Crip Commentary: Laura Hershey's Weekly Web Column

Laura Hershey's Weekly Web Column

Column from July 26, 1999

ADA: Nine Years Later, Much Advocacy Work Remains

Copyright 1999 by Laura Hershey

Nine years ago this week, the Americans with Disabilities Act was signed into law by President Bush, thus concluding one of the most strenuous advocacy efforts ever undertaken by the disability-rights community.

Or so we may have thought -- some of us -- at the time. As we have since learned, getting the ADA passed and signed was only the beginning. Far more crucial would be the battles that lay ahead, ensuring that the legislation would serve us well. We have had to educate public officials, business owners, the general public, and our own community about the purpose and provisions of the ADA. We have had to bring legal actions that would result in favorable judicial interpretations. We have had to fend off political assaults from right-wing forces that wanted to undermine or even repeal the ADA. Even now, almost a decade later, our work is far from done. Sometimes it seems that every new development regarding the ADA brings a whole host of new questions and new responsibilities. Other times, it seems that we move one step forward, and two steps back.

A good example is the pair of decisions issued by the U.S. Supreme Court in June. In the long-awaited, much-anticipated Olmstead ruling, the Court gave us a tremendous victory, by agreeing with two disabled plaintiffs who claimed their civil rights were violated when the state of Georgia institutionalized them rather than providing them with community-based support services. The Justices loaded their decision with qualifying statements. For instance, they wrote that a "qualified professional" would have to determine that a person was able to live in the community. Despite all the "ifs" and "buts," this decision contains revolutionary implications for liberation of our people. It actually identifies institutionalization as (in some cases) a violation of Title II of the Americans with Disabilities Act, which mandates that any services that states provide to people with disabilities must be available in the most integrated setting possible. This finding may lend momentum to the campaign for a national system of attendant services for people who need daily assistance, as an alternative to confinement in nursing homes.

On the same day, the same Court delivered a nasty blow to the ADA's employment mandates. This ruling affects people with disabilities that can be "corrected" by eyeglasses, medication, or other treatments. The Court determine that someone with a "correctible" condition cannot seek protection under the ADA -- even if that condition was the reason the person was fired or denied a job.

I am concerned that clever corporate lawyers will force this illogical decision to its logical, devastating conclusion. For example, an employer might refuse to hire me because he is uncomfortable with my physical disability. If I file a discrimination suit, the employer's attorneys could argue that my power wheelchair, voice-activated computer, and other adaptive devices serve to "correct" my disability, and thus deprive me of legal recourse under the anti-bias law. Such arguments could result in a real legal Catch-22: a plaintiff could be judged either truly disabled, and not qualified because they lack the equipment they need to do the job; or, with necessary equipment, not disabled enough to merit legal protection. This scenario alarms me.

What alarms me even more, however, are some noises I've been hearing from various parts of the disability community, expressing approval for the above-mentioned decision. For example, the editor of one national newsletter recently wrote that people with so-called "minor" disabilities didn't need or deserve civil-rights protection.

(If the plaintiffs' disabilities were so minor, why then did those disabilities make them ineligible for the jobs they wanted? -- jobs which they had demonstrated they were capable of doing!)

One of the most remarkable things about the Americans with Disabilities Act is its history -- the unprecedented organizing and coalition-building which led to its passage. Some opponents of the bill tried to divide and conquer the disability community. For example, conservative members of Congress introduced amendments which would have excluded certain groups of people with disabilities, especially people with HIV and AIDS. But the disability-rights movement -- so often divided by policy or personality -- managed to remain unified on one essential principle: The ADA had to cover all people with disabilities.

We would do well to remember, and emulate, those advocates' determination to make the ADA all-inclusive. If we start accepting increasingly narrow definition of disability, we will soon find that it excludes virtually all of us.

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