From: Julie Dawson 
Subject: Equality of Opportunity -- HISTORY.TXT  (fwd)
Management and Budget (OMB) supplied DREDF with extra ammunition:
a leak of OMB s proposed changes.  OMB s proposals included a
provision that would allow federal grant recipients, in certain
cases, to weigh the cost of an accommodation against the  social
value  of the person involved.   This was a cost-benefit analysis
of how human you are,  said Funk.  DREDF worked with such
organizations as NCIL and ARC to help mobi lize disability groups
all over the country to protest by writing letters.  For NCIL,
which was founded that year, this was one of the first
opportunities to join other organizations in national advocacy
efforts.  In Washington, Wright and Funk met extensively with
Gray to discuss the details and ramifications of changing the
regulations.  They were joined by Kemp, who brought a trump card
to the table: himself.  For over a decade, Gray and Kemp had been
bridge partners and had become close friends.  Kemp built on this
relationship to persuade Gray against permitting damaging
alterations to Section 504 and P.L. 94-142.  Gray consequently
became a mediating force between those rewriting the regulations
and the disability lobbyists. 
     The controversy intensified later in the fall when the Task
Force began consideration of the education provisions.  Parents
of persons with disabilities were outraged and united with other
disability advocates to resist President Reagan s actions. 
Persons in the disability community organized a nationwide,
grassroots letter-writing campaign and flooded the White House
with letters  over 40,000 by 1983.  As part of the review
process, Gray held hearings throughout the country. Thousands of
persons and parents of persons with disabilities attended to
demonstrate their opposi tion.  They presented testimony
explaining the harm that would be caused by changing the regula
tions.  One two-inch-tall Los Angeles headline declared:  Parents
of Disabled Children Boo Reagan Proposals.   Congress joined
these efforts by sending a letter signed by majorities in both
chambers urging the president to support the full funding of P.L.
94-142.  House Minority Leader Robert H. Michel helped arrange a
meeting between Sally Hoerr, president of the Illinois Alliance
for Exceptional Children and Adults, and Chief of Staff James A.
Baker, III, to enable Hoerr to articulate her opposition. 
     By January, 1983, Gray had a final draft of the proposed
revisions in his hands, but Kemp and Wright pleaded with Gray not
to make the changes.  Two months later, in part because of Gray s
influence, Bradford Reynolds, Assistant Attorney General for
Civil Rights, finally agreed to abandon the regulatory efforts. 
And on March 21, Vice President Bush wrote a letter to Kemp
informing him that Section 504 and P.L. 94-142 would be left
untouched.  Bush explained that conversations with members of
Congress and with the disability community made him understand
the negative impact such changes would have.  Especially helpful,
Bush said, were the comments of persons with disabilities and
their families.  Your commitment to equal opportunity for
disabled citizens to achieve their full potential as independent,
productive citizens is fully shared by this Administration,  he
told Kemp.
     This was a huge victory, a big defensive stop.  And it was
important not simply for the content of the regulations.  What
had started out as a threat to roll back years of gains served to
unite the disability community.  For the first time persons and
parents of persons with disabilities and scores of different
organizations joined together for a common cause, to defend
disability rights.  It showed the disability community that there
was a reason to write in all those responses to alerts,  Mayerson
said,  and it showed the Administration that there was a
political element here as well as a legal righteousness in the
cause.   Gray concurred:  One of the things I found is [that] the
disability community . . . wanted to be treated as a potent
political force just like any other force. [It] was part of the
empowerment.   
     This two-year process was also crucial for the relationships
it fostered.  Wright, Funk, and Kemp were now close allies. 
During the ADA deliberations, Funk and Kemp would be working The
activities of the disability community in the 1980s may largely
be viewed as a defensive effort to sustain the gains of the
1970s.  within the administration instead of lobbying it from the
outside respectively as a White House negotiator and Chairman of
the Equal Employment Opportunity Commission (EEOC).  They would
be important links for the disability community.  Moreover,
through the efforts of Wright, Funk, Kemp, Mayerson, and
thousands of Americans, Gray and Vice President Bush had earned a
valuable education that would prove indispensable dur ing the
deliberations over the ADA.  Gray marveled at how Bush
 intuitively grasped  disability issues.  Gray and Bush also
became genuinely interested in disability issues.  Bush, for
example, began asking Kemp to write his speeches when he spoke
before disability groups, which enabled him to develop
relationships with others in the disability community. 
                    Building a Winning Record
     Washington likes winners.  Throughout the 1980s, the
disability community recorded an impressive string of judicial
and legislative victories that helped build the disability
movement s credibility in Washington.  (See Appendix B for a
chronology and descriptions of legislative, judicial, and
political events preceding the ADA.)  In the process, crucial
networks continued to develop.  The DREDF-arranged San Francisco
conference of 1980 laid the foundation for forming an alliance
with the civil rights community.  Neas reports meeting with
Wright and Mayerson at the conference and notes one occasion in
which Wright emphasized that it was extremely important to be
victorious in the first civil rights battle for people with
disabilities.  They therefore decided to tackle something
comparatively small: the issue of voting accessibility.  The goal
was to ensure that the principle of the 1965 Voting Rights Act,
equal access to voting, encompassed persons with physical
impairments.  Wright and Neas and others achieved this goal with
the passage of the Voting Accessibility for the Elderly and
Handicapped Act of 1984.  Neas explains that this victory was
absolutely crucial:  If we had not won on the Voting Rights
extension, . . . I don t think we would have won any civil rights
bills after.   Indeed, many more difficult challenges lay ahead,
and that victory was an important foundation for facing them. 
     The activities of the disability community in the 1980s may
largely be viewed as a defensive effort to sustain the gains of
the 1970s.  In addition to the deregulation efforts of the Reagan
administration, the disability community also faced a Supreme
Court that did not enforce the disability rights that had been
attained and threatened to overturn established provisions.  In
fact, the preponderance of legal activity within the disability
community during the 1980s related to the Supreme Court and its
rulings.  Things did not start out well.  In a 1979 Supreme Court
ruling in Southeastern Community College v. Davis, the Court
questioned the viability of the regulations developed to
implement Section 504.  The case addressed a nursing school s
responsibility to accommodate the needs of a hearing-impaired
applicant.  The Court s conclusion that such accom modations were
not required by the school was a significant defeat for the
disability community. 
     Discrimination cannot be justified by ignorance.The Supreme
Court did not take on another Section 504 case for five years,
but in 1984 the results were much more encouraging.  In
Consolidated Rail Corporation v. Darrone, the Court affirmed that
the Section 504 regulations did indeed apply to employment
discrimination.  DREDF had taken the lead in arguing the case for
the disability community and was pleased to see its efforts pay
off: the Court established that courts must give considerable
deference to the 504 regulations.  This decision reflected the
results of a Pennsylvania District Court case, Nelson v.
Thornburgh, which ruled that the state s Department of Public
Welfare was obligated to absorb the costs of readers or
electronic devices for visually- impaired employees, because the
cost did not constitute an  undue hardship. 
     The Supreme Court s decisions, however, were not all
positive for the disability community in the 1980s.  From 1984 to
1986, the Supreme Court handed down six cases with, at best,
mixed results.  In the 1985 decision Alexander v. Choate, the
Court ruled against a group of Medicaid claimants, alleging the
state violated Section 504 by reducing the number of days
Medicaid covered for inpatient hospitalization.  They argued the
policy had a disparate impact on persons with disabilities and
that the policy should therefore be prohibited.  Although the
Court decided against the plaintiffs by affirming the policy, it
made an important ruling on the nature of disability.  The Court
stressed that disability discrimination came most often not in
the form of direct, conscious discrimination, but rather by
unconscious neglect: curbs without ramps for wheelchairs, for
example.  Laws directed against disability discrimination
therefore had to target discriminatory practices deeply embedded
in society. 
     Also in 1985, in City of Cleburne, Texas v. Cleburne Living
Center, the Court considered whether a state zoning agency could
exclude a group home for persons with developmental disabilities. 
The Court rejected an argument that persons with disabilities
should be treated as a  quasi-suspect  class, which would warrant
heightened judicial scrutiny for policies treating a group as a
class.  But it did establish an important principle by ruling
that the exclusion was unconstitu tional.  The Court decided that
the group home did not pose any  special threat  to the city s
 legitimate interests.   Rather, the exclusion was based on
 irrational prejudice.   Discrimination against persons with
disabilities, in other words, could not be justified by
ignorance.
     The four remaining cases prompted the disability community
to solicit Congress to pass legislation devoted to overturning
the Supreme Court s rulings.  In 1986 alone, Congress passed
three acts to reverse Supreme Court decisions.  The Handicapped
Children s Protection Act reversed the 1984 ruling Smith v.
Robinson by ensuring that parents had the right to reasonable
attorneys  fees when successful in litigation.  The Civil Rights
and Remedies Equalization Act overturned Atascadero State
Hospital v. Scanlon by establishing that states may not be immune
from alleged Section 504 violations filed in federal court.  And
the Air Carriers Access Act overturned U.S. Department of
Transportation v. Paralyzed Veterans of America by requiring that
commercial airlines be subject to the accessibility standards of
Section 504, regardless of whether they received federal
assistance.  Through these cases, the disability community
attained a new level of legal sophistication.  It also developed
important connections.  For the Handicapped Children s Protec
tion Act, for example, Wright and Mayerson worked extensively
with Robert Silverstein, who later helped orchestrate the ADA
deliberations in the Senate.
     The most significant Supreme Court decision was the 1984
ruling in Grove City College v. Bell.  This case concerned Title
IX of the Education Amendments Act, which prohibited
discrimination on the basis of sex in all programs receiving
federal assistance.  Although the Court sustained the principle
of nondiscrimination, it ruled that the Title IX sanction of
cutting off federal funds would be applied only to the particular
program in question and not the entire institution.  This
decision had a profound impact on the entire civil rights
community.  Since the language prohibiting discrimination on the
basis of sex in federally assisted programs or activities was
identical to that for discrimination on the basis of race, age,
and disability, it affected all groups equally.  Consequently,
overturning this decision and returning the civil rights statutes
to their previous interpreta tion became the top priority for
LCCR and the civil rights community. 
     This gave the disability community a perfect opportunity to
work side-by-side with other civil rights groups as equal members
and partners.  It took three years for them to see their
objective met in the Civil Rights Restoration Act, which had to
be passed over President Reagan s veto. Mayerson, the chief
attorney for the disability community, explained the significance
of this act:  Not only could [the civil rights community] see
that we could again do the work as well as they could and do the
legal analysis as well as they could, but we were also actually
able to open a few doors that weren t traditionally open in the
civil rights community.   Wright and Mayerson could build on the
contacts they had made in their own disability-specific work and
bring them to bear on the civil rights community s endeavors. 
Moreover, as Neas explained,  those four years enabled about
thirty or forty people to get to know one another really well,
and we went to hell and back [on] a legislative roller coaster
ride.   Those experiences, while trying, made for meaningful
relationships and developed the trust necessary for effective
collaboration.
     Two further victories are important to understanding the
ADA s future success.  The first is another Supreme Court case,
the 1987 decision in School Board of Nassau County, Florida v.
Arline.  In this case a school board fired a teacher exclusively
because she was found to be susceptible to tuberculosis.  Her
attorneys tried to gain her protection under Section 504 as a
handicapped person.  The Court obliged them, ruling that a person
with a contagious disease may be deemed a  handicapped person.  
Such a decision, however, had to be based on an individual basis
to determine whether an individual could do a job with or without
a reasonable accommoda tion and if there were scientific evidence
that the person posed a substantial health risk to others. This
was a significant victory for the disability community because it
made a powerful statement against  fearful, reflexive reactions 
to people and confirmed that the discrimination faced by persons
with disabilities is often based on fear and misapprehension, not
on reality.
     The history of the ADA began  in cities and towns throughout
the United States when persons with disabilities began to
challenge societal barriers. 
          Arlene Mayerson     A final major victory for the
disability community in the 1980s came with the Fair Housing
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