Creeping Incrementalism: The ADA Marks Another Anniversary

Casey Martin may have recently won a legitimate and hard-fought victory to preserve his right to a reasonable accommodation, but […]

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Casey Martin may have recently won a legitimate and hard-fought victory to preserve his right to a reasonable accommodation, but he cannot ride his golf cart into the setting sun at Augusta knowing that all is right with the Americans with Disabilities Act (ADA). As we mark the 11th anniversary of the ADA this month, actions by the courts and Congress and inaction by those noncompliant with the Act remind us that eternal vigilance might be the price of accessibility as well as liberty.


Some Good News

First, the good news: the Bush Administration has acted to put some meat on the bones of the Olmstead decision, in which the Supreme Court dictated that individuals with developmental disabilities be provided services in the “least restrictive setting.” In plain English, this means community-based rather than institutionalized settings. The Executive Order, signed June 18, applies to anyone with a disability and calls for a re-evaluation of the practices and policies of federal agencies. It also mandates that federal agencies work with states to fully comply with the Olmstead decision and the ADA. This is a good first step.

A parallel initiative, sponsored by the Health Care Financing Administration (HCFA), will deliver $70 million in grant funds to states to aid in the community integration effort. Specifically, the funds will help states design and pilot initiatives to: transition people with disabilities from nursing homes into the community; facilitate consumer-directed personal assistance services and supports; and change the way the state delivers information to individuals to make it more coordinated and consumer-friendly. The latter initiatives, called “Real Choice Systems Change” grants, will receive the most grant dollars.

The Minnesota Department of Human Services, led by the newly formed Community Quality Initiatives Division, has worked with members of the disability community and others to develop grant proposals in all three areas. Funding decisions will be made by HCFA in October.

Each of these efforts is tied to the President’s $8.6 billion New Freedom Initiative, a comprehensive effort to better integrate technologies, education, the workplace, and communities to the benefit of people with disabilities.

Federal regulations also took effect June 21 requiring that new federal information technology systems and equipment be accessible to people with disabilities in the workplace. This will affect computer software, phones, fax machines, and web site design, among others, and will aid an estimated 120,000 federal employees with disabilities now on the job. The change was called for by a 1998 law sponsored by Sen. Jim Jeffords, whose new independent status has dramatically shifted the balance of power in Washington.

As information technology becomes more advanced, portable, and commonly used, people with disabilities need access. These tools “are becoming more and more essential to our employment, education, and community participation,” said Bonnie O’Day, member of the National Council on Disability. The Council’s new report, The Accessible Future, credits the ADA with improving the situation for the disabled, but notes there is no single piece of legislation governing electronic and information technology in the way the ADA governs the physical environment.


Some Bad News

While much energy is being expended for the good, a legislative effort to weaken the ADA has resurfaced. Congressman Mark Foley (R-Florida) has again introduced the ADA Notification Act. The proposal would require an individual to provide a business or public entity with a written explanation of alleged ADA violations. A 90-day waiting period would then be instituted before any lawsuit could be filed against the alleged violator.

Proponents say the goal is to eliminate frivolous lawsuits, while disability advocates say it would provide no incentive for compliance with the ADA until someone cried foul. Advocates, like the National Council for Independent Living, have also said it makes people with disabilities the primary enforcers of the law, a responsibility they shouldn’t have to shoulder.

The most famous backer of the proposal, Clint Eastwood, was sued last year because his California Mission Ranch was said to be inaccessible. While Eastwood claimed victory, the court did find ADA violations existed. As a result, the plaintiff’s legal fees must be paid by Eastwood.  The media play surrounding this and other issue indicates there is heavy lifting yet to be done to ensure compliance with the ADA.

In California, the Department of Motor Vehicles has identified 4,523 architectural barriers in buildings it owns or leases. The slotted date for full compliance is 2012.

The Department of Justice (DOJ) has reached an agreement with United Artists to ensure that new stadium-style theaters allow for scattered seating and good sight lines for disabled patrons. The bad news? The Justice Department had to intervene in 1996 to garner ADA compliance when United Artists was building traditional theaters with limited accessible seating and poor screen angles. Similar cases have been filed regarding Carnival Cruise lines and the city of Steamboat Springs, Colorado. The latter was the first DOJ foray into the transportation thicket. While decided in favor of the consumers with disabilities, the question these examples beg is why does lingering and in some cases aggressive noncompliance with the ADA still exist?
High profile ADA cases like the Garrett loss and the Casey Martin win bring proponents and opponents out of the woodwork. The level of discourse becomes one of civil rights vs. special privileges, with few fence-sitters in this debate.

The Martin decision is a perfect example of this ideological divide. Alan Reich, president of the National Organization on Disability, said “the disability community knows a person’s abilities should be more important than his or her disability.” This is the foundation of the ADA: an implicit nod to the interaction of physical limitation and environmental barriers. Historically, our biological differences have been used to separate us, whether in work or at play. The decade-long educational focus around the ADA has been to show that with some nominal tinkering with the environment, equal access is readily achievable, and something we ought to expect.

But on the same subject, Justice Antonin Scalia closed his dissent by skewering the logic of the Court’s majority, and declaring “The year was 2001, and everybody was finally equal.” Not yet, Your Honor. Not yet.

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