The Americans With Disabilities Act: 20 Horrible Years

 

At Cato At Liberty, Walter Olson has harsh words for the Americans with Disabilities Act, which has just marked its 20th anniversary. I have been a bitter and steadfast opponent of this statute since its inception, and the train of horribles that is often invoked only hardens my opposition to the statute.

The crux of the matter is this. The chief office of an antidiscrimination statute is to counteract the force of monopoly power so that a common carrier cannot force one of two identical customers to pay more than the other for the same services. In its origin, the principle was designed to prevent cross subsidies between parties. The newer statute has exactly the opposite circumstances. The rights to the services are said to be sacred no matter how different the costs of its provision. It costs more to provide a sign language interpreter to the deaf, but the statute makes no provision for covering the additional costs of providing that service, which has to come out of the provider’s own pocket. The public in these cases should have the financial courage of its convictions and underwrite the additional expenses. At that point the calculus changes because the implicit costs of the statute are now on budget.

And what will happen? There might be one rheumatologist who would be compensated to deliver that service, and instructed to do so at standard prices now that the extra costs have been covered. The on-balance sheet approach is critical. I might also add that this problem occurs with all antidiscrimination laws today. My current Forbes column talks about the same dangers under Title IX as it applies to intercollegiate sports. There are real costs to identity politics.

There are 10 comments.

  1. Member

    At my institution, we have a (larger) Minneapolis campus and a (smaller) St. Paul campus. They are separated by a three-mile-long private road on which shuttle buses run every 15 minutes.

    Halfway through the distance, is a building in which the university has its tech transfer office and its spin-off “incubator”- that is, a commercial facility with reasonably priced lab-type office spaces for rent, suitable for biotech start-up companies.

    The shuttle buses pass right by that incubator building, but cannot stop because of ADA-0 it would cost several hundred thousand dollars to build an ADA-compliant bus stop for the once every 5 years, unaccompanied “differently abled” person to get on or off there in accordance with ADA rules. You can’t make alternate accommodations, such as a “Help” buzzer. You must check every regulatory block.

    Consequently, everyone who goes to that6 site must drive his or her separate car, a distance of twice the length, as half-empty buses pass by dozens of times each day.

    Good thing we are all concerned about “unnecessary use” of fossil fuels…..

    • #1
    • July 27, 2010 at 10:59 am
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  2. Contributor
    Richard Epstein: At Cato At Liberty, Walter Olson has harsh words for the Americans with Disabilities Act, which has just marked its 20th anniversary. I have been a bitter and steadfast opponent of this statute since its inception, and the train of horribles that is often invoked only hardens my opposition to the statute.

    […]

    My current Forbes column talks about the same dangers under Title IX as it applies to intercollegiate sports. There are real costs to identity politics.

    Sonny Bunch points me to more from Olson at Overlawyered:

    The Ninth Circuit greenlights a potentially significant ADA suit, reversing a trial court that “found that the Americans with Disabilities Act and the Arizonans with Disabilities Act do not require movie theaters to provide captions and descriptions.”

    • #2
    • July 27, 2010 at 11:50 am
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  3. Podcaster

    Is anyone other than me bothered by the Braille on the drive-up ATM?

    • #3
    • July 28, 2010 at 1:58 am
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  4. Inactive

    The employment discrimination provisions were just as ill-conceived. Congress gave its typical less-than-impressive effort defining exactly who is disabled and, as is their habit, left the hard work to executive agencies and, ultimately, the courts. Then Congress had the temerity to fuss when the Supreme Court didn’t prove clairvoyant enough to extend disability protection to as many people as Congress later decided they would have liked the ADA to cover. The result was 2008’s “ADA Amendments Act.” I know what you’re thinking: “Hmmm, an amendment – it must have fixed the problems.” It didn’t; actually, since the ADAAA didn’t actually change any operative statutory language, I have questioned whether it did anything at all. If it did anything, though, it just made the problems worse.

    Oh, and we can’t point the finger here at the Obama administration: George H.W. Bush signed the ADA, and George W. Bush signed the ADAAA.

    • #4
    • July 28, 2010 at 3:32 am
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  5. Member

    It takes guts to argue against disability legislation, even if it is statist.

    • #5
    • July 28, 2010 at 4:35 am
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  6. Inactive
    Michael Labeit: It takes guts to argue against disability legislation, even if it is statist. · Jul 27 at 4:35pm

    there is sort of the crux of our problem in general with a lot of legislation, even non-disability. How do you make the broader economic and moral arguments against a proposal which intends to help people, but which may in fact cause more harm, without sounding like a monster? Until you can do that the politicians who can look at a piece of legislation objectively will keep their mouths shut for fear of the Wrath of the Echo Chamber.

    • #6
    • July 28, 2010 at 6:14 am
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  7. Inactive

    This is a classic dividing line between “compassionate conservatives” and small govt conservatives. Sarah Paln has declaimed repeatedly in support of thid abomination of a law. Well, as a father of a disabled child, I understand the emotional instinct. But we more sensible types understand that whenever we force one “right” answer on an issue that could otherwise be quite amicably be hashed out between consentng parties, we merely shift the cost to someone else.

    Any time we warp voluntary exchange we end up imposing costs on Party A to alleviate Party B from the horror of making a free choice.

    • #7
    • July 28, 2010 at 7:14 am
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  8. Inactive

    This isn’t from the Onion, but from today’s San Francisco Chronicle:

    On the 20th anniversary of the Americans with Disabilities Act, a federal appeals court said the law entitles wheelchair users at a restaurant to the same view as everyone else at the food that awaits them – in this case, burritos, tacos and the rest of the fare at Chipotle Mexican Grill.

    The 45-inch-high wall between the customer line and the food preparation counter at two Chipotle restaurants in San Diego County, which blocked the view of patrons in wheelchairs, violated the 1990 federal law that requires equal treatment of the disabled, the Ninth U.S. Circuit Court of Appeals in San Francisco said Monday.

    The court said the accommodation the company offered – bringing spoonfuls of each dish to wheelchair users for inspection before ordering – didn’t measure up.

    That would provide only “a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food,” the court said in a 3-0 ruling.

    What can one say?

    • #8
    • July 28, 2010 at 7:49 am
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  9. Inactive
    Michael Labeit: It takes guts to argue against disability legislation, even if it is statist. · Jul 27 at 4:35pm

    I’m not opposed to disability legislation per se, but I do expect that Congress, when it acts, will do so deliberately and competently. Congress made a complete hash of the ADA and left employers and public accommodations with nothing approaching clear guidance on their obligations under the new law. That imposes costs in terms of time, confusion, and litigation.

    And don’t get me started on the Family Medical Leave Act.

    • #9
    • July 28, 2010 at 11:26 am
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