BY BRADFORD MCKEE

By Wheeler Cowperthwaite [CC BY-SA 2.0, GFDL, or CC BY-SA 3.0], via Wikimedia Commons.

FROM THE UPCOMING APRIL 2018 ISSUE OF LANDSCAPE ARCHITECTURE MAGAZINE.

When Congress passed and President George H. W. Bush signed the Americans with Disabilities Act of 1990, the landmark legislation had survived broad, hostile opposition from business lobbyists who claimed its cost and liability would run companies into the ground. But with monumental effort and few exceptions, the law has succeeded in opening a once-closed world of transportation, employment, government, communications, and public accommodations to people with disabilities—and everyone else lived. Nearly all commercial businesses that serve the public have had to create full access and remove obstacles to their establishments. Design professionals, not least landscape architects, have been active at the core of this revolution, turning the law’s many dimensional requirements into reality as ramps, doors, railings, driveways, slopes, stairs, and all the rest. For most people, the law is a fact of life, and a welcome one.

“It is a civil rights issue, not a code compliance issue,” said Peg Staeheli, FASLA, a principal of MIG | SvR in Seattle. “Today we find most clients ahead in thinking about inclusive design.”

There are some retrograde types, though, who haven’t learned to live with the ADA. In February, the House of Representatives approved a bill that would significantly weaken the ADA’s public accommodations provisions. The bill, H.R. 620, the ADA Education and Reform Act, passed by a vote of 225 to 192 and was sent to the Senate, which has not originated its own companion version. If passed into law, the bill would defang the ADA by taking away a person’s right to sue an establishment for discrimination if they encounter barriers in a public place. Instead, it would send the aggrieved person into a rigmarole of correspondence to notify the property owner of the problem and wait 60 days to hear back about what the corrective measures will be. If no fix is made, it sends the case into arbitration. The message to businesses would no longer be to make sure they are free of barriers, period. Rather, they could discriminate first and see what the consequences are later.

The bill has the support of the National Restaurant Association, the International Council of Shopping Centers, the American Hotel & Lodging Association, and other business groups. They claim their members are the victims of opportunistic “drive-by” lawsuits or extortion attempts drummed up by attorneys who work in cahoots with sham plaintiffs in search of attorney’s fees (otherwise, the ADA does not offer money damages to plaintiffs, only removal of barriers).

Disability rights groups don’t buy that complaint. “At the core of this is that these businesses do not want to be accessible,” Dara Baldwin, a senior public policy analyst with the National Disability Rights Network, wrote to me. Though H.R. 620’s passage by the House surprised many people, disability rights advocates were not among them—they have been tracking similar measures, called “notification” bills, for nearly 20 years, Baldwin said, and now see a chance to pass one into law given party unity between Congress and the White House. They argue that the only purpose of these measures is to disarm the ADA’s key civil rights protections in public places. As for the brief opening section of the bill that calls for a “program to educate” property owners of their obligations, it is unnecessary. In 28 years, mountains of information have accrued to help people figure out how to comply with the ADA. It seems the restaurant and shopping center associations may be hearing, if anything, an unmet need among their members to have this free information repackaged and sold to them for guidance, so they can comply without embarrassing themselves, like everyone else has learned to do over nearly three decades.

“There’s no excuse for anything new not to have the right parking, pathway, and access from the sidewalk and the roadway,” says Emily Meeker O’Mahoney, FASLA, who has consulted frequently on ADA designs at her firm, Gentile Glas Holloway O’Mahoney & Associates, in Jupiter, Florida. There are, of course, rare variances granted for historic properties, but officials in Florida, she noted, are very on top of the law’s requirements by now. “No one gets away with anything,” she said. “This is the way we do it. It’s just the way it is.” It’s the way it should be kept.