On September 7, on a straight party-line vote, the Republican-controlled House Judiciary Committee moved forward a bill that would gut key protections for people with disabilities. Although versions of this legislation had been introduced in prior years, the bill did not go anywhere while President Barack Obama stood ready to veto it. But now that President Donald Trump, whose actions have demonstrated hostility to civil rights, occupies the White House, the proposal presents a real risk of passage. If Republicans in Congress do eviscerate the Americans with Disabilities Act (ADA), it will be the culmination of their recent abandonment of the bipartisan consensus in favor of inclusion and equality for disabled persons.
Although the partisan divide in Washington has often seemed unbridgeable, disability rights long united lawmakers. Republican President George H.W. Bush referred to the ADA, which he signed in 1990, as one of his “proudest achievements.” The law guaranteed that people with disabilities would have access to, and be free from discrimination by, employers, businesses, and government agencies. In 2008, after a series of court decisions that gave a narrow reading to the ADA, a Democratic Congress passed amendments to the ADA reasserting the statute’s broad coverage - and President George W. Bush signed it.
The Trump administration is hacking away at disability rights online and in the workplace, while Trump and congressional Republicans work to gut funding for programs people with disabilities rely on such as Medicaid. The partial ADA-repeal bill is only the most overt assault on disability rights - the culmination of a shift that began when, in December 2012, 38 Republican senators denied the two-thirds vote needed for ratification of the Convention on the Rights of Persons with Disabilities, which was modeled on the ADA and ardently supported by disabled GOP luminaries such as former Senate Majority Leader Bob Dole. But while that action was merely symbolic red meat for their base – conservatives worried it would inhibit homeschooling and infringe U.S. sovereignty - this new proposal could cause tangible and long-lasting harm.
The current bill, misleadingly titled the “ADA Education and Reform Act of 2017,” would render largely unenforceable key ADA requirements that businesses be accessible to disabled consumers – requirements that they provide ramps instead of stairs where possible, that doorways be wide enough for wheelchairs and so forth.
For wheelchair users, a single step – or a door that is a bit too narrow – can be the barrier that prevents them from patronizing a store. A few inches can make the difference between being full participants in civic and economic life and being dependent on others and shut off from the community.
Businesses have had 27 years to learn about and conform to the ADA’s requirements. But too many still fail to comply with the law, because enforcement relies principally on suits by disabled individuals. Wheelchair users, blind persons, and other people with disabilities encounter inaccessible businesses on a daily basis. According to 2016 Department of Labor statistics, only 31.2 percent of working-age Americans with disabilities had jobs, compared to 76.4 percent of working-age nondisabled Americans. The failure of employers, including stores and restaurants, to provide required accommodations is one of the key reasons for this persistent gap. Surveys show inaccessibility also causes people with disabilities to eat out less often.
The ADA does not give a disabled customer the right to receive damages for a denial of service, just an injunction that requires the owner to remove the barrier. This limitation already creates an incentive for inaccessible businesses to wait until they are sued before complying. Under the bill that recently passed the judiciary committee, the incentive to wait and see will be even greater. The proposal would prevent a disabled person from suing a business that violates the ADA as long as the business makes “substantial progress in removing the barrier,” within six months of being notified. A business might be able to avoid ever complying with the ADA or facing a lawsuit. It’s a system designed to allow businesses to delay until the victim runs out of energy or money to keep pursuing them.
Sponsors of the “ADA Education and Reform Act,” such as Texas Republican Ted Poe, say that the bill is necessary to stop unscrupulous lawyers from bringing frivolous or abusive ADA cases against small businesses. But state bars, and individual judges, already have ample authority to sanction attorneys who engage in such unprofessional conduct. And the ADA itself protects the interests of business owners by providing that an existing facility need not remove accessibility barriers unless doing so is easy to accomplish without significant expense.
Rather than protecting legitimate business interests, the bill pending in Congress would give a reprieve to enterprises that have had 27 years to comply with the law but have not yet done so. That is a betrayal of the basic promise of the ADA – that people with disabilities would be treated as equal citizens, with full access to America’s civic and economic life.
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It is just the latest Republican betrayal of the historic bipartisan support for disability rights. In the Trump administration, attacks on disability rights have accelerated. Attorney General Jeff Sessions’ Justice Department has already reversed course in a key lawsuit, prosecuted by the Obama administration, involving the rights of disabled workers to retain their jobs. The White House has also signaled a halt to the Obama-era efforts to adopt regulations ensuring that the Internet is accessible to blind people and others with disabilities.
Perhaps the biggest threat to disability rights isn’t even in the realm of civil rights law, but healthcare: the GOP’s endless efforts to repeal the Affordable Care Act and cut funding for Medicaid. If they succeed Republicans would remove benefits that allow people with disabilities to access health insurance and home health services. Instead of staying in their communities and possibly working, many would be institutionalized. Trump has also proposed in his budget to cut drastically into Social Security Disability Insurance, the only source of income for millions of Americans unable to work.
The bipartisan consensus favoring disability rights represented the best of America’s ideals of equality, opportunity, and fair play. The Republican Party’s turn against disability rights is a rejection of those core American values.
(Samuel R. Bagenstos is the Frank G. Millard Professor of Law at the University of Michigan Law School. From 2009-2011, he led the Department of Justice’s disability rights enforcement as a Deputy Assistant Attorney General for Civil Rights. @sbagen)
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