You're listening to the Disability Law Lowdown Podcast, show number 61.

Beth Case: Hello, everyone. This is Beth Case, the producer and editor of the Disability Law Lowdown podcast. And today's episode is quite a bit longer than what you're used to. It's going to run close to an hour. But the conversation is so fabulous and this is such a good episode, I just couldn't bring myself to cut into pieces and release it as separate episodes. So I hope you enjoy it!

Lex Frieden: This is Disability Law Lowdown and I'm Lex Frieden you're host for the program. We have with us, John Wodatch who many of you probably already know. John works for the United States Department of Justice and he's the chief enforcement officer for the Americans with Disabilities Act. John, welcome to Disability Law Low Down.

John Wodatch: I'm delighted to be here with you all today.

Lex Frieden: Now, John, I've described you as the chief enforcement officer. Is that actually accurate? Is that your job title?

John Wodatch: That job title is chief of the Disability Rights Section, but government titles can be obscure and in fact, you are correct. I head up the office that is the unit at Justice that enforces the ADA.

Lex Frieden: And how long have you been in this position?

John Wodatch: I've been there since the beginning. We started…Attorney General Dick Thornburgh established a separate office in 1991, the year following the passage of the ADA and just before the department issued its regulations interpretations interpreting the ADA. So it's been 20 years.

Lex Frieden: Well, we'll go back before that in a minute, John, but just because you mentioned it, I believe frankly that one of the most important aspects of ADA actually followed the passage and signing enactment of the ADA and that was when the president, President Bush, George Herbert Walker Bush, stated that he wanted to see regulations for that law within 1 year of enactment. Is that accurate?

John Wodatch: Oh, it is very accurate. The law had that built in that we had to do regulations within a year and I can tell you both the president and Attorney General Thornburgh were determined that we would have regulations out in a year and it was a no mean feat, because we were not only doing the regulations here at the department of Justice, but the access board was coming up with what were the first minimum guidelines for what constituted accessible facilities and I look back on that now and marvel that we were able to do all that, what I think was ground breaking work at that time, in that period of time and finish it on time.

Lex Frieden: I mean, John, isn't that exceptionally aggressive in terms of timelines for regulations following a complex piece of legislation like ADA?

John Wodatch: Oh, incredibly so. If you look at our recent update of the regulation took 7 years. So the fact that we were able to start and complete all the regulations for state and local governments and for public accommodations was amazing. Now we did have the section 504 regulations as a model, but it was still amazing to get the regulations written, go through a notice and comment period, and go through–do a regulatory notice impact analysis and get all the approvals in the administration.

Lex Frieden: But you must have known in the process that was coming?

John Wodatch: Well, we certainly knew. We had been working on getting the ADA passed and so we had been very actively involved, knew and understood the issues, had worked with the members of congress and with a disability community in terms of getting the law enacted, but still getting them written and through took a lot of work from the staff at the Department of Justice as well as commitment from the president and his people.

Lex Frieden: Now, as I recall, one of the issues that we, the disability community, the advocates, had and frankly the National Council on Disability was concerned about it as well, had to do with reflection back through the date of passage of the Rehabilitation Act of 1973 which incorporated the title 5 and particularly sections 503 and 504. There was a lot of unhappiness and unhappiness with frankly the frustration lead to action by people with disabilities in the 1970s following the passage of the ’73 act, because regulations were in effect never written and never promulgated and as a result of that, the law was a law on paper and there was no way to enforce it or to use to benefit the people for whom it was intended. I say never written, they weren't written until people with disabilities sat in federal office buildings all over the country and San Francisco for an extended period of time until people, hundreds and thousands of people with disabilities wrote letters and caused a really public attention. I mean the first time I recall in my life that disability was ever on a story on the CBS evening news was when Walter Cronkite called Frank Bowe who was then head of the American Coalition of Citizens with Disabilities and wanted to interview him as the lead story following sit-in's by people with disabilities around the country complaining that the regulations had not been promulgated for section 504. John, I know you remember those days very well.

John Wodatch: I certainly do and you're recollection is accurate. It was an amazing time and I think it was probably the first time that the public got to understand the power of the disability rights movement, the organization of the disability rights movement in terms of the sit-in's that occurred in San Francisco and here in Washington D.C., the demonstrations by people with disabilities, a large number of students from Gallaudet were involved in those demonstrations and they were really…these were taking place early in 1977 and they were really the emphasis that got President Carter and the secretary of HEW, Joe Califano to finish work on the regulations and get the regulations on section 504 out in the public domain.

Lex Frieden: Now, as I recall you were a young attorney working in the department of health education and welfare at the time, is that correct?

John Wodatch: That's correct. I started believe it or not as a civil rights attorney in 1969 at HEW.

Lex Frieden: And–

John Wodatch: An entity that doesn't even exist anymore. Most people probably don't even know what that is.

Lex Frieden: Well, it's morphed into the department of labor and the department of health and human services and the department of education.

John Wodatch: That's correct.

Lex Frieden: John, the…at the time you were sitting in HEW and were you attending to…were you even knowledgeable about or interested in this disability law that was passed ’73?

John Wodatch: Yeah, we had started work on it believe it or not in ’74. Especially when congress was considering what became the amendments to the rehab act that happened in ’74. We in the civil rights office at HEW started the process. We were able to hire some persons including people with disabilities and really began reaching out to the disability rights community as well as to entities covered by HEW to try to come to grips with what discrimination was on the basis of disability, what a regulation should be. I look back on that period of time as a period of incredible intellectual ferment. We were trying to take the concepts that were in race discrimination and sex discrimination and apply them to the concept of what discrimination on the basis of disability was.

Lex Frieden: John, as I recall I was invited to come to Washington in about 1975 to sit on a panel of folks to discuss regulations for 503, and I believe you were one of the observers at least in that small meeting over there. The discussion at that time had to do with some of the sentinel principles of the legislation which really hadn't been defined and one of those reasonable accommodation as I recall.

John Wodatch: That is correct, and if I have to look back in my career and look at important moments, coming to terms with what discrimination was, I think one of the most important things that we did at that point was establish the concept that discrimination on the basis of disability meant that entities would have to take what we would call positive steps. So in the employment arena it was reasonable accommodation and that phrase was already in existence in Title 7 of the Civil Rights Act of 1964 for religious discrimination, but we looked at it and it was very much–it had been interpreted fairly narrowly by the courts and we wanted to adopt that concept, but we didn't want the narrow interpretation that a case called TWA versus Hardison had given it. We wanted reasonable accommodation. Sure of course it had to have a defense of undue hardship, but we wanted it to be extensive, because otherwise outlawing discrimination on the basis of disability without it would be in argue really meaningless, because you had to just saying we'll treat everyone exactly the same would not eliminate discrimination. So at that point including the concept of reasonable accommodation into the 503 regs, into the 504 regs was one of the most important things that we did.

Lex Frieden: I remember at that meeting there was a lot of discussion about that particular phrase and what it meant and some of the department of labor officials really couldn't apply it in the disability context and I shared with them my experience as a student having broken my neck in 1967 and then being turned down by a university in 1968 because I used a wheelchair for mobility, applying at another university where they wanted to admit me, but there were no accessible buildings there and I raised the question when I met with the dean of admissions in the parking lot of the University of Tulsa and they said, “Look there across the grass and you'll see a building that will be finished in construction by the time the next semester begins, that building will have an elevator, what you need to do is look through the catalogue and tell us which courses you wish to take, we'll see that they're located in that building.” And that to me was the first example of reasonable accommodation I could imagine and it seemed to be a useful story to provide folks who wanted to understand it better and in fact I used that personal experience when we were advocating later for ADA.

John Wodatch: And it's fairly forward looking person you were dealing with at the time, because we were also encountering people who didn't think that was appropriate. That was, you know, affirmative action and non-discrimination and it took us awhile to convince people that treating people who are dissimilarly situation in the same way is an act of discrimination. We look to–there was a Supreme Court precedent about the same time a case called Lau v. Nichols that dealt with the education of Chinese speaking children in San Francisco and the Supreme Court basically said, “Just teaching them in English is an act of discrimination.” And so we took that principle, adapted it, expanded it, and applied it to the disability concept and not just in the employment situation but as you're talking about in terms of academic adjustments and, you know, it spreads out to insuring that, you know, if you have a no pets policy it doesn't mean a person who uses dog as a service animal shouldn't be allowed in the building all the way to, you know, changes in policies, practices, and procedures where modifying them well–is necessary to allow people with disabilities to participate, and your example at Tulsa is really the beginning of a very important chapter in the world of deciding what discrimination is on the basis of disability.

Lex Frieden: John, the…during those days, in the 1970s after the ’73 act and the ’74 amendments, you were…busy considering what those regulations might be. In fact, I think you had an early draft. As I recall, we were lobbying in Washington to get Secretary Califano to sign regulations which in fact you had written if not months even perhaps years before.

John Wodatch: It was years. Probably the first draft–our first draft was probably in ’75, but getting them out as your point took demonstrations, lawsuits and a variety of other actions.

Lex Frieden: I don't know. Were you in the room with the secretary when Eunice Ferito who was a visually impaired woman that was president of the American Coalition of Citizens with Disabilities? Eunice and a few of us went to the secretary's office. None of us could get in, but Eunice, literally she was a woman of large stature and she managed to corner the secretary and not simply plead, but demand that he sign the regulations and I think later on that very night a group of people with disabilities went to his home and had a candlelight vigil. The story is told that his wife, the secretary's wife saw the disabled people with candles outside their home and told the secretary that he should do whatever was necessary to assuage their concerns. Do you remember those?

John Wodatch: Oh, and I'm delighted that you bring up Eunice Ferito, because she's one of my heroes of the disabilities rights movement and many people don't know the story, but I too was at that meeting. I remember it well. I knew it was going to happen. I had talked to Eunice beforehand and I knew that the disability community was going to go and meet with Secretary David Mathews who was head of–it was Mathews at that point who was head of HEW, and he had been president of the University of Alabama school system. He was a very gentlemanly man. I walked into the room and Eunice Ferito and other representatives of the disabled community were sitting having tea and coffee in china cups. It looked like a very elegant setting, but it became very clear that Eunice wasn't going to leave the room. It was basically a sit-in until David Mathews promised that he would issue regulations and we sat down in that meeting and worked out the agreement. We would issue an advance notice of proposed rulemaking within 60 days, after that we would issue a final–a proposed rule making, and if you look at the record, we did follow through on those…on those…both of those dates. We put out an advanced notice of proposed rulemaking, we had a series of hearings around the country, then we put out a proposed rule and had another series of public hearings, but then the rub came was whether the administration was going to issue final rules and in fact they did not which is why when the Democrats came in and Joe Califano took over, the disability rights community thought that one of the first things he would be doing would be issuing regulations. When he said, “I'm going to take a long at them, I'm not just going to issue something that was done in the last administration.” That's when it triggered the vigils, the sit-in's and the action.

Lex Frieden: Okay. I'm glad you sorted the history out, John. Thanks for that. Among the concepts that really were pertinent at that time was we talked about reasonable accommodation, but I recall another one that provoked a lot of discussion and that was undue hardship.

John Wodatch: That's correct. It was…it was the beginning of understanding that there are costs obviously involved in making the built environment accessible and making…and making accommodations and the issue was how far the obligation went, and I think…the concept of undue hardship was already there in Title 7, but it was a very strong–I mean it was a very weighty, you know, it didn't take much to get to undue hardship and what we wanted to do with Section 504 and with Section 503 would say, “Reasonable accommodation, we're talking about entities that are receiving federal financial assistance from the government, undue hardship has to be pretty significant before it's a limitation.” And so we have what became, we set up a series of criteria for what becomes–what you have to do to reach undue hardship so that it wasn't just something that oh, they can say that's just too hard, we can't do that. That was not what we had in mind and we were–tried very clearly to make sure that we were talking about significant difficulty or expense is what had to be triggered in order for it not to be a reasonable accommodation.

Lex Frieden: Okay, and I guess, John, a lot of that was motivated as you said by the fact that at the time we were thinking about–more about influencing how federal funds or tax payer dollars were spent than we were about private entities, is that correct?

John Wodatch: That's correct. You know, cause we were–because Section 504 only applied to entities that received federal financial assistance. Now, HEW was a very broad agencies and it included all the hospitals and doctors in the United States, it included colleges and universities, elementary and secondary schools, it included the entire welfare system and so we were talking about a large segment of the American alignment of corporations, but it was some of them were private, but it wasn't what we were talking about now with the ADA. It was entities that were receiving federal financial assistance. So the idea was these are entities that are receiving funds from the government, they have an additional obligation to insure that people with disabilities can participate in the programs that are being funded with tax dollars.

Lex Frieden: So all of that served well. Were there any other key concepts that in reflection…?

John Wodatch: I think one new one that was–that had not been in existence before was what pre-employment inquiry. How much could you ask of a person with a disability and we went to great lengths to insure that, you know, we weren't going to have a card carrying, you know, group of people who had to be identified. People had rights and they didn't have to release a great deal of personal information about themselves in order just to enjoy their rights, and I think that was another key concept and so the concept of pre-employment inquiries and pre-admission inquiries and limiting the amount of information that someone with a disability had to reveal would be limited to only certain people and only certain types of information. I think that was the beginning of another important principle that we have developed over the years.

Lex Frieden: Now, John, jumping forward a little bit in the 1980s of course, the National Council on Disability produced a report called Toward Independence which the first recommendation we made was to have a law that was in effect a non-discrimination law aimed at people with disabilities or aimed at eliminating discrimination as it relates to people with disabilities. You heard about that. I mean we consulted with you in the process.

John Wodatch: Right.

Lex Frieden: Developing that, the few paragraphs where we talked about that. So you had actually been thinking about how to expand the–or what the next logical step in terms of legislating non-discrimination was even since ’73 Act, right?

John Wodatch: Yes, cause it was clear to us even though we had managed to get the principles out of what non-discrimination on the basis of disability was, it only applied narrowly. So it only applied to entities that got federal financial assistance so that if there was parts of a local government that didn't receive funds they had no obligation not to discrimination. There were vast public, what we think of as public accommodations, business, you know, 7-11's, department stores, things that weren't covered by Section 504 and we had looked to, you know, we always had to look to the other federal civil rights clause. We had Title 2 of the Civil Rights Act of ’64 provided relief for African Americans in terms of public accommodations and so we could make–we started to make the case in the ’80s and Towards Independence was the seminal document that started that off to give to people with disabilities the same kinds of civil rights protections that other people in the country enjoyed. It was just a matter of fundamental fairness by the government to insure that people with disabilities were equal citizens with everyone else.

Lex Frieden: Now, by this time in your career, John, you were more or less consumed by Disability Rights. I mean, what point did you decide that your fate was to work in this very narrow area of legislative law?

John Wodatch: Well, I think that happened pretty much by 1975-76. It became clear, although, see I would never describe it as a narrow area of law, because it's occupied me for almost 40 years and it's been rich and full and covering many areas, but it is, you're right, it was–I had been when I started with the government doing race discrimination, sex discrimination and then just got into disability discrimination, but it became really the cause of my work life.

Lex Frieden: And that–during that time, I mean you had a family, you were having children and had a home as I recall in Alexandria or–

John Wodatch: Iberville in Washington.

Lex Frieden: Yeah.

John Wodatch: Yes, no, and it was I was raising my family. It was…a time of taking of what we had done with HEW in the ’80s, moving it over 120 or so federal agencies ended up with Section 504 regulations. We were trying to enforce Section 504, but it became clear to us through that period of time and you too, Lex, were leading the charge that 504 wasn't enough. We needed more tools if our goal, which was really to integrate people with disabilities back into American Society, to allow them to be independent, to be empowered, to have respect, respect their dignity by other people in our society, we would need more tools than we had at our disposal.

Lex Frieden: So when the recommendation was made publically by the National Council on Disability, under the administration of Republican President Regan who had earlier in his presidency said he wanted to wipe out most of the regulations that supported children and special education and so forth, but did you think there was a chance that particular initiative at that particular time could actually catch on?

John Wodatch: Oh, very. The early ’80s were a very difficult period of time. I was at a number of meetings at OMB and at the White House where the new people who had come in who wanted to streamline government, that I went to meetings where the purpose of the meeting was to decide how we could get rid of Section 504, how we could get rid of what was then called the Education of All Handicap Children Act. That these were things that the government shouldn't be doing and interestingly enough the leadership in Congress, Republican leadership of Congressman Michael who was in the House of Representatives was influential in coming to the administration and coming to then Vice President Bush who is Ronald Reagan's vice president and I have to give a call out the name of Evan Kemp cause he was very much involved along with Pat Wright in educating Vice President Bush about the importance of Section 504 and 94142 or the Education of All Handicapped Children Act. Educating him that these were really programs and statues about empowering individuals, that they had Republican themes wasn't just some government intrusion into the lives of business and government, and I think there was a great deal of education that went on at that period of time. You were part of that as well at NCD and the community, and I can–I like to kid that at that point the Republican women in their horse and suits is how I like to say it, really went and lobbied. These were parents of children with disabilities and went and lobbied about the importance of their education and I think the administration of Ronald Reagan got to see through the efforts of Boyden Gray who is the legal counsel to Vice President Bush and Vice President Bush himself that…that first of all this was something–wasn't some Democratic program, this was something that affected all Americans. That there were people with disabilities in every racial and ethnic group and every social class, Republicans, Democrats and this was an important program and I think we managed–we argued from within that these–why these programs were important and I think the combination of us working from within the NCD and really parents of children with disabilities going through members of Congress all together brought about a change in the direction of the Reagan administration.

Lex Frieden: When we delivered the report Toward Independence in January 1986, we were scheduled to meet with the president–with President Reagan, but his calendar was affected by the Challenger disaster and we were instead director to meet with the vice president. We weren't terribly optimistic at the time that we would receive a good reception from George Bush, because he hadn't been regarded publically as having much influence within the administration. I think the Washington Post said his job was mainly to attend state funerals–

John Wodatch: I remember that.

Lex Frieden: …and when we…met with the vice president, I thought we were about to have a so called D.C. photo op, because they lined us up with the photographer and the aid said, “You'll just have a minute to stand with the vice president. We'll take some photographs, you can hand him a copy of your report and then he's got a very busy schedule.” And I recall the vice president sitting in. He was sitting down when we came in. He of course stood to shake our hands and then went back behind his desk and that was Justin Dart, Sandy Perino, Jerry Milbank and myself. We were accompanied in the office by Boyden Gray whom you mentioned, and the vice president went back behind his desk and sat down. I had a copy of our report in my lap, which I intended to hand him, but he already had on his desk the copy that I had delivered the day before to the White House staff for a briefing and it occurred to me that this wasn't simply going to be a photo op. The vice president started to talk about what he had read in the report and…immediately said that he could identify with what we were trying to achieve in our first proposal because he had a child with a disability and he and Barbara had lost a child who had a disability and it became at that point apparent to me that this was not a, you know, a kind of exercise for the vice president, but something he took rather personally and he told us before we left that meeting that he was of course the vice president and he would be happy to pass this along to the president, but if he had the opportunity in the future to help us further he would do so, and we didn't really understand the significance of that promise until…until he signed the ADA in 1990.

John Wodatch: Well, and another thing was happening not exactly at that time, but going about that which was the…the HIV/AIDS epidemic that was occurring and I think you recall President Reagan established a commission to look at and come up with a series of recommendations and that report. The Watkins report had some 498 recommendations, but one of them was that there should be a comprehensive non-discrimination law that not only dealt with HIV/AIDS but disability generally so people who were–had the disease would feel that they come forward and identify themselves and not fear losing their jobs or being ostracized in their local society, and I think Vice President Bush took that one seriously and put the two issues together and helped form a basis for what became his campaign promise that there should be a comprehensive non-discrimination law on the basis of disability.

Lex Frieden: Well, and you also raised the issue of the AIDS community and their interest and help with the ADA which was controversial at the time and I think among some supporters may still be controversial today. There were people in the strictly speaking disability community–the traditional disability community who didn't particularly wish to identify with the AIDS community at that time and didn't really want to think broadly enough to consider that the same functional impairments effected both groups of people generally speaking. The AIDS community on the other hand for awhile intended to have their own piece of legislation that wasn't confounded by these other disability types and yet, the two interests were merged partly I think due to leadership by…by Vice President Bush and others.

John Wodatch: Including yourself and including Pat Wright, and I think that decision was crucial to get the ADA through a very difficult passage process and that decision was that the nature of discrimination on the basis of disability, how it occurs, encompasses a large group of people and I think the decision was made we're going to either succeed or fall together and there were many times a number of efforts to break off pieces, to say, “Okay, we won't deal with psychiatric issues or we won't deal with alcoholism or we won't deal with AIDS.” But I think the strength of the cross disability rights movement at that point really brought them all together and formed a very solid alliance that was I think essential to passage of the ADA.

Lex Frieden: Now by that time I guess, and we're talking about the mid 1980's or later 1980's, it was apparently clear that there was some serious movement, there was an interest among the various communities yet Congress hadn't taken up the challenge, and the National Council on Disability provoked again by this lack of action produced a second report called On the Threshold of Independence that included a 13 page draft legislative proposal which we call the American's with Disability Act. John, you again had a chance to watch the development of those few pages and to comment on them in the process, but you no doubt understood that that would not be the bill that passed.

John Wodatch: That's correct, and I think we have to give–call out the name of Bob Burgdorf who is–who was working on that and helped with you and others to develop that language, but it really focused attention and Senator Lowell Weicker who eventually introduced that bill in one form. I think we all recognized that it was the beginning, that it was the start that in order for us to move forward there had to be some understanding of what that bill could be.

Lex Frieden: Right, and then if–shortly afterwards, there came elections and the parties switched in the Senate, the Democrats came along and Senator Wilker handed off the bill and the leadership of the initiative to Senator Harkin who had just joined the Senate and Senator Harkin at the first meeting where Senator Wilker handed him–really passed the sword, Senator Harkin was passed by a young man named Bobby Silverstein who came in and I remember Bobby had a clip board in his hand and he stood throughout the meeting between those of us at the Council who felt ownership of the concept at that time and Senator Wilker and Harkin and Bobby continued to make notes and that really profiled his career for the next decade or so.

John Wodatch: And what you may not realize is that Bobby worked with me at HEW on Section 504. So even you may not have known it, but he was incredibly well versed in the concepts of Section 504 and non-discrimination on the basis of disability and had been trained–he's a genius in his own right, but had worked very carefully on 504 issues at HEW. First as an employee there and later as a contractor.

Lex Frieden: Yeah, he did that while he was in Philadelphia right? Okay. Interesting. The…the…the process then moved forward into the…into the Congress and Senator Harkin provided a lot of leadership along with Steny Hoyer on the House side. There was–you know, we won't talk about the difficulties in getting the law passed and the challenges. Suffice it to say that those principles which were established clear back in the 1970s with the Rehabilitation Act, reasonable accommodation, undue hardship and so on, those principles were critical to the ADA and they managed to stay as the centerpiece for each one of these iterations didn't they?

John Wodatch: They did and it was…I think we were–if we can go back, in the election–the presidential election in 1988, both Vice President Bush was running against Governor Dukakis from Massachusetts. Both of them had a campaign promise that said they wanted a comprehensive non-discrimination law on the basis of disability and when President Bush won and took office, he was very serious about keeping his campaign promise. It was something that was important to him and he charged Attorney General Thornburgh with the support of Boyden Gray who was his–the legal counsel in the White House, Evan Kemp was at EOC and this group of people worked together with others. I was lucky enough to be on the negotiating team that worked on the ADA to come up with a law that was a strong law that would provide opportunity and thus we kept the principles that were in Section 504 as guiding principles to bring about the ADA and to really have the ADA cover a variety of areas that weren't covered by Section 504.

Lex Frieden: John, the…the law passed and the regulations were written and now we're 20 years pass the ADA. Are you surprised the…by the changes that have occurred in our society?

John Wodatch: In our society? You know, I'm an optimist so I don't think I am, but I am gratified to see the changes that we've seen in 20 years. You know, the changes are all around us in terms of accessible buildings, in terms of interpreters for people who are deaf and hospitals and doctors’ offices and people with service animals, but I also know that we have a great deal of unfinished business. That the ADA is still structurally strong. We've just redone the regulations and we have a blue print I think for the 21st century. We still have a lot of work to do, but it's amazing. I feel very fortunate to have lived in a time when not only–and I think if we look at the role of women in our society, of people who's language is–whose first language is other than English or recent immigrants and the advancement of people with disabilities into everyday life in our society, we have lived through an incredible period of progress in our society. An evolution so that we are really getting to the point in my view, my goal has been that we the people of the constitution should include people with disabilities so that they can have independence, inclusion, the freedom of choice, the ability to do whatever they want just the way other citizens in this country can do whatever they want and I think we have made huge strides in that regard, but we're still at the beginning of it. I think we have laid the solid foundation. We have a good entity here at Justice to enforce the law. There are good disability rights groups around the country enforcing the law, but we still have in terms of enforcing homestead or in terms of making sure our technological revolution includes people with disabilities. We still have many jobs to do.

Lex Frieden: John, one of the observations that's been made about ADA and the way it was originally conceived and written has to do with the changes in society that occurred like the internet evolution for example, but actually we're able to be dealt with inside the capsule of the ADA as it was conceived.

John Wodatch: It was written.

Lex Frieden: Yeah, exactly.

John Wodatch: And I think it's because we did it in…in terms of concepts and not saying–you know, and leaving room for agencies through the regulations to develop principles and apply the prince–apply these broad principles to changes, and I think, you know, working with changes in technology that we've seen which hare making accommodations easier, making the ability to live in our society easier, but we have to really be vigilant to insure that, you know, as we make these changes, the manufactures or the geniuses who are doing them insure that they think through the needs of people with disabilities as they are doing them.

Lex Frieden: I think you're point is a good one.

John Wodatch: That the way the ADA has been written is strong enough and broad enough to encompasses these changes.

Lex Frieden: Are there any changes that you've been surprised about? Let me ask you this, were you surprised or disappointed by the judgments that the Supreme Court has made?

John Wodatch: Oh, if I have to look at the area that is my profound disappointment, it's the area of employment and what we've been through the for the past 20 years. We don't see gains for people with disabilities in terms of becoming employed and we've seen the management bar, the business fight the ADA by attacking whether people are people with disabilities. I think that the Americans with Disabilities Act Amendments Act that passed in 2008 was signed by President George W. Bush signals, I hope, a change so that we can move away from squabbling about what someone–what, you know, the nature of someone's disability is and get to the point of, you know, people can do the job with accommodations, they should have the opportunity to get the job done, and I think that's the area where we in the next few years have to make the biggest change, because that's the area of the–I would say our greatest disappointment.

Lex Frieden: And what can we do to strengthen? You know, I mean aside from affirmative action?

John Wodatch: Well, I think…I think we have to educate business. I think they still–they look at a person with a disability and see the disability and not the ability, and we have to constantly work at that and use the courts if we have to. I think we have seen in the education context a change in attitudinal barriers ad people have been, you know, children have been educated with other children with disabilities, the sort of attitudinal barriers, the fear of disability is dissipating and you know my cause of optimism is that I see this happening with the next generations of people in our society don't have the hang ups that we have seen in the past, and I'm hopeful that the more we have this, the more we understand what accommodations are and that they are not costly and that with small kinds of accommodations people with disability can participate. I think another thing that's going to help in this regard other than the change in definition under the ADA is that, you know, the promise of health care. We don't have a universal health care yet, but one of the big impediments has been people with disabilities who are receiving disability benefits and getting Medicaid as a result. If they lost that by getting a job, they would not have the ability to have healthcare and they certainly need healthcare and I'm hoping that the double whammy of the changes to the definition of disability and the changes to our healthcare system will bring about opportunities for people with disabilities to be employed. The other change I think we are seeing beginning to be changed is the whole area of getting people with disabilities out of institutions, into their communities, living with their families and friends and not being warehouse or institutionalized and I think that's very important for people with intellectual disabilities, development disabilities and people with psychiatric conditions, and I think we are beginning to see the importance of that model. I think this administration has taken as, you know, on the challenge of homestead. We've been involved here at Justice in the past 2 years in over 25 lawsuits and will continue to try to get people who really can and should be in their communities in those communities.

Lex Frieden: Well, you may recall that I produced a research report on the 20th anniversary of the ADA reflecting back and we did an extensive survey of people with disabilities and advocates and really the homestead decision by the Supreme Court and the action that that has provoked by states to help in the de-institutionalization process for people with disabilities is regarded now as the pre-eminent current impact of ADA and the one which seems to have the longest pales going forward at least. That's considered by advocates now. I don't know what will happen next year or the next, but I tend to be an optimistic like you, but the one concern I do have relates to the kind of setbacks in the economy that we've experienced around the nation and the fact that here in Texas for example, programs for people with disabilities are being cut through state budget cuts and in the educational arena it seems like at universities around the country when they have take to budget cuts, the disabled students service programs are among the first ones that–or they rate higher on the list of administrators for cuts than other programs. Those kinds of actions concern me, because I think they may go back and reflect some of that historic kind of cultural dissonance between the concept of equality and disability.

John Wodatch: And I agree with you. It's a very difficult time. States are struggling, they're cutting their budgets. I think one of the things we're trying to do with our litigation on homestead is to insure that, you know, there have to be budget cuts, it's just not on the backs of people with disabilities. That budget cuts have to be applied across our whole spectrum, but we have seen a lot of the budget cuts dealing with especially community living. Having people live independently in the community is often less expensive than being warehoused in an institution and over time certainly is less expensive and so we will continue to make that pitch to the states as well as to the courts to insure that people with disabilities do not bear a disproportionate burden under these budget cuts, but I think I share your concern about that and I think that we have to be vigilant about that.

Lex Frieden: Well, one of the issues that we raised clear back in Toward Independence has to do with some of the conflicts that we have now in terms of budget cutting and so forth, and that is that not all of the money that's used to pay for some of these accommodations comes out of the same pocket. That's clearly true when it comes to healthcare and insurance and so forth. If the states, you know, put people in nursing homes and it comes out of one–the aspect of the authorization for funding of Medicaid, that's paid for certainly, but if they instead use a program that's regarded not as a fixed program in the Medicaid law and the regulations, then the states have to bear a larger percentage of the cost, and there's a lot of cost shifting that goes on in order to save money that has a disproportionately bad impact on people with disabilities I feel.

John Wodatch: And I think that's right and I think we're trying to, and especially in the homestead cases we are doing, to get courts to have the states understand that what they are doing sometimes in the name of cost savings is not a cost saver. I'll give you an example of one of the cases that we're involved in that shows sort of the short sidedness of penny-wise tom foolish whatever mannerism we want to use, in that case about people who we're using incontinence supplies, adult diapers really and in some of these cases, these are people living on 0 a month and the states had made the determination that they would not pay for these adult diapers. So what would happen with someone who was spending say 0 out of the 0 a month on adult diapers, they would–here's the scenario that started happening, they would start reusing them. They would end up with sores, they would end up in emergency rooms or they would end up institutions rather than in saving the 0-0, thousands of dollars were being spent. We were able to convince the court that was ridiculous and that the states should, you know, pay for those adult diapers so that these people could continue to live in the community and continue to have solid healthcare and be independent, but we have to keep doing that and I think you're right. It's a matter of vigilance. Fortunately I think there are a lot of disability rights groups out there, attorneys who are out there who are working diligently to insure that these arguments are being made so that people even in these tough budget times will continue to receive the services that they need so that they can live independently in the community.

Lex Frieden: Yeah. John, I'd like to reflect further, but at this point in time, I've taken enough of your time and I want to thank you on behalf of myself and anybody who may have the opportunity to hear this interview for your years of service. I guess you're near retirement at this point?

John Wodatch: I am. This summer is…I'm going to retire from federal service. Doesn't mean I'm going to retire totally from working on ADA issues. I'm going to look for some way to continue to be involved with the goals of the ADA. It just won't be at the federal level enforcing the ADA and I appreciate your thanks. I have been a very fortunate man and have been able to get a great deal of personal satisfaction for the changes that we have together been a part of creating.

Lex Frieden: Have you given thought to penning a memoirs at some point?

John Wodatch: People have suggested that to me. You know, at this point I’m going to finish out here and then see where we go. I certainly have lots of stories to tell and some that you and I both know that haven't been told. We'll just see if we…and I think it's important for us to do this, something like today's podcast, because I'm beginning, I see new people with disabilities who are working in the federal government who have no sense of the history of what has gone before, and I think it's important to get that down not only so we can remember our heroes whether from Eunice Ferito to Bob Burgdorf to Bobby Silverstein. People not, you know, 10-15 years know the importance of their contribution, but also understand why we need the ADA, why we need to be vigilant, what kinds of discrimination occurred in this country so that we don't go back there.

Lex Frieden: Your point is very well taken. I recall when the National Council on Disability hired me, the first weekend that I lived in Washington D.C., Justin Dart took me to Colonial Williamsburg and took me to the seat of original government and said, “Now, if you sit here and you pray, you'll find yourself surrounded by spirits of the American past who will lead you to the future.” And certainly that was a glorious day, a glorious experience for me, and I think that anybody who's coming into the whole world of disability, the world of disability rights needs to have some retrospective view of the place from which we've come.

John Wodatch: Yeah, and I think let me–I'd be remise if I didn't say the same to you, to thank you for your leadership over a very long period of time through some very difficult times. You've not only provided the leadership, but also sort of the intellectual basis for our ability to make the changes in American society that we're making.

Lex Frieden: Thanks, John. I want to thank you, and thank all of our listeners for attending to this issue of the Disability Law Low Down Podcast. Everyone have a great day. Bye.

John Wodatch: Bye.

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