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Professor Doron Dorfman in The Penn Law Regulatory Review: Still Fighting Over the ADA

Posted on Monday 12/7/2020
Doron Dorfman

Thirty Years Later, Still Fighting Over the ADA

By Doron Dorfman & Thomas F. Burke

A federal judge for the Southern District of New York recently ruled that the city of New York violated the Americans with Disabilities Act (ADA) by failing to install audible devices at crosswalks. These devices tell blind and visually impaired people when it is safe to cross the streets, but the city had installed them in only 3.4 percent of intersections. The federal district court concluded that the city’s conduct amounted to an illegal denial of services and benefits by a public entity in violation of Title II of the ADA.

The decision comes 30 years after the U.S. Congress enacted the ADA. If the court’s interpretation of the ADA is sound, then New York City, and likely cities across the country, have been allowed to flout the ADA for more than three decades, with courts just now enforcing its requirements.

What took so long?

Compliance with the ADA’s accessibility requirements can never be taken for granted. The implementation of measures to ensure compliance with accessibility rules has been subpar, and examples of inaccessible spaces—both of state and local government and privately owned—abound. The enforcement of the ADA’s accessibility mandates has been left to individual litigants, typically after construction has been completed—a mechanism often portrayed in media as fraudulent and abusive “drive-by litigation.”

But more broadly, the meaning of the ADA, and the extent to which it guarantees equality for people with disabilities, have been subject to political and legal struggle almost from its inception. Continuing disputes over who deserves to be protected by the ADA and what it requires have resulted in a host of U.S. Supreme Court decisions, hundreds of pages of federal regulations, one major congressional revision, and a stream of lawsuits similar to the recent one from New York City.

This struggle over the meaning of the ADA might seem surprising in light of the law’s origins. The enactment of the ADA was surprisingly bipartisan, especially from the perspective of 2020 …

Read the full article.