By fortressdayton

The original author of the ADA, a man confined to a wheelchair, lamented what the ADA has become. He said that, had he known what abuses of personal and property rights would take place in the name of the act, he would never have written the Act. How’s that for a commentary on the ADA? Society had a responsibility to TRY to accomodate its less-gifted citizens, but it is not obliged to do so. The ADA is a legal boondoggle used by attorneys to generate lucrative lawsuits. It needs to go away. Look around Dayton and see how this works out: every corner nearly has a sight-impaired plastic plate. How many sight impaired folks walk around Dayton? The cost is criminal. Braille buttons on drive-thru (!) ATMs. Gimme a break. Thye ADA has put more small restaurants out of business than the Mafia and the economy combined. Why does a mom and pop restaurant need a ramp and a handicapped accessible bathroom for EACH sex? Nonsense. Every welfare recipient seems to have a power chair now, so the problem is epidemic. I say, stop over-regulating in the private sector. If I don’t want to spend 200,000 to make my restaurant handicap-accessible, then that should be my decision. If you accomodate one, then you must, by rights accomodate all. Why do we get to bring assistance animals in food service establishments? What happened to hygiene? Oh, that’s right…the blind have more of a right to bring Fido in than I have a right to maintain food safety. BS!

After reading that, I was ready to reply in kind – but didn’t. Other commenters jumped into the fray, renewing my conviction in Justice Oliver Wendell Holmes’s assertion that the best remedy for speech that we hate is not its proscription, but more speech. Read what they wrote.

The libertarian argument (I’ve got mine, and I’ll step on your neck to keep it) advanced by “fortressdayton” reminded me of Rand Paul’s remarks about the Americans with Disabilities Act after his primary election victory last May in Kentucky. His language sounded reasonable compared to “fortressdayton”, but it conveyed the same sense of paternalism and noblesse oblige: the disabled  don’t need burdensome laws to help them, we know what is best for them. Here is what Rand Paul said on NPR:

I think a lot of things could be handled locally. For example, I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who’s handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

President Obama and others speak at an event commemorating the 20th anniversary of the Americans with Disabilities Act. [Source: whitehose.gov].  This video is in the public domain. Read the transcript.

Thanks to Ellen Belcher for publishing this piece today on the Dayton Daily News opinion page (PDF) and Matter of Opinion blog.

Disabilities Act Still A Work In Progress

by Mark Willis

This year marks the 20th anniversary of the Americans with Disabilities Act. Twenty years is significant, not because it’s a round number, but rather, because it represents a generation of experience gained since the law was passed.

Many of us who lobbied for the ADA believed at the time that it could take a generation or more, as it had with the Civil Rights Act before it, to fulfill the ADA’s promise of equal opportunity for Americans with disabilities.

I remember the day 20 years ago tomorrow, July 26, when I went to the White House to watch President George H. W. Bush sign the legislation. The event was held outside on the South Lawn, between the White House and the Ellipse. Everyone had to pass through metal detectors to enter. The Secret Service surely had a crash course in disability awareness, because it was the smoothest security check I ever had.

As I walked through the wrought-iron gate, I looked around and marveled, “Wow, they let me in here!” They let me in, and a thousand other people. We had every kind of disability in the human condition, and we used every kind of assistive device available at the time. I like to think we were the most diverse group of citizens ever gathered together at the White House.

The ADA signing ceremony was held outside, not because it was a beautiful summer day, but because the White House itself was not fully accessible. Many in our diverse group of citizens could not have entered the building. Long gone were the wooden ramps installed five decades earlier to accommodate President Franklin D. Roosevelt’s wheelchair.

On its anniversary, pundits will debate what the ADA has accomplished since then. I am no pundit, but I still believe what I said in a TV interview after the signing ceremony. “The ADA will not end disability discrimination overnight. But in a nation governed by the rule of law, getting it in writing is the place to start.”

The Americans with Disabilities Act was an unfinished project at the moment it was signed into law, and it remains an unfinished project today. It depends on all of us, and the work we will do, to carry it to completion.

My own work has been greatly influenced by Paulo Freire, the Brazilian educator and philosopher of liberation. He taught non-literate poor people how to read by first convincing them that, through the daily work they did with their hands, they had culture and made culture. He believed culture to be an unfinished project that he called “the struggle for human completion.”

Listen to that expansive phrase again. “The struggle for human completion.” That is a worldview large enough to include all of us, whether we have disabilities or not. That is a project in which all of us are engaged. That struggle makes us human.

In the years since the ADA became law, we’ve begun to talk about something called “the culture of disability.” I do not think that disability is a fully evolved culture in the same sense that we speak of Mayan culture or even Deaf Culture. But I do believe that the work of disability is a significant form of cultural production.

By “work of disability,” I mean the daily problem-solving involved in living with a disability — making adaptations and negotiating accommodations — according to principles set forth in the Americans with Disabilities Act.

The work of disability is creative work. It’s work that addresses the impairments of individuals, to be sure, but it’s also work that strives to make society more flexible and tolerant. Many of us, disabled and non-disabled, have significant experience with this work, but it seldom shows up on a job resume.

Recently I was invited to talk about the ADA with graduating students with disabilities at Wright State University. I told them, “As you venture forth in the world, you will have to negotiate with people who see the disability, not the person. Some will look at you and see one more hassle, one more problem added to their plate. When I look at you, I don’t see problems. I see problem-solvers.

“So go out there and get it done, this unfinished project called the struggle for human completion. Claim your rightful place in the public sphere. The Americans with Disabilities Act has got your back.”

[This op-ed began as a talk given to graduating students and scholarship winners at the Office of Disability Services reception at Wright State University.]

Shown live from The Great Hall in the Robert F. Kennedy Justice Building, the event will be shown in accessible streaming media and then re-broadcast, on-demand.

Featured speakers will include Attorney General Eric Holder, former Attorney General Dick Thornburgh, former Congressman Tony Coelho, and Assistant Attorney General for Civil Rights Thomas Perez.  Their presentations will be followed by a facilitated panel discussion, moderated by Samuel Bagenstos, Principal Deputy Assistant Attorney General, and will include presentations by ADA experts who played significant roles in the development and passage of the ADA:  Bob Burgdorf, Yoshiko Dart, Chai Feldblum, Arlene Mayerson, and Bobby Silverstein.

See the ADA.gov website for links to live/on demand streams:
http://www.ada.gov/2010adacelebration/ada20webcastinfo.htm

I thought about the ADA several days ago when I passed through U.S. Border Control at Pearson International Airport in Toronto. It’s a journey I make every few weeks, so it should be routine. I have to admit that I still feel a sense of trepidation at crossing the border, proving my citizenship, and explaining my disability to suspicious officials who decide to ask about it. No, I am not a terrorist. I’m just a guy with a white cane who can find his own way through the airport, thank-you. No “special services” are required. After I clear customs, I always sigh with relief and think, “Well, they let me in again”

That civic ritual at the border is a kind of negotiation. It involves my identity as a person with a disability in a give-and-take dialogue with the disability attitudes of others. It reminds me of the day 20 years ago when I was invited to the White House for the ADA signing ceremony.  The event was held outside on the South Lawn, between the White House and the Ellipse. Everyone had to pass through metal detectors to enter. The Secret Service must have had a crash course in disability awareness, because it was the smoothest security check I ever passed. As I walked through the wrought-iron gate, I looked around and marveled, “Wow, they let me in here!” They let me and a thousand other people. We had every kind of disability in the human condition, and we used every kind of assistive device available at the time. I like to think we were the most diverse group of citizens ever gathered together at the White House.

The ADA signing ceremony was held outside, not because it was a beautiful summer day, but because the White House itself was not fully accessible. Many in our diverse group of citizens could not have entered the building. Long gone were the wooden ramps installed five decades earlier to accommodate President Franklin D. Roosevelt’s wheelchair.

On its anniversary, pundits will debate what the ADA has accomplished since then. I am no pundit, but I still believe what I said in a TV interview after the ceremony. “The ADA will not end disability discrimination overnight. But in a nation governed by the rule of law, getting it in writing is how you begin.”

That’s the crux of what I want to say to you today. The Americans with Disabilities Act was an unfinished project at the moment it was signed into law, and it remains an unfinished project today. It depends on us, and the work we will do, to carry it to completion.

My own work in the field of disability studies has been greatly influenced by Paulo Freire, the Brazilian educator and philosopher of liberation. He taught non-literate poor people how to read by first convincing them that, through the daily work they did with their hands, they had culture and made culture. He believed culture to be an unfinished project that he called “the struggle for human completion.”

Listen to that expansive phrase again: the struggle for human completion. That is a worldview large enough to include all of us, whether we have disabilities or not. That is a project in which all of us are engaged. That struggle makes us human.

In the years since the ADA became law, we’ve begun to talk about something called “the culture of disability.” My thinking about it has changed over time, and I am not prepared to say that disability is a fully evolved culture in the same sense that we speak of Aztec and Mayan culture or even Deaf Culture. But I do believe that the work of disability is a significant form of cultural production. By “work of disability” I mean the daily problem-solving involved in living with a disability — making adaptations and negotiating accommodations along the lines of principles set forth in the Americans with Disabilities Act.

The work of disability is creative work. It’s work that addresses the impairments of individuals, to be sure, but it’s also work that makes society more flexible and tolerant. Each of you, disabled and non-disabled, has significant experience with this work, although you may not get enough credit for it. The recognition you received today is a step in that direction, and I congratulate you.

As you venture forth in the world, you will have to negotiate with people who see the disability, not the person. Some will look at you and see one more hassle, one more problem added to their plate. I want you to remember this: when I look at you, I don’t see problems. I see problem-solvers.

So go out there and get it done, this unfinished project called the struggle for human completion. Claim your rightful place in the public sphere, because the Americans with Disabilities Act has got your back. Good luck and good work to you.

[This talk was given to graduating students and scholarship winners at the Office of Disability Services reception at Wright State University. Thanks to ODS director Jeff Vernooy for the opportunity to share my thoughts with the next generation of leaders in the struggle.]

EEOC circulated the following email summarizing the rulemaking:

EEOC Proposed Rule Making addressing the ADA Amendments Act of 2008

On June 17, 2009, the Equal Employment Opportunity Commission voted to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008  which became law January 1, 2009.  The amended ADA lowers the high threshold for establishing that an individual is disabled set by the Supreme Court in Toyota v. Williams, Sutton v. United Airlines, Murphy v. United Parcel Service and Albertsons v. Kirkenburg  The Commission will submit the Notice of Proposed Rulemaking  and  publish the proposed regulatory changes in the Federal Register for notice and comment.

EEOC Vice Chair Griffin explained that the proposed regulations implementing the Act are intended to follow Congress’ direction to reverse the court decisions which narrowed the ADA’s s protections. Stating that the proposed changes provide a good tool for moving back toward Congress’ intention of eliminating discrimination; “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, characterized the proposed changes as an attempt to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes”.   He went on to discuss that the changes utilized  five rules of construction or principles to carry out the Congress’ intent in amending the ADA:

1. Courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability;

2.  An individual need not demonstrate limitedness in “activities of central importance to daily life”;

3.  An impairment that substantially limits one life activity need not limit others to be “substantially limiting”;

4.  The comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and

5.  Impairments lasting less than six months may still be considered “substantially limiting”  including episodic conditions and those in remission.

He noted that the NPRM will identify a number of impairments that will consistently meet the definition of ‘disability’ because they will obviously be substantially limiting.  This list includes expected conditions such as blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski emphasized that the explicit inclusion of certain conditions should never undermine the interactive and individualized nature of  that is central to the accommodation process.  The NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”

DISCLAIMER:  The DBTAC-Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant # H133A060094.  However, you should be aware that NIDRR is not responsible for enforcement of the ADA.  For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling or by calling 1-800-949-4232 (v/tty) or 404-541-9001 (v/tty).

The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.  The Southeast DBTAC does not warrant the accuracy of any information contained herein.  Any links to non-Southeast DBTAC information are provided as a courtesy and are intended to nor do they constitute an endorsement of the linked materials.