Nov 1 2000

A Right, Not a Favor

Coverage of Disability Act misses historical shift

Despite some limitations, the 10-year-old Americans with Disabilities Act (ADA) is an historic call for an end to barriers facing this country’s 50 million disabled people in nearly every arena of life. But major news outlets present the ADA as mainly a regulatory issue affecting private businesses, rather than a human rights issue facing society as a whole.

There are articles celebrating advances like curb cuts and wheelchair-accessible buildings. But the Act’s “costs” to business are a constant in news coverage, along with a pronounced subcurrent of concerns about purported “abuse” of the law and out-of-control litigiousness:

Driving up insurance costs, mandating insane projects like wheelchair ramps in mountaintop lodges, and fostering an industry of “civil rights” lawyers, the ADA is a monument to the regulatory state.

True, that’s the right-wing National Review (8/28/00). But that basic argument echoes throughout much mainstream reporting, in which beleaguered businesses play the central victim role. In “The Other Side of the Disabled-Rights Law,” Chicago Tribune columnist and editorial board member Steve Chapman (7/30/00) frets that the ADA “forces [employers] to provide handicapped workers with the accommodations they need to do a job–and it sets no dollar limit on the obligation…. Just installing a ramp for a wheelchair can run as high as $10,000.”

Actually, the ADA’s call for “reasonable accommodation” is not forceful, but vague and variously interpreted; and it includes an “undue hardship” clause, meaning companies can declare their exemption if accommodation would cause them “significant difficulty or expense.” But even if it does cost employers’ something, making it possible for disabled people to hold jobs has its own value, right? Chapman is tentative: “Are all the costs and consequences of the ADA worth the undisputed improvements it has made in the lives of the disabled? Maybe so.”

Shakedown racket

In “Loophole Lets Lawyers Sue over Dubious Problems,” a USA Today editorial (3/3/00) profiled the Batelaan family of Lake Worth, Florida, who were sued for a lack of reserved handicapped parking spaces–even though their business sells wheelchairs. Presenting the irony of the charges as proof of their absurdity, USA Today explains that the Batelaans were simply victims of a “blizzard” of such lawsuits, spurred by lawyers “taking advantage” of the fact that some local governments issue building permits that violate the ADA, which leaves businesses (not the disabled) “vulnerable.” It’s a “legal money mill,” the paper says, stopping shy of holding local governments themselves responsible for their policies, or of exploring why business owners should be permitted to claim ignorance of a 10-year-old law.

Funnily enough, the same Batelaans of Lake Worth, Florida showed up the same day in another attack on the ADA, on ABC’s 20/20 (3/3/00), where John Stossel predictably made the Act the target of his libertarian spleen. The segment was introduced by Barbara Walters: “What do you get when you mix a well-intentioned law with a well-paid lawyer? Well, you get an endless string of lawsuits and another reason for John to say, Give Me a Break!”

Stossel doesn’t speak to any disability rights advocates or even government officials, who might have noted that the ADA came with little funding for enforcement, so that lawsuits are the only way of enforcing the Act against companies that have not moved to comply on their own. Nor did viewers learn that just a tiny fraction of complaints filed ever make it to court, and businesses win the vast majority of those that do (92 percent, according to the American Bar Association). Stossel ends by grilling a lawyer on why, if disabled people want access to a business or accommodation that bars them, they don’t “just ask.” That, Stossel says, “would be the decent thing to do if you weren’t just looking to run a shakedown racket.”

Clint Eastwood agrees that 10 years after enactment of a law mandating access, it’s up to the people victimized to “just ask” companies to comply. Accused of running a California hotel with inadequately accessible rooms, bathrooms and parking lot, Eastwood’s moans were heard far and wide: “It’s just not fair,” the actor claimed (CBS Morning News, 5/19/00). “I did everything I could to comply with the ADA” (Washington Post, 5/18/00, in an item tagged “The Good, The Bad and The Greedy?”).

On Capitol Hill to call for changes in the law, Eastwood was ready for his soundbite, which, a la Stossel and others, purported not to attack not the disabled but their nasty lawyers: “They drive off in a big Mercedes and the disabled end up riding off in a wheelchair” (L.A. Times, 5/19/00; Newsweek, 5/29/00; NewsHour With Jim Lehrer, 7/26/00, etc). Eastwood subsequently won his court case, to much less media fanfare.

A curbless world

Complaints that the ADA “goes too far” serve as one pole of mainstream debate, but they aren’t balanced by criticisms that the law doesn’t go far enough–that, for example, without mandated affirmative action, “urging” companies to hire the disabled will not be enough to overcome disincentives like hiked-up insurance rates. Or that citizens in a democratic society should not have to sue to get access to polling places, 911 services and courtrooms (Long Island Newsday, 8/20/00; USA Today, 7/19/00).

Instead, ADA coverage is marked by tepidness, with many articles hewing to a safe, “Law Has Changed Landscape; Many Say There’s Still Much to Do” (USA Today, 7/6/00) format, that asks us to count as major victory the fact that public bathrooms are “often” equipped for wheelchair access (AP, 7/22/00). The Chicago Tribune (7/26/00) announced, accurately enough, that many companies have “spent millions ramping entranceways, widening doorways and lowering light switches,” but then crowned such achievement “From Disabled to Enabled With ADA.”

This tendency to reduce civil rights and integration for the disabled to bathrooms and bus lifts permeated coverage. The Los Angeles Times at times incorporated disability rights into a wider range of stories, from whether home care attendants were paid enough (5/11/00) to a school program that uses peer counseling for disabled kids (4/26/00). But for most major media, the entire disability rights movement could be dubbed “The Struggle for a Curbless World” (Washington Post, 7/14/00).

Some articles noted ADA-driven changes, but at the same time hinted that government intervention wasn’t really necessary, that the “market” would resolve all problems. Business Week (9/11/00) reported on the fact that some 30 states now require disabled people to participate in “Welfare to Work” programs. (While the government has dragged its feet on fighting workplace discrimination, it has pushed the disabled off of “entitlements” with vigor.) But Business Week didn’t examine the systemic obstacles facing disabled people who want to work, including strict limits on the amount they can earn without losing the health care and other benefits they may rely on for survival. (An income of $700 a month is deemed “sustained gainful employment,” and one may have no more than the $2,000 “resource limit” in cash or any other liquid resource without losing Supplemental Security Income and Medicaid.)

Business Week’s angle, however, was how the policy is “creating an unlikely niche for entrepreneurs.” Under the headline “OK, Back to Work,” the magazine profiled one entrepreneur, Susan Webb, herself disabled, who consults with companies about removing employment barriers. For Business Week, the fact that “few placement agencies fully understand the range of special services [the disabled] need,” had an upside: “As a result, Webb has the market almost entirely to herself.” (It gets worse: “She may be in a wheelchair, but when it comes to capitalizing on welfare reform, Webb is hardly the one who’s handicapped.”)

In “What to Do if School Is a Struggle,” U.S. News & World Report (9/11/00) illustrates vividly that, for a student with a learning disability, the difference between a successful educational experience and years of frustration and exclusion is simply resources. Some colleges make accommodations (like tutoring or untimed tests) that allow these students to succeed; other don’t. A persuasive story, it still fails to challenge the market model. “Hemming and hawing [from an admissions office] may signal that the college doesn’t want to be bothered” with disabled students, readers are advised; the scarcity of crucial resources is treated as a consumer caveat, a tip to parents to “shop around,” not a societal outrage.

Finally, a notable subcategory of coverage focuses on the disabled as a “rich new market” (Washington Post, 8/24/00)–a characterization the 34 percent of disabled people living on less than $15,000 a year would no doubt be surprised to hear. Articles like “Giving the Disabled Increased E-Access” (Washington Post, 8/24/00) and “Online Deliveries Lighten Burden for the Disabled,” with its subhead, “Empowerment, Not Just Convenience, for an Unexpected Class of Consumer” (New York Times, 9/5/00) vaunt technology over political activism as the way to level the playing field.

USA Today (7/25/00) even declared, “Devices Free Workers From Disabilities”; the article speaks of technology that assists the disabled (and others) to communicate, work and access services as a “major boon,” but not a fundamental right. Such stories promote what Marta Russell calls “free-market civil rights,” in which access and freedom from discrimination are not really rights at all, but a kind of corporate noblesse oblige.