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The Disability Pendulum: the First Decade of the Americans with Disabilities Act by Ruth Colker.
New York: New York University Press, 2005, 245 pp. $45.00 hardcover.


Three Cheers -- Almost -- for the
Americans with Disabilities Act

A review by Art Blaser

It's that time of year when disability rights activists celebrate the July 26, 1990 signing of the Americans with Disabilities Act. This year is the fifteenth anniversary of the law's signing.

Yes, activists cheer the law -- but what they're cheering is the law that passed in 1990, and as reflected in a rich legislative history. That's not the ADA as interpreted by the courts and media, which is quite a different thing.

ADA legal scholar Ruth Colker, in her new book The Disability Pendulum: the First Decade of the Americans with Disabilities Act, gives two cheers for the ADA as written, but none for the law as interpreted by the media and the courts. Both of them, in her analysis, have given a very good law a thoroughly unfair drubbing.

Many discussions of the Americans with Disabilities Act today (chiefly in online discussion groups on the Internet) almost seem as if they come from a Monty Python sketch: "How comfortable will you be the next time your kids go swimming when you know that the ADA requires Deaf Lifeguards to be hired when they apply?" "If you want to harm the handicapped, then go to Washington and lobby to strengthen the ADA!" "If the employer just doesn't want to hire someone because that employer doesn't think the person can do the job for whatever reason, the employer has the right (except in America the land of the free) to hire anybody he or she wants to hire. That IS A BIBLICAL PRINCIPLE ACCORDING TO JESUS."

Disability rights advocates often defend the Act with great zeal. Given the general anti-ADA climate, however, it might be better if we did so with more care and precision. The Disability Pendulum should be part of activists' arsenal, for it clearly shows, despite critics' assertions to the contrary, that the case for disability rights holds up admirably to careful analysis. It is the case against disability rights that is most often based on shallow analysis, argument from anecdote, and obstinate misunderstanding of the law.

What drove Colker to write her book, she says, were assertions in the popular press -- articles from the Wall Street Journal, Reader's Digest, and New Republic -- which insisted the law wasn't thought out, that it was vague, that it offered no clear guidance. Colker's well-researched analysis, based on a rich compilation of data from court rulings, shows that these are far less problems with the law itself than with ADA court rulings. The law itself, Colker asserts, was drafted carefully and in much more detail than any other civil rights statue. According to Colker, the law is clear and has detailed explanations -- which judges ignore.

Despite what the anti-ADA news reports would have us believe, the ADA hasn't brought a windfall to plaintiffs. Where ADA plaintiffs do "win" cases, Colker explains, it often means simply that they got to go forward with their case, against a defendant who sought to have the case dismissed entirely (they "avoided summary judgment," in other words): what they "won" is a chance simply to have their day in court. . Other "wins" are due to the fact that a suit happened to get heard in the court of a judge who wasn't anti-disability rights. Much of the time the reported "wins" thus have little to do with a suit's intrinsic worth.

"This book tells the story of a swinging pendulum.," Colker writes. "The story is not one of consistent pro-defendant or pro-plaintiff victories."

Colker, who holds the Heck-Faust Memorial Chair in Constitutional Law at Ohio State University, has written extensively on the ADA, and seeks in this book, she says, "to capture a snapshot of that swinging pendulum."

Ruth Colker's law review articles on the Americans with Disabilities Act have been cited in Supreme Court briefs in the cases Garrett v. Alabama, Hason v. California, Toyota v. Williams, Tennessee v, Lane, and most recently in Spector v. Norwegian Cruise Lines.

Retiring Supreme Court Justice Sandra Day O'Connor, in a 2002 Georgetown Law School address explained that Supreme Court justices would take what might seem like an extreme position on an issue in one ruling, only to swing back toward the center when they next ruled on the issue. Colker, who discusses O'Connor's speech, says the Justice's perception of the Court's moderation "may ultimately be misplaced" when it comes to the ADA, and points to the narrowness of ostensibly pro-plaintiff ADA decisions. To Colker, they "foreshadow that the Court is prepared to strike down many aspects of ADA Title II."

One of these "ostensibly pro-plaintiff decisions" was last year's Tennessee v. Lane ruling.. By narrowly limiting its decision on the ADA's Title II's constitutionality to "fundamental rights" such as access to courthouses, the narrow majority implied that the ADA's application to a wide range of services might not be constitutional. Even the earlier Olmstead decision may someday be rethought by the Court, she warns. (In Clarence Thomas's dissent in Olmstead, the possible Chief Justice-in-waiting made chilling remarks: "In keeping with our traditional deference, ... the appropriate course would be to respect the States' historical role as the dominant authority responsible for providing services to individuals with disabilities.")

Justice O'Connor contributed to the narrow victory for disability rights in Lane, but to a major defeat in the Court's 1999 ruling Sutton v. United Airlines. O'Connor's thinking in Sutton Colker calls "baffling." O'Connor wrote that only those individuals whose disabilities could not be "mitigated" were entitled to be considered "disabled" for purposes of the law. O'Connor said she based her reasoning on the fact that the law mentioned a figure of "43 million" -- a number too low to account for the millions who had a history of a disability or who were regarded as disabled, she believed. Colker explains in her book that the figure of 43 million Americans with disabilities which O'Connor treated as a "ceiling" was clearly intended by the ADA's drafters as a "floor."

O'Connor "asserted in her speech at Georgetown Law School that the ADA was drafted in a hurried and unthinking atmosphere," writes Colker. "Had she engaged herself in [reading] the rich legislative history underlying the ADA, she would have discovered that her textual decision in Sutton was at odds with that history. Who, one might ask, was hurried and unthinking? Congress or Justice O'Connor?"

Citing former Supreme Court Justice Robert Jackson, who once made the statement that "we are not final because we are infallible, but we are infallible only because we are final," Colker castigates the Rehnquist Court for what she calls its "inconsistent and unwise treatment of legislative history."

O'Connor's remarks at Georgetown are what Colker refers to as "dissing Congress." Even when they ruled in favor of the ADA in the 1999 Olmstead decision, Colker says, the Supreme Court justices "dissed Congress." Even though they upheld the law, they in fact limited the right to live in the community -- to instances where it is "cost effective." Congress imposed no such cost limit, Colker points out -- to Congress, living in the community was a matter of right. Congress did put explicit cost defenses into Titles I and III, Colker explains, but none into Title II.

Meanwhile, the case against disability rights carries on unabated ....
Greg Perry's Disabling America: the Unintended Consequences of the Government's Protection of the Handicapped offers a vivid contrast to Colker's thoughtful approach and a good example of the kind of anti-ADA screed that has so mischaracterized the law. Perry repeats the by-now familiar ha-ha examples of what have been widely reported as ridiculous examples of the law -- the Braille on the drive-through automated teller machine, the hypothetical lawsuit by all public school graduates for damages due to "disabling public education." Not content to rant against the ADA, Perry offers asides on abortion, guns, homosexuality, school vouchers, the United Nations, feminism, psychology majors, AIDS, Hollywood -- and, oh yes, on Greg Perry, who must of course be an expert on "handicapped people" (his preferred label) because he is one.

No pendulum for Perry: he sees only a steady erosion of individual freedoms that must be remedied by getting rid of the ADA altogether.

Curious rights advocates can get a fair sampling of Perry's argument from the online excerpts at http://www.jrnyquist.com/aug27/disabling_america.htm -- a wiser investment of time (and money) than bothering with Perry's full book is to read Colker, then work to move the disability pendulum back to where it belongs.

Familiarity with the case against disability rights is essential, Mary Johnson pointed out in Make Them Go Away: Clint Eastwood, Christopher Reeve, and the Case Against Disability Rights. Authors that Johnson discusses, like Richard Epstein, present the strongest case for the claim in Perry's subtitle.

Juries, too, have been "dissed" by judges, Colker says. She presents data showing that jury trials are often short-circuited by the defendant's successful moves for summary judgment. The facts of the cases never get to be heard by a jury in such cases; decisions that juries should have made are in effect made instead by the judge, who simply dismisses the suit.

Judicial backlash against disability rights was manifest in the 2001 Supreme Court ruling in Garrett v Alabama, in which the ADA was held to be inapplicable to state employees' complaints of disability discrimination. That case had implications not just for how disability rights would be implemented, but whether they would be implemented at all.

In the wake of the Garrett decision, disability rights protections guaranteed by state laws became more important. But, drawing on research conducted with Mercer University law professor Adam Milani, Colker points out that although some states have some disability rights protections, even these have loopholes. Colker identifies weaknesses in disability rights laws in New York, Wisconsin, Washington, Ohio, and a number of other states.

All snapshots depend on the perspective of the photographer. This is true of Colker's snapshot of "the disability pendulum," as well, taken in the early 2000s. Only the future will reveal how accurate her lens is. Although we can hope that we've reached the extreme end of the "case against disability rights," we may have further to go.

Justice Oliver Wendell Holmes's famous claim that "the law is what the Supreme Court says it is" shouldn't be true. A legislative branch that knows and defends what it did in enacting the ADA, and a public that holds public officials to their promises, would bolster the ADA.

The Disability Pendulum is filled with many detailed anecdotes, which, along with her systematic compilation of data, bolster Colker's argument that the ADA is a good law, misinterpreted by courts and the media. She has incorporated much of her work that appeared earlier in law review articles, saying that she hopes that through this book her work will reach a broader audience. Although this doubtlessly was not Colker's doing, the $45 price tag won't help. That's unfortunate, because her argument and analysis deserve to be read widely.

"It will be interesting to see if the pendulum swings back to the center in the next decade," writes Colker. Armed with her book on the ADA's first years, readers can work to ensure that it does.

Posted July 20, 2005

Art Blaser chairs the political science department at Chapman University.

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