Mend it, Don't End it

Abstract

The Americans with Disabilities Act has been regarded as the Emancipation Proclamation for Americans with disabilities. But the historic Emancipation Proclamation famously freed very few slaves of its own force. Instead, it was most important as a symbolic intervention, one that committed the Union to the anti-slavery course, and that portended the real emancipation that would occur when the North won the war. In this regard, perhaps the ADA is more like Lincoln's Emancipation Proclamation than disability rights advocates would like to think. In the 16 years since the first President Bush signed the statute into law, employment for people with disabilities has remained stagnant at best. And important studies suggest that the ADA actually dragged down disability employment.

Like the Emancipation Proclamation, the ADA has been an important symbolic intervention. It declared, for the first time, that Americans with disabilities are, and of right ought to be, full and equal citizens. In a country where disability had long been grounds for denying citizenship - whether explicitly in the naturalization context, or implicitly in regimes of massive institutionalization and benign neglect - that is no small achievement. But the on-the-ground impact of the law matters as well. If the ADA has not helped - or has even hurt - the employment prospects of people with disabilities, the statute can hardly be deemed an unqualified success. The statute must ultimately be judged by its material impact in the world. If the ADA succeeds in moving people with disabilities into the workforce, in integrated settings, it will advance their equal citizenship status. If it fails in these efforts, the law's symbolism will (at least in the employment context) be a false promise.

As the years have passed, and disability employment figures have not improved, two competing views about the ADA's efficacy have emerged. The first is the stand-pat view: There is nothing wrong with the ADA's employment provisions, or at least nothing that a more enlightened Supreme Court could not solve. The second is the revolutionary view: The disability employment figures show that the ADA is the latest example of the perverse effects of liberal good intentions, and we should repeal the ADA and stop the bleeding.

This essay disagrees with both views. The standpatters are wrong to think that the ADA has been successful in improving employment for people with disabilities, and they are also wrong to think that the ADA problems are merely the result of restrictive judicial interpretations of the statute. The ADA has not achieved what its advocates expected, and that is because of the inherent limitations of antidiscrimination and accommodation requirements in effecting large-scale changes in employment outcomes. But the revolutionaries are also wrong to assert that the ADA is, on net, counterproductive. The data simply do not support such a broad conclusion. Some reforms are clearly necessary, but repeal of the ADA would likely do far more harm than good. This essay argues for the path of reform, and it attempts to sketch out some of the shapes reform might take.

Keywords: Disability, Employment