New York State just announced that per the result of a legal settlement, it is committing to make 95% of the subway accessible… by 2055. Every decade, 80-90 stations will be made accessible, out of 472. Area advocates for disability rights are elated; in addition to those cited in the press release or in the New York Times article covering the news, Effective Transit Alliance colleague Jessica Murray speaks of it as a great win and notes that, “The courts are the only true enforcement mechanism of the Americans with Disabilities Act.” But to me, it’s an example not of the success of the use of the courts for civil rights purposes, in what is called adversarial legalism, but rather its failure. The timeline is a travesty and the system of setting the government against itself with the courts as the ultimate arbiter must be viewed as a dead-end and replaced with stronger administration.
The starting point for what is wrong is that 2055 is, frankly, a disgrace. By the standards of most other old urban metro systems, it is a generation behind. In Berlin, where the U-Bahn opened in 1902, two years before the New York City Subway did, there has been media criticism of BVG for missing its 2022 deadline for full accessibility; 80% of the system is accessible, and BVG says that it will reach 100% in 2024. Madrid is slower, planning only for 82% by 2028, with full accessibility possible in the 2030s. Barcelona is 93% accessible and is in the process of retrofitting its remaining stations. Milan has onerous restrictions such that only one wheelchair user may board each train, but the majority of stations have elevators, and 76% have elevators or stairlifts. In Tokyo, Toei is entirely accessible, and so is nearly the entirety of Tokyo Metro. Even London is 40% accessible, somewhat ahead of New York. Only Paris stands as a less accessible major world metro system.
The primary reason for this is costs. The current program to make 81 stations accessible by 2025 is $5.2 billion. This is $64 million per station, and nearly all are single-line stations requiring three elevators, one between the street and the outside of fare control and one from just inside fare control to each of two side platforms. Berlin usually only requires one elevator as it has island platforms and no fare barriers, but sometimes it needs two at stations with side platforms, and the costs look like 1.5-2 million € per elevator. Madrid the cost per elevator is slightly higher, 3.2 million €. New York, in contrast, spends $20 million, so that a single station in New York is comparable in scope to the entirety of the remainder of the Berlin U-Bahn.
And this is what adversarial legalism can’t fix. The courts can compel the MTA to install elevators, but have no way of ensuring the MTA do so efficiently. They can look at capital plans and decree that a certain proportion be spent on accessibility; seeing $50 billion five-year capital plans, they can say, okay, you need to spend 5-10% of that on subway accessibility. But if the MTA says that a station costs $64 million to retrofit and therefore there is no room in the budget to do it by 2030, the courts have to defer.
This, in turn, is a severe misjudgment of what the purpose of civil rights legislation is. Civil rights laws giving individuals and classes the right to sue the government already presuppose that the government may be racist, sexist, or ableist. This is why they confer individual and group rights to sue under Title VI (racial equality in transportation and other facilities), Title IX (gender equality in education), and the ADA. If the intention was to defer to the judgment of government agencies, no such laws would be necessary.
And yet, the nature of adversarial legalism is that on factual details, courts are forced to defer to government agencies. If the MTA says it costs $64 million to retrofit a station, the courts do not have the power to dismiss managers and hire people who can do it for $10 million. If the MTA says it has friction with utilities, the courts cannot compel the utilities to stop being secretive and share the map of underground infrastructure in the city or to stop being obstructive and start cooperating with the MTA’s contractors when they need to do street work to root an elevator. Judges are competent in legal analysis and incompetent in planning or engineering, and this is the result.
Worse, the adversarial process encourages obstructive behavior. The response to any request from the public or the media soon becomes “make me”; former Capital Construction head and current MTA head Janno Lieber said “file a Freedom of Information request” to a journalist who asked what 400 questions federal regulators asked regarding congestion pricing. Nothing goes forward this way, unless accessibility in 33 years counts, and it shouldn’t.