A Brief History of Disability Rights Legislation in the United States

An excerpt reprinted with permission from the publisher, Adaptive Environments Center ©.

Polly Welch, Associate Professor
University of Oregon, Eugene, Oregon, USA

Chris Palames
Independent Living Resources, Amherst, Massachusetts, USA

Note: This document is the second chapter in the book, Strategies for Teaching Universal Design (Adaptive Environments Center and MIG Communications, 1995). It briefly covers the history of relevant accessibility legislation in the United States during the 20th century.

It is difficult to understand the significance of the term universal design without first examining how people who are physically different have been treated socially, legally, and politically in the United States over the course of this century. While designers may not view this history as having bearing on their creativity or being of their making, their work has been instrumental in perpetuating the norms that exclude some people from using buildings, landscapes, and products.

Disability has been made visible in American life primarily as an outcome of military engagement and, therefore, was managed by the federal government in the War Department and, later, at the Veterans Administration. Civilians with disabilities were largely invisible and unaccounted for by the government until the latter half of the twentieth century when the social and physical isolation of people with physical and mental disability became the focus of civil rights legislation. Until that time, society managed to keep people who were different out of sight by building institutions such as nursing homes, asylums, and homeless shelters and using statutes such as ugly laws to prohibit from public places people whose different appearance might offend the citizenry. *1 John Hockenberry poignantly captures this social isolation in his description *2 of visiting his elderly uncle who was institutionalized in childhood:

"As I roll in my wheelchair toward the place where he lives, I understand that my uncle and I share the experience of being different. Our lives are lived in the crawl space between our strangeness and other people's reactions an d fears. The instinctive human fear of those who are different has defined both of our lives. The forces that put my uncle away would also place me in a category from which there is no escape. Inside me is the engine that thrashes about, never stopping, always mindful that someday those same forces could decide my fate, claim that I am really helpless, that my life is not worth living, give me a label, and send me away to a place for all those like me."

Following each of the major wars of this century, the U.S. Congress responded to the needs of returning veterans with rehabilitation legislation in the form of the Smith-Fess Vocational Rehabilitation Act. Enacted after World War I, it was amended in 1943, 1954, and 1965, after World War II, the Korean War, and the Vietnam War respectively, to reflect changes in how people with disabilities were perceived and the availability of new treatment and rehabilitation protocols. In World War I, only about 2 percent of veterans with spinal-cord injuries survived more than a year, but three decades later during World War II, the discovery of antibiotics and more sophisticated medical interventions brought the survival rate up to 85 percent.

Although the purpose of rehabilitation legislation was to compensate veterans, the Smith-Fess Vocational Rehabilitation Act and each of its amendments brought additional recognition and benefits for civilians as well. In 1943, people with mental retardation were included in the legislation, making vocational training available to them for the first time. The polio epidemics of the early 1950's also brought new attention to the needs of civilians. In 1954, rehabilitation was moved from the Veterans Administration into the new federal Department of Health, Education, and Welfare and funds were allocated for research and demonstration grants. But none of this legislation included any consideration of building accessibility. Its entire focus was on the clinical impairments of people with disabil ities and their management.

The first serious effort to address building design as an issue for people with disabilities was a 1958 conference sponsored by the President's Commission on Employment of the Handicapped, the National Easter Seal Society, and the American National Standards Institute (ANSI), a private standard-setting body that called for the development of voluntary standards for the design of accessible buildings. With a grant from the Easter Seal Foundation, these standards were developed by Timothy Nugent at the Rehabilitation Center at the University of Illinois with oversight by a committee of representatives from government, advocacy, health, trade, and professional associations. Published and distributed in 1961 under the title A117.1 Making Buildings Accessible to and Usable by the Physically Handicapped, the new standard described "in precise and practical terms, the minimal features required to remove the major barriers that prevent many persons from using buildings and facilities" and became the first scientifically developed design guideline on accessibility in the world. Finally, designers and building owners had available to them specifications for making building elements such as parking spaces, elevators, and toilet stalls usable by people with disabilities. The existence of such information, however, did not result in substantially more accessible buildings; most building owners and designers were unaware of the standards or oblivious to the social benefits of implementing them. These voluntary standards were not enforceable until adopted by a state or local entity, which started to happen in the late sixties and early seventies.

Although an informal group of federal officials had developed an advisory guide for federal agencies on making public buildings accessible during the late fifties, it was not until the 1965 ame ndment of the Rehabilitation Act that architectural barriers were formally acknowledged by the federal government as an issue. The National Commission on Architectural Barriers was established and three years later issued a report titled "Design for All Americans" (ed. italics), which captures the remarkable lack of awareness of American businesses, public officials, and design and construction professionals to the existence of barriers and the standard for their removal:

In a survey of almost three thousand architects—of the seven hundred who replied, only 35 percent were aware of ANSI A117.1 (1961).

None of the four major building codes made any reference to architectural barriers or their removal.

Building industry manufacturers and suppliers were unaware of the existence of standards.

Public officials believed that there was not enough public interest to develop public programs addressing building access.

The report cited a number of deficiencies in the ANSI standard that diminished its usefulness to designers. The standard did not define the scope of its application—what facility types, what elements of a building, and how many of each element. The standard was difficult to implement because its language was vague and had very few drawings to aid designers in interpreting the information. Just a few years later in 1971, the 1961 ANSI standard was reaffirmed without revision by ANSI and continued in use for another decade as the "pivotal document for the forging of federal and state laws." *3 Confusion persisted for designers because of multiple standard-setting agencies, conflicting requirements, and negligible enforcement. The National Commission's report concluded that "the greatest single obstacle to employment for the handicapped is the physical design of buildings and facilities they must use." In response to these findings, Congress drafted and passed new legislation in 1968—the Architectural Barriers Act. It is interesting to note some of the issues related to passage of the Act. One of the motivating factors for the legislation was a perception that public funds expended on rehabilitation were a shortsighted investment without removal of architectural barriers. Supporters emphasized the belief that architectural barriers existed because of "simple thoughtlessness" and their removal would occur with education of the public and design professionals. In hindsight, the two-decade delay in achieving full accessibility to both public and private places illustrates the naivete of this belief. *4 The Act mandated that buildings designed, constructed, altered, or leased with federal funds would comply with standards for accessibility. It established three federal agencies that would set standards—the General Services Administration, the Department of Housing and Urban Development, and the Department of Defense. The Act required two majors amendments (1970 and 1976) before it started to have a significant effect on the accessibility of public buildings.

In spite of significant changes providing people with disabilities greater independence and opportunities for greater participation in American life—federal legislation, medical advances, and developments in assistive technology—changes in public attitudes have followed slowly and primarily in response to educational efforts that have accompanied new laws. The critical factor to real change, according to Harlan Hahn, a professor of political science at the University of Southern California, was that the definition of disability shifted from medical and economic perspectives, which view disabilities from the standpoint of functional and vocational limitations, to a socio-political perspective that focuses rather on the disabling qualities of the environment that limit the possible interactions of people with disabilities.

In this shift, people with disabilities have emerged as a "minority group," oppressed not by their disabilities but by circumstances that can be changed through legislation and political action. A principal dimension of oppression of a minority group is the assumption of biological inferiority by the majority. While other minority groups have managed to disprove this assumption, the visible, physical differences of people with disabilities evokes fearful reactions that perpetuate the notion of subordinate status. Citing Stigma, in which Erving Goffman describes people with disabilities as being viewed by society as not quite human, Hahn argues that it is this failure to meet the twentieth-century Western values of physical attractiveness and individual autonomy that permits society to set disabled people apart. *5 For public-policy changes to be effective, the attitudes that lead to the marginalization of people with disabilities must be addressed equally along with functional changes in the physical environment.

The disability rights movement, both in a formal legal sense and in a moral sense, has its roots in the civil rights movement of the 1960's. The Civil Rights Act of 1964, focused in its intent to eliminate racial discrimination, set the stage for a number of minority groups to broaden its coverage and use its mandate to demand equality. The disability rights movement began to be a force and have its agendas recognized in legislation during the 1970's, starting with the Rehabilitation Act of 1973.

The power of that Rehabilitation Act comes from the fact that its language, especially Section 504, echoes Title VII of the 1964 Civil Rights Act. Section 504 was the first statutory definition of discrimination towards people with disabilities. Although it did not have the scope of the Civil Rights Act of 1964 and only outlawed discrimination by those entities that received federal funds, it was a crucial factor in shifting disability issues from the realm of social services and therapeutic practice to a political and civil rights context. The Act survived two presidential vetoes, suggesting that Congress finally understood the social significance of the issues. The Act laid important groundwork for change but did not address implementation; it took four more years for the regulations enforcing Section 504 of the Rehabilitation Act to be issued in 1978.

Three important new concepts emerged during the 1970's—program accessibility, mainstreaming, and independent living. While none of them directly addressed the technical issues of accessibility, each had implications for the accommodation of people with disabilities by organizations that own and operate buildings. Section 504 introduced the concept of program accessibility, which allowed programs to achieve accessibility by being "viewed in their entirety." This permitted some f lexibility for compliance. For example, a community program could relocate activities to a physically accessible space in lieu of costly renovations to an existing location. In 1975, Congress passed the Education for All Handicapped Children Act, mandating free, appropriate public education for children with disabilities. This legislation introduced the concept of mainstreaming, ensuring children with disabilities an education in the least restrictive environment—when possible, the same environment as children without disabilities. Public schools throughout the country struggled with barrier removal, in spite of the fact that existing standards did not address accessibility for children. In 1978, federal funding for independent-living services became available for the first time. The independent-living concept, first talked about in rehabilitation circles in the 1950's and 1960's as a full menu of services provided by expert professionals to people with disabilities, was redefined by the disability movement as a self-help empowerment movement to liberate people with disabilities from the traditional concept of dependency, especially in their choice of living environments.

While national disability policy was being rewritten, a social and political movement was emerging among people with disabilities in local communities through local action. The disability movement was reputedly born in Berkeley, California, where the first center for independent living was established in the early 1970's and people with disabilities had their first dramatic confrontations with the federal bureaucracy, in this case the occupation of the Health, Education, and Welfare offices in San Francisco in 1977 and 1978 to force the issuance of the 504 regulations. What occurred in such dramatic terms in Berkeley resonated throughout the country among people with disabilities who had experienced social oppression and the devaluation of personal identity and were looking for a political model for change. The proliferation across the country of independent-living centers, other kinds of disability advocacy organizations, a movement into government by people with disabilities, and the formation of state and municipal offices on disability demonstrated the power of local action and proved to be very valuable in sustaining a political presence during a period of restricted national resources.

Government at the state and local levels moved more quickly than the federal government. While Washington was slow to implement the Architectural Barriers Act, many states adopted the ANSI standard and required compliance for state-funded facilities. By 1966, at least thirty states had access legislation and by 1973, every state except Kentucky had done so. Ten states had expanded jurisdiction to privately funded buildings designed for public use *6 Enforcement, however, continued to be problematic at every level.

The 1980's were a frightening period for people with disabilities because the prevailing notion that the best government was no government threatened to undo hardwon rights. But the disability movement was sufficiently strong at this point to preserve the basic legal structures of disability rights, unlike other progressive efforts such as the environmental movement, which experienced major revisions in policy. In spite of the Commission on Regulatory Relief, the disability movement was successful in opposing attempts to deregulate Section 504 and the Architectural Barriers Act, achieving some bipartisan support and making apparent its potential political power. The groundswell of response from parents had a profound effect on George Bush, who chaired the Commission on Regulatory Relief.

In spite of the no-government rhetoric in Washington, federal administrative wheels kept churning and more standards and legislation were passed. In 1981, the Architectural and Transportation Barriers Compliance Board (ATBCB) first issued its "Minimum Guidelines and Requirements for Accessible Design," but the new Reagan appointees on the ATBCB proposed recission. The MGRAD were subsequently reissued in 1982 as a result of overwhelming public comment. These established the basic underpinnings for the Uniform Federal Accessibility Standards (UFAS) issued by four federal agencies: General Services Administration, Department of Defense, Department of Housing and Urban Development, and the U.S. Postal Service. In 1986, the Air Carriers Act was passed indicating that Congress was returning to the business of expanding the rights of people with disabilities to participate in all dimensions of society, in this case, the right to air travel.

Two years later in 1988, four things happened in one year. The first, HUD finally issuing its 504 regulations, only eleven years after the model regulation had been issued, w as another step in the slow effort to develop standards that would change the physical environment. But the other three events were on the civil rights front, an arena that was critical to a major shift in perspective for people with disabilities.

The Civil Rights Restoration Act was written to repair the damage that had been done to the structure of civil rights enforcement, both by administrative and judicial decisions in the 1980's. The Civil Rights Restoration Act, which was stimulated by a gender-discrimination case, required federal-funding recipients to comply throughout institutions, not just within the funded unit. Important to disability rights, it was the first time that the disability community was accepted as a full partner in the legislative and the lobbying process for civil rights.

The Fair Housing Amendments Act, the prelude to the Americans with Disabilities Act, expanded the protections of the Civil Righ ts Act of 1968 to include both people with disabilities and families with children. It expanded the scope of accessible housing from that which received public funds to all new multifamily housing with four or more units, both public and private. For the first time, a person with a disability could reasonably expect to be able to seek accessible housing in the open market.

And finally, the first version of the Americans with Disabilities Act went before Congress, crafted not by radicals in the disability movement, but by Reagan appointees to the National Council on Disability. At this time the disability movement, from the conservative to the radical wing of the movement, was unified in the view that what was needed was not a new and better brand of social welfare system, but a fundamental examination and redefinition of the democratic tradition of equal opportunity and equal rights.

In just two years, Congress passed this ambitious legislation and in 1990, President George Bush held the largest signing ceremony in history on the south lawn of the White House, an historic moment for all people with disabilities. The passage of the ADA was to some degree effected by members of Congress realizing their obligation to ensure civil rights to all Americans. The benefits of the ADA extend to a broad range of people by cutting across all sectors of society; virtually every voter will experience positive benefits from the law or know someone who does. Policy makers saw important implications for the next century in terms of managing costs of potentially dependent populations. Demographers project a dramatic increase in the number of people who will live into their nineties. The extent to which their needs can be accommodated through responsively designed environments and assistive technology may save billions of dollars in institutional care, largely underwritten by federal programs. As many as two-thirds of people with disabilities are unemployed, largely due to attitudinal and physical barriers that prevent their access to available jobs. With the national sentiment opposed to long-term welfare reliance and a labor-deficit economy, employment of people with disabilities is essential.

The Americans with Disabilities Act is not only historic nationally but globally as well. There is no other mandate of this scope in the world. Though other nations provide greater levels of support services and assistive technology, the United States ensures equal rights within a constitutional tradition. The ADA has a unique appeal for all Americans because, unlike other civil rights categories such as race and gender, an individual may become a member of the protected class at any moment in his or her life.

Notes
1. p14 l5 Lifchez, Raymond (1987). Rethinking Architecture: Design Students and Physically Disabled People. Berkeley, Calif.: University of California Press, 2 n.
2. p14 l7 Hockenberry,John (1995). Moving Violations: War Zones,Wheelchairs and Declarations of Independence. NewYork:Hyperion
3. p18 l24 Lusher, Ruth Hall (1989). "Handicapped Access Laws and Codes." In Encyclopedia of Architecture: Design Engineering and Construction, vol. 3, edited by Wilkes and Packard, Pp.647. New York: John Wiley and Sons.
4. p19 l20 Hull, Kent (1979). The Rights of Physically Handicapped People. New York: Avon Books, Pp.67.
5. p21 l13 Hahn,Harlan (1988). "The Politics of Physical Differences: Disability and Discrimination." Journal of Social Issues Pp.44,no.1
6. p25 l10 Ref. 3, Pp.648.