Local Governments

Enforcing Accessibility Rights Against Local Governments

Barriers to public services have imposed substantial economic and social costs on American society. They have made it harder for persons with disabilities to live fuller, more productive lives and have reduced society's ability to benefit from their skills and talents. This article briefly describes how individuals can use the Americans with Disability Act (ADA) to break down barriers, especially those erected by State and local governments, to assure their active participation in this aspect of American life.

Enacted by Congress in 1990, the ADA gives broad protection to people with disabilities seeking access to public programs, services and facilities. Title II of the ADA expressly applies to State and local governments and prohibits discrimination against qualified individuals with disabilities. In the landmark Olmstead v. LC decision in 1999, as just one example, the U. S. Supreme Court recognized that the ADA required a State to avoid unnecessary institutionalization of disabled individuals and to favor community-based settings whenever appropriate.

In general, State and local governments must eliminate any eligibility criteria that tend to screen out persons with disabilities unless these criteria are necessary for the provision of the particular service, program or activity. Any alleged safety requirements are considered legitimate only if they are essential for safe operation and are based on real risks, not stereotypes about persons with disabilities.

Of key significance, public entities must make their existing facilities accessible in order to insure that disabled individuals are not improperly excluded. All new buildings constructed by a State or local government must comply with ADA guidelines. In addition, whenever a State or local government alters a building, it must make the altered portions accessible.

The guidelines for compliance are specified in two sources: the Uniform Federal Accessibility Standards and the ADA Accessibility Guidelines for Buildings and Facilities. See 28 Code of Federal Regulations, Part 36. Generally, the ADA Accessibility Guidelines represent the same standards that must be used for commercial facilities under Title III of the ADA. Architectural, communication and transportation barriers must be removed whenever doing so is "readily achievable." This term has been defined to mean "easily accomplishable and able to be carried out without much difficulty or expense." Examples of readily achievable modifications include the simple ramping of a few steps, installing grab bars where only routine reinforcement of the wall is required, rearranging furniture, installing offset hinges to widen a doorway, painting new lines to create an accessible parking space, and simple modest adjustments.

The ultimate goal of Title II is to make every public entity's programs, when viewed in their entirety, readily available to persons with disabilities. This standard, known as "program accessibility," does not necessarily require the State and local government to make each of their existing facilities accessible. Program accessibility may be achieved by a number of methods including alteration of existing facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites. For example, if a city currently centralizes all of its utility payment services in one inaccessible building, the decision to collect payments to an equivalent service level at an accessible building in an equally convenient location in the city, avoids the need to structurally modify the original building. However, if the original building happens to be the city hall, where many other vital community and governmental operations occur, then the local government must also make those services accessible when viewed in their entirety.

Individuals subject to discrimination have two primary options under the ADA for enforcing their legal rights against State and local governments. They may file complaints with any of eight designated Federal agencies within certain specified deadlines. Title II complaints should be filed with the Department of Justice, for example, within 180 days of the date of discrimination. In some instances, these complaints may be referred to a mediation program sponsored by the department. The Department of Justice may also bring its own lawsuit where it has investigated the matter and been unable to resolve it.

Individuals may also bring private lawsuits and enforce their rights directly in Federal court. It is not necessary to contact either the Department of Justice or any other Federal agency for prior approval before proceeding in court. Successful plaintiffs may ultimately obtain court orders to stop discrimination and may recover their reasonable attorney's fees. However, civil penalties, which are available under other provisions of the ADA, may not be assessed in cases against State or local governments.

As in all instances with the ADA, compliance with the law benefits everyone. In this context, the ripple effects of accommodating people with disabilities helps others by making public facilities more accessible and convenient and by making government services more open, fair and user-friendly.