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The ADA: Attorney’s Dreams Answered

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President Bill Clinton declared on July 26, 1994: “The Americans with Disabilities Act is a national monument to freedom. Contained within its broad pillars of independence, inclusion, and empowerment is the core ideal of equality that has defined this country since its beginnings.” In reality, the ADA has become a symbol of the confused, paternalistic, interventionist concept of modern freedom-a freedom based solely on government twisting some people’s arms, grabbing some people’s wallets, and risking some people’s lives to provide special treatment to others.

The American with Disabilities Act was enacted with the best of intentions in 1990. However, the law has turned into a Full Employment for Nightclub Comics Act.

The YMCA is being sued for $20 million by David Schultz, a deaf lifeguard, who was dismissed after the organization, seeking to comply with the ADA, established clearer guidelines on who could be a lifeguard. The YMCA ruled that lifeguards must be able to “hear noises and distress signals;” Schultz is “profoundly deaf” but claims to have “enhanced visual alertness.” Schultz complained that the YMCA “chose to prejudge my capabilities rather than fairly judge them.

That is what prejudice is all about.” YMCA spokesman Steve Hockensmith told the Los Angeles Times : “This is a situation where the Y had a choice to make between the safety of the people in its pools and the desire of an individual to be a lifeguard.” Perhaps a “reasonable accommodation” would be to require everyone who goes swimming at the YMCA to learn sign language and promise not to go under for the third time until they had caught the lifeguard’s eye. YMCA officials in Massachusetts dissented from the national office’s ruling and argued that more should be done to help staffers such as Schultz “reach their full potential,” as the Times reported. This epitomizes how the ADA is sacrificing some people’s safety to other people’s self-esteem.

The Disabilities Act has led many states and localities to change their hiring requirements for police officers. As a result, sliding scales have often been created that created much easier physical fitness tests for older and female applicants. Edward Guzdek, president of the Police Conference of New York, an organization representing over 20,000 New York cops, condemned the new hiring standards: “We are totally opposed to it. They say older people can do the job, then they relax the standards as you get older. They say women can do the job and say they’re equal, then they change the standards for women. . . . It’s a shame to say everybody can do our job and then have different standards for different people.” Perhaps Congress should pass another law that requires all would-be criminals to provide “special accommodation” to the newly-hired police officers by not running too fast or struggling too vigorously against an arrest.

The vagueness of the law encourages federal attorneys to butt-in wherever a good press release can result. The National Collegiate Athletic Association (NCAA) recently revised its regulations to cease recruiting high school athletes who were unprepared for college-level work. The Justice Department on March 1 dropped the hammer on the NCAA, outraged that its new regulations may violate the ADA because of alleged discrimination against students with learning disabilities who have not taken high school courses that would prepare them for college.

A group of deaf people in Cleveland sued the National Football League, claiming that the “blackout rule” prohibiting television broadcast of home football games that had not been sold out at least 72 hours before the game violated the rights of the hearing-impaired. (The games can be broadcast on radio, but that does not do deaf people a lot of good). A federal judge ruled in February that the blackout policy does not discriminate, since it treats deaf and non-deaf people equally.

The ADA has done little to help the severely disabled; only 14% of ADA complaints to the EEOC so far have concerned highly-visible disabilities such as blindness, deafness, or being wheelchair-bound. Handicapped-rights activist William Bolte recently noted: “The most frequent employment complaint under the ADA is from those already employed who only discover that they are disabled when facing dismissal or passed over for promotion.”

Perhaps worst of all, the Disabilities Act is not in the interest of many handicapped Americans.

Medical and rehabilitation professionals seek to minimize the number of truly disabled people. But the ADA has turned disabilities into prized legal assets, something to be cultivated in courtrooms for financial reward. The ADA creates a powerful incentive to maximize the number of Americans who claim to be disabled, since the claim of disability amounts to instant empowerment in the eyes of the law. University of Rochester Professor Walter Y. Oi (who himself is blind) observes: “The ADA will result in an inflated population of disabled persons whose welfare will become increasingly dependent upon an ever growing federal bureaucracy.”

America has made great and laudable progress in treating the handicap with greater respect and consideration in recent decades. But the ADA is a step backwards because it sets up bureaucrats, lawyers, and judges as czars over private voluntary agreements. And enlightened despotism-even for a good cause-is not the path to progress.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.