The death of George H.W. Bush marks an opportune time to examine his legacy. Among his signature achievements was signing the Americans with Disabilities Act in 1990. Morning Edition Host Joe Mathieu discussed the legal significance of the ADA — both at the time of passage and in the present — with Northeastern University Law Professor and WGBH Legal Analyst Daniel Medwed. The transcript below has been edited for clarity.
Joe Mathieu: So, enactment of the ADA was considered an important moment in legal history.
Daniel Medwed: That's right. In terms of its legal significance, it really was a watershed moment, because for the first time, really, Congress created a federal mechanism to enforce the civil rights of people with disabilities. And it came at a moment when disabilities were little understood, and discrimination, especially covert discrimination, was rampant. Now, I'm not a political scientist, but you mentioned the political significance here. If I recall, Democrats controlled Congress at the time, and of course we had a Republican inhabiting the Oval Office. The idea of such a transformative bipartisan piece of legislation coming out now is pretty much unfathomable.
Mathieu: Absolutely. So tell us precisely, what does the ADA protect? How wide-ranging is it?
Medwed: It's quite wide-ranging. It has five different titles that correspond with five different spheres of life. It covers employment, public services operated by the government, public services operated by private entities, telecommunications and a miscellaneous grab bag title. The ADA is really why we, not only have cut corners on our sidewalks, but we have reasonable accommodations in restaurants and schools. Why employers have to have hospitable work environments for folks with disabilities, and why the speaking and hearing impaired really have access to the internet and to telephones. It's not far-fetched to say that the ADA touches every aspect of our lives outside of our private homes.
Mathieu: What about enforcement? How are the rights protected by the ADA actually enforced?
Medwed: Well in theory, Congress devised an ingenious enforcement regime, because it allocated responsibility to the various federal agencies that have expertise in each of these different facets of life. That is the Equal Employment Opportunity Commission (the EEOC) is in charge of enforcing Title I, which covers employees and job seekers.
The Federal Communications Commission (the FCC) is entrusted with the task of enforcing Title 4 — telecommunications — and so on.
Notably the ADA also has embedded within it a very progressive remedy regime. So if you file something under the ADA, you could, if you prevail, get compensatory damages, which could include future money losses and mental anguish, as well as punitive damages, if, say, an employer acted with malice. So that's the theory. Now in practice, I think enforcement is often done through the courts, through litigation, and that's where the ADA marches in the direction of progress.
Mathieu: You mentioned there's one good recent example of courts developing the law in this area.
Medwed: That's right. Just last week, I believe, a Boston judge federal judge ordered the Essex County Jail to provide methadone to someone who is exhibiting the signs of opiate withdrawal. And in that decision the judge, Denise Casper, noted that addiction is an illness, and failing to provide a beneficial treatment program like methadone could be in violation of the ADA.
Mathieu: How about that. So it's actually happening before our eyes and a lot of different forms. Can I ask you, while you're here, about this other story that we're covering today involving Governor Baker? He wants a Newton district court judge barred from presiding over criminal cases while it is investigated whether Judge Shelley Joseph may have helped an undocumented immigrant slip out a back door in the courthouse to avoid an ICE agent.
Medwed: As a threshold matter, at least I try to put aside the issue of my feelings about the Trump administration's overzealous enforcement of our immigration law. I know that's the elephant in the room in talking about this. But in terms of the legal issues, I think there are two. First, what did this judge do? Under Massachusetts law, the SJC has told us that a judge may not hold someone solely on an immigration retainer. And more to the point, our trial court rules evidently suggest that judges may neither help nor hinder federal immigration authorities. What did the judge do here? Did she go beyond just being Switzerland?
We don't know, because the audio recorder was off. There's reason to think, through inference, that she might have been more actively involved in thwarting the investigation. If that's the case, I’m not surprised that the feds are investigating it for obstruction. The second issue though, is Governor Baker. He's calling for her to step down. Is that wise at this point? What about the presumption of innocence?