Nearing the fifteenth birthday of the Americans with Disabilities Act ("ADA"), most commentators believe that its overall effects have been disappointing. By this point, there is a standard set of explanations for the ADA's failures: the Supreme Court's limiting decisions relating to the definition of disability, the limits of antidiscrimination law, and the economic failures of the accommodation mandate. These explanations come with corresponding recommendations for disability law reform. This Article challenges the assumption, nearly universal until now, that these explanations and recommendations apply equally to the entire ADA. This Article argues that these explanations are based on an employment law-dominated (Title I) narrative and are incomplete and/or incorrect when applied to the ADA's two other major parts (Title II, relating to public services, and Title III, relating to places of public accommodation). Through a first-ever quantitative analysis of Title II and III cases, this Article shows that these cases-unlike Title I cases-fare relatively well in the courts compared with other civil rights statutes. This Article suggests that the major issue confronting Titles II and III is under-enforcement at the private and public levels, and concludes with a discussion of how to strengthen those enforcement mechanisms.
The Americans with Disabilities Act ("ADA")1 can be described as the All-Star team of civil rights legislation. The framers of the ADA sought to create sweeping change in nearly every facet of the lives of people with disabilities. To achieve these ambitious goals, the framers assembled the best and brightest parts of other civil rights legislation: pieces of Title VII of the Civil Rights Act of 1964,2 Section 504 of the Rehabilitation Act of 1973,3 Title II of the Civil Rights Act of 1964,4 and the Fair Housing Act.5 The end result was a comprehensive statute with three major parts: Title I, dealing with employment,6 Title II, dealing with public services,7 and Title III, dealing with public accommodations.8
The All-Star analogy has obvious limits. All-Star teams are typically chosen by fans or coaches, who are able to select whomever they want. In contrast, the framers of the ADA had to make important sacrifices to achieve passage of the statute. And while All-Star teams usually only play together for a short period of time, the ADA has hung around a bit longer, celebrating its fifteenth birthday.
At this milestone, like spectators of All-Star games, nearly everyone has an opinion about the ADA's success. Most commentators, while acknowledging that the ADA has created some positive change, believe that its overall effects have been disappointing.9 A standard set of explanations has evolved in the literature for "what is wrong" with the ADA. These include the increasingly narrow way the courts (in particular, the Supreme Court) have interpreted the ADA, specifically, its definition of disability cases; the limits of antidiscrimination law in changing the broader problems faced by people with disabilities; and the limitations of the accommodation mandate.10 These competing explanations generate different proposals for ADA reform, including amending the ADA to overturn unpopular court decisions and a more aggressive return to social welfare policies.11 This Article challenges the assumption, taken nearly as a given until now, that these explanations apply equally to all Titles of the ADA.
These explanations are typically offered in scholarship relating to the ADA's employment law provisions (Title I), which is the most written about and litigated of the ADA's three major Titles. Given the overwhelmingly pro-defendant outcomes of Title I cases,12 these explanations and accompanying suggestions for reform are well thought out and persuasive-as applied to Title I. But, to an extent underappreciated in the previous literature, Titles II and III are different. …