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| Vol.22, No.5 |
| March 15, 2000 |
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Reflections on the Americans With Disabilities Act by DICK THORNBURGH Former Attorney General of the United States
On February 24, Former U.S. Attorney General Dick Thornburgh delivered the 2000 Gardere Wynne Sewell & Riggs Lecture, an occasion sponsored by the University of Houston Law Center's Health Law and Policy Institute. Gov. Thornburgh's talk celebrated the 10th anniversary of the passage of the Americans With Disabilities Act. The Texas Medical Center News gratefully acknowledges the University of Houston Law Review for permission to print excerpts from the lecture, which will appear in its entirety in the Winter 2000 issue of the Law Review. The year 2000 gives us the occasion to welcome a new millennium with all the challenges and opportunities that such a momentous milestone implies. It will also give us the chance to celebrate the tenth anniversary of what David Broder, one of our most respected political observers, called at its passage "arguably the most significant civil rights and social policy legislation to become law in more than a decade" - the Americans With Disabilities Act. This celebration obliges us to reflect upon the developing challenges to that law and the opportunities it continues to present to some 54 million Americans with physical, mental and sensory disabilities. In 1990 the need for the ADA was compelling. In spite of heroic efforts by advocates, this country's existing laws and social benefit programs had proven inadequate. Vast numbers of individuals with disabilities lived in isolation and dependence. People with disabilities couldn't get a job, ride a city bus, or go to a restaurant or county library. We as a society had failed to eliminate attitudinal, architectural, and communications barriers. Moreover, barriers in employment, transportation, public accommodations, public services, and telecommunications had imposed staggering economic and social costs on this country. President Bush estimated that each year federal, state and local governments spent much more to support people with disabilities in their isolation than to promote their independence. A decade later our dream is on its way to becoming a reality. We see the advances every day. A new accessible parking space at the local convenience store. A ramp at the neighborhood supermarket. A sign language interpreter at a town meeting. Braille on the ATM machine at our local bank. Fully accessible hotel rooms, with TTYs and roll-in showers. Persons with disabilities beginning to gain new employment opportunities. We are indeed over the threshold of a profound revolution. We as a nation are literally being transformed. People with disabilities are beginning to assume their rightful roles as independent, self-supporting, involved citizens. Today too many Americans fail to appreciate the essence of discrimination that people with disabilities still face in their daily lives. Many Americans still don't see discriminatory barriers - whether they are based on architecture or attitudes. Many Americans still remain trapped by society's stereotypes about disability. Many Americans still think the barriers faced by people with disabilities stem from their disabilities - and not from what we as a society have erected. The promise of the ADA - and all other disability rights laws - will never be realized until we respond, vocally and visibly, to this misconception. Although people with disabilities have the right to live and work and play side by side with their fellow citizens, we know that many people with disabilities do not see and feel the impact of this right in their daily lives - yet. So, how are we to begin the second decade of the ADA era? First, we must continue to focus our efforts on issues that are fundamental in the lives of people with disabilities - access to housing, government services, and the political process; the removal of basic architectural and communication barriers; accessible new construction; and freedom from mistreatment based on irrational fears and stereotypes. In every case we must aim to come closer to achieving the ADA's ultimate goal of integration of people with disabilities into the American mainstream. It is also essential that we educate people with disabilities about their rights and help them develop an expectation of equal treatment. Until recently, people with disabilities had no choice but to internalize the exclusion and unfair treatment they experienced. Discrimination and unreasonable barriers were things that people with disabilities had to accept. This was doubly harmful. Not only were people with disabilities excluded from important societal activities, but they were also sent a message that such exclusion was legitimate and natural. Well, it isn't. Despite our best efforts to educate the American public on the ADA, there are still those in the media, business and government who misunderstand or misconstrue the ADA by implying that it requires businesses and governments to spend outrageous sums removing barriers almost overnight. These criticisms miss the mark. The ADA's requirements provide flexibility to business and government. The ADA strikes a careful balance between the rights of people with disabilities and the legitimate concerns of business and government, including cost. It merely codifies common sense. Within the past year, the ADA has finally reached the United States Supreme Court. A series of judgments have been forthcoming upon various of its provisions. I am frankly somewhat disappointed at the number of covered entities and their attorneys which still choose to expend considerable resources on gratuitous legal attacks on the ADA, rather than on seeking ways to comply. At the same time, a number of state and local governments have attempted, thus far unsuccessfully, to excuse themselves from Title II's sweeping mandate that covers all their activities. There has been considerable litigation concerning whether the ADA applies to zoning, state health regulations, coverage of prisons, treatment of arrestees, and coverage of employment. The Supreme Court seemingly put a number of these issues to rest with its unanimous decision in the Yeskey case in 1998, which upheld Congress's authority to enact Title II of the ADA as it applied to the states with respect to state prisons. This Supreme Court term, an even more serious challenge has been raised to the constitutional reach of the ADA in Alsbrook v. Arkansas. In that case, one of the federal courts of appeals effectively held that the states cannot be sued in federal court for violations of Title II of the ADA. Other courts of appeal have held to the contrary and, as usual, the Supreme Court will have the last word. Title II, of course, is the part of the ADA that precludes public entities such as states, cities and towns from excluding persons with disabilities from services or limiting their access to public facilities. This is powerful stuff indeed. The outcome of this important case, which will be heard in April and likely decided by late June, is problematical, given the court's intense recent interest in federalism issues. It clearly represents the most serious threat thus far to a vigorous enforcement of the ADA and has justifiably mobilized the disability community in its support.
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