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Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

Chapter: VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE

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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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28 including a lack of federal funding or the effect of the loss of any subsidies.382 Finally, some transit providers demonstrated that a decision was caused by factors beyond the agency’s con- trol.383 VII. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND TRANSIT SERVICE A. Statutory Provisions Applicable to Public Transportation Providers The ADA384 provides that any entity that offers transportation services to the general public must not discriminate against any individual who has a disabil- ity. In Title II of the ADA, Congress extended the man- date of the Rehabilitation Act to cover all public trans- portation providers.385 The ADA ordered local governments to make bus and train systems more ac- cessible to the disabled.386 Title II of the ADA applies regardless of whether federal funding is received.387 Part 37 of Title 49 of the C.F.R. implements “the trans- portation and related provisions of titles II and III” of the ADA.388 As provided by the regulations, “[n]o entity shall discriminate against an individual with a disabil- ity in connection with the provision of transportation service.”389 A public entity includes any state or local government and “[a]ny department, agency, special purpose district, or other instrumentality of one or more state or local governments….”390 Section VII.A of the digest discusses Title III of the ADA, which applies to public accommodations and services operated or pro- vided by private entities, including private transporta- tion entities, serving the public. Furthermore, Section 504 of the Rehabilitation Act of 1973, as amended, now provides that [n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded 382 Id. 383 Id. 384 42 U.S.C. §§ 12101–12213 (2009); 47 U.S.C.A. §§ 225, 611 (2009). 385 See 42 U.S.C. §§ 12132 and 12131(1) (2009). 386 Id. § 12132 (2009) (no disabled person may be excluded from public services); 42 U.S.C. § 12142 (2009) (public transit systems may not purchase or lease a new bus unless it is read- ily accessible to individuals with disabilities, including indi- viduals who use wheelchairs); 42 U.S.C. § 12143 (such agencies must provide on-demand “paratransit” service to disabled per- sons unable to use traditional public transit). 387 Boose v. Tri-County Metro. Transp. District of Or., 2008 U.S. Dist. LEXIS 79438, at *13 (D. Or. 2008) (citing O’Guinn v. Lovelock Corr. Ct., 502 F.3d 1056, 1060 (9th Cir. 2007) (stating the elements of the causes of action under Tit. II of the ADA and § 504 of the Rehabilitation Act). 388 49 C.F.R. § 37.1 (2009). 389 Id. § 37.5(a) (2009). 390 Id. § 37.3 (2009). from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….391 At least one court has stated that an analysis of the rights and obligations created by the ADA and Section 504 of the Rehabilitation Act shows that there is no significant difference between the two laws.392 “Title II of the ADA expressly provides that the remedies, proce- dures, and rights set forth in 29 U.S.C. § 794(a) shall be the remedies, procedures, and rights Title II provides to any person alleging discrimination on the basis of dis- ability in violation of 42 U.S.C. § 12132.”393 Indeed, in one case in which the court dismissed the ADA claims on the ground of sovereign immunity, the court resur- rected the dismissed claims by deeming them to have been brought under the Rehabilitation Act.394 Under the ADA, 42 U.S.C. § 12102(1), as amended in 2008,395 “[T]he term ‘disability’ means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more major life activi- ties of such individual; (B) a record of such an impair- ment; or (C) being regarded as having such an impair- ment….”396 The provisions of the ADA are designed not only to address intentional discrimination against qualified individuals who require transportation services but also to include other types of discrimination, including be- nign neglect or indifference.397 As the Supreme Court 391 29 U.S.C. § 794(a) (2009) (An amendment in 1992 substi- tuted the term “disability” for the terms “handicaps” and “handicap” in the first sentence of the section.). It may be noted that § 165(b) of the Federal-Aid Highway Act of 1973 stated that projects receiving Federal financial assistance…shall be planned, designed, constructed, and operated to allow effective utilization by elderly and handicapped persons who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability…are unable without spe- cial facilities or special planning or design to utilize such facili- ties and services effectively…. The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring ac- cess to public mass transportation facilities, equipment, and services for elderly or handicapped persons. 392 Pruett v. State, 606 F. Supp. 2d 1065, 1073 (D. Ariz. 2009) (citing Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002); accord, McGary v. City of Portland, 386 F.3d 1259, 1269 n.7 (9th Cir. 2004)). 393 Pruett, 606 F. Supp. 2d at 1073. 394 See Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006). 395 For a discussion of the 2008 Amendments to the ADA, see Alex B. Long, Introducing the New and Improved Ameri- cans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 NW. U. L. REV. Colloquy 217 (2008). 396 ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, available at http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt. pdf, codified in 29 U.S.C. § 705 and scattered sections of Tit. 42 of the U.S.C.); see also 49 C.F.R. § 609.3 (2009). 397 Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362 (N.D. Ga. 2002).

29 stated in Choate, supra, in the case of discrimination against the handicapped, the discrimination is usually the result “not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect.”398 Requirements under the ADA and the applicable transportation regulations preempt conflicting state or local provisions.399 The ADA does not invalidate or limit the remedies, rights, and procedures of any other fed- eral law or law of any state or political subdivision or jurisdiction that provides greater or equal protection for individuals with disabilities than are afforded by the ADA.400 Title II begins with a general prohibition of disabil- ity-based discrimination in § 12132, followed by seven provisions (42 U.S.C. §§ 12142, 12143, 12144, 12146, 12147, 12148, and 12162) that define what “shall be considered discrimination” for purposes of the statute.401 The legislative history of the ADA reflects a national policy that individuals with disabilities possess an equal right to use public transportation facilities and services.402 As such, Congress recognized that special efforts must be made to address planning, design,403 construction, and operation404 of public transportation facilities and services to provide individuals with dis- abilities equal access to such services.405 Under the ADA, the Secretary of Transportation is authorized to provide grants to state and local govern- mental authorities for public transportation projects that are planned, designed, and carried out to meet the needs of individuals with disabilities.406 The Secretary has implemented minimum criteria for recipients that receive federal financial assistance, as well as methods to monitor compliance.407 Applicants are required to provide satisfactory assurances under the terms and conditions that the Federal Transit Administrator pre- scribes.408 Under the Act, “designated public transportation” is “transportation (other than public school transporta- tion) by bus, rail, or any other conveyance (other than transportation by aircraft or intercity or commuter rail transportation…) that provides the general public with general or special service (including charter service) on 398 Choate, 469 U.S. at 295. 399 49 C.F.R. § 37.11, app. D (2009). 400 42 U.S.C. § 12201(b) (2009). 401 See Disabled in Action of Pa., Appellant v. Se. Pa. Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008). 402 49 U.S.C. § 5301(d) (2009); 23 U.S.C. § 142 (2009). 403 Id. 404 23 U.S.C. § 142 (2009). 405 49 U.S.C. § 5301(d) (2009); 23 U.S.C. § 142 (2009). 406 Id. § 5310(a) (2009). 407 Id.; 49 C.F.R. pt. 27 (2009). 408 49 U.S.C. § 5307 (2009). a regular and continuing basis.”409 Alterations of an ex- isting facility for a designated public transportation service,410 including existing rail stations or commuter rail transportation,411 that affect their ability to serve individuals with disabilities may be considered dis- crimination. That is, it may be considered discrimina- tion if a public entity or other person412 fails to make alterations so that a facility is usable by individuals with disabilities.413 Subtitle B of Title II of the ADA is applicable to pub- lic transportation services and includes essentially all forms of transportation services that state and local governments provide, such as motor vehicle and inter- city or commuter rail services.414 Not included under Subtitle B of Title II are transportation services by pri- vate entities, which are covered under Title III.415 Some of the key provisions of the ADA with respect to public transit are as follows. • Section 202 provides that “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.”416 • Section 222 provides that any public entity that purchases or leases a new bus, rapid rail vehicle, or light rail vehicle must make the vehicle “readily acces- sible to and usable by individuals with disabilities, in- cluding individuals who use wheelchairs.”417 • Section 223 requires that all government agencies operating fixed route systems provide paratransit ser- vice as a “safety net” for disabled individuals incapable of using conventional public transit and that the service must be “sufficient to provide to [disabled] individuals a level of service...comparable to the level of designated public transportation services provided to individuals without disabilities using such system.”418 (emphasis added). B. DOT Regulations Implementing the ADA The USDOT issued regulations in 1991 that “ad- dressed a wide variety of issues not directly addressed 409 42 U.S.C. § 12141(2) (2009); 49 C.F.R. § 37.3 (2009). 410 42 U.S.C. § 12147(a) (2009). 411 Id. § 12162(e)(2)(B)(i). 412 Id. 413 Id. § 12147(a), § 12162(e)(2)(B)(i) (2009); 49 C.F.R. § 37.43(a)(1), (3) (2009). 414 42 U.S.C. § 12131 (2009), et seq. 415 See, e.g., id. § 12184(a) (2009) (regarding prohibition of discrimination in specified public transportation services pro- vided by private entities). 416 Id. § 12132 (2009). 417 Id. § 12142(a) (2009). 418 Id. § 12143(a)(1) (2009).

30 by the ADA,”419 as well as issued guidelines interpreting the regulations.420 The regulations are applicable to en- tities providing transportation services regardless of whether the entities receive financial assistance from the USDOT.421 The entities that must adhere to the USDOT’s regulations include 1) a public entity that provides designated public transportation or intercity or commuter rail transportation; 2) any private entity that provides specified public transportation; and 3) any private entity not primarily engaged in transportation but that operates a demand-responsive or fixed-route system.422 Entities that receive federal financial assis- tance from the USDOT must comply with regulations relating to transportation services for individuals with disabilities as a condition of their compliance with Sec- tion 504 of the Rehabilitation Act of 1973.423 Title II applies to fixed-route systems and paratran- sit service. A fixed-route system is public motor vehicle transportation with “a prescribed route according to a fixed schedule.”424 A public entity that operates a fixed- route system is required to prepare, submit, and pro- vide updates regarding any changes to the system to demonstrate how the public entity also will provide paratransit or other special transportation services.425 Failure to do so or to follow the adopted plan is an act of discrimination.426 C. The Availability of a Private Right of Action Under the ADA Title II of the ADA provides that the remedies set forth in the Rehabilitation Act govern actions involving discrimination relating to government programs; conse- quently, a private right of action may be brought under the ADA.427 As the Supreme Court has held, “[b]oth Ti- tle II and Section 504 are enforceable through private causes of action.”428 As discussed hereafter, injunctive relief is available as a remedy to a private party under Title II and Section 504 of the Rehabilitation Act,429 as well as compensatory damages in some situations.430 419 Michael Lewyn, “Thou Shalt Not Put a Stumbling Block Before the Blind”: The Americans with Disabilities Act and Public Transit for the Disabled, 52 HASTINGS L. J. 1037, 1070 (2001); see 49 C.F.R. pts. 37, 38 (2009). 420 See 49 C.F.R. pt. 37, app. D (2009). 421 49 C.F.R. pt. 37 (2009). 422 Id. § 37.21(a)(3) (2009). 423 29 U.S.C. § 794 (2009). 424 42 U.S.C. § 12141(3) (2009). 425 Id. § 12143(c)(4) (2009). 426 Id. § 12143(c)(C)(6)–(7) (2009). 427 Id. § 12133 (2009). 428 Everybody Counts, Inc. v. No. Ind. Reg. Planning Comm’n, 2006 U.S. Dist. LEXIS 39607, *47 (N.D. Ind. 2006) (citing Barnes v. Gorman, 536 U.S. 181, 185, 122 S. Ct. 2097, 2100, 153 L. Ed. 2d 230 (2002)). 429 United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650 (2006). 430 Barnes v. Gorman, 536 U.S. 181, 186–87, 122 S. Ct. 2097, 2100–02, 153 L. Ed. 2d 230 (2002); Garrett v. Chicago Sch. As stated, for a plaintiff to prove a discrimination claim under § 12132, the plaintiff must show: (1) [H]e is a “qualified individual with a disability”; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs or activi- ties, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or dis- crimination was by reason of his disability.431 In a nontransit case, a federal court in Arizona ex- plained that § 12132 “prohibits both outright discrimi- nation against individuals with disabilities and forms of discrimination, including facially neutral laws, that deny disabled persons meaningful access to public ser- vices.”432 Furthermore, [t]he regulations implementing Title II of the ADA re- quire that public entities “shall make reasonable modifi- cations in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can dem- onstrate that making the modifications would fundamen- tally alter the nature of the service, program, or activ- ity.”433 In the Pruett case, the court held that the “ADA re- quires only accommodations that are reasonable.”434 The failure to make a reasonable accommodation for the disabled under the ADA may constitute discrimina- tion: “the statute does not provide guidance as to when a particular accommodation is or is not reasonable. The ADA does contain, however, an outer limit on the duty of reasonable accommodation in the concept of ‘undue hardship.’”435 However, as a district court stated in Pruett, [A] discrimination claim based on a failure to reasonably accommodate is distinct from a discrimination claim based on disparate impact, and a plaintiff is not required to allege either disparate treatment or disparate impact in order to state a reasonable accommodation claim…. “[T]he crux of a reasonable accommodation claim is a facially neutral requirement that is consistently enforced.”…“The purpose of the ADA’s reasonable accommodation re- quirement is to guard against the facade of ‘equal treat- ment’ when particular accommodations are necessary to level the playing field.”…“[T]he question of what consti- tutes a reasonable accommodation under the ADA re- Reform Bd. of Trust., 1996 U.S. Dist. LEXIS 10194, at *4 (N.D. Ill. 1996). 431 Pruett v. State, 606 F. Supp. 2d 1065, 1072 (D. Ariz. 2009) (quoting Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)). 432 Id. at 1072 (citation omitted). 433 Id. at 1072–73 (quoting 28 C.F.R. § 35.130(b)(7)). 434 Id. at 1079 (holding that “permitting Pruett to possess the Chimpanzee in her home to assist her with obtaining car- bohydrate supplementation is not a reasonable accommodation to the Arizona statutes and regulations that do not permit possession of chimpanzees in these circumstances”). 435 Kelly Cahill Timmons, Limiting “Limitations”: The Scope of the Duty of Reasonable Accommodation under the Americans with Disabilities Act, 57 S.C. L. REV. 313, 321 (2005) (primarily discussing the subject of employment discrimination).

31 quires a fact-specific, individualized analysis of the dis- abled individual’s circumstances and the accommodations that might allow him to meet the program’s standards.”436 (emphasis added). In Midgett v. Tri-County Metropolitan Transporta- tion District,437 the Ninth Circuit addressed the issue of what relief is available for an ADA plaintiff who alleges, for example, that wheelchair lifts on several buses that the plaintiff attempted to ride all malfunctioned on the same day.438 The court held, first, with respect to injunctive relief, that the fact that a plaintiff is able to show sufficient injury to establish standing does not warrant conclud- ing “that the plaintiff necessarily has demonstrated a sufficient fear of immediate and substantial injury to warrant an injunction.”439 Second, when the defendant is a nonfederal govern- ment agency, be it state or local, a federal court will exercise restraint in granting an injunction, for in- stance, that requires a transit defendant to take spe- cific, affirmative steps to make certain the agency is ADA-compliant.440 In Midgett, the court observed that “TriMet is a ‘state public entity,’ a fact that cautioned against the court’s use of its equitable powers in the absence of a strong factual record demonstrating the threat of future ADA violations.”441 Third, it is not required, as the district court also held, “that a defendant’s intent is an element of a claim for injunctive relief under the ADA.”442 According to the court, it had “never held that a plaintiff must prove an intentional violation of the ADA in order to obtain an injunction mandating compliance with its provisions.”443 Fourth, a plaintiff must present facts showing a threat of immediate, irreparable harm when seeking an injunction.444 However, “occasional problems do not, without more, establish a violation of the ADA.”445 The evidence presented did not support an inference of a “real and immediate threat of continued, future viola- tions of the ADA in the absence of injunctive relief.”446 On the issue of compensatory damages, the court held, as did the district court, that “a showing of dis- criminatory intent [is] a prerequisite to obtaining com- pensatory damages under the ADA.”447 However, the 436 Pruett, 606 F. Supp. 2d at 1079. 437 254 F.3d 846 (9th Cir. 2001). 438 Id. at 848. 439 Id. at 850 (citations omitted). 440 Id. at 848, 851. 441 Id. at 849 (citation omitted). 442 Id. at 851. 443 Id. 444 Id. 445 Id. at 850. 446 Id. (emphasis in original). 447 Id. at 851 (citation omitted). court declined to rule on “whether ‘deliberate indiffer- ence’ or ‘discriminatory animus’ provided the appropri- ate level of intent.’”448 Examples of ADA cases involving transit with differ- ent outcomes include Cupolo v. Bay Area Rapid Transit, in which a disabled individual brought an action against the local transit authority because the area’s key station for rapid and light rail systems was not readily accessible to individuals with disabilities.449 A California district court in ordering a preliminary in- junction held that the local transit authority’s failure to provide accessibility services, such as for individuals who require a wheelchair, violated the ADA. However, more recently, in Neighborhood Association of the Back Bay, Inc. v. Federal Transit Administration,450 a federal district court in Massachusetts held that a preliminary injunction halting a project to bring a subway station into compliance with the ADA would harm the unde- niably crucial public interest in ensuring that public transportation was accessible to the disabled. In George v. Bay Area Rapid Transit,451 the issue was whether the plaintiffs could recover under the ADA when “a public transit service system complies with existing federal design regulations for train station ac- cessibility.”452 The Ninth Circuit observed that the “DOT was required to make ‘key stations’ readily accessible to and useable by persons with visual impairments.”453 The court held that the DOT had done so, that the DOT regulations were not arbitrary or capricious, and that DOT had “address[ed] the needs of those with visual disabilities, although perhaps not to the level the tran- sit riders would have preferred.”454 Furthermore, “[u]nless DOT regulations are arbitrary and capricious; BART is required to do no more than follow them.”455 Finally, as held by a federal district court in New York, “[o]nly transit ‘entities’ can be defendants in ADA Title II cases because that subchapter of the statutes only discusses the obligations of ‘entities’ to not dis- criminate, 42 U.S.C. § 12131 and § 12132, not those of ‘employers’ or ‘persons’….”456 D. The ADA and Paratransit Service A paratransit system does not have a fixed route but instead meets riders’ specific needs at requested times. 448 Id. (citation omitted). 449 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078 (N.D. Cal. 1997). 450 407 F. Supp. 2d 323 (D. Mass. 2005). 451 577 F.3d 1005 (9th Cir. 2009). 452 Id. at 1007. 453 Id. at 1009. 454 Id. 455 Id. at 1011. 456 Stewart v. N.Y. City Transit Auth., 2006 U.S. Dist. LEXIS 4279, at *17 (S.D. N.Y. 2006).

32 A disabled individual qualifies for paratransit service under Title II if the disabled person 1) is not able with- out assistance “to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable by individuals with disabilities”; 2) requires boarding assistance devices; or 3) does not have access to travel to needed locations through any fixed-route systems.457 In Anderson v. Rochester-Genesee Regional Trans- portation Authority,458 the court stated, first, that § 12143 “requires that the ‘level of [paratransit] service’ be ‘comparable to the level of designated public trans- portation services provided to individuals without dis- abilities,’ and that response time be ‘comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities.’”459 As the Supreme Court of the State of Washington has observed, “[t]he ADA addresses discrimination in public transportation by requiring public transit agen- cies operating fixed route systems to provide paratran- sit and other special service transportation to disabled persons on a comparable level to the service provided for nondisabled users.”460 Thus, paratransit services must be comparable to those provided by a state or local government’s fixed-route services.461 A public entity, however, does not have to provide paratransit services if doing so would cause undue fi- nancial hardship.462 For example, in one case involving the Spokane Transit Authority (STA), a public transit agency, the court held that if the plaintiff were to make a prima facie case of discrimination, thereby shifting the burden to the STA to show a nondiscriminatory reason for its actions, “[c]ompliance by STA with the ADA and the DOT regulations adopted there- under…could constitute a legitimate, nondiscriminatory reason for STA’s actions, sufficient to shift the burden to the plaintiffs to demonstrate that STA’s actions were a mere pretext for discrimination.”463 (Burden-shifting in Title VI and ADA cases is discussed, supra, in the text of the digest at footnotes 187 to 192.) Moreover, “a defendant may advance financial unfeasibility as a le- gitimate nondiscriminatory reason for its action.”464 457 42 U.S.C. § 12143(c)(1) (2009). 458 337 F.3d 201 (2d Cir. 2003). 459 Id. at 208–9 (citing 42 U.S.C. § 12143(a)). 460 Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 638, 911 P.2d 1319, 1324 (Wash. 1996) (citing 42 U.S.C.A. § 12143(a) (1995)). 461 42 U.S.C. § 12143(a). 462 Fell, 911 P.2d at 1314 (citing 42 U.S.C. § 12143(c)(4)); see 49 C.F.R. § 37.155 (setting forth the factors that the FTA Ad- ministrator will consider in making an undue financial burden determination). 463 Id. at 1331 (footnote omitted) (stating also that on re- mand the plaintiffs would have an opportunity to show that “STA’s reliance on the ADA was a mere pretext for discrimina- tion.”). 464 Id. at 1331 (footnote omitted). The exception for undue financial burden is consis- tent with the application of the ADA to employers. As stated in West v. Russell Corp.,465 “[g]enerally, …federal courts have applied the settled principles of employ- ment discrimination law to the ADA.” The Supreme Court observed in Board of Trustees of the University of Alabama v. Garrett466 that the ADA “requires employers to ‘make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or em- ployee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer’s] business.’”467 In Anderson, supra, the court stated that, in regard to the ADA claims, even a “well conceived” and funded paratransit service occasionally may experience trip denials.468 However, “‘substantial numbers’ of trip deni- als can establish that a paratransit service…is inade- quate as a matter of actual operation.”469 The court, in answer to its own question of what level of service would make a paratransit system “comparable” to a public transportation system used by individuals with- out disabilities, stated that “[c]omparability seems im- possible to achieve because, as one district judge has observed, ‘a constraint on a fixed route system never results in a patron being denied a ride altogether, ab- sent an uncontrollable force.’”470 Nevertheless, the court held that, although an in- substantial number of trip denials is permissible, para- transit service providers must “plan to meet 100% of the demand for next-day ride requests.”471 In affirming the lower court’s grant of a summary judgment in favor of the plaintiffs on their first claim, the appellate court held that based on the record, “the defendants violated [49 C.F.R.] § 37.131(b) by failing to design and imple- ment a system to schedule all next-day ride requests from eligible riders.”472 In the Anderson case, there was also an issue of whether the “defendants violated 49 C.F.R. § 37.131(f)(3) by engaging in an ‘operational pattern or practice’ that significantly limited the availability of paratransit service.”473 Based on the record and “unre- futed” statistics, the Second Circuit again affirmed the district court’s grant of a summary judgment in favor of the plaintiffs on their claim that the defendants “main- tain[ed] a pattern or practice that significantly limits 465 868 F. Supp. 313, 315 (N.D. Ala. 1994). 466 531 U.S. 356, 361, 121 S. Ct. 955, 960, 148 L. Ed. 2d 866, 876 (2001). 467 Id. (quoting 42 U.S.C. § 12112(b)(5)(A)). 468 Anderson, 337 F.3d at 210. 469 Id. (citation omitted). 470 Id. at 209 (citation omitted). 471 Id. at 212 (citation omitted). 472 Id. at 213. 473 Id.

33 the availability of paratransit service for eligible rid- ers.”474 The comparability-of-service requirement was ad- dressed in Boose v. Tri-County Metropolitan Transpor- tation District of Oregon.475 The issue was whether Tri- County Metropolitan Transportation District of Oregon (TriMet), Portland, Oregon, a public entity providing mass transportation services, was required to provide the plaintiff with her requested mode (i.e., vehicle) of paratransit service based on a DOJ regulation. Boose used TriMet’s paratransit service, the LIFT Paratransit Program (LIFT). In 2006 Boose requested that TriMet accommodate her disability by scheduling her rides only in sedans or taxis to alleviate the dizzi- ness and nausea she experienced on LIFT buses.476 Boose alleged in her complaint that TriMet’s refusal violated the ADA and the Rehabilitation Act of 1973.477 At issue was whether a Justice Department regulation was applicable. The Justice Department regulation re- quired “public entities to ‘make reasonable modifica- tions in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can dem- onstrate that making the modifications would funda- mentally alter the nature of the service, program, or activity.’”478 On several grounds, the court rejected the plaintiff’s argument that the DOJ regulation applied to a public entity such as TriMet. First, Title II, Part A, of the ADA, which prohibits discrimination against the disabled by public entities, “prohibits the DOJ from making rules that ‘include any matter within the scope of the authority of the Secre- tary of Transportation under section 12143.’”479 Second, the court explained that the USDOT has not promulgated a rule requiring a public entity to provide paratransit service by “vehicle type.”480 Paratransit and other special transportation services must be provided to persons with disabilities so as to provide a level of service “comparable” to the level of service provided to persons without disabilities.481 For paratransit service, the ADA or the USDOT ADA regulations do not require that public entities make “reasonable modifications in policies, practices, or procedures” as does the DOJ regu- lation.482 However, the court noted that the rule was 474 Id. at 215. 475 587 F.3d 997 (9th Cir. 2009). 476 Id. at 1000. 477 29 U.S.C. § 701, et seq. 478 Boose, 587 F.3d at 1000 (quoting 28 C.F.R. § 35.130(b)(7)). 479 Id. at 1001. 480 Id. at 1002. 481 Id. at 1001. 482 See id. at 1004 (stating that in a 2006 notice of proposed rulemaking that the DOT purported to “‘clarify that…public different in regard to private entities. “With respect to private entities, the DOT has promulgated a regulation requiring their ‘compliance with the requirements of the rules of the Department of Justice concerning eligi- bility requirements, making reasonable modifications, providing auxiliary aids and services, and removing barriers….’”483 (emphasis added). The court held that the DOJ regulation did not apply independently to TriMet; nor had the USDOT incorpo- rated the DOJ regulation so as to make it applicable to public entities’ paratransit service.484 E. ADA Administrative Compliance and Enforcement Public and private485 recipients of financial assis- tance from the USDOT486 are subject to the administra- tive enforcement provisions487 of USDOT regulations issued under Section 504 of the Rehabilitation Act.488 The USDOT investigates any complaints that are filed. Although the Department will attempt conciliation among the parties, if conciliation is not possible, the Department may take further action under Section 504 of the Rehabilitation Act of 1973489 or refer the matter to the Justice Department for possible action.490 The focus of USDOT’s enforcement concerns failures to comply with the basic ADA requirements indicated by a series of problems rather than an occasional error.491 In July 2007, the Transportation Research Board published The Americans with Disabilities Act: The Federal Transit Administration’s Letters of Findings and Compliance Assessments as Legal Research Digest 23. The FTA’s interpretations of the ADA may be found in letter-findings, decisions on complaints, and compli- ance assessments, all referenced in the digest. The di- gest includes a CD and indexes of all FTA’s letter- findings on ADA complaints, including findings relating to fare increases at pages I-77–78 and service cuts at pages I-99–100. The materials collected and indexed demonstrate how FTA typically addresses such com- plaints. Of the 64 agencies responding to the survey for this digest, 4 agencies reported receiving complaints based transportation entities [providing] paratransit service[ ] must make reasonable modifications to their policies and practices to ensure program accessibility,’” (quoting 71 Fed. Reg. at 9762), but that the DOT had not finalized the proposed rule). 483 Id. at 1004 (quoting 28 C.F.R. §§ 36.301–306). 484 Id. at 1003–04. 485 49 C.F.R. § 37.11, app. D (2009). 486 Id. § 37.11(a) (2009). 487 Id. §§ 27.121–27.129 (2009). 488 Id. § 37.11(a) (2009); 29 U.S.C. § 794 (2009). 489 29 U.S.C. § 794 (2009). 490 49 C.F.R. § 37.11, app. D (2009). 491 Id.

34 on alleged violations of the ADA. One agency had re- ceived a complaint regarding a reduction in transit ser- vice that still was being processed at the time of this digest. A second agency reported that a USDOT “in- quiry” had been resolved. A third agency received com- plaints from the elderly and the disabled regarding ser- vice reductions and fare increases that were resolved in the manner described in Section IX, infra, discussing transit agencies’ best practices. Lastly, one agency stated that it had had one fare in- crease in the last 10 years and received ADA complaints that focused on the elimination of deeply discounted fare media. A majority of the complaints had to do with the elimination of the most heavily discounted fare me- dia of all, an Annual $52 Disabled Pass. According to the agency, its revenue department researched the ADA claims and concluded that the new fare structure was not discriminatory in its implementation or intent. No complaints were lodged at the FTA against the agency. F. Judicial Claims Under the ADA for Reduction in Transit Service or Increase in Fares One of the few cases having to do with the ADA and a reduction in transit service is Hassan v. Slater,492 in which a pro se plaintiff contested the decisions by the Long Island Railroad (LIRR) and the MTA to close a train station that was more convenient to the plaintiff than alternative stations. The court held that the plain- tiff’s complaint failed as a matter of law to state a claim. First, the court held that “[t]he blind, visually im- paired and otherwise disabled can still avail themselves of train service at other LIRR stations” and that, al- though there was inconvenience to the plaintiff, the extra inconvenience did not rise “‘to the level of irrepa- rable harm such that the LIRR must be stopped from implementing its plan.’”493 Hassan is not prevented from using any of the other LIRR stations by reason of a disability. Nor has he adequately alleged that he was discriminated against or prevented from participating in any mode of transportation because of his disability. The fact that Hassan lives four and a half miles away from the next closest train station, and that closure of the Center Moriches Station makes it more difficult for him to travel to Manhattan, is not tan- tamount to stating a claim of exclusion or discrimination. The plaintiff’s conclusory allegations that his rights un- der the ADA were violated are thus insufficient to state a claim under the statute.494 Second, as the court noted, under the ADA, stations that are designated as key stations must be made ac- cessible to individuals with disabilities.495 (For train stations constructed prior to the ADA, the Act requires only that designated key stations be made accessible to 492 41 F. Supp. 2d 343 (E.D. N.Y. 1999). 493 Id. at 348 (quoting Molloy v. Metro. Trans. Auth., 94 F.3d 808, 811 (2d Cir. 1996)). 494 Id. at 350–51 (emphasis supplied) (citation omitted). 495 Id. at 345 (citing 49 C.F.R. § 37.47(a), (c)(1)). individuals with disabilities.)496 However, the station that was closed was not a “key station.” The court held that it could not conclude, [B]ased on the record currently before it, …that the selec- tion of the key stations, or the exclusion of Center Moriches from designation as a key station, was violative of the ADA. It does not appear that the ADA requires the MTA defendants to keep all of its stations open, or even to make all of its stations fully accessible to people with disabilities. Rather, the ADA only requires that they make new stations and its designated key stations readily accessible to and usable by people with disabilities.497 As seen in the Hassan case, the touchstone is even- handedness whereby transit service is reduced for all commuters, including the disabled. “Hassan has not shown, or even adequately alleged, that the MTA de- fendants excluded him, or any other disabled person, from the benefit of services on the basis of disability. On this record, it appears that the Station closing affects all potential users, not merely disabled users.”498 With respect to fares, in Weinreich v. Los Angeles County Metropolitan Transportation Authority,499 the Ninth Circuit held that a public transit system was not required under the ADA or the Rehabilitation Act to make reasonable modifications to its reduced fare pro- gram’s eligibility requirements for a disabled partici- pant or to reasonably accommodate a participant’s fi- nancial inability to provide recertification of his disability as required by a transit system policy. The court held that “[a] plaintiff proceeding under Title II of the ADA must, similar to a Section 504 plaintiff, prove that the exclusion from participation in the program was ‘solely by reason of disability.’”500 The court af- firmed the district court’s ruling that the agency had no obligation under the ADA or the Rehabilitation Act to reasonably accommodate plaintiff’s financial inability to provide updated recertification of his disability. G. Whether State Transit Agencies Have Sovereign Immunity Under the ADA the issue has arisen whether a state agency such as a transportation department has sover- eign immunity. In Everybody Counts, Inc. v. Northern Indiana Regional Planning Commission,501 a federal district court in Indiana held that Congress had not properly abrogated Indiana’s Eleventh Amendment immunity in a Title II ADA action that included the Indiana Department of Transportation (INDOT) as a defendant. The court held that, based on an analysis of the U.S. Supreme Court’s decision in Tennessee v. Lane,502 INDOT had sovereign immunity. The district 496 Id. at 350 (citing 42 U.S.C. § 12147(b)). 497 Id. at 351 (citation omitted). 498 Id. (emphasis supplied). 499 114 F.3d 976 (9th Cir. 1997). 500 Id. at 978–79 (citations omitted). 501 2006 U.S. Dist. LEXIS 39607, at *1, 3–4 (N.D. Ind. 2006). 502 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004).

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 35: Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications explores the legal implications of reductions in transit service or increases in fares in the context of environmental justice. Based on federal environmental justice principles, the report analyzes constitutional and statutory provisions and regulations in regard to transit agencies’ compliance with Title VI of the Civil Rights Act of 1964 (Title VI) and the Americans with Disabilities Act (ADA).

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