From: Julie Dawson 
Subject: Equality of Opportunity -- HISTORY.TXT  (fwd)
incorporate an additional  class  of people, while improved with
the change in administration, re mained uncertain at best.
     Sponsoring the ADA and risking failure could potentially
jeopardize Senator Harkin s political career.  Although Robert
Silverstein, Staff Director and Chief Counsel for the
Subcommittee on the Handicapped, cautioned him about the
pitfalls, Harkin accepted the challenge.   I didn t get elected
to get re-elected,  he told Silverstein.   My brother is deaf.  I
understand discrimination.  I understand what it means and what
this country can look like in thirty years.  We are doing this
legislation. 
           Master Strategy and the Retooling of the ADA
     Senator Harkin took the lead in preparing the ADA for
reintroduction.  Success depended on developing a solid strategy
for maneuvering the bill through the treacherous terrain of
Congress.  It also required attaining the complete backing of the
disability community.  Harkin s first step was to establish an
effective relationship with Senator Edward M. Kennedy (D-MA) and
Carolyn Senator Kennedy brought the experience of decades of
civil rights leadership in addition to his stature as a  heavy
hitter  senator with seniority.Osolinik and Michael Iskowitz from
Kennedy s committee staff.  This was important because a bill
successfully voted out of Harkin s Subcommittee on the Hand
icapped would have to clear Kennedy s Committee on Labor and
Human Resources.  Coordination of all leg islative activities
with Kennedy could improve the possibility of a smooth and quick
transition to the Sen ate floor.  The disability community was
also courting the support of Kennedy.  They hoped his stature as
a  heavy hitter  senator with seniority could match the standing
of Senator Weicker and augment the efforts of Harkin.  Kennedy
brought the experience of decades of civil rights leadership. 
Osolinik, whom Pat Wright described as  one of few people who
really saw disability as a civil rights issue,  directed civil
rights issues in Kennedy s office.   Moreover, Kennedy had
personal experiences with disability through his son who lost a
leg to cancer and a sister with a developmental disability.
Kennedy s support, however, depended on making significant
changes to the ADA.
     Senators Harkin and Kennedy concluded that the bill
introduced in 1988 was too ambitious and stood little chance for
passage.  Therefore, they decided to rewrite the ADA.  In
accordance with the objectives of the disability community, the
senators  primary goal was to achieve the best possible civil
rights coverage for persons with disabilities.  Toward this end,
they and their staffs, in consultation with leaders from the
disability community, developed a four-pronged legislative
strategy. 
     First, Senators Kennedy and Harkin made a commitment to
achieving bipartisanship.  They believed that the ultimate goal
of legislation must not simply be to pass a bill, but rather to
make an enforceable law.  For the bill to be taken seriously, it
needed to be widely supported by the business community as well
as the disability community, Republicans and Democrats, the
Senate and the House, and the Bush administration.  Second,
Senators Harkin and Kennedy wanted to craft a bill that could
withstand the strict scrutiny of Congress.  Rather than introduce
a bill with aggressive provisions and rely on subsequent
negotiations, which ran the risk of permanently labeling the bill
 extreme,  they hoped to hold extensive discussions and reach
important compromises before they even introduced the bill. 
     While the ADA s complete effect would not be immediately
apparent, the American landscape would be transformed for
subsequent generations.The third and fourth strategic commitments
followed logically: modesty and parity.  The original ADA applied
rigorous and rigid standards of accessibility that would be
implemented immediately.  Senators Kennedy and Harkin instead
promoted accessibility at some point in time, and varied
provisions according to specific circum stances.  While the
bill s complete effect would not be apparent immediately
following its enactment, the American landscape would be
transformed for subsequent generations.  Finally, in crafting the
actual lan guage of the bill, Silverstein and Osolinik worked
with the disability community to build the ADA securely on the
foundation of earlier legislation especially on the Civil Rights
Act, Section 504 of the Rehabilitation Act, and the Fair Housing
Amendments Act (See Appendix B).  Proponents could therefore
argue that the bill was an application of tested principles, not
a new creation.
     With this strategy in place, Osolinik and Silverstein began
1989 by reviewing the bill line by line.  Redrafting the ADA was
not, however, a solitary endeavor.  After developing their own
preliminary ideas about what provisions should constitute a new
bill, Silverstein and Osolinik turned to others to identify
interests in and reservations about the bill, including the
disability community, all  covered entities,  the Bush
administration, and members of Congress and their staffs.  The
principal House contacts were Congressman Tony Coelho (D-CA) and
Rochelle Dornatt from his staff.  Especially helpful from the
business community was Nancy Reed Fulco of the U.S. Chamber of
Commerce.  Osolinik and Silverstein worked most closely, however,
with a group of representa tives from the disability community. 
In addition to the general guidance provided by Pat Wright, Ralph
Neas, Liz Savage, and Paul Marchand, Silverstein and Osolinik
received technical expertise from attorneys Arlene Mayerson, Chai
Feldblum, Robert Burgdorf, Jim Weisman, and others according to
specialties.  By retooling the bill in close cooperation with
this group, Osolinik and Silverstein hoped to earn the backing of
the disability community.  Then they could present a united front
as the bill went through Congress.
     From January to March, 1989, Silverstein and Osolinik
produced scores of different drafts of the ADA.  By March 15 they
completed a draft (S. 933), which they circulated privately to
represen tatives of the disability community, the Bush
administration, and several members of Congress.  The bill
duplicated the findings and purpose of the original bill (S.
2345) crafted by NCD (see 2 in Appendix H).  It also covered
the same main areas, with the exception of housing (which had
been addressed by the Fair Housing Amendments Act).  S. 933 even
incorporated some language of S. 2345 verbatim.  But there were
marked distinctions. 
     The new bill, S. 933, demonstrated the commitment to modesty
and flexibility in standards by tailoring definitions,
provisions, and enforcement to four main titles Employment,
Public Services, Public Accommodations, and Telecommunications. 
The dedication to legal precedent was also clear.  S. 933, for
example, incorporated more than five times as many references to
earlier statutes.  There was also a difference in tone.  Whereas
the original bill, S. 2345, emphasized discriminatory practices
that should not be tolerated for example, providing unequal
services S. 933 spelled out positive, proactive steps that must
be taken to meet nondiscriminatory standards. Several major
revisions are worth noting.
     One of the most contested aspects of the ADA was the
definition of disability (see Appendix F).  People asked: Who
would be protected by the ADA?  It was a difficult question
because one cannot readily identify disability with the same
precision that one can identify, for example, race and gender. 
It would also be impractical to name, in a statute, each and
every type of disability.  This would be cumbersome, if not
impossible, and require constant adjustment for future, unknown
impairments.  The challenge, therefore, was to find a definition
that was at once inclusive enough to cover diverse disabilities,
but not so universal that anyone could claim protec tion by the
ADA.  Under the original bill, S. 2345, a disability was defined
as  a physical or mental impairment, perceived impairment, or a
record of impairment.   This definition was similar to the
three-pronged definition implemented under Section 504, except
that it did not limit the first prong to impairments that
 substantially limit  major life activities. This meant that
anyone with  any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss  or  any mental or
psychological disorder  was covered.  Osolinik and Silverstein
instead used the Section 504 standard and restricted the first
prong to  a physical or mental impairment that substantially
limits one or more of the major life activities  such as seeing,
walking, self-care, and learning.  This meant that a physical
impairment such as an infected finger would not constitute a
disability. 
     The most controversial issue in the redrafting stage was the
cost and burden imposed upon covered entities.  Legislative
endeavors of the 1980s successfully established that, in the area
of disability civil rights, equal treatment was not enough. The
goal had to be equal opportunity.  That required modifying
policies, providing services, and breaking down barriers:
 reasonable accommodations  (see Appendix F).  In other words, it
was not enough simply to leave the door open, the door also had
to be widened.  And this meant that civil rights for persons with
disabilities could cost money.  But at what point does providing
 equal opportunity  become an  unreasonable  burden?
     Under S. 2345, the only defensible limits to providing
accommodations were actions that  would fundamentally alter the
essential nature, or threaten the existence of, the program,
activity, business, or facility in question.   Although Burgdorf
wrote the provision to assure that compliance would not mean
shutting down a business, it came to be known pejoratively as the
 bankruptcy  provision: interpreted to mean that a business would
have to go to the brink of bankruptcy before it could defend
against charges of discrimination.  S. 933, on the other hand,
followed Section 504 in using  undue hardship  (see Appendix F)
as the standard for determining whether employment accommodations
were  reasonable.   Undue hardship meant  an action that is
unduly costly, extensive, substantial, disruptive, or that will
fundamentally alter the nature of the program.   It was not a
fixed concept, but rather varied on a case-by-case basis,
according to such factors as the size of the business, the type
of operation, and the nature and cost of the accommoda tion. 
     Concern for cost shaped the new approach to barrier removal. 
S. 2345 required the retrofit ting of all public transportation
vehicles and facilities to make them accessible.  S. 933, on the
other hand, varied its demands according to whether vehicles and
facilities were newly constructed or already in operation.  The
general principle was that all new vehicles and transportation
facilities would have to be  readily accessible to and usable by
individuals with disabilities  (see Appendix F).  For used
vehicles, transportation operators had to make  good faith
efforts  to find accessible vehicles.  If a company
remanufactured a vehicle to extend its life for at least five
years, it had to be made readily accessible to  the maximum
extent feasible.   With regard to existing facilities, S. 933
required only that certain  key stations  had to be retrofitted
for accessibility.
     The approach in S. 933 to barrier removal in public
accommodations paralleled the transpor tation provisions.  The
original bill, S. 2345, required that nearly every place of
public accommoda tion had to remove all barriers within five
years.  This provision earned S. 2345 the nickname of the  flat
earth  bill.  Drafters of S. 933, however, dispensed with the
idea of wholesale retrofitting. Instead they required that all
new construction be accessible.  Nevertheless, they did not want
to leave existing structures untouched.  Consequently, drafters
created a new legal term. S. 933 required that businesses make
changes to existing structures where accessibility was  readily
achievable  (see Appendix F), which was eventually defined to
mean  easily accomplishable and able to be carried out without
much difficulty or expense.   The goal was to create a mind-set
of accessibility, to encourage people to look for creative ways
to make the world more accessible.  Readily achievable 
modifications might include installing grab bars, ramping a few
steps, lowering telephones, adding raised letter and braille
markings on elevator controls, and adding flashing alarm lights.
     S. 933 also required that where structural changes were not
readily achievable, covered entities had to make their services
available through alternative methods: for example, coming to the
doorway of a Laundromat to pick up laundry when a person could
not get inside.  Moreover, the bill required the provision of
 auxiliary aids and services  (see Appendix F) to persons with
disabilities: for example, reading a menu to persons with visual
impairments so that they could fully enjoy the benefits of places
of public accommodation.
     The version of the ADA crafted by Senators Harkin and
Kennedy did not only limit initial provisions.  In one
significant area they significantly expanded the scope of the
original bill.  Under S. 2345, only those public accommodations
(see Appendix F) covered under the Civil Rights Act of 1964 had
to be accessible.  This principally meant places of lodging,
eating, and entertainment. Service establishments such as
doctors  offices, retail stores, and private clubs, were not
included. S. 933, by contrast, defined within its scope virtually
every privately-operated establishment that was used by the
general public and affected commerce.  This included places of
lodging, office buildings, parks, recreation facilities,
theaters, retail stores, medical facilities, and restaurants.
Although this apparently broke the commitment to parity with the
Civil Rights Act, advocates argued that it was consistent in
spirit: just as the Civil Rights Act addressed the universe where
race discrimination was an issue, the ADA covered the broader
universe where disability discrimination was relevant.
     The new draft of the ADA also took steps to define the
original ADA s prohibition of discrimination in  broadcasts,
communications, or telecommunications.   S. 933 required that
communications providers implement telecommunication relay
services.  A relay service enabled an individual using a
Telecommunication Device for the Deaf (TDD) a machine that
transmits typed data over telephone lines to communicate with
someone without such a device, through an operator who would
translate text to voice, and voice to text.
     Another significant change from S. 2345 concerned legal
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