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On March 25, a dozen individuals with disabilities filed a class action against the Washington Metropolitan Area Transit Authority, the government agency that operates buses and subways around our community, for violating the Americans With Disabilities Act of 1990. On May 17, the Supreme Court handed down a decision that makes it more likely that these individuals will win their case — and finally obtain the basic transportation services critical to their day-to-day lives and their rights as citizens. Title II of the ADA prohibits disability discrimination in the provision of public services. Under Title II, therefore, WMATA, the transit agency, is required to provide something called “paratransit services” to disabled people who, under the ADA, qualify for such aid. Paratransit services are basically forms of public transportation for individuals who, due to their disabilities, cannot safely use the main services — in this case, Metrobus and Metrorail. Under the ADA, WMATA must provide these services to disabled individuals who live within three-quarters of a mile of a Metrobus or Metrorail stop. The agency attempts to do this with a fleet of vehicles that are dispatched to pick up registered riders at prearranged times and locations and drive them to their destinations. This service is known — somewhat ironically — as MetroAccess. It often fails to provide either service or access. WAITING FOR THE BUS More than 11,000 disabled members of our community rely on MetroAccess in the same ways in which others rely on Metrobus and Metrorail. Because many of these people are unable to drive orwalk, they depend on MetroAccess to get them to such everyday activities as work, school, medical appointments, shopping, or the movies. They also depend on MetroAccess to exercise certain fundamental rights of all Americans, such as voting, assembling to petition the government, and going to court. Sadly, WMATA has not met their needs. The complaint against the agency, pending in the U.S. District Court for the District of Columbia, catalogs the routinely degrading and often harmful fate of riders at the mercy of MetroAccess. People have been stranded for long periods of time in inclement weather or unsafe locations, trapped on MetroAccess vehicles for hours at a time, late for or completely unable to get to work or doctor’s appointments, and harassed by MetroAccess personnel — all in violation of the ADA. In one instance, a plaintiff in the case ran out of the oxygen that she relies on to ease her breathing because her MetroAccess ride was extremely late and the route taken was indirect. Even though she had warned the driver when she boarded the vehicle that she was running low on oxygen, the driver continued along his normal route. By the time she finally reached her home, her supply of oxygen was indeed gone. Because of her disability, the same plaintiff finds that prolonged exposure to the cold and wind (or extreme heat) leads to wheezing, shortness of breath, and uncontrollable coughing fits. Yet on another occasion she was forced to wait for MetroAccess for an extended period in extremely cold weather — and ended up in the hospital for four days. Because she is blind, another plaintiff cannot tell, when a particular bus or van stops, whether or not it is, in fact, the MetroAccess vehicle. Yet the MetroAccess drivers frequently fail to blow the horn to let her know that the vehicle is there, and so she often misses her ride altogether. Yet another plaintiff is late to work two to three times a week because nearly all of his MetroAccess rides arrive more than 15 minutes after the appointed time. As a result of his tardiness, this plaintiff’s wages, on which his family relies, have been reduced. The experiences of these and the other individuals demonstrate how MetroAccess’ failure to provide adequate service has resulted in lost wages, strained relations between MetroAccess riders and their employers and co-workers, and physical injury, among other hardships. Under the ADA, this type of treatment clearly constitutes discrimination. Through their lawsuit, the plaintiffs are asking, on behalf of themselves and all other MetroAccess riders, that WMATA simply provide them with service comparable to the standard service provided by Metrobus and Metrorail. They are seeking the kind of reliable safe access to public transportation afforded to people without disabilities, which is their right under federal law. GOING TO COURT The plaintiffs in Tennessee v. Lane, the case just decided by the Supreme Court, were seeking something similar. They wanted reasonable access to the courthouses of the state of Tennessee. Due to their disabilities and the state’s lack of ramps, elevators, and similar accommodations, the plaintiffs were physically unable to enter a number of courthouses with a modicum of dignity. When lead plaintiff George Lane, a paraplegic, was scheduled to appear in a criminal traffic proceeding on the second floor of a courthouse with no elevator, he had this choice: crawl up two flights of stairs, be carried up by court personnel, or be held in contempt of court for failure to appear. The first time he crawled. The second time he simply said no. The other Lane plaintiff, Beverly Jones, was a court reporter who relied on a wheelchair. She was denied work and thus deprived of income because she could not enter many of the courthouses and courtrooms in Tennessee. The question before the Supreme Court was whether Title II of the ADA, prohibiting discrimination in public services, is constitutional. Tennessee, like numerous other states and government entities accused of violating the ADA, moved to dismiss the case on the ground that the suit was barred by the sovereign immunity afforded to the states by the 11th Amendment. Broadly speaking, the 11th Amendment makes states immune from lawsuits by private citizens and other states (unless the states themselves authorize the suits). But the protections of the 11th Amendment are not absolute and, with certain restrictions, Congress can abrogate them. Indeed, when it enacted the ADA, Congress clearly stated its intent to make the states liable for violations of that statute. In Lane, both the District Court and the U.S. Court of Appeals for the 6th Circuit rejected Tennessee’s claim of immunity and denied its motion to dismiss. The Supreme Court affirmed the 6th Circuit decision by a vote of 5-4. The Supreme Court found that Congress had the authority to make states vulnerable to suits for violations of the ADA. According to the Court, that authority is found in Section 5 of the 14th Amendment, which gives Congress the power to enforce the equal protection and due process guarantees. More specifically, the majority opinion by Justice John Paul Stevens appears to signal the Court’s acceptance of Congress’ authority to compel the removal of the systemic and pervasive obstacles that interfere with the ability of millions of disabled Americans to conduct their lives. Justice Stevens recited and relied on the “extensive record of disability discrimination that underlies” the ADA to hold that Title II, as applied to cases implicating the fundamental right of access to the courts, is valid. Coming as it did three years after the Court’s 2001 decision in Board of Trustees of the University of Alabama v. Garrett, the Tennessee decision also suggests a shift in the Court’s ADA jurisprudence. The Garrett case addressed Title I of the ADA, which prohibits disability discrimination against employees. The Court struck down Title I protections for state employees on the grounds of lack of evidence of a pattern of disability discrimination by state employers. Thus, the 11th Amendment trumped Title I. This month’s decision — in the words of Justice David Souter, who concurred in Lane — was “a welcome step away from the judiciary’s prior endorsement of blunt instruments imposing legal handicaps.” WITHOUT WHEELS When it enacted the ADA, Congress identified transportation as one of the critical areas in which individuals with disabilities continually encounter discrimination. This finding was supported by the congressionally appointed Task Force on Rights and Empowerment of Americans With Disabilities, which received accounts by individuals from almost every state reporting inaccessible public transportation, preventing them from going to school and getting to work (and, as a result, from getting and keeping a job). Almost 15 years later, the riders of MetroAccess can still attest to this problem. That’s why they have sued WMATA to remedy it. Common sense and our own experiences also tell us that without access to transportation, disabled individuals will be unable to exercise their basic rights as citizens and will be deprived of meaningful opportunity to participate in society. In Lane, the Court declined to decide whether Title II’s duty to accommodate individuals with disabilities is enforceable where the right being interfered with is not as fundamental as the right of access to courts. But the majority did say that Congress’ findings that discrimination against individuals with disabilities persists in many “critical areas,” including transportation, and the overwhelming historical evidence of disability discrimination in this country make it “clear beyond peradventure that inadequate provision of public services and access to public facilities [is] an appropriate subject for prophylactic legislation” like the ADA. This bodes well for the riders of MetroAccess. Lane clearly establishes the rights of the disabled to exercise their fundamental right to access the courts. This reasoning alone must defeat any claim of sovereign immunity that WMATA may assert in the MetroAccess litigation. For, in the end, people with disabilities will never be able to take advantage of the right to access the courts afforded by Lane if WMATA fails to get them to the courthouse. Todd A. Bromberg is a partner and Valerie E. Green is an associate at D.C.’s Wiley Rein & Fielding. Bromberg, Green, and other Wiley Rein attorneys are providing pro bono representation for plaintiffs in the suit over MetroAccess described here.

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