Disabled ADA: How a Narrowing ADA Threatens To Exclude the Cognitively Disabled, The

Brigham Young University Law Review, 2006 by Catchpole, Nathan, Miller, Aaron

Undaunted, the Court cites as authority not the congressional record, but a law review "article authored by the drafter of the original ADA bill introduced in Congress in 1988,"134 who recounts several disability estimates, utilizing various conceptions of disability, that preceded-and are not mentioned in-the House or Senate Reports that accompanied the bill.135 Justice Stevens, in his dissent, notes: "Given the inability to make the 43 million figure fit any consistent method of interpreting the word 'disabled,' it would be far wiser for the Court to follow-or at least to mention-the documents reflecting Congress' contemporaneous understanding of the term: the Committee Reports on the actual legislation."136 The Supreme Court has repeatedly stated that the most authoritative source for legislative history is committee reports.137

No matter how logically interpreted, the sources the Court cites to substantiate its "43 million is exclusive" claim are not, by its own standards, the most authoritative. Since Congress itself did not document the process it followed to arrive at the 43 million estimate,138 and because it is not actually a coverage provision to apply, it would seem unnecessary to imbue "43 million" with any meaning either way.

Left with a neutral "43 million," facial ambiguity regarding corrective measures, and legislative history strongly suggesting that corrective measures are irrelevant, the Court could have been "faithful to the remedial purpose of the Act" and "give[n] it a generous, rather than a miserly, construction."139 As Justice Stevens notes, "It has long been a 'familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.'"140 In light of those purposes, Justice Stevens concludes that the ADA's three-prong disability test can be "most plausibly read together not to inquire into whether a person [has an impairment]-past or present-that substantially limits, or did so limit, the individual before amelioration."141 He continues, "This reading avoids the counterintuitive conclusion that the ADA's safeguards vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations."142 Addressing the fear of over-inclusiveness, Justice Stevens concludes that letting more disabled persons "in the door" is not worrisome because u[i]nside that door lies nothing more than basic protection from irrational and unjustified discrimination because of a characteristic that is beyond a person's control."143 In that light, "[n]one of the Court's reasoning . . . justifies a construction of the Act that will obviously deprive many of Congress' intended beneficiaries of the legal protection [the ADA] affords."144

Since the Court's formalistic justifications, however debatable, had already substantiated its holding, to interpret "43 million" as exclusive in support of an exclusive holding is to reveal, if not explain, a propensity to narrow the ADA's coverage. Worse yet, it sets a tone of narrowness that can be seen in subsequent decisions.