On Jan. 26, one of the most sweeping civil-rights laws in our history will take effect, with the potential for changing--profoundly and forever-the way public education hires and maintains its personnel. The law is the Americans With Disabilities Act (Public Law 101-336), known simply as “the A.D.A.” As of this month, all “public entities” (that is, any agency of state or local government) must comply with the law’s sweeping and detailed provisions prohibiting discrimination against persons with disabilities in all public services--and especially in employment.
The A.D.A. prohibits discrimination not only against job applicants with disabilities but also against any of the 7 million people now employed in public education, from preschool to grad school, from the board room to the boiler room. Because of the inclusive nature of the law and its final regulations, as many as a third of these employees--well over 2 million men and women could have their jobs and careers protected by the A.D.A.
Although the law’s impact will be felt throughout public education, most administrators and trustees have been slow to understand its significance or make preparations to comply. Education’s inattention to the A.D.A. may stem from the fact that the law’s anti-discrimination provisions for employment are rooted in Section 504 of the Rehabilitation Act of 1973. Mention Section 504 to virtually anyone in education and the response will likely be, “Oh, we know all about that. We’ve been complying for years.” And to a great extent that’s true: American public education has worked hard to make its schools, colleges, and programs accessible to any “handicapped person,” as required by Section 504 of the Rehabilitation Act and the subsequent Education for All Handicapped Children Act and the Architectural Barriers Act.
But Section 504 is not the ho-hum end of the matter. Rather, as incorporated into the A.D.A., Section 504 represents a historic new beginning. That becomes quite clear, if you look at (1) the A.D.A. itself, (2) the demography of the education workforce, and (3) the demography of chronic illness and disability-and then see how these three bodies of information intersect.
In drafting the A.D.A., the Congress abandoned the phrase, “handicapped person,” and chose the longer but more accurate and more acceptable “qualified individual with a disability."A “qualified individual” is someone who can do a particular job. Fair enough. But what is a “disability”?
The U.S. Justice Department says in its final A.D.A. regulations (specifically, 35.104) that a “disability” is “a physical or mental impairment that substantially limits one or more of [an individual’s] major life activities.” (One “major life activity” is “working.”) The Justice Department then added this list of impairments recognized under the A.D.A.:
“Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; [any] mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”
The Justice Department’s regulations also say that “the phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, H.I.V. disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.”
Most educators have understood and complied with Section 504 in order to extend educational services to children or young adults with moderate to profound physical and mental impairments. The A.D.A. retains those aspects, but goes much further: It speaks to illnesses and disabilities that principally affect adults. This is the new and specific language of the A.D.A. that educators need to study--and quickly--because, as of Jan. 26, that language is the law, with major implications for every employee in public education.
Today, those employees number some 7 million men and women. But, when viewed through the prism of the A.D.A., they are a particularly vulnerable population. The reason can be traced to the way this workforce evolved over the past 30 years.
The most significant factor in that evolution was the Baby Boom of the 1950’s and 60’s: More than 4 million children were born each year for the 11 years between 1954 and 1964. (The United States would not achieve such high annual birth levels for another 35 years--until 1989.) In order to absorb the Baby Boom generation, America in the 1960’s and 70’s built thousands of new schools and hired tens of thousands of young teachers and administrators to staff them. Little wonder that, in 1976, the average age of the nation’s 2 million teachers was only 33.
But the Baby Boom generation has grown up and now dominates the American labor force. The U.S. Labor Department notes that the average age of today’s worker is 37 (born, of course, in 1954). However, the average age of today’s teacher in K-12 education is a significantly higher 41 (for administrators, 44). Obviously, a very high percentage of those young professionals hired in the expansionist 1950’s and 60’s are still on the job in our schools, approaching--but not quite ready for--retirement.
The employment demographics are even clearer in higher education. The college and university workforce was expanded to prepare for the Baby Boomers who enrolled in the late 1970’s and 80’s. That enrollment bulge has come and gone, with few Baby Boomers staying behind as employees; hence, the average age of college and university faculty members is a much higher 47.
What all these data confirm is that half or more of the employees in public education are “fortysomething” or older; they are already at significantly higher risk for the chronic illnesses and disabling conditions so carefully enumerated in the Justice Department’s A.D.A. regulations.
We all know from personal experience (and from the popular press) that the older we get, the more vulnerable we get. But how vulnerable? Is it possible to sketch out a “demography of chronic illness and disability” within the education workforce? Yes, to some extent we can. In fact, The Come/Back Foundation, a nonprofit enterprise with which I am affiliated, is pursuing this area of research in the development of a “Health Status/Disability Index” for large employee groups. By using such an index, together with health-promotion and wellness programs, public educators can anticipate employee needs and reduce compliance problems under the A.D.A. The index, however, makes special use of much information that we already know:
- We know, for example, that the leading cause of functional limitation in this country is arthritis, a chronic condition that affects about 78 of every 1,000 persons between the ages of 45 and 54.
- We know that 7 million Americans have heart disease; about 280,000 have had bypass surgery at age 45-plus--and most return to work.
- We know that one of every four persons diagnosed as having AIDS today is between the ages of 40 and 49.
- We know that chronic lower-back pain is most prevalent among persons ages 45 to 64 and, among some professions, is the leading cause of disability.
- We can also approximate the incidence of certain chronic illnesses and disabilities within the education workforce itself.
For example, we can expect about 1,120 cases of breast cancer among the roughly 1 million women today nationwide who are K-12 teachers and over 40 years of age. State-by-state annual incidence rates for breast cancer among teachers look something like this: Ohio, 40 or so cases; Pennsylvania, 42 cases; Texas, 79 cases; and so on. Again, each of these teachers can protect her job and her career with the help of the A.D.A.--and her enlightened principal and superintendent.
But the latter are also protected by the A.D.A., and it is fortunate they are. Although most of the current evidence is anecdotal, we nevertheless suspect a high incidence rate of coronary heart disease among the approximately 96,000 men over the age of 45 who administer public education at both the district and building levels. Extrapolating from U.S. public-health-service and education data, we estimate that some 13,300 of these men nationwide have--or will have--coronary heart disease (with some 600 eventually needing bypass surgery).
Among the states, the picture probably looks like this: Florida, with some 200 heart cases among its older, male, district-level administrators and just under 400 cases among its older, male, elementary and secondary building-level administrators; Michigan, about 110 district-level and just over 300 building-level cases; Colorado, about 60 district-level and 165 building-level cases; and so on. Again, each of these administrators, as “qualified individuals” on the job, can protect his own job and career with the help of the A.D.A. and an enlightened school board.
We believe these statistics make a compelling case for compliance with the A.D.A. And for these reasons, we urge state and local educators everywhere--at every level of public education, from preschool programs to postdoctoral training--to become familiar with the law, to understand the character and health status of the education workforce, and to recognize the ways in which the law affects and protects that workforce.
We believe these to be fundamental actions that everyone in public education can and should take, as together we enter the new “A.D.A. era,” a time when qualified individuals will no longer suffer discrimination on the job because of a chronic illness or disability. That is both the spirit and the letter of P.L. 101-336, the Americans With Disabilities Act, a powerful and creative new instrument for equity in education.
A fact sheet on the Americans With Disabilities Act is available free to those sending a self-addressed, stamped envelope to The Come, Back Foundation, 5517 Trent St., Chevy Chase, Md. 20815.
A version of this article appeared in the January 22, 1992 edition of Education Week as Grasping the Impact of the A.D.A. Era