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U.S. Supreme Court declines to hear Arlington case about accessibility

Posted Wednesday, Feb. 22, 2012  comments  Print Reprints
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In what could be a major financial blow to cities nationwide, the U.S. Supreme Court declined Tuesday to hear an appeal from Arlington asking the court to clarify whether sidewalks are programs or facilities under the Americans with Disabilities Act.

The city appealed to the Supreme Court after a quadriplegic sued in 2005 over the lack of accessible sidewalks and curb cuts.

Richard Frame, who was paralyzed in a 1999 car wreck, sued the city, alleging that when some sidewalks and curbs were built or altered, Arlington did not make them accessible, violating Title II of the Americans with Disabilities Act.

Other plaintiffs from Arlington joined the suit, alleging problems that made it difficult for them to go about their everyday lives. The allegations include: missing or badly sloped curb ramps; impassable, noncontiguous, broken or nonexistent sidewalks; and inadequate handicapped parking.

"The court's decision was right for the city, for Texas and for the country," said David Ferleger, a Philadelphia lawyer who represents Frame. "Keeping people with disabilities off sidewalks is immoral, bad public policy and harmful to the national economy."

Frame's case now returns to district court to determine which sidewalks are accessible and which are not, Ferleger said. He added that Arlington must decide whether to start repairing the sidewalks or spend more tax dollars on litigation.

Denise Wilkerson, assistant city attorney for Arlington, said the city has not violated the ADA but has asked for clarification on whether a sidewalk is a program, service or facility. Under the law, cities must provide access to services without delay, but facilities do not fall under that guideline. Arlington has argued that sidewalks are facilities.

"Now, the trial court will determine whether or not the city has denied the plaintiffs access. We will be mounting our defenses to that," she said.

According to a statement from Ferleger, the case affects the 3.4 million wheelchair users in the United States and countless others who use curb ramps for strollers, bicycles and wheeled luggage.

"When I leave home, I find sidewalks to nowhere and utility poles smack in the middle of a sidewalk," Frame said in a statement.

Cities' budget concerns

City officials dealing with tight budgets voice concerns about the costs of repairing or altering thousands of miles of sidewalks and other structures.

The National League of Cities argues that local officials should be able to determine when to undertake such work without federal mandates.

Lars Etzkorn, who works on federal relations for the league, was disappointed in the Supreme Court's decision. Earlier, Etzkorn said the ultimate cost to cities would be in the millions of dollars -- as many are already having to cut police and fire protection, libraries, and other services.

"Certainly, accessibility is important and the ability for all citizens to use resources of a city is important," Etzkorn said. "But how a city chooses to spend its scarce funding should be left up to those accountable to their citizens instead of being forced upon by a federal court interpreting the Americans with Disabilities Act."

Etzkorn said the Supreme Court could still choose to hear sidewalk accessibility cases if there is a split in how circuit courts rule.

For instance, in a case similar to Arlington's, plaintiffs in Los Angeles recently sued the city to have it make sidewalks accessible, he said.

Series of court cases

After Frame sued in 2005, Arlington offered to repair the sidewalks, but he didn't respond, Wilkerson said.

"This litigation could have been settled in 2005, but the plaintiffs didn't give us the courtesy of a response," Wilkerson said.

Frame's original lawsuit concerned better access around two downtown hospitals.

A federal district court dismissed the case, saying Frame had waited too long after the work had been completed to sue. A panel of judges at the 5th Circuit Court of Appeals in New Orleans agreed. But the full court vacated that decision in a rehearing.

The majority opinion by the 5th Circuit stated that cities are to use "any and all means" to make sidewalks accessible. Though the court wrote that a city's obligation is not "boundless" and that a city should not be forced to take on undue financial burden, it can "avoid liability whenever it chooses simply by building sidewalks right the first time or by fixing its original unlawful construction."

Elizabeth Campbell,

817-390-7696

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