Memorandum 

Date: May 11, 1993  
To: Senator Dole
From:  Alec Vachon (initialed) 
Re:  Washington Times Op-Ed on ADA  

	Attached is a recent Washington Times op-ed, venting grievances (real and imagined) against ADA. One particular target is the National Council on Disability, the federal agency which proposed ADA and has been since involved in monitoring its implementation. 

	Not to be outdone, the National Council responded in kind with a Letter to the Editor (copy attached). 

	In conversations with Kansas local and county government officials, I have encountered only positive attitudes, although concerns about what constitutes adequate compliance and costs. 

	Six Kansans have contacted us since late 1992, half complaining ADA does not do enough or should be implemented faster: 

-- a dentist in Shawnee who read a newspaper article that ADA would require expensive renovations to Wichita State stadium. (Comment: According to the article, the school is prepared to spend $9.5 million to bring the stadium up to NCAA Division I-A standards. In any case, ADA makes no new requirements over those of the 20-year old Rehabilitation Act.); 

-- a complaint from Lansing that ADA did not cover federal workers (Comment: Sec. 501 of the Rehab Act does); 

-- a short note from the Superintendent of Schools in Chanute expressing confusion about ADA requirements
(Comment: will refer for technical assistance); 

-- one complaint from a disability advocate in Overland Park that proposed Title II regs would delay timely implementation of ADA; 

-- an allegation from a disabled person in White City that Kansas rehabilitation agencies are the most guilty of ADA violations; 

-- a person from Atlanta who spoke with you in mid-April who felt ADA was being used improperly to force funding of a new school building (Comment: Referred to Kansas Title II coordinator for definitive information). 

(page 2)

THE WASHINGTON TIMES TUESDAY, MAY 4, 1993/ PAGE F3 

(image: two panel comic strip. A seated man labeled 'Lawyers' is having his knee reflexes tested by a standing doctor holding a mallet. The Doctor says "Now we'll just check the ol' reflexes..." In the second panel, the seated man holds up a page that reads 'Lawsuit' and the doctor writes on his clipboard and says, "...Normal...")

LLEWELLYN ROCKWELL JR. 
Disabling act with 9,000 nightmares 

Just one year after going into effect, the Americans With Disabilities Act (ADA) has proved to be a regulatory menace of historic proportions. More than 9,000 lawsuits have attacked businesses and communities, and the Clinton administration wants to hire another 157 staffers for the Equal Employment Opportunity Commission just to process the paperwork. 

	Yet most ADA cases never go to court. The mere threat has enabled plaintiffs to win an astounding number of settlements, some of them with a science-fiction character. For example, a fire department had to rehire a firefighter who lost his eyesight, which one would think was necessary to firefighting, and give him back pay and damages.
 
	Little league baseball has to allow a man in a wheelchair to coach at third base, despite the danger to any player who might slide into him. A public skating rink has to allow a girl in a steel walker to skate. It may not take into consideration the danger to other skaters. And a private school had to install ramps and new restrooms for one wheel-chaired relative of one student to attend one ceremony.
 
	The America West Arena in Phoenix had to build 14 wheelchair sections "in all price ranges and viewing angles" and a "dog park" for seeing-eye dogs and lower all concession counters to 3 feet for customers in wheelchairs and "people of short stature." (Fans with sore backs who have to stoop to buy a hotdog don't count as disabled.) 

	Consider the first ADA case, filed by the federal government two days after the act went into effect. Charles Wessel was the executive director of AIC Security Investigations, but was diagnosed in 1987 as having lung cancer. By 1992, the cancer had metastasized to his brain, and he was given six months to live. 

	The company said Mr. Wessel was "not functioning," thanks to the disease and the drugs he had to take, and asked him to retire. Discrimination! He refused, was laid off and brought suit. In March, a federal court declared the company had violated the ADA by discharging someone who clearly could not do his job. Mr. Wessel received $22,000 in back pay, $200,000 in compensatory damages paid by the company and $250,000 from Ruth Vrdolyak, the owner of the company, a total of $572,000. 

	Are these anomalies? All these cases arc praised by the National Council on Disabilities- the federal agency that oversees the ADA - as proper uses of the law. 

	Some people, clearly using the ADA to vent their anger against society, are not satisfied with one suit. A man filed 60 complaints against private schools in Vermont and Massachusetts; 90 of the first 250 cases filed were initiated by two people. 

	A wheelchaired lawyer in Austin, Texas, filed a string of suits against local businesses for having insensitive restrooms, doorways, elevators, pay telephones, serving lines, water fountains, etc. Included were McDonald's, Pizza Hut, Popeye's, Dairy Queen, Wendy's, Circle K, Blockbuster Video, Eckerd Drugs and Coco's. Several battered businesses have already settled. 

	You don't even have to be an American to play this game. An Atlanta medical clinic asked a woman to take an HIV test before she received pre-natal care. She refused, was turned away and, though a Nigerian citizen, filed suit in U.S. district court in Georgia charging violations of the ADA and the 1964 Civil Rights Act. The ACLU is paying all her expenses. 

	When a man failed the test to become a licensed electrician in Wisconsin, he too brought an ADA suit. His disability? He wasn't good at taking tests. Just before the case went to trial, the state settled. The man was then allowed 10 hours over two days to take the test, instead of
four hours on one day, and to have with him a tutor, a copy of the state electrical code and a crib. 

	Yet the National Council on Disabilities wants even more ADA complaints. In general, restroom faucets, public phones, water fountains and library card catalogs are too high, it says. So are supermarket shelves. The council even wants "deodorizing devices" taken out of restrooms, which would seem to favor one set of the olfactory-challenged over another. 

	In 1990, when Congress passed this act overwhelmingly, its proponents promised that the bill would not be costly, would not generate much new litigation and would not break the back of business. 

	The ADA has also radically changed the nature of the job interview. Such questions as, "Are you taking any prescribed drugs that would affect your work performance?" can lead to a lawsuit that will bankrupt the company. And in all these cases, the burden of proof is on the business to prove it did not "discriminate." The final result of the ADA, therefore, is to wipe out the ability of businesses to hire and fire according to economic necessity. And every business in every area of the country is vulnerable if it attempts to commit capitalism in personnel policies. 

	And now the government tells us that any "known physical or mental limitation" is a protected disability. But who exactly is exempt under that designation? Not even the "chronically late," as a suit urges in Minnesota. So watch it, boss, the next time the mailboy drifts in two hours late.

Llewellyn H. Rockwell Jr. is president of the Ludwig von Mises Institute in Auburn, Ala. 


(page 3) 

(image: Seal of the National Council on Disability)
National Council on Disability 
800 Independence Avenue, S.W. 
Suite 814 
Washington, DC 20591 
202-267-3846 voice 
202-267-3232 TDD 

An Independent 
Federal Agency 

May 4, 1993 

Wesley Pruden, Editor 
The Washington Times 
3600 New York Avenue, N.E. 
Washington, DC 20002 

TO THE EDITOR: 

This is in response to the editorial entitled "Disabling act with 9000 nightmares" by Llewellyn Rockwell, Jr. that appeared In the Washington Times on May 4, 1993. We commend you for running the editorial, as we believe it provides clear and incontrovertible evidence of the absolute need for the Americans with Disabilities Act (ADA). It quite plainly demonstrates the extreme ignorance, prejudice, and perversion of truth that has haunted the lives of people with disabilities in this country for decades.
 
Mr. Rockwell's hateful and paternalistic attitude, coupled with his absolute misstatement of facts serve as revealing indicators of the long road that yet has to be traveled by millions of people with disabilities and their families. As he taunts his way through a litany of examples that he lifts completely out of context from our recent report, ADA Watch: A Report to the President and the Congress on Progress in Implementing the Americans with Disabilities Act, he manages to insult virtually every adult and child with a disability in America. He attempts to bully a man dying of cancer, a blind public employee, a little league coach, and a little girl who wanted to go ice skating (among others) for having a chance to participate in real life. He Insults businesses who of their own accord decided to open their doors to people with disabilities, not as he mistakenly claims because of the threat of lawsuits, but because they happen to believe that people with disabilities might actually have some value. 

Rockwell apparently lives in a very strange world, where people who consider themselves "normal" can dole out whatever little favors their arrhythmically charitable hearts find the time to apportion to the "undeserving". His world is not America, the land of equal opportunity. It much more resembles many communist countries In the world where babies with "disabilities" (which, by the way, includes being "female" in some countries -although be probably doesn't like women either) are killed. If one were to follow Rockwell's diatribe to its illogical conclusion, people with disabilities would either be killed outright or placed in a permanent and inescapable big 

(page 4)

Wesley Pruden May 4, 1993
Page Two 

government-sponsored welfare camp, so that "enlightened" citizens like Mr. Rockwell would never have to interact with their "inferiors". 

While we would never want to interrupt Rockwell's phantasmagoric stream of unconsciousness to the needs of others in a democracy, we would like to clear up some important facts. For the record, the National Council did not "praise" litigation activities in its report. We merely reported on issues that had been brought up in both informal and formal efforts to resolve ADA-related disputes. Nor is it true that the National Council on Disability "wants even more ADA lawsuits." An even cursory reading of the report would demonstrate that the National Council is in favor of the most informal dispute resolution means available. 

Mr. Rockwell's article truly is a "disabling act" and does constitute a "nightmare" for Americans with disabilities and their families. We pledge to redouble our efforts to ensure that the next generation of Americans with disabilities never have to live under the shadow of this type of prejudice. 

(signature)
John A. Gannon
Acting Chairperson 

(signature)
Andrew I. Batavia
Executive Director 

(signature)
Edward P. Burke 
Chief, Government Liaison