Mike Wyss enjoys an occasional trip to the Fort Worth Zoo, but getting there in his wheelchair is a dangerous venture.
The bus stop is on a traffic island without curb cuts at University Drive and Colonial Parkway. Wyss, 51, recently had to get help to maneuver across a spongy, grassy area before crossing the busy street.
"I would attempt to cross the street by myself; I'm used to doing daring things to get around," he said.
But Wyss was frustrated when he needed to flag down people to help him.
Wyss, who serves on the Mayor's Committee for People with Disabilities, said more needs to be done to improve sidewalk and curb access.
He and others with disabilities are closely watching a 6-year-old lawsuit out of Arlington alleging that the city is violating the Americans with Disabilities Act by not providing accessible curb cuts and sidewalks. Arlington appealed to the U.S. Supreme Court on Wednesday for a final decision on what cities are obligated to do.
Richard Frame, who became a quadriplegic after a 1999 car wreck, sued Arlington, claiming that the city violated the federal law by continuing to build inaccessible sidewalks. His original lawsuit concerned better access around two downtown hospitals.
Other plaintiffs from Arlington joined the suit, alleging problems such as missing or badly sloped curb ramps; impassable, noncontinuous, broken or nonexistent sidewalks; and inadequate handicapped parking that made it difficult for them to go about their everyday lives. In September, the 5th U.S. Circuit Court of Appeals ruled that building inaccessible sidewalks without adequate justification perpetuates the isolation and segregation of disabled people. The ruling also allows Frame to go forward with his suit against Arlington, which is why the city appealed to the Supreme Court.
For the disabled, the issue is a guaranteed right to access under the ADA, which would mean greater independence to get to stores, medical appointments or jobs.
David Ferleger, an attorney representing Frame, said the courts have debated over the years whether sidewalks are a service, activity, program or facility as defined under the law. The ADA requires that people with mental, physical or health impairments have access to public services, programs or activities, such as public meetings or city functions.
"Fixing the problem doesn't just benefit people with disabilities," Ferleger said. "People who are old need reliable paths, as do moms and dads with strollers."
But city officials dealing with tight budgets say they are concerned about the costs of making the necessary repairs and changes to thousands of miles of sidewalks and other public structures.
The National League of Cities argues that local officials should be able to determine when to make repairs, such as when to make sidewalks accessible, without federal mandates.
"We need clarity. We hope the Supreme Court will rule in favor of providing discretion to local officials," said Lars Etzkorn, who works on federal relations for the league. "This is an important case for cities. Are they going to be mandated under the ADA and under timelines to make those [sidewalks] accessible?"
Etzkorn said it's impossible to estimate the ultimate cost to cities if Frame wins, but he said it would be in the millions of dollars at a time when essential services, such as police and fire protection and libraries, are being cut in many places.
Services vs. facilities
The goal of the Americans with Disabilities Act, which became law in 1990, was to integrate people with disabilities into all aspects of American life and to help ensure that they not be excluded from government services, Ferleger said. But Arlington continued to build inaccessible sidewalks after the federal law required cities to accommodate the disabled, Frame has said.
The ADA requires that cities make government services accessible without delay, but more time can be spent making facilities accessible. Arlington has argued that sidewalks are a facility, like a gymnasium, he said.
Arlington's assistant city attorney, Denise Wilkerson, said that if the courts decide that sidewalks are services, it would have a tremendous effect on taxpayers.
"If sidewalks are a program, then all sidewalks must be made accessible no matter when they were built," she said.
Wilkerson said that in Frame's lawsuit, every major street was listed. City engineers estimated that building one mile of sidewalk, without features such as driveways, costs $93,000. Costs to build ramps vary, but on average it is $1,000, she said.
Wilkerson added that not all sidewalks were built by the city. Some were put in by businesses.
Ferleger argued that Arlington needs to fulfill its obligation to provide access.
"The city of Arlington wants to take its time to obey the 21-year-old ADA. We are telling the Supreme Court that the alarm clock has gone off and that it's time for Arlington to wake up and comply with the law," he said.
In Fort Worth, disability coordinator David Ondich said the city used funds from a block grant to evaluate sidewalks and curb cuts. The firm Accessology was hired to grade the city. A plan was developed and areas that are heavily traveled by people with disabilities, including the hospital district, and downtown are "high-priority areas," he said.
Also, when someone calls to report a problem area, it is given high-priority status. The rest of the projects are tackled as funds are available, he said.
In North Richland Hills, spokeswoman Mary Peters said the city works hard to make sure there are accessible routes. A sidewalk near the new recreation center was built around a pole, but it provides enough space for someone using a wheelchair, Peters said.
In other parts of the country, appeals courts have ruled in favor of disabled residents who sued over the lack of accessible sidewalks.
In the case of Barden vs. Sacramento, the 9th U.S. Circuit Court of Appeals ruled in favor of disabled residents, saying that sidewalks are covered under the ADA. Sacramento settled, agreeing to devote 20 percent of its transportation funds for the next 30 years to improve sidewalks, crosswalks and curbs. The Supreme Court declined to hear the case.
And in 2010, the California Department of Transportation agreed to spend $141 billion over the next 30 years on accessible sidewalks and curb cuts.
Ferleger said the ADA benefits everyone, regardless of disability.
"No doubt, some worry that complying with the ADA is benefiting a small minority that have gotten along without curb cuts. But the answer is that the ADA benefits everybody. We are all temporarily able-bodied. All of us are going to need some accommodation."
Frame is anxious to see how his legal battles will end.
"I'm excited to put this before the Supreme Court and put this issue to rest. I'm nervous though. We already have a win [in the 5th Circuit] and we're taking a gamble again."
For Wyss, the issue is providing better access throughout the city.
"I know it takes money," he said, "but when they improve the city, they should take the opportunity to build a new sidewalk or ramp."
Elizabeth Campbell, 817-390-7696