The Media Edge
The Americans with The Consequences of Silence
Disabilities Act will
never truly become
an effective civil
rights statute if
it continues to be
by the American public
by Mary Johnson
Mary Johnson is editor of Ragged Edge magazine.
Have you ever seen a serious article in the mainstream press praising the ADA for what a good law it is? I'm not talking about some fluff feature story, but a serious analytical article in an opinion journal. If you have, please send me a copy. I've never seen one.
Nobody writing today seems to understand the thinking behind the ADA. The folks who do understand it--people who wrote the law, who shaped the regs--they're not talking. As usual.
The Equal Employment Opportunity Commission's "passivity in galvanizing public support for and understanding of the law has undermined the law's effectiveness." This was the major finding of the U.S. Commission on Civil Rights which recently examined the EEOC's--and the Dept. of Justice's--handling of the ADA. It issued its reports in September.
"Helping Employers Comply with the ADA: An Assessment of How the United States Equal Employment Opportunity Com-mission Is Enforcing Title I of the Americans with Disabilities Act" and a companion report assessing the Dept. of Justice's job of enforcing the ADA concluded that both agencies had failed to make efforts to use media to inform the public about the true nature of the ADA, and that the law was suffering as a result.
This bill seemed to come out of nowhere!" said New York Times reporter Steven A. Holmes when the ADA had passed the Senate back in 1989. Not true, of course. But it's no wonder Holmes thought that.. The decision not to seek media attention for this major civil rights bill was a conscious one, according to Pat Wright of the Disability Rights Education and Defense Fund, a chief lobbyist for the law, who told U.S. News & World Report's Joseph P. Shapiro that, had the disability rights movement sought press attention, "we would have been forced to spend half our time trying to teach reporters what's wrong with their stereotypes of people with disabilities." The risk, they felt, didn't seem worth it.
Eight years later, we still haven't changed that strategy, devised back when one of the movement's own, the late Evan J. Kemp, Jr., headed EEOC.
About the time the Commission was issuing its reports--and getting no media coverage--the conservative National Journal ran one of those "government's too intrusive" thumbsuckers; not surprisingly, the ADA was the chief culprit.
"On Feb. 12, Americans awoke to read in their newspapers that the U.S. government--settler of the West, vanquisher of totalitarianism, conqueror of the moon--now writes the rules of golf," complained Jonathan Rauch, writer in residence at the once-thought-liberal Brookings Institution, in his Sept. 19 National Journal article, "Tunnel Vision." It was another in the innumerable Casey-Martin-ADA-decision-implications stories that continue to sprout--virtually all written by people who make no bones about their not understanding the ADA, but who nonetheless feel qualified to oppose the Martin decision and who see in it imminent ruin for society as we know it.
"If you want to understand the full implications of the Casey Martin phenomenon, you need to view it--and the many thousands of other cases in which individuals and their lawyers (or lawyers and their individuals) press rights-based lawsuits--as nothing less than America's third and most extraordinary wave of regulation," writes Rauch. The Martin case, and all the other real or embellished ADA cases he cites, typifies "microgovernment, the new wave of social regulation that knows no boundaries and makes red tape look good."
Rauch's anger is that the ADA's EEOC rules allow decisions to be made about discrimination on a "case by case basis" (although he never uses that phrase).
As is typical in stories of this bent, the "best" examples of the problem come from the ADA and what EEOC has done--some claims so overwrought they verge on the hysteric.
Yet this National Journal article, like so many others of its type--for example, "A Good Law Gone Bad," in the May Reader's Digest (see "News Bites Gimps," July/August)--seems to have gone unchallenged. Maybe disability activists and others are discussing it--but their responses certainly aren't appearing in the national media.
"The media often have portrayed the act negatively, exaggerating the potential for frivolous lawsuits under the law, rather than focusing on the law's promise to provide equal opportunity for individuals with disabilities," said the Com-mission. "Similarly, judicial decisions misinterpreting the intent of the ADA threaten to weaken the law."
Yet, charged the Commission, the EEOC "has not been effective in counteracting negative portrayals of the act in the media and promoting understanding of and support for the Americans with Disabilities Act."
Rauch writes, "The microgovernmental model sets no overall goals, measures no outcomes, allows for little or no evaluation of effectiveness or cost vs. benefit, writes few unambiguous rules, allows no formal public comment even in cases with sweeping ramifications, exiles politicians to the fringe of policy-making, and buys us--well, we have no idea what it buys us. If your goal was to design a regulatory regime that violated every standard rule of good regulatory practice, you could hardly do better."
What he's doing, basically, is condemning the idea of "reasonable accommodation" being based on a "case by case basis"--although he may not know those phrases.
Now maybe, in fact, this way of enforcing the ADA is a bad idea--maybe it was a bad idea way back when it was being discussed even before the ADA passed. But no disability group has ever written or talked about it in public, period. It's a certainty that people like Rauch will continue to influence public understanding of the ADA until a competing analysis is presented that offers the disability rights vision of the ADA. If there is one.
Society never gets to hear the disability side of things--ever. Whose fault is that? The media--for not publishing our views? Or us, for never expressing any in public?
"The ADA will never truly become an effective civil rights statute if it continues to be misunderstood and viewed negatively by the American public," says the Commission. It urges the EEOC "to work with the other Federal agencies charged with enforcing the ADA or protecting the interests of individuals with disabilities."
The Americans with Disabilities Act is unique among civil rights laws for having passed with almost no media attention. Massive press attention preceded passage of the 1964 Civil Rights Act. The Equal Rights Amendment, which was never enacted, was debated extensively in the press. Gay rights issues get far more attention than disability rights in the press, even as hope among gay rights activists for getting a national anti-discrimination law passed seems still faint.
The disability rights movement has never dealt much with reporters. In this way it's been very different than any other movement. While the civil rights movement passed a major civil rights law only after decades of coverage in the press, the disability rights movement got the ADA passed with almost no media coverage whatsoever. A decision to avoid media coverage would seem heretical to most rights causes. Efforts to draw media attention have topped the agendas of the civil rights, gay, environmental and women's movements. Yet in the disability rights movement, little time and fewer resources are given to it.
"What interests the press and the public sometimes is very hard for me to figure out," DOJ's civil rights chief John Wodatch told me last spring when Mouth was getting ready to publish its big investigative report on the DOJ's lackluster Disability Rights Section. (which, by the way, pretty much scooped the Commission's findings on that agency).
Wodatch acknowledged to me that "sometimes we don't do it right."
Most of the time, it seems, they don't do it at all.
Wodatch blamed "the Republican takeover of Congress" which he said "changed things, even in the [disability] community." People were "less willing to talk about ADA victories," he said, "because they're afraid of a backlash. There's a constant worry that someone's going to try to repeal part of the ADA." Not talking about the ADA seemed, as usual, to be the only approach the movement could come up with. That's what Wodatch says he perceived "the community" wanted: silence.
The Department of Justice "does not develop and publish in-depth policy guidance documents to clarify the meaning of the law and explain the reasoning behind the positions it takes in controversial areas," said the Commission.
Wright's decision to avoid the press may have been politically savvy at the time. Given the almost complete lack of understanding about disability rights in the press and on the part of the general public, it's possible that media attention would have served only to stir up people's fears and prejudices, much as some editorials and columns on the ADA prior to passage did (notably the New York Times's editorial and James Kilpatrick's initial columns on the law). The ADA made it through Congress in less than three years--perhaps not long enough, in the view of people like Wright, to change public perception about the need for antidiscrimination laws through the mass media.
Yet the depth of our problem should be apparent when we realize that the concept of "disability rights" itself seemed to movement leaders to be so little understood by media that to make inroads here seemed a less achievable goal than passing major social justice legislation. For most oppressed groups, it's been just the opposite.
To many in the disability rights movement, it seems that myths, stereotypes and misconceptions so abound in the mass media that efforts made to change things can have only a tiny effect. For most of us, it has seemed useless to try.
Eight years after passage of the ADA, that sense of uselessness in dealing with the press on news issues is still in evidence. And that eight-year-old decision for silence now seems to have created its own disastrous consequences.
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