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SOME REFLECTIONS ON THE ADA
by Steven E. Brown
Steven E. Brown is co-founder of the Institute on Disability Culture.
He is currently working on a book about disability rights pioneer Ed Roberts.
Almost ten years ago, I made one of the most difficult decisions of
my advocacy life. As the Chair of the Region VI CIL Directors I made several
trips from my home in Norman, OK to Washington, D.C. to "educate"
lawmakers about the Americans with Disabilities Act.
My brothers and sisters of ADAPT had decided to instruct Congress in
their inimitable way by crawling up the steps of the Capitol Building,
and I wanted to participate in that feat.
But there was a need to keep constant pressure on Congress and many
people would join the ADAPT rally. I made the great sacrifice of going
to Washington a week or so earlier - and missing the ADAPT action.
Ten years ago I had no doubts that the ADA was a necessary and good
law. Today I am not so sure.
I have a long history as an ADA supporter, even after my years of working
toward its passage. For a long time I regretted missing the signing ceremony
as much as I regretted missing the ADAPT action. I had been invited to
the signing but didn't go because I had a prior commitment. All my peers
thought I was crazy. How could I pass up this historic occasion because
of a previous engagement? For me it seemed to be at the heart of what the
ADA embodied: living a life as would anyone else. Keeping appointments,
even if it meant I missed the signing, fit that mold.
Not long after ADA's historic passage I moved from Oklahoma to California
to accept a job at the World Institute on Disability. One of my assignments
at WID included developing a bibliography of ADA-related publications.
It was a perfect task for me, combining my commitment for the promise of
ADA with my passion for research. But California seemed less perfect and
my new spouse, Lillian Gonzales Brown, and I decided to move to the sunnier
clime and quieter pace of southern New Mexico.
Once we landed in Las Cruces in late 1993 and began to explore the community
we realized there were many violations of the ADA. We searched for a lawyer.
After several years of frustration we finally located attorneys willing
to pursue a lawsuit. Four of us sued a "quasi-state agency" (legal
terms). I am intentionally being vague about this suit because the settlement
agreement reached after one year of negotiations restricts our discussion.
For the purpose of this reflection on ADA, the actual legal aspects
of the suit are less important than the stress of the process. First, we
had the daunting task of educating our lawyers about disability issues
in general. They were not only willing but eager to learn; still, someone
had to teach them.
While our attorneys educated themselves about 504 and ADA, we also had
to keep up with the nuances of federal, state, and local law and activities.
All of the time expended upon this suit meant that we weren't working -
and since we only get paid when we work, we made a bargain with ourselves
that our time, perhaps eventually some money (and most importantly, doing
the right thing) would be worth the effort.
After an intense year, our attorneys advised us to settle out of court.
Settlement means compromise and this was not the initial goal of any of
the plaintiffs. But the history of courts in our locality meant that we
had a much better chance eventually to realize our goals through settlement
than with a court date. After hours of discussion with each other and debate
within ourselves, we finally decided to settle.
In this process we learned how limited the power of the ADA really is.
If an attorney is not willing to pursue a remedy where does that leave
us?
ADA requires individual enforcement (I am avoiding the question of the
Department of Justice here because others have detailed that subject).
First, an individual must be willing to make the commitment to pursue legal
action. Then, the individual is required either to retain an attorney or
to pursue enforcing the law without one - pro se, to use the legal term.
This requires that individuals voluntarily learn as much about the legal
system as people who have been educated and paid to do so. And even if
an individual becomes an expert at the law there is no guarantee that a
judge or jury will agree with their conclusions about the meaning and enforcement
of the ADA.
Still I cannot say that any of the above experiences themselves would
have made me take the deep second look at ADA that I am expressing. The
final straw in the frustration with the law arose because of recent travel
experiences.
This past May I participated on two panels in two different cities in
Germany. My role was to discuss ADA. At the first panel, in Munich, I shared
the dais with four politicians, two of whom were members of the Bundestag
(the German legislature). The audience consisted of about 70 people, most
with disabilities. The goal of the organizers was to persuade German people
with disabilities that they can effect change politically. The American
experience in obtaining the ADA's passage was one they wanted to emphasize.
This was great for me because I could discuss the coalition of people
who got the ADA passed. I could discuss the speculation that George Bush
had even been elected because of people with disabilities. And I could
talk about some of the provisions of the law itself without dwelling on
its failures.
Before I spoke I was specifically asked not to discuss employment and
ADA. The moderator said Germans think they have a much better employment
record than Americans. This belief may not be rooted in reality - but perception,
as we know, is as important as reality.
After the panel concluded, one of the members of the Bundestag corralled
me to ask if employment had improved since the implementation of the ADA.
As anyone who follows the statistics knows, I had to respond in the negative.
She then told me that she keeps looking for a country where employment
of people with disabilities is working well - and she has yet to discover
it.
Several weeks later I participated in the second panel at an outdoor
festival in Mainz, several hours northeast of Munich. My fellow panelists
were mostly people with disabilities; the audience consisted of a mixture
of people with and without disabilities. The primary question I was assigned
was "how has life changed for Americans with disabilities since ADA?"
Good question. The only answer I could, in good conscience, share was
that the preamble to the ADA stated that Congress recognized people with
disabilities as a distinct group - and that advocating non-discrimination,
as the ADA does, still retains potential for long-term attitudinal change.
As I write this in July, just weeks prior to many celebrations of the
ADA's signing, I wonder who - besides a slew of lawyers and disability
consultants (yes, including me) - have most benefited from the law?
I spend my life promoting the concept of disability pride. The mission
statement of our organization is, "Promoting pride in the history,
activities, and cultural identity of individuals with disabilities throughout
the world."
I re-read the preamble of the ADA and see its clear intent of providing
"a clear and comprehensive national mandate against the elimination
of discrimination against individuals with disabilities," and mentally
leap with joy at the language.
Then I read the next paragraph whose purpose is to: "provide clear,
strong, consistent, enforceable standards addressing discrimination against
individuals with disabilities." Will this ever happen? I ask myself.
Almost twenty years ago I became a part of the disability rights movement
specifically because of employment discrimination. I was told I could not
do a job researching and writing because I used crutches. I screamed foul
and made a commitment to see that would not happen to me or anyone else
ever again.
But the ADA would never have protected anyone from the discrimination
I encountered at that company, because it was a company with too few employees
to be covered by the law.
Just this week I saw a job application from a public school system that
requested information about physical impairments. It was clearly illegal.
Who was going to do something about it? Not me, and not the person who
was applying for the job, who decided it was not worth her effort - read
time and energy - to right this wrong, or even, finally, to apply for the
job.
As I ponder the vagaries of ADA I am concerned about the tendency of
Americans to believe we do everything better than anyone else, and about
the fact that other disability communities around the globe now want to
have their own ADAs like ours.
In other countries that I have visited, people say it's clear that Americans
have more legal rights than they do. What is much less clear is how those
rights translate into actual living conditions. Many European visitors
to this country believe that living conditions of Americans with disabilities
are deplorable - far worse than those in their own countries.
I am not advocating that ADA be rescinded; I am pleading that we implement
its intent. Until we do, the promise, the preamble, of ADA remains its
most concrete mark. As a nation, I wonder if we will honor that promise?
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