NCD's Lex Frieden on ADA & Access to Sidewalks

Date: April 17, 2003

Letter to The Honorable Theodore B. Olson, Solicitor General, Office of the Solicitor General

April 17, 2003

The Honorable Theodore B. Olson Solicitor General
Office of the Solicitor General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Solicitor General Olson:

Last month, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States in the case of Barden, et al. v. City of Sacramento, et al., 292 F.3d 1073 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3566 (March 3, 2003)(No. 02-815). As the Court decides whether to consider the merits of the case in question, the National Council on Disability (NCD) urges the Department of Justice to maintain its position in support of the decision of the Ninth U.S. Circuit Court of Appeals.

NCD is an independent federal agency composed of 15 members appointed by the President and confirmed by the Senate. Pursuant to its statutory mandate, 29 U.S.C. -- 781 (1994), NCD is charged with reviewing federal laws, regulations, programs, and policies affecting people with disabilities, and making recommendations to the President, the Congress, and other federal officials and entities. In this role, NCD is responsible for advising on the implementation, impact and effectiveness of the Americans with Disabilities Act, 42 U.S.C. -- 12101 et seq. (ADA).

NCD first proposed the concept of the ADA in 1986. Congress relied on and acknowledged the influence of NCD, its reports, and its testimony throughout the legislative process. Since passage of the ADA, NCD has remained actively involved in monitoring its impact and advising federal entities on policy issues.

In Barden, the Ninth Circuit rightly held that "Title II's prohibition of discrimination in the provision of public services applies to the maintenance of public sidewalks, which is a normal function of a municipal entity.¹ This decision adheres to the plain meaning of the statutory language, implementing regulations and legislative history of the ADA (Title II), 42 U.S.C. 12131 et seq., and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 794 et seq. The City of Sacramento maintains that Title II and Section 504 apply only to the extent that they [sidewalks] provide direct access to a building in which some other government service is provided and that sidewalks are not a service, program or activity of the City.

Providing, constructing, and maintaining a system of public sidewalks is clearly a service the City of Sacramento provides to its residents, a program administered by its Public Works Department, and an important government activity. When a person with a disability is denied the use of a public sidewalk because it is inaccessible, he or she is excluded from a government service and denied the benefits of a city service, program or activity. Sacramento's assertion that it should not have to make its sidewalks accessible to people with disabilities is out of step with modern times and inconsistent with American values that embrace diversity in all aspects of society. Sidewalk access is a necessity of life for people with mobility and visual disabilities to get around safely and be able to get to school, work, and participate in other basic social activities. Lack of sidewalk access is a major cause of isolation and exclusion from the basic opportunities Americans treasure -- the ability to be independent and participate in our economic and social life. The fact that the City of Sacramento is worried that subjecting sidewalks to accessibility requirements would impose unreasonable financial obligations on public entities is not a reason to disregard the plain language of the statutes and regulations. The regulations address this problem by providing that modification of existing sidewalks is not required when it will impose an undue burden.

Moreover, substantial federal funding is available for making sidewalks accessible to people with disabilities. The Transportation Equity Act for the 21st Century (TEA-21) authorized the use of Surface Transportation Program funds for the installation of --, pedestrian walkways, -- and the modification of public sidewalks to comply with the Americans with Disabilities Act of 1990.² Thus, arguments that Title II of the Americans with Disabilities Act is an "unfunded mandate" are erroneous and an insult to tax-paying citizens with disabilities.

In addition, public responsibility for making sidewalks, designed and built with public funds, accessible to people with disabilities did not begin with the ADA or the Rehabilitation Act of 1973. Technical guidance on making sidewalks accessible has been available since 1961. Section 4.2 of the first publication of accessibility standards by the American National Standards Institute A117.1 Committee described the accessibility requirements for public walks. The ANSI technical specifications were voluntary at that time but became mandatory with the passage of the first federal accessibility law -- the Architectural Barriers Act of 1968, (P.L. 89-333). The Architectural Barriers Act requires that buildings and facilities designed, constructed, or altered with Federal funds, or leased by a Federal agency, must comply with standards for physical accessibility. Additionally, the ANSI A117.1 Standard has been adopted as an enforceable code by many State and local agencies that regulate the design and construction of built facilities. The technical requirements in ANSI A117.1 are also referenced in the model building codes established by regional organizations such as the following:

• Building Officials and Code Administrators International (BOCA)
• International Conference of Building Officials (ICBO)
• Southern Building Code Congress International (SBCCI)

There is much guidance, technical assistance and models of best practices for a city to follow to makes its facilities accessible. The Federal Highway Administration of the U.S. Department of Transportation funded a national project to assist states, cities, and counties in making their facilities accessible to people with disabilities. See, "Designing Sidewalks and Trails for Access: Review of Existing Guidelines and Practices (July 1999). The U.S. Access Board published "Accessible Rights-of-Way: A Design Guide" (Nov. 1999) http://www.access-board.gov/publications/prow%20guide/prowguide.htm.

Most recently, the U.S. Access Board convened a national advisory committee of stakeholders, including state and local civil engineers, traffic engineers, highway officials, and people with disabilities, to develop detailed recommendations for accessibility standards for public rights-of-way. See, the Public Rights-of-Way Access Advisory Committee Final Report, "Building A True Community" (Jan.2001) http://www.access-board.gov/prowac/commrept/index.htm.

Even if this guidance were not available, it is disingenuous for the city to argue that they are not covered by the ADA and Section 504. Like the Ninth Circuit states, "Rather than determining whether each function of a city can be characterized as a service, program, or activity for purposes of Title II, however, we have construed "the ADA's broad language [as] bring[ing] within its scope "anything a public entity does.³ This broad construction of the phrase, "services, programs, or activities," is supported by the plain language of the Rehabilitation Act because, although the ADA does not define services, programs, or activities," the Rehabilitation Act defines "program or activity" as "all of the operations of" a qualifying local government.⁴

The Court goes on to note that the legislative history of the ADA similarly supports construing the language generously, providing that Title II "essentially simply extends the anti-discrimination prohibition embodied in section 504 [of the Rehabilitation Act] to all actions of state and local governments." H.R. Rep. No. 101-485 (II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (emphasis added); see also id. at 151, reprinted in 1990 U.S.C.C.A.N. 303, 434 ("Title II...makes all activities of State and local governments subject to the types of prohibitions against discrimination...included in Section 504...") In fact, the ADA must be construed "broadly in order to effectively implement the ADA's fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.⁵

In any event, the law is clear. Title II of the ADA provides, "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132. Section 504 provides that: "No otherwise qualified individual with a disability in the United States... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance..." 29 U.S.C. 794(a). The regulations under both statutes define "facility" to include "roads" and "walks."⁶ The Title II regulations specifically address one aspect of the accessibility of sidewalks, requiring, among other things, that public entities install curb ramps in newly constructed or altered sidewalks.⁷ 35.150 requires the provision of curb ramps, "giving priority to walkways serving" government offices, "transportation, places of public accommodation, and employers," but then "followed by walkways serving other areas."⁸ This section's "requirement of curb ramps in all pedestrian walkways reflects a general concern for the accessibility of public sidewalks, as well as a recognition that sidewalks fall within the ADA's coverage, and would be meaningless if the sidewalks between the curb ramps were inaccessible.⁹

The above regulations were issued by the Department of Justice to implement Title II, pursuant to 42 U.S.C. 12134 and must be consistent with the regulations issued to enforce Section 504 and consistent with the architectural "minimum guidelines and requirements" to be developed by the Architectural and Transportation Barriers Compliance Board (Access Board).^{10 | 11} The City of Sacramento maintains that because only curb ramps are addressed specifically in the regulations, curb ramps are the only portion of sidewalks that are covered by Title II. This ignores the fact that the Government has not yet completed its accessibility guidelines for public facilities generally, or sidewalks in particular. Until that process is complete, public entities have a degree of flexibility in making their sidewalks accessible, but are still bound by the general accessibility regulations for facilities and by the nondiscrimination requirements of Title II itself, as stated above.

NCD believes that the well-reasoned analysis of the Ninth Circuit fully reflects the statutory intent, and should become the precedent for all future decisions involving similar challenges to the coverage of the ADA and Section 504. Sacramento's position that federal laws don't cover sidewalks is untenable. Any city that refuses to make its public facilities accessible to people with disabilities, despite the long-standing federal requirements, standards, guidance, technical assistance, and models of best practices now available is simply intransigent, and should not be rewarded for its recalcitrance.

In closing, we appreciate the opportunity to present our views to you on this important case. If there are any questions you would like to discuss further, please contact Jeffrey Rosen, General Counsel and Director of Policy, at (202) 272-2124 or by e-mail at jrosen@ncd.gov. Thank you.

Sincerely,

Lex Frieden
Chairperson

cc: Chief Justice William Rehnquist
Associate Justice John Paul Stevens
Associate Justice Sandra Day O' Connor
Associate Justice Antonin Scalia
Associate Justice Anthony Kennedy
Associate Justice David Souter
Associate Justice Clarence Thomas
Associate Justice Ruth Bader Ginsburg
Associate Justice Stephen Breyer

1 Barden at 1077.

2 23 U.S.C.A. -- 133.

3 Barden citing Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)(quoting Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 (3d. Cir. 1997), aff'd, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998)) at 1076.

4 Barden citing 29 U.S.C. -- 794(b)(1)(A) at 1077.

5 Arnold v. United Parcel Serv., Inc. 136 F.3d 854, 861 (1st Cir. 1998).

6 See 28 C.F.R. 35.104 (Title II); 28 C.F.R. 41.3(f)(Section 504).

7 28 C.F.R. 35.151(e)(2).

8 28 C.F.R. -- 35.150(d)(2).

9 Barden at 1077.

10 Title II requires non-discrimination in all programs, services, and activities of public entities. The construction, alteration, or maintenance of the public rights-of-way is an activity of a public entity and is therefore subject to the non-discrimination requirements. A public pedestrian circulation network is both a "program", i.e., a service delivered by a government to its citizens, and a set of "facilities," e.g., the sidewalks, curb ramps, street crossings, and related pedestrian elements that are instrumental in providing the service. E.R. 180 (Access Board, Accessible Public Rights of Way Design Guide 15, 18 (2000)(Access Board Design Guide)).

11 See 42 U.S.C. 12204, 12134(b).

Sent to MCIL by:

Fred Fay
Guest Justice-For-All Moderator
jfa@jfanow.org