On June 22, 1999 the U.S. Supreme Court ruled on four ADA cases: one Title II case – Olmstead v. L.C. and E. W. – and three Title I cases – Sutton et al. V. United Air Lines, Inc.; Murphy v. United Parcel Service, Inc.; and Albertson, Inc. v. Kirkingburg.

Disability activists throughout the nation were anxiously awaiting the Court’s decision on "Olmstead," a case which many saw as the Brown v. Board of Education of our movement. To support Lois Curtis and Elaine Welsh (L.C. and E.W.) – the two women who sued the state of Georgia (Thomas Olmstead is Georgia’s Commissioner of Human Resources) for their freedom from a mental institution – the disability community, led by ADAPT, had mobilized as never before. Activists used gentle and not so gentle persuasion (demos and sit-ins) to get their Attorneys General to take their state off an amicus brief supporting Olmstead – till only 7 states were left on the brief. Op-ed pieces and letters to the editors, written by members of different disability groups, were published in newspapers all across the nation. The New York Times ran two front-page stories. On the eve of April 21^st - the day the Supreme Court heard the oral arguments - approximately 100 activists held a press conference and an all-night vigil at the steps of the Supreme Court. But the big event, which really showed the unity and strength of our community, took place on May 12^th. ADAPT was joined in DC by over 100 disability groups in the "Don’t Tread On The ADA" Rally at the Capitol, followed by a march to the Supreme Court. The police estimated the crowd at 4,000.

New York had a strong presence in DC on May 12^th. Disabled in Action, ADAPT-NY, our ILC’s, all were well represented. Thirty-nine DIA members, most of them wheelchair users, traveled together on an Amtrak car which had seats removed to make room for all.

Yes, Disability Nation went all out to make sure the Court did the right thing. And the Court did. The Court upheld what is known as the "integration mandate" of the ADA, which ordains that individuals with disabilities must be offered services in the "most integrated setting." "Undue institutionalization qualifies as discrimination by reason of disability" the Court declared.

ADAPT and the disability community nationwide proclaimed the Olmstead decision an ADA victory. Mike Auberger of ADAPT saw it as "a critical step in changing how and where people with disabilities receive services necessary for everyday life." "The high Court, in upholding the integration mandate, has reinforced the fundamental intent of the ADA, which is to prevent discrimination and promote the integration of people with disabilities into our communities." reads the ADAPT press release.

But, though it is indeed a victory, the Olmstead ruling has some negative aspects. The Justices found it necessary to specify that only when "treatment professionals have determined that [it] is appropriate," is community placement required. Such reliance on medical professionals, who we know are often poor judges of our abilities, is contrary to the Independent Living philosophy. Psychiatric survivors, fighting forced hospitalization and forced drugging, are especially unhappy about this qualification of the ruling.

The Court also gives states a lot of "leeway" concerning the manner and the pace for community placement. "States can resist modifications that would fundamentally alter the nature of their services and programs" the Justices say. But what if a state’s programs are so inadequate that only a fundamental transformation will do? States with "a waiting list that moves at a reasonable pace will have a defense against those who file suit" the Court says. But what is a "reasonable pace?" One year? Two? Three? Who’s to judge? Those who have experienced institutionalization know that a reasonable pace for an agency can be an eternity when you’re stuck inside.

Finally, the High Court made clear that states are entitled to use as an argument in their defense "the comparative costs of treatment." Though generally it is much less costly to provide services outside the institution, there may be a few of us who would cost the state more living at home. In those instances, a state could keep us locked up forever.

In spite of the drawbacks, the Olmstead decision remains a "victory" for our community. It proves that when we are united, we are powerful and we can make our voices heard.

Busy organizing to fight the Olmstead threat, our community did not pay very much attention to the three employment cases being reviewed by the Supreme Court. And that was a big mistake. The Justices didn’t hear from us; but you can bet they heard from the business community. In the papers, the op-eds and letters to the editors were all from business interests hellbent on undermining the ADA.

The Supreme Court ruled in all three cases in favor of the employers.

The three cases are very similar. The individuals seeking the protection of the ADA were either fired or they were not hired by an employer because they did not meet certain physical requirements. In Sutton et al. v. United Airlines, nearsighted pilots (twin sisters) were not hired because they did not have the required 21/100 uncorrected visual acuity. In Murphy v. United Parcel, a mechanic with high blood pressure was fired when it was discovered that he did not satisfy the Department of Transportation’s (DOT) health certification requirements. And in Albertsons, Inc. v. Kirkingburg, a truck driver with amblyopia, commonly known as ‘lazy eye,’ was fired when it was discovered that he did not meet DOT vision standards. Interestingly enough, the examining physicians for the DOT had originally overlooked Murphy’s high blood pressure and Kirkingburg’s amblyopia and had granted certification to both.

The Supreme Court could have considered the particular physical standards required by the employers in these cases, and decided that they were indeed appropriate and necessary for reasons of safety. The Court could then have concluded that the discrimination claims of these individuals were unfounded. No one is arguing against reasonable safety standards – I would not want to be on a plane with a pilot who cannot see well enough. Contrary to what those who ridicule and attack the ADA would have us believe, the Act cannot be used to force an employer to hire someone who lacks the functional ability necessary to do the job – blind people are not suing to be hired as bus drivers nor quadriplegics as lifeguards.

If the Supreme Court had chosen to examine the particular physical standards, it could have decided that they were too strict and not really necessary; that they were based on unsubstantiated concerns about safety, and reflected prejudicial, "ableist" notions of health and fitness. The Court could then have decided that these requirements were being used to discriminate on the basis of disability. We all know that physical standards set by employers can be forms of discrimination. Certain physical requirements were used to keep ‘women’ out of jobs.

When reviewing these Title I cases, however, the Supreme Court didn’t consider at all the question of physical standards in employment. For that matter, the Court give much consideration to the question of discrimination. Instead, the Supreme Court chose to focus on whether the individuals claiming discrimination were truly ‘disabled’ and were qualified to use the ADA. The Court decided that, because their conditions do not substantially limit any life activity and/or are easily correctable, these individuals are not ‘disabled’ according to the ADA. In other words, they are not disabled enough to have the protection of the law and they are not able-bodied enough to have the job.

The Supreme Court tells us that the ADA requires those claiming the Act’s protection "to prove a disability by offering evidence that the extent of the limitation on a major life activity caused by their impairment is substantial" (Albertson Inc. v.Kirkingburg). But is that true? Robert Burgdorf says it is not, the Court is "dead wrong." And Robert Burgdorf knows what the ADA is all about. He wrote the original ADA bill introduced into Congress in 1988.

"The ADA is a mandate for equality," says Robert Burgdorf "Any person who’s discriminated against by an employer because of a real disability – or because the employer regards the person as being disabled, whether they are or not – should be entitled to the law’s protection."

The ADA’s definition of disability is three-pronged. It includes not only people with impairments that substantially limit a life activity, but also people with a history of an impairment and people who are regarded as having an impairment (and may not have one). Since the law was passed, the enemies of the ADA have complained that the ADA definition is too "vague." Well, now the Supreme Court has answered their complaints.

The so-called "vagueness" was intentional. By including those who "are perceived" as having a disability, the ADA definition reflects a recognition that disability is a social construct. Andrew Imparato, General Counsel and Director of Policy for the National Council on Disability (NCD) says: "If Congress wanted to limit coverage to people in wheelchairs, blind people, and deaf people, they certainly could have. Instead, Congress followed the advice of NCD and others and incorporated an inclusive definition of the protected class that would reach the many and varied ways that fears, myths and stereotypes come into play to unfairly limit people based on their physical or mental conditions as opposed to their work experience and proven abilities."

The idea that you have to prove you are disabled is based on "the misconception that there are two distinct groups in society – those with disabilities and those without," Burgdorf says. "People actually vary across a whole spectrum of infinitely small gradations of ability with regard to each individual functional skill, and the importance of particular functional skills varies immensely according to the situation, and can be greatly affected by the availability or unavailability of accommodations and alternative methods of doing things."

By insisting that you have to prove you are disabled to get its protection, the Court is interpreting the ADA as just another piece of benefits legislation, and not as the civil rights law Congress intended it to be. The protection of the law is being seen as a special privilege to be awarded to a special class of people ‘the truly disabled." Maybe we shouldn’t be so surprised. Ever since the 4^th Century AD, when the Code of Justinian (Emperor of the Byzantine Empire) granted to "the truly disabled" the privilege to beg in the streets (nondisabled were not allowed to beg), all laws dealing with disability have always consisted of ways to provide assistance, award a benefit, compensate for an unfortunate plight. The ADA is the first of its kind. Everyone, including the Supreme Court Justices, has great difficulty understanding what it’s all about - a civil rights law.

Civil rights laws are supposed to cover all of us. Their protection "kicks in" when any one of us faces an act of discrimination on the basis of race, creed, gender, sexual preference, age, and, yes, disability.

"You don’t have to prove "how black" you are in order to use the Civil Rights Act’s protection," writes Mary Johnson in The Ragged Edge (June, 1999, Extra). Justice John Paul Stevens who, with Justice Breyer, filed a dissenting opinion in both Sutton and Murphy, writes: "Congress focused almost entirely on the problem of discrimination against African-Americans when it enacted Title VII of the Civil Rights Act in 1964, but that narrow focus could not possibly justify a construction of the statute that excluded Hispanic-Americans or Asian-Americans or, as we later decided ‘ironically enough,’ Caucasians."

Yet that’s what the Supreme Court has done with the ADA. It has narrowed its scope and excluded a great many of us from the protection of the law.

The Court listened to and was swayed by business interests. Justice Stevens in his dissent writes: "The Court was cowed by the persistent argument that [a liberal interpretation of the ADA’s definition of disability] would lead to a tidal wave of lawsuits." Less politely, Mary Johnson points the finger at "pundits who’ve issued increasingly shrill warnings that the ADA is allowing whiners and malcontented workers to accuse employers willy-nilly of discrimination."

And while the ADA’s enemies wailed and raved, our community kept quiet. Why? Because we thought we had more urgent matters to address, more important battles to fight? Because we couldn’t really identify with nearsighted pilots the way we could with two women locked up in an institution? Because secretly or not so secretly many of our own people feel annoyed when those who are not "truly disabled" try to reap the fruits of our hard work? Whatever the reason, the damage is done.

What do we do now? More litigation? New legislation? Demonstrations? Arrests? Take it to the streets? Get the media to pay attention? Are we ready to fight back now? Now that, as Chai Feldblum, who helped draft the law, put it, the ADA is left "with a huge gaping hole right at its heart?"