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stated in Choate, supra, in the case of discrimination a regular and continuing basis."409 Alterations of an ex-
against the handicapped, the discrimination is usually isting facility for a designated public transportation
the result "not of invidious animus, but rather of service,410 including existing rail stations or commuter
thoughtlessness and indifference--of benign neglect."398 rail transportation,411 that affect their ability to serve
Requirements under the ADA and the applicable individuals with disabilities may be considered dis-
transportation regulations preempt conflicting state or crimination. That is, it may be considered discrimina-
local provisions.399 The ADA does not invalidate or limit tion if a public entity or other person412 fails to make
the remedies, rights, and procedures of any other fed- alterations so that a facility is usable by individuals
eral law or law of any state or political subdivision or with disabilities.413
jurisdiction that provides greater or equal protection for Subtitle B of Title II of the ADA is applicable to pub-
individuals with disabilities than are afforded by the lic transportation services and includes essentially all
ADA.400 forms of transportation services that state and local
Title II begins with a general prohibition of disabil- governments provide, such as motor vehicle and inter-
ity-based discrimination in § 12132, followed by seven city or commuter rail services.414 Not included under
provisions (42 U.S.C. §§ 12142, 12143, 12144, 12146, Subtitle B of Title II are transportation services by pri-
415
12147, 12148, and 12162) that define what "shall be vate entities, which are covered under Title III. Some
considered discrimination" for purposes of the statute.401 of the key provisions of the ADA with respect to public
The legislative history of the ADA reflects a national transit are as follows.
policy that individuals with disabilities possess an
equal right to use public transportation facilities and · Section 202 provides that "no qualified individual
services.402 As such, Congress recognized that special with a disability shall, by reason of such disability, be
403
efforts must be made to address planning, design, excluded from participation in or be denied the benefits
404
construction, and operation of public transportation of the services, programs, or activities of a public entity,
facilities and services to provide individuals with dis- or be subjected to discrimination by any such entity."416
abilities equal access to such services.405 · Section 222 provides that any public entity that
Under the ADA, the Secretary of Transportation is purchases or leases a new bus, rapid rail vehicle, or
authorized to provide grants to state and local govern- light rail vehicle must make the vehicle "readily acces-
mental authorities for public transportation projects sible to and usable by individuals with disabilities, in-
that are planned, designed, and carried out to meet the cluding individuals who use wheelchairs."417
needs of individuals with disabilities.406 The Secretary · Section 223 requires that all government agencies
has implemented minimum criteria for recipients that operating fixed route systems provide paratransit ser-
receive federal financial assistance, as well as methods vice as a "safety net" for disabled individuals incapable
to monitor compliance.407 Applicants are required to of using conventional public transit and that the service
provide satisfactory assurances under the terms and must be "sufficient to provide to [disabled] individuals a
conditions that the Federal Transit Administrator pre- level of service...comparable to the level of designated
scribes.408 public transportation services provided to individuals
Under the Act, "designated public transportation" is without disabilities using such system."418 (emphasis
"transportation (other than public school transporta- added).
tion) by bus, rail, or any other conveyance (other than
transportation by aircraft or intercity or commuter rail B. DOT Regulations Implementing the ADA
transportation...) that provides the general public with The USDOT issued regulations in 1991 that "ad-
general or special service (including charter service) on dressed a wide variety of issues not directly addressed
409
42 U.S.C. § 12141(2) (2009); 49 C.F.R. § 37.3 (2009).
398
Choate, 469 U.S. at 295. 410
42 U.S.C. § 12147(a) (2009).
399
49 C.F.R. § 37.11, app. D (2009). 411
Id. § 12162(e)(2)(B)(i).
400
42 U.S.C. § 12201(b) (2009). 412
Id.
401
See Disabled in Action of Pa., Appellant v. Se. Pa. 413
Id. § 12147(a), § 12162(e)(2)(B)(i) (2009); 49 C.F.R.
Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008). § 37.43(a)(1), (3) (2009).
402
49 U.S.C. § 5301(d) (2009); 23 U.S.C. § 142 (2009). 414
42 U.S.C. § 12131 (2009), et seq.
403
Id. 415
See, e.g., id. § 12184(a) (2009) (regarding prohibition of
404
23 U.S.C. § 142 (2009). discrimination in specified public transportation services pro-
405
49 U.S.C. § 5301(d) (2009); 23 U.S.C. § 142 (2009). vided by private entities).
406 416
Id. § 5310(a) (2009). Id. § 12132 (2009).
407 417
Id.; 49 C.F.R. pt. 27 (2009). Id. § 12142(a) (2009).
408 418
49 U.S.C. § 5307 (2009). Id. § 12143(a)(1) (2009).
