One of us, Chai Feldblum, was actively involved in the drafting and negotiation of the Americans with Disabilities Act (ADA) from 1988 to 1990, and has remained involved in disability rights since that time. Two of us, Kevin Barry and Emily Benfer, are part of the new generation of lawyers who are seeking to implement and carry out the promise of the ADA.
The goal of the ADA was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad coverage prohibiting discrimination against people with a wide range of physical and mental impairments.1
Unfortunately, the Supreme Court - with lower courts following in its lead, barricaded the door that the ADA had opened by interpreting the definition of "disability" in the ADA to create an overly demanding standard for coverage under the law.2 This article provides an overview of the advocacy effort that has resulted in restoring the original intent of the ADA and destroying the barriers of discrimination that prevent people with disabilities from fully participating in society.
II. THE PREQUEL: 1988-1990
After decades of fighting the inferior social and economic status of people with disabilities through litigation, including litigation under Section 504 of the Rehabilitation Act, and through state legislation to provide greater protection against discrimination,3 the efforts of the disability rights community turned to Congress to achieve uniform, national protection for people with disabilities.
In 1988, Senators Lowell Weicker, Tom Harkin and twelve other cosponsors in the Senate, and Congressman Tony Coelho and 45 cosponsors in the House of Representatives, introduced the Americans with Disabilities Act (ADA), S. 2345 and H.R. 4498, respectively.4 This version of the ADA was based on a bill drafted by Robert Burgdorf, then a staff attorney with the National Council on Disability (NCD), an independent federal agency charged with making recommendations to the President and Congress.5 Burgdorf's draft was modeled generally on Section 504 of the Rehabilitation Act, albeit with some important differences. For example, Burgdorf proposed providing protection to any person who had experienced discrimination "because of a physical or mental impairment, perceived impairment, or record of impairment."6
An unusual joint Senate and House hearing was held on S. 2345,7 but otherwise, there was no legislative activity on the bill. Hence, the bill died at the adjournment of the 100th Congress. Nevertheless, the bill represented a critical first step in the enactment of the ADA since its introduction prompted subsequent activity on the part of both the business and disability communities.8
The effort to pass the subsequent version of the ADA in the 101st Congress was guided by a sophisticated, organized, and coherent strategic effort.9 Between 1989 and 1990, thirty to forty members of the disability community, under the umbrella of the Consortium for Citizens with Disabilities (CCD) Rights Task Force, worked tirelessly to pass the ADA.10 Various individuals took on different roles: a lead sttategist, a lobby manager working with many dedicated lobbyists, a legislative lawyer team, grassroots activists, and communications and media people.11
In 1989, during the first five months of the 101st Congress, staff members for Senators Tom Harkin and Edward Kennedy drafted a new version of the ADA, in consultation with members of the disability rights community. …