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36 the public.517 However, as discussed in more detail in the opportunity" to the disabled "to participate in or Part VIII.E, infra, unlike other titles of the ADA, there benefit from, facilities, ...or accommoda- has been relatively little litigation under Title III, in tions of an entity"; of making available to the disabled a part because of Title III's "limited avenue for relief," "service, facility, ...or accommodation that is not equal i.e., injunctive relief.518 to that afforded to other individuals"; or providing "a Four sections of Title III deal specifically with trans- ...service, facility, ...or accommodation that is different portation facilities and services.519 Section 12182 prohib- or separate from that provided to other individuals, its discrimination in public accommodations. Section unless such action is necessary to provide" the disabled 12183, not discussed herein with respect to reductions "with a...service, facility, ...or accommodation...that is in transit service and increases in fares, applies to new as effective as that provided to others."522 construction and alterations in public accommodations Section 12182 also provides that an "entity shall and commercial facilities. Section 12184 prohibits dis- not...utilize standards or criteria or methods of admini- crimination in specified public transportation services stration--(i) that have the effect of discriminating on provided by private entities. Section 12188 is the en- the basis of disability; or (ii) that perpetuate the dis- forcement section that specifies the remedies and pro- crimination of others who are subject to common ad- 523 cedures that are available under Title III. ministrative control." Section 12182(a) of Title III provides that "[n]o indi- Section 12182 prohibits the use of "eligibility crite- vidual shall be discriminated against on the basis of ria" to screen or that have the tendency to screen the disability in the full and equal enjoyment of the goods, disabled "from fully and equally enjoying, services, facilities, privileges, advantages, or accommo- facilities, ...or accommodations, unless such criteria can dations of any place of public accommodation by any be shown to be necessary for the provision of person who owns, leases (or leases to), or operates a, facilities, ...or accommodations being place of public accommodation." Although other sections offered...."524 It is discriminatory under the Act for a apply to public transportation services provided by pri- private transportation entity to fail "to make reasonable vate entities, under 12181 of Title III, a public ac- modifications in policies, practices, or procedures, when commodation also includes "a terminal, depot, or other such modifications are necessary to afford station used for specified public transportation."520 The, facilities, ...or accommodations to indi- phrase "`specified public transportation' means trans- viduals with disabilities, unless the entity can demon- portation by bus, rail, or any other conveyance (other strate that making such modifications would funda- than by aircraft) that provides the general public with mentally alter the nature of such goods, services, general or special service (including charter service) on facilities, privileges, advantages, or accommoda- a regular and continuing basis."521 tions...."525 Section 12182's provisions could be potentially rele- Also, under 12182, a transportation entity's ser- vant to an ADA claim based on a reduction in service or vices must be accessible to persons with disabilities. For an increase in fares. The section prohibits the "denial of example, it is discriminatory for an operator of a fixed- route system that "is not subject to section 12184 of this title to purchase or lease a vehicle with a seating capac- 517 See generally New York State Comm'n on Quality of Care ity in excess of 16 passengers (including the driver) for & Advocacy for Persons with Disabilities, available at use on such system...that is not readily accessible to (Last visited Sept. 9, 2010). and usable by individuals with disabilities, including 518 Ruth Colker, Symposium Article: ADA Title III: A Fragile individuals who use wheelchairs."526 It is discriminatory Compromise, 21 BERKELEY J. EMP. & LAB. L. 377, 379 (2000), for a private entity subject to the section not to operate hereinafter cited as "Colker." Colker writes that as of the time a system "so that, when viewed in its entirety, [the] of her research, "the courts of appeals had issued decisions in system ensures a level of service to individuals with 475 cases under ADA Title I (the employment title) from June 1992 to July 1998" but only "25 ADA Title III appellate deci- disabilities, including individuals who use wheelchairs, sions for the same time period." Id. at 400 (footnote omitted). [that is] equivalent to the level of service provided to 527 Colker's research of verdict data "confirm[ed] that plaintiffs are individuals without disabilities." unlikely to sue under ADA Title III." Id. at 401. Moreover, Colker notes that "few have used the passage of ADA Title III B. Public Transportation Services Provided by as impetus for expanding their state antidiscrimination reme- Private Entities dies in the area of disability discrimination." Id. at 380. A more Section 12184 of Title III prohibits discrimination in recent article found that between 1998 and 2004 there were only an additional 57 Title III appellate cases. Courtney Abbott specified public transportation services provided by Hill, Note: Enabling the ADA: Why Monetary Damages Should be a Remedy under Title III of the Americans with Disabilities 522 Act, 59 SYRACUSE L. REV. 101, 10910 (2008). Id. 12182(b)(1)(A)(i-ii) (2009). 523 519 42 U.S.C. 12186 (2009) specifies when regulations are Id. 12182(b)(1)(D) (2009). 524 to be issued in regard to the transportation provisions of Title Id. 12182(b)(2)(A)(i) (2009). 525 III. Id. 12182(b)(2)(A)(ii) (2009). 520 526 Id. 12181(7)(G) (2009). Id. 12182(b)(2)(B) (2009). 521 527 Id. 12181(10) (2009). Id. 12182(b)(2)(B)(i) (2009).