Titles II and III of the Americans with Disabilities Act (ADA) refer to nondiscrimination on the basis of disability in State and local government services and prohibit “discrimination on the basis of disability in the activities of places of public accommodation” (ADA 2010, p. 2). The beneficiaries of both title II and title III of the ADA, which is a federal document, are Americans with disabilities. Having said that, titles II and III address discrimination that disabled Americans face on a regular basis when accessing public and private services and facilities. To that end, the two core values laying at the heart of the ADA are liberty and equality. Title II and Title III address the lack of accessibility in various public settings that curtails disabled people’s liberty to enjoy different activities in public settings. In terms of equality, titles II and III are about ensuring that public and private entities provide necessary adjustments for the disabled and recognize people with disabilities as “equal and equitable participants in America” (Department of Justice 2008, p. 31). In this post, I argue that while the ADA, including title II and title III, is definitely well-intentioned, there are certain aspects of this particular policy solution that can be improved in order to better address the needs of people with disabilities in public settings. Titles II and III seem to be particularly important since the lack of accessible services and facilities in public settings inhibits disabled people’s ability to attend schools, commute to work, run errands or enjoy sport and cultural events with their families. Drawing on the Schneider and Ingram (1997) framework on policy design, this paper aims to analyze the ADA with a focus on titles II and III in terms of their goals, problems, agents, implementation structures, tools and rules, and to assess which elements of this policy design can be improved in order to better serve the needs of people with disabilities.
AD: A picture of a man in a wheelchair sitting at the desk and working on a computer in an open space office. There is a woman standing next to him.
Goals and problems
According to the ADA, one of the main purposes of this act is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” (ADA 2010, para. 14). Furthermore, Title II of the ADA explicitly 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. To that end, the ADA refers to discrimination on the basis of disability as “unfair” and “unnecessary” and notes that the continuing existence of discrimination against people with disabilities denies them the chance to pursue various opportunities on an “equal basis” (ADA 2010). Having said that, the implicit goal of the accessibility policy as outlined in titles II and III of the ADA is to acknowledge that people with disabilities are equal members of society and therefore they should be able to enjoy activities that non-disabled people can access without any constraints. This sentiment resonates in the statement made by Grace Chung Becker, the acting Assistant Attorney General for civil rights at the Department of Justice, who points out that the ADA provided the federal government with the opportunity to fulfill “the promise that people with disabilities would gain the freedom to work, play and participate as full members of their community” (Department of Justice 2008, p. 3). In order to achieve those goals, titles II and III are focused on providing people with disabilities with access to such public and private facilities and services as courts, schools, stadiums, pools, hotels, and movie theaters among others.
Given the above, both explicit and implicit goals of titles II and III of the ADA seem to promote such values as equality and liberty. Equality, because they recognize people with disabilities as full members of society. Liberty, because they focus on providing the disabled with the opportunity to freely access and utilize various services and facilities. As Jerry Kerr of Disability Rights Advocates for Technology points out, what we really face in the debate on accessibility is “a moral issue… The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities” (Department of Justice 2008, p. 4).
Schneider and Ingram argue that “very often problems, as stated in statutes, relate very poorly with what the public actually cares about” (1997, p. 83). To give an example, some non-disabled people are actually surprised by the fact that people with disabilities expect such facilities as hotels or stadiums to be accessible in order to enjoy such activities like going on vacation or watching a game with their families (Department of Justice 2008). In addition, even such institutions like colleges seem to ignore the fact that people with disabilities want to pursue higher education (Piro 2017).
In the light of the above, it can be said that the goals of accessibility policy reflect public interests (Schneider & Ingram 1997), but they still have a long way to go before all members of our society are convinced that people with disabilities are equal members of our communities. In order to support that change in people’s mentality, titles II and III should introduce a number of educational solutions, however, as we can see in the following sections of this paper, that is not the case.
Agents and implementations structures
Schneider and Ingram (1997) define agents as “means for delivering policy to target populations” (p. 89). In other words, agents are the ones who “have the power or influence to act to achieve policy results” (Schneider & Ingram 1997, p. 89). According to that framework, the agent that is empowered to act in order to “achieve policy results” regarding title II and title III of the ADA is the Department of Justice. Summary of title II of the ADA explicitly states that “the Department of Justice… implements title II of the Americans with Disabilities Act, relating to nondiscrimination on the basis of disability” (ADA 2010, p. 1). Moreover, the ADA requires “the Department [of Justice] to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III” (ADA 2010, p. 1). The Department of Justice is supported by the Attorney General, whose responsibility is to promulgate these standards “that fall within the Department’s jurisdiction and for enforcement of the regulations” (ADA 2010, p. 2). Schneider and Ingram (1997) note that agents are allowed to identify relevant lower-level agents that are supposed to support the “main” agent in the process of policy implementation. In the case of title II and title III those lower-level agents are the Department of Labor and the Department of Transportation among others (ADA 2010). Furthermore, those who are responsible for complying with the title II and title III regulations are various public and private entities, including, for instance, national parks and small businesses.
In their framework, Schneider and Ingram (1997) define four patterns of allocating discretion: “strong statutes”, “Wilsonian”, “grassroots”, and “consensus-building”. According to the definitions provided by Schneider and Ingram (1997), title II and title III of the ADA appear to belong to the “strong statues” category. First of all, both titles have a clear goal, which is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” (ADA 2010, para. 14). In the context of title II and title III, that means to provide the disabled with equal access to various services and facilities. In addition, titles II and titles III leave little ambiguity about authority and relationships among agencies. As for the implementation structure regarding the policy of accessibility of title II and title III of the ADA, 2010 Standards for Accessible Design provide very detailed instructions regarding adjustments that have to be introduced in both public and private facilities in order to meet the ADA requirements. To give a perspective, the instructions cover such details as minimum clear width for single or two wheelchairs on ground spaces for wheelchairs (Department of Justice 1994). However, it is worth mentioning that despite those seemingly clear instructions and regulations for the implementation of title II and title III, title II of the ADA introduces the “reasonable accommodation” term (ADA, 2010), which is not precisely defined in any document I have reviewed so far. That ambiguity, on the other hand, gives a wide discretion to private and public entities and facilities involved in the accessibility policy implementation, to “tailor the policy to fit their circumstances” (Schneider and Ingram 1997, p. 92). Having said that, even though title II and title III seem to possess “strong, top-down implementation structures” (Schneider and Ingram, 1997, p. 92), they still leave an open gate for public and private entities and facilities to tailor the policy at hand in order to avoid certain particularly burdensome accommodations for people with disabilities.
Policy tools and rules
Schneider and Ingram (1997) define policy tools as “the elements in policy design that cause agents or targets to do something they would not otherwise do” (p. 93). In other words, the main intention of policy tools is to “[modify] behavior to solve public problems or attain policy goals” (Schneider & Ingram 1997, p. 93). According to that framework, the tools that are used to “attain policy goals” of title II and title III of the ADA appear to belong to the sanctions category (Schneider & Ingram 1997). For instance, title II states that in case a service, program, or activity of State and local governments discriminates on the basis of disability, it can be either referred to the Department of Justice for judicial enforcement or have its federal funds terminated (Department of Justice 2010). Under title III, on the other hand, the Department of Justice is expected to achieve greater access for individuals with disabilities in place of public accommodation through lawsuits and settlement agreements (Department of Justice ADA Responsibilities, n.d. para. 1). To that end, a private entity found guilty of discrimination on the basis of disability can be fined up to $75,000 for a first violation and $150,000 for any subsequent violation (Department of Justice, 2014). According to Schneider and Ingram (1997), the main intent of the sanctions described above is to “discourage targets or agents from engaging in certain activities damaging to policy objectives” (p. 94), which, in the title II and title III case, is the eradication of discrimination on the basis of disability by public and private entities. While sanctions can be quite effective once we assume that agents and targets are rational actors motivated by self-interest, they won’t eradicate years of discrimination on the basis of disability. In light of the above, learning tools should also be introduced by titles II and III in order to help change the mentality that has been excluding people with disabilities from public spaces. Non-disabled people should learn that people with disabilities are equal citizens and therefore deserve equal treatment in various public settings.
Rules are defined by Schneider and Ingram (1997) as “the procedural aspects of policy design [that] indicate who is to do what, where, and when” (p. 97). To that end, title II and title III prohibit discrimination on the basis of disability in public and private entities (Department of Justice 2010), which means that in terms of eligibility rules all public and private institutions in the US are eligible. The bill states “all governmental activities of public entities are covered” (Department of Justice 2010, p. 183) under title II. The main beneficiaries of the policy are people with disabilities since titles II and III require “newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities” (Department of Justice, 2010, p. 2). As for timing rules, the Department of Justice issued rules implementing title II and title III on July 26, 1991, exactly one year after the ADA was signed into law by President George H. W. Bush (The Americans with Disabilities Act of 1990, n.d., para. 3). Interestingly enough, on the basis of the documents I have reviewed for this paper, I was not able to identify any specific decision rules which may be quite problematic in case certain aspects of the policy are due to be changed.
To sum up, title II and title III of the ADA seem to be fairly well designed, however, I have managed to identify certain aspects of this policy solution that should be improved in order to better serve the needs of people with disabilities. First of all, in terms of policy solutions, the “reasonable accommodation” term should be removed and replaced with a clear set of rules. The “reasonable accommodation” term is not precise enough and therefore is prone to various interpretations that are not always in favor of students. That, on the other hand, can cause conflicts, especially in college settings (Piro 2017). Secondly, in terms of tools, title II and title III should introduce learning tools in order to educate non-disabled people about the rights of people with disabilities as well as to make employees of public and private entities familiar with the title II and title III regulations. Thirdly, I would recommend to clarify decision rules and specify the level of approval and voting procedure necessary for action in order to avoid future conflicts in case the policy has to be amended. Overall, I advocate for the implementation of titles II and III of the ADA but only after the issues described above are properly addressed and amended.