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It is important to be honest about it. There will be, obviously when this is actually implemented, some slight additional cost, and what we are saying is that that additional cost distributed across the entire population will have, we believe, disproportionate bene fits for a small number of our fellow citizens who have been in some ways unfortunately affected.

I think that is what we are talking about. I think it is a mark of social maturity of which we ought to be proud, that we accept that principle. I think your answers have helped make it clear that that is the principle that is going to guide you; that we are not going to be unreasonable and there is not going to be excess.

I think we have to be explicit about one other thing here. We are often told by the private sector that they want certainty. I understand that. We don't want to be subjected to arbitrariness. I think what we are saying in this case is that we are in a new area.

Although we have legislated here in the Fair Housing Act and in the immigration bill, we are talking about some areas that are somewhat new to us. It is important to have discretion.

I think what we are saying, I am hoping the majority of my colleagues will recognize the good faith and the intelligence with which you and your colleagues are prepared to administer that.

I think what you have said so far, and what you have done helps bear that out. We are often told that we should resist micromanagement. I think this is an important example of where we ought to be resisting micromanagement, that we ought to be accepting the fact that this is a difficult and socially very important task, we ought to accept the bona fides of yourself and the people working with you, and I think everything that has been done to date shows that.

The experience has been that people who have raised legitimate concerns have had them dealt with, going back to the Fair Housing Act, where many of us worked with homebuilders and worked out a set of rules which seem to be OK now.

I don't think there is any way not to give discretion. If we did not give a great deal of discretion, we would more likely overlegislate. Congress is not going away. People who are administering it, Congress says, well, we have confidence in the people administering, but what about the future group?

Congress is not going away. The people most concerned about this bill, the people who are themselves suffering from disabilities and the people who expect most to benefit from the broadening of opportunity here I think understand on the whole that it is to their interest to make sure that this is reasonably done.

The worst thing you can do from the standpoint of meeting the very legitimate request of people who are disabled in some way is to overdo this in ways that would impose a cost for too little benefit. Everything I have seen so far suggests that we have that kind of understanding.

I would hope that you would comment on that and tell me that in this case, I have got it right. If we are not prepared to legislate in that fashion, then I think

we are going to have a very hard time. Mr. THORNBURGH. Let me add two additional comments in that regard, Mr. Chairman. One is that as I noted, there are lagtimes provided in certain sections of this bill that are designed to take into account what careful study and consideration of the more vexatious provisions, potentially vexatious provisions that can be dealt with.

Second, we propose to, as I indicated, carry forward an aggressive program of technical assistance, which will enable us to work hand in glove with those persons who are affected both in terms of their rights and their responsibilities to ensure that our administration is, in fact, sensible, reasonable, and consistent with the notion of balancing the cost imposed for compliance with the full recognition of the rights of the persons who are sought to be benefited.

Mr. FRANK. Thank you.

I have one specific question which I have been asked by some groups. I had some requests from some people in the construction field. Are we sure that this legislation fits in well with preexisting legislation, for instance, Grove City and fair housing? Are there any possibilities that people are going to be subjected to conflicting mandates or different timetables?

Mr. THORNBURGH. I hesitate to give you absolute assurance, but I think those have been attended to. If there are areas where that is not the case

Mr. FRANK. That is a better way to phrase it, which is, namely, it would be our intention if there were any glitches, that it would be our intention that no one would be subjected to conflicting or confusing, substantive or chronologically

Mr. THORNBURGH. I would certainly raise them.

Mr. FRANK. We would invite any groups who feel there are any such conflicts to let us know about it, because it is important for us to work those out and have nobody subjected to that.

Mr. DeWine.
Mr. DEWINE. Thank you.

Can you tell us the administration's position about the use of a tax credit for small business that has to comply with the requirements for this law?

Mr. THORNBURGH. That has been suggested and asked in the course of the framing of the legislation before you for consideration, but because of-well, it has, I must acknowledge, an equitable appeal, but because of the fiscal situation and restraints, the administration at this time does not support any such provision.

Mr. DEWINE. One could make the argument that the goals of this bill certainly are laudable and certainly I would hope are shared by all Americans, and that the question then is, who is going to pay for it?

It seems to me that the choice when you are dealing with a tax credit issue, the choice is between spreading the cost among everybody in this country or having the small businessmen and women in the country pay for it.

Can you react to that? Is that a fair characterization or not?

Mr. THORNBURGH. I think that is a fair characterization, and from a point of view of simple equity, that may recommend itself for consideration. There is, under section 190 of the IRS Code, presently a deduction of up to $35,000 per year for taxpayers for expenses associated with removal of qualified architectural and transportation barriers.


My understanding is that Senator Dole intends to review this existing tax deduction provision in the context of the Americans with Disabilities Act, with particular attention to the problem that you suggest, and that is the obligations of small businesses.

It may well be that you want to communicate with Senator Dole or his staff in that regard. As I said, at the present time the administration does not support any additional tax benefits or credits.

Mr. DEWINE. Let me ask you about the public safety issue. I wonder if you can comment in general terms on what your understanding of this bill is in regard to what it provides for a business person to make a decision based upon public safety.

Let me give you an example. It may not be a good example, but it is an issue that has been raised by some of my constituents over the last few years. That has to do with airlines that routinely assign blind people a certain space on the plane.

There has been a controversy for a long time. The airlines have said that they have to be located in a certain place. The other side would argue that that really has nothing to do with public safety at all, there is no evidence that the airlines have ever established that putting that blind person in one particular seat and not letting them go into the general assignment of seats has anything to do with public safety.

There has been no demonstrated need to do that. That has been an ongoing dispute for a number of years. I have heard both sides of the issue. What is your understanding of the public safety aspect of this and how business may or may not make that determination and then what is that criteria, who has the burden of proof on that and how are we going to deal with that problem?

We can all think of many examples but that is just one.

Mr. THORNBURGH. First of all, my understanding is that the provision for blind persons in aircraft is currently the subject of regulations being drafted by the Department of Transportation under the Air Carrier Access Act and is unresolved.

They are not final, although I believe the view the FAA and the Department of Transportation expresses is the one you expressed concern about. But as a general matter, it seems to me obvious that safety considerations should be taken into account in making public accommodations accessible and precisely how that applies to particular cases is obviously going to call for some recognition of common sense.

But the notion that public accommodation requirements should ignore safety considerations I find to be inadmissible. I think what we want to be careful to avoid is that the judgments that are made about public accommodations, accessibility, don't provide on the basis of stereotypical presumptions, that they, in fact, relate to real situations and the problems of people with particular disabilities.

How you can be more precise in that regard, I cannot suggest. But clearly safety considerations have to be a part of the factoring in of these requirements for accessibility.

Mr. DE WINE. Thank you.
Thank you, Mr. Chairman.

Mr. EDWARDS (presiding). The gentleman from California, Mr. Dannemeyer.

Mr. DANNEMEYER. Thank you.

Mr. Attorney General, good morning.
Mr. THORNBURGH. Good morning.

Mr. DANNEMEYER. There is no question in my mind that the vast majority of the American people recognize the goals of this act. I do. Our hearts go out to anyone who was born with a defect or as a result of an accident in life described by our chairman, Mr. Brooks, for his friend deserves the recognition of society that we need to make adjustments in accommodations.

My questions this morning, Mr. Attorney General, relate to a matter of concern that I have for my constituents: Is it sound public policy to include within the definition of disabilities persons who have engaged in intentional conduct and as a result of that intentional conduct now claim to be disabled, drug addicts, alcoholics and persons with a communicable disease who acquired the disease when they knew the consequences when they engaged in that conduct.

I am not sure whether the people who read this legislation have thought through the consequences of what the adoption of this legislation will do in terms of the impact on Federal spending. I am speaking specifically about HIV carriers that we have probably, nobody knows, maybe 3 million in America, as the legislation is pending before the House, it probably will follow that upon its adoption these HIV carriers will come within the definition of disability and accordingly will be eligible for D.I.

After 2 years on D.I., they are eligible for Medicare. Now, for our society to say to persons who have intentionally engaged in activities that result in the acquisition of a fatal disease, HIV carriers, that we are going to provide this kind of coverage, I think in the minds of a lot of the public raises questions about what we are about.

So my first question is: Would you support an amendment that would say to a person who acquired a communicable disease such as HIV positive status that we would limit those who are HIV carriers within the definition of disability to those who receive that status as a result of a blood transfusion, were born to a mother with AIDS, or were a hemophiliac who got that status as a result of acquiring blood in the blood supply, in other words, somebody who I would classify as not having acquired the status from intentional conduct.

This would exclude the coverage of disability to those who are drug addicts or homosexuals who have engaged in conduct and acquired this status as a result of intentional misconduct?

Mr. THORNBURGH. I think in response to your concerns I have to first note that illegal drug use, that is the use of illegal drugs or the illegal use of legal drugs, does not constitute a handicap the way the ADA is drafted.

With regard to contagious disease, the act adopts the standard that has been applied in cases arising under section 504 of the Re habilitation Act. The Supreme Court in the Arline case held that people with contagious diseases are entitled to protection afforded by section 504 and that in those cases where an individual poses a significant risk of communicating an infectious disease to others in the workplace, that coverage and the benefit of that act would be denied unless a reasonable accommodation would eliminate that risk.

But the holding of the Arline case interpreting section 504, the recommendations of the Presidential Commission chaired by now Secretary of Energy, Admiral Watkins, and the views of the Surgeon General are the views of the President.

The current language and the current posture of the treatment of these situations as they are set forth in the present draft of the act are supported by the administration.

Mr. DANNEMEYER. Our time has just about expired. The Arline decision presented the applicant in that case with tuberculosis. I am not aware that TB is something that is acquired as a result of conduct whereby the person who acquires it knows when they engage in the conduct they are going to get TB. The decision of the AIDS Commission,

to which you referred, was not unanimous. It was an 8-to 5 decision.

I question the whole Arline decision itself was not a unanimous decision of the U.S. Supreme Court. I question the public policy statement that a society is going to go down the road of extending disability status with all the protection it entails to somebody who intentionally engages in misconduct and as a result of that misconduct acquires a communicable disease.

It is not unlike a young man who kills both parents and then throws himself on the mercy of the court because he is an orphan. Is this what we seek to do for our society?

Mr. THORNBURGH. I can only respond, Congressman Dannemeyer, with the administration's view.

The President has made a pledge to support legislation against AIDS discrimination based on the findings of the Watkins Commission. I think that it is not always easy to prove how AIDS in particular was acquired and that the kinds of rules which you suggest

Mr. DANNEMEYER. We know statistically that nationally about 70 percent of the cases are male homosexuals and about 23 percent are intravenous drug users.

That was made clear to us. Is it sound public policy for a society to give disability status and all the protection that it entails to individuals in our culture who have intentionally engaged in conduct where going in they knew they were engaging in activity to put them at risk? That is the question.

I have some other questions. I realize my time has probably expired.

Mr. EDWARDS. The gentleman from Virginia, Mr. Slaughter.
Mr. SLAUGHTER. I have no questions, Mr. Chairman.
Mr. EDWARDS. The gentleman from Florida, Mr. James.

Mr. JAMES. I am sympathetic with the rights of people who are disabled and I think this is a great move in the direction of these people, to protect their rights. Thank you so much for your testimo ny. It has been very enlightening and allays some of the fears that I had with some of the specific language.

There are some questions that have been asked of me. Maybe you have covered them but I am not sure I have the answers.

For example, in retail stores is there anything in this act that suggests that you now have to change the height of all displays in

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