Title II of the Americans with Disabilities Act (ADA) refers to nondiscrimination on the basis of disability in state and local government services. Title III, on the other hand, “prohibits discrimination on the basis of disability in the activities of places of public accommodation” (ADA, 2010, p. 2) such as restaurants, movie theaters, schools, doctors’ offices, etc. The Americans with Disabilities Act was first implemented in 1991. Certain provisions of the titles II and III regulation were amended or updated in 2010. The analysis below is based on the Transcript of the Public Hearing on Notices of Proposed Rulemaking conducted on July 15, 2008. Commenters participating in the hearing can be divided into two distinct groups. The first group consists of representatives of disability rights advocates such as Disabilities Rights Advocates for Technology, American Foundation for the Blind, and the Equal Rights Center among others. The second group consists of representatives of public institutions such as the National Recreation and Parks Association, and private businesses such as the Asian American Hotel Owners Association and Dolphin Stadium in Miami among others. These two groups define the titles II and III policy problems in very different ways and offer different causal stories in the debate on amendments to the currently existing legislation that hasn’t been amended since its implementation in 1991 proposed by the disability rights advocates.
Drawing on Rochefort & Cobb (1994), three dimensions of the competing definitions of policy problems addressed during the hearing can be identified: incidence, proximity, and severity. In The politics of problem definition: Shaping the policy agenda Rochefort & Cobb (1994) recall “the persistent problems” experienced by American Vietnam veterans as an example of incidence pattern. In a similar manner, Jennifer Conrad, representative of Equal Rights Centers calls attention to the fact that her organization has been receiving multiple complaints from its members and other people with disabilities regarding the accessibility of stadiums, arenas, theaters, and pools maintained by private business owners. Similarly, Kenneth Shiotani, representative of the National Disability Rights Network, makes it clear that when it comes to public institutions and facilities, they also “fail to maintain accessible facilities [and] fail to provide auxiliary aids and services” (Transcript, 2008, p. 11). In order to support his argument, Shiotani points out that according to “the 2002 regulatory assessment for recreational guidelines… 90% of swimming pools in public schools and 40% of swimming pools in public parks” (Transcript, 2008, p. 12) didn’t meet accessibility standards. On the other hand, Sunny Patel, representative of the Asian American Hotel Owners Association claims that even though indoor pools in his hotels are all equipped with special lifting chairs for people with disabilities, in 9 years since the chairs were installed not a single person has used them. In addition, Carol Lumpkin, representative of Dolphin Stadium in Miami points out, that according to her data “the current requirement for 1% wheelchair seating substantially exceeds actual usage” (Transcript, 2008, p. 21) and therefore the increase in the number of accessible seating is not necessary.
Rochefort & Cobb define proximity as an issue that “hits close to home or directly impinges on a person’s interest” (1994, p. 21). Joe McInerney, the president and CEO of American Hotel and Lodging Association, points out that further alternations to hotel bathrooms that already meet current accessibility standards will cost hotel owners $500 million “because virtually all of the bathrooms and electrical fixtures will have to be relocated when they would otherwise have been just replaced” (Transcript, 2008, p. 16). He urges the Department of Justice to make sure that bathrooms that already meet current standards will not need to be retrofitted in order to meet any new future requirements, so that hotel owners will not have to cover extra costs. On the other hand, Ruthee Goldkorn, representing No Barriers Disabled Access Consulting & Advocacy Services, who identifies herself as a parent with a disability, raises the question of proximity, by underlining the fact that due to various physical barriers in sports arenas she is not able to watch her own daughter’s basketball games. To that end, by evoking the proximity argument, she underscores the impact of currently existing legislation regarding accessibility on her family life.
Rochefort & Cobb (1994) define severity as “pivotal to capturing the attention of public officials and the media”. To that end, Laura Williams who advocates for disability rights underscores that “people with disabilities are killed every year from being required and necessitating traveling in vehicular paths because there is no pedestrian or wheelchair path of travel” (Transcript, 2008, p. 25) available in addition to the fact that “much of America remains largely inaccessible and unusable by people with disabilities” (Transcript, 2008, p. 26). By framing her argument in that manner, she invokes a level of severity and makes it clear that the change in legislation is long overdue. However, Carolyn Gray, representing National Retail Federation, points out that in order to comply with newly proposed regulations regarding title III, retailers would need to “maintain detailed and meticulous documentation regarding all changes and maintenance of their facilities no matter how minor” (Transcript, 2008, p. 9). She further underscores the severity of the matter at hand by stating that maintaining such documentation could be “expensive, and time-consuming” (Transcript, 2008, p. 9). She argues, therefore, that the current legislation shouldn’t be amended in a way that would create a “quagmire” (Transcript, 2008, p. 9) for retailers by placing more burden on them.
In “Causal Stories and the Formation of Policy Agendas” (1989) Deborah Stones defines inadvertent causes as situations in which “people do not understand the harmful consequences of their willful actions” (p. 286). The debate on accessibility rights is a great example of purposeful actions that bring unintended consequences. Since, as stated by disability rights advocates, currently existing regulations regarding accessibility are not restrictive enough, both private and public entities don’t feel compelled to recognize people with disabilities as “equal and equitable participants in America” (Transcript, 2008, p. 31). Instead, they try to save money by providing disabled people with substandard services. For instance, Jennifer Conrad, representative of Equal Rights Center, points out that her organization’s members and other people with disabilities frequently complain about accessible rooms offered by various hotels being substandard in comparison with “non-accessible” rooms available in the very same hotels. She makes a note that people with disabilities who have requested an accessible room with a view are instead offered “hotel rooms in the back of the hotel without a view because those are by design the only accessible rooms” (Transcript, 2008, p. 13). In a similar manner, Ruthee Goldkorn, representing No Barriers Disabled Access Consulting & Advocacy Services and herself disabled, complains that even though she pays for tickets to watch games in sports arenas, she receives substandard service, since she is not able to sit together with her families members due to the location of accessible seating in a different part of a stadium (Transcript, 2008). By looking at these two stories, we can see two inadvertent processes happening here: because the currently existing legislation regarding accessibility is not strict enough, public and private entities can offer substandard services to people with disabilities in order to save money and because public and private entities act purposefully in order to save money, they unintendedly hinder disabled people’s right to act as “equal and equitable participants in America”. To that end, disability rights advocates hold currently existing legislation and, by extension, lawmakers, culpable for the current state of affairs, since it failed to introduce regulations that would be strict enough and call the Department of Justice to make necessary amendments. For example, Ruthee Goldkorn claims that “the usability standards should be more strict” (Transcript, 2008, p. 31), whereas Jennifer Conrad maintains that “disparity in treatment should be addressed and prohibited by regulations” (Transcript, 2008, p. 13).
Title II and Title III in politics
Advocates of disability rights attempt to amend currently existing legislation by stating that stricter regulations should be introduced in order to better protect disabled people’s right to accessible facilities. They support their argument by using the numbers of public facilities that are inaccessible for people with disabilities, giving examples of substandard treatment of disabled and their family members in such places as hotels and stadiums, and by illustrating how the lack of accessible services impacts family lives of the disabled. They, therefore, make a strong case for equality of all citizens regardless of their state of health.
On the other hand, those who oppose changes proposed by disability rights advocates, try to mitigate unintended consequences of these amendments such as the high costs of adjusting buildings and facilities so they meet the disabled’s needs. They do so by claiming that, first of all, currently existing adjustments meet those needs in a satisfactory manner, and, secondly, that those accessible facilities that already exist are not utilized by people with disabilities to their full capacity. They, therefore, deny the presence of inequality and suggest that no further changes are necessary since people with disabilities are already recognized as equal.
AD: Picture of a yellow sign showing the direction to bathrooms, including a wheelchair accessible bathroom.
Definition and causal story
The currently existing legislation regarding accessibility hasn’t been amended since 1991 and after 17 years these required changes are long overdue. As a result, disabled people are denied equal access to public and private facilities or suffer from services and practices that are substandard and extremely humiliating. The best way to prevent such situations is to introduce stricter regulations regarding accessibility in order to better address and protect the needs of the disabled. Without those changes, public entities and private business owners will continue to treat people with disabilities as unequal customers and, ultimately, citizens, in order to avoid any extra costs of adjusting their facilities so they are accessible to everyone.
As mentioned above, Titles II and III haven’t been amended for 17 years despite disability rights advocates reporting that current regulations fail to recognize the full scale of the problems that people with disabilities have to face when trying to access such facilities as schools, pools, theaters, restaurants, etc. To that end, the legislative branch of government could be to blame for its denial of the lack of inequality in the treatment of people with disabilities by public entities and private business owners.