ADA Celebration, Protest and Dirty Harry

Marta Russell

July 26, 2000 marks the 10th anniversary of the Americans with Disabilities Act (ADA), a landmark disability civil rights bill intended to improve the lives of disabled Americans. Reactions and planned ADA 2000 events are mixed as to what the law has accomplished so far.

In Washington D.C., events are part of a national "Spirit of ADA" Torch Relay organized by the American Association of People with Disabilities, which covered 24 U.S. cities. The torch began its journey June 11 in Houston entering the capital on July 25th. The theme of the events, “Renew the Pledge,” was adopted by organizations in an effort “to coalesce support for the goals of the ADA by renewing America's commitment to equality of opportunity, full participation and economic self-sufficiency for all disabled persons.” Faced with both progress and set backs in the decade since the Act was passed, organizers say they wished to revive the same spirit of full access to individuals with disabilities that led Congress to pass the ADA in 1990.

In Pennsylvania comes Rolling Justice 2000, an epic relay that will culminate in Philadelphia on July 29, 2000. Kicked off on July 5, 2000, hundreds of disabled persons have been rolling across the state gathering support from their communities for affordable, accessible transportation for all who have disabilities, no matter where they live, rural, suburban, or urban. This relay will include over thirty Pennsylvania towns, villages and cities by the time it reaches Philadelphia.

In Sacramento, CA, the local activists are too disenchanted for celebration. They say “CELEBRATE THE ADA? HA! LET'S NOT CELEBRATE! LET'S PROTEST!

TEN YEARS IS LONG ENOUGH! How long must we wait for cities like Sacramento to comply with the ADA and install curb ramps, remove unsafe curb ramps and make the sidewalks accessible to all citizens? We waited 8 years for Sacramento to comply and when they didn't, even after numerous phone calls and letters, a group of us sued. Now, two years later after many settlement conferences, the city has finally responded and said they aren't going to comply with the ADA!

PLEASE BRING A ROLL OF TOILET PAPER! THESE WILL BE PRESENTED TO THE CITY COUNCIL TO REMIND THEM THAT THE ADA IS NOT JUST A PIECE OF PAPER! TO ASK THEM TO PLEASE STOP USING THE ADA FOR TOILET PAPER.”

This sentiment seemed to prevail on most of the disability list serves to which I subscribe. Some of the complaints include the fact that disabled persons seeking the assistance of the Equal Employment Opportunity Commission and the federal courts are loosing in 92 percent of the cases. Few, if any, local governments are in compliance with Title II of the ADA; curb cuts have not been constructed, courthouses are not accessible, government programs are not accessible. The majority of places of public accommodations are not in compliance with the Title III of the ADA. Advocates are experiencing difficulty in getting new buildings constructed without architectural barriers let alone get existing buildings to remove architectural barriers.

Fred Shotz, an advocate in Florida writes “the reaction of the business community to our efforts to enforce our civil rights is to have a bill sponsored before the U.S. House of Representatives that would make it almost impossible for us to exercise our civil rights through federal litigation. Now there is an attempt to bypass the rules of Congress and to sneak this bill through. Is this something to celebrate?”

Shotz is referring to H.R.3590 the ADA Notification Act also known as the “Dirty Harry” bill because Hollywood producer/actor Clint Eastwood testified on its behalf for Rep. Foley (R-Fl) the sponsor of the bill. The Notification Act would amend Title III of the ADA to require, as a precondition to filing a lawsuit involving a place of public accommodation or a commercial facility, that the plaintiff provide notice of the alleged violation by registered mail or in person and that 90 days be provided to correct those violations.

This sounds “reasonable” until one gets the skinny on what has really been happening in these ADA cases. Let's take Eastwood's situation for example. Eastwood owns a posh Mission Ranch Hotel in Carmel, California, which was remodeled to the tune of several million dollars but does not provide an accessible restroom in the main area. He was sued for violating the ADA -- and he is fighting mad because of it.

The Wall Street Journal reported “These "sleazebag lawyers," the veteran actor says, his voice constricting, messed with the wrong guy when they "frivolously" sued him and hundreds of other small-business owners for failing to comply quickly enough with the Americans with Disabilities Act.” (May 9, 2000)

In fact, the story is one of complete fairness and patience on the part of the plaintiff. The person who is suing Mr. Eastwood did write Eastwood a letter. After failing to get a response she wrote another letter and sent it by Certified U.S. Mail. It came back marked "Refused.” Then she sought help from a California attorney to fight for her rights using the ADA.

None-the-less Eastwood appeared on Hardball with Congressman Foley to complain about how trial lawyers are "extorting" businesses with unwarranted lawsuits. Did Rep. Foley check out the details of the lawsuit against Mr. Eastwood before eagerly enlisting him in his Notification campaign? If he had he might have found out that Eastwood not only received prior notice but that he had segregated the disabled from the nondisabled bathrooms at his resort in a way that denigrates disabled persons. Activists Maggie Dee and Larry Buchalter of Northern California wrote to Rep. Foley “[there is one restroom] for the disabled "cripples." The "cripples" have to go out an Exit door, into the elements. This door was held open with a piece of wire...no door handle; the other restroom is inside for his non-disabled clientele...separate but equal? Ummm, I wonder how the black community would feel if they were asked to use this outdoor passageway to their bathroom while the Caucasian clientele used the interior restroom?”

Further, Eastwood had been advised by his previous insurance company and attorneys to settle, remodel and put it behind him but he would not and now his legal fees are reported to be over $500,000. Much of these fees have been run up by his own lawyers trying unsuccessfully to get the case dismissed. Twice judges refused to dismiss the case because the case is not “frivolous,” it has merit.

It seems that Eastwood is gunning for the ADA in bad faith and that Congressman Foley, a Republican, is acting in his own interests by sponsoring such a bill. Supporters of this “Notification Act” include an array of GOP backers, the U.S. Chamber of Commerce, the National Federation of Business, the National Restaurant Association and the International Council of Shopping Centers.

As a result of Foley's bill and Eastwood's public relations campaign for it, coupled with the failure of the press to get to the meat of the matter (Hardball's Chris Matthews did not do the research to counter what Eastwood said on his show), the public is infected with the notion that “drive-by” disability lawsuits are running businesses out of business. Poor mistreated multi-millionaire Clint Eastwood!

Those in the trenches know first hand that businesses are aware that there is an ADA. Businesses know that they are required to comply but often they figure they will wait till they have a complaint. Or, like Dirty Harry, they may ignore a letter of warning and refuse to make required modifications. Then they may be surprised at what a complaint costs. One advocate writes “I have tried to educate businesses about it. They simply don't WANT to hear it. The majority I talk to have a MAKE ME attitude about it.”

Another lister writes “there has been very little voluntary compliance in my area and what access there is has come as a result of lawsuits and with the intervention by the DOJ. The list of civil rights violators is endless and therefore I for one will not be celebrating. The only thing I will celebrate is the upcoming filing of another lawsuit.....”

The majority of those testifying for Foley's bill HAD received notice. On face that would tell us that the Notification Act isn't about “Notification” to businesses all. What would it do? The Clinton administration says it would discourage voluntary compliance. Not only does the bill create technical barriers to filing suit, it gives businesses an incentive and an excuse to not make their premises accessible until a warning letter arrives. Foley's amendment would also thwart disabled persons' access to the federal courts by discouraging the already too few lawyers practicing ADA law from taking access violation cases. It would do absolutely nothing to further the ADA goal of making the nation more accessible to disabled persons. Should, for example, a deaf patient be forced to wait 90 days to have an interpreter provided at a doctor's office?

This proposed amendment is a stealth strategy for opening up the ADA again in congress -- a way to chip away at the ADA and eventually kill it. This 10th Anniversary of the ADA, let's make something happen that will be cause for celebrating -- by putting heavy pressure on congress to kill Foley's bill instead.