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25 years later ADA opposition remains

BY BRENT GRIFFITHS | JULY 22, 2015 5:00 AM

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Marca Bristo does not think the Americans with Disability Act could pass today.

Bristo is a key disability-rights advocate. She was the first person with a disability to chair the National Council on Disability — a presidential appointment. As a member of the congressional-appointed task force, she worked with then-Sen. Tom Harkin, D-Iowa, and others to pass the ADA.

“Disability has always been a bipartisan issue, but as we are seeing more and more retrenchment,” Bristo said. “It gives me pause that the rights we fought so hard for will be lost.”

For all its acceptance and changes, the law has sparked opposition in the political realm.

These pockets of opposition are based on similar reasons for which many opposed the law in the first place, said Bob Kafka, an organizer with  an Austin, Texas, disability-rights group. They include the cost of complying with the law, fears about litigation, and a belief that changes would be better accomplished through voluntary measures than federal mandates. 

“The battle that is going on in many, many areas is to limit central-government control and push it back down to the states,” Kafka said. “There are a lot of folks who are in the conservative movement who would like to dismantle the ADA.”

Advocates point to Congress’ consideration of a bill that would give business owners 90 days to fix any alleged violations before legal action could be taken.

Rep. Duncan Hunter, R-Calif., most recently pushed the legislation. Far from the first to propose what activists say is a business-friendly bill, the four-term Republican proposed the ADA Notification Act for three-straight sessions starting in 2009.

While small fights in Congress continue to crop up, a change is underway for another longtime source of opposition: the business community.

“I think leaders in the business community are starting to see what we said all along, that people with disabilities are market and that they add value to your company by diversifying the way you think,” Bristo said.

Most of the continuing efforts against the ADA have occurred in such places as the Justice Department’s open-comment periods for regulations.

A federal-government study conducted in part with the University of Iowa largely dismissed those arguments. The Jobs Accommodation Network, an offshoot of the Labor Department, worked with the UI’s Law, Health Policy, and Disability Center from 2004 to 2006 and did subsequent work with the West Virginia School of Social Work between 2008 and 2014. Interviewers asked employers who reached out to the network about the ADA and/or how they would accommodate employees — the same respondents were called back about eight weeks later.

The three studies found that among those who provided cost information, accommodations required relatively little investment — approximately $500. A majority of business owners reported that accommodations cost nothing at all.

The findings, said Peter Blanck, who worked on the study, illustrate that opponents have nothing to stand on.

“Virtually all of these presumptions have not been borne out empirically,” said Blanck, a former UI professor of law and psychology and now chairman of the Burton Blatt Institute at Syracuse University, which focuses on civic, economic, and social participation of people with disabilities.

Even in a gridlocked Washington, D.C., skirmishes over the ADA continue.

Opposition to the law — especially from members of the business community — push back at the ADA when bureaucratic measures such as making rules are under consideration.

While clearly a law, the act still undergoes periodic review through the Justice Department. The department has the ultimate authority to enforce the act and at times has clarified some of its provisions. 

Take, for example, two of the most high-profile regulations, which were considered and put into place.

One such action regarded the private and public pools and spas and how they can do more to make their facilities accessible. The other rule applied to movie theaters and the steps owners must take to include closed captioning in their offerings.

In both cases, business interests, including the National Association of Theater Owners and the American Hotel and Lodging Association, pushed back against any changes.

Skirmishes over these rules and others similar to it continue to crop up, but other business interests have changed their level of opposition recently.

To the surprise of Bristo, the U.S. Chamber of Commerce went from opposing a number of ADA goals in the 1990s to helping restructure it in 2008 after U.S. Supreme Court curtailed the law — including the definition of a disability. 

“I think the Chamber [members have] come to understand that a lot of the things they were afraid of have not come true,” Bristo said.

To best understand the changes, one needs to look no further than the Chamber of Commerce. As Ronald Reagan’s presidency was drawing to a close in the late-1980s, the Chamber staked out clear positions against early drafts of the ADA. Businesses, its representatives said, could not stomach the possibility of losing significant sums in court not to mention face the requirement to retrofit and reconfigure their spaces to accommodate people with disabilities.

Then-Chamber attorney Nancy Fulco said that at the time, she opposed the underlying principles behind the push for disability rights. She believed the strong arm of the federal government, working in tune with the court system, was not the best vehicle for such equality.

“We’re talking here about a whole universe of folks who’ve never had to deal with a law like this and have no idea what is involved,” Fulco told the New York Times during the debate. “Leaving reasonableness to the discretion of the courts is scary, and it’s a mistake to think it’s not going to cause litigation. We’re going to see litigation all over the place.”

Opposition from business interests still sticks out in the minds of disability-rights advocates, but perhaps their biggest fear for the ADA is if the law were to get swept up in a renewed push for deregulation. The Reagan administration included a precursor to the ADA in an early cap on regulation — advocates lobbied and ultimately succeeded in extracting disability-rights provisions from the larger deregulation push. Their success combined with later efforts that built up momentum to the ADA.

With a Republican-controlled Congress and the prospects of the party taking back the White House, activists say this is among their top concerns.

This progress is something Tom Gilsenan of Uptown Bill’s said has led to a greater acceptance of people with disabilities in society: the type of progress Harkin and others fighting for the ADA’s passage wanted all along.

“It’s a continuing journey of inclusion, and we are building awareness in the whole population,” Gilsenan said.


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