How the Americans with Disabilities Act Is Changing the Face and Mind of a Nation
By Silvia Yee[1] and Marilyn Golden[2]
Introduction
With the signing into law of the Americans with Disabilities Act of 1990 (ADA) on July 26, 1990, America unambiguously acknowledged that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous.”[3] Disability activists celebrated the ADA as “the most comprehensive civil rights advancement for people with disabilities ever to be enacted by the United States Congress.”[4] More recent pronouncements on the law continue to echo the language of civil rights. John Wodatch, Chief of the Civil Rights Division of the U.S. Department of Justice (the primary federal agency responsible for enforcement of Titles II and III of the ADA), states succinctly that “A primary goal of the ADA is to open up everyday American life to persons with disabilities.”[5] Policy analysts characterize the ADA’s mandate as “broad and sweeping – to protect the civil rights of the nation’s 49 million people with disabilities in virtually all aspects of public life.”[6] In a recent survey of the ADA’s implementation in municipalities, the authors begin by stating that the ADA “has been heralded as the most comprehensive piece of federal [rights] legislation since the Civil Rights Act of 1964.”[7]
The statute is organized into five titles that deal with employment (Title I); state and local governments (Title II); privately-operated accommodations, goods and services available to the public (Title III); telecommunications (Title IV); and miscellaneous provisions (Title V). Distinct compliance requirements, deadlines, enforcement procedures and remedies are specified in each section. A number of different federal agencies and departments are responsible for giving technical assistance and ensuring compliance within each area. Nonetheless, the overall language and goals of the ADA coalesce into a whole that is much greater than the sum of its parts. This paper focuses on the operation of Titles II, III and IV of the ADA, but is not strictly organized according to those titles. Instead, after Part A’s introduction to the overall social and civil rights goals of the ADA, we move into examining aspects of contemporary life as it is lived by people with disabilities in the United States in the year 2000. Through discussing “Getting Around” (Part B), “Places to Go” (Part C) and “People to Call” (Part D), we show how the technical language of infrastructure and the equality promise of civil rights are inextricably entwined for people with disabilities. “Just Like Everyone Else” (Part E) explores how the ADA is addressing systemic structural and social barriers that are preventing people with disabilities from participating in the everyday life of the community that others in the U.S. can take for granted. “A Civil Rights Tool” (Part F) concludes by giving an overview of legislative forerunners to the ADA, and analyzes the integral part that both federal enforcement and a private right of action (the right of a private individual to bring a lawsuit) play in the effectiveness of the ADA as a tool for social change.
Jane West noted in 1995 that “the greatest impact of the ADA to date is in two areas: the empowerment claimed by people with disabilities and changes in how our nation’s institutions conduct routine business: in stores, on buses, in the office, and in our use of telecommunications.”[8] The fact is, these two aspects – self-perception and the accessibility of everyday life – are deeply interrelated, and both are vital to the ADA as a civil rights law. As is evident from both the testimony of people with disabilities and professionals in the field, dramatic changes have taken place over the last 10 years, and would not have occurred to the same extent or as quickly without the ADA. This paper relates some of those testimonials “from the trenches,” as well as an idea of how the ADA continues to function through litigation, settlements and voluntary compliance as an effective tool in the ongoing battle against disability discrimination. Now that the ADA has been in place for a decade, we have begun to see the kinds of structural and social changes for which it was enacted. True equality may not yet have been achieved, but the turning of a millennium is nonetheless a good time to assess the battle to change the face and mind of America.
B. Getting Around
Regardless of the potential for a “virtual community” in our electronic age, real mobility is still integral to virtually all aspects of contemporary life. Most Americans take reliable, ubiquitous and relatively inexpensive transport for granted in their lives – especially in urban settings – and schedule school and work meetings, social appointments, entertainment events, and travel plans accordingly. For many people with disabilities faced with inaccessible public transportation, the making of business and personal plans have always been subject to complex logistical concerns about how to get from point A to B. The transportation industry as a whole has historically resisted spending funds on making public transportation accessible to people with disabilities, and federal policy had tried to juggle cost concerns with achieving legal equality. As transportation consultant Rosalyn Simon notes, “the provision of accessible transportation in the United States was always varied and uneven. Uniform accessible transportation did not exist until it was required by the passage of the Americans with Disabilities Act of 1990.”[9]
The ADA requires accessibility in transportation provided to the public,[10] whether publicly funded (Title II) or privately funded (Title III). The importance of the act’s comprehensiveness and its coverage of all modes of public and private transportation cannot be overemphasized. Some individual cities and states had accessible vehicles before 1990, as well as paratransit[11] services that specifically served the disability community, but a reliable full range of transportation – one that would allow an individual with disabilities to reach a fixed route bus stop, transfer to light rail transit, and then catch a cross-country train – rarely occurred. On this point, Marilyn Golden, Policy Analyst with the Disability Rights Education Defense Fund (DREDF),[12] and a wheelchair user herself, recounts the following:
I recall people at the ADA hearings in Washington, held prior to the passage of the act, speaking about what it can be like when transit is accessible. One gentleman who testified, a significantly disabled man using a wheelchair, said that he boarded an accessible transit in New York and rode to an Amtrak station, then caught an Amtrak train from New York to D.C. In his sleeper car, he slept until the next morning, and transferred at Washington D.C.’s Amtrak station to an accessible subway. He got to the hearing and testified that he would do the whole thing in reverse to get home on his own. While others could take such mobility for granted, this was the first time in his life he was able to do such a thing, and all the transportation systems had to be accessible for it to work. To him this was an amazing experience.[13]
Golden points out that the man’s experience was fortuitous: he was traveling in the densely populated East where Amtrak is heavily used, and managed to catch a number of accessible vehicles in a row. One of the ADA’s goals is to make such independent travel possible without reliance on location, sheer good fortune or the scheduling availability of accessible vehicles on a given day. Golden states:
There is far more accessible mainline transit in this country now, in fixed route buses, and to some extent, in rail transit as well, such as subways, and commuter and light rail. There is also more paratransit. . . More and more people with disabilities are getting places on public transportation than they were before the ADA. It is true that there are still problems in transportation, and that there is a gap between where we are and full compliance. It would be impossible for there not to be. I don’t know of any significant social policy advance, whether in the area of civil rights, the environment, or any other, where there isn’t a gap between where we are and full compliance. … but there is a huge gap between where we would be if there was no ADA and what the ADA has provided.[14]
Another strong feature of the ADA is that it emphasizes accessibility from the viewpoint of people with disabilities. That is, the ADA sets a functional standard that requires public transportation to be “readily accessible to and usable by” people with disabilities, and not a financial standard that would allow transit authorities to spend varying real dollar amounts on accessibility improvements. The significance of this is highlighted by John Gaffney,[15] who discusses the “local option” accessibility policy that had been favored under Section 504 of the Rehabilitation Act of 1973:
It was decided eventually by FTA [the Federal Transit Administration] that as long as the transit authority … was spending 3% of its total budget on accessible service – pretty much however defined – that they were doing what they had to do under Section 504, whether they were meeting needs or not. What was curious about that, of course, is that it became known not as the “3% minimum” but as the “3% cap,” in the tradition of government that floors become ceilings. … ADA eliminated the whole idea of a cap, and said that we simply have to spend whatever it takes to provide the minimum level of service as defined by federal law for service for people with disabilities. That change was the most profound one under the ADA, I think.[16]
The requirements established by the ADA are also noteworthy for both their scope and their depth. The Department of Transportation’s (DOT) technical standards[17] address a broad range of disabilities by calling for numerous accessibility features – including “priority seating signs, interior handrails and stanchions, appropriate floor and step surfaces, lighting, fare collection, and destination and route signs.”[18] Similarly, the depth of the ADA is shown by the fact that its requirements extend “beyond vehicles and system infrastructure to cover maintenance, personnel training, information services, and communication systems.”[19] This comprehensiveness allows the ADA to bypass the problems of “local option” so vividly described by Gaffney:
[Before the ADA] everyone had a different idea of how access would be achieved. Transit authorities set up different standards. Some used the accessibility of all or part of their fixed-route [fleet], while others decided that they would meet accessibility requirements entirely through paratransit. … The transit industry generally, I think, was successful at deferring any real significant change to the services they provided. In contrast, the ADA gave a very clear definition of what constituted access in mass transit. It meant that every vehicle had to be accessible over time as older vehicles were replaced.[20]
Gaffney’s last point shows how the legislation gives realistic consideration to the sheer magnitude of change required of transit authorities by the mandate to offer transportation to people with disabilities “in the same vehicles and facilities as everyone else.”[21] Transit authorities were not forced to offer instant 100% accessibility, but rather faced various statutory and regulatory requirements that were phased in over different deadlines. For example, the act required all new vehicles ordered by fixed route operators after August 26, 1990 (30 days after the ADA’s enactment) to be equipped with accessibility features.[22] Transit agencies had to file their plans for providing paratransit services and begin implementing such services by January 26, 1992, though the final deadline for full compliance with the ADA’s paratransit service requirements was July 26, 1997.[23] The dates set for full implementation of the ADA’s accessibility requirements for private over-the-road bus operators[24] and extraordinarily expensive structural changes to rapid, commuter and light rail key stations are even later.[25]
One of the earliest deadlines, involving the purchase or lease of new fixed route vehicles after August 26, 1990, has its own phase-in feature since public transit operators will reach full accessibility as they naturally turn over their fleet. An additional benefit of this approach is that it provides a strong incentive for the testing and steady development of new transit technologies. For example, fixed route transit authorities are increasingly purchasing low-floor buses with ramps rather than buses with lifts, since the earlier technology of the lifts generally requires more maintenance. Technological innovation is also supported by the concept of “equivalent facilitation,” which is permitted under DOT’s technical standards, “meaning that the literal requirements of the Guidelines need not be complied with, if an equal or greater degree of accessibility can be provided by other means.”[26] Equivalent facilitation allows for the integration of such new technologies as the Cleveland Securement System, for example, which involves a docking latch instead of a 4-point tie-down and can generally be used to secure a mobility device on a transit vehicle in under 90 seconds.[27]
Even with a phased-in approach, fixed route transit has changed remarkably over the last decade from the situation in 1987, when a national American Public Transit Association survey found that only 18% of 174 public transit systems operated accessible fixed route service. As Simon reports:
In 1989, one-third (36%) of the national bus fleet was accessible. Post-ADA fixed route bus accessibility increased to 39 percent in 1990, 46 percent in 1991, and 52 percent in 1992. Using data reported in transit system 1994 ADA plans, the federal government reported the national bus fleet as 55 percent accessible with 29, 000 lift/ramp-equipped buses in 1994 and 60 percent accessible with 32,000 lift/ramp-equipped buses in 1995. Their projections indicate that by 2002, the national bus fleet will be 100 percent lift/ramp-equipped. In addition, by 2005, all fixed route buses will also be equipped with ADA-compliant communication systems. Currently fixed route bus service is available in 324 out of 360 urbanized areas (UZAs) in the country. More than 100 public transit systems are now providing 100 percent accessible fixed route bus service during peak hours.[28]
The above figures are impressive, painting a picture of sleek, shining, accessible buses ready to be boarded, but the availability of vehicles only tells part of the story. There is still the question of whether people with disabilities can actually reach the vehicles, and the issue of whether people with disabilities actually use fixed route transit once it becomes available. We focus on the mid-sized city of Austin, Texas to look at these aspects of transportation under the ADA, and let two workers on the front lines of implementation speak for themselves: Delores Gonzales, the city’s ADA Compliance Officer, and Nancy Crowther, the ADA Coordinator for Capital Metro Transit Authority (Cap-Metro).
Gonzales has been in her current position with the city of Austin for about nine years, and humorously notes that “everyone is my customer,”[29] including every city department and every aspect of ADA implementation, from providing sensitivity training for city employees to procuring accessibility equipment such as Braille printers. She points out that Austin actually had started to work with the disability community before the ADA’s effective date, and that she was first employed by the city to be a liaison with the disability community in the late 1980s. Gonzales credits the city’s awareness of people with disabilities and their needs to the presence in the city of “a very vocal and active disability community” (including the country’s second largest chapter of ADAPT – an important and effective national grassroots disability rights organization that utilizes extensive direct action, as well as litigation and other advocacy tools), and states that she is “proud to be one of 54 million Americans with Disabilities.”[30]
When called at her Austin office, Gonzales mentions Austin’s “Curb Ramp Program” as a highlight in her career with the city. The public works program was cited as “visionary” by DOT when it was given an award on the ADA’s Tenth Anniversary, and consists of the well-planned and systematic construction of both sidewalk curb ramps for city walkways and accessible routes to facilities. After Austin surveyed one-third of its roadways, the city’s estimate of the number of curb ramps required increased from 1500 to 6000; 4500 of those have now been constructed. City representatives worked with members of the disability community, other levels of government with transportation jurisdiction, and Cap-Metro to set design standards for the curb ramps that would be acceptable to both those with mobility and visual impairments. Since Austin’s major roadways are also public bus routes, those curb ramps would be implemented by Cap-Metro as part of its ADA obligation. In addition to the curb ramps, Gonzales describes other steps that the city is taking at pedestrian walkways to increase accessibility, such as installing directional beeps, audio “walk” signals, and vibrating tactile push buttons onto clearly located roadway poles to assist people with visual and hearing impairments.
Since Austin’s work with the disability community had begun in the ‘80s with obligations placed upon local governments under Section 504 of the Rehabilitation Act of 1973, we asked Gonzales if the curb ramp program would have been implemented even without the ADA. Her decisive answer is that the ADA “was the tool we needed.”[31] The ADA specifically sets prioritized requirements for curb ramps or other sloped areas at existing, as well as newly constructed, pedestrian walkways.[32] As well, the ADA’s increased comprehensiveness prompted many state and local governments to submit an updated transition plan,[33] because the transition plans previously required under Section 504 were incomplete or otherwise insufficient in light of ADA requirements. Gonzales takes the ADA’s inclusiveness mandate very seriously, and saw it as an opportunity to form a core group of representatives from different disability groups to review and comment on the transition plans that Gonzales asked every city department for. As she reflected on what having the ADA in place meant, she concluded with a practical insight into the benefits of having a private right of action:
I received authority and a blank check from the city because they took to heart what the law said. We try to do the right thing because it is the law, and because it is a civil right, but also, to protect ourselves. We have been sued, we are not immune from being sued, but when we are, plaintiffs will not find negligence in my program – it is a win-win situation for the city. And if someone does sue, we work together to solve the problem.[34]
Nancy Crowther, a fellow member on Austin’s Mayor’s Committee for People with Disabilities, shares Gonzales’s positive attitude. Crowther was diagnosed with spinal muscular atrophy at the age of two, and as a wheelchair user cites considerable personal familiarity with inaccessible transportation, having experienced it until the end of her college days. She recalls attending the University of Texas and becoming involved with a lawsuit against the University because of its inaccessible campus shuttle service. The action was heard and lost in 1983 because the court found that the shuttle service didn’t receive sufficient federal funding to come under Section 504, and was therefore not required to retrofit its fleet to provide accessible service or any kind of special service. Today, Crowther looks back with satisfaction and states “we lost that battle, but won the war when the ADA went into effect.”[35]
Crowther first became involved with Cap-Metro in 1985, as a representative on the transit authority’s Advisory Committee for People with Disabilities. In 1989, she actually joined the organization as an employee, in a new position designed to ensure that accessibility progress would continue. She initiated programs in driver sensitivity and lift training, and after the ADA was passed, she was placed in charge of Cap-Metro’s paratransit plan as well. With the city of Austin and Cap-Metro’s early start on addressing transit accessibility issues, fixed route transit became 100% lift equipped and accessible by 1993. Cap-Metro has put in over eighteen miles of sidewalk and curb ramps along their bus routes to date, and instituted numerous education programs within the disability community as well, giving people with various disabilities lessons in taking public fixed route transit. When Crowther states that “people with disabilities really did want to ride” she has the numbers to back her up. In 1993, the year when full fleet accessibility was reached and people with disabilities no longer had to worry about whether or not a specific scheduled bus on a particular route would happen to have a lift, the number of boardings by passengers with wheelchairs on Cap-Metro’s fixed route service jumped over 300%, from 12,625 to 38, 582. Every succeeding year has seen a steady increase (the exception being 1995, when Austin suffered torrential rainfalls and the first lifts installed needed retrofitting), with the number of boardings reaching 83,574 in 1999.
Crowther is justly proud of Austin’s fixed route service. When asked whether the passage into law of the ADA contributed to the move towards accessibility that Austin had already started in the late ‘80s, Crowther replies “it helped tremendously, and gave a kind of credence to what we were doing. It was fully embraced here, and I was pleased to see that.” She points out how Cap-Metro could only gain by having had an early start on accessibility:
I know for a fact that the industry as a whole didn’t grasp the law well. It screamed at all the hearings prior to the signing of the ADA. Within the industry, many transit authorities went ahead and bought buses in 1990, just prior to the coming into effect of the requirement for buying new buses with lifts. An entire fleet would then be inaccessible, and a bus’s life is twelve years. I spoke with the Secretary of Transit at a recent conference in Virginia, and he confirmed that 83% of the nation’s fleet is currently accessible, and in 2002 we will have 100% accessibility. … Now I see the impact on those transit authorities that refused to comply or tried to get under the wire of having lifts on their buses. They feel the impact in their paratransit, which is a much more costly service. For ourselves, there is no way in the world that we could have accommodated an additional 83,000 rides on our paratransit [referring to the 1999 boarding figure for Austin’s fixed route service by people who use wheelchairs].[36]
Crowther has recently been promoted to the position of ADA Coordinator for Cap-Metro, and describes a number of innovative programs undertaken by the transit authority. Bus stop poles provide tactile clues for people with visual impairments: they are the only square poles in the city, with raised route numbers placed on the poles themselves. There is a toll-free number that gives route information. Bright yellow hailing guides have been issued so that people with disabilities can get a driver’s attention, and drivers have been instructed to stop for pick ups and drop offs at safe sites between regular stops, since there are still a few inaccessible stops. Crowther agrees that the ADA has definitely been helpful in adding “teeth” to her programs: she knows that she can say “You will take care of this” to a Cap-Metro employee or department, and have the backing of the act and the federal Department of Transportation.
Crowther’s last statement about fixed route and paratransit hints at the relationship between these two forms of transportation under the ADA. Before 1990, under Section 504 of the Rehabilitation Act of 1973, public transit services for people with disabilities could be provided either through fixed route service or paratransit. The ADA (which also amended Section 504) clearly advocates the use of fixed route by requiring full accessibility on buses, and on commuter, rapid and light rail transport. Nonetheless, the act recognizes that there are people with disabilities who are unable, for various reasons, to take fixed route transit, and therefore transit authorities that provide fixed route service to the general public must also provide complementary paratransit service to members of the general public who can’t use the fixed route service.[37] Paratransit is a more expensive service than fixed route, and the ADA’s service criteria make it clear that the frequently inferior standards of many pre-ADA paratransit services would no longer be tolerated. Paratransit service must now be comparable to fixed route service in its service area, response time, fares, hours and days of service, and in a lack of restrictions on trip purpose or on capacity.[38]
While many disability advocates and transit authorities are concerned by the fact that increases in paratransit demand outpace the use of accessible fixed route systems by people with disabilities in many parts of the country, others make the point that paratransit is still the only feasible means of transportation for some people with disabilities. It is possible that the ADA is finally enabling these and other members of the public who need paratransit to travel for the first time.[39]
Russell Thatcher worked as a Section 504 Coordinator for the State of Massachusetts, and then moved into consulting work after passage of the ADA. He developed a handbook for the Federal Transit Authority (FTA) on implementing the ADA’s paratransit provisions, and became involved in the FTA’s reviews of paratransit plans and updates from 1992-97. Thatcher currently works with Multisystems, a private consulting firm, and runs a National Transit Institute course that trains transit staff to establish and conduct paratransit eligibility determinations. He makes the following observations:
Paratransit back in the ‘70s and ‘80s was never really taken seriously by the transit industry. A female colleague of mine puts it this way: “It was always seen as human service, and it was run mainly by women – they were the managers. The guys did the ‘big bus’ stuff.” Now paratransit is growing, both in number of trips and as a percentage of the budget. It’s starting to get attention and be taken seriously as part of each system’s program. This is really positive, and until it happened, I don’t think we could even get to a point where we could provide mobility, let alone equality. I think the specificity of the ADA has greatly helped.[40]
When Thatcher states that “between 1992 and 1997, the number of paratransit rides more than doubled,” it is just one of numerous observations about fixed route and rail service accessibility that together lead him to conclude “we’ve moved an awful long way in 10 years.” Thatcher also makes the point that even though “it used to be the feeling in the industry that no matter how many vehicles were put into paratransit, there would always be an unending growth in demand, there are some systems now that are seeing growth in demand level off. It isn’t because they have serious problems or strengths, but because they are beginning to achieve full service to eligible riders.”[41]
The ADA’s success in changing the face of mass transit for people with disabilities, especially in the areas of fixed route accessibility and paratransit, is due in part to how the transit industry has evolved in this country. Golden observes that transportation is unique among areas covered by the ADA in not having to apply to literally thousands of potential establishments. “Each big city has one (or just a handful of) public transit agencies. Even though they carry many passengers, they are still only one target. People with disabilities across the country had been largely organized to pressure their transit authorities for inclusion even before the ADA was passed. Since many of the transit agencies knew they were being watched, many complied with the ADA, whereas a public accommodation such as a small restaurant might not even know about its obligations.”[42]
Thatcher also takes a broad view of the ADA when he addresses how the act’s civil rights approach has been necessitated by the structure of the transit industry in this country, but may also fall short of achieving full mobility for people with disabilities:
In this country, only 5% of the population uses public transportation; 95% of our trips are made in private vehicles. Equality is going to get people mobility in those areas where that 5% of the population has access to good public transportation. A civil rights law does not mean that you are going to have the best mobility to support independence, only equal access to public transportation. It is a good baseline, but as you get into suburban areas, rural areas and even urban areas that lack good public service, equal transportation is not going to ensure that people with disabilities can get a job, keep a job, get to school, travel and do other things equally.[43]
The same idea is expressed succinctly, if less formally, by DREDF’s Director of Government Affairs, Patrisha Wright, when she says “people with disabilities discovered that what the ADA entitled them to was the same lousy mass transit available to everyone else.”[44]
Thatcher notes that a number of European states address mobility issues for people with disabilities through public policy programs, but invariably those are countries that have strong nation-wide public transportation programs as well as high per capita transportation budgets. He continues:
The U.S. does not have a strong national public transportation program. Everything is local. The federal government passes out money, and the local authorities decide what to do with it. The state of accessible transportation back in the ‘80s was pretty dismal. … I really question whether or not we could come as far as we have without something like a civil rights law. It made sense for us. The other thing, unfortunately, is that if you rely on national programs and policies, it ultimately comes down to who is in power and who is running the programs.[45]
An equality, integration-oriented approach offers additional benefits besides those mentioned by Thatcher. Within the disability community, the chance to get on and ride the same buses as the general public has often been viewed as a mark of independence and pride. A lead advocate in Topeka, Kansas [Mike Oxford], demonstrated this when he spoke of his organization’s outreach plans once accessibility was achieved in Topeka:
We’ll do things like being real public and campaign for integration as the way to go; [we’ll] encourage people to ride the big bus because it’s cool, make it “disability cool” and “disability pride” to get on the mainline bus; “don’t be a weenie and ride the bus.”[46]
When people with disabilities and the general public have equal and shared mass transportation, then they also have an equal stake in maintaining and improving that transportation. The possibility of building real communities, in which people with disabilities can work in tandem with the rest of the public for better services that will be made available to all, can only be achieved with real integration. Clearly the goal of full mobility for people with disabilities – whether in the cause of work, recreation, community involvement, or personal interactions – is an ideal which has not yet been achieved, but the ADA’s transit requirements have succeeded in bringing people with disabilities that much closer to the ideal.
C. Places to Go
Now that the ADA has enabled people with disabilities to move about in their communities and in the country, the inevitable question is: where will they go? The answer: more places than they could ten years ago. The ADA’s accessibility requirements flow from the equality provisions of Title II and Title III, and generally came into effect on January 26, 1992 (eighteen months after the ADA’s enactment date). Title II prohibits discrimination against people with disabilities in all services, programs and activities operated or provided by state or local governments.[47] Title III is the sister prohibition placed on private businesses, since it prohibits discrimination by privately operated public accommodations,[48] commercial facilities, and private entities that offer certain courses and examinations (e.g., courses and exams leading to a professional license). While the precise language used in each title differs slightly, the prohibitions on discrimination in the two titles are very similar,[49] and are intended to ensure that no individual or class of individuals is denied, on the basis of disability, the right to participate in and benefit from the goods, services, programs, activities, or other advantages offered by any place of public accommodation or any local or state government.[50] State and local governments, and private entities that own, lease or operate places of public accommodation, cannot avoid the act through contracting out their activities. Nor will the prohibition against discrimination be satisfied by providing opportunities to participate that are unequal to those given to the general public or unnecessarily separate, since goods, programs and services must be provided in the most integrated setting appropriate to the needs of the individual(s) in question.[51] Places of public accommodation and state and local governments must also provide reasonable modifications to their policies, practices or procedures when needed to avoid discrimination on the basis of disability, though any modification that fundamentally alters the nature of the goods or services provided need not be made.[52]
Discrimination under Titles II and III includes a failure to make provision for structural accessibility for people with disabilities. The ADA requires the removal or avoidance of architectural and other structural barriers in existing facilities, newly built facilities and facilities that are altered, but it does not impose these requirements without regard for such balancing factors as expense or the difficulty of accomplishing the changes, in comparison with the resources of the covered entity. For example, places of public accommodation are required to remove architectural, communication and transportation barriers[53] in existing facilities only to the extent that such removal is readily achievable, which is defined as “easily accomplishable and able to be carried out without much difficulty or expense.”[54] Such readily achievable barrier removal may include, for example, the installation of entrance ramps or grab bars in restrooms, rearranging restaurant tables or display aisles, adding Braille/raised letters to elevators, or installing flashing alarm lights in hotel rooms. The flexibility of the “readily achievable” standard is designed to allow consideration of many factors, including the business’s size (large, prosperous businesses are expected to do more than “mom and pop” stores) and the economic realities faced by the public accommodation in question. The published ADA Accessibility Guidelines provide further guidance for compliance.
The obligation placed upon state and local governments to make their existing programs, services and benefits accessible to people with disabilities is generally higher than the “readily achievable” standard to which private entities are held. For example, government programs offered in existing facilities must, when viewed in their entirety, be readily accessible and usable by people with disabilities, up to the point at which such access would fundamentally alter the program or impose an undue financial or administrative burden.[55] The requirement for the government program to be viewed in its entirety means that providing accessibility does not always come down to the need for architectural modifications. For example, if a city currently centralizes all its utility payment services in one inaccessible building, the decision to collect payment to an equivalent service level, at an accessible building in an equally convenient location in the city, avoids the need to structurally modify the original building. However, if the original building is the city hall, which is the site of many other vital community and government operations, then the local government must also make those services accessible when viewed in their entirety.
After only a decade of operation, the ADA has not made every building in America accessible. Just as full transit mobility is still an unrealized ideal in the area of transportation, fully accessible design is an ideal in the construction and alteration of spaces in the built environment. Bill Hecker, an architect who has done consulting work on the ADA and is the founder of Hecker Design, Ltd. in Alabama, describes “universal design” as a concept in which design and the dynamic accessibility needs of all people are considered together right from the very beginning of the architectural process. Unfortunately, he finds that universal design still seems to be given a relatively low priority in the architect’s general scheme of design, with ADA compliance and disability issues addressed as an afterthought only after a plan is essentially completed. Still, he is encouraged by the fact that the Architectural Registration Exam has added an entire section dealing with accessibility since the ADA passed, and that ADA issues have even been included on the National Council of Architecture Registration Board’s Model Exam.[56]
One of the reasons that accessible design remains an unrealized ideal at this point is because its adoption still requires conscious and deliberate intent from architects and designers.[57] The fact that an intellectual understanding of accessibility issues is officially required from the current generation of architects is a very important first step, but accessibility issues will not become integral to the design process until people with disabilities begin to be seen and characterized as members of the general public and as clients themselves. This is precisely what the public accommodations and program provisions of the ADA are designed to encourage. Underlying all the technical requirements and the balancing concepts is the fact that the act gives people with disabilities the opportunity to assume an active presence in every aspect of American life, whether eating out, assuming civic duties, shopping, traveling, or just relaxing at a movie. The benefits of this are felt not only by people with disabilities, but by family members and friends, and even by businesses that may see returns on their ADA “investment.” The following interviews and testimonies bear witness to the ADA’s effectiveness as a tool for changing accessibility in American business.
On the fifth anniversary of the ADA, the National Council on Disability (NCD) held town meetings and interviewed people with disabilities and their families in all 50 states, the District of Columbia and the U.S. Virgin Islands to gain an idea of the ADA’s impact in everyday life. One of the report’s major findings is that “in every State of the Union, consumers testified that the Americans with Disabilities Act (ADA) has created greater access to the physical environment over the past five years. Consumers spoke in great detail about the important changes that have occurred in virtually every type of environment. Some spoke of entire jurisdictions that had voluntarily embraced the ADA.”[58] The personal testimonies in the Report cover such varied government facilities as community centers, public libraries, courthouses, and public schools, as well as voting sites and universities. Public accommodations that are cited included large retail chains like Wal-Mart, hotel chains, restaurants, and outdoor sports and recreation facilities. The ADA’s “ripple” effect on the families of people with disabilities can clearly be seen in numerous comments on accessibility.[59] Shelley Peterman Schwarz of Wisconsin explains “[b]efore the ADA, I couldn’t even shop with my daughter for her first prom dress. But things have changed, and I recently did shop with my daughter to buy clothes: for her job interview!” Kristopher Hazard of Tennessee similarly states “[b]efore the ADA was passed, my family couldn’t go any place together because of my Mom’s wheelchair. But now many places are accessible, and we can go on outings as a family.” Linda Hawkins, the parent of a boy with disabilities, says that her son “wanted to participate in weight training, but he couldn’t get to the field house because it was located down a steep gravel hill, inaccessible to wheelchairs. I couldn’t get the school to make accommodations until I had ADA behind me.”
For these individuals, the changes they and their families experienced in their physical environment were clearly attributable to the legislation. Title III’s applicability to privately owned public accommodations (and even such non-public commercial facilities as warehouses and factories in some instances[60]) is groundbreaking. Has Title II made as much difference to people with disabilities? In the opinion of Michael Muehe, who worked as the Director of Disability Discrimination for the City of Cambridge in Massachusetts pre-ADA, and who has been that city’s ADA Coordinator for the last six and a half years, the ADA did not drastically alter the city’s pre-existing obligations under Section 504 from a purely technical point of view. As Cambridge had always received considerable amounts of federal funding, and was also generally advanced in its political consciousness, the city had taken its Section 504 requirements seriously. But he admits that disability awareness had stagnated somewhat by the mid ‘80s. For city and state officials, enactment of the ADA served to revitalize their sense of a need to work on accessibility, and sharpened their awareness of disability discrimination as a civil rights issue. Accessibility became a “social imperative.” He adds:
The ADA really propelled disability issues into the public consciousness. The ADA is recognized by the typical Joe in the street. I don’t know how many times a contractor will say to me “I’ve put the ADA ramp here” or “the ADA accessible route is there.” The ADA has become a synonym for disability consciousness and accessibility, and in that sense, the ADA has been very successful. … Also, it has made a tremendous difference in the lives of people with disabilities and in [the accessibility] of everyday life. People with disabilities have a much keener sense of their civil rights and disability exclusion, and they want an equal opportunity.[61]
Muehe remembers meeting a woman using a wheelchair on the sidewalk in 1986, the year he became disabled himself, and recalls that she didn’t know about Section 504. He finds it difficult to imagine that being the case with the ADA today.
Enforcement of the law has played a large role in the ADA’s success in raising public awareness of disability rights. The Disability Rights Section of the Civil Rights Division of the U.S. Department of Justic (DOJ) is given the lead federal role for enforcing Title III.[62] In doing so, the agency may (i) investigate complaints lodged by the public alleging Title III violations; (ii) undertake periodic compliance reviews; and (iii) bring a civil enforcement action.[63] In the summer of 2000, DOJ issued a special commemorative report that reviewed the past decade of ADA enforcement.[64] The Report highlights a number of the informal agreements, formal settlements, and judgments that have been won by DOJ since 1990, as well as the fact that the act gives DOJ the right to initiate an action in cases in which there is a pattern or practice of discrimination, or where there are issues of general public importance.
Under this mandate, DOJ has entered into ADA enforcement actions in many spheres of life, including government services and public accommodations of all kinds. One important area that has been addressed strategically is recreational travel destinations. Given the huge popularity of Disneyland and Hawaii as domestic American vacation destinations, DOJ came to realize that addressing the inaccessibility of both locations would serve to raise awareness of people with disabilities as travelers.
At Disney World and Disneyland, the issue did not concern architectural barriers as much as the communications inaccessibility engendered by Disney’s failure to provide auxiliary aids to people who are deaf or hard of hearing.[65] Under the comprehensive agreement reached by DOJ and Disney, Disney agreed to numerous measures to ensure that hearing impaired people could enjoy the various attractions and shows available at Disney World and Disneyland. These accommodations include the provision of such things as oral and sign language interpreters at various specified attractions when given advance notice of a planned visit; written transcripts and assistive listening systems at most attractions; closed captioning on video monitors placed near queues throughout the park; interpreter schedules from Guest Services; employee training to improve service to hard of hearing or deaf guests, and advertisement of these services to guests who are deaf or hard of hearing.[66] For John Wodatch, the Disney agreement is a success story not only because DOJ managed to reach an agreement, but because once Disney got past its initial resistance, the company finally began to turn all their renown originality and innovation towards meeting the needs of people with disabilities. Wodatch reports that at this point, Disney is serving a much larger clientele of people with disabilities.[67]
In Hawaii, accessibility for blind and visually impaired people was limited by the state’s policy of requiring all dogs to be quarantined in a state facility for 120 days. For people with disabilities who have guide dogs, the choice was between visiting Hawaii without the capacity for independence provided by their dogs or not going at all. DOJ intervened in a lawsuit and eventually reached an agreement with the State “which allows individuals with vision impairments to travel to Hawaii with their guide dogs without having to undergo the quarantine, as long as they are able to demonstrate that the dog is free from rabies through documentation of rabies vaccination and serological testing.”[68] Jenine Stanley and her husband are both blind and each has a guide dog. She speaks of her husband’s longstanding desire to live in Hawaii: “now, we can do that freely and travel back to the mainland as often as we want. We have choices. Choice is not always as available to people with disabilities as to others in our society. From raised character and Braille signage on hotel room doors to being able to work my guide dog in Hawaii, the ADA has given me the tools and supports to feel included in society, rather than cared for by it.”[69]
Hawaii’s tropical climate is helpful for many people with disabilities who have problems with circulation or mobility, and it is estimated that 12-20% of Hawaii’s total population falls under the disability provisions of the ADA. This fact, along with the state’s popularity as a tourist spot, may have prompted the increasing level of accessibility in Hawaii. In a recent in-depth article assessing the impact of the ADA in Hawaii, journalist Andrew Gomes spoke with many Islanders such as Paul Sheriff, a person with disabilities and an ADA consultant, who “says that of all the cities he has visited recently – Los Angeles, San Francisco, Seattle, Denver, New Orleans, Minneapolis, Chicago, Washington and New York – Honolulu is the most accessible.”[70] Bob Peterson, the president of Peterson Sign Co., also in Hawaii, admits that he initially questioned the helpfulness of the law, even though he himself has made ADA-compliant signs. But today he notices an increasing number of people who are blind or in wheelchairs out in the community. “I think that says something about the ADA law. I think it allows people to get out and do more things, he said.”[71]
Another popular vacation state is Alaska, where the possibility of litigation under the ADA has played a critical part in achieving increased accessibility. Janel Wright is a staff attorney with the Disability Law Center of Alaska, one of the state’s protection and advocacy agencies. The very ambitious “ramp project” was run in two stages by herself and a fellow staff attorney in 1995. Each stage began with the identification of public accommodations that had failed to meet their ADA obligation to ensure architectural accessibility, and in particular, had failed to remove barriers caused by having steps. The next step involved sending a letter to each public accommodation, informing it of its ADA obligation and asking for some indication of how the business planned to meet this obligation. If a business failed to reply in a responsible manner, a second letter would be sent, after which Wright would make the decision to file an administrative complaint or lawsuit if the business still refused to take action. To date, the project has resulted in approximately 140 ramps being built in business establishments across the state.
In Phase One, 62 letters were sent out, resulting in a total of 38 ramps being built. Not all of these were achieved through voluntary compliance with the initial letter. Wright had to file administrative complaints against 12 of those 38 businesses, 2 of which then promised to build ramps and eventually did. Of the remainder that had been sent a letter, 5 provided alternative service, 12 already had access but no visible signage indicating this to be the case, and 7 were determined to be in compliance for other reasons. In Phase Two, 271 letters were sent out. 85 of the establishments responded with voluntary compliance, 19 provided alternative service, 6 posted signage about existing accessibility, and 33 were determined to be in compliance for other reasons. Wright filed lawsuits against 19 of the businesses (a number of the cases are still open), and most of these were resolved through a consent decree in which the businesses agreed not only to provide a ramp, but also to pay attorney’s fees.
The initiative for the ramp project came from Jesse Owens, a professor at the University of Alaska who has used a wheelchair since a snowmobile accident some years ago, and has remained very active outdoors. Wright explains:
He would be so frustrated because he would be traveling on the highway system in Alaska, and go through a town like Glen Allen, between Anchorage and Valdez, and he would not be able to get in anywhere to go to the restroom or get a bite to eat. He came to our office, where we shared his interest in pursuing compliance from businesses on the highway systems. From there, it grew, and he has been our plaintiff in 15 of the 19 law suits. … He is not doing this to cause any kind of financial hardship to a business, he just wants access.[72]
Wright realizes the important place that litigation has in the scheme of the ADA. While some of the letters prompted awareness and swift compliance on the part of the public accommodation, a number of others “fought everything every step of the way.” Phase Two of the project received a lot of media coverage, tracking lawsuits as they were each filed about two weeks apart. Wright reports that 2 of the recalcitrant businesses targeted for a lawsuit eventually called and said that they were looking into building a ramp, but only after fifteen other lawsuits had already been filed. Furthermore, lawsuits – or at least their potential – seem to do more to publicize the fact of the law than any number of technical assistance publications. Wright notes that “a lot of businesses [which] might not have received a letter, but were next door to a business that did receive a letter, built a ramp as well.” She adds that Alaska’s “state statutes have protection for people with disabilities, but that is not something that people look to for enforcement. It’s great to have the ADA to supplement and complement that [state] law.” Wright also believes that the project “changed some attitudes in this state, which is a huge accomplishment.”[73]
Jim Beck, a resident of Alaska who has done considerable work in developing state-wide ADA training and technical assistance, and who also played a part in the ramp project, describes it in these terms:
It didn’t necessarily generate a lot of good will, but it wasn’t about good will. We wanted to get ramps built. We were not trying to get businesses to feel good about what they had not done. … When I drive around in the area where I live, which is an hour north of Anchorage and much more rural, I see businesses building ramps, and they are doing it because they have heard of this project and because they don’t want to get sued. We would rather have them doing it because they want to, but the result is that these places are becoming accessible. I’m seeing new ramps built on old buildings. It’s amazing.[74]
Beck has an equally clear opinion about the benefit of having a law like the ADA: “We can write a letter now, and know that we have some back-up. Without that, it’s a charity case. The issues don’t get approached with the seriousness that they deserve when it’s a charity case. Now it’s a civil rights issue, and we wouldn’t have that without the law behind us.” Beck sums up the law in an apt metaphor that also acknowledges those businesses that readily complied with the ramp project letters: “It’s nice to have the tool, and the tool is not always a club. . .”[75]
James Terry, a partner in the architecture firm of Evan Terry and Associates in Birmingham, Alabama, provides a contrast to many of the advocates and attorneys profiled above. Having worked as a facilities and program accessibility consultant all over the country, both for DOJ and for private corporations, Terry is fully aware and supportive of the ADA as a civil rights law, but what really fires his enthusiasm for the ADA is the still little-known fact that accessibility compliance can be a good business investment. He has seen numerous clients come to understand this fact, but only after making the changes required by the ADA. He explains:
Most people don’t know the demographics. The number of people with disabilities is increasing every year. Most people just haven’t thought through the benefits of accommodating people with disabilities. They haven’t thought of the ripple effect to others who also benefit. … For example, people eat in restaurants in groups of 2 to 4. The person in the group with a disability will likely get to choose the place where they will eat because everyone wants everyone else to be comfortable. For the establishment that can accommodate the disability, the result is not one additional customer with a disability, but any number of additional customers.[76]
Terry also talks about the unexpected benefits of barrier removal. One client installed automatic doors at a cost of $10,000.00 per door. By the time six months had passed, the doors were receiving steadily increasing traffic – people leaving with multiple packages, people with strollers, people with disabilities, elderly people and their families. As a result, the client decided to install automatic doors in other stores in their retail chain. Another large well-known retailer decided to lower portions of all its counters as an ADA accommodation. It received numerous appreciative comments from customers about the increased comfort and experience of the lowered counters, but most of these comments came not from people with disabilities, but from non-disabled customers who happened to be short. Yet another client, a bank, made the decision to offer Braille bank statements, both as an ADA accommodation and as an incentive for blind people to switch banks. The unanticipated result was that they gained customers drawn not only from among blind people who no longer had to rely on someone else to read them their bank statement, but among those family members and friends who had once had to do the reading, and were appreciative of the new-found independence that Braille statements afforded blind people.
When asked if he thought businesses had become more aware of the investment possibilities of accommodation over the last ten years, Terry replied:
Yes. What we are finding is that companies, particularly companies who complied early, are discovering that it was money well spent. The return on their money often did not come from where they thought it was going to come from, and they didn’t see the ADA as an investment to start with – they thought of it as an expense – but it turned out to be a [good] investment with far wider and more beneficial ramifications than they had expected. The fact is, everyone needed the stick, the carrot, the incentive [to make accommodations].[77]
Another area of significant activity under Title III is access to sports facilities. Before the ADA, people with disabilities encountered many barriers that inhibited their equal enjoyment of sports events: a lack of seating, poor sight lines, and difficulty sitting next to the friends they came with. Even when seating was available, it was frequently isolated, so that wheelchair or mobility aid users could not share the feeling of being part of the crowd as it roots for a particular team or shares admiration for a favorite athlete. Lee Page, a wheelchair user from Virginia, recalls a personal experience from attending ball games in stadiums built before the ADA came into effect:
All the accessible seating was located in the end zone part of the stadium. Wheelchair users sat up on a cement slab with a railing in front. Your companion, the person you came to the event with, would sit in a fixed seat in front of you and the railing, but at a much lower level. I didn’t really feel part of the crowd and it was difficult to interact with my friend.[78]
Even such newly constructed sporting facilities as the venues planned for the 1996 Olympic and Paralympic Games in Atlanta failed to provide integrated seating and full accessibility. However, the ADA gave DOJ the capacity to redress the situation in Atlanta. After investigating complaints filed by people with disabilities, DOJ entered into agreements concerning five newly constructed venues. Under the agreements, the venues were required to (i) designate a least one percent of their total seats for wheelchair users and ensure that these seats were dispersed throughout the stadium; (ii) ensure that accessible seats provided lines of sight comparable to those given other spectators, even if the spectators in front of those seats stood; and (iii) provide a companion seat adjacent to each wheelchair space, so that people with disabilities could watch events next to family and friends. For Page, attending the opening ceremonies of the Paralympics in Atlanta “was a very emotional and fulfilling night. I finally felt like a part of the crowd.”[79]
In movie theaters, the ADA has also been interpreted to require adjacent companion seats in addition to accessible seats. The formal consent decree entered between DOJ and United Artists Theater Circuit, Inc., one of the country’s largest theater chains, addressed barrier removal at existing theaters as well as the barrier-free construction of new theaters at over 400 locations. In existing theaters, United Artists was required to provide the same number of wheelchair seating spaces that would be required in newly constructed auditoriums of a comparable size, with companion seating beside these spaces. Also, at least one percent of the total number of aisle seats was required to have folding or removable aisle-side armrests, thereby offering another integrated seating choice. All newly constructed theaters that had been designed for first occupancy after January 26, 1993 were to be fully ADA compliant no later than June 30, 1997, and future construction had to fully comply.[80]
D. People to Call
One of the biggest limitations placed on the social, economic and physical well-being of people with disabilities has been telephone inaccessibility. The two primary requirements set by Title IV of the ADA for telecommunications accessibility for individuals with hearing impairments are the provision of telecommunications relay services, and the closed captioning of all federally-funded TV public service announcements.[81] The Act requires all common carriers (telephone companies) to provide intra- and interstate telecommunications relay services (TRSs) by July 26, 1993. These services enable people with teletypewriters (TTY’s) to initiate or receive telephone calls even when the other party does not have TTY equipment. Use of the TTY (a device that functions like a typewriter with a message display) enables a person with a speech or hearing impairment to send and receive coded signals over telephone lines. The TRS provides trained operators who act as intermediaries between a caller who is using a TTY and one who is not. The operator can receive a TTY message and relay it by voice, and then relay the response back via TTY to a deaf person, or simply let a speech-impaired person listen to the voice of the other party. Alternatively, a deaf person may choose to speak directly to someone, and only require relay services to receive responses. TRSs are subject to strict service requirements regarding availability. No restrictions are allowed on the length, type or number of calls made by any relay user. The overarching goal of the service is “functional equivalence” with voice telecommunication, and relay users must have the same choice of long distance carriers that voice telephone users have, at rates that are comparable to any direct dialed call of the same length and dialing origin/destination.
The TRS requirement established by the ADA has made the phone system in the U.S. truly accessible for the first time to speech and hearing-impaired people throughout the country. Given the fact that Alexander Graham Bell first invented the telephone in 1876,[82] and considering the absolutely critical role that has been held by the telephone in all aspects of contemporary society ever since, the TRS amounts to nothing short of a revolution for deaf and speech-impaired people. Karen Peltz Strauss, the Deputy Bureau Chief of the Federal Communication Commission’s (FCC) Consumer Information Bureau, speaks of the tremendous difference that access to the telephone made when deaf people could use the telephone to order pizza, gather and compare insurance prices, and set up employment interviews. “It created freedom, independence, autonomy, and all kinds of new worlds in employment, education and entertainment. [People with hearing and speech impairments] became an economic force, both by removing themselves from being a drain on the system, and by becoming consumers themselves through ordering and buying.”[83]
Peltz Strauss describes the pre-ADA situation as one in which perhaps 20 states had initiated relay systems, most of which were inadequate, underfunded and severely limited. For example, calls could only be made at certain times for certain purposes and for limited periods, and even so, there were “no guarantees.” In such a situation, a deaf person’s ability to call friends or family members who lived in other parts of the country, let alone within the same state, was severely restricted. Peltz Srauss applauds the open-ended “functional equivalence” criterion for the TRS, since it not only guarantees a baseline standard of service and availability, it also means that telecommunications for deaf people will continue to improve technologically in an effort to reach the efficiency of voice-based technologies. As an example, she cites the latest order issued by the FCC regarding new relay services, in which such new technologies as video relays (featuring sign-language interpreters at remote locations) and Speech-to-Speech relay (featuring operators trained to comprehend individuals with speech impairments, so that both the operator and the 3rd party can hear the actual voice of a speech impaired caller) have been approved. Peltz Strauss is also realistic about the fact that relay services attained their pinnacle of use for only the 3 or 4 years that followed full implementation on July 26, 1993, the ADA’s effective date for relay services. After that, more affluent and educated hearing-impaired people increasingly moved to the use of e-mail. She believes that “technology and education is the future,” and warns that we need to ensure that the initially accessible technology of computers does not become inaccessible to individuals with hearing and vision impairment as computers increasingly incorporate the extensive use of graphics and audio.
Shelley Bergum, Executive Director of the Deaf and Disabled Telecommunications Program of the California Relay Service (one of the few state relay services recognized by Peltz Strauss as functional even before the ADA), agrees with Peltz Strauss’ assessment of the impact of TRSs:
Telecommunications Relay Services (TRS) have made a huge difference in the lives, both personally and professionally, of deaf people and people with speech disabilities. The California Relay Service (CRS), which began in 1987, was the first statewide 24 hour, 7 day a week relay service in the country. Before CRS, deaf people had to rely on friends, family members, or interpreters to make telephone calls for them to anyone who did not have a TTY. With CRS, deaf people can now be completely independent in their use of the telephone … We have heard many stories from consumers who say that they had never used the phone independently before, and now they can call anyone they want. One user told us that because of Speech-to-Speech service, she now plans to attend law school.[84]
Bergum also praises the standard of “functional equivalence” imbedded in the ADA’s telecommunications requirements. She believes that the FCC has established a positive standard for interpreting and enforcing the ADA as a civil rights statute, and endorses their effort:
to provide telecommunications services to people with disabilities that are functionally equivalent to those provided to all other telecommunications service consumers, and not just to provide the ability to use the telephone or make a phone call. In this area, technology truly is driving how functional equivalence can be provided, and the FCC’s regulations have to keep up with that.[85]
TRSs indisputably need to keep up with technology, but for people with hearing and speech impairments and members of their family, the simple ability to pick up a phone and make a call remains a miracle. The National Council on Disability describes a woman at the Arkansas town meeting who “reported that she had never used a telephone in her life. She was excited about the relay system: ‘Now I can talk on the phone all I want.'” In another town meeting, Mark Palmer, the son of deaf parents described the pressure he felt growing up having to hear and speak for his parents. In medical situations, with merchants, with the police, on the phone, even when he was sick, he was continually thrust into the adult role of having to take care of his parents’ needs. Palmer recounted how difficult it was to make phone calls for his parents: “People often wouldn’t respond to me because they knew I was a kid.” But today the situation is much improved. Palmer’s parents use the relay services, and they watch captioned TV: “I am no longer required to make sure my parents’ needs are met because they can do it themselves!”[86]
E. Just Like Everyone Else
Most people in America take for granted the ability to accomplish their many daily and weekly errands. Yet people with disabilities are often prevented from performing these common activities, and must therefore forego a great deal of community interaction, because of thoughtless or needlessly restrictive structural or systemic barriers. Grocery stores frequently place cart corral rails at every entrance that are less than 32 inches apart, and as a result, wheelchair users cannot do their own grocery shopping. [87] Businesses often refuse to accept payment by personal check unless the customer can corroborate his or her identity with a driver’s license, so some individuals whose seizure disorders are such that they are prevented from getting a driver’s license can not pay for purchases with their personal checks.[88] People with disabilities are not asking for anything extraordinary when they want to shop for groceries, watch their children play with their peers, move into a neighborhood, or go to college. They merely want to live their lives like everyone else, and just as the ADA prohibits structural and communications barriers, it also operates to dismantle the social discrimination that prevents people with disabilities from achieving this simple goal. This section looks at how the benefits of the ADA extend beyond the tangible realms of transportation, architecture, and communication.
Jeremy Orr, a nine year old with multiple disabilities, attended an after school program at a California KinderCare center, where “he was treated like other children. … Jeremy attended the field trips and participated in other children’s parties at the center, and even got invited to a few parties outside of the center.”[89] After several months, Jeremy’s parents were told that his disabilities prevented him from participating in KinderCare activities in the same manner as other children in the program. KinderCare would neither let Jeremy attend their program nor make any kind of modification for an aide (provided by Jeremy’s parents and paid for through State funds).[90] Jeremy’s parents filed a lawsuit under the ADA, supported by a DOJ amicus brief. The case was eventually settled and KinderCare changed its policy and admitted Jeremy back into its program, with his aide. His mother, Sherry Johnson, describes the kinds of interaction with his peers that any loving parent would desire for his or her child:
As a parent, the biggest benefit I received was in the day to day observation of his inclusion and acceptance by other children during the time he attended the center. Whether it was the time he came to the table to join some younger children in a coloring project and one girl remarked “Where is his walking chair?” or whether it was sitting behind the boys playing computer games and their suggestion that it was his turn to play. Jeremy was their friend and part of their day to day activities.[91]
The U.S. Supreme Court heard Olmstead v. L.C. Zimring[92] in its 1998-99 term, and issued an opinion that finally addressed the issue of discrimination raised by the placement of individuals with mental disabilities in institutions rather than community settings. The NCD describes the decision as:
the most significant ADA decision acknowledging that unjustified isolation is a form of discrimination under the ADA’s integration mandate. The L.C. decision expands options for individuals who are currently in state mental institutions because it affirms a right for an individual to receive community-based services. As the Court noted: “Institutional placement of people who can handle and benefit from community settings perpetuates unwarranted assumptions that people so isolated are incapable or unworthy of participating in community life and cultural enrichment.”[93]
The Supreme Court’s endorsement of community integration does carry conditions, however. The professional health staff must agree that community placements are appropriate, the affected individual must not oppose community placement, and State defendants may raise a cost-based defense against the immediate community placement of the affected individual. More positively, the decision also clearly indicated that the waiting lists for people to move from institutions into the community must move at a reasonable pace, and the reasonableness of the pace could not be dictated by the State’s endeavors to keep its institutions fully populated.
In Arlington, Virginia, the EndDependence Center of Northern Virginia is a part of the Independent Living Movement, which provides resources for and empowers people with disabilities to live independently. Michael Cooper, the first volunteer on the President’s Task Force on Disability and a person with a mental disability himself, has been the Executive Director of the Center since 1995. He tells of the Center’s search for a rental location in the summer of 1998. The Center had been having difficulty finding a site for its offices after a search of some length, and attempted to lease office space in a Rosslyn, Virginia building owned by TrizecHahn Corporation, a Canadian-based commercial real estate corporation with holdings in every continent. Initially, the leasing agent was very enthusiastic about the Center, which was an established non-profit organization with an excellent tenant record, good credit, and long-standing support sources; the Center was even asked to consider “moving in on short notice.” This situation changed abruptly after two Board members arrived in power wheelchairs to look at the prospective property. TrizecHahn’s leasing agent “refused to enter into any negotiations with the [C]enter, and instead, simply refused to lease the space to the [C]enter solely because the [C]enter serves people with disabilities”[94]; Cooper was told the company wanted “a more standard lessee.” The Center filed a complaint with DOJ in 1998, and won an out of court agreement on April 7, 1999, whereby TrizecHahn agreed to pay $560,000 in damages ($550,000 to the Center and $10,000 in civil penalties to the federal government). Cooper is certain that “the only way we were successful in addressing our concerns was because of DOJ’s intervention.” TrizecHahn is a multinational corporation, and even though its actions also violated a local human rights ordinance and state law, Cooper believes the real authority came from the federal legislation:
The ADA is a profoundly important piece of civil rights legislation. It was the first time Congress recognized that there was a persistent, longstanding pattern of discrimination against [people with disabilities as] a segment of the American people. Everything that we’ve accomplished since then is because of the ADA.[95]
The Center moved into its present location in January 1999, after taking out a loan to ensure that the Center would be completely accessible. The monthly investment income from the TrizecHahn settlement award is being used to pay off the loan. When Cooper describes the Center’s technical and structural innovations, its ability to serve a clientele with disabilities that vary from Downs Syndrome to environmental disorders, and its present location right on the accessible Metro, he speaks with the conviction of someone who knows the urgent need for building communities that are free from barriers of any kind.
Jackie Okin, a student at the American University School of Law, had her first direct encounter with the ADA as a high school student. Since Okin has cerebral palsy, she needed an accommodation to take the SAT exams that are a prerequisite for entrance into college. When Okin discovered that the SAT exams were offered on several dates for students who did not require an accommodation, but only once for her, she filed a complaint with DOJ. After a federal investigation, the Educational Testing Service and the College Entrance Examination Board agreed to increase the availability of the SAT exam to students with disabilities. Okin’s words reveal how much she is the product of a world that has already been altered by the ADA:
I often take the ADA for granted and forget that my life would be completely different if the law did not exist. There is no question that, without the ADA, I would not have been able to get a college education and pursue my dream of being an attorney. Yet, the idea of not being able to accomplish these goals because of discrimination is a foreign concept to me because of the ADA. I was only thirteen when the law was passed. I have been extremely fortunate to grow up in a society where my rights have been protected. … Despite the tremendous strides that have been made in this country as a result of the ADA, there is still a great deal that needs to be done. I plan to be a disability rights attorney. Not only because I believe there is no reason for discrimination, but also because I feel a responsibility to ensure that others have the same opportunities that I had. I may never be able to personally thank all the people who are responsible for the passage of the ADA; perhaps if I am able to ensure that their legacy is maintained, then my gratitude will be sufficiently expressed.[96]
F. A Civil Rights Tool
When Jackie Okin expresses her intention of becoming a disability rights lawyer so that she can help preserve and fortify the gains that have been made against disability discrimination, she implicitly pays tribute to the role that civil rights law has played in the battle for equality in this country. The ADA was only achieved after decades of tireless advocacy, and the ADA’s enactment can clearly be traced to numerous pivotal anti-discrimination laws enacted over the last 36 years. The Civil Rights Act of 1964 did not include people with disabilities within its ambit, but it did provide a legislative and regulatory model for all subsequent federal civil rights laws, including the ADA. The Rehabilitation Act of 1973[97] was the first federal act to take the civil rights/anti-discrimination approach developed in racial and gender laws into the area of disability, and prohibited discrimination against people with disabilities in federally funded programs and activities.[98] By the mid-’70s, the civil rights emphasis on equal treatment and insistence on integration was even more firmly entrenched in disability legislation with the passage of the Education for All Handicapped Children Act in 1975,[99] now known as the Individuals with Disabilities Education Act. The late ‘80s saw a further wave of civil rights legislation relating to people with disabilities, beginning with the enactment of the 1986 Air Carriers Access Act, and the Fair Housing Amendments Act of 1988,[100] which amended the 1968 Fair Housing Act by adding people with disabilities to the classes of people protected against discrimination in the rental or purchase of private housing. The enactment of the ADA in 1990 was the federal government’s response to an increasingly vocal and empowered disability community, and “is as much a capstone to earlier disability rights policies as it is a bold venture to place the federal government at the forefront of the ‘last civil rights movement’.”[101]
The private right of action lies at the heart of civil rights enforcement, and this fact has been recognized in relation to the ADA both negatively and positively. When the ADA was first enacted, the private business community frequently warned of expensive, abundant and unnecessary lawsuits – presumably brought by over-litigious members of the disability community.[102] As of 1995, these fears proved unwarranted; “less than 1/100th of a percent of cases in federal court were ADA cases.”[103] More recently, a summary of federal ADA enforcement cites numerous examples of inaccurate print and electronic media coverage of ADA litigation: questionable actions are reported without mention of their dismissal, and controversial claims are presented without any context or comparison with the complaints and results achieved under civil rights laws for racial minorities or women.[104] On the other hand, litigation is undoubtedly critical to the effectiveness of the ADA, and some authors have acknowledged this without sensationalism. “ADA litigation shows the fundamental impact of disability law on American law and society. The litigation effectuates the two primary purposes of the act: prohibiting discrimination in civil society and dismantling barriers to full participation. It also has the potential to do much more. . .”[105] Disability advocates also recognize the need for litigation as a tool. John Gaffney, for example, singled out the creation of national standards and “the ability of individuals to sue” as the most valuable theoretical achievements of the ADA in transportation.[106]
One critical distinction between litigation under the ADA and litigation undertaken under the auspices of more traditional welfare-oriented legislation is that under the ADA, the focus should not be on who “deserves” benefits,[107] but on requiring states, institutions and businesses to face real consequences for their own discriminatory conduct. The fact is, the bringing of lawsuits is not the central point of the ADA, any more than the enactment of laws is the ultimate goal of the disability movement. For centuries people with disabilities all over the world have been left economically powerless, physically and socially isolated, and bereft of the most common opportunities of daily life because of discrimination arising from false assumptions about their needs and worth, as well as the persistent presence of structural, communication, and other barriers. The ADA was enacted to redress this situation in the U.S., and the abolishment of discrimination in all of our human interactions and personal decisions is the broader purpose for which the law remains a tool. Furthermore, since the ADA is directed specifically towards the urgent need to prohibit discriminatory effects, the attitude behind discrimination – whether one of conscious ill will, negligence, or mere benign ignorance – is not particularly relevant to the law’s operation. This does not mean, however, that the act’s supporters are unconcerned with such attitudes, or that the legislation will not ultimately have an effect upon society’s understanding of disability. Disability advocates merely reject the contention that lasting or substantial change can be initiated only through changing attitudes. Nor do they believe that attitudes will ever change if people with disabilities cannot get out of their homes, and are limited to the tools of charitable appeal or civil disobedience.
Arthur Lopez, who heads the Federal Transit Administration’s Office of Civil Rights, makes an analogy between the symbolic importance of achieving visible transportation accessibility under the ADA, and the racial desegregation of buses in the ‘60s. Lopez asserts that the “bad people” in the racial segregation cases – those who resisted serving racial minorities or fought against legal change – did not all simply “go away” when desegregation became law. He says: “First off, they weren’t ‘bad’ [in the sense of being personally evil], and second, those same people went on to make it possible for desegregation to occur.”[108] ADA compliance means that people who have not made up their minds to be either heroes or villains must at least act without discrimination; in the process, equality stops being an abstract duty with no reward, and assumes form and substance in the person with a disability who is now your passenger, classmate, or neighbor. This process doesn’t happen quickly or easily, but it can at least begin with a law.
Janel Wright makes a similar point when asked whether she sensed any lingering resentment from the business community over the ramp program lawsuits:
I think there are always going to be individuals out there who own businesses and have the attitude that I’m a “filthy, scum-sucking lawyer” because I’m trying to protect someone’s civil rights, and make businesses do something as a result. But even beyond that, I think there is a lot of resentment and misunderstanding in society. I have discussions with people all the time about why access is necessary. They’ll say “Well, they [people with disabilities] don’t need to get there, they can go somewhere else.” I’ll answer “That’s like saying you don’t need to go in there because you’re black, or you don’t need to go in there because you’re a woman.” When I make that comparison, it gets through to them quicker than trying to explain: “This person has a disability and uses a wheelchair, so steps are not acceptable. They need to get into this business. To deny them access is like putting a sign up [saying ‘disabled not allowed’].” For some reason, it doesn’t click until I make the comparison to denying access to an individual because they’re black or a woman or another minority group who has “been there” … The other minority groups have been in the public consciousness since 1964 [the enactment of the Civil Rights Act], over 30 years ago. The ADA is just 10 years old, so we have a long way to go.[109]
The fact that people can relate to the ADA better through a comparison to older civil rights movements rather than hearing a rational explanation reveals something about both how long it takes for non-discrimination to feel like the right thing to do, and how difficult it is for the benefits of integration to be understood until personally experienced.
Marilyn Golden saw this firsthand when, in the capacity of a transportation accessibility advisor, she met with two individuals in Capetown, South Africa who were among South Africa’s planning committee for the country’s bid for the Olympic Games. The two South Africans had visited the 1996 Games in Atlanta where, among other things, they had attended an event held in a remote location. A fully accessible shuttle provided transportation to the event, and when they boarded, they noticed that one of their fellow passengers was a person with a disability, who rode with them to the event, enjoyed it with everyone else, and then came back on the shuttle. They told Golden: “We have never seen this happen on public transportation in any country we have been in.” For Golden,
It was truly amazing to hear people from a country halfway around the world comment on how impressive it was to see what it means when things are accessible. They saw that a person who was not an organizer or an advocate or someone with any special status, could go to see the Olympics like everyone else – just because he wanted to. … It’s hard for people to understand what integration really means, not in a theoretical sense but in a real sense. It should be easy to conceive of it by hearing about it but the full human impact can’t be understood, sometimes, until it is actually witnessed.[110]
The vivid impact of a personal experience with integration is inestimable, but it still takes time to change attitudes, and the slow process is only exacerbated by the fact that full compliance also takes time. As advocates, people with disabilities, and professionals who work with the act every day, every one of the individuals interviewed for this paper could tell of places and occasions where compliance has fallen short: segments of the transportation system that are not yet accessible, telephones without TTY capability, property owners looking for a “more standard lessee,” or a blind person rejected for jury duty. At the same time, no one interviewed had any difficulty with discussing or remembering particular instances where the ADA had a beneficial effect. Change has not occurred uniformly across the country, but it has undoubtedly occurred and continues to do so. One of the most encouraging observations was made by Jim Beck, who said of accessibility in Alaska: “I’ve seen more change in the last 3 years than in the previous 7.”[111]
As people with disabilities gain increased visibility, interaction and integration in all aspects of American society, the very face and nature of that society is changing. This, in turn, can lead to better laws and further opportunities to achieve equality for all. Michael Cooper mentions Section 508 of the Rehabilitation Act of 1973, a new provision according to which the federal government will not acquire telecommunications equipment unless it is accessible. In Cooper’s opinion, it would never have been added without the ADA’s strong mandate against disability discrimination.[112] Russell Thatcher believes that as America’s “baby boomer” population ages, demographics are eventually going to force the transportation industry to provide transportation for seniors that goes well beyond the service limits currently established by public transportation. He states:
It’s fortunate that the ADA was passed and put into place, because it has placed transit authorities into the position that they need to be in. … Without the ADA, they would have been taken totally by surprise. They would still have poor paratransit and inaccessible services, and a huge population, many of whom will be frail and have mobility problems, would not have been served.[113]
Perhaps the most lasting achievement of the ADA is the very fact of its dual identity: it speaks directly to the particulars of barrier removal, accessibility and lawsuits, while simultaneously fostering hope for a much deeper awareness of all the diverse and constituent parts of American society. This is something that it brings to the general public, as well as people with disabilities themselves. Or as Mark Obatake, Executive Director of Hawaii Centers for Independent Living, says:
This is not a law about disabilities. … This is a law – like every other piece of civil rights legislation – about how, as a nation, a state, a community, we can embrace our differences.[114]
[1]Silvia Yee received her LL.B., B.Mus. and M.A. at the University of Alberta in Canada, and moved to the U.S. to pursue further graduate studies in Musicology at the University of California, Berkeley. She has previously worked in the area of health law, and is currently involved with researching international disability law issues at the Disability Rights Education Defense Fund, Inc.
[2]Marilyn Golden is Policy Analyst for the Disability Rights Education and Defense Fund (DREDF), the foremost national law and policy center on disability civil rights in the United States. She has been closely involved with the Americans with Disabilities Act throughout all the stages of its proposal and passage and now during its implementation. Golden has led innumerable ADA training workshops. Before coming to DREDF, she served as Director of Access California, a resource center on architectural accessibility for people with disabilities, and as Co-Coordinator of the Disabled International Support Effort, an organization that provided material aid and technical assistance to disability groups in developing countries. Today she continues work in ADA policy and also consults internationally on the development of disability equal rights law.
[3]42 U.S.C. §12101(a)(9).
[4]Marilyn Golden, Linda Kilb & Arlene Mayerson, Americans with Disabilities Act: An Implementation Guide (Berkeley: Disability Rights Education and Defense Fund, Inc., 1993), 1.
[5]DOJ presentation sponsored by the Pacific Disability and Business Technical Assistance Center in San Francisco, CA, Sept. 22, 2000.
[6]Jane West, “Introduction” in Implementing the Americans with Disabilities Act, ed. Jane West (Cambridge, Mass. & Oxford, U.K.: Blackwell Publishers and Millbank Memorial Fund, 1996), xiv at xv.
[7]Stephen E. Condrey & Jeffrey L. Brudney, “The Americans with Disabilities Act of 1990: Assessing Its Implementation in America’s Largest Cities,” 28 American Review of Public Administration (1998), 26. The article primarily concerns implementation of the ADA’s Title I provisions, which are not a focus of this paper, but also makes some reference to the act’s public access provisions.
[8]West, “Introduction,” supra note 6 at xiv.
[9]Rosalyn M. Simon, “Status of Transportation Accessibility in the United States: Impact of the Americans with Disabilities Act.” Proceedings of Seminar L Held at the Planning and Transportation Research and Computation European Transport Forum, Brunel University, England (2-6 September 1996), §1.2.
[10]Most modes of transportation are covered under the ADA, but transportation that is specifically covered through other laws are excluded (e.g. discrimination in air travel is prohibited by the Air Carrier Access Act of 1986). A small percentage of school transportation is also excluded because of the ADA’s exemptions for religious organizations and some private schools (in certain narrow circumstances – see 42 U.S.C. §§12182(b)(2)(B),(C),(D)).
[11]“Paratransit” refers generally to transit services that are intended specifically for use by people with disabilities, are available on demand (either through prior reservation, or possibly through real-time scheduling), and provide origin-to-destination service (whether door-to-door or curb-to-curb). There are variations that involve providing an individual with transportation to accessible fixed-route transportation, or scheduling an accessible bus upon request when a fixed route’s vehicles are not yet all accessible. Paratransit is often discussed in contrast to “fixed route transit,” in which vehicles travel pre-arranged routes and pick up/drop off members of the general public at marked stops, according to a set schedule. The relationship between these two types of transit under the ADA will be discussed later in Part B.
[12]DREDF is the foremost national law and policy center on disability civil rights in the United States. Founded in 1979, DREDF is directed, by people with disabilities and parents of people with disabilities. It is dedicated to furthering the rights of people with disabilities, and was closely involved with the proposal, passage and implementation of the ADA. For Golden biography, see supra n. 2.
[13]Personal interview (20 September 2000).
[14]Ibid.
[15]Gaffney, now retired, worked in civil rights law enforcement in the ‘70s and ‘80s before serving in the Governor’s Office of Handicapped Affairs in Boston, and as assistant to the manager of the Massachusetts Bay Transit Authority. He spent the last decade as a consultant on ADA transit issues. Gaffney has a disability himself, and uses a wheelchair.
[16]Personal telephone interview (6 October, 2000).
[17]49 CFR, parts 27, 38 & 38; first issued 6 September 1991.
[18]Golden et al., Implementation Guide, supra note 4 at 150.
[19]Rosalyn M. Simon, “Toward Accessible Transportation” in Implementing the ADA, ed. West, supra note 6, 299 at 304.
[20]Interview, supra note 16.
[21]Simon, “Status of Transportation Accessibility,” supra note 9 at §2.
[22]49 C.F.R. §§37.7, 37.9, 37.71.
[23]49 C.F.R. §§37.135-37.147.
[24]Over-the-road buses are high-floor buses with baggage compartments underneath, and are used mainly for intercity and tour purposes. Initially, compliance for over-the-road buses (OTRB’s) was scheduled for 1997. However, privately operated OTRB companies – which are the vast majority – have been notorious for resisting implementation of ADA requirements. In 1998, DOT updated its ADA requirements by issuing a regulation that comprehensively details the accessibility rules and non-discrimination policies required of all private companies providing public transportation using OTRB’s (49 C.F.R. §§37.181-37.215). The U.S. Department of Justice (DOJ) has taken further action against individual companies against whom complaints have been lodged. For example, in 1999 DOJ finally signed an out-of-court agreement with Greyhound Lines, Inc., the country’s largest OTRB bus firm, in which the company “agreed to improve services for passengers with disabilities, resolving 14 complaints filed by riders who claim that the company’s drivers and other employees violated ADA. The action brings to closure nearly eight years of negotiation related to over the road bus (OTRB) accessibility”: “Greyhound Settles 14 Complaints; Vows OTRB Improvements,” 7:18 TD Access and Safety Report (6 October 1999).
[25]49 C.F.R. §§37.47, 37.53. 37.59.
[26]Golden et al., supra note 4 at 150; note that the equivalent facilitation provision requires formal approval by DOT in every specific case, and does not refer to service requirements.
[27]Trends in mobility aid lift and securement technology are covered in Rodger Koppa, Becky Davies, & Katherine Rodriguez, “Barriers to Use of Transportation Alternatives by People with Disabilities,” (College Station, TX: Texas Transportation Institute, 1998). An entire 1999 issue of the Journal of the Transportation Research Board (Transportation Research Record 1671) is devoted to some of the very latest developments in bus accessibility for people with cognitive, sensory and mobility disabilities.
[28]Simon, “Status of Transportation Accessibility,” supra note 9 at §3.1. It should be noted that there is still considerable variation in quality of transportation service for people with disabilities under the ADA. While the ADA has unquestionably caused a huge gain in quality overall, that gain has not been realized evenly in every city, and some, perhaps many, systems, are not in compliance with the ADA’s requirements.
[29]Delores Gonzales, “Urban Transportation Symposium Presentation” (1999), Texas.
[30]Ibid.
[31]Personal telephone interview (5 October 2000).
[32]28 C.F.R. §35.150(d)(2).
[33]If structural changes are needed for program accessibility, and a state or local government has 50 or more employees, then the government entity must identify physical obstacles that limit accessibility and provide a detailed plan for their removal, as well as an implementation schedule (the deadline for structural changes was January 26, 1995, three years after the effective date of Title II): 28 C.F.R. §§35.150(d)(1), 35.150(d)(3).
[34]Supra note 31.
[35]Personal telephone interview (13 October 2000).
[36]Ibid.
[37]42 U.S.C.A. §12143. For a summary of paratransit eligibility requirements, see Golden, et al., supra note 4 at 157-59.
[38]For a more detailed look at the service criteria, see Golden, et al., supra note 4 at 160-62.
[39]Nonetheless, considerable variation in quality of paratransit service for people with disabilities remains an issue under the ADA. While the ADA has prompted a tremendous improvement in overall quality, that improvement has not occurred consistently in every city, and some paratransit systems are still far from full compliance with the ADA’s requirements.
[40]Personal telephone interview (13 October 2000).
[41]Ibid.
[42]Golden interview, supra note 13.
[43]Thatcher interview, supra note 40.
[44]Related in Golden interview, supra note 13.
[45]Ibid.
[46]DREDF, Inc. and Crain & Associates, Inc., ADA Paratransit Compliance Study Final Report (prepared for Project ACTION, October 1996), 2-14.
[47]Title II of the ADA extended the protection previously afforded under Section 504 of the Rehabilitation Act of 1973, which barred discrimination on the basis of handicap in all state and local government programs and activities that receive federal funds. The receipt of federal financial assistance is irrelevant to the applicability of the ADA’s Title II.
[48]A place of public accommodation is any facility that is owned, leased or operated by a private entity, and whose operations fall within one of a number of twelve specified categories (examples of the kinds of establishments included would be restaurants, shopping malls, dry cleaners, museums, day care facilities, health clubs, etc.). In general, all such facilities are covered by Title III, regardless of their size, though there are particular exceptions, such as an owner-occupied place of lodging renting fewer than six rooms. An exemption is also given to certain private clubs and religious organizations. For a more detailed examination of the provisions of both Title II and Title III, see Golden et al., supra note 4 at 77-117 (Title III) and 119-48 (Title II).
[49]The one major difference is that the two titles take different approaches to the removal of architectural barriers in existing facilities. Those titles’ approaches are discussed further infra, note 55 and accompanying text.
[50]42 U.S.C.A. §12182 (Title III) and §12132 (Title II).
[51]42 U.S.C.A. §§12182(b)(1), 12201(d) & 28 C.F.R. §36.203 (Title III), and 28 C.F.R. §§35.130(b)(1)(iv), 35.130(c), 35.130(d) (Title II)
[52]42 U.S.C.A §12182(b)(2)(A)(ii) (Title III) and 28 C.F.R. §35.130(b)(7) (Title II).
[53]An example of a communication barrier would be a lack of accessible signage. A transportation barrier could be the unavailability of a car with hand- or foot-only controls for a test drive, even when a potential buyer has given the car dealership advance notice: see Golden et al., supra note 4 at 97-98.
[54]42 U.S.C.A. §12182(b)(2)(A)(iv), (v).
[55]28 C.F.R. §§35.149, 35.150.
[56]Personal telephone interview (17 October 2000).
[57]This is evident in the fact that so many of the compliance agreements won under the ADA against public accommodations continue to include new construction. For example, DREDF’s successful lawsuits against Shell and Chevron over the inaccessibility of gas stations resulted in comprehensive consent decrees in which both corporations are required not only to bring older, existing facilities into compliance, but also to modify newly constructed facilities which continued to fall short of the ADA requirements, even though the new facilities had been designed and built in a post-ADA environment. These cases involve the removal of architectural barriers at thousands of gas stations nationwide. Greener v. Shell, Civ. No. C-98-2425-CAL (N.D. Cal.), (Consent Decree Entered 9/11/98), Lawson v. Chevron, Civ. No. C99-0529CAL (N.D. Cal.) (Consent Decree Entered 4/23/99).
[58]NCD, Voices of Freedom: America Speaks Out on the ADA (26 July 1995), located at http://www.ncd.gov/newsroom/publications/voices.html (16 October 2000).
[59]Following three quotations: ibid.
[60]Commercial facilities which may be potential places of employment must comply with ADA regulations in both new construction and alterations to existing facilities: 42 U.S.C.A. §12183.
[61]Personal telephone interview (5 October 2000).
[62]42 U.S.C.A. §12188(b)(1)(A)(i).
[63]Ibid. DOJ may also choose to intervene as a plaintiff in a civil action that has been initiated by a private litigant alleging a violation of Title III, not because of any explicit ADA provision, but because of the normal application of the Federal Rules of Civil Procedure, Rule 24(b)(2): see Richard Landfield, “Enforcement of Rights Under the ADA”, in Accessibility Under the Americans with Disabilities Act and Other Laws, ed. Earl B. Slavitt & Donna J. Pugh (Chicago: American Bar Association, 2000), 118 at 129.
[64]DOJ, Enforcing the ADA: Looking Back on a Decade of Progress (July 2000).
[65]A place of public accommodation is guilty of discrimination if it fails to provide auxiliary aids and services (measures to ensure communication accessibility) to persons with impaired vision, speech or hearing, and as a result, such persons are excluded, segregated, or denied goods or services; the auxiliary aid or service need not be provided if doing so would fundamentally alter the nature of the service being provided or be an undue burden: 42 U.S.C.A. §12182(B)(2)(A)(III)
[66]Ibid. note 56 at 16-17.
[67]DOJ presentation, supra note 5.
[68]DOJ, “Faces of the ADA” at http://www.usdoj.gov/crt/ada/fhawaii2.htm (19 September 2000).
[69]Ibid.
[70]Andrew Gomes, “Hawai’i Makes Headway in Conforming to Disability Act,” Honolulu Advertiser (17 September 2000), wysiwyg://17/http://the.honoluluad…com/2000/Sep/17/917business1.html (21 September 2000).
[71]Ibid.
[72]Personal telephone interview (17 October 2000).
[73]Ibid.
[74]Personal telephone interview (13 October 2000).
[75]Ibid.
[76]Personal telephone interview (6 October 2000).
[77]Ibid.
[78]DOJ, “Faces of the ADA” at http://www.usdoj.gov/crt/ada/fpage.htm (19 September 2000).
[79]Ibid.
[80]DOJ, Enforcing the ADA, supra note 62 at 19-20.
[81]47 U.S.C.A. §225; also see Golden et al., supra note 1 at 189-193.
[82]Bell’s first work in the USA consisted of lecturing and demonstrating in Boston a method for teaching speech to the deaf that was first developed by his father. Apart from Bell’s lifelong association with the hearing impaired, he never remained with any single project for long, so it is singularly ironic that the invention with which he is most associated has functioned to the exclusion of the deaf for over a century: 1999-2000 Britannica.comInc (28 November 2000).
[83]Personal interview (22 October 2000).
[84]E-mail communication sent in response to author’s questions (19 October 2000).
[85]Ibid.
[86]Voices of Freedom, supra note 58.
[87]DOJ, Enforcing the ADA, supra note 56 at 16.
[88]DOJ, Enforcing the ADA, ibid. at 13.
[89]DOJ, “Faces of the ADA” at http://www.usdoj.gov/crt/ada/fjerorr.htm (19 September 2000).
[90]A daycare’s refusal to allow its staff to perform even the simplest of medical therapeutic procedures required by children with disabilities (such as the finger-prick test for diabetes) is a closely related example of the kind of discriminatory acts which prevent children with disabilities from entrance into daycare programs. One example is DREDF’s settlement agreement with KinderCare Learning Centers, Inc., in which Kindercare agreed to admit children with diabetes and monitor their blood glucose levels when asked to do so. Stuthard v. Kindercare, Civ. No. xxxxx (N.D. Ohio) (Dismissal Based on Settlement Agreement 8/22/96)
[91]DOJ, “Faces of the ADA” supra note 89.
[92]527 U.S. 581, 119 S.Ct. 2176.
[93]NCD, National Disability Policy: A Progress Report (November 1, 1998 – November 19, 1999) at http://www.NCDprogrep_11-19-00.html (16 October 2000), quoting from 527 U.S. 581, 600. In finding discrimination, a majority of the Supreme Court specified that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600.
[94]DOJ Press Release, “Corporate Leasing Agency to No Longer Discriminate Against People with Disabilities, under Justice Department Agreement” (7 April 1999) at 1-2.
[95]Personal interview (26 October 2000).
[96]DOJ, “Faces of the ADA” at http://www.usdoj.gov/crt/ada/fokin.htm (19 September 2000).
[97]Title V of the Rehabilitation Act of 1973, 29 U.S.C.A. §§701-97.
[98]Part of the ADA can be considered a direct extension of Section 504 of the Rehabilitation Act of 1973, since the later statute’s Title II extends the ban on discrimination “to all programs, activities, and services provided or made available by state or local governments or instrumentalities or agencies thereof, regardless of whether or not such entities receive federal financial assistance”: Richard Landfield, “Enforcement of Rights Under the ADA” in Accessibility Under the Americans with Disabilities Act and Other Laws, supra note 64, 118 at 137. See also Chris Palames, “Accessibility Codes and Statutes in the United States from WW II to the ADA,” in Slavitt & Pugh, ibid. 5-18.
[99]20 U.S.C. 1232, 1401, 1405-1420, 1453.
[100]42 U.S.C. 3601-3619.
[101]S. Percy, “ADA, Disability Rights, and Evolving Regulatory Federalism,” 23 Publius: The Journal of Federalism (1993), 87.
[102]Under Titles II and III of the ADA, people with disabilities have a private right of action if they experience (or believe they will or could experience) discrimination prohibited by the ADA. For Title III, see 42 U.S.C.A. §12188(a), see also 28 C.F.R. §36.501(a) and §36.201(a). For Title II, a private right of action is inferred from the ADA’s incorporation by reference (in 42 U.S.C.A. §12133) of the procedures and remedies available under Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a). Section 504, in its turn, refers to the remedies and procedures originally set forth in Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000 et seq., the first federal statute to prohibit discrimination on the basis of race, color or national origin in federally funded programs. Note: some aspects of a private right of action under Title II is under challenge before the U.S. Supreme Court in a decision heard in the fall of 2000 – see Garret v. Board of Trustees of the University of Alabama (decision pending).
[103]West, “Editor’s Note” in Implementing the ADA, supra note 6, at 30.
[104]National Council on Disability, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act (Washington: National Council on Disability, 27 June 2000), 379-83.
[105]Gostin, Lawrence O., “Litigation Review” in Implementing the ADA, supra note 6, 29 at 63.
[106]Gaffney interview, supra note 16.
[107]Unfortunately, the role that courts have traditionally played as “gatekeepers” to welfare benefits for people with disabilities has seeped into judicial interpretation of the ADA. The Supreme Court has insisted that anyone claiming rights under the ADA must first establish that he or she is a “person with a disability”, but has simultaneously narrowed and strictly interpreted what constitutes a disability under the ADA, see Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999); Toyota Motor Mfg., Inc., v. Williams, 122 S.Ct. 681 (2002).
[108]Personal telephone interview (6 October 2000).
[109]Wright interview, supra note 72.
[110]Golden interview, supra note 13.
[111]Beck interview, supra note 74.
[112]Cooper interview, supra note 95.
[113]Thatcher interview, supra note 40.
[114]Gomes, supra note 70.