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Matthew Diller Judicial Backlash, the ADA, and the Civil Rights Model of Disability Sometimes, legislation enacted with little fanfare proves profoundly important . Presumably the converse can be true as well: legislation enacted with great expectations can effectuate little real change. The Americans with Disabilities Act (ADA) was enacted amid high hopes for the new statute’s sweeping impact. Its statement of purpose proclaims the enormous breadth of its scope and goals, to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”1 To accomplish this purpose, Congress stated that it was “invok[ing] the sweep of congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities.”2 Supporters hailed the ADA as an “emancipation proclamation” for people with disabilities.3 The bill was signed into law on July 26, 1990, at a White House ceremony attended by two thousand supporters, including many people with disabilities. The event was an emotional watershed marked by tears and jubilation. Many present referred to it as a “second independence day.”4 More than a decade later, it is clear that the ADA will be no mere footnote in the history of American disability policy. Although dif‹cult to measure , its impact on institutional responses to disability has been profound. Still, there are reasons to fear that, particularly in the area of employment , the ADA has not yet had the transformative impact its supporters predicted. Indeed, a decade after its enactment, the judicial landscape surrounding claims of employment discrimination under the ADA looks far more bleak than one might expect, given the ambitious hopes placed on the ADA and the celebrations that accompanied its enactment. The law books are littered with court decisions rejecting claims of employment discrimination on every ground imaginable and, in some instances, on grounds that seem inconceivable. A comprehensive study of twelve hundred court decisions by the ABA’s Commission on Mental and Physical Disability Law has found that employers have prevailed in 92 percent of ‹nal judicial disposi62 tions.5 Legions of ADA plaintiffs have been thwarted by the many barriers created by judicial interpretations of the statute. Disability advocates have looked on in horror as the ADA case law has unfolded.6 In 1999, the Supreme Court rati‹ed this trend in signi‹cant respects by ruling against plaintiffs in three crucial ADA employment cases concerning the de‹nition of disability.7 Eighteen months later, in Board of Trustees of the University of Alabama v. Garrett,8 the Court held Title I of the ADA unconstitutional, insofar as it authorized private persons to bring suits for damages against the states in the federal district courts. This essay seeks to interpret the negative patterns re›ected in the federal ADA Title I case law from the mid-1990s into the ‹rst years of the twenty- ‹rst century. The generally dismal outcomes for plaintiffs can be viewed in a number of ways. First, many ADA claims may fail because they are inherently weak. Under this view, the ADA has generated a wave of meritless cases appropriately rejected by the courts. This interpretation would bear out the opponents of the ADA who predicted that the statute would invite legions of frivolous claims and that in the end, only lawyers would pro‹t from its enactment. As gratifying as it may be to some, this account is unconvincing. As discussed below, many of the court decisions are based on crabbed interpretations of the act that are at odds with its broad purposes . While it is impossible to determine what the success rate for ADA claims should be, it is clear that many plaintiffs who lose have claims that are far from frivolous. A second explanation for the trend in the case law might be that the ADA is poorly drafted in light of congressional purposes. Under this view, the problem is not that plaintiffs are ‹ling frivolous cases, but that the courts are constrained from enforcing the act in a coherent and effective way by statutory language that fails to re›ect the law’s broad goals.9 While the courts certainly have seized on statutory language to create imposing obstacles for plaintiffs, the key phrases in the ADA are, ultimately, vague. Vague language can be interpreted broadly, as well as narrowly. Despite judicial claims that the courts are simply applying the “plain meaning” of the statute, the courts are af‹rmatively choosing narrow readings over broad...

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