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The Disability Pendulum: The First Decade of the Americans With Disabilities Act

Ruth Colker
Copyright Date: 2005
Published by: NYU Press
Pages: 245
https://www.jstor.org/stable/j.ctt9qg501
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  • Book Info
    The Disability Pendulum
    Book Description:

    Signed into law in July 1990, the Americans with Disabilities Act (ADA) became effective two years later, and court decisions about the law began to multiply in the middle of the decade. In The Disability Pendulum, Ruth Colker presents the first legislative history of the enactment of the ADA in Congress and analyzes the first decade of judicial decisions under the act. She assesses the success and failure of the first ten years of litigation under the ADA, focusing on its three major titles: employment, public entities, and public accommodations.The Disability Pendulum argues that despite an initial atmosphere of bipartisan support with the expectation that the ADA would make a significant difference in the lives of individuals with disabilities, judicial decisions have not been consistent with Congress' intentions. The courts have operated like a pendulum, at times swinging to a pro-disabled plaintiff and then back again to a pro-defendant stance. Colker, whose work on the ADA has been cited by the Supreme Court, offers insightful and practical suggestions on where to amend the act to make it more effective in defending disability rights, and also explains judicial hostility toward enforcing the act.

    eISBN: 978-0-8147-9037-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Preface
    (pp. xiii-xvi)
  5. 1 Introduction: High Hope Followed by Public Backlash
    (pp. 1-21)

    In 1988, the enactment of the Americans with Disabilities Act was virtually unthinkable. The president of the United States considered it appropriate to describe a presidential candidate as an “invalid.” Yet, in 1990, the president considered it important to support and sign the Americans with Disabilities Act. No longer could public figures appear to be against the rights of individuals with disabilities. As theNew York Timesaptly commented a year before the ADA’s passage: “No politician can vote against this bill and survive.”² How did the idea of supporting disability rights move from a joking matter to a serious...

  6. 2 The ADA’s Journey through Congress
    (pp. 22-68)

    The ADA is truly landmark legislation for individuals with disabilities because it reflects the first time that the federal government has imposed rules on the private sector that it has generally applied to the publicly financed sector for nearly thirty years. It is the culmination of more than two decades of law-reform efforts by the disability community.

    Nonetheless, the story of the passage of the ADA can reveal two conflicting stories. On the one hand, it is a story of Congress demonstrating a very strong commitment to increasing the rights of individuals with disabilities. When attempts were made to cut...

  7. 3 ADA Title I: An Empirical Investigation
    (pp. 69-95)

    When Congress was considering the ADA, it heard considerable testimony about the poverty rate and unemployment problems of individuals with disabilities. Such persons have been and continue to be one of the poorest groups in society.

    Only 32 percent of people with disabilities are employed full- or part-time compared with 81 percent of individuals without disabilities.¹ Two-thirds of unemployed persons with disabilities report that they would prefer to be working. Twenty-nine percent of people with disabilities are living in poverty (household incomes of $15,000 or less), compared with 10 percent of the nondisabled population. People with disabilities also lag in...

  8. 4 The Face of Judicial Backlash
    (pp. 96-125)

    In chapter 3, we saw that there is empirical evidence to support the claim that the appellate courts have been hostile to ADA claims. Complete and accurate trial court data do not exist; however, it appears that plaintiffs may be faring better before juries than judges. Anecdotal evidence suggests that plaintiffs are facing two major and interrelated hurdles at the trial court level. First, trial court judges are concluding too readily that plaintiffs do not meet the statutory definition of “disability.” Second, trial court judges are too eager to grant defendants’ motions for summary judgment, thereby resolving cases at a...

  9. 5 ADA Title II: The Supreme Court, The Courts of Appeals, and the States: A Swinging Pendulum
    (pp. 126-165)

    Although the employment title of the ADA has received the most attention in the media and the courts, ADA Title II is of equal importance to individuals with disabilities. With the unemployment rate for individuals with disabilities hovering around 70 percent, many of these individuals are dependent upon state programs and services for their very survival. ADA Title II directly prohibits discrimination on the basis of disability by the state and local government and provides for a broad array of relief, including retrospective damages.

    It should assist individuals like L.C. and E.W., women with mental retardation. L.C. has also been...

  10. 6 ADA Title III: A Fragile Compromise
    (pp. 166-200)

    Unlike ADA Titles I and II, the judiciary’s interpretation of ADA Title III has not been the title’s most significant impediment to an effective enforcement scheme. Instead, the primary problem with ADA Title III has been the enforcement scheme set up by Congress in 1990 when the ADA was adopted. The enforcement scheme—which limits relief to injunctive relief—provides little incentive for plaintiffs and their lawyers to seek legal remedies. Hence, the success of ADA Title III has largely been through voluntary compliance rather than court-ordered relief.

    In two landmark cases,Bragdon v. Abbott, 524 U.S. 624 (1998) and...

  11. 7 Dissing Congress
    (pp. 201-212)

    The Supreme Court’s disparate decisions in the constitutional law and statutory contexts demonstrate that the problem with ADA enforcement lies with the Supreme Court, not Congress. Justice Sandra Day O’Connor was wrong to blame Congress for rushing through a hastily drafted statute. The problem, unfortunately, lies in the Rehnquist Court’s twin decisions to invalidate parts of the ADA on constitutional law grounds (Garrett)¹ while also interpreting the statute narrowly in an entirely ahistorical framework (Sutton).²

    By looking closely at the conflicting methodologies employed by the Court in these constitutional law and statutory interpretation cases, we can see the lengths to...

  12. Notes
    (pp. 213-236)
  13. Index
    (pp. 237-244)
  14. About the Author
    (pp. 245-245)