Judges felt the ADA wasn't well-constructed as a benefits
law. That was true, because it wasn't one. Still, they fixed it.
In the spring of 2000, actor Clint Eastwood took on the ten-year-old Americans with Disabilities Act. His Mission Ranch hotel in Carmel, California had been sued for access violations under the ADA, and he'd been slapped with a lawsuit he said he'd never seen coming.
"Dirty Harry wants revenge, Washington style," said The Wall Street Journal.
"What happens is these lawyers, they come along and they end up driving off in a big Mercedes," he told reporters," and the disabled person ends up driving off in a wheelchair."
Eastwood appeared on the talk shows Hardball and Crossfire; he was covered in a Fox News Special. The National Journal quoted him. Columnists covered his comments. Newsweek used the "Mercedes" quote on its "Perspectives" page.
The seasoned Hollywood actor had his script and he stuck to it: He wasn't against disabled people. He wanted to help disabled people, who were being preyed on by money-grubbing lawyers. No one was against the handicapped. The law was the problem; had been all along. The law needed to be fixed.
On July 26, 1990, disabled activists had stood and sat in the sweltering sun listening to President George Herbert Walker Bush's words float out over the crowd on the White House lawn. "And now I sign legislation which takes a sledgehammer to another wall, one which has, for too many generations, separated Americans with disabilities from the freedom they could glimpse, but not grasp."
The group on the White House lawn had accomplished a goal many would have thought impossible. They had pushed through Congress a civil rights law barring discrimination against people with disabilities in jobs, in public services and public accommodations. It had passed almost unanimously, and with President Bush's support.
"We rejoice as this barrier falls," Bush was saying. "We will not accept, we will not excuse, we will not tolerate discrimination in America!"
The President picked up one of the many ceremonial pens he would use in the next few minutes, as cameras clicked in the summer sun. "Let the shameful wall of exclusion finally come tumbling down!" he called out, and it was done: The Americans with Disabilities Act was law. Less than a year later, on the campaign trail, Bush told listeners that, were he re-elected, his administration would see to it that all the "able-bodied worked."
What had become of Bush's sledgehammer? The Americans with Disabilities Act said disabled people had a right to work, should be allowed to work, that not letting a disabled person work amounted to illegal discrimination. But neither George Bush nor his speech writer had thought twice about that remark. Seeing to it that the "able-bodied worked" was simply what one said. It was what everybody believed that only the "able-bodied" could, after all, work.
The Americans with Disabilities Act was the law of the land. But its major philosophical underpinnings had never really entered the national consciousness. When it passed in 1990, there was little public discussion; a decade later, enough federal courts had actually declared the law unconstitutional that the Supreme Court agreed to look into the matter: was the ADA unconstitutional? Congress likely had no right passing it in the first place, its opponents said.
In the years following 1990, the case against disability rights continued to
build. Why was there so little rebuttal? The
disability rights movement was very good at getting
laws passed better, it seemed, than gays or women's groups but the movement
shied away from public discourse. It seemed afraid
to open up the issue of disability rights to
public debate lest it lose the debate. What it did
seem to want to acknowledge was that the debate was going on fullbore without it.
Why was there so little support for disability rights?
It was true that the organized disability rights movement had shied away from media. Its leaders felt they had good reason. Most stories about disability were inspirational features about disabled people who had overcome personal affliction with a smile and a bundle of courage, and disability rights advocates said this was not the story they wanted to convey. They seemed to believe perhaps with justification that the could not convince reporters or editors of any other approach.
While they were silent, others were not — particularly those who disliked the idea of granting rights to yet another group. The case against disability rights had the same "you can't make me!" free market histrionics one always got from social conservatives when it came to civil rights issues; the difference was that in this case, almost no liberal groups spoke out in support of disability rights. Why was that?
Most liberals, progressives, believed that the problems racial minorities and women and gays faced were the result of animus, the work of a discriminatory society. When it came to disabled people, though, liberals' views were similar to those of the conservatives. They believed disabled people faced essentially private, medical problems rather than problems of discrimination. What a disabled person needed, they felt, was medical intervention — a cure. Lacking that, they should be given help, through private charity or government benefits programs.
Almost everyone instinctively felt that rights was simply the wrong lens through which to view the disability situation. "The first object of a wise but concerned policy cannot be to make people with serious disabilities move as if they did not have them," The New York Times wrote.
Christopher Reeve, who had become disabled five years after the ADA had become law and was now the most famous disabled person since Roosevelt, was not that concerned about access or rights himself. "I'm not that interested in lower sidewalks," he told a reporter.
Reeve's goal was simply to walk again; he took his quest for cure before millions on ABC's 20/20 and Larry King Live. He spoke to millions more from the pages of Time magazine. His view of what disabled people needed a way to consider their disabilities "as a temporary setback rather than a way of life" resonated with most people. Most of us believed that no one held any animus against disabled people or intentionally kept them out of buildings.
The nation provided for its disabled primarily through special — segregated — approaches: special housing, special transportation, special education. Disability rights was simply unnecessary, went this argument. And many well-meaning people believed it.
The ADA is based on a sociopolitical concept of disability that people don't understand, as one law professor put it. Although conceived as a civil rights law, people did not understand it as one. Judges said the ADA was poorly crafted. Almost all legislation for the disabled was benefits legislation. Judges felt the ADA wasn't well-constructed as a benefits law. That was true, because it wasn't one. But few seemed to understand it — or want to understand it — for what it was designed to be. Legal forays against the law during the 1990s focused mainly on finding ways to use the law to determine whether someone deserved to avail themselves of its protections. Were they "disabled" as the ADA defined it?
Intended to protect anyone against discrimination based on disability, just as the Civil Rights Act of 1964 protected anyone against discrimination based on race, religion or gender, the ADA was interpreted increasingly as a benefits law by the courts throughout the decade.
Twelve years after the ADA's passage, most people still do not understand the nature of disability discrimination. There is still very little public discussion about it. Drafted during a decade in which public good had come to be measured in economic, not moral, terms, the law as passed by Congress contained something the nation's lawmakers had not permitted in its other civil rights law an economic loophole: rights didn't have to be allowed if they cost too much. This ensured that most of the public discourse against disability rights would focus on cost. Much of what was said about the cost of providing accommodation and access was inflammatory and ill-reasoned. Much of it was simply wrong.
Not long after Ella Williams took a job at the Toyota plant in Georgetown Kentucky, moving her family all the way across the state because she was so happy to have landed a job alongside other assembly line workers whose average annual pay was $62,000, she "got lumps the size of a hen's egg in my wrists, and my hands and fingers got curled up like animal claws." Repetitive-motion injuries accounted for more than a third of the 1.7 million workplace injuries reported in 1999, according to the Bureau of Labor Statistics, and Williams was one of those statistics. "I used pneumatic tools that really vibrated, and I was always having to reach above my head," she explained.
She pressed Toyota for accommodation. She got some; but later she was put back on another assembly-line job that hurt her wrists again. After a number of legal skirmishes, Toyota eventually dismissed her. "When you get RSI, they show you the door," she said. Ella Williams' fight against Toyota went all the way to the Supreme Court. Williams was not "disabled" under the ADA, the Court said in 2002. The ADA was supposed to focus on the "wheelchair bound," not "carpal tunnel syndrome or bad backs!" Justice Sandra Day O'Connor had snapped from the bench the previous fall.
The ADA presents a set of new ideas for people, and most people including judges do not know yet what to do with those ideas. The real purpose of protection from disability discrimination is actually to provide equal opportunities for all of us not to identify a particular group of individuals who are entitled to some kind of special treatment.
People called "disabled" by society are just people not different in any critical way from other people. To understand the promise of disability rights, we first have to "come to grips with the underlying realities of human abilities and disabilities," as the law's original architect puts it.
If now in 2003 the case against disability rights seems finally to have lost some of its stridency, it is likely because those pressing that case have won much of their battle and feel they can relax their vigilance. The law will protect only the truly disabled now, believed to be few in number and only if it doesn't cost business.
Reeve wanted "disability" to just go away. Reeve wanted to be cured. "Some people are able to accept living with a severe disability. I am not one of them," he told a Congressional committee a month or so after the Toyota decision. His 50th birthday came and went, and although he'd fueled a minor media frenzy by announcing he'd regained feeling in parts of his body, he still could not walk he blamed opposition to stem cell research.
The Supremes wanted people like Ella Williams to simply shut up. Such people weren't who Congress meant when they wrote the law, they said despite Congressman Steny Hoyer's or anyone else's assertions to the contrary.
For the nation, it was a Catch-22. Congress's intent in passing the ADA, as Hoyer and other members of Congress had repeatedly said, was to keep people in the work force. The Court told businesses they could get rid of such workers, though. "Instead of bringing people with disabilities into the work force, the Supreme Court has kept them out," wrote scholar Ruth O'Brien.
In America one can succeed by pulling oneself up by one's bootstraps, by having courage and determination, and not pressing for "rights." This has been the central argument of those who push the case against disability rights, and for every crip who sees through it, there are thousands millions who do not.
Most people who have "something wrong with them" (and that is an astonishingly large number of us) believe that it is up to us and us alone to overcome the discrimination we run into. Much of what we see as discrimination occurring because we are "disabled" is likely not that at all, says the case against disability rights.
For, after all, no one is against the handicapped.
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