by Mitch Pomerantz
As most of you know, in 2007 Sen. Tom Harkin (D-Iowa) and Rep. Steny Hoyer (D-Md.) introduced the ADA Restoration Act, S. 1881 and H.R. 3195, respectively. It is becoming increasingly apparent that for a variety of reasons, this legislation will not reach the floor of either House for a vote during this session of Congress. Even so, I'd like to offer some perspective, both as a professional working in the "ADA biz" and as ACB's president, regarding the proposed legislation and ACB's input and role in the process.
For nearly 13 years I've been the ADA Compliance Officer for the City of Los Angeles. My job is to ensure that all programs, activities, and services offered by the approximately 40 city departments are accessible to individuals with disabilities. I also manage a fund which pays for job- related accommodations for employees with disabilities. Hence, I have responsibilities under both Title I, Employment, and Title II, Public Services of the ADA. So, when the ADA Restoration Act was introduced, I was personally and professionally interested in and concerned about the outcome.
When the ADA was initially conceived in the late 1980s, most advocates truly expected that the primary beneficiaries would be people with severe disabilities, including those who were blind and visually impaired. Nonetheless, it was drafted to encompass the broadest range of disabilities and medical conditions possible. The idea was to be totally inclusive, thereby covering the greatest number of such people while reducing the likelihood of opposition from an otherwise excluded disability category. Despite some criticism of this approach -- notably from the late Evan Kemp, former chairman of the Equal Employment Opportunity Commission under George H.W. Bush -- the ADA became law in 1990.
Jump forward to the late 1990s and early 2000s, when Title I underwent a serious narrowing in scope as a result of several well-documented Supreme Court decisions. What the disability community was left with is a far less inclusive and effective statute. Among other things, someone taking insulin for diabetes might not be considered to have a disability under the ADA because the use of insulin mitigates or limits the symptoms of the diabetes. It's no real stretch to imagine a court deciding that someone using screen- reading software to mitigate blindness isn't truly disabled.
The ADA Restoration Act is a response and a reaction to what has happened in the courts over the past decade. Despite the foregoing, many people (myself included) questioned the timing of its introduction for two important reasons: first, because of a far less sympathetic Congress than 20 years ago; and second, due to increased opposition from the business community. The danger is that by opening the ADA to amendment, those who would further weaken it could introduce their own amendments as easily as those wishing to strengthen it.
During a teleconference meeting last August, the board of directors voted that ACB should support passage of the ADA Restoration Act, but also agreed that efforts should be made to include language in Title III, Public Accommodations, regarding enhanced web site accessibility. (Recall that at the time the ADA became law there was no Internet, at least insofar as general usage was concerned.) The board felt ACB must be "at the table" in order to represent our interests, but also felt that since the ADA was being reopened anyway, an effort should be made specifically to benefit blind people.
To date, there have been two Congressional hearings -- one on each side of the Hill -- at which the number of witnesses was limited, and written testimony was not accepted. As a result, ACB has not been given an opportunity to provide input on either the proposed legislation itself or any possible amendment to Title III. At this writing, therefore, it appears highly unlikely that ACB will succeed in having a web site accessibility amendment included in this session's version of the ADA Restoration Act. As mentioned earlier, it probably doesn't matter since it's almost certain that it won't come up for a vote.
So, where do we go from here? How should the American Council of the Blind approach the reintroduction of the ADARA next year? Regardless of what happens in the November election, ACB must advocate for an amendment to Title III requiring all web sites to be fully accessible to blind and visually impaired people. This is even more critical since the Office of Management and Budget recently rejected the Justice Department's effort to impose this requirement via regulations.
And, if such an amendment is not accepted, what then? Let me make it absolutely clear that I would never suggest ACB oppose the ADA Restoration Act. I would contend, however, that we consider not actively supporting it without such amendment. The political process works on the basis of quid pro quo; if you do something for me, then I will do something for you. Hence, while ACB should not oppose the ADARA, neither should we rush to advocate for its passage. My personal hope is that next year's ADA Restoration Act will contain the language ACB wants and that a far more supportive Congress will enact it.