The Americans with Disabilities Act as welfare reform.

• Author: Bagenstos, Samuel R.

INTRODUCTION

When Congress enacted the Americans with Disabilities Act (ADA) in 1990, disability rights supporters hailed the law as a radical shift in our nation's policy toward people with disabilities. Ten years later, however, the statute's impact--at least in the employment area--seems anything but radical. ADA plaintiffs are among the least successful classes of litigants in the federal courts--with a rate of (non)success that is second in futility only to that of prisoner plaintiffs. (1) Although disability rights advocates have won some important victories in the Supreme Court, (2) both that Court and the lower federal courts have issued a series of decisions that significantly restrict statutory coverage. (3) And perhaps most important, the ADA appears to have had no significant positive effect on the rate of employment of people with disabilities. (4)

Why this gap between radical expectations and disappointing results? Many disability rights advocates and academic defenders of the ADA have a ready explanation: Employers, courts, and the general public are engaged in a "backlash" against the ADA. Unlike the Civil Rights Act of 1964, (5) which was enacted ten years after the Supreme Court's decision in Brown v. Board of Education, (6) and after a series of highly salient events operated to change public consciousness about the civil rights of African Americans, (7) the ADA was enacted before the disability rights movement had a full opportunity to educate the public about the important principles that underlay the new law. (8) As a result, employers and other entities regulated by the ADA have resisted full compliance. And courts, untutored in the basic principles of the disability rights movement, have imposed their own retrograde views of the proper response to disability on a statute that decisively rejects those views.

In his important journalistic history of the disability rights movement, published shortly after the ADA's passage, Joseph Shapiro foreshadowed the "backlash" argument. (9) A recent article by Bonnie Tucker (coeditor of a major casebook (10) and coauthor of a treatise (11) on disability discrimination law) gave the argument clear expression:

The ADA was enacted ahead of its time, in that much of the country is not yet ready to embrace the precepts on which the ADA is premised. And the ADA has not yet succeeded in requiring many people and entities to do what they do not wish to do--for one primary reason: many, perhaps most, courts are not enforcing the law, but instead are finding incredibly inventive means of interpreting the ADA to achieve the opposite result that the Act was intended to achieve. Judges are only people, generally people without disabilities, who are not yet willing to change the rules of society to require themselves or others to act as good Samaritans. Unless a law clearly and emphatically states that people must act as good Samaritans, most judges will not interpret that law to require such action. The ADA appears to waffle on this point, and thus gives the courts sufficient leeway to reject the real principles upon which the Act was founded and to interpret the Act in a manner that is in accord with the courts' own values or beliefs. (12) Tucker is far from alone. In some sense, hers is the most common view of disability rights advocates and academic supporters of the ADA. (13)

In this Article, I challenge that view. I agree that in many cases courts have read the ADA in a restrictive manner--unduly so, from my perspective. But I do not agree with the assertion that the courts, in reaching these restrictive decisions, "have not been receptive to the principles upon which the ADA is premised." (14) Or at least I believe the issue is much more complicated than is typically acknowledged.

When critics of decisions interpreting the ADA speak of "the principles upon which the [statute] is premised," (15) they appear to assume that those principles can be relatively uncontroversially determined. In particular, they appear to assume that the statute is premised on a particular conception of disability and the appropriate societal response to it, a conception that draws on a major strand of the thinking of disability rights advocates. Roughly put, under that conception disability consists of the quantum of disadvantage an individual experiences because of the incompatibility between that individual's actual or perceived physical or mental condition and the societal institutions that control access to an opportunity she desires. The appropriate societal response to disability, in this view, is to rearrange the institutions that control access to opportunities and make them accessible to all individuals who are currently excluded by them. Many of the restrictive decisions of the Supreme Court and lower courts are in fact inconsistent with these principles. (16)

But the claim that those principles constitute the "basic premises" of the ADA is itself exceptionally problematic. While many of the disability rights advocates who assisted in drafting and lobbying for the statute shared the basic commitment to a social model of disability and society's responsibility to alter its institutions to make all opportunities accessible to all, those who urged passage of the statute relied to a significant extent on a distinct argument that rests in some tension with these premises. (17) In official reports, in congressional hearings, on the floor of Congress, and in the popular press, supporters of the proposed ADA argued that the statute was necessary to reduce the high societal cost of dependency--that people with disabilities were drawing public assistance instead of working, and that a regime of "reasonable accommodations" could move people with disabilities off of the public assistance rolls and into the workforce in a way that would ultimately save the nation money. (18) This argument was asserted by individuals with disabilities who urged passage of the ADA, by the bill's major sponsors, and by President George H.W. Bush himself. (19) In short, the ADA was sold to a significant extent as a means of welfare reform. (20)

If the "basic premise" of the ADA is seen as the imperative to reduce the cost of dependency of people with disabilities, then many of the restrictive decisions attacked by ADA supporters begin to make sense. Roughly put, those decisions limit the statute's protections to individuals who would be largely unable to work without them, and they limit required accommodations to those that are necessary to move those individuals into the workforce in a reasonably cost-effective manner. In short, on at least one plausible account of the statute's "basic premises," the restrictive interpretations offered by many courts reflect a vindication rather than a betrayal of those premises.

My point is not to endorse those restrictive decisions. I share disability rights advocates' discomfort with most of them. Rather, I seek to unearth the welfare reform basis for the ADA and demonstrate its fundamental inadequacy as a guide to disability employment policy. To the extent that the ADA has failed to achieve the goals of bringing more people with disabilities into the work force, that failure has as much to do with inherent flaws of the ADA as with judges' refusal to accept the statute's basic premises. (21) While civil rights protections for people with disabilities are essential to serve many purposes, (22) they are not and cannot be the exclusive (or even primary) means of assuring meaningful employment for the maximum number of people with disabilities.

The issue remains an important one because, as I will demonstrate below, disability rights advocates' reliance on welfare reform arguments in lobbying for the ADA was not merely a tactical decision that had some unfortunate effects. Those arguments drew directly on a set of ideas, indigenous to the disability rights movement, that proceed under the label of "independent living." The individualistic, almost libertarian aspects of independent living thinking served a crucial purpose both in obtaining wider public support for the disability rights movement and in creating a disability rights movement in the first place. As the restrictive development of ADA case law makes clear, however, framing disability rights arguments in terms of independent living comes at a cost, for it may provide insufficient justification for the significant government interventions necessary to increase the employment rate of people with disabilities.

My argument proceeds as follows. In Part I, I set forth the disability rights critique of the case law that has developed under the ADA. I focus on three sets of cases: those involving the definition of "disability;" those involving whether individuals who have received public or private disability benefits may be deemed "qualified" individuals; and those holding that employers need not make "reasonable accommodations" to avoid stigmatizing employees with disabilities. After briefly describing the state of the case law in each of these areas, I show how disability rights supporters and academic defenders of the ADA have challenged the courts' decisions as rejecting the basic premises of the ADA.

In Part II, I turn to the welfare reform argument for the ADA. Examining the official reports that preceded the introduction of the original ADA bill, the internal legislative history of the statute as enacted, and contemporaneous news accounts, I show in Part II.A that the imperative of avoiding costly dependency formed an important (though hardly the exclusive) part of the public justification for the statute. In Part II.B, I re-examine the case law considered in Part I in light of that welfare reform justification for the ADA and conclude that it fits the cases quite well.

In Part III, I attempt to trace the connections between the welfare reform argument for the ADA and the goals of the...