BY ROBERT L. BURGDORF

Twelve years ago, as I drafted the original version of the Americans with Disabilities Act, I never dreamed that this landmark civil rights law would become so widely misunderstood and my words so badly misinterpreted -- particularly by the body meant to protect the very rights guaranteed by the law. In its recent [1999 Sutton] ruling drastically narrowing who is protected by the Americans with Disabilities Act, the Supreme Court cited an article I wrote to support its idea that the ADA was intended to cover only 36 million people. The Court's reference to my writing as authority for its decision and express acknowledgment of my having written the original version of the ADA for the National Council on Disability was hugely ironic, however, for I happen to believe that the Court was dead wrong in its decision.

The Court rested its ruling on the breadth of this major civil rights law on the interpretation of a congressional finding that 43 million individuals in the U.S. have a physical or mental disability. Justice O'Connor's sophistic reasoning was that the Council and the Congress intended to cover only a narrow group of 36 or 43 million individuals and not a broader class of 160 million people with health conditions that impair the normal functional abilities of an individual. In this bean-counting analysis, Justice O'Connor ignored the fact that the ADA, as originally proposed and as enacted, has a three-prong definition of an individual with a disability. Only the first prong deals with people with an actual disability and that is what the 43 million figure refers to.

Under the "regarded as" prong of the ADA definition of disability, any person who is disadvantaged by an employer because of a (real or imagined) physical or mental impairment should be entitled to claim the protection of the statute. Therefore, it is not 36, 43, or 160 million people that the statute protects, but the entire 250 million or so people who live in America. The Court did not consult other books and writings of mine, including one lengthy law review article in which I traced the history of the ADA definition of disability, argued that it should protect anyone who is discriminated against because of physical or mental impairment, and discussed the illogical and unjust results of courts placing restrictive limits on the protection ADA affords.

Sadly, the Supreme Court has made the same mistake as many lower courts in treating the definition of disability under the ADA as analogous to eligibility criteria under the Social Security disability programs and special education programs. The latter types of programs are special benefits and service programs which should be restricted to the specific individuals for whom such benefits and services are intended. The ADA's protection against discrimination on the basis of disability is extended to all Americans who experience such discrimination.

Underlying the Court's interpretation is a basic misconception that there are two distinct groups in society -- those with disabilities and those without. People actually vary across a whole spectrum of infinitely small gradations of ability with regard to each individual functional skill, and the importance of particular functional skills varies immensely according to the situation, and can be greatly affected by the availability or unavailability of accommodations and alternative methods of doing things.

Just as the point of the Civil Rights Act is not race but it is discrimination, the point of the ADA is not disability -- it is discrimination. The ADA is a mandate for equality. The Court's decisions slashing its coverage turns the Act upside down and focuses extraordinary attention on how disabled (i.e., how different from the rest of us) the plaintiff is as a precondition of being protected by the Act and thus entitled to equal treatment. The focus of the Act was and should be on eliminating employers' practices that make people unnecessarily different because of their mental or physical limitations. If the Supreme Court Justices had done their homework, they would have found this intent clearly stated. Did the Justices ignore the intent of the law due to concern over "an already overburdened judiciary," as the majority wrote in their decision? If so, it seems unjust to place those concerns ahead of upholding civil rights protections for all Americans. The author wrote the original version of the ADA bill that was introduced into Congress in 1988.

Robert L. Burgdorf, Jr. is a professor at the University of the District of Columbia David A. Clarke School of Law.