Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

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35 court held, inter alia, that, unlike the access-to-justice issue in the Lane case, “there is no fundamental right to public transportation.”503 Furthermore, “Title II is not a congruent and proportional response to the history of disability discrimination in the provision of public transportation to the disabled, a public accommodation to which they have no fundamental right.”504 On the other hand, the court held that the plaintiffs’ claim under the Rehabilitation Act could proceed be- cause INDOT had waived its Eleventh Amendment immunity when it accepted federal funds.505 The court observed that 42 U.S.C. § 2000d-7 “conditions a state’s receipt of federal money on its waiver of Eleventh Amendment immunity to actions under 504.”506 What- ever INDOT actually knew or believed when it accepted federal funds was irrelevant.507 In an action against the Washington Metropolitan Area Transit Authority (WMATA), the court dismissed ADA claims against WMATA on the basis of sovereign immunity. As a quasi-public entity, WMATA partakes of the state sovereign immunity conferred by the Elev- enth Amendment on Virginia and Maryland. However, the court treated the dismissed ADA claims as if they had been brought under the Rehabilitation Act.508 H. Statute of Limitations in ADA Cases Finally, it should be noted that a recent development in ADA litigation has concerned when the statute of limitations commences. Federal courts usually borrow the statute of limitations for personal injury actions in the state where a Title II claim arose.509 (It may be noted that following the Goodman decision cited in the preceding footnote, Congress enacted a catchall 4-year 503 Everybody Counts, Inc., 2006 U.S. Dist. LEXIS 39607 at *29. 504 Id. at *40. 505 Id. 506 Id. at *42. Section 2000d-7 provides: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. (Emphasis supplied). 507 Everybody Counts, Inc., 2006 U.S. Dist. LEXIS 39607 at *46. 508 Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006). 509 Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987), superseded by statute as stated in Panariello v. Nassau County, 2009 U.S. Dist. LEXIS 27045 (E.D.N.Y. Mar. 31, 2009); Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987). statute of limitations for actions arising under federal statutes enacted after December 1, 1990.)510 In Disabled in Action of Pennsylvania v. Southeast- ern Pennsylvania Transportation Authority,511 the plain- tiff Disabled in Action of Pennsylvania argued that “under the plain language of the statute, its claims ac- crued ‘upon the completion’ of alterations to two Phila- delphia subway stations,”512 the statute in question be- ing 42 U.S.C. § 12147(a).513 First, the court noted that neither Title II of the ADA nor Section 504 of the Reha- bilitation Act included an express statute of limitations; the court borrowed Pennsylvania’s 2-year statute of limitations for personal injury claims.514 Second, the court held that “it is only when renovations are com- pleted that individuals with disabilities will be excluded from accessing and using such facilities while others will not. This is the time at which disabled individuals are subjected to the disparate treatment that § 12147(a) was enacted to prevent.”515 Thus, the dis- criminatory acts defined by § 12147(a) occurred and the statute of limitations began to run upon the completion of the alterations to the public transportation facili- ties.516 VIII. TITLE III OF THE AMERICANS WITH DISABILITIES ACT AND PRIVATE TRANSPORTATION ENTITIES A. Prohibition of Discrimination in Public Accommodations Title III of the ADA applies to public accommoda- tions and services operated or provided by private enti- ties, including private transportation entities serving 510 28 U.S.C. § 1658. Subsection (a) provides: “Except as oth- erwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this sec- tion may not be commenced later than 4 years after the cause of action accrues.” 511 539 F.3d 199 (3d Cir. 2008). 512 Id. at 201. 513 42 U.S.C. § 12147(a) (2009) provides: With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maxi- mum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 514 Disabled in Action of Pa., 539 F.3d at 208. 515 Id. at 211. 516 Id. at 213.

36 the public.517 However, as discussed in more detail in Part VIII.E, infra, unlike other titles of the ADA, there has been relatively little litigation under Title III, in part because of Title III’s “limited avenue for relief,” i.e., injunctive relief.518 Four sections of Title III deal specifically with trans- portation facilities and services.519 Section 12182 prohib- its discrimination in public accommodations. Section 12183, not discussed herein with respect to reductions in transit service and increases in fares, applies to new construction and alterations in public accommodations and commercial facilities. Section 12184 prohibits dis- crimination in specified public transportation services provided by private entities. Section 12188 is the en- forcement section that specifies the remedies and pro- cedures that are available under Title III. Section 12182(a) of Title III provides that “[n]o indi- vidual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommo- dations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Although other sections apply to public transportation services provided by pri- vate entities, under § 12181 of Title III, a public ac- commodation also includes “a terminal, depot, or other station used for specified public transportation.”520 The phrase “‘specified public transportation’ means trans- portation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.”521 Section 12182’s provisions could be potentially rele- vant to an ADA claim based on a reduction in service or an increase in fares. The section prohibits the “denial of 517 See generally New York State Comm’n on Quality of Care & Advocacy for Persons with Disabilities, available at http://www.cqcapd.state.ny.us/ (Last visited Sept. 9, 2010). 518 Ruth Colker, Symposium Article: ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L. 377, 379 (2000), hereinafter cited as “Colker.” Colker writes that as of the time of her research, “the courts of appeals had issued decisions in 475 cases under ADA Title I (the employment title) from June 1992 to July 1998” but only “25 ADA Title III appellate deci- sions for the same time period.” Id. at 400 (footnote omitted). Colker’s research of verdict data “confirm[ed] that plaintiffs are unlikely to sue under ADA Title III.” Id. at 401. Moreover, Colker notes that “few have used the passage of ADA Title III as impetus for expanding their state antidiscrimination reme- dies in the area of disability discrimination.” Id. at 380. A more recent article found that between 1998 and 2004 there were only an additional 57 Title III appellate cases. Courtney Abbott Hill, Note: Enabling the ADA: Why Monetary Damages Should be a Remedy under Title III of the Americans with Disabilities Act, 59 SYRACUSE L. REV. 101, 109–10 (2008). 519 42 U.S.C. § 12186 (2009) specifies when regulations are to be issued in regard to the transportation provisions of Title III. 520 Id. § 12181(7)(G) (2009). 521 Id. § 12181(10) (2009). the opportunity” to the disabled “to participate in or benefit from the…services, facilities, …or accommoda- tions of an entity”; of making available to the disabled a “service, facility, …or accommodation that is not equal to that afforded to other individuals”; or providing “a …service, facility, …or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide” the disabled “with a…service, facility, …or accommodation…that is as effective as that provided to others.”522 Section 12182 also provides that an “entity shall not…utilize standards or criteria or methods of admini- stration—(i) that have the effect of discriminating on the basis of disability; or (ii) that perpetuate the dis- crimination of others who are subject to common ad- ministrative control.”523 Section 12182 prohibits the use of “eligibility crite- ria” to screen or that have the tendency to screen the disabled “from fully and equally enjoying any…services, facilities, …or accommodations, unless such criteria can be shown to be necessary for the provision of the…services, facilities, …or accommodations being offered….”524 It is discriminatory under the Act for a private transportation entity to fail “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such…services, facilities, …or accommodations to indi- viduals with disabilities, unless the entity can demon- strate that making such modifications would funda- mentally alter the nature of such goods, services, facilities, privileges, advantages, or accommoda- tions….”525 Also, under § 12182, a transportation entity’s ser- vices must be accessible to persons with disabilities. For 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- ity in excess of 16 passengers (including the driver) for use on such system…that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.”526 It is discriminatory for a private entity subject to the section not to operate a system “so that, when viewed in its entirety, [the] system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, [that is] equivalent to the level of service provided to individuals without disabilities.”527 B. Public Transportation Services Provided by Private Entities Section 12184 of Title III prohibits discrimination in specified public transportation services provided by 522 Id. § 12182(b)(1)(A)(i-ii) (2009). 523 Id. § 12182(b)(1)(D) (2009). 524 Id. § 12182(b)(2)(A)(i) (2009). 525 Id. § 12182(b)(2)(A)(ii) (2009). 526 Id. § 12182(b)(2)(B) (2009). 527 Id. § 12182(b)(2)(B)(i) (2009).

37 private entities. The statute provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transport- ing people and whose operations affect commerce.”528 It is discriminatory to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying the specified public transportation services provided by the entity, unless such criteria can be shown to be necessary for the provi- sion of the services being offered….529 Private entities must (A) make reasonable modifications consistent with those required under section 12182(b)(2)(A)(ii) of this title; (B) provide auxiliary aids and services consistent with the requirements of section 12182(b)(2)(A)(iii) of this title; and (C) remove barriers consistent with the requirements of section 12182(b)(2)(A) of this title and with the require- ments of section 12183(a)(2) of this title….530 The Act also imposes requirements regarding the purchase or lease of new vehicles.531 C. ADA Title III Regulations Regulations promulgated pursuant to Title III in- clude 28 C.F.R. Part 36 and 49 C.F.R. Part 37, of which only one or two regulations appear to be relevant to service reductions or fare increases. Section 37.105 of Title 49 addresses equivalent service standards. The section provides that for purposes of §§ 37.101 and 37.103,532 [A] fixed route system or demand responsive system, when viewed in its entirety, shall be deemed to provide equivalent service if the service available to individuals with disabilities, including individuals who use wheel- chairs, is provided in the most integrated setting appro- priate to the needs of the individual and is equivalent to the service provided other individuals with respect to [certain] service characteristics [that include, for exam- ple, schedules, response time, fares, geographic area of service, and hours and days of service.]533 528 Id. § 12184(a) (2009). 529 Id. § 12184(b)(1) (2009). 530 Id. § 12184(b)(2) (2009). 531 Id. § 12184(b)(3) (2009). 532 The two sections referenced in 49 C.F.R. § 37.105, § 37.101 and § 37.103 apply, respectively, to the purchase or lease of vehicles by private entities not primarily engaged in the business of transporting people and the purchase or lease of new nonrail vehicles by private entities primarily engaged in the business of transporting people. 533 49 C.F.R. §§ 37.105(a)(1) and (2), (b), (c), and (d) (2009). Section 37.161 provides in part that “[p]ublic and private entities providing transportation services shall maintain in operative condition those features of facili- ties and vehicles that are required to make the vehicles and facilities readily accessible to and usable by indi- viduals with disabilities.”534 D. Administrative Action and Enforcement The USDOT does not authorize any administrative enforcement authority under Title III of the ADA,535 the public accommodations title of the Act.536 However, pub- lic537 and private entities,538 regardless of whether they receive federal financial assistance, are subject to en- forcement action as provided under the Justice De- partment’s regulations539 implementing Title III540 of the ADA.541 The USDOT forwards any complaints of regula- tory violations caused by private entities to the Justice Department.542 The Justice Department has issued regulations under Title III543 regarding its enforcement responsibility for Title III matters.544 As provided in § 12188 of Title III, “[t]he remedies and procedures set forth in section 2000-3(a) of this title are the remedies and procedures this subchapter pro- vides….”545 Section 12188(b) provides for enforcement by the At- torney General,546 which “has leverage that is not avail- able to private plaintiffs—it has the statutory authority to seek civil damages if it brings suit.”547 Thus, in Title III cases it has been held that the statutory scheme permits monetary relief to be granted only in a civil 534 Id. § 37.161 (2009). 535 42 U.S.C. §§ 12181–12189 (2009). 536 49 C.F.R. pt. 37 (2009). 537 Id. § 37.11(b) (2009). 538 Id. § 37.11(c) (2009). 539 28 C.F.R. pt. 36 (2009). 540 42 U.S.C. §§ 12181–12189 (2009). 541 49 C.F.R. § 37.11(b), (c) (2009). 542 Id. § 37.11, app. D (2009). 543 28 C.F.R. pt. 36 (2009). 544 49 C.F.R. § 37.11, app. D (2009). 545 42 U.S.C. § 12188(a) (2009). 42 U.S.C. § 2000a-3(a) (2009) provides: Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil ac- tion for preventive relief, including an application for a perma- nent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved…. 546 Id. § 12188(b) (2009). 547 Colker, supra note 518, at 377, 403 (citing 42 U.S.C. § 12188(b)(2)(C)(i)–(ii) (1994) (providing for a civil penalty of $50,000 for a first violation and $100,000 for any subsequent violation).