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including a lack of federal funding or the effect of the from the participation in, be denied the benefits of, or be
loss of any subsidies.382 subjected to discrimination under any program or activity
391
Finally, some transit providers demonstrated that a receiving Federal financial assistance....
decision was caused by factors beyond the agency's con- At least one court has stated that an analysis of the
trol.383 rights and obligations created by the ADA and Section
504 of the Rehabilitation Act shows that there is no
392
VII. TITLE II OF THE AMERICANS WITH significant difference between the two laws. "Title II
DISABILITIES ACT AND TRANSIT SERVICE 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
A. Statutory Provisions Applicable to Public any person alleging discrimination on the basis of dis-
Transportation Providers ability in violation of 42 U.S.C. § 12132."393 Indeed, in
The ADA384 provides that any entity that offers one case in which the court dismissed the ADA claims
transportation services to the general public must not on the ground of sovereign immunity, the court resur-
discriminate against any individual who has a disabil- rected the dismissed claims by deeming them to have
ity. In Title II of the ADA, Congress extended the man- been brought under the Rehabilitation Act.394
date of the Rehabilitation Act to cover all public trans- Under the ADA, 42 U.S.C. § 12102(1), as amended in
portation providers.385 The ADA ordered local 2008,395 "[T]he term `disability' means, with respect to
governments to make bus and train systems more ac- an individual--(A) a physical or mental impairment
cessible to the disabled.386 Title II of the ADA applies that substantially limits one or more major life activi-
387
regardless of whether federal funding is received. ties of such individual; (B) a record of such an impair-
Part 37 of Title 49 of the C.F.R. implements "the trans- ment; or (C) being regarded as having such an impair-
portation and related provisions of titles II and III" of ment...."396
the ADA.388 As provided by the regulations, "[n]o entity The provisions of the ADA are designed not only to
shall discriminate against an individual with a disabil- address intentional discrimination against qualified
ity in connection with the provision of transportation individuals who require transportation services but also
service."389 A public entity includes any state or local to include other types of discrimination, including be-
government and "[a]ny department, agency, special nign neglect or indifference.397 As the Supreme Court
purpose district, or other instrumentality of one or more
391
state or local governments...."390 Section VII.A of the 29 U.S.C. § 794(a) (2009) (An amendment in 1992 substi-
digest discusses Title III of the ADA, which applies to tuted the term "disability" for the terms "handicaps" and
public accommodations and services operated or pro- "handicap" in the first sentence of the section.).
vided by private entities, including private transporta- It may be noted that § 165(b) of the Federal-Aid Highway
tion entities, serving the public. Act of 1973 stated that
Furthermore, Section 504 of the Rehabilitation Act projects receiving Federal financial assistance...shall be
of 1973, as amended, now provides that planned, designed, constructed, and operated to allow effective
utilization by elderly and handicapped persons who, by reason of
[n]o otherwise qualified individual with a disability in the illness, injury, age, congenital malfunction, or other permanent
United States, as defined in section 705(20) of this title, or temporary incapacity or disability...are unable without spe-
shall, solely by reason of her or his disability, be excluded 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
382
Id. not comply with the provisions of this subsection requiring ac-
383 cess to public mass transportation facilities, equipment, and
Id. services for elderly or handicapped persons.
384
42 U.S.C. §§ 1210112213 (2009); 47 U.S.C.A. §§ 225, 611 392
Pruett v. State, 606 F. Supp. 2d 1065, 1073 (D. Ariz.
(2009). 2009) (citing Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th
385
See 42 U.S.C. §§ 12132 and 12131(1) (2009). Cir. 2002); accord, McGary v. City of Portland, 386 F.3d 1259,
386
Id. § 12132 (2009) (no disabled person may be excluded 1269 n.7 (9th Cir. 2004)).
from public services); 42 U.S.C. § 12142 (2009) (public transit 393
Pruett, 606 F. Supp. 2d at 1073.
systems may not purchase or lease a new bus unless it is read- 394
See Disability Rights Council of Greater Wash. v. Wash.
ily accessible to individuals with disabilities, including indi- Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006).
viduals who use wheelchairs); 42 U.S.C. § 12143 (such agencies 395
For a discussion of the 2008 Amendments to the ADA,
must provide on-demand "paratransit" service to disabled per-
see Alex B. Long, Introducing the New and Improved Ameri-
sons unable to use traditional public transit).
387
cans with Disabilities Act: Assessing the ADA Amendments Act
Boose v. Tri-County Metro. Transp. District of Or., 2008 of 2008, 103 NW. U. L. REV. Colloquy 217 (2008).
U.S. Dist. LEXIS 79438, at *13 (D. Or. 2008) (citing O'Guinn v. 396
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Lovelock Corr. Ct., 502 F.3d 1056, 1060 (9th Cir. 2007) (stating
Stat. 3553, available at http://frwebgate.access.gpo.gov/cgi-
the elements of the causes of action under Tit. II of the ADA
bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.
and § 504 of the Rehabilitation Act).
388
pdf, codified in 29 U.S.C. § 705 and scattered sections of Tit. 42
49 C.F.R. § 37.1 (2009). of the U.S.C.); see also 49 C.F.R. § 609.3 (2009).
389
Id. § 37.5(a) (2009). 397
Martin v. Metro. Atlanta Rapid Transit Auth., 225 F.
390
Id. § 37.3 (2009). Supp. 2d 1362 (N.D. Ga. 2002).
