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July 02, 2020

Robert Dinerstein: The ADA at 30

The 30th anniversary of the Americans with Disabilities Act (ADA) is an important milestone that provides us with an opportunity to assess the relationship between this landmark law and the rights of people with disabilities. The ADA has generated extraordinary gains for the rights of people with disabilities while at the same time proving to be a disappointment in some respects. Our challenge going forward is to build on the successes of the ADA while continuing to explore ways in which it can be improved, and its promise realized.

Five years ago, on the occasion of the ADA’s 25th anniversary, I wrote an article for the publication IMPACT, Promises Kept, Promises Broken, Promises Deferred: The Americans with Disabilities Act.” The article focused specifically on the statute’s effect on the rights of people with intellectual and developmental disabilities. In it, after noting the lofty language in Congress’s statement of the law’s broad legislative purpose, I observed, as the title suggests, that the ADA had been a mixed bag for people with disabilities. My views have not changed significantly in the ensuing five years.

For promises kept, I wrote that the ADA “has served an important symbolic function in raising the consciousness of the broader society regarding the rights of people with disabilities.” Substantively, Supreme Court cases such as Olmstead v. L.C., Bragdon v. Abbott, PGA v. Martin, and Tennessee v. Lane, among others, interpreted the statute in ways that served to expand the rights of people with disabilities.

For promises broken, I wrote that, especially in the areas of business and employment, Supreme Court cases such as the Sutton trilogy and Toyota v. Williams (and subsequent lower-court cases) had badly misinterpreted Congress’s intent in enacting the ADA, leading to the important mid-course correction of the ADA Amendments Act of 2008 (“ADAAA”). Notwithstanding the anti-paternalist thrust of the ADA, the Court upheld an employer’s refusal to hire an individual who supposedly posed a direct threat to himself in Chevron v. Echazabal. The ADA also fell prey to the Rehnquist Court’s federalism revolution, with the problematic decision of Board of Trustees v. Garrett, which held Congress did not have authority under Section 5 of the Fourteenth Amendment to authorize damage actions against states under Title I of the ADA, the employment title.

For promises deferred, I observed that, reflecting legislative intent, early cases under the ADAAA seemed more oriented toward addressing substantive discrimination against people with disabilities and less focused on the threshold issue of “who is a person with a disability?” Creative lawyers had succeeded in using the Olmstead imperative to challenge the use of sheltered workshops for people with intellectual disabilities, and to argue in the academic literature that guardianship might present a violation of Title II of the ADA. Still other lawyers, both in private practice and in government, worked tirelessly and for the most part successfully to argue that Title III of the ADA applied to the internet (which was not explicitly listed as one of the places of public accommodation in the 1990 statute), although regulatory support for this argument was marked by lengthy delay and ultimately, in the current administration, suspension of the effort.

I also noted that, for some of us, the disappointments of the ADA had less to do with the limitations of the statute and its interpretations than with our hopes and expectations of the changes the law would galvanize. Employment levels for people with disabilities have not improved significantly since the passage of the ADA and remain highly disappointing when compared to the rates of similarly situated people without disabilities. This discrepancy existed long before the Covid-19 pandemic, but certainly that once-in-a-lifetime event has only exacerbated the problem. As is true in other civil rights areas, proving that someone has not been hired because of his or her membership in a protected class is quite difficult to prove. Structural barriers to employment of people with disabilities—lack of accessible transportation, personal assistance, and availability of reasonable accommodations, among other things—reflect the limitations of the ADA’s reach. Aggressive advocacy of Olmstead cases by the Department of Justice in the Obama years has been followed by lackluster enforcement in the current administration. The Covid-19 pandemic has laid bare the serious problems—including the disproportionate numbers of death--that nursing homes and other congregate settings pose for their residents, including those with disabilities. And as the country struggles with persistent issues of systemic, structural racism, we are reminded once again that many of the people of color who have been the victims of police brutality also are people with disabilities.

It is unfair to lay these and other societal problems at the feet of the ADA. The ADA has not only served as a beacon for citizens of the United States, it has been an important influence on the development of disability anti-discrimination laws around the world, including, most prominently, the UN Convention on the Rights of Persons with Disabilities (which, sadly, the United States, unlike 181 other countries, has not yet ratified). It has spawned an entire cadre of lawyers—including those with disabilities themselves--who have become fierce advocates for people with disabilities.

Robert Dinerstein

Acting Dean and Professor of Law, American University, Washington College of Law