Americans with Disabilities Act

  • September 18, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

    I believe the disability rights movement has more to offer constitutional law, and constitutional law has more to offer the disability rights movement. This is the case for at least several reasons.

    First, even assuming that the ADA is a more effective tool to combat the discrimination most people with disabilities face in their daily lives, its vitality is under constitutional attack. Cases like Garrett and Lane challenge Congress’s ability to legislate on behalf of people with disabilities under its Section 5 of the Fourteenth Amendment powers, and these attacks will continue. With equal protection law, if you are not playing offense, you are not playing adequate defense either.

  • July 29, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    This week is the 25th anniversary of the Americans with Disabilities Act (ADA).  The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation.  It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities.  And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

    Both the ADA and the Americans with Disabilities Amendments Act (passed in 2008) passed with remarkable bipartisan support.  Disability has never entered the culture wars, and in many ways disability rights have transcended traditional political commitments.  But while legislative political elites in both parties have been very comfortable taking pro-disability rights positions, the public at large is less aware of and sometimes hostile to the ideals and goals of the disability rights movements.  Everyone likes and identifies with a feel good story about athletes who “overcome” disability.  But how many business owners have welcomed the idea of making physical or programmatic changes to accommodate difference?

    Although the ADA has a constitutional basis, it is primarily celebrated as a legislative success.  Lawyers and advocates who bring disability law cases are reluctant to engage constitutional law as a source of relief for people with disabilities.  And they have good reasons to be wary.  The ADA offers ample protections, moving deep into the private sphere in a way constitutional law could not.  And the doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Lawyers in the disability rights movement know how to count to five and have reasoned that the Supreme Court is an inhospitable place for equality claims generally.

    At this important milestone in the disability rights movement, I want to suggest that the next 25 years should include more of an engagement with disability constitutional law.  I take this position for several reasons.  First, there is a lot that is unclear, and potentially up for grabs, about equality law.  Cases like Windsor and Obergefell do not fit neatly into conventional tiered Equal Protection Clause analysis, instead looking at some mix of the nature of the interest protected and the legislative classification.  Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.

  • March 23, 2015

    by Caroline Cox

    Nina Totenberg of NPR previews today’s oral arguments for a Supreme Court case that considers whether a Confederate flag on a license plate is an exercise of free speech.

    At Hamilton and Griffin on Rights, Leslie Shoebotham considers City and County of San Francisco v. Sheehan, in which the Supreme Court will examine what duties the Americans with Disabilities Act places on police officers.

    The Editorial Board of The New York Times argues that in a case before the Supreme Court about the Clean Air Act, the Court should not limit the EPA’s authority to carry out the law’s purpose.

    Chris Geidner writes at Buzzfeed about Jim Obergefell, a plaintiff in the Supreme Court challenges to state bans on same-sex marriage.

    At the New Republic, Ian Millhiser claims that the Supreme Court cannot be trusted to protect voting rights.

  • November 4, 2013
    Guest Post
    by Sam Bagenstos, Professor of Law, University of Michigan Law School; former Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice
    The Americans with Disabilities Act (ADA) is our nation’s Emancipation Proclamation for people with disabilities, and it is the envy of the world.  The United States is far more accessible than any other nation.  Americans with disabilities have far greater opportunities to participate in the mainstream of political, civic and economic life than do individuals with disabilities in other countries.  Although our nation has not yet fully realized the promise of the ADA, we are far ahead by any international standard.  The point is sometimes hard for me to remember as I spend my time fighting to ensure that states and private entities comply with the ADA.  But every time I meet with students or activists with disabilities from other countries, they heap praise on America’s commitment to accessibility and inclusion.
    But America’s leadership on disability access has been drawn into question, because we have not yet ratified the UN Convention on the Rights of Persons with Disabilities (CRPD).  This convention, colloquially known as the Disability Treaty, embeds the principles of the ADA in international human rights law.  It was opened for signature in 2007 and came into force in 2008 when 20 countries ratified it.  President Obama signed the treaty in 2009, but the Senate has refused to ratify it.  Last December, a ratification vote narrowly failed, with the measure receiving 61 of the necessary 67 votes in the Senate.
    The Senate is poised to take up the treaty again soon, with a hearing in the Foreign Relations Committee scheduled for this week.  This time around, here’s hoping the Senate heeds the counsel of the treaty’s bipartisan band of supporters—including such Republican stalwarts as former President George H.W. Bush, former Senate Republican Leader Bob Dole, former Attorney General, Senator and Governor Dick Thornburgh, 2008 Republican presidential nominee Senator John McCain and former Secretary of Homeland Security Tom Ridge—and consents to ratification.
  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa

    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.