Sidewalks to Nowhere: Texas, Wheelchairs & the Supreme Court

2/14/12

Sidewalks to Nowhere: The Supreme Court and the ADA

David Ferleger & Richard Frame

An engineer in the aerospace and defense industry, Richard Frame became quadriplegic after a devastating auto accident twelve years ago. His body is paralyzed except for his head and shoulders,. He controls his power wheelchair with delicate head movements. Like most of the 3.4 million wheelchair users in the United States, Rick Frame actively participates in the life of his community.

When he leaves his home, however, Mr. Frame is excluded from his own community. When he takes to the streets of Arlington, Texas, he finds sidewalks to nowhere. Sidewalks with a curb cut at one end and no way to leave the sidewalk at the other end. Utility poles smack in the middle of a sidewalk. When he tried to go from his doctor’s office to a restaurant across the street, he discovered there was no way to get there. If his attendant parks Mr. Frame’s van in the municipal parking lot on a game day, he cannot get by wheelchair to the billion dollar Cowboys Stadium, built with $325 million in Arlington city funds.

The United State Supreme Court is poised to decide this month whether to review a sidewalk access decision in favor of Mr. Frame and several other wheelchair users which the National League of Cities, and the U.S. Conference of Mayors claim proclaim will impose a “crushing burden” on cities nationwide.

Joined by other cities and national organizations, the City of Arlington, Texas is asking the nine justices to free Arlington and other cities from any obligation to remedy their failure to make new and altered sidewalks accessible to people who use wheelchairs, a discriminatory violation of the 1990 Americans with Disabilities Act

A decision in favor of Arlington would also deny access to beneficiaries of technologies such as the Segway, the two-wheeled self-balancing device which hundreds of veterans disabled in Iraq and Afghanistan now use to go to work, walk their dogs and run with their children.

The case comes to the high court from the court of appeals, sitting unusually as a full court, which voted 8 to 7 last year that, “when a city chooses to construct a new sidewalk or alter an existing one, the city must take reasonable measures to ensure that those sidewalks are readily accessible to individuals with disabilities.” The court rejected Arlington’s argument that cities across the country may pick and choose when and where to provide accessible sidewalks.

In addition to the law, there are several moral, public policy and economic reasons why the Supreme Court should refuse to hear Arlington’s appeal. This form of discrimination is unfair, expensive and harmful to our national economy. It has extremely negative consequences for people without disabilities as well.

Excluding a class of people from the same sidewalks which “walking people” use is simply unfair. When a great city like Arlington builds and helps pay for monumental stadiums, that town ought to ensure that all of its residents can get to those stadiums, as well as to stores, hospitals, downtown restaurants, and their children’s schools.

The National League of Cities protests that, “sidewalk improvement programs can cost a single city hundreds of millions of dollars.” The appeals court explained that Congress looked at the question quite differently. Congress found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”

Our national economy will benefit when cities are compelled to connect the dots and provide pathways in the community for people with mobility impairments. The ADA itself states that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.”

Discrimination is a “totally unnecessary contributor to public deficits” and costs literally billions of dollars annually in support payments and lost income tax revenues,” the Congress concluded.

Cities need to do it right the first time. When it comes to sidewalk accessibility, Congress recognized that the additional cost of making a new sidewalk readily accessible is “often nonexistent or negligible.” When Arlington chose to build or alter inaccessible sidewalks after the 1992 ADA effective date, the city wasted taxpayers’ money and broke the law.

Inaccessible sidewalks harm everyone. Simply put, what works for people with disabilities works for everyone. We have all used curb ramps where sidewalks meet the street. They are useful when we are pushing a baby stroller or a shopping cart, lugging a suitcase, moving furniture, walking with crutches, or helping an elder cross a street. Bicyclists use curb ramps all the time.

Just as the invention of the typewriter, Jacuzzi and even email originated as efforts to benefit people with disabilities, so has the development of curb cuts, first implemented in 1945 in Kalamazoo, Michigan, as an accommodation for soldiers returning from World War II.

At a July 1990 ceremony, President George Herbert Walker Bush declared that with his “signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Now, 22 years later, it is past time for all those who pass through those doors to be able to join one another, co-workers and their neighbors.

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David Ferleger is an attorney near Philadelphia, PA and represents the plaintiffs in the litigation in the Supreme Court. Richard Frame lives in Arlington, TX, is a retired Registered Accessibility Specialist, and is one of the plaintiffs before the Supreme Court.