Public Transit

Paving the Way to More Accessible Transit

For the past decade, the Americans with Disabilities Act (ADA) has required all transportation systems in this country to be fully accessible. Nonetheless, mass transit continues to present significant problems for persons with disabilities. According to the National Organization on Disability, 30% of Americans with disabilities still confront obstacles on trains, buses, and other conveyances on a regular basis.

One frustrated power chair user was Betty Allen of Wichita, Kansas. She had attempted to ride public buses in her community for years. In her experience, mechanical lift failures occurred as often as twenty to thirty percent of the time. Ms. Allen and a group of advocates finally had enough. She and 60 others tested the city's transit system one morning and reported their findings at a meeting afterwards. As suspected, the system failed miserably. Many of the passengers were unable to reach their intended destinations, including the follow-up debriefing at a local hotel. Ms. Allen and her colleagues ultimately sued the Wichita Metropolitan Transit Authority under Title II of the ADA and the Rehabilitation Act, 29 U.S.C. sec. 794, and the case became a landmark decision in disability law, Tandy v. City of Wichita.

Tandy is notable because it was the first decision by a federal Court of Appeals to address whether so-called "testers" had legal standing to sue under either the ADA or the Rehabilitation Act. "Testers" are persons who do not use services so much for their own personal needs, but rather as an experiment to determine whether the services generally meet required legal standards. Ms. Allen herself was not a tester. She had used the transit system several times a year for her personal purposes, and she planned to continue doing so in the future. Many of her 60 colleagues, however, were members of an independent living center located outside the community. In Tandy, the 10th Circuit Court of Appeals concluded that both Ms. Allen and her colleagues from Topeka had standing to challenge Wichita's transit system. The Circuit Court relied on the broad language in both the ADA and Rehabilitation Act which gave enforcement rights and remedies to "any person" with a direct personal stake or otherwise. This key language, combined with Congress' anti-discriminatory intentions, conferred standing on all parties in Tandy to the fullest limits permitted by constitutional law.

Persons with SCI/D can and should feel empowered by the Tandy decision to challenge problematic transit systems which they confront in their communities or elsewhere. Accessible mass transportation is mandatory. Section 504 of the Rehabilitation Act has regulated public transportation systems since 1973. The ADA has extended these protections since 1990 to private conveyances like airport and hotel shuttles, charter or sightseeing services, rental car companies and school buses. The U.S. Department of Transportation, the Department of Justice and other federal agencies have adopted detailed regulations to guide the interpretation of these statutes. In addition, a variety of state laws also prohibit discrimination in transportation services. See, e.g., Casas v. City of El Paso, 502 F. Supp. 2d 542 (W. D. Tex. 2007) (violation of local rule that personal care attendant accompanying disabled rider would not be charged bus fare).

Admittedly, the laws do not mandate equal levels of transit service for all persons in all instances. For example, Amtrak may permissibly require advance reservations for disability-accessible seating, see Wray v. National Railroad Passenger Corp., 10 F. Supp. 2d 1036 (E. D. Wis. 1998), and it may also lawfully impose a $200 per ticket charge for premium wheelchair accommodations beyond what is required by the ADA. See Disabled in Action of Pennsylvania v. National Passenger Railroad Corp., 418 F. Supp. 2d 652 (E. D. Pa. 2005). But, all new rail cars ordered since August, 1990 must be accessible, and all existing Amtrak stations must be accessible by July 26, 2010.

A detailed discussion of all transportation regulations potentially implicated would be beyond the scope of this article. If you experience an inaccessible conveyance or suspect that a transportation practice is discriminatory, one important resource to consult is the Department of Transportation. The Department maintains an Office of Civil Rights which provides advice about applicable transit regulations and investigates any related complaints. The Department may be contacted at (202) 366-4000 or http://www.fta.dot.gov/civilrights/12325.html.

If you decide to file an administrative complaint with the Department of Transportation, the complaint must be in writing and filed within 180 days from the date of the alleged violation. The complaint should state the name, address and phone number of the person discriminated against. It should also describe the nature of the ADA and/or Rehabilitation Act problem and the name, address and phone number of the transportation system involved. The complaint should be sent to the following address:

Director of Civil Rights,

Office of Civil Rights

U. S. Department of Transportation

1200 New Jersey Avenue, S.E.

Washington, DC 20590

An individual may also consider filing a lawsuit under the ADA or Rehabilitation Act to enforce his or her rights to accessible transportation. An attorney should be consulted to help prepare the necessary pleadings. If the individual ultimately prevails with the case, he or she would be entitled to recover attorney's fees as well as monetary damages and possible injunctive or declaratory relief.