House Bill Is Inexcusable Affront to Americans with Disabilities

It is no secret that Donald Trump has contempt for Americans with disabilities.

Trump famously mocked a reporter with a disability. His Education Secretary, Betsy DeVos, made clear at her confirmation hearing that she did not understand the Individuals with Disabilities Act (IDEA). As a senator, Trump’s Attorney General, Jeff Sessions, attacked the IDEA, blaming the law for the “decline in civility and discipline in classrooms all over America.” When he became Attorney General Sessions promptly dropped the Justice Department’s appeal of a key disability rights lawsuit. He also filed a brief that would severely limit the protections of the Americans with Disabilities Act (ADA) by narrowing the meaning of “public accommodation;” and he rescinded 10 guidance regulations on disability rights, one of which had “codified the labor rights of disabled people as they move from sheltered workshops paying sub-minimum wage[s] into the integrated economy.”

Moreover, Trump nominated to the Supreme Court Neil Gorsuch, who as a lower court judge held that a student with autism was only entitled to an education that was “merely [] ‘more than de minimis[,]’” a standard so flawed that it was unanimously rejected by the Supreme Court. Gorsuch also held that a professor recovering from cancer had no recourse under federal disability rights laws when the university did not accommodate her request for leave, despite her doctor advising that if she returned to teach in the midst of a flu epidemic she could die.

With this history, it is no surprise that President Trump and Republicans have now set their sights on the Americans with Disabilities Act. On September 7, 2017, the House Judiciary Committee reported to the full House H.R. 620, the ADA Education and Reform Act, and the full House is set to vote on it soon. That legislation, if enacted into law, would severely weaken the rights of persons with disabilities.

The ADA is one of our nation’s landmark pieces of legislation. Among other things, the Act requires businesses to remove architectural barriers that impede access for persons with disabilities. The Act recognizes that people who use wheelchairs or who have other needs have the same right to engage in daily activities, participate in society, and visit local businesses as any other individual.

Unfortunately, businesses have resisted making these changes and, if enacted, H.R. 620 would make it easier for businesses not to comply with the law. If the bill becomes law, even though the ADA is 27 years old, a business would no longer be expected to proactively comply with the law.

Instead, after an individual with a disability is denied access, the burden would be on the person with the disability to notify the business owner, with exacting specificity, that her civil rights were violated. She would then have to wait as long as two months for the business to acknowledge the issue, and then wait up to another six months for the business to make “substantial progress” toward access. (In other words, the business does not even need to remove the architectural barrier to access. It only needs to make “substantial progress,” with no timeline to actually eliminate the barrier). Only then –as much as eight months later – could an individual go to court to enforce her rights and ask the court to order compliance. Business owners could spend years out of compliance and face no penalty, even after they receive notice, so long as the owners claim “substantial progress.”

In other words, while the ADA would still ostensibly outlaw discrimination, businesses would be able to discriminate with impunity until a victim experiences that discrimination, educates the entities perpetrating it about their obligations under the law, and waits months until they are able to go to court to enforce the law. H.R. 260 simply sends the message to business owners that they are relieved of their duty to comply with a law that has been in effect for nearly 30 years.

These extensive requirements and wait times make it easy to see why the ACLU describes the Act as a “boon for businesses at the expense of people with disabilities.” It shifts the burden of ADA compliance from requiring businesses to proactively provide accommodation, and onto the shoulders of people with disabilities who, if this bill becomes law, will have no practical recourse when they are barred from public places.

As hundreds of disabled citizens’ groups and allies wrote in opposition to the bill:

We know of no other law that outlaws discrimination but permits entities to discriminate with impunity until victims experience that discrimination and educate the entities perpetrating it about their obligations not to discriminate…. If, after 27 years, a business has continued to not comply with the requirements of [the ADA], why should a person have to wait more time for enforcement of their civil rights?

Those of us in the justice community also strongly oppose the legislation. Access to courts is critical to the enforcement of our nation’s most critical laws, including the ADA. The credible threat of a lawsuit is a powerful inducement for businesses to proactively comply with the Act’s requirements.

Republicans say this bill is for an education program on how to accommodate people with disabilities. But the history of the Trump Administration’s attitude toward critical rights and protections for persons with disabilities – including the spectacle of the President himself openly mocking a reporter with disabilities – belies that purported purpose. Make no mistake, the ADA Education and Reform Act is about weakening the rights of access that have been guaranteed to Americans with disabilities. The bill now pending before the House is exactly as Senator Tammy Duckworth described it: “a disgraceful message to Americans with disabilities that their civil rights are not worthy of strong enforcement.” Businesses have had 27 years to comply with the ADA’s public-access protections. Taking away enforcement mechanisms for those protections undercuts the values that spurred the ADA’s passage: No one’s right to access public accommodations should be infringed upon.