Sometimes the cruelty in an action of the U.S. House of Representatives shocks even those of us who have low expectations for its enlightened leadership.

On the same day that they could have stepped forward to advocate for responsible gun laws or to insist that the president enact its sanctions against Russia or to develop legislation to protect Dreamers from draconian ICE policies, they instead turned their attention to the passage of a bill that weakened the rights of disabled Americans.

Essentially, on a party line vote of 225-192, the House of Representatives voted to change the Americans With Disabilities Act (ADA), one of our country’s signature civil rights milestones, to make it harder for disability rights groups to file lawsuits to sue for discrimination and to encourage businesses to lessen their commitment to equal access to public accommodations.

Changing The Rules

It seems that the legislation is largely a solution looking for a problem because of the suggestion that “drive by lawsuits” are being filed by trial lawyers looking for easy settlements.  There is little evidence that this is the case and that frivolous lawsuits are the by-product of the ADA law.

More likely, it was driven by the zeal of the majority party to act with regularity on issues that fall under the heading of “tort reform.”

The House of Representatives legislation sets new hurdles for violations of the ADA law by putting its thumb on the scales of justice in order to side with business interests.  As disability rights groups said, the bill effectively guts ADA, because without the fear of being sued, businesses may be inclined to ignore ADA rules altogether.

More to the point, the bill – called the ADA Education and Reform Act – would require people with disabilities to make sure businesses comply with the law rather than businesses simply following the law and doing what is right.  It is this shifting of responsibility that is the most egregious because it sets back the rights of the disabled by 27 years.

Misguided Priorities

That a law that has effectively proven its value since 1990 was changed so dramatically and cavalierly is a testament to the misguided priorities of the House of Representatives and their ultimate fealty to big political donors.

It’s worth remembering that when ADA was passed, the disabled community made compromises with the business community, giving up the potential for obtaining damages for failure to comply with the law.

Memphis Congressman Steve Cohen said it well: “We know of no other law that outlaws discrimination but permits entities to discriminate with impunity until victims experience that discrimination and educate the entities perpetuating it about their obligations not to discriminate.”

That’s because the change in the law once again treats the disabled as a special interest group instead of as fellow Americans who deserve full access.  That precisely was the attitude that existed prior to passage of the Americans With Disabilities Act.

Pyramid Complaints

That was certainly the case in Memphis where local government greeted almost every complaint from the disabled community with resistance.  This was the instinct when complaints about access were made with the opening of The Pyramid in 1991, and lawyers for Memphis and Shelby County Governments rejected objections out of hand with a response that the new arena had been built in keeping with existing building codes.

The problem was the ramp on the south side of The Pyramid.  It rose from the parking lot level at an angle to connect with an entrance on the main floor.  It was the way to enter the building from handicapped parking which was located near the ramp.

Disabled Memphians complained that the angle of the slope was daunting and difficult for someone in a wheel chair or on crutches. That said, they were told the angle was permitted by the building codes and the Memphians were told that they had no grounds for complaints.

That was until the first general manager for The Pyramid, Russ Simons of Leisure Management International, conducted an experiment.  He got a wheel chair and said he would go up the ramp.  Healthy and active, he started out with enthusiasm which flagged as he moved higher and higher up the ramp.

As we recall it, he did eventually make it, but not without difficult and over an extended period of time.  He then challenged others who resisted the concerns of the disabled Memphians to try it.

Finally Settled in 2013

Within a matter of days, with Mr. Simons advocacy, design and construction had begun on a new ground level entrance to The Pyramid just to the east of the ramp.  It provided easy entry into the arena at the level of the basketball court.

It was an important date for The Pyramid, not just because it resulted in a new entrance but because it proved the value of treating disabled members of the community as customers whose experience in the new arena should be just as enjoyable as anyone else.

Unfortunately, the resolution to The Pyramid’s problem did not result in a comprehensive commitment to access in public buildings, and Memphis was the target of a U.S. Department of Justice review a few years later to determine if it was in ADA compliance.

It wasn’t, and the review produced a lengthy list of city-owned buildings that were to comply with the new construction or alterations requirements of the law.

Progress was made in satisfying the Department of Justice and the last component to be put in place was not announced until January 28, 2013: accessibility for people with disabilities at Liberty Bowl Memorial Stadium.

The Russ Simons Test

“Today’s agreement marks a new chapter for historic Liberty Bowl Memorial Stadium, which will permit all spectators, with and without disabilities, to attend college football games – both regular season and bowl games – at the stadium,” said DOJ assistant attorney Thomas E. Perez.

Under the settlement, Memphis agreed to install a total of 282 wheelchair spaces and an equal number of companion seats around the stadium at Rows 25 and in the upper concourses on the home and away sides of the Liberty Bowl.  The agreement also required additional wheelchair spaces in seating areas renovated in the future, such as the suites and press boxes.  In addition, Memphis ensured ADA compliance for concession stands, gates, elevators, suites and press boxes, ramps, and restrooms throughout the Liberty Bowl.

The settlement required Memphis to “retain an architect to certify that the city has corrected each ADA violation and Memphis must report its progress to the United States.”  Ultimately, City of Memphis hired Tom Marshall of O.T. Marshall Architects, and after a decade of Memphis dragging its feet because an in-house employee projected the cost of ADA compliance at around $40-45 million, the ADA improvements were made at a cost at around half that amount.

In other words, Memphis’ relationship with ADA regulations has not been without conflict, but if you ever question the wisdom of this law, try the “Russ Simons test.”  Get yourself a wheelchair.


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