The United States failed to recognize the ADA’s potential to undermine the rights of people with disabilities.
A federal judge for the Southern District of New York recently ruled that the city of New York is violating the Americans with Disabilities Act (ADA) by not installing audible devices at crosswalks. These devices let blind and visually impaired people know when it is safe to cross the streets, but the city has only installed them at 3.4 percent of intersections. The federal district court concluded that the city’s behavior constituted an unlawful refusal of services by a public entity in violation of Title II of the ADA.
The decision is made 30 years after the ADA was enacted by the US Congress. If the court’s interpretation of the ADA is correct, New York City, and likely cities across the country, have been able to violate the ADA for more than three decades, and the courts are enforcing its requirements.
What took so long
Compliance with the accessibility requirements of the ADA can never be taken for granted. The implementation of measures to ensure compliance with the accessibility rules has been below average, and there are numerous examples of inaccessible spaces – both by state, local authorities and privately owned. The enforcement of the ADA’s accessibility mandates was usually left to individual litigants after the construction work was completed – a mechanism that is often portrayed in the media as fraudulent and abusive “drive-by litigation”.
In a broader sense, the importance of the ADA and the extent to which it guarantees equality for people with disabilities has been subject to political and legal battles almost from the start. Persistent disputes over who deserves to be protected by the ADA and what it requires has resulted in a myriad of US Supreme Court rulings, hundreds of pages of federal law, a major revision of Congress, and a number of legal disputes, those of the youngest of New York resemble York City.
This battle for the importance of the ADA may seem surprising, given the origins of the law. The ADA’s decree was surprisingly cross-party, especially from a 2020 perspective.
The ADA is the product of decades of activism by people – some of whom are quite radical in their political leanings – with many different impairments who have come together to form the disability rights movement. The ADA itself was promoted, however, in a commission created by President Ronald Reagan, which was largely passed in Congress and signed into law with the strong support of President George HW Bush. However, beneath the surface there has been a lot of conflict over how far the law should go and how much it should ask of those it regulates. Resolving these conflicts required compromises that limited enforcement efforts and provided skilled defenses for regulated companies. As a result, the courts have had to grapple with the meaning of key terms such as “reasonable accommodation”, “undue toughness” and “easily accessible”.
Congress borrowed much of the ADA’s language from regulations based on an earlier law, Section 504 of the Rehabilitation Act of 1973, that has cracked federal courts for years. The authors of the ADA were of the opinion that the meaning of the central provisions of the Rehabilitation Act had been thoroughly regulated by litigation under Section 504 and that the use of the same language in the ADA would therefore prove to be uncontroversial. However, the judiciary’s response to the ADA has not been what the authors expected.
Many federal court decisions in the ADA’s first two decades were disabled friendly, with defendants predominating in district and appeals courts in the vast majority of cases. Most dramatically, in a number of cases dealing with workplace discrimination, known as the Sutton Trilogy, the Supreme Court narrowly interpreted the Disability Act’s definition in 1999, restricting discrimination claims before potential claimants had a chance to bring their lawsuit case.
Congress responded to the Sutton Trilogy and other restrictive court rulings by passing the ADA Amendments Act of 2008. Congress intended that legislation to direct ADA litigation contrary to plaintiffs’ position on discrimination issues. Studies suggest that courts have largely followed this policy.
Although the ADA was promoted as protecting the civil rights of people with disabilities, it has also been referred to as welfare reform. US Senator Tom Harkin sponsor claimed that the law would “strengthen our economy and improve our international competitiveness” by adding people with disabilities to the world of work and not receiving government support. However, in the years since the ADA came into force, the employment gap between people with disabilities and the non-disabled has widened. Early research suggested that the ADA had the perverse effect of reducing employment for people with disabilities. Recent studies conclude that ADA had a slightly positive impact on attitudes, but discrimination remains a serious problem.
Beyond the United States, the ADA and disability rights movement “took to the streets” to inspire activists and lawmakers around the world. This movement culminated in the United Nations Convention on the Rights of Persons with Disabilities, which draws concepts and language from the ADA. The convention has been ratified by more than 170 countries, but the United States is not one of them. The ratification fell six votes back in the US Senate, mostly pointing to Republican opposition to the United Nations Treaties – and possibly opposition to the ongoing political struggle for the rights of people with disabilities in the United States.
Almost every day a new chapter is added to the history of this struggle. The day after the audible traffic device ruling in New York City, the Supreme Court ruled another case involving the rights of people with disabilities on the streets and sidewalks and joined Alabama state officials in their efforts to avoid it People with disabilities had discontinued the risks associated with COVID-19 and the safe voting of their cars by handing their ballots to election officials.
The roadside vote seemed a perfect example of “reasonable accommodation,” a core ADA concept, but the court overturned the decisions of two lower federal courts without reason and allowed Alabama to ban the roadside vote. Judge Sonia Sotomayor contradicted two other judges and asked the court not to stand in the way of local electoral officials who were willing to help vulnerable voters fulfill their civic duty.
The judgment of the court was an unfortunate remark in a campaign in which, at least on the democratic side, the policy of the rights of people with disabilities was prominently discussed. All major candidates, including President-elect Joe Biden, presented plans to carry out the ADA’s promise to make three decades ago. With the COVID-19 pandemic continuing to ravage the United States and presenting particular challenges for some people with disabilities, the Biden administration will be the focus when the battle for the ADA enters its fourth decade.
Doron Dorfman is an Associate Professor of Law at Syracuse University College of Law.
Thomas F. Burke is the Ralph Emerson and Alice Freeman Palmer Professor of Political Science at Wellesley College.
This essay is part of a series entitled “Thirty Years of Disability Act.”