----

**Sharingthe Dream: Is the ADA Accommodating All?**

----

**Chapter1**

**TheRoad to the****ADA**

----

> 
*Together,    we must remove the physical barriers we have created and the social barriers    that we have accepted. For ours will never be a truly prosperous nation    until all within it prosper.*[1]

On July26, 1990, President George Bush signed the Americans with Disabilities Act intolaw.[2]The ADA provides a host of civil rights protections for individuals withdisabilities. The law seeks to ensure for people with disabilities rights suchas equal opportunity in employment,[3]full accessibility to government services,[4]public accommodations,[5]telecommunications;[6] and meaningful methods ofenforcing those rights.[7]These rights were not always provided, but they have evolved over time.

**Evolutionof a National Disability Policy**

> 
*Images    of the disabled as either less or more than merely human can be found    throughout recorded history. There is the blind soothsayer of ancient    Greece, the early Christian belief in demonic possession of the insane, the    persistent theme in Judeo-Christian tradition that disability signifies a    special relationship with God. The disabled are blessed or damned but never    [wholly] human.*[8]

Historically,in a culture that values a strong mind and body, people with disabilities wereviewed by some as deficient and inferior.[9]In colonial America, persons with disabilities were seen as part of the�deserving poor� and were accepted by their communities.[10]But with the 19th century industrial and market revolution, individuals withdisabilities were deemed unable to compete in America�s industrial economy andwere consequently spurned from society.[11]Early historical accounts describe killing and abandoning �imperfect�children and adults.[12] People with disabilitieswere considered weak and unable to contribute to the welfare of the community.[13] Sometimes, they werethought to possess supernatural powers or to be under the influence of Satan.[14] In short, �[t]hehistory of society�s formal methods of dealing with handicapped people can besummed up in two words: segregation and inequality.�[15]

Beforethe ADA, most of the nation�s disability policies were premised on what hasbeen termed a �medical� or �charity� model of disability.[16] In essence, disabilitylaws were enacted to rehabilitate individuals with disabilities because of theirperceived inferiority and deficiencies.[17]The primary motivation for rehabilitating people with disabilities was toincrease national production and decrease welfare spending.[18]Once these individuals were rehabilitated, they were hired to perform menialjobs in sheltered workshops.[19]In the 1970s and 1980s, however, the public and Congress began to change theirperceptions of individuals with disabilities.[20]Following the civil rights movement and protests by persons with disabilities,access to mainstream America was recognized as a fundamental right deserved byall, including persons with disabilities.[21]The focus of legislation for individuals with disabilities shifted fromrehabilitation to promotion of their civil rights.[22]Congress moved away from the medical/charity model and incorporated a civilrights model by enacting legislation for people with disabilities.[23]

**Medical/CharityModel**

Thebasic principle underlying the medical/charity model is that a disability is aninfirmity that can only be properly addressed by doctors and rehabilitationprofessionals who attempt to �cure� or �fix� the person with adisability.[24]According to this model, the problem of disability resided in the individual,who must be rehabilitated and returned to gainful employment.[25]

Thetrend in America during the 19th century was to rehabilitate individuals withdisabilities to facilitate their entry or re-entry into the work force.[26]Originally, many of these vocational programs were sponsored by charitableorganizations, such as the Salvation Army and the Red Cross, whose primaryconcern was to provide therapeutic treatment and secure employment for personswith disabilities.[27]As a result of these charitable efforts, people with disabilities were placed insheltered workshops that employed persons with disabilities exclusively.[28]Because charitable groups influenced the formation of the first vocationalrehabilitation act, many believed that the services provided under it were basedupon federal charity.[29]In the public�s view, this charitable congressional act made nonproductivityby persons with disabilities inexcusable.[30]A 1945 publication noted, �With these comprehensive rehabilitation services,if an individual with a disability �remains at a disadvantage . . . it will bethe fault of that man and his family and his community, in failing to takeadvantage of the abundance that is provided.� �[31]

Followingthe rise of a mechanized society and the resulting high incidence of workplaceinjuries, the states and the federal government began providing vocationaltraining to injured workers.[32]Initially, states offered financial compensation as well as medical treatmentfor injuries sustained on the job, but employees with serious injuries requiredmore comprehensive assistance.[33]Thus, restoration of these injured workers to some form of remunerativeemployment became a national priority.[34]As states enacted legislation to implement vocational rehabilitation programsfor injured workers, there was a mass return of injured veterans from World WarI.[35]These events prompted Congress to believe that national laws were necessary togovern the rehabilitation of individuals with disabilities,[36]leading to the following laws:

***Smith-SearsAct***

This lawwas enacted in 1918 �to provide for vocational rehabilitation and return tocivil employment of disabled persons discharged from the military or navalforces.�[37]The act was designed to help the veteran with a disability overcome hisdisability and seek competitive employment.[38]

***Smith-FessAct***

This actwas signed into law in 1920 by President Woodrow Wilson as the first federalcivil vocational rehabilitation act for individuals with disabilities who werenot war veterans.[39]The purpose of this act was to provide vocational training, job placement, andcounseling by trained professionals to persons who, �by reason of a physicaldefect or infirmity, whether congenital or acquired by accident, injury, ordisease [are], or may be expected to be, totally or partially incapacitated.�[40]The act covered congenital disabilities, a condition not covered in itspredecessor�the Smith-Sears Act. The fact that people born with disabilities,not just injured war veterans, were covered under the act illustratedCongress� beginning appreciation for all people with disabilities. At the sametime, however, the absence of a provision regarding societal discrimination inthe language of the bill underscores the continued belief that the lack ofparticipation of people with disabilities in employment and other areas was dueto their limited capabilities.[41]

***Randolph-SheppardVending Stand Act***

TheRandolph-Sheppard Vending Stand Act authorized blind people to operate vendingstands on federal property in order to become self-sufficient and to enlarge the�opportunities of the blind.�[42]While the act provided employment for persons with disabilities, they still werenot being integrated into the competitive work force.[43]Rather, they were provided jobs without opportunity for promotion or use ofskills.[44]According to one legal commentator, the act reinforced the view of federalcharity, as the government provided the equipment and allowed blind vendors tosell their merchandise on federal property.[45]

**CivilRights Model**

Thecivil rights model is based largely on the civil rights movement of the 1950sand 1960s and views society, rather than the individual with a disability, asdefective.[46]This model �pursues a �level playing field,� or equality of opportunity,through aggressively securing access to, and independence in, all aspects ofsociety.�[47] The passage of the CivilRights Act of 1964,[48]which prohibited discrimination based on race, color, religion, national origin,and sex, was a major inspiration for the concept of similar protection forpeople with disabilities.[49]Generally, the 1964 act prohibits discrimination in public accommodations,[50]federally funded programs,[51]and employment.[52] Although the act wasinstrumental in guaranteeing civil rights to minorities and women, there was noreference to persons with disabilities. Consequently, a disability rightsmovement developed in the tradition of the 1960�s social movements.[53]Persons with disabilities pushed the need for their own civil rights law to theforefront of the legislative arena and in the minds of the American public.Slowly there was a shift away from the medical/charity model to the civil rightsmodel in drafting legislation for individuals with disabilities.

As partof this new movement, the concept of �independent living� for individualswith disabilities was championed. A small group of students with disabilities atthe University of California at Berkeley inspired this concept, as they tried todevelop resources and supports to enable themselves to live independently in thecommunity.[54]At the core of the independent living philosophy is a conviction that peoplewith disabilities �desire to lead the fullest lives possible, outside ofinstitutions, integrated into the community, exercising full freedom ofchoice.�[55] The concept has beenincorporated into a number of federal statutes.[56]In fact, the traditional rehabilitation statutes have been restructured toencompass a wide range of independent living services not limited to vocationaland employment goals.[57]These services range from information and referral services to mobilitytraining, transportation, and social and recreation services.[58]In order to provide these services, federal statutes mandate local centers forindependent living and statewide independent living councils in each state.[59]

**Litigation**

Initially,there were sporadic, unsuccessful attempts to remedy alleged disabilitydiscrimination through court litigation. For example, in 1965, a schoolteachersued the New York City public school system after he was excluded from ateaching position because of his blindness.[60]The New York state court ruled the school board was authorized to disqualifyteaching applicants based on vision requirements.[61]

Duringthe late 1960s and early 1970s, complainants were more successful in challengingdiscrimination against people with disabilities. In 1969, a Utah court appliedthe principles of equal educational opportunity established in *Brown**v. Board of Education*[62]**to people with disabilities, holding that the exclusion of two mentallyretarded children from the Utah public schools was unconstitutional.[63]This decision sparked a nationwide onslaught of similar lawsuits, includingclaims of disability discrimination in transportation, guardianship, housing,medical services, sterilization, contracts, voting, and confinement inresidential treatment facilities.[64]

In 1985,the Supreme Court handed down a pivotal decision in*Cleburne v. Cleburne Living Center, Inc*.[65]In determining whether a state zoning ordinance could legally exclude a grouphome for persons with mental retardation, the Supreme Court held that theordinance was unconstitutional.[66]The Court, however, did not find individuals with disabilities were a �quasisuspect class�; instead, it applied the minimum level of judicial scrutiny foran equal protection analysis: state legislation must only be rationally relatedto a legitimate governmental purpose.[67]The Court recognized that individuals with mental retardation are �different,immutably so, in relevant respects,�[68]but concluded that laws distinguishing between persons with mental retardationand others are not subject to heightened scrutiny by the judiciary.[69]

Mostdisability discrimination cases were brought under the due process and equalprotection guarantees of the United States Constitution, and any success waslimited to government-sanctioned discrimination. Private discrimination remainedand could not be judicially challenged.[70]

**LegislationProviding Access toPublicBenefits**

Althoughattempts to amend the Civil Rights Act of 1964 to address disabilitydiscrimination were unsuccessful, other federal nondiscrimination measures onbehalf of people with disabilities were enacted from the late 1960s to the1980s. This section highlights some of the key legislation passed during thisperiod to attempt to provide individuals with disabilities access to all facetsof community life.

***ArchitecturalBarriers Act of 1968***

One ofthe first pieces of disability legislation incorporating a civil rights approachwas the Architectural Barriers Act of 1968.[71]The act required that all new facilities built with public money or those newlyrenovated be accessible to people with disabilities.[72]The law applied only to new facilities owned or leased by the federalgovernment.[73] Existing facilities werenot affected and most remained inaccessible to people with disabilities.Furthermore, the act contained no provisions for enforcement, and compliance byfederal agencies was inconsistent.[74]To help ensure compliance, in 1973, Congress created the Architectural andTransportation Barriers Compliance Board (Access Board).[75]In 1978, the Access Board was given authority to establish minimum guidelinesand requirements for federal accessibility standards.[76]The Access Board jointly, with other federal agencies, issued Uniform FederalAccessibility Standards, which established a single set of standards foraccessibility to all buildings subject to the act�s requirements.[77]

***Individualswith Disabilities Education Act***

Inresponse to the long history of segregation and exclusion of children withdisabilities from the American public school system, Congress enacted theEducation for All Handicapped Children Act (EAHCA) in 1975.[78]In 1990, the EAHCA was renamed the Individuals with Disabilities Education Act(IDEA).[79]The 1990 law set forth a comprehensive scheme for ensuring two basic substantiverights of eligible children with disabilities: (1) the right to a freeappropriate public education,[80]and (2) the right to that education in the least restrictive environment.[81]The act provides federal grants for state and local education agencies on thecondition that they meet these two principal criteria and others enumerated inthe act.[82] The IDEA was reauthorizedand amended in 1997 to clarify and strengthen the act�s provisions.[83] For instance, the newemphasis of the law focuses on strengthening the role of parents, ensuringaccess to the general education curriculum and reforms, and giving increasedattention to racial, ethnic, and linguistic diversity to prevent inappropriateidentification and mislabeling of students.[84]In its January 2000 report, *Back to Schoolon Civil Rights*, the National Council on Disability (NCD) found that overthe past 25 years states have not met their general supervisory obligations toensure compliance with the core civil rights requirements of the IDEA.[85]In addition, the NCD found that federal efforts to enforce the law have beeninconsistent and ineffective.[86]

***DevelopmentalDisabilities Assistance andBill ofRights Act of 1975***

This actprovides federal funding for care and treatment programs for people who areconsidered to have �developmental disabilities.�[87]Pursuant to the act, a �developmental disability� is a severe life-longdisability that manifested before age 22, impairs the functioning of a majorlife activity, and necessitates extended care or treatment.[88]The act is unique in that it includes a �Developmental Disabilities Bill ofRights,�[89] which declares thatpeople with developmental disabilities have �a right to appropriate treatment,services, and habilitation� that �maximize the developmental potential ofthe individual and . . . [that provide] . . . the setting that is leastrestrictive of the individual�s personal liberty.�[90]Contrary to the language of the bill, the aforementioned rights were declaredunenforceable by the Supreme Court and, therefore, not directly binding onstates.[91]The declaration of rights does, however, represent Congress� clear preferencefor the types of services to be provided and the manner in which they should beprovided to individuals with developmental disabilities.

***CivilRights of Institutionalized Persons Act of 1980***

This actauthorizes the U.S. Attorney General to investigate conditions of confinement ofa state or a political subdivision thereof, such as state mental institutions,publicly operated nursing homes, jails, and juvenile detention centers.[92]The act�s purpose is to uncover �egregious or flagrant conditions . . .causing . . . persons to suffer grievous harm.�[93]Furthermore, such conditions must be �pursuant to a pattern or practice ofresistance to the full enjoyment of such rights, privileges, or immunities[protected by the Constitution and other federal laws].�[94]If the Attorney General has reasonable cause to believe that the act has beenviolated, he or she may initiate a civil suit.[95]

***AirCarrier Access Act of 1986***

This actamended the Federal Aviation Act to prohibit discrimination against people withdisabilities by all air carriers.[96]The act received attention after the National Council on Disability issued aFebruary 1999 report on the overall enforcement of civil rights laws for airtravelers with disabilities.[97]The NCD found that the act was ineffective, that public education efforts on theneeds and legal rights of air travelers with disabilities were inadequate, andthat there was not enough money or staff at the Department of Transportationdedicated to investigating complaints.[98]Although the report recognized improvements in airline access since the act�screation, it noted that air travelers with disabilities continue to encounterfrequent, significant discrimination.[99]

***VotingAccessibility for the Elderly and Handicapped Act of 1984***

Thisstatute was designed to improve access for elderly people and individuals withdisabilities at registration facilities and polling places for federalelections.[100]Pursuant to the act, political subdivisions must ensure that a reasonable numberof accessible voter registration facilities exist; and that registration andvoting aids are available, including posting voting instructions in large printand providing telecommunications devices for the hearing impaired.[101]

***FairHousing Amendments Act of 1988***

Theseamendments expanded the enforcement provisions of Title VIII of the Civil RightsAct of 1968[102]�oftenreferred to as the Fair Housing Act�to prohibit discrimination based on race,color, religion, and national origin when selling or renting private housing.The Fair Housing Amendments Act (FHAA) is one of the first major, substantivefederal civil rights laws to prohibit discrimination on the basis of adisability by private entities.[103]The act establishes a requirement that housing providers make �reasonableaccommodations� in rules, policies, practices, or services when necessary toafford a person with a disability an equal opportunity to use and enjoy housing.[104] The FHAA also providesthat a person with a disability cannot be prohibited from making reasonablemodifications in a dwelling at his or her own expense if it is necessary forfull enjoyment of the premises.[105]

**LegislationProviding Employment Opportunities as a Civil Right**

Earningwages is essential to feelings of pride, self-confidence, and independence. Theemployment of individuals with disabilities enriches the lives of thoseemployed, and it benefits society to have an infusion of workers with variousskills and talents. Over the years, Congress has become increasingly aware thatto truly increase the employment of people with disabilities, efforts have toextend beyond rehabilitation. While there is a well-established system tosupport people with disabilities in dependency, there is relatively littlesupport for their efforts to be independent. Following is a list of keylegislation that exemplifies this essential shift from fostering dependency topromoting independence in all facets of life, particularly in employment. 

***RehabilitationAct of 1973***

 Inresponse to the growing notion that people with disabilities had a civil rightto social participation, Congress sought to extend the Vocational RehabilitationAct[106]beyond its traditional employment focus by identifying ways to improve theoverall lives of persons with disabilities.[107]The new law�s purpose was to extend rehabilitation to all persons withdisabilities, provide for extensive research and training for rehabilitationservices, and coordinate federal disability programs.[108]More importantly, the act would include a nondiscrimination provision andmandate to every federal agency to establish an affirmative action plan toencourage the hiring, placement, and promotion of individuals with disabilities.[109]

Afterpassing the Congress twice and being vetoed by President Nixon each time, theact was finally signed into law on September 26, 1973.[110] Although the act fellshort of original congressional intent, it proved to be a significant law forpeople with disabilities.[111]In addition to continuing the federal vocational rehabilitation program, theRehabilitation Act of 1973 included several new initiatives designed to expandrights and opportunities for people with disabilities.

Patternedgenerally after Title VI of the Civil Rights Act of 1964[112] and the proposed 1971amendment to the Civil Rights Act,[113]Section 504 of the Rehabilitation Act states that �[n]o otherwise qualifiedhandicapped individual in the United States . . . shall, solely by reason of hishandicap, be excluded from the participation in, be denied the benefits of, orbe subjected to discrimination under any program or activity receiving federalfinancial assistance.�[114]According to one disability historian, Richard K. Scotch, this section�transformed federal disability policy by conceptualizing access for peoplewith disabilities as a civil right rather than as a welfare benefit�[115]�aconcept rejected in the previous year when legislators fought to includedisability as a prohibited ground for discrimination under Title VI.

Thepurpose of the remaining sections of the Rehabilitation Act is to further equalrights for individuals with disabilities. Section 501 requires affirmativeaction hiring and advancement programs for federal agencies.[116] Section 503 places ananalogous duty on federal government contractors and requires businesses havingfederal contracts of $10,000 or more to affirmatively hire and advance qualifiedindividuals with disabilities.[117]Pursuant to Section 502, the Architectural and Transportation BarriersCompliance Board (Access Board) was established.[118]The Access Board issued guidelines for accessible designs and through itssubsidiary agencies, a uniform set of standards for accessibility of allbuildings subject to the act�s requirements was issued.[119]To ensure compliance with these guidelines, the Access Board bringsadministrative actions and lawsuits and conducts studies.[120]

TheDepartment of Health, Education, and Welfare (HEW) was responsible for issuingregulations to interpret and implement Section 504.[121]Prior to implementation of the regulations, Congress enacted the RehabilitationAct Amendments of 1974,[122]a series of amendments clarifying the new law. Most importantly, the amendmentsused a new civil rights-oriented definition for a handicap or disability. Inrecognizing that people with disabilities face attitudinal and physical barriersin their daily lives, Congress redefined �handicapped individual� as one�who (A) has a physical or mental impairment which substantially limits one ormore of such person�s major life activities, (B) has a record of suchimpairment, or (C) is regarded as having such an impairment.�[123]This new definition placed a greater emphasis on the cultural effects of havinga disability, recognizing that people who were previously disabled or appear tobe disabled face discrimination. This definition is currently used as theprimary definition of disability in federal legislation, including the ADA.

Therewas a substantial delay by three consecutive administrations before HEW issuedthe regulations implementing and interpreting the Rehabilitation Act. This delaywas due, in part, to the absence of an expressed mandate to issue regulations.[124]The process to develop Section 504 regulations was further delayed byadministrative inaction, presidential replacements, and unusual rulemakingprocedures.[125] To protest the delay,members of the disability community organized large-scale demonstrations toattract national attention to the absence of Section 504 regulations.[126]

On April28, 1977, Section 504 regulations were finally issued.[127] These regulationsestablished legal standards for nondiscrimination uniquely suited to the civilrights needs of persons with disabilities, which would later be replicated inthe ADA. The regulations recognized that ending discrimination for persons withdisabilities meant taking proactive steps to remove barriers and makingreasonable accommodations.[128]Additionally, the regulations balanced this need against a limit of �unduehardship� for the federal agencies and contractors covered by the regulations.[129]

***Americanswith Disabilities Act***

The ADAwas enacted in July 1990,[130]17 years after the passage of the Rehabilitation Act of 1973. In enacting theADA, Congress acknowledged the history of isolation and segregation of peoplewith disabilities.[131]The act recognizes that the disabled community is subject to discrimination in�employment, housing, public accommodations, education, transportation,communication, recreation, institutionalization, health services, voting, andaccess to public services.�[132]It is hailed as the first comprehensive civil rights legislation for people withdisabilities.[133]Nonetheless, some critics believe that the ADA is not as effective as it shouldbe and that �productivity, rather than constitutional rights, is the backboneof American policy regarding people with disabilities.�[134]

**LegislativeHistory of the ADA**

The ADAwas borne out of the ideals encompassed in the Civil Rights Act of 1964 and theRehabilitation Act of 1973[135]�thatall people should be treated equally and fairly. �There could be no ADAwithout them.�[136] However, a carte blancheapplication of legal standards from these civil rights laws to the disabilitycontext seemed inappropriate.[137]Applying these prior statutes exposed their weaknesses, which arose from theirstatutory language, limited coverage, inadequate enforcement mechanisms, anderratic judicial interpretations.[138]

TheNational Council on Disability[139]was the first organization to draft a federal legislative proposal thatattempted to remedy the flaws of previous disability statutes. The NCD wasinitially established in 1978 as an advisory board within the Department ofEducation.[140]In 1984, it was transformed into an independent federal agency, led by 15members appointed by the President of the United States and confirmed by theU.S. Senate.[141] Generally, the NCD isresponsible for making recommendations to the President and Congress on issuesaffecting Americans with disabilities.[142]To meet this objective, the NCD is required to submit an annual report to thePresident and Congress.[143]While many government agencies deal with issues and programs affecting peoplewith disabilities, the NCD is the only federal agency charged with addressing,analyzing, and making recommendations regarding disability policy.[144]

In itsdraft proposal of the ADA, the NCD sought to facilitate independence throughequal participation while reducing dependence on government and federal outlays.[145]In drafting the ADA proposal, NCD members took care not to recommend fundingincreases, a strategy that was successful in securing passage of the ADA duringa fiscally conservative administration.[146]Although most congressional members supported the concept of a civil rights billfor persons with disabilities, the passage of the ADA was fraught with delay andintense debate over certain provisions. After much strategizing, lobbying, andnationwide consumer forums, as well as the endorsement of President Bush, theADA was finally enacted.

**TheInception of the ADA Concept**

Throughoutthe 1980s, the disability community recorded an impressive string of judicialand legislative victories.[147]One of the crowning achievements was the 1986 National Council on Disabilityreport, *Toward Independence: An Assessmentof Federal Laws and Programs Affecting Persons with Disabilities�WithLegislative Recommendations*. The report was the result of a congressionalmandate requiring the NCD to produce a comprehensive analysis of federaldisability programs and policy by February 1, 1986.[148]

*TowardIndependence* was intended to meet a dual concern: minimizing the federalcost of disability while improving the lives of individuals with disabilities.[149]In meeting its mandate, the NCD presented 45 legislative recommendations in 10broad topic areas.[150]The first recommendation was that Congress �enact a comprehensive lawrequiring equal opportunity for individuals with disabilities, with broadcoverage and setting clear, consistent, and enforceable standards prohibitingdiscrimination on the basis of handicap.�[151]To make the concept more palatable to reluctant NCD members and ultimately tothe Reagan administration, the NCD presented the issue as an �equalopportunity law� rather than �civil rights.�[152]The former promoted independence and self-reliance while the latter was morereminiscent of affirmative action.[153]The NCD also suggested a name for the proposed statute�the Americans withDisabilities Act.[154]

Thereport was widely disseminated and well received by the disability community andPresident Reagan.[155]More than 20,000 copies of the report were distributed to legislators,government officials, disability advocates, and disability organizations.[156]Although virtually every issue and recommendation presented by the NCD had beeninitiated or proposed at state and local levels, *Toward Independence* was novel in that it represented a proposal fora *national, comprehensive* approach todisability policy.[157]The proposal came with a thorough explanation for why such an approach wasnecessary to facilitate the employment and general life satisfaction of personswith disabilities, and what the law should entail.[158]

The *TowardIndependence* report specified that the law should prohibit discrimination bythe federal government, recipients of financial assistance, federal contractorsand subcontractors, private employers, housing providers, places of publicaccommodation, persons and agencies of interstate commerce, transportationproviders, insurance providers, and state and local governments.[159]Unlike previous nondiscrimination employment statutes aimed at protectingindividuals with disabilities, the draft proposal for the ADA applied to privateentities.[160]The legislative proposal also included a reasonable accommodation requirementand affirmative steps to eliminate barriers.[161]

Despitethe widespread approval of *Toward Independence*, it remained only a potential solution.[162]The next hurdle would be putting it on the federal legislative agenda. Tounderscore the desperate need for an equal opportunity law for persons withdisabilities, the NCD joined Louis Harris & Associates and the InternationalCenter for the Disabled (ICD) in undertaking a national poll to document how adisability affected a person�s ability to participate in life and thecommunity.[163]The nationwide survey was based on 1,000 telephone interviews withnoninstitutionalized persons with disabilities aged 16 and older. It was thefirst comprehensive survey of persons with disabilities that solicited theirperceptions of their own quality of life.[164]The poll was published in March 1986, a month too late for inclusion in *TowardIndependence*.[165]Nonetheless, it provided concrete examples of problems encountered by personswith disabilities, particularly in gaining employment.[166]The correlation between employment and life satisfaction was startling.[167]Ultimately, these findings were a ringing endorsement of initiatives to helpindividuals with disabilities find work.[168]The survey bolstered the recommendations presented in *Toward Independence* and provided a useful guide for policydevelopment.[169]

**Introductionof the ADA to Congress**

Whilesome of the NCD�s recommendations were acted on in short order, the proposalfor an Americans with Disabilities Act did not result in any prompt legislativeaction.[170]Consequently, in its 1988 follow-up report, the NCD took the unusual step ofpublishing its own draft bill.[171]Robert Burgdorf, one of the primary contributors to *Toward Independence*, drafted a preliminary legislative proposal inthe form of an equal opportunity law called for in *Toward Independence*.[172]

Groupsadvocating in behalf of individuals with disabilities were instrumental ingetting the proposed ADA on the legislative agenda and securing its passagethrough both houses of Congress. For example, to foster support for thelegislative proposal, an informal ADA coalition began to form in Washington,D.C.[173]A number of individuals and variety of organizations formed the coalition.[174]The ADA coalition conducted many of its activities under the auspices of theConsortium for Citizens with Disabilities (CCD).[175]The CCD is a coalition of approximately 100 national disability organizationsworking together to advocate for national disability policy.[176]Members of the Disability Rights Education and Defense Fund, the EpilepsyFoundation of America, and the National Association of Protection and AdvocacySystems served as coalition leaders.[177]To educate members of Congress about living with a disability, the coalitionrelied on organizations, such as the Spina Bifida Association, United CerebralPalsy Associations, the National Association of Developmental DisabilitiesCouncils, and the Paralyzed Veterans of America.[178]

Duringthe spring of 1987, Mr. Burgdorf and others began holding brainstorming sessionswith key persons in the disability community to gain their input and facilitatethe drafting of the ADA.[179]Two issues caused discord throughout the disability community in drafting theADA. The first issue was whether health insurance should be included in the act.[180]In most cases, persons with disabilities could not find affordable health care,and this was particularly true if they did not receive federal disabilitybenefits.[181]To some disability advocates, such as the CCD, health insurance was not a rightafforded any other group, and providing this new right to a select group ofpeople may alienate persons in the civil rights community.[182]Passage of the ADA would require the full support of the civil rights community,so it was important to advocate the same protections as those afforded to otherfederally protected groups.[183]Ultimately, the health care provision was omitted from the ADA draft.[184]The second issue that arose was whether to include the affirmative actionprovisions of Sections 503 and 504 of the Rehabilitation Act[185]in the ADA. In light of the protracted battle to secure the Section 504regulations and the subsequent attempt to change the regulations by PresidentReagan�s Task Force on Regulatory Relief, the CCD feared that the inclusion ofthese provisions in the ADA would mean �an administration unfriendly todisability rights could substantially rewrite and weaken them.�[186]Thus, Sections 503 and 504 provisions were excluded from the proposed ADA.[187]

Forcongressional sponsorship, the NCD approached Senator Lowell Weicker (R-CT), oneof the disability community�s greatest advocates in the Senate.[188] Senator Weicker had ason with Down syndrome and had played a pivotal role in securing the NCD�sreauthorization in 1983.[189]In November 1987, the NCD secured the sponsorship of Senator Weicker.[190]Congressman Tony Coelho (D-CA), an advocate of disability rights and a personwith epilepsy, cosponsored the bill in the House.[191]Senator Tom Harkin, chairman of the Subcommittee on the Handicapped, was alsosolicited for his support because his subcommittee would likely havejurisdiction over the bill in the Senate.[192]As planned, the bill was introduced simultaneously in both houses. On April 28,1988, Senator Weicker introduced the Americans with Disabilities Act,[193]stating that discrimination based on handicap was �just as intolerable asother types of discrimination that our civil rights laws forbid.�[194]The following day, on April 29, 1988, Representative Coelho introduced the samemeasure in the House.[195]

Duringthe congressional hearings of the 100th Congress, the unanimous sentiment amongthe witnesses was that people with disabilities struggled with unequalopportunities; and they confronted not only the challenges of their impairments,but also the physical barriers society erects.[196]Some of the testimonials described how registered persons with disabilities wereturned away from voting booths because they did not look sufficiently�competent to vote,� a college student was denied her graduation becausecollege officials deemed her psychologically unfit, and a disability advocatemet his untimely death attempting to cross an intersection without curb cuts.[197]In the end, a record of disability discrimination was established, but the 100thCongress expired before either house of Congress took action on the proposedlegislation.

**TheDebate over ADA Provisions**

Beforeits reintroduction in the 101st Congress, the ADA bill was substantiallyrevised. During the following two years, Congress held numerous hearings on theADA. The testimony presented at these hearings, as well as comments by HouseRepresentatives and Senators, provided persuasive evidence of the need topromote positive change in the lives of people with disabilities.[198] Nonetheless, there wereheated debates about certain proposed provisions of the ADA. The two dominantreservations about the act were cost and litigation.[199]The vagueness of the language was cited as a problem by businesses. Becausewords such as �undue hardship�wereinadequately defined, businesses argued that they would not know whether theywere in compliance, which would ultimately invite frivolous lawsuits.[200]Cost was an issue because the ADA, unlike other civil rights legislation,required businesses and employers to spend money on accommodations andmodifications.[201]Small businesses argued that they should be exempt from the publicaccommodations requirements, or at least be phased in more gradually, as smallbusinesses were exempt from other civil rights legislation.[202]Numerous covered entities also lobbied to have a more concrete definition ofdisability that listed every covered disability.[203]

In Juneand July 1989, Senate leaders and the White House attempted to craft abipartisan compromise bill.[204]The breakthrough compromise, which facilitated agreement on other issues, was anagreement regarding public accommodations and remedies for violation of thepublic accommodations provisions.[205]The legislative proposal covered a wider scope of public accommodations thanother civil rights legislation.[206]Furthermore, the remedies provided pursuant to the draft bill includedcompensatory and punitive damages.[207]Senate leaders agreed to restrict the public accommodations remedies to thestandards of the Civil Rights Act of 1964 in exchange for the administration�sconsent to apply the ADA to a broad spectrum of public accommodations.[208]Other agreements followed to ensure passage of the ADA. For example, withrespect to employment, negotiators incorporated a two-year delay of theeffective date for businesses with 25 or more employees.[209]To allay fears about the inclusion of mental disorders and disorders with a�moral content,� the Senate included in the definition of disability a listof specific conditions or impairments that would not be covered under theproposed bill.[210] After winning PresidentBush�s endorsement, the ADA passed the Senate on September 7, 1989, by a countof 76 to 8.[211]

Houseconsideration of the ADA was more difficult and time consuming, in part, becausethe bill had to go to four committees and six subcommittees.[212]In contrast to the rapid action in the 101st Senate, the House took almost nineadditional months to review and refine the bill. House deliberations werefraught with vigorous lobbying efforts by the business community and staunchpartisanship.[213] One of the mostcontroversial amendments to reach the floor was introduced by Congressman JimChapman (D-TX). This proposed amendment, known as the Chapman amendment, wouldenable employers to remove persons with contagious diseases, such as AIDS, fromfood-handling positions.[214]While supporters of the amendment conceded that there was no known evidence thatAIDS could be transmitted through food handling, the House initially voted tosupport the exclusion of persons with contagious and communicable diseases fromfood-handling positions.[215]Ultimately, the measure was defeated and replaced with a compromise amendmentintroduced by Senator Orrin Hatch (R-UT). Commonly referred to as the Hatchamendment, this amendment relied more on science as the basis for decisionmaking.[216]The Hatch amendment proposed that the Secretary of Health and Human Servicesprepare an annual list of communicable and contagious diseases that weretransmitted through food handling.[217]Restaurant operators then would be able to insist that anyone with a disease onthat list be removed from food-handling positions.[218]On May 22, 1990, both parties in the House passed the bill overwhelmingly with95 percent of those voting supporting the measure.[219]

**Provisionsof the ADA**

> 
*TheAmericans with Disabilities Act . . . signals the end to the unjustifiedsegregation and exclusion of persons with disabilities from the mainstream ofAmerican life.*[220]

PresidentBush signed the Americans with Disabilities Act on July 26, 1990.[221]To meet the goal of a universal ban on discrimination against persons withdisabilities, Congress enacted five separate titles[222]to prohibit the discrimination enumerated in the ADA�s findings.[223]Through efforts to eliminate discrimination, the act strives to ensure equalityof opportunity, full participation, independent living, and economicself-sufficiency for individuals with disabilities.[224]

**TitleI: Employment**

Title Iof the act bans discrimination against persons with disabilities in employment.[225]The term �employer� means a person engaged in an industry affecting commercewho has 15 or more employees.[226]To strike a balance between the rights of individuals with disabilities and thelegitimate interests of businesses, there were various phase-in provisions inthe ADA.[227] For example, theemployment provisions did not take effect for two years following the effectivedate of the act, for an employer with 25 or more employees.[228]Four years from the act�s effective date, coverage was extended to employerswith 15 or more employees.[229]

The ADAdefines a disability as (1) a physical or mental impairment that substantiallylimits one or more of the major life activities of such individual, (2) a recordof such impairment, or (3) being regarded as having such an impairment.[230]The person seeking enforcement of the act must be a �qualified individual witha disability,� meaning �an individual with a disability who, with or withoutreasonable accommodation can perform the essential functions of the employmentposition that such individual holds or desires.�[231]A qualified individual with a disability does not include an employee orapplicant who is *currently* engaging inthe illegal use of drugs.[232]

Pursuantto the act, �[n]o covered entity shall discriminate against a qualifiedindividual with a disability because of the disability.�[233]This nondiscrimination provision includes making reasonable accommodations. Anemployer�s obligation to provide reasonable accommodation may include:

> 
makingexisting facilities used by employees readily accessible to and usable byindividuals with disabilities; and

jobrestructuring, part-time or modified work schedules, reassignment to a vacantposition, acquisition or modification of equipment or devices, appropriateadjustment or modifications or examinations, training materials or policies, theprovision of qualified readers or interpreters, and other similar accommodationsfor individuals with disabilities.[234]

Employersare not required to make a reasonable accommodation if they can �demonstratethat the accommodation would impose an undue hardship on the operation of thebusiness.�[235]In addition, businesses may utilize practices that have a discriminatory effecton persons with disabilities if their actions are �job related� to theposition in question and consistent with �business necessity,� as long assuch practices cannot be accomplished by reasonable accommodation.[236]Another defense available to businesses is �direct threat.�[237]An employer does not have to accommodate an individual who poses a �directthreat� to the health and safety of others in the workplace.[238]

**TitleII: Public Services**

Thepurpose of Title II of the ADA is to extend the protections of Section 504 ofthe Rehabilitation Act to all programs, activities, and services of state orlocal governments, regardless of the receipt of federal financial assistance.[239]It prohibits discrimination by state and local governments and requires thatthey ensure all activities, programs, and public transportation services theyprovide are accessible to persons with disabilities.[240]The act states that �no qualified individual with a disability shall, byreason of such disability, be excluded from participation in or be denied thebenefits of the services, programs, or activities of a public entity, or besubjected to discrimination by any such entity.�[241]The Department of Justice, which issued implementing regulations for this titlein 1991,[242] notes that Title IIcoverage applies to �Executive agencies� within state and local governmentsas well as to �activities of the legislative and judicial branches of stateand local governments.�[243]All government activities of public entities are covered, including thosecarried out by contractors.[244]

Title IIalso includes detailed provisions that apply to public transportation systems,including commuter authorities.[245]These provisions resolve some of the controversial and contentious issuesregarding accessibility standards for public transportation systems.

Thistitle is particularly important for individuals with psychiatric disabilities.Pursuant to the regulations implementing Title II provisions, �a public entityshall administer services, programs, and activities in the most integratedsetting appropriate to the needs of qualified individuals with disabilities.�[246]In terms of persons with disabilities, this provision mandates that they are notautomatically placed in institutions, but in a setting that suits theirindividualized needs and is conducive to their full participation in communitylife.

**TitleIII: Public Accommodations and Services Operated by Private Entities**

TitleIII covers public accommodations and services operated by private entities.[247]Its operative provisions provide that �[n]o individual shall be discriminatedagainst on the basis of disability in the full and equal enjoyment of the goods,services, facilities, privileges, advantages, or accommodations of any place ofpublic accommodation by any person who owns, leases, or operates a place ofpublic accommodation.�[248]Although Title III provisions can be traced to the public accommodationsprovisions of the Civil Rights Act of 1964, the ADA�s concept of publicaccommodations is broader.[249] The 12 covered entities,which range from a hotel to a park, cover almost every facet of American life inwhich a business or other entity serves or comes into contact with members ofthe public.[250]

**TitleIV: Telecommunications**

Title IVprovisions pertain to two kinds of telecommunications services: telephonetransmissions and television public service announcements.[251]Regarding telephone transmissions, the act amends Title II of the CommunicationsAct of 1934,[252]�to make available to all individuals . . . a rapid, efficient nationwidecommunication service . . . and to ensure that interstate and intrastatetelecommunications relay services are available . . . and in the most efficientmanner, to hearing-impaired and speech-impaired individuals.�[253]In addition, this title amends Section 711 of the Communications Act to requireclosed captioning[254]for any television public service announcement that is produced or funded inwhole or in part by an agency or instrumentality of the federal government.[255]

**TitleV: Miscellaneous**

Title Vcontains miscellaneous provisions clarifying the ADA�s relationship to otherlaws.[256]This title broke new ground when it extended coverage to Congress and federallegislative branch agencies.[257]At the time of the ADA�s passage, no other law provided for similar coverage.[258]The act not only provided unprecedented coverage of the Senate and House ofRepresentatives, but also provided that the �protections provided pursuant tothis Act, the Civil Rights Act of 1964, the Civil Rights Act of 1990, the AgeDiscrimination in Employment Act of 1967, and the Rehabilitation Act of 1973shall apply with respect to employment by the United States Senate.�[259]In essence, the Senate became subject to four laws upon the ADA�s enactmentwhile the House became subject only to the ADA. Title V also contains provisionsthat prohibit discrimination, coercion, threats, or interference directed at aperson who seeks to exercise rights under the act or who testifies or otherwiseparticipates in any investigation or proceeding under the act.[260]
[1] President George Bush�s    Remarks on Signing the Americans with Disabilities Act of 1990, *Public    Papers of the Presidents of the United States, George Bush* (Washington    D.C.: National Archives and Records Administration, 1990), book 2, p. 1071    (hereafter cited as President Bush�s Signing Statement).

[2] Pub. L. No. 101-336, 104    Stat. 327 (codified at 42 U.S.C. �� 12101�12213 (1994)).

[3] 42 U.S.C. ��    12111�12117.

[4] 42 U.S.C. ��    12131�12165.

[5] 42 U.S.C. ��    12181�12189.

[6] 47 U.S.C. � 225 (1994)*.*

[7] 42 U.S.C. �� 12117,    12133, 12188.

[8] Matthew Diller,    �Dissonant Disability Policies: The Tensions Between the Americans with    Disabilities Act and Federal Disability Benefit Programs,� *Texas Law Review,*vol. 76 (1998), p. 1013 (citing Alan Gartner and    Tom Joe, eds.,*Images of the Disabled,    Disabling Images*, 1987, p. 2).

[9] Jonathan C. Drimmer,    �Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal    Legislation and Social Policy for People with Disabilities,� *UCLA    Law Review*, vol. 40 (1993), pp. 1341, 1343 (hereafter cited as Drimmer,    �Cripples, Overcomers�).

[10] National Council on    Disability, *Equality of Opportunity:    The Making of the Americans with Disabilities Act*, 1997, p. 5 (hereafter    cited as NCD, *Equality of Opportunity*).

[11] Ibid.

[12] Drimmer, �Cripples,    Overcomers,� p. 1359.

[13] Ibid.

[14] Ibid.

[15] Ibid. (citation omitted).

[16] Ibid., pp. 1345�48,    1355�59.

[17] Ibid., p. 1348.

[18] Ibid., pp. 1361, 1368.

[19] Ibid., pp. 1361,    1366�67.

[20] Ibid., pp. 1358�59.

[21] Ibid., pp. 1375�76.

[22] Ibid., p. 1379.

[23] Ibid., p. 1358. The civil    rights model pursues equality of opportunity, through securing access to,    and independence in, all aspects of society. Ibid.

[24] Ibid., p. 1347.

[25] Ibid., pp. 1349, 1365.

[26] Ibid, p. 1361.

[27] Ibid.

[28] Ibid.

[29] Ibid., p. 1366.

[30] Ibid.

[31] Ibid., n. 111 (citing    Edna Yost and Lillian M. Gilbreth, *Normal Lives for the Disabled*, 1945, p. 72).

[32] Ibid., p. 1362.

[33] Ibid.

[34] Ibid.

[35] Ibid., p. 1363.

[36] Ibid.

[37] Ch. 107, 40 Stat. 617    (1918) (amended 1919)).

[38] Drimmer, �Cripples,    Overcomers,� p. 1364 (citing Act of July 11, 1919, ch. 12, 41 Stat. 158,    159 (1919)).

[39] Ch. 219, 41 Stat. 735    (1920) (codified as amended at 29 U.S.C. �� 731�741 (repealed 1973, and    re-enacted in the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat.    355)).

[40] Act of June 2, 1920, 41    Stat. 735.

[41] Drimmer, �Cripples,    Overcomers,� p. 1365.

[42] Randolph-Sheppard Act, ch.    638, 49 Stat. 1559 (1936) (codified as amended at 20 U.S.C. � 107 (1994)).

[43] Drimmer, �Cripples,    Overcomers,� p. 1366.

[44] Ibid., p. 1367.

[45] Ibid.

[46] Ibid., p. 1355.

[47] Ibid., p. 1358.

[48] Pub. L. No. 88-352, 78    Stat. 241 (1964) (codified as amended in scattered sections of 42 U.S.C.    (1994)).

[49] Robert L. Burgdorf Jr., *Disability    Discrimination in Employment Law* (Washington, D.C.: Bureau of National    Affairs, 1995), p. 26 (hereafter cited as Burgdorf, *Disability    Discrimination*). Robert L. Burgdorf Jr. was one of the original authors    of the Americans with Disabilities Act and is professor of law at David A.    Clarke School of Law, University of the District of Columbia.

[50] 42 U.S.C. � 2000a    (1994).

[51] 42 U.S.C. � 2000d    (1994).

[52] 42 U.S.C. � 2000e    (1994).

[53] NCD, *Equality    of Opportunity*, p. 21.

[54] Burgdorf, *Disability    Discrimination*, p. 12.

[55] Ibid., p. 13.

[56]*See, e.g.,* the Americans with Disabilities Act, 42 U.S.C. �    12101(a)(8); the Rehabilitation Act, 29 U.S.C. �� 701(a)(3)(A), 701(a)(4),    701(a)(6)(B), 701(b)(1)�(2), and 796f-4; and the Individuals with    Disabilities Education Act, 20 U.S.C. � 1401(c).

[57] Burgdorf, *Disability    Discrimination,* pp. 12�13.

[58] Ibid., p. 13.

[59] Ibid.

[60] Chavich v. Bd. of    Exam�rs, 23 A.D.2d 57 (N.Y. App. Div. 1965).

[61]*Id.*at 60�61.

[62] 349 U.S. 294 (1954).

[63] Burgdorf, *Disability    Discrimination*, p. 24 (citing Wolf v. State Legislature, Civ. No. 182646    (3d Judicial Dist., Salt Lake County, Utah, Jan. 8, 1969)).

[64] Ibid., p. 25.

[65] 473 U.S. 432 (1985).

[66] Cleburne v. Cleburne    Living Ctr., Inc., 473 U.S. 432, 446 (1985).

[67]*Id*.    at 446. The Equal Protection Clause of the 14th Amendment directs that all    persons similarly situated should be treated alike. *Id*.    at 439. State legislation or other official action that is challenged as    denying this right is presumed to be valid and will be sustained if the    classification drawn by the statute is �rationally related� to a    legitimate state interest.*Id.* at    440. This general rule does not apply when a statute classifies by race,    alienage, or national origin. *Id*.    These factors are so seldom relevant to the achievement of any legitimate    state interest that laws grounded in such considerations are deemed to    reflect prejudice and antipathy. *Id*.    Therefore, laws that classify based on race, alienage, or national origin    are subject to �strict scrutiny� and will be sustained only if they are    suitably tailored to serve a compelling state interest.*Id*. Gender and illegitimacy, also known as �quasi suspect,� are also    subject to a heightened standard of review. *Id*.    Official discrimination resting on gender or illegitimacy fails unless it is    substantially related to a sufficiently important governmental interest. *Id*. at 441.

[68]*Id.*    at 442.

[69]*Id.*    at 442�47. Following enactment of the ADA, some have argued that    classifications based on disability should be subject to heightened review    by the courts. *See, e.g.*, Heller    v. Doe, 509 U.S. 312 (1993) (Souter, J., dissenting) (stating that laws that    discriminate against individuals with mental retardation are subject to    heightened review).

[70] Burgdorf, *Disability    Discrimination*, p. 25.

[71] Pub. L. No. 90-480, 82    Stat. 718 (1968) (codified as amended at 42 U.S.C. �� 4151�4157 (1994)).

[72] 42 U.S.C. � 4155.

[73] 42 U.S.C. � 4151.

[74] Drimmer, �Cripples,    Overcomers,� p. 1378.

[75] 29 U.S.C. � 792 (1994).

[76] 29 U.S.C. � 792(b)(7) *amended    by* 29 U.S.C. � 792(b)(3)(A) (1994 and Supp. IV 1998).

[77] Burgdorf, *Disability    Discrimination,* p. 28 (citing 49 Fed. Reg. 33,864 (1982)).

[78] Pub L. No. 94-142, 89    Stat. 775 (1975) (codified at 20 U.S.C. �� 1232, 1401, 1405�1420, and    1453 (1994)). Section 1453 was subsequently repealed.

[79] Pub. L. No. 101-476,    901(a)(2) and (3), 104 Stat. 1142 (1990) (codified as amended at 20 U.S.C.    �� 1400�1485 (1994 & Supp. IV 1998)).

[80] 20 U.S.C. � 1412(a)(1)    (Supp. IV 1998).

[81] 20 U.S.C. �    1412(a)(5)(A) (Supp. IV 1998).

[82] 20 U.S.C. � 1412.

[83] Pub. L. No. 105-17, 111    Stat. 37 (1997) (codified at 20 U.S.C. �� 1401�1420 (1994)). The    authorization of appropriations for IDEA programs extends through fiscal    year 2002.

[84] U.S. Congress, Committee    on Education and the Workforce, *Individuals with Disabilities Education Act*, 105th Cong., 1st sess.,    1997, H. Rept. 105-95, at 85, *reprinted    in*1997 U.S.C.A.A.N. 78, 82.

[85] National Council on    Disability, *Back to School on Civil    Rights*, 2000, p. 10. The report looked at more than two decades of    federal monitoring and enforcement of Part B of the IDEA.

[86] Ibid.

[87] 42 U.S.C. �    6000(b)�(c) (1994).

[88] 42 U.S.C. �    6001(8)(A)�(E).

[89] 42 U.S.C. � 6009.

[90] 42 U.S.C. �    6009(1)�(2).

[91] Pennhurst State Sch.    & Hosp. v. Halderman, 451 U.S. 1, 11�32 (1981).

[92] 42 U.S.C. �� 1997(1),    1997a (1994).

[93] 42 U.S.C. � 1997a.

[94] 42 U.S.C. � 1997a.

[95] 42 U.S.C. � 1997a.

[96] 49 U.S.C.**� 1374(c) (1994).

[97] National Council on    Disability, *Enforcing the Civil Rights    of Air Travelers with Disabilities: Recommendations for the Department of    Transportation and Congress*, 1999.

[98] Ibid., pp. 9�13.

[99] Ibid., pp. 92�97.

[100]    42 U.S.C. �� 1973ee�1973ee-6 (1994).

[101]    42 U.S.C. �� 1973ee-2(a)�3(a). In 1993, the National Voter Registration    Act expanded registration opportunities for eligible persons with    disabilities. 42 U.S.C. � 1973gg-5 (1994). The act enables individuals with    disabilities to vote at social service agencies where they receive    state-funded benefits. 42 U.S.C. � 1973gg-5(a)(2)(B).

[102]    42 U.S.C. �� 3601�3631 (1994).

[103]    42 U.S.C. �� 3602, 3604. The Fair Housing Act was amended in 1974 to    proscribe discrimination on the basis of sex. *See* Housing and    Community Development Act of 1974, � 88(b), 88 Stat. 729. It was again    amended in 1988 to include disability and family status. *See*42 U.S.C.    � 3602(k) 1994.

[104]    42 U.S.C. � 3604(f)(3)(B).

[105]    42 U.S.C. � 3604(f)(3)(A).

[106]    The act is also known as the Smith-Fess Act.

[107]    NCD, *Equality of Opportunity*, pp.    12�13.

[108]    29 U.S.C. � 701 (1994 & Supp. IV 1998).

[109]    29 U.S.C. �� 791, 794 (Supp. IV 1998).

[110]    Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29 U.S.C.    �� 701�797 (1994 & Supp. IV 1998)).

[111]    NCD, *Equality of Opportunity*, p.    13.

[112]    42 U.S.C. � 2000d (1994).

[113]    H.R. 12154, 92nd Cong. (1971). A companion bill was introduced in the Senate    in 1972 by Senator Hubert Humphrey (D-MN), S. 3044, 92nd Cong. (1972).

[114]    29 U.S.C. � 794(a) (1994).**The    scope of the act extends to all areas in which the government finances or    conducts activities and programs, including employment, education, housing,    transportation, health services, recreation programs, and others.

[115]    NCD*, Equality of Opportunity*, p.    20 (quoting disability historian Richard K. Scotch, *From Goodwill to Civil Rights: Transforming Federal Disability Policy*    (Philadelphia: Temple University Press, 1984), p. 156).

[116]    29 U.S.C. � 791(b) (Supp. IV 1998).

[117]    29 U.S.C. � 793(a).

[118]    29 U.S.C. � 792(a) (Supp. IV 1998).

[119]    29 U.S.C. � 792(b)(3) (Supp. IV 1998).

[120]    29 U.S.C. � 792(d) (Supp. IV 1998).

[121]    The language of Section 504 did not mention issuing regulations or    establishing administrative enforcement mechanisms. Shortly after Section    504 was enacted, the Senate Subcommittee on the Handicapped sent a letter to    the Secretary of Health, Education, and Welfare (HEW), Caspar Weinberger,    advising him that HEW had the responsibility and authority to secure    governmentwide compliance with Section 504. Burgdorf, *Disability    Discrimination,*p. 40.

[122]    Pub. L. No. 93-516, 88 Stat. 1617 (1974) (codified as amended at 29 U.S.C.    � 706(8)(B) (1994).

[123]    Pub. L. No. 93-516, � 111(a), 88 Stat. 1617, 1619.

[124]    NCD, *Equality of Opportunity*, p.    14.

[125]    Ibid.

[126]    Ibid., pp. 16�19.

[127]    42 Fed. Reg. 22,677 (1977) (to be codified at 45 C.F.R. pt. 84).

[128]    45 C.F.R. � 84.12(b).

[129]    45 C.F.R. � 84.12(c).

[130]    Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. �� 12101�12213    (1994)).

[131]    42 U.S.C. � 12101.

[132]    42 U.S.C. � 12101(a)(3).

[133]    President Bush�s Signing Statement, book 2, p. 1068 (stating that the    signing of the ADA �is the world�s first comprehensive declaration of    equality for people with disabilities�the first�); Senator Harkin, the    primary sponsor of the ADA, called it �the 20th century Emancipation    Proclamation for all persons with disabilities.� 136 Cong. Rec. S9689    (daily ed. July 13, 1990); Senator McCain proclaimed, �This landmark    legislation will mark a new era for the disabled in our Nation.� 136 Cong.    Rec. S9684.

[134]    Drimmer, �Cripples, Overcomers,� p. 1400. The congressional findings    stated in the text of the ADA recognize that the pervasive discrimination    suffered by individuals with disabilities �costs the United States    billions of dollars in unnecessary expenses resulting from dependency and    nonproductivity.� 42 U.S.C. � 12101(a)(9).

[135]    NCD, *Equality of Opportunity*, p.    20.

[136]    Ibid.

[137]    Burgdorf, *Disability Discrimination*, p. 44.

[138]    Ibid.

[139]    The organization was originally named the National Council on the    Handicapped, but its name was changed to the National Council on Disability    in 1988.

[140]    National Council on Disability, �Congressional Mandate,� n.d.,    <http://www.ncd.gov/mandate.html> (July 19, 2000), p. 3.

[141]    Ibid., pp. 1�3.

[142]    Ibid., pp. 1�2.

[143]    Ibid., p. 2.

[144]    Ibid.

[145]    NCD, *Equality of Opportunity*, pp.    55�56.

[146]    Ibid., p. 55.

[147]    Ibid., p. 34.

[148]    Ibid., p. 51.

[149]    Ibid., p. 55.

[150]    Burgdorf, *Disability Discrimination,* p. 45. Lex Frieden and Robert    Burgdorf were the primary contributors of the report. NCD, *Equality of Opportunity*, p. 55. Mr. Frieden served as the executive    director of the NCD, and Mr. Burgdorf was a research specialist with the    organization.

[151]    National Council on the Handicapped, *Toward    Independence: An Assessment of Federal Laws and Programs Affecting Persons    with Disabilities�With Legislative Recommendations,*1986, p. 18    (hereafter cited as NCD, *Toward    Independence*).

[152]    NCD, *Equality of Opportunity*, p.    55.

[153]    Ibid.

[154]    Ibid.

[155]    Burgdorf, *Disability Discrimination,* p. 45.

[156]    NCD, *Equality of Opportunity*, p.    58. The report was also made available over the Internet.

[157]    Ibid.

[158]    Ibid., p. 57; NCD, *Toward Independence*,    pp. 18�54.

[159]    NCD, *Toward Independence*, p. 19.

[160]    Ibid.

[161]    Ibid., pp. 19�20.

[162]    NCD, *Equality of Opportunity*, p.    59.

[163]    Ibid.

[164]    Ibid.

[165]    Ibid.

[166]    Ibid., p. 60.

[167]    Ibid.

[168]    Ibid.

[169]    Ibid., p. 59.

[170]    Burgdorf, *Disability Discrimination,* p. 45.

[171]    Ibid.

[172]    NCD, *Equality of Opportunity*, app.    C, �Chronology: The ADA�s Path to Congress,� p. 205. After the    preliminary draft, Mr. Burgdorf and Lex Frieden worked most intensely on the    law. Ibid., p. 62.

[173]    Ibid., p. 71.

[174]    Ibid.

[175]    Ibid. The CCD was originally called the Consortium for Citizens with    Developmental Disabilities (CCDD). In 1989, the name was changed to    Consortium for Citizens with Disabilities (CCD). Ibid., p. 64.

[176]    Consortium for Citizens with Disabilities, �What�s New at CCD,� n.d.,    <http://www.c-c-d.org/index.htm> (July 19, 2000), p. 1.

[177]    Ibid.

[178]    In a report of this kind, it is impossible to mention all the organizations    that contributed to the passage of the ADA.

[179]    Ibid., p. 62.

[180]    Ibid., p. 65.

[181]    Ibid.

[182]    Ibid.

[183]    Ibid.

[184]    Ibid.

[185]    Section 503 provisions mandate that federal contractors affirmatively hire    and promote individuals with disabilities. 29 U.S.C. � 793(a). Section 504    provisions prohibit discrimination on the basis of a disability. 29 U.S.C.    � 794(a).

[186]    NCD, *Equality of Opportunity*, pp.    64�65.

[187]    Ibid.

[188]    Ibid., p. 63.

[189]    Ibid.

[190]    Ibid.

[191]    Ibid., pp. 63�64.

[192]    Ibid.

[193]    S. 2345, 100th Cong. (1988).

[194]    134 Cong. Rec. 5107, 5109�10    (1988).

[195]    H.R. 4498, 100th Cong. (1988).

[196]    NCD, *Equality of Opportunity*, p.    87.

[197]    Ibid., pp. 89�90.

[198]    Ibid., pp. 107�11, 116.

[199]    Ibid., pp. 111, 132.

[200]    Ibid., p. 111.

[201]    Ibid.

[202]    Ibid., p. 132.

[203]    Ibid.

[204]    Ibid., app. D, �Chronology: Legislative History of the ADA,� p. 208.

[205]    Ibid., p. 118.

[206]    Ibid.

[207]    Ibid.

[208]    Ibid., p. 119.

[209]    Ibid.

[210]    Ibid., pp. 121�22.

[211]    Ibid., p. 122.

[212]    Ibid., p. 127. In the Senate, the bill went only to one committee and one    subcommittee. Ibid.

[213]    Ibid., p. 129.

[214]    H.R. 2273, 101st Cong. � 103(d) (1990).

[215]    NCD, *Equality of Opportunity*, pp.    160�61.

[216]    Ibid., pp. 172�75.

[217]    U.S. Congress, House, Committee on Conference, Joint Explanatory Statement,    101st Cong., 2d Sess., 1990, H. Conf. Rept. 596, at 61�62, *reprinted in* 1990 U.S.C.A.A.N. 565, 570�71.

[218]    Ibid.

[219]    NCD, *Equality of Opportunity*, p.    164.

[220]    President Bush�s Signing Statement, book 2, p. 1071.

[221]    42 U.S.C. �� 12101�12213 (1994).

[222]    Titles IV and V will not be discussed in this report because they were not    subjects of the ADA hearing held in Washington, D.C., Nov. 12�13, 1998.

[223]    Congress found that 43 million Americans had physical or mental disabilities    and noted the widespread discrimination faced by people with disabilities    throughout history. 42 U.S.C. � 12101(a)(1)�(2). The findings state that    individuals with disabilities encounter discrimination �in such critical    areas as employment, housing, public accommodations, education,    transportation, communication, recreation, institutionalization, health    services, voting, and access to public services.� *Id.*� 12101(a)(3). In addition, Congress found that the discrimination took    numerous forms, including �outright intentional exclusion, the    discriminatory effects of architectural, transportation, and communication    barriers, overprotective rules and policies, failure to make modifications    to existing facilities and practices, exclusionary qualification standards    and criteria, programs, activities, benefits, jobs, or other    opportunities.� 42 U.S.C. � 12101(a)(5).

[224]    42 U.S.C. � 12101(a)(8).

[225]    42 U.S.C. � 12111.

[226]    42 U.S.C.**� 12111(5)(A).

[227]    President Bush�s Signing Statement, book 2, p. 1071.

[228]    42 U.S.C. � 12111(5)(A).

[229]    42 U.S.C. � 12111(5)(A).

[230]    42 U.S.C. � 12102(2)(A)�(C).

[231]    42 U.S.C. � 12111(8).

[232]    42 U.S.C. � 12114(a).

[233]    42 U.S.C. � 12112(a).

[234]    42 U.S.C. � 12111(9)(A)�(B).

[235]    42 U.S.C. � 12112(b)(5)(A).

[236]    42 U.S.C. � 12113(a).

[237]    42 U.S.C. � 12113(b).

[238]    42 U.S.C. � 12113(b).

[239]    42 U.S.C. �� 12131�12165.

[240]    42 U.S.C. �� 12131�12165. The majority of Title II deals with    transportation, which is beyond the testimony given at the Commission    hearing. The testimony regarding Title II centered around individuals with    psychiatric disabilities and is discussed in detail in chapter 5 of this    report.

[241]    42 U.S.C. � 12132.

[242]    28 C.F.R. pt. 35 (1999).

[243]    28 C.F.R. pt. 35, app. A (commentary on � 35.102).

[244]    28 C.F.R. pt. 35, app. A (commentary on � 35.102).

[245]    42 U.S.C. �� 12141�12161.

[246]    28 C.F.R. � 35.10(d).

[247]    42 U.S.C. � 12181.

[248]    42 U.S.C. � 12182.

[249]    Burgdorf, *Disability Discrimination*, p. 58.

[250]    42 U.S.C. � 12181(7)(A)�(L).

[251]    47 U.S.C. �� 225, 611 (1994).

[252]    47 U.S.C. � 225.

[253]    47 U.S.C. � 225(b)(1).

[254]    �Closed captioning� refers to a system that allows only viewers with a    decoder to view the captions. Burgdorf, *Disability Discrimination,* p.    66. In contrast �open captioning� provides subtitles that appear on the    screens of all viewers. Ibid.

[255]    47 U.S.C. � 611 (1994).

[256]    42 U.S.C. �� 12201�12212 (1994).

[257]    Pub. L. No. 101-336, � 509, 104 Stat. 373�75 (1990) (codified at 42 U.S.C.    � 12209 (1994)).

[258]    Burgdorf, *Disability Discrimination*, p. 117.

[259]    42 U.S.C. � 12209(a)(2).

[260]    42 U.S.C. � 12203.