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As More Disabled Sue and Protest, Politicians Draw Line on Accessibility

(Photo: Eric.Parker)

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Disabled are seen as a force to be reckoned with as more file lawsuits and protest for enforcement of the Americans with Disabilities Act, which some politicians seek to scrap.

Born and raised in New York City, Simi Linton knows that “There are times when you just need a cab.” Like the time she learned her husband was in the hospital having emergency surgery. As soon as she heard, Linton left her Upper West Side apartment, headed for a hospital across town. “Cabs were whizzing by me, but none were stopping.”

The fair-skinned, glasses-wearing, 64-year-old author/filmmaker with curly, brown hair and a penchant for scarves wasn’t being skipped over for her race, age or her fashion choices. Linton was being profiled for another reason: her wheelchair.

In Linton’s many decades as a wheelchair-using New Yorker, she has only successfully hailed a cab twice, and not for a lack of trying. Today, fewer than 2 percent of the city’s taxis are wheelchair accessible. Since the subway isn’t accessible and owning a van outfitted for a wheelchair is prohibitively expensive and inconvenient, that leaves the slowest, least-dependable mode of transportation: the bus.

Linton is a plaintiff in a suit against the New York City Taxi and Limousine Commission to make its taxi system fully accessible, like the system she’d seen years before in London, which started converting its fleet to be completely accessible in 1989. But she and her class action suit co-plaintiffs (Christopher Noel and United Spinal Association) had antagonists at City Hall. Linton is also one of a growing number of outspoken disability rights activists who expect and demand Americans with Disabilities Act (ADA) compliance rather than quietly hope that able-bodied people will abide by the law. Across the country, they are pushing back against threats from politicians toward its enforcement.

The Would-Be ADA Dismantlers

Using the humble taxi driver as his foil, New York City Mayor Michael Bloomberg came out loudly in opposition to the lawsuit. He argued to the press that accessible cabs are more expensive than your typical Crown Victoria, and he also made the classic mistake of saying in public the type of thing politicians usually keep to themselves – his unfiltered feelings on the topic. Disability groups were understandably offended when he told reporters that “it’s too dangerous” for wheelchair users to hail cabs in the city, and absurdly, that they “sit too far from the driver to establish a dialogue” and therefore “wouldn’t tip well.” (This from a man who has a personal driver and admits to never taking cabs.) Linton and her co-plaintiffs’ initial case was successful, but earlier this year, the Taxi and Limo Commission appealed the decision and prevailed. Disability Rights Advocates, the legal team representing Linton, is currently mulling its next move. Linton says she’s ready when they are.

Since the ADA was enacted in 1991, in some areas accessibility has improved, but there are still obstacles almost anywhere you go. As Linton says, “Some of the more visible accoutrements of access may seem, to the uninitiated, in place – handicapped parking spaces, a wide stall in a few bathrooms, access on buses and things like that.” But “equity and integration have not been achieved by any stretch of the imagination.” Disabled people have a much harder time getting jobs than non-disabled people (as of November, about 18 percent were employed, compared with 64 percent of non-disabled adults), and affordable accessible housing is scarce.

Even so, the mayor of New York isn’t the only one who wants to see the law watered down – or gone completely. Additional shame should be reserved for these notable examples:

Clint Eastwood, Hollywood gentry man (net worth: $375 million), former mayor of Carmel, California, and one of the Republican National Convention’s most entertaining guests of all time, fought off an ADA suit against him and his non-accessible resort in 2000, then ran a cynical campaign to wipe out the section of the ADA that makes defendants who lose pay their opposition’s legal fees. (“It’s just not fair, and I’m just a common person speaking for fairness,” he told CBS News at the time.)

Kentuckian Tea Partier Rand Paul ran for Senate in 2010 on a platform that called for the complete repeal of the ADA – and he won the seat.

The same year, Congress failed to include in health care reform the Community Choice Act, which would have allowed more disabled people to receive Medicaid at home instead of segregating them in nursing homes.

Last October, California governor Jerry Brown signed into law a bill sponsored by Senator Dianne Feinstein that makes it less attractive to sue businesses that fail to comply with the ADA, by, among other things, reducing the amount in damages that disabled plaintiffs can seek, in most cases from $4,000 to $2,000.

And on December 4, conservative pundit Rick Santorum tweeted to his 216,000 followers: “Thank you to all who stood with us in this fight against #CRPD,” after Senate Republicans blocked ratification of the UN Convention on the Rights of People with Disabilities (#CRPD), which would have affirmed many of the ADA’s provisions on an international scale. (Specifically, Santorum gave virtual high-fives to Senator Mike Lee of Utah and Michael Farris, founder of an ultra-rightwing libertarian organization, masquerading as a nonprofit for home-schooling, called the Home School Legal Defense Association.)

Lawsuit Stalking?

When friendlier tactics (education or mediation) don’t work, lawsuits are the principal official mechanism for achieving enforcement where there is resistance from businesses and local governments. In some places, ADA suits have become their own cottage industry, with some claimants filing hundreds of them per year via private attorneys who focus on ADA law. Not surprisingly, this garners resentment from the business owners who are the targets of these cases. However, the damages a disabled claimant receives in a successful lawsuit, in many states, is nothing, and as a result, getting representation from a lawyer isn’t always easy, because the lawyer has less to gain financially. Eve Hill, a senior legal counselor at the Department of Justice’s Civil Rights Division, says, “That’s really why you get disability rights lawyers who specialize in disability civil rights as opposed to personal injury lawyers who dabble in it. You mostly do get people who, this is what they want to do.”

Hill notes that “some” local US Attorney’s Offices are “very interested in civil rights work . . . and do quite a bit of disability enforcement in their own localities,” but “there’s simply not the resources in the federal government to take care of all of the millions of business and thousands and thousands of state and local government issues that are out there.” The Civil Rights Division at the DOJ has fewer than 100 disability-focused lawyers, investigators and technical assistants for the entire country. Enter people like Morse Mehrban.

Cast in media mentions as a predatory attorney out for a dollar (with only a little irony, he once described himself as a “bounty hunter”), the Los Angeles-based Mehrban has a lot of enemies and very little sympathy for noncompliant business owners. Since 2005, Mehrban has represented dozens of disabled clients in hundreds of ADA cases. California’s Unruh Civil Rights Act, which effectively enhances the ADA, allows disabled claimants in that state up to $4,000 in damages. Partially because of this, California accounts for 42 percent of ADA lawsuits in the US, according to “Targeting ADA Violators,” an article in the journal California Lawyer in January, 2012, by Tom McNichol. Also partially because of this, California is one of the more accessible of the 50 states.

From a purely monetary standpoint, small business owners can access federal tax credits and deductions for accessibility improvements (up to $15,000 per year) and could gain from new customers who are part of the more than 50 million disabled people in the United States today. Still, many don’t bother changing their ways. Mehrban brushes off resentful business owners, who typically claim ignorance of the law. “When I go driving on the freeway and there’s no posted speed limit, then I decide to go 85 and I get a ticket, I can’t say, ‘Well there was no posted speed limit, and I didn’t know,’ ” he points out. “If somebody decides to do business, they have to comply with the whole slew of regulations that go with that, whether they know about them or not.”

New construction is expected to meet ADA standards, but once they are open, a restaurant or even a public library often doesn’t receive follow-up inspections. In Syracuse, New York, members of the group ARISE have spent years trying to get access to their county courthouse. A lawsuit and public pressure are helping to make Madison County’s hall of justice the last in the state where people with certain disabilities can’t physically enter. As a disabled person, that can mean months of waiting for alternative arrangements for any services offered at the court, and no jury duty (which while it might seem like a plus for some, shows that the justice system doesn’t care about disabled voices). Vince Rogowski, a plaintiff in the case, says he and ARISE chose the courthouse “because if you can’t get local government to comply with the ADA, how can you ask businesses to comply with the ADA?”

After a six-year fight, Madison county administrators have finally “submitted a schematic of the improvements on one courtroom, and only one courtroom, to be accessible,” says Rogowski. Unfortunately, there were several mistakes that will delay the renovations even longer, including incorrect measurements for a wheelchair ramp. “They really screwed it up,” he adds.

In his opinion, there’s a clear need for follow-up inspections when it comes to buildings. “Every state has their code enforcers. The code enforcer, it should be their job that new buildings not only meet the building codes and electrical codes, but also the ADA codes.” At the moment, in Madison County and many others, “they flatly refuse.” Calls to the Madison County code enforcers’ office were not returned.

Beyond Courtrooms

Since the resources and knowledge it takes to initiate an ADA lawsuit can be restrictive (and it’d take a lot more attorneys to sue the country into compliance), some disabled people are bypassing the legal system and protesting in bigger numbers than ever before.

Back in the 1980s, David Wittie, a Texas staff member of ADAPT (the loudest and arguably one of the most effective national disability rights direct action groups), worked at a bus company in Austin. “My job was to give information on how to ride the bus from point A to point B,” he says in a buttery Southern accent.

At the time, Wittie couldn’t ride those buses, because none of Austin’s public transit was wheelchair-access equipped. As a wheelchair user, he “thought it would be a good idea to work at the transit company, because that way I could influence them to make wheelchair access a reality.” But it didn’t work out like that.

A few “radical, fringe people in wheelchairs” kept protesting, trying to get access to public transportation. Their consistent noisemaking succeeded where Wittie’s attempts to work inside the system failed. “Austin, Texas, has the third 100 percent wheelchair-equipped transit system in the country, and the first in Texas, and I found out that demonstrations work. . . . I was working inside the system, and I found out that didn’t work to make effective change that I wanted to see.” As he began going to ADAPT meetings, other members were wary at first, thinking that the bus company had sent in a mole, but they eventually accepted him into the fold. “Lawsuits are one of the methods for enforcement, but they’re not the only effective method. We as disability rights advocates use every means at our disposal. Sometimes it requires lawsuits, sometimes it’s an education campaign, sometimes it’s negotiations, sometimes we use the media, as well, to shame the ADA violator.”

Wittie’s fellow ADAPT-er Jennifer McPhail participated in her first protest in 1990. It’s another case where a lawsuit wasn’t the right tactic. “We had taken over then-governor Ann Richards’ reception room and spent the night, and as a result, the next morning she met with someone from ADAPT, and that was the beginning of the waiver that we have here that allows people to transition into the community from nursing homes.”

Disabled protesters are dealt with in unique ways by arbiters of a justice system ingrained with ableism. In 1999, Wittie was one of the “Bush Nine” – disabled activists arrested for handcuffing themselves to the fence outside then-governor George W. Bush’s mansion, protesting being coerced into nursing homes because the state would not fund at-home care. But when several of them showed up to serve their five-day jail sentence, they were turned away and asked to return in two weeks, because at the time, the Travis County jail was not accessible. In California, jails in Los Angeles and the Bay Area are currently subjects of class action lawsuits; almost 15 years after Wittie’s arrest, and in one of the more accessible states in the United States, some disabled prisoners can’t do things like use the showers, participate in programs that might abate their sentences, or eat with fellow prisoners.

At recent ADAPT protests, cops used suppression techniques such as fastening plastic cable ties (PlastiCuffs) around the wheels of wheelchairs so their users couldn’t roll away. These protesters aren’t going away anytime soon, so expect police departments to come up with more codified ways of handling them in the future to minimize public blowback. Images of disabled people being harmed by cops during protests have quickly gone viral on the web, showing clear examples of mistreatment and recklessness and drawing plenty of criticism in the media.

Simi Linton remembers feeling optimistic when she heard the ADA had passed back in 1990. Finally, disabled people were being recognized “as a force to be reckoned with, and as a rights-based movement.” Linton finds hope in the fact that the disability rights movement has “definitely gotten bigger” since then. Now, people with disabilities are “not defined by our individual conditions, but defined by our membership in a marginalized group called disabled people.” She says that “some issues have been taken care of with the passage of the ADA,” but there’s been a lot of backlash from Rand Paul and company, and little to no enforcement in many areas. A couple of decades after its passing, everyday obstacles persist, in movie theaters without captioning, airplanes without accessible bathrooms and government buildings most assume to be accessible. Forceful approaches like litigation and direct action are only going to increase as politicians and businesses keep people “in cycles of poverty and dependency,” as the National Council on Disability noted in its 2012 ADA Progress Report.

Jennifer McPhail and other ADAPT-ers from across the country recently converged in Washington state to protest the government’s bias toward the nursing home industry. There, they succeeded in getting Washington’s governor Christine Gregoire to back down from challenging a lawsuit, M.R. v. Dreyfus, which helps to keep some disabled people in their communities rather than sending them to nursing facilities. According to McPhail, “The biggest thing about the ADA and the advances that we’ve made is the individual people changed. There’s an expectation of equality now, whereas when I was a little girl, just getting out the door was difficult. But now I can expect to go the movies and not have to sit in the aisle.” This “changes who you are in the world, and eventually how you perceive yourself.” The greatest advancement of the past 23 years, she says, is this expectation of equality in the disability community. The still separate, unequal access is far from meeting these expectations. “And that’s why more is being done, more aggressively.”

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