulations. (Though when I reached out to the RTD on a recent trip after the driver shrugged off a bicycle occupying a wheelchair space, the universal response from all RTD staff seemed to be a similar shrug.)
How H.R.620 Alters the Legal Process
Early on in this post, I cited the White House who called the ADA a piece of civil rights legislation. This was not by accident. Access is a civil right, a point underscored in my personal life since moving to Denver, home of the legendary “Gang of 19," who threw themselves in front of city buses and blocked intersections with chants of “We Will Ride!” This year, Denver’s Atlantis ADAPT did the impossible and stepped up their activism; holding Senator Cory Gardners office for almost 58 hours, asking that he withdraw support for the Obamacare repeal-and-replace effort and consider bipartisan healthcare proposals.
Activists like myself don’t intend to sit idly by while our rights are stripped, but we need allies. It’s important that you read and understand this argument. H.R.620 has the potential to decimate disability litigation as we know it, and put a stopper in the progress towards total accessibility nationwide.
In brief, H.R.620 has been introduced during the 2015-2016 legislative session by Representative Ted Poe [R-TX] in the house, before being read twice in the Senate under the number S.3446 when sponsored by Senator Jeff Flake [R-AZ]. Since the bill is a short five pages, we’ll read through it beginning in Section Two:
Based on existing funding, the Disability Rights Section of the Department of Justice shall, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability (as defined in section 3 of the Americans with Disabilities Act (42 U.S.C. 12102).
The main issue I take with this bill is that only existing sources of funding can be sourced for disability education programs. While I cannot be sure, I expect this directive will be used to justify siphoning off funds from other areas of civil rights enforcement.
Much like the recently convicted (and even more recently pardoned) Sheriff Joe Arpaio, Poe is another national figure who seems immune to shame. A former Texas judge, this “King of Shame,” insisted that “people I see have too good a self-esteem," so he imposed unique punishments to abase them. “It wasn’t the ‘theater of the absurd,'” he once quipped defensively in an interview. “It was the theater of the different.”
For his part, Flake has taken a similarly intellectual tack. “That conservatism has become compromised by powerful forces — nationalism, populism, xenophobia, even celebrity — explains part of how and why we lost our way,” Flake wrote in a recent book, “Conscience of a Conservative." Much like another Senator from Arizona, both seem publicly vexed by our current political climate, but lack guts to do anything about it.
If we look even briefly at the Department of Justice’s Civil Rights case summaries, it doesn’t take long before we uncover worthy causes, like United States v. Tennessee, a case which recently concluded and brought an end to intitutionalized care at Clover Bottom Developmental Center, the state’s oldest facility that housed individuals who were intellectually disabled.
Next, Section 3 of H.R.620 would create a “dispute resolution” process whereby the affected person(s) must notify the property owner in writing, requesting that accessibility accommidations be made. The property owner is required to provide a written description of improvements to be made within 60 days. As I understand the text, if the total time since the initial request extends past 120 days, then and only then may additional civil remedies be pursued.
Or, should I need to summarize that paragraph, access is not assumed to be a right.
This bill even goes so far as to prescribe content for the written notice, specifying that it must detail the circumstances under which you were denied access to a public area (including the property address), the specific ADA codes that were violated, information concerning previous requests for access, and whether the barrier to access is temporary or permanent.
Access is a Right
H.R.620 places unnecessary responsibility on the disabled individual who only seeks access. It upends 27 years of established legal precident. For my sake, and the sake of disabled individuals everywhere, please contact your congressperson and ask them to oppose it.