ADAWatch.org
Opinion: As the ADA Amendments Act passes in the House ...
By the National Coalition for Disability Rights
The ADA Watch/NCDR Board and State Steering Committee has announced, in a show of unity with other disability organizations, its support of the ADA Amendments Act.
This is not, however, the ADA Restoration Act we all worked so hard on and it is quickly moving forward without the support of key disability rights organizations and leaders. The concerns being voiced come from many who were vital in the passage of the Americans with Disabilities Act in 1990. The Disability Rights Education and Defense Fund (www.dredf.org), for example, as part of an analysis posted on their website, states that:
"Passage of the current deal will improve the status quo for many, but it will also mean that the opportunity to correct the paradigm to remove severity as a factor of coverage and include many more who are currently unable to use the ADA because they are not considered "disabled enough" will be lost or indefinitely delayed as the new provisions are interpreted up the judicial ladder."
[The medical severity test evokes eligibility criteria for benefits programs, an area of law that the courts encounter more frequently, rather than supporting a civil rights interpretation. The severity of disability should be irrelevant to whether the plaintiff's impairment resulted in discrimination. The ADA Restoration Act, unlike the ADA Amendments Act, would remove a medical severity test, allowing any person with an actual or perceived impairment the opportunity to show that he or she was subjected to an adverse action on the basis of that impairment.]
As you might have noticed, ADA Watch has been publicly quiet for some time now. Spending 18 months on the Road To Freedom bus traveling the United States to promote the original ADA Restoration Act certainly has left us in a prolonged period of reentry both organizationally and personally. [See below for what we have been cooking up] But we also we also held our public tongue at the request of disability negotiators who were in "delicate" negotiations with the business community.
Well now those negotiations are over, there is a deal that does not allow for any strengthening of the bill by our supporters in Congress, and there is little time to use this process to build community or change public consciousness about disability rights. There also seems to be, in this process, a missed opportunity.
As this process unfolded, ADA Watch/NCDR was at the table and, like others, expressed our concerns regarding content, process and timing. While many say that this is the best deal that could be had in the current environment, and while the Congressional leadership forced us into negotiations with business lobbying groups before it went to the floor, it seems that we, as a community, could have done more to soften the ground leading to these negotiations. A more cohesive and inclusive campaign, much like the one that led to the initial passage of the ADA, could have produced greater unity in our community and capitalized on all of our strengths — from the grassroots advocates to the legal teams, from our lobbyists to our media experts, and more.
ADA Watch/NCDR was praised by the disability negotiators for the extensive media we received in publicly making the case for ADA Restoration on the Road To Freedom bus tour. While we appreciate the praise, the reality is that we have one of the smallest budgets of any national organization - less than the yearly CEO salaries of some of the larger organizations. The fact that we received the bulk of media coverage in the year prior to this deal leaves us wondering what might have been had there been the will to fund either our campaign or another centralized effort to compete against the well-organized campaign of our opponents. While we often say that we are a poor community and that we can never compete with the well-funded corporate lobbyists, the reality is that — while our constituency is poor — there are billions of dollars being raised annually in the name of disability. Isn't it time that a larger share of those funds went to publically promote the ADA and disability rights - not as charity, not as sympathy, not just as research or cure — but as fundamental civil and human rights.
As we learned in traveling around the country, and as you surely know, we are not winning in the media. More times than not, the ADA is covered as "big government putting "Mom and Pop" stores out of business." (Never mind that this is fiction and that, more times than not, we are talking about multinational corporations!) These stories are generated directly from the news releases from corporate lobbying groups and associations. When the original ADA Restoration Act was introduced these groups took aim, even declaring that individuals with a "hangnail" were now going to be covered by the ADA! Outrageous as they sound, they have been very effective.
So we are left to guess how the negotiations might have been influenced were there an organized effort that matched or even exceeded that which led to the passage of the ADA in 1990. A campaign that drew fairly on the resources in our community. A campaign with earned and unearned media portraying the struggle for equal opportunity nearly 20 years after passage of the world's first civil rights law for people with disabilities. Community organizing efforts to teach and build coalition in support of restoration. Maybe even an ADAPT action at the Chamber of Commerce after the "hangnail" remarks. A united community pushing for full restoration of the ADA.
While, as an organization, we are not second-guessing our colleagues and have expressed support for the ADA Amendments Act, it is difficult not to imagine the results of a more unified effort. One that, in addition to the considerable legal drafting and negotiations, put similar emphasis — and funding — on the other "prongs" of the social change "pitchfork." That we could have gotten more seems evident in the now public sentiment of at least one of the business lobbyists involved in the negotiations. Randel Johnson, a vice president at the U.S. Chamber of Commerce, referring to the original ADA Restoration Act, was quoted in the Wall Street Journal as saying, "We couldn't beat this bill so there was a need for a compromise…"
Concerns about timing have also been raised in regard to sending this bill to President Bush, as the Administration responded to passage of the Act in the House with criticism that it "could unduly expand" coverage and significantly increase litigation. This criticism follows the Bush Administration's release of federal regulations that many disability rights experts declare will further weaken the Americans with Disabilities Act. As disability rights attorney, Steve Gold reports, "On June 17, 2008, the Department of Justice issued proposed rules to the ADA's federal regulations which, if adopted, will significantly undercut the original 1990 compromises and will impose numerous regressive restrictions. Many of the proposed rules will ensure that full accessibility will be, at best, postponed indefinitely."
The process leading to passage of the ADA Amendments Act has undeniably taken a toll on our community. There are many divisions, many bruised egos, many damaged relationships. When the smoke clears, we hope there is an awareness that there remains a need for a unified campaign to change the "hearts and minds" of Americans regarding the ADA and disability rights. We don't claim that our coalition alone is the answer to fill that need, but we hope that we can be a part of such an effort. And as we assess what happened, we should avoid the polarizing — and often self-serving — characterizations highlighting supposed dichotomies in our community such as disabled/nondisabled, lawyers/lay-advocates, Inside/Outside the Beltway, physical/mental disabilities, rights/research, and the like. This is not a time for further segregation but for greater unity.
This certainly is not our last legislative battle and many in our community have said that laws alone will not lead to the kind of social change we are seeking. The "missed opportunity" that many are seeing in this process will present itself again. Perhaps, however, we should not wait for the next battle and can commit now to greater unity and the fostering of a stronger disability community. Now, more than ever it seems, we need to join together behind a common agenda and we need to unite all aspects of what we call the "disability community." We need to work together as national, state and local organizations; legal, non-legal and self-advocacy organizations; advocates and academics; youth organizations; rights and research organizations; student and educator organizations; parent and family organizations; aging organizations; as well as associated non-disability led civil rights and social justice organizations.
We can't afford to exclude anybody who wants to get behind our vision of equality and opportunity for people with disabilities in America.
See below for what the National Coalition for Disability Rights (NCDR) has in the works for fostering "unity in the community" and changing public consciousness about disability rights. New membership information for NCDR has just been posted at: http://www.scribd.com/doc/3621464/NCDRMembership-
What do you think? Contact ADA Watch/NCDR's president, Jim Ward, directly and share your thoughts. He can be reached by email at jimward@ncdr.org and our mailing address is:
ADA Watch/National Coalition for Disability Rights
ATTN: Jim Ward
601 Pennsylvania Avenue, NW, Suite 900S
Washington, DC 20004