Disability activists have always used policy to incorporate successful frameworks for the disabled – anything else fails to incorporate politicd and confines movements

If the restrictive decisions interpreting the ADA can be understood as implementing the welfare reform argument that formed such a significant part of the legislative case for the ADA, the question remains: Where did that argument come from? One obvious possibility might be that the welfare reform argument was a purely opportunistic way of hoodwinking conservatives into supporting a fundamentally radical law. As I will discuss below, there is something to that suggestion: Disability rights advocates increasingly relied on welfare reform arguments as the political climate turned toward fiscal retrenchment and against extension of civil rights policies in the late 1970s and the 1980s.292 There can be little doubt that those advocates believed that their increasing reliance on such arguments represented the most effective strategy for appealing to the conservatives, neoconservatives, and neoliberals who now held the balance of power in Washington. But this is not simply a tale of activists trapped by their own rhetoric. The welfare reform argument for the ADA was not simply an opportunistic tool to obtain the support of newly-ascendant conservatives in Washington. Rather, it derived from and drew heavily on a movement indigenous to the disability community-a movement that was a key staging ground for and that provided important leadership to the broader disability rights movement. That movement, the independent living movement, incorporated several strands of thinking that were notable for their ambivalence 291. See discussion supra Part II.A. 292. See infra Part III.B.1. 20031 985 WILLIAM AND MARY LAW REVIEW toward disability benefits programs.29 The welfare reform arguments for the ADA picked up on and extended the criticisms of benefits programs that were immanent in the ideology of many (though not all) independent living advocates. To the extent that the welfare reform argument has led to undesirably narrow interpretations of the ADA, the problem may not lie solely with the courts-or even with disability rights advocates' tactical choice to use that argument to sell the ADA. The problem may instead lie within a set of foundational ideas of the disability rights movement itself. As I hope to show, the independent living movement reflects a curious combination of libertarian and social democratic thought. Where, as in the selling of the ADA, the libertarian aspects of independent living thinking receive the lion's share of emphasis, the result likely undermines the ability to achieve the goals virtually all disability rights activists share. In this Part, I elaborate that argument. Part III.A provides an overview of the independent living movement, with a particular focus on its origins and the ambivalence it expresses toward disability benefits programs. In Part III.B, I argue that disability rights activists increasingly adopted the idea of"independent living" as what social movement theorists call a "collective action frame." The welfare reform argument represented a particular, hardly inevitable, instantiation of that frame, one that strongly resonated with both conservative legislators and people with disabilities themselves. Useful as it was for the emergent disability rights movement, however, the move to the welfare-reform/independentliving frame had a cost, which I discuss in Part III.C. Because much of the agenda of the disability rights and independent living movements can be readily characterized as a call for costly redistribution and constant government intervention on behalf of people with disabilities, a focus on avoiding dependency costs can be used to delegitimize and undermine that agenda. That, I fear, is a significant part of what has happened in the interpretation of the ADA. 293. See Judith E. Heumann, Independent Living Movement: Organizing for an Active, Disabled OldAge (1994), at http:/www~independentliving.org/toolsforpower/tools28.htm (last visited Jan. 28, 2003). 986 [Vol. 44:921 THE ADA AS WELFARE REFORM A. The Independent Living Movement 1. The Origins of the Independent Living Movement Most knowledgeable observers trace the origins of the independent living movement to the early 1970s.294 Around that time, people with disabilities in a number of communities around the country came together in local organizations known as "independent living centers." The first independent living center, the Center for Independent Living in Berkeley, California, began as an organization of students with disabilities at the University of California.29 The first of those students, Ed Roberts, was admitted to the university in 1962. As a result of polio, contracted when he was fourteen, Roberts used a wheelchair and spent substantial amounts of time in an iron lung. Although the university initially sought to revoke its acceptance of Roberts when it learned of his disability, the institution relented after a doctor at the Cowell Hospital, located on campus, proposed to house him on a floor of that facility. Several other college-aged people with disabilities who used wheelchairs learned of Roberts' arrangement and, in the next few years, obtained admission to the university as well. Like Roberts, these students were housed in the Cowell Hospital. Perhaps owing to the political consciousness of the times, particularly on the Berkeley campus, the students who resided at Cowell Hospital began to see their situation in largely political terms.2 They organized a political group called the "Rolling Quads" and urged the university to eliminate the architectural barriers that prevented wheelchair users from moving freely about the campus. They also organized a student-run class entitled "Strategies of Independent Living." With a grant from the Federal Office of Education, the Cowell residents launched the "Physically Disabled Students' Program" (PDSP) in 1970. That organization, run by and for students with disabilities, aimed to provide such students with the services they would need to lead independent lives that were integrated into the broader community. Services included attendants to assist in dressing, personal hygiene, and other activities of daily living, as well as prompt and reliable wheelchair repair services-a necessity for wheelchair users who sought to live in the community. From the beginning, people with disabilities from both the Berkeley student body and the broader community sought to participate in the PDSP's services. The organizers of the program soon decided to create a new organization that was designed to serve the community at large. That organization, the Center for Independent Living (CIL), was incorporated in 1972. The founders of Berkeley's CIL sought to create an organization controlled by and serving people with diverse disabilities, which would provide "services that [people with disabilities could] control on their own terms, and [would be] dedicated to independence and the transcendence of other institutions."297 Moreover, instead of providing care and maintenance of people with disabilities those services would promote independence from medical and rehabilitation institutions. Above all, the Center dedicated itself to the principle of consumer control-the principle that people with disabilities should control the services they receive. At roughly the same time, independent living centers began to spring up throughout the country. In 1972, the same year that Berkeley's CIL was incorporated, disability activists in Houston started a cooperative living project that was dedicated to the same basic principles.29 Other disability activists founded the Boston Center for Independent Living in 1974.' Today, there are approximately 400 independent living centers throughout the United States. Although each center is different, as befits "a profoundly local movement, bred of the specific needs of individual communities as divergent as Berkeley and Columbus," °° most independent living organizations subscribe to several fundamental premises. "These premises include the notion that each individual is different and unique; that people with disabilities are the most knowledgeable experts about our own needs and issues; and that programs serving disabled people should be designed to serve all disability groups."s0 z As analyzed by Gerben DeJong, one of the movement's most important chroniclers, the independent living movement drew heavily on the civil rights, consumerism, self-help, demedicalization, and deinstitutionalization movements of the 1970s for several basic ideas: that discrimination is what prevents people with disabilities from achieving full integration into the community, that people with disabilities rather than medical and rehabilitation professionals should decide what services they receive and how they receive them, and that people with disabilities should have the opportunity to make their own decisions about their lives, bearing whatever risks those decisions entail. For a variety of reasons, the independent living movement became a major driving force behind the broader disability rights movement of the 1970s and 1980s. For one thing, "most of the early disability rights leaders were identified with CILs."03 The Berkeley Center for Independent Living, in particular, self-consciously positioned itself to groom disability rights leaders."0' The Berkeley CIL also organized the most significant protest of the early disability rights movement-a twenty-eight-day sit-in in the San Francisco office of the U.S. Department of Health, Education, and Welfare to protest Secretary Joe Califano's refusal to sign the regulations implementing Section 504 of the Rehabilitation Act.30 5 Even after these early days, the independent living movement continued to play a major role in the disability rights movement by providing staging areas for disability activists in communities throughout the country, a network through which those activists could share information, and, perhaps most important, organizations with paid staff who could support disability rights activities. 3° Given the significant institutional role of the independent living movement in broader disability rights struggles, it should hardly be surprising that "the philosophy of independent living formed much of the basic philosophical underpinnings of the larger [Disability Rights Movement] .. 307