This Week:

The Backlash against the ADA

"Accomodating Absurdity"

"Disabling America"
"ADA's Unintentional Results"

Greetings,

This week I send you an article that will appear in the October issue of Access Press, having to do with the right-wing backlash against the Americans with Disabilities Act. For some information about what the ADA actually is, you could look at Nygaard Notes #2, or you could look at the National Organization on Disability website, where there is a good summary and fact sheet on this very important civil rights legislation (www.nod.org, click on "Information and Resources"). If you want to know more, contact me and I'll give you some other places to look.

For those of you who don't know much about what's going on in the disability rights movement, get with it! There's some important and interesting stuff going on there, and we all can learn from those activists. I know I have.

By the way, a good place to start is by subscribing to ACCESS PRESS (OK, it's a shameless plug, and I hereby declare my conflict of interest since I work and write there). I do think ACCESS PRESS is a good newspaper, and add to that the fact that it's about the only place to find out what's going on in the disability community around here. There you go; time to subscribe. Or, you can pick it up for free at one of dozens of drop spots around the Twin Cities and elsewhere in the state. It hits the streets on the 10th of each month. For subscription info, or to find out the location of the dropsite nearest to you, call 644-2133. Talk to Charlie or Donna.

‘Til next week,

Nygaard

The Backlash against the ADA

It's been over eight years since President George Bush signed into law the Americans with Disabilities Act (ADA). This landmark civil-rights legislation, modeled after the Civil Rights Act of 1964, is aimed at removing the barriers that make it difficult or impossible for people with disabilities to participate in American life. Who could argue with that noble goal? It seems that many people could, and their attacks on the ADA can be heard and seen wherever you look. What is the nature of these attacks on the ADA, and where do they come from?

"Accommodating Absurdity"

This was the headline of an article in Forbes magazine recently, and is an example of the "Isn't this crazy?" attack form. Here's the basic approach: dig up some examples of crazy lawsuits or regulatory efforts which may or may not be true and which purport to show how the ADA is allowing absolute lunatics to tie up the courts with frivolous lawsuits. For example, "Man with two heads sues hat store for charging him double; court awards him $2 million." Hint: One can often spot this attack by frequent use of the words "might," "may," and "could." As in, "The ADA might force your company to hire people who may be unable to do the work, which could put you and your company out of business. After all, look what they did in Toledo."

In reality, there have been approximately 650 lawsuits filed under the ADA, which amounts to fewer than 2 per state per year over 8 years. Undoubtedly a few of them were frivolous, but that's hardly the fault of the ADA. Frivolous suits are sometimes filed under the First Amendment to the constitution as well, but calls for abolishing it are rarely heard.

"Disabling America"

This headline is from the National Review magazine. I call this category of attack "They're ruining it for everyone." Also known as "What do they want from us?" It's a broad category, but the argument is summed up well by Walter Olson, the author of a book called "The Excuse Factory," who says that "ADA has the potential to force the rethinking - and watering down - of every imaginable standard of competence, whether of mind, body, or character" in the U.S.A. Hopefully Mr. Olson is more extreme than most, but variations on this theme do seem to appear fairly regularly in the mainstream media.

For example, last spring this writer saw a popular TV sitcom in which the benevolent boss hired a major drug user. Despite the fact that this employee was completely stoned every time he came to work, and appeared to be incompetent to boot, the beleaguered boss couldn't fire him because "the government" (read: the ADA) wouldn't let him. Do the writers think that supporters of the ADA intend for a bunch of active drug addicts and incompetents to be protected by federal law? Not only is that idea outrageous in itself, but it's also based on incorrect information. The actual text of the ADA includes the following: "...the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs..."

The "disabling America" genre includes claims that the ADA is threatening safety in the workplace. In this vein, we hear that employers are being forced by the ADA to retain workers who are somehow endangering their coworkers or society at large. We hear about the ADA protecting drunken airline pilots, doctors who fall asleep during surgery, professors who rape their students, and so on and so forth. At least one commentator even implied that the ADA was responsible for the Exxon Valdez disaster, since Exxon could not fire the alcoholic captain for fear of ADA-inspired litigation. After all, to quote Walter Olson again, "no well-advised employer or business should behave as if its exposure under this law [the ADA] is anything other than open-ended, unpredictable, and highly dangerous."

"ADA's Unintentional Results"

This headline from a right-wing website is only one of many in this category, which I call the "Good Law Gone Bad" approach. (That's actually also a headline, from a Reader's Digest article about the ADA.) This style of attack is a bit more sophisticated, with a tone of condescending sympathy for the "cause" of "the disabled." Here we have the articles that lament how such good-hearted people as those who drafted the ADA could be so naive or thick-headed as to think that a federal statute could cause anything but problems.

This is a more sophisticated attack, for a couple of reasons. One is that there is some truth to the charge that a federal law by itself is not worth the paper its printed on. No matter what the law says, if the society in which the law exists is largely ignorant of or prejudiced against the legitimate needs and desires of people with disabilities, or any other group, that law won't be enforced. (Many disability-rights activists say that this is what we are seeing right now with the ADA.) So an attack using the theme of "this is a law that is trying to do something that it cannot do" has some resonance with people who should, or could, be allies.

There is a second aspect to the "Good Law Gone Bad" attack that is particularly dangerous. If the public fails to see the ADA as an expression of the legitimate civil rights of an important segment of the society, and instead sees it as yet another example of Big Government run amok, then the stage is set for a public backlash against the law. Since the ADA is so closely associated with the struggle for disability rights, such a backlash could evolve into a generalized backlash against all aspects of that struggle. The parallels with the battle over "welfare as we know it" are clear.

Writer Fred Pelka pointed out in The Humanist magazine in 1996 that, although other major civil-rights legislation is currently seen as politically strong (affirmative action notwithstanding), "The ADA is seen as vulnerable, and its repeal or weakening would set a disturbing precedent. For the first time this century, Congress would be revoking civil-rights protection it had previously extended through law to an oppressed minority." This is no idle speculation. Senator Strom Thurmond has already introduced legislation that would begin the process of chipping away at the provisions of the ADA.

The best defense against the drumbeat of anti-ADA propaganda is to respond as soon as you see it. Letters to the editor, phone calls to the television station, speaking up at the meeting, or wherever you are. Three major types of attack have been identified here. Perhaps you will see others. The important thing is that we all educate ourselves about what we have and the threats to it, make up our minds to do something, and join with others to make a difference. Educate, organize, agitate.

Future generations may look back on the passage of the Americans with Disabilities Act as a small step in a process of fundamental change in the lives and culture of people with disabilities in the United States. Or perhaps it will be remembered as the high point of a noble but losing fight. If Mr. Pelka is right, and the rights of people with disabilities are the most politically vulnerable of anyone's right now, then disability rights activists truly have their work cut out for them.