Nov 25, 2009
How one word in a recent federal court decision may reveal more about the court's views than its complex analysis of federal regulations.
On Monday, a three judge panel of the Ninth Circuit Court of Appeals found that Portland’s local transit system, TriMet, does not have to make certain modifications for riders with disabilities. The plaintiff, who uses TriMet’s paratransit system, LIFT, asked TriMet to accommodate her balance disorder by providing her rides only in sedans or taxis. Her doctor had informed TriMet that riding on the LIFT bus aggravated her condition by causing her dizziness, nausea and emotional stress.
The court decision hinged on whether regulations of the US Department of Transportation (DOT) or the US Justice Department (DOJ) applied to the plaintiff’s request. The DOJ regulations require public entities to make reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination. The DOT’s regulations, the court found, do not have this requirement and since they govern the operation of paratransit systems, case dismissed.
Although the court set out a lengthy and detailed analysis of administrative law to support its conclusion, I sensed something else going on in the opinion. At one point, the court says that the plaintiff “would like an enhanced level of service that would enable her to choose whatever vehicle she would like to ride.” In concluding, the opinion says, “We recognize the importance of paratransit systems for disabled individuals… We are mindful, however, that the ADA requires only a ‘comparable’ level of service and the DOT regulations implementing the ADA ‘do not contemplate perfect service’ for the disabled.
"Like" to ride? I can't help but sense in the use of this word an underlying bias against the notion of disability discrimination. I've heard many comments over the years that the ADA does not level the playing field for people with disabilities but, instead, gives them special rights and benefits. I made up a quote that I use to illustrate this view: “We’re not discriminating. Anyone is allowed to use those steps!”
The court approvingly quotes a DOT regulation that says the ADA “is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre.” I suppose the same thing could be said about steps.
When the judges said that the plaintiff wanted to choose whatever vehicle she likes, they may have been right, but the ADA would never require that. The ADA would only require that she have access to a vehicle she needs.
This little choice of words reveals, to my sensitive eye, a bias against the ADA and perhaps against those who must use public transportation. After all, if a rider is reduced to relying upon this form of transportation, “good, bad or mediocre,” she should shut up and suffer with the rest of us. Total exclusion thus becomes a problem of personal wealth rather than equal access to a public service.
[The case is Boose v. Tri-County Metropolitan Transportation District of Oregon]
Nov 08, 2009
In Portland, nothing says "curb cut" like a leaf-clogged street drain in November. It's time for the city to leave the "Land of 10,000 Lakes" moniker to Minnesota and ensure that our city's sidewalks are accessible when the autumn rains fall.
The skies opened up this weekend and Portland (aka "Puddletown") is literally awash in what's made it famous. November rains are a distinctive part of the Oregon experience. They also bring together a few salient (though little-known by outlanders) ingredients of our Northwest urban experience.
When I first came to Oregon, I expected that when autumn arrived it would be time to hop in the car and head out into the forest for some leaf peeping. That is, after all, what we did back East. But, lo, it's mostly evergreens out there. The underbrush wasn't bad, but forests of raging color there weren't. Portland itself was a different story. This town of gardeners, where just about anything placed in the ground will happily grow, provides a wide and exciting array of color, shape and texture each fall. So we put aside our cars and walk or roll through the dazzling urban landscape.
...Somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.
Photo submitted by cyfacchini to http://photo.accuweather.com
Generally, the Portland weather in September and October is pretty darn nice. It allows us to enjoy the peak foliage in the not too hot, not too cold sunshine. But as the color fades and leaves start to drop, the skies darken and Pacific rainstorms ensue. It is now that Portland becomes the land of street-lakes.
As a general matter, rain in Portland is intermittent and moderate. Like Eskimos with snow, we have lots of words to describe the types of rain we experience. Most are some version of "showers." Often they are interrupted by "sun-breaks." When those Pacific storms start to hit the coast in November, however, we tend to get good, old-fashioned hard rain.
You would expect that Portland would be prepared for, of all things, rain. But that's not entirely the case. The city infrastructure was designed to handle those all-too-common days and weeks and months of showers. But the sewer system was overpowered by hard rain. This caused raw sewage to dump into the Willamette River on a regular basis. Because this release-valve strategy got the attention of environmental officials, we have built two enormous underground pipes to act as overflow areas during peak demand.
But there is something else.
Most of those beautiful leaves I mentioned earlier have headed for earth by November and the rains have helped stragglers to achieve their gravitational destiny. Many land in the streets and are pulled by rain water to storm drains, which their broad, wet masses clog. Since our city planners have carefully assured that all street water will flow toward storm drains, those leaf-jammed depressions soon become lake bottoms. The shores of these newly formed bodies of water extend well into the motoring portion of the streets, curb cuts, and sometimes up to the sidewalks, corners and the entire width of streets.
Although Portland motorists should be well-schooled in the art of puddle-dodging and general rain driving, this is not always the case. Fall rains bring the summer's accumulation of oil up out of the pavement. Wet leaves are not only clogging but amazingly slippery. Water splashing up from our new street-lakes can cause brakes to malfunction. Windows fog over with heavy rain. So the normal complex Portland routine of driving while keeping an eye out for pedestrians, bike riders, speed bumps and fancifully designed lane assignments now has its level of difficulty raised to "high."
Portland is famous for city planning and I am a big fan of what has been accomplished with public transportation, urban design, land use and livability. Comparatively speaking, we're a pretty accessible town. But somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.
We've dealt with the sewage overflow. I say now it's time to deal with the rain drains.
Let's leave the "Land of 10,000 Lakes" moniker to Minnesota.
Aug 07, 2009
A recent case reminded me of how well Disability Rights Oregon responds to the dual pressures of immense need and limited financial resources.
Every Tuesday morning at DRO, all of our attorneys and advocates meet with our intake specialists to review the calls we received during the past week and decide what cases we can accept. The volume of requests is so great that we only open cases for a very small percentage of those who ask for our services. This is a difficult process for our staff because we hear so many problems but can only take action for a few individuals. As you might expect, some problems take a lot of time, effort and money to address -- for example, through litigation. Some problems can be solved fairly easily. But sometimes it's hard to tell, at the outset, which is which.
Our staff members work here because they are dedicated to our mission.
A couple of weeks ago, our intake specialist George Schall told us that he had received a complaint that taxi cabs were regularly blocking access to curb cuts at the Portland train station during busy hours. Our attorneys felt that this was a clear violation of the ADA but that addressing it with formal legal legal action would be a very big undertaking. Everyone's plates were overflowing with cases, leaving little room initiate a major piece of federal litigation.
Being a creative and resourceful group, however, they decided to make a few phone calls in hopes that the problem could be resolved without legal action.
In fact, it could. And it was.
By the end of the day, authorities from the city and the train station had provided us with guarantees that they would police the sidewalks to assure that the curb cuts remained accessible and inform cab companies that they would be barred from the station area if they continued to block access.
Donations in support of DRO's work are sound investments in promoting the rights of people with disabilities.
What I've just described triggered a few thoughts. It was great that we could get this result so quickly for our client. Being able to do so speaks well for our skill and reputation in the community. But our lawyers were hesitant to take the case in the first place because of already heavy work loads.
That's a shame.
I receive complaints from time to time that DRO does not handle enough cases or file enough lawsuits to "make a statement" even though the cases would have no chance of winning. I respond that we offer a free service to every Oregonian with disabilities and, by golly, lots of folks with legal problems like the sound of a free service: they call us. I note that we have not received a boost in our federal funding for five years and that the state has never provided us with support. I also share the fact that our staff members work here because they are dedicated to our mission.
Attorney salaries in the Oregon Attorney General's office are twice (yes, twice) what we pay. I will gladly put the skills and experience of our lawyers up against them at any time.
So, I am glad we were able to get results for our client and for others who need to get to the train station. I am glad that we have skilled intake specialists, advocates, attorneys and support staff. And I am glad that we work to use our resources wisely to get the most results we can for our clients.
But I also wish we could do more.
If, like me, you would like DRO to do more, remember that we gratefully accept donations. And as the story above illustrates, we use our resources efficiently and effectively. Donations in support of DRO's work are sound investments in promoting the rights of people with disabilities.
Thanks, in advance.