The History and the Future of the ADA. Presenter: Lex Frieden. >> VINH: Good afternoon everybody, welcome to the webcast on the history and future of the ADA. My name is Vinh Nguyen, and I'm with the Disability Law Resource Project at ILRU, your sponsor for today's event. I will be moderating the webcast and voicing your questions to the presenter. Before we get started, I want to remind you about sending us questions. In order to submit a question, you can click on the submit question button at the bottom of your RealOne Player screen or simply address it to webcast@ilru.org. Please send those now or at any point during the presentation. I cannot promise that every question will be answered, but I would pose the questions to the presenter as we pause for questions. Additionally, if anyone has any technical difficulties today, please give us a call at (713)520-0232. Our speaker today is Lex Frieden. Before I hand the mic over to him, let me read off his bio. Lex Frieden is the senior vice-president at TIRR, the institute for rehabilitation and research in Houston, Texas. TIRR is a comprehensive medical rehabilitation center which provides clinical, educational and research programs pertaining to spinal cord and brain injuries and other disabling conditions. He is also the director of Independent Living Research Utilization program, more commonly known as ILRU and is a professor of physical medicine and rehabilitation at Baylor College of Medicine. Mr. Frieden was appointed by President Bush in 2002 as chairperson of the National Council on Disability, the NCD. The NCD is an independent federal agency located in Washington D. C. and is charged with making recommendations on disability policy issues to the president and Congress. From 1984 to 1988, Mr. Frieden served as Executive Director of what is now the NCD and in this capacity, he was instrumental in conceiving and drafting the ADA. Lex, you want to take the mic now? >> LEX: Thank you very much, Vinh. I want to thank you for that nice introduction and also for all the work you do here at ILRU and I want to acknowledge and recognize our other colleagues here at ILRU. Thank you so much to Wendy Wilkinson and the folks that work with her and the Disability and Business Technical Assistance Center, DLRP now. We are pleased to have the opportunity to be of service to people in the southwest region of the United States and working with our other colleagues at the other nine regional disability and ADA technical assistance centers. I'm glad to have this opportunity during this particular week which precedes the anniversary week of the passage and signing of the Americans with Disabilities Act and I'd like to use this opportunity to share with you all some of my perspective about the history of the ADA as well as about some of the future challenges we might have. The comments that I will make are strictly personal and I want to make that very clear. Consider this a disclaimer, if you like, because my remarks today are based entirely on my own personal perspective. They don't represent the views of ILRU, the DLRP, NCD, TIRR, Baylor College of Medicine or any other organization with which I might be affiliated now, in the past or in the future. They are strictly my own viewpoints and they depend, quite frankly, on my mood and to some extent on the limits of an old man's memory. But I will try to share with you some perspective that perhaps you may not have considered as you think about the ADA and how we got to where we are now historically and where we might go in the future. Let me also mention that if you are interested in the technicalities of the history and if you want a really good read that incorporates not only the factual data about the history of the ADA, but also some very interesting anecdotal history, please go to the NCD website at www.ncd.gov and download a copy of Equality of Opportunity, The Making of the Americans with Disabilities Act by Jonathan Young. The date on that report is July 26th, 1997. You'll note that NCD had the foresight to release the report on the anniversary of the ADA, which I think is a nice touch. This year we're trying to have some other observations on the anniversary of the ADA, and I hope many of you can join us in Washington on July the 25th and the evening at the Kennedy Center or on July the 26th in the morning at the Marriott METRO Center for ADA activities sponsored by the NCD and other collaborating federal agencies. We're glad to be working with our federal partners. ADA didn't really start in 1990. From my perspective it started well before that. After World War II many, many disabled veterans came back to the United States and many of them were severely disabled because during World War II medicine made some great bounds forward and discovered medications that would stop infection, infection that prior to that time killed most people with severe and traumatic injuries and illnesses. The Sulfa drugs as they were at the time were able to arrest infection and enable people to live longer lives, despite the realities of severe impairments that they acquired largely during the war, but as the treatment capacity improved in the United States in the 1950's and 1960's, many civilians, people who were involved in sporting accidents and automobile accidents and otherwise disabled by trauma, their lives were saved. They were stabilized and they were able to live an extended period of time with disabilities. That large number of people with severe disabilities in our society, which really hadn't been there before that time, began to generate interest in public policy as it relates to people with disabilities. And in fact, in 1968 a fellow with a disability, a person who had had polio, by the name of Hugh Gallagher went to work for a member of Congress from Alaska, and this particular member got elected with help and went to Washington and according to Hugh's recollections, his boss said to him now, Hugh, we have an opportunity to do something. Let's make history here and Hugh said what do you want me to do? And the boss said, well, go over to the library of Congress and do a little research and find out what kind of laws need to be written to help people with disabilities. Well, Hugh couldn't get into the library of Congress because it wasn't accessible and he went back and said to his boss, well, I guess the first thing we have to do is make the library accessible. And as a result of that interaction, the Architectural Barriers Act of 1968 was written and passed and that, in my framework of conception about the ADA's history, was probably the first equal opportunity piece of legislation in the modern era affecting the lives of many, many people with disabilities. By the way, that act only applied to federally constructed buildings and facilities and even so it was violated over and over again, particularly by those quasi-governmental organizations including the U.S. post office. Later on, in 1972 I think was the first time that a congressman from Minnesota by the name of Hugh Bert Humphrey introduced a bill into Congress to amend the Civil Rights Act of 1964 to include people with disabilities as a protected class. As a matter of fact, Mr. Humphrey and other members of Congress for several years introduced that particular bill, but it never got any sponsors to speak of and it obviously never went anywhere and it was a courteous kind of an action, but not one with any long term significance. I would say that the next most important occurrence was in 1973 when Congress again was working on The Rehabilitation Act. The Rehabilitation Act of 1973 set out to do some things that had not been done in legislation before as it related to people with disabilities, and it to some extent was a response to the growing numbers of people with severe disabilities evident in society; and also a response I think to the number of disabled veterans who came back injured and disabled from World War II. The first couple of versions of The Rehabilitation Act in the early '70's included great provisions for independent living, huge authorizations or authority to spend money on independent living and they were actually vetoed by then President Nixon and finally came back to the Senate in 1973 for final passage. Stripped down without the independent living provisions and basically a continuation of vocational rehabilitation programs when one senator from Massachusetts by the name of Ted Kennedy introduced an amendment that added a Title V to The Rehabilitation Act and we all know that as Sections 503 and 504 principally at this time. Those were the very first civil rights act provisions for people with disabilities, I think, and the interesting thing about that is that they really set off a fire storm of belief by people with disabilities that they should be empowered because several years after that provision was the law of the land, there was absolutely no enforcement. There couldn't be, there were no regulations to make the bill, the law, effective. People with disabilities, finally in 1977, had sit-ins in several different cities around the country, probably the most memorable was in San Francisco wherefore nearly two weeks people with disabilities hung out in a federal building, refusing to leave and finally drawing attention by the national media in their efforts to bring attention to the fact that these laws have been passed in 1973 with absolutely no action on the part of the administration to ensure that regulations were there in effect. At about the same time, actually a year earlier than that, the American Coalition of Citizens with Disabilities had hired Frank Bowe to be the Executive Director and (Inaudible) at the time was a very ardent advocate, a person with a visual impairment from New York. She ran the mayor's office on the handicapped in New York City and together in unison -- and frank who was hearing impaired. Frank is a wonderful individual and colleague and friend from Hofstra University now. Together they were ardent advocates for the regulations to be imposed on sections 503 and principally on Section 504 which had a broader coverage of public activities and places. Finally, after considerable action by activists in the disability community, including a late night march with candles on the home of the then secretary of health, education and welfare, and which it is said his wife woke up and said, honey, why are all the people outside in the driveway holding candles? Oh, my goodness, they're all in wheelchairs. They have white canes, there is interpreters there, what is going on? And he apparently said to her, I'll take care of it tomorrow and the next day signed the regulations for Section 504. There is a little bit of mythology in that story, but there is probably also a little bit of truth there because in fact the regulations did get signed. One interesting note here, and I don't intend to embarrass anybody, but one of the current important players in the ADA implementation process here now 15 years after the passage of ADA was also one of the key figures in the whole effort to get regulations for Section 504, and that was then a young attorney who worked for the department of health, education and welfare by the name of John Wodatch and John was one of the principal authors of the regulations that were eventually signed by the secretary and put into effect in 1978. Another important occurrence occurred in 1980 when newly elected president Reagan appointed the vice-president then, one George Herbert Walker Bush to review all the federal regulations and streamline them, get all the government gobbledy-gook out of them and make them so that people could understand them, and also take a lot of the technical overbearing requirements out of those regulations. Well, the task force that Vice-President Bush set up to review these regulations wound up considering the regulations that were intended to implement the education for all handicapped children's act. And essentially they were going to strip those regulations down pretty well. That was the proposal. Parents of children with disabilities, along with adult disability activists, including many of us who at the time were active in the American Coalition of Citizens with Disabilities gotten raged about the notion that these important regulations might be stripped down and, in fact, made less strong than they were. And began to send cards and letters and faxes and made phone calls to the vice-president's office trying to stop this process. And I think the vast number of calls by parents with disabilities and adults and disabled people really got the attention of the White House and certainly got the attention of the vice-president and made everyone in public policy roles aware that people with disabilities were a growing number of political activists in America and that they could make their voices heard. I really don't want to understate the significance of that important rally in 1980. Later on in 1983, Congress had hearings about The Rehabilitation Act yet again. It was time to reauthorize that particular law and both the hows and Senate had hearings. In the House of Representatives hearings, Jim Deyoung from Illinois and I were asked to come and talk about rehabilitation, the law, how it was working and what it needed to do more. And Jim and I both talked about independent living because we were both very active in the independent living movement at that time and we encouraged more funding and support to independent living programs, of course, and we also said that we felt like there were a number of issues out there in the environment, not only physical access issues, but attitudinal issues that ought to be addressed somehow by legislation. And at the time congressman George Miller from California and congressman Steve Bartlett from Texas said to us, well, oh, we acknowledge what you've said. What do you think we should do about it? And at the time our suggestion was, why not appoint a blue ribbon panel to ask Americans with disabilities what are the issues that affect your lives and what are the barriers that you face now? And the House of Representatives took that seriously, included it in the bill that went forward in the reauthorization of The Rehabilitation Act process. At the same time the Senate was looking carefully at the authorization of the National Council on Disability which at the time was an advisory body in the Department of Education and asking the -- the Senate was asking the National Council on Disabilities, why aren't you producing any meaningful reports? Why are your reports late? Why don't they address current issues? And why aren't they more informative? And the council's response to that's essentially was, well, we're an advisory body in the Department of Education and if we do a report, it has to go through a clearance process that goes -- not only through the Department of Education, but through every other federal agency in the government and by the time everybody finishes editing our reports, they don't say very much. And they certainly aren't very timely. So the Senate committee, which was at the time led by Lowell (Inaudible) from Connecticut. You will have one opportunity to show us that indeed you can give meaningful reports and that is by 1986, January, we want you to produce a report that describes the issues in America, the outstanding challenges for people with disabilities and we want you to give us recommendations about how to address those issues. And provided you do that, then maybe we'll continue to authorize the council. In the meantime, just so you don't have to deal with this extended clearance process that seems to water down your reports, we'll make you an independent federal agency. So with that in 1984, the nation al council on disability became an independent federal agency with the responsibility to, by January 1986, to produce a report of important nature I suppose you'd say. That particular provision was the one which was included in the law. The House version that included the blue ribbon panel basically in the conference committee decided that the Senate's approach by using the National Council on Disability as the blue ribbon panel that was recommended by the house would be sufficient. So they went with the Senate's approach on that. The council became independent. Coincidentally, it was to me just a very fortunate turn of events, Sandra Perrino, who was the chairperson of the council, Justin Dart who was the vice chairperson and three other persons on the council's search committee hired me to be the first Executive Director of the independent National Council on Disability. So that actually led me to Washington at a very opportune time, I think. We worked on a report. The council did, and in 1986 we had ready the report that some of you may have seen. It's an interesting historical document. One of our interns here at ILRU has recently done a review of that document to see how much has changed as a result of it, and certainly one couldn't say that every change that's happened since then has been a result of that report, but obviously it did have an impact because among the recommendations in forward independence is that there should be a law prohibiting discrimination on the basis of disability and certainly passage of the ADA made that wish come true. But just getting that report produced was not an easy task. Because in fact the council had a staff of five at the time and we had 15 members who were appointed by the president and confirmed by Senate and all of the members had a long list of things they thought needed to be done. Fortunately, most of them were people with disabilities or family members of people with disabilities or they worked closely with people with disabilities and understood very clearly what the challenges were for people with disabilities in the early 1980's in America were, and they were considerable. But we decided that if we put all of the challenges in one report, nobody would ever get to the end of it. So we would try hold ourselves to ten principal recommendations and I think toward independence may have 11 or 12 by the time we negotiated and that was a seminal report. A few days before the report was due, the council sent a courtesy copy to the White House so that they weren't surprised when the press came out and said National Council on Disability produces report recommending (Inaudible). And I got a call one morning from the White House, early in the morning at home, directing me to be down there in the office of a staff assistant bright and early that morning to discuss this report. And of course I went there and was told when I got there that the report could not be published because it did not represent the current views of the Reagan administration. And I said, well, how do the views differ? And I was told that they might not differ, the problem was the administration didn't have any position on a number of the issues that the council had raised in the report. And, therefore, we needed to ensure that the administration was well versed and had a position on those issues. I pointed out that Congress had made the council an independent agency for a purpose so that we didn't have to get all our reports reviewed by federal agencies, including by the White House, and furthermore, that in my view, the report brought out issues that were important for America and important for people with disabilities and should be important for the administration. I had the opportunity to take that argument forward that morning to the chief of staff of the office of domestic policy in the White House who was a Dr. William Roper. Dr. Roper was a physician who had studied at the University of Alabama and had worked there in a clinic with people who had disabilities; and he was a rehabilitation doctor in that setting. And Dr. Roper was very sensitive to the issues that we raised in that discussion about how many millions and billions of dollars the United States spent on caring for people with disabilities who, if these recommendations were made and approved, could do more to sustain themselves. And I thought it was a traves ti and I still do think it's a traves ti to spend a lot of money educating and training people with disabilities for work and then not finding them appropriate opportunities to do those jobs and not providing them with the necessary supports they need in order to do those jobs. And Dr. Roper agreed with that. The report was indeed published a few days later and interesting story about that, too. We were a little naive, a staff of five, with this brand new agency trying to produce this important report and we thought we could just take it down to Kinkos and have it copied overnight and be done with it. But then we learned that the government printing office required a six-month lead time in terms of producing a report. Well, we didn't have six months at that time. We worked on and edited the report down to just the very few days, but we did in the process discover a provision in the law at that time that may still exist that said the only option to producing a government report -- to having the government printing office produce it is if you can have one of the federal prisons produce that printing job. And we were fortunate to get the federal prison in New York -- the prisoners actually were poled and asked if they would be willing to work some overtime during the Christmas holidays to ensure this report got printed in time. So thanks to the prisoners in the New York prison, the report got done on short notice, got done on time and it was delivered as we said it would be on January 26th, in 1986. We had an appointment to meet the president and to brief him on our report and hopefully to get an endorsement from him about the recommendations in the report, but those of you who were keen buffs of history and can remember well know that the spacecraft challenger exploded. I think it was on the 23rd. It was just two or three days before the report was due and our meeting with the president had been scheduled and president Reagan, as a result of that, quite naturally canceled all of his appointments that week and we were left without an appointment with the president and we were saddened of course by the tragedy, but we had worked for a long time on this report and were eager to have some acknowledgment of it. We were told by the president's secretary that if we'd like, we could perhaps present the report to the vice-president who was, of course, George Bush. And we thought about it a little bit and thought, well, if you can't give it to the president, why not give it to the vice-president. And we asked the vice-president if, in fact, we could deliver the report and his office set it up so that we could meet for a brief series of what we expected to be photographs, handshakes, delivery of the report. Well, when we got to the White House, to the west wing where the vice-president's office was, we were greeted by Boyden Gray who was counsel to the vice-president at that time, an attorney from North Carolina, and a person who was acquainted with Evan Kemp, one of the great disability leaders of that period and one who eventually President Bush appointed as chairman of the Equal Employment Opportunity Commission; but Boyden said to us you're just going to have a few minutes with the vice-president there, so make sure you make your key points. Well, we were escorted into the vice-president's office and Mr. Bush was very gracious, seemed happy to see us. There was a fire roaring in the fireplace and he was behind his desk and shook our hands. The group included Justin Dart, Sandy Corinno, Jeremiah Millbank a member of the council from New York and myself and we were so pleased to be there and have our picture taken with the vice-president and hand him the report and we expected then to be escorted out of the office, but he sat down behind the desk and asked us to relax. And he said, you know, I got a copy of this report and I've read it and I'm very interested in it. And he turned to a certain page in the report and he started asking questions about what do you mean by this suggestion that people with disabilities ought to have equal opportunity? And we explained very clearly our concept of nondiscrimination and how it applied to people with disabilities and he said, you know, Barbara and I can understand that because one of our children has a disability and we lost another child as a result of serious health condition, and I'm personally very interested in this, and what else can you tell me? And we had about a 45 minute conversation with the vice-president at that time and for us it was very empowering and it was wonderful for me personally to see a public leader with that much compassion and interest and knowledge about an issue that many of us thought that most of society had ignored. When we got ready to leave the, the vice-president said I hope I can help you with this some day. I'll surely give it to the president and tell him we had this great meeting and he said good luck with this and I want to -- I want to stay on top of this. I want to do everything I can to help with it. And so we were kind of happy, but when we left, it occurred to us that indeed this was just the vice-president. Not knowing, of course, that two years later this person would in fact become president of the United States. Well, during that period between 1986 and 1988, not much really happened with the recommendation about the ADA. Nobody introduced it into the Congress. No member took it and rewrote it to turn it into a bill, and in 1988, the council produced a second report called On the Threshold to Independence. And in this particular report we actually provided a draft -- I think it was 13 pages -- written primarily by Bob Burgdorf in consultation with a number of D. C.-based attorneys, many of them people with disabilities and that particular draft dealt with some important issues and my frame of reference, again, included a perspective that had not been included as it related to people with disabilities and public policy before. We tried to change the paradigm of disability in that report. Essentially, up until that time, and you can see this if you look at definitions of disability in the law prior to that date, disability was defined as a medical condition of one sort or another. People with disabilities were described according to the characteristics of their impairment. They were blind. They were deaf. They were paralyzed. They'd motion al disabilities, psychiatric disabilities, mental retardation. All of the definitions of disability until that time essentially were based on a person's medical condition or physical characteristics. They really did not take into account the fact disability is caused mainly by the environment in which a person lives and works and plays and acts. And that environment is the aspect of the definition of disability which we tried to introduce in the 1988 proposal for the Americans with Disabilities Act which was included in the On the Threshold to Independence report. In order to get to that point, we had a lot of discussion among council members, some of whom were very concerned about the economic implications of the law that we were proposing, and I must give credit to Jeremiah Millbank, a member of the council who was himself a philanthropist. He came from a New York family that had a great deal of means and Mr. Millbank and his family historically had made a lot of contributions to philanthropy in the New York City area. Mr. Millbank had also been treasurer of the Republican party back in the 1980's as I recall and he was indeed a businessman and very much related to business people in America at that time. Mr. Millbank actually hired an economist from California to come in and review our draft proposal for the ADA before he was willing to vote in favor of it in our report. And the economist came up with the conclusion, frankly, that these provisions, if enacted, would have a cost, but the payoff would likely in the long run be much greater than the investment in the short term. And based on that, as well as another Millbank invention, the Harris Poll, Mr. Millbank didn't invent the Harris Poll, but he applied the concept to disability when he suggested to his friend Lou Harris that he do a poll on -- of people with disabilities about what they consider to be important issues and to validate the council's view that equal opportunity, civil rights, nondiscrimination were the most important and largest barriers to people with disabilities in America at that time. The Harris Poll really did validate that fact by telephone interviews with literally hundreds of people with disabilities around America. So Mr. Millbank and the other members of the council were very confident that the proposal that we included and called the Americans with Disabilities Act bill in our 1988 report was representative of the public policy needs of people with disabilities at that time. I remember on the day that the council voted to approve publishing the report, Marka Bristow, who was at the time the chairman of the National Council on Independent Living, sent a bouquet of flowers to the council because the independent living folks in the United States were certainly at tuned to the council's views about the need for an ADA and for the other provision that were included in the council's recommendations at that time. I want to come back to those other provisions in a minute. Other groups that I think played a critical role during that period were ADAPT, which made -- which continued to get a certain degree of public awareness for the frustrations that people with disabilities had because of their lack of access to public services, principally transportation at the time. Michael Berger, Bob Kafka, Mark Johnson, Stephanie Thomas and their colleagues -- members of ADAPT all over the country were active and engaged in a number of civil actions to get attention and to focus on the lack of access of public transportation in the United States. And I think that public awareness that was raised through their efforts was important at that time to reinforce the views of some policymakers that action needed to be taken to ensure access to public services by people with disabilities. It certainly drew the attention of various people, Oren Hatch, Bob Dole, Major Owens and other members of Congress who became in effect the principal sponsors of the Americans with Disabilities Act, the man who took over from Tony when he left. The Congress in 1988 -- hatch was there all along. Senator Harkin took over as leader in the Senate from Senator Wykert after he lost his election in 1988 and so on. These were important people in important times. Justin Dart was throughout this period very active meeting people that he knew in the administration, cabinet secretaries and others, people in the business community. John Kemp, Evan Kemp, Boyden Gray, Pat Wright, all these people were important in the process for advocating for the passage of the ADA. You may or may not know that the original ADA was introduced by Wykert in '88 as more or less a courtesy to the disability community. The real version of the ADA that became the law was introduced by Senator Harkin after the '88 elections in 1989 when the balance of power had shifted from a Republican Senate to a Democratic Senate and Harkin and Kennedy and their colleagues became leaders in the effort on the Senate side while at the same time Hoyer and Major Owens and others were leaders of the Democratic party on the House side and Steve Bartlett and Mr. Minetta and others played important roles of the minority on the House side during the important negotiations that eventually led to the bill that passed the Senate and the House. For those of you who don't recall, the final vote in the United States Senate on passage of the Americans with Disabilities Act occurred on July the 13th, 1990. And that vote was 91-6. 91 for passage of the final version of the ADA to 6 who voted no. And the House of Representatives on the day before that, July the 12th, had voted 377-28 for final passage of the Americans with Disabilities Act. These were huge votes and huge majorities for passage. They were almost unheard of at that time. And they are a tribute to the efforts of the disability community, primarily, for their advocacy, for their leadership, for the hard work that they did and for the leaders in Congress for the work that they did and for the leadership of the White House, which worked diligently during that period to ensure that ADA was actually passed. I think that the issues before passage of ADA that drew the most attention were those related to the economics of the ADA, what kind of an impact it would have on business, the arguments that came forth from those discussions, which are important to recall even today, were that the beauty of the ADA is that there would be a level playing field. That if one business had to make a sacrifice by spending money to ensure access for people with disabilities, they would not be add a competitive disadvantage because the business down the street, their competitors, had to make the same commitment. And perhaps had to spend the same amount of resources to ensure that people with disabilities had access and so I think that level playing field concept, drawn to the arguments about economic impact of the ADA was an important and rationale argument to make. Other arguments that were had before the passage of the ADA, some of them even continue today, had to do with whether the concept of nondiscrimination could be applied to disability. Obviously, people with disabilities don't constitute a single race or gender. We're all of many races and both genders and, you know, how can you apply a nondiscrimination concept to a group as varied as that? And the answer, which we gave and I think it's the right answer, is that it really doesn't make any difference. Discrimination shouldn't exist on any basis, and even if somebody is not disabled and they are thought or said to have a disability, and discrimination occurs on the basis of that belief, it is nonetheless discrimination and shouldn't occur in the America that we live in and love. And I think that argument holds true today. We did, at that time, in the 1980's, late 1980's use the word equal opportunity much more than we used the words civil rights. It seemed like equal opportunity was a more whole some, a more open concept at that time as it related to disability. Civil rights -- actually that rhetoric pulled us down into discussions about technicalities related to affirmative action and racial disparities, and the equal opportunity rhetoric actually enabled us to discuss people with disabilities in a little different context which was valuable at the time. Two concepts which were incorporated in the ADA, but in fact borrowed from the whole 504 regulatory process, were reasonable accommodation and undue hardship. Together, those two concepts, when explained clearly, worked to assure businesses that they wouldn't have to sacrifice their business in order to assure access to and service to people with disabilities. And that was a very reassuring kind of discussion for them and I think those concepts are still vital. As a matter of fact, some of the work that's been done in other countries to adopt principles of the ADA and to create ADA like laws in those other countries have drawn heavily -- the European union, for example, has borrowed heavily from our early discussions and documents and technical discussions of the concepts of reasonable accommodation and undue hardship. I don't want to understate the role of disabled family members in the advocacy and understanding the ADA before it was passed. And particularly point out to those of you who may be listening to this how those disabled family members and that experience with disabilities may have influenced then President Bush, certainly Senator Harkin, whose brother is deaf, Senator Wykert whose child has mental retardation, Congressman Hoyer whose wife has a disability and Senator Kennedy who has disability throughout his family and many others whose lives were touched personally by disability who became ardent advocates of the ADA. On the night before the ADA was signed into law by President Bush, one of the most important things happened in my view, and that is a decision at CNN, broadcast central in Washington, where the producers were considering whether or not to make the signing ceremony for the ADA a live event on CNN or whether just to carry it as a bit on CNN Headline News. And I happened to be going through the studios on a tour, as a matter of fact, when this discussion started up. And my cousin who worked there invited me into the office where the discussion was being held and there was a connection between Atlanta, the headquarters then of CNN, and the Washington office where the producers were discussing whether or not this was an important issue, whether it justified -- merited CNN time on the live network or not. Atlanta said, well, we can't possibly make it live at 9:30 or ten o'clock in the morning because that's when we go to our international show and that's when we have our largest international audience. And the Washington producer made the argument that this particular law had international implications, that people in other countries who needed to understand better equal opportunity and civil rights could perhaps relate to people with disabilities not only in America, but in their own countries and understand some of the trials and tribulations that people faced as a result of society's lack of provisions to ensure equal opportunity for people with disabilities. Finally, the decision was made to go live with the signing ceremony on the CNN network worldwide, and so on the day that President Bush signed the Americans with Disabilities Act, hundreds of millions of people around the world became aware of discrimination on the basis of disability. They became aware of the challenges faced by 600 million people with disabilities in the world in addition to those 50 million or so people with disabilities in the United States. They became sensitive to the kinds of issues that before that date not very many people were sensitive to or interested in. So I happen to believe that in addition to the signing of the ADA by the president, the airing of the ADA signing ceremony by CNN was a particularly significant event. And on that day, of course, the headlines and newspapers, radio and television across America highlighted the Americans with Disabilities Act signing and from that day forward, I believe, issues pertaining to discrimination and disability have become legitimate headline news for the media. And that's important because unless our story is understood by all of our family members, friends, friends, neighbors, by everyone in our society, unless everybody understands our story and can relate to it, then we're going to have difficulty encouraging those people to do anything to improve the quality of life for people with disabilities, but I think that the recognition that it is possible to be independent, despite disabilities, given nondiscrimination provisions and given appropriate access and given appropriate supports, I think that recognition is very important and I think we're making progress in that direction. The 1991 anniversary, the first anniversary of the passage of ADA was important because at that time regulations came forward to implement the law, and that is significant. You know, we can learn from our mistakes. In 1973, Congress passed the Title V of The Rehabilitation Act and it took us five years to get those regulations written. We weren't going to wait five years again after 1990. We weren't going to put ourselves in the situation where people had to be starved in federal buildings to get attention to get did regulations signed to the ADA. The president made a commitment that within a year of passage of the ADA there would be regulations and the cabinet agencies complied with one exception, not so notable. It was fixed right of way. The cabinet agencies under the leadership of Dick Thornberg who was the attorney general then, with support, by the way, of a fine disabled attorney who is now deceased, Drew Batavia. The federal agencies actually did come forward with those important regulations. So the 1991 anniversary of ADA was very important and significant in that regard. I want to make just a few comments about what we have achieved in the last 15 years and where we go from here and then try to address some of the questions that you all may have. I think that with respect to access through the work of the Architectural Barriers Board, through the work of state agencies, and through the work of the justice department, the EEOC and others, we've made great strides forward and making better access for people with disabilities throughout America. Certainly transportation has improved immensely in the last 15 years with every transit agency in the country having accessible transit at this point in time. We have faced in the last several years what I would describe as an employment controversy, the question is whether more people with disabilities are employed as a result of the ADA or not. And frankly, I think that's an irrelevant question to some extent because the ADA was not intended to be employment law. It wasn't intended to be employment policy. It was intended to be nondiscrimination law, nondiscrimination policy. There was no judgment made and no promises made before the ADA was passed that it would improve employment opportunities for people with disabilities, because without jobs, without the necessary supports, without the appropriate action on the part of employers, people with disabilities won't be employed. You know, set aside the question of discrimination, perhaps there is discrimination in the workplace. If there is, it needs to be rooted out. Perhaps there is less discrimination in the workplace now than there was before ADA. I happen to believe that's the case. However, that doesn't necessarily mean there are more jobs or that people with disabilities are being recruited or accommodated in those positions of employment now any more than ever. And I think we need to address the issue of public policy and employment of people with disabilities and I don't think we should depend on the ADA statute and its regulations to ensure employment opportunities for people with disabilities. It's the wrong place for that argument. People have raised a lot of questions about the court decisions, particularly those decisions of the Supreme Court and clearly there is a question about the definition of disability in the ADA that is not transparent as far as the courts are concerned. It's difficult for them to make clear decisions because they're not clear, it seems to me, on what the definition of disability is. And, you know, from my perspective, I think that needs to be fixed. The National Council on Disability has produced a report called righting the ADA that's on www.ncd.gov. And if you're interested in what we feel needs to be done about that, read the report, but I'm here to acknowledge clearly now that ADA wasn't a perfect piece of legislation and certainly the question of definition of disability needs to be addressed in a more clear way because we in effect are changing the paradigm of definition of disability. And I think we understood, still do understand clearly, what disability is in society from an environmental framework, from a social framework and not necessarily from a medical framework, but it is difficult to articulate that in terms that courts can understand and act appropriately on it. So, therefore, you have mixed decisions by the Supreme Court and others as it relates to questions raised about what the ADA actually means. Another, by the way, concept that needs some further clarification and elucidation is that of mitigating measures and how mitigating measures may or may not play into a determination of disability when one is making the complaint about discrimination. So those are a couple of issues that I think we need to be aware of. With respect to the future, right now the United Nations is considering a convention on disability rights. A convention in the United Nations parlance is not like a public meeting, it's like a treaty, an international treaty that all member nations are bound to and for the last two years, the U.N. has been working on this particular treaty or convention and I believe that within the next two years the U.N. will consider and pass a provision that in many ways is modeled after the Americans with Disabilities Act that will at least state a policy of nondiscrimination for all member countries in the world. I think that will be a giant step forward. Countries as far afield as Britain, Germany, China and New Zealand and Australia have considered and enacted laws that are in some ways modeled after the Americans with Disabilities Act. I think last count there were 40 or some countries that had actually tried to model significant portions of the ADA and some countries have actually gone a step further than the United States now with some of their nondiscrimination provisions. In South Africa, for example, there is a human rights council which includes a staff made up mostly of people with disabilities and public members appointed by the president of that country, which actually acts on and has the authority to resolve discrimination issues and I think it's a great model. So there is a lot more that can be done to ensure nondiscrimination on the basis of disability in this country, to clarify the provisions of the ADA and around the world. I'd just like to close here with a statement which I made several years ago, but I think it's apropos today. "ADA represents a significant accomplishment in the evolution of society's views and treatment of people with disabilities. Nonetheless, ADA is but one node in a continuum of progress and it pales in relation to the extent overwhelming service and survival needs of people with disabilities. Ultimately, the full impact of ADA will be realized only after the majority of people with disabilities gain access to certain basic services like attendant care, readers, interpreters, transportation, housing assistance, affordable healthcare and medical and vocational rehabilitation. Like liquid in a vacuum, the concept of equality has very little meaning for people who are struggling to survive without the resources necessary to meet fundamental human needs." ADA is just one piece of the puzzle, and I think we need to celebrate the accomplishments that have been made by our society, by our nation, by our friends, neighbors and by ourselves. ADA has achieved a lot and it has produced initiatives that will continue for a long time, but ladies and gentlemen, we have other challenges to meet and we can't rest until we meet those challenges. Vinh, I presume you have a few questions online for us? >> VINH: I do, Lex. Let me try to sum up some of them since some of them are basically the same questions or commentary. Lex, how would you answer the complaints by many people who, from what I understand, instead of having to go to court to enforce the ADA, the only -- they would have to go to -- or make a federal complaint to the government. Does the federal government have enough resources to address all of these complaints? >> LEX: Well, I mean, obviously the federal government has enough resources to do whatever the federal government wants to do, whether that's a practical solution or not is -- I think really the question, and from my perspective, you need to be able to deal with complaints as quickly as possible and the level where the complaint can be resolved as quickly as possible. And if you're going to send all your complaints to Washington, you're just going to create a log jam and set it up where a lot of people that are working on very, very important issues will have to address those and they address them slowly. They address them one at a time. The complaint process needs to be a resolution process that exists as much as possible down at the local level. So I'd like to see more opportunities for people to resolve complaints locally, perhaps through state agencies, perhaps through voluntary resolution agency and other means. >> VINH: So you'd like to see the local and state government pick up some of the slack in terms of enforcement? Have their own laws or... >> LEX: I suppose when you're talking about state government, you've got to impose state and local laws. I do think, by the way, that sometimes people jump immediately to claim violations of federal law when in fact there are state and local laws that would be very helpful to them that they can actually use before they go to the federal process and in some cases even state and local provisions are stronger than the federal provisions. So, you know, I think that those of us who are counseling folks with disabilities that have to deal with discrimination, I think that we need to encourage folks dealing with it to use state and local statutes if possible. There also needs to be a complaint resolution process that's easily invoked that involves perhaps voluntary complaint resolution officers using federal law that are located in local communities. >> VINH: Lex, you had previously mentioned that the NCD had released a series of positive papers called write righting the ADA. Could you summarize some of the recommendations that the papers made in terms -- well, in terms of the problems it's addressing and what can be done about them? >> LEX: Well, I mean I will summarize in general. The NCD has acknowledged that there are several issues which have in effect been raised by the courts in their decisions, principally by the Supreme Court in various decisions which don't seem to be consistent with the intent of the original ADA, but upon further analysis, NCD has determined that perhaps the courts had a rationale basis for making a decision that didn't seem to be consistent with the original intent of the ADA and their rational of the courts is based on language in the ADA that can be improved. So without going into the specific technical details, I would simply say that NCD has the whole series of recommendations there that you can find that relate to the principal questions that have been raised by some of the Supreme Court decisions that don't seem to be consistent with the original intent of ADA. >> VINH: Lex, there have been a series of, I guess you can call them drive-by lawsuits, that have been going on around the country by sometimes the same litigants over and over. In response to this, Congressman Foley out of Florida had proposed an ADA Notification Act proposing to amend the ADA to put in a notice provision for the businesses. Can you comment a little about that and your position? >> LEX: Well, NCD has taken a position that that notification act, particularly the proposal that's been introduced in the Congress is unreasonable and it probably won't result in the kind of resolution that Congress imagined or that the sponsors of that particular bill imagined when they introduced the bill. You know, discrimination occurs, there needs to be an ability by those who are harmed by it to take some corrective action on their own behalf. And if I'm required to notify somebody before I file a complaint or a lawsuit, that seems to me to be somewhat bizarre because it means in fact that the person who required the notification knew all along and perhaps even intended to make life more difficult for me by discriminating. Certainly the examples that have been given -- and in the case of Clint Eastwood and others are -- indicate to me that those who own the property knew darn good and well that people with disabilities didn't have access to their facilities. So why in the world would I have to notify them of that? It's evident to them. That's the reason that they're upset when somebody files a complaint and expects them to do something about it. So I don't think the notification act solution is the right answer to the legitimate problem that some members of Congress and others are concerned about, and that is that you described it as drive-by ADA lawsuits. What to do about that? In some cases, I can see why the same person might file one complaint after another. You know, if you figure out how to do it -- I've had that experience myself. There is a process involved in filing a complaint, just like there is a process involved in filing a lawsuit. Once you learn the process, you might as well practice it. And goodness grief, if there is a legitimate subject of complaint, I mean, there is a particular restaurant that I go to in Houston that for the life of me can't figure out that they need to have some reserve parking that the law requires them indirectly to have reserved parking for van accessible parking. And they got enough spots there and they just don't do it. And you can ask the manager and the manager says he leases and doesn't own and the owner is never available. And the only way to get their attention, I feel, is to file a complaint or a lawsuit. And eventually the process will produce the needed handicapped parking space. That seems like a lot of trouble to go through. If somebody who was familiar with the process of filing these complaints and lawsuits came along and said don't you think that place needs to have an accessible parking place, I'd be the first one to say yes, absolutely it does. And I would not put that in the category of a frivolous lawsuit or a frivolous complaint and I wouldn't put it in the category that you might have put some of these so-called drive-by lawsuits. The trouble is making a distinction. If nobody has actually been harmed by a particular provision and somebody is filing a lawsuit -- in fact, they don't even have proof or evidence that there has been any discrimination, they're just taking the chance that an investigation may produce resulting discrimination, I think that's absurd. I don't think that's what we're supposed to be doing here, and I think if there were a way that our community could sort of police itself, that would be the best solution to the problem. I don't really see that happening, but I do know of a case where a judge in a particular jurisdiction has taken the legal authority away from a practicing attorney, di barred him through the state disbarment process from practicing for a period of time because of what the judge determined were frivolous ADA lawsuits. That's not a bad solution to it. I don't know what you as a lawyer think about that, Vinh, but I thought that was a fairly appropriate resolution to that one case. >> VINH: from how I understood that case, the judge basically put a notification -- the equivalent of a notification act against that particular person or litigant in that in order for him to file suit in the court, he must provide notice to the judge and the judge must approve of it before he could file a lawsuit. So in effect it's almost like a notification act for that particular litigant. >> LEX: Well, based on what I know about the case and the fact that that lawyer was filing suits not knowing personally whether or not there had been a violation or discrimination, and not having very good evidence that there had been, seemed to me like it was sort of harassment on the part of the attorney using the ADA as the basis for their harassment and perhaps even a method to generate income throughout of court settlements by those that he sued. So I really don't think that's what was intended with the provisions of ADA and I think if there is a lot of abuse by lawyers like that, then all of us are going to suffer because there will be retraction of certain right of action by the Congress and by state legislatures and others. >> VINH: Okay, Lex. I have a question about, I guess, with this was probably about the future of the ADA. As you well know, the ADA was passed in 1990 and a couple of years later we have a third frontier in terms of communications and with the Internet. And this was around -- I guess the Internet boom hit around 1995. Do you feel that the ADA applies to the Internet as it's written now? Or do you think that we would have to amend the ADA to include the Internet? >> LEX: Well, I actually am impressed by the far-sightedness of the authors of the ADA to be able to incorporate sufficient language in the original legislation so that Internet activities and electronic communications activities could be addressed under existing law to a large degree. And I have to credit the FCC with a lot of their work to ensure that ADA was applicable to certain provisions of interstate communications. But obviously, any new technologies that are developed after a law passes raises issues that could not be anticipated, and therefore, I would suggest that when ADA is amended in the future, and it will be most certainly, when that happens and new provisions be added that address the current state of technology and that which is foresight can determine at that time whatever it is. We have more questions coming in on the wire. Punch that button and send us questions. We've got about 15 minutes before we lose our line. >> VINH: Okay, we have a couple of legal questions. Well, actually another question asking about the notification act which you had already answered. Here is a pretty legal question, Lex. You might not know the answer to this. >> LEX: That can't be, Vinh. >> VINH: Okay, in the case Smith vs. Virgin Islands Port Authority, a case out of the Virgin Islands, a district judge had dismissed an employment ADA case finding that the authority did not qualify as an employer under the ADA. According to this ruling, the government agency of an unincorporated U.S. territory is a federal instrumentality and is therefore exempt from the Title I of the ADA. What is your take on this ruling? >> LEX: You're right, Vinh. I don't know the answer to that question. You know, I mean, obviously when we worked on the ADA originally, there were a number of these kinds of issues that were raised as hypothetical issues. The question of whether tribes of Native Americans could be covered by the ADA was a very significant question. The question of whether Eskimos could be covered by the provisions of the ADA was a significant question, and the question of whether unincorporated territories that were American property and so on and so forth, however you describe them, could be covered by the ADA were questioned that were raised but not entirely resolved from my memory at the time. And so they obviously have been tested by courts and some courts may have different resolutions than others, but clearly here is one that you've raised that's been drawn into question by an authority. Vinh, I think, you know, there are probably a whole array of issues that fall into that gray area. You know, another area where there were questions -- a lot of discussion at the time of passage of the ADA was whether the ADA provisions should in effect cover the Congress, whether the offices of all the members of Congress had to be made fully accessible and had to meet the nondiscrimination provisions of the ADA? And that question is still valid today. If you've ever been to visit a member of Congress and you're in a wheelchair, you find that there is a whole lot of desks and office space taken up by desks that should be clear for mobility if you really wanted to meet the strict guidelines of access incorporated into the ADA. So no doubt, there are certain areas that are still gray. >> VINH: Well, I think that's all the questions, Lex. I guess we can conclude our webcast today. I hope the audience has learned from Lex's lecture on history of the ADA along with his views on the future. This webcast will be archived I guess by the end of this week or by next week. Please check our website, www.ilru.org for additional upcoming webcasts that ILRU will put on. I would like to acknowledge NIDRR who funds our host for today's program, the Disability Law Resource Project. You can reach the Disability Law Resource Project at 1-800-949-4232. The projector DLRP for short provides technical assistance on the Americans with Disabilities Act. I'd also like to thank some people for making this webcast today possible. I would like to thank the ILRU webcast team, Marj Gordon, Sharon Finney, Dawn Heinsohn, Rob Dickehuth and our realtime captioner, Marie Bryant. And I guess that's all, folks. Bye.