Adversarial Legalism and Accessibility
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.
Pedestrian Observations 
Very nicely written article on topic I mentioned some time ago. The cost should be viewed as an investment because elevators and ramps not only service the disabled—some of the most regular and faithful users of public transit—but also tourists with luggage, cyclists, scooters, and others who can extend the reach and daily fare usage considerably. Tourists using transit can reduce taxi congestion significantly at the airport. Bicycles and scooters can extent the reach of stations on the periphery far beyond those walking in, the plus raise the appeal of transit by speeding up the access to trains. So, then it’s mainly a matter of getting extra cars fitted to handle wheel chairs, wheeled tourist baggage, bicycles, and scooters even during rush hour.
I think it is useful to distinguish between “the right to X” and “the right not to X”. For example, the right to travel on a metro, versus the right not to be punched in the face. Courts are good at enforcing the latter, because the default state is that the right is upheld, and it is only violated in a single action which can be identified and sanctioned. Whereas courts are terrible at enforcing the former, because there is not a particular action in which the right is violated, and the court has little ability to compel a specific action (the court does not know how to build elevators, and if the MTA doesn’t know how to build elevators that’s not a criminal offense). Therefore, “the right to X” is best upheld in a political rather than a legal level.
It really depends. Courts work as blocking mechanisms as you say, but there are cases where they are well-equipped to enforce positive rights – for example, positive property rights (“I was illegally evicted from my land, give it back to me”).
Maybe the Courts can do something over the next thirty years about the stench of urine in the subway elevators that do exist 😦
Its interesting seeing the difference between the supposedly Anglo-saxon bretheren of UK and US. The UK has problems with nimby lawsuits, but the real problem is that planning and designs are subject to politician discretion i.e. opaque politics since local councillors are anonymous and the centre too distant to be easily accountable. London is the partial exception because of TfL’s bureaucratic heft.
> 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.
Wouldn’t some sort of open data legislation be able to make it possible for such legal request to be made?
Courts have invented further-reaching legislation than this on their own. The issue isn’t that courts can’t enforce transparency (they can), it’s that they wouldn’t know what the information should look like and therefore are poorly-equipped for oversight duties; an administrative bureaucracy run by people with specific experience in the field, who might be trained lawyers (like Ben Kabak) but might have different background (like Yonah Freemark), is necessary.
They have to have the data. They discover all sorts of things when they actually dig up dirt.
A few scattered thoughts:
– Adversarial legalism is a terrible mechanism for civil rights, but unfortunately that’s how the ADA is written–Congress neglected to create anything else. Saying that “the courts are the only true enforcement mechanism” isn’t *praise* for the courts as an enforcement mechanism, it’s just a factual statement about the law–if your rights are violated, suing about it is literally the only thing you can do. (While you still can, see the recent Egbert v Boule…) This is not how it should be or how people want it to be, but America is a failed state.
– This is a settlement, not a court ruling. Part of the deal with a settlement–why an agency agrees to it–is that the activists are supposed to perform being happy, give the agency a photo op, and praise it for doing the right thing. I wouldn’t necessarily take that performance at face value–surely they aren’t happy about the 30-year time frame either. (That doesn’t excuse the press, though.)
– Courts show a lot of deference to agencies on factual matters, but they may also call BS on things sometimes too–they do sometimes tell agencies “XYZ excuse isn’t good enough, get it fixed.” As for telling private utility companies (why do we have those, anyway? Oh right, failed state) to cooperate, the problem is those companies aren’t the ones being sued, and there isn’t a reasonable way to include them as co-defendants. The courts are “incompetent in planning or engineering” not in the sense that it’s outside their expertise, but in the legal sense that it’s outside their authority/power entirely. This absolutely shouldn’t be like this, but…
– I agree that the MTA is incompetent, but that’s so because they’re venal and incurious. Probably most of them deserve to be fired. But I’m not sure what the *systematic* fix is to avoid the replacements becoming similarly venal and incurious. I suppose the best answer is “the vigorous oversight of an engaged and well-represented public,” but American democracy was designed to be antidemocratic, it by now has over two hundred years of practice at disenfranchising the public, and there’s considerable investment in alienating citizens from awareness of or ability to influence public affairs. Incompetent transit agencies are only one symptom.
So I absolutely agree with the general stance that adversarial legalism is a terrible way to organize a government, but unfortunately the very problems that make us reliant on it–viz, an inability to successfully legislate and a deep-seated (and to some extent justified) skepticism of the benevolence and competency of the executive agencies/existing administrative apparatus–make it very difficult to replace with anything better. In sum… failed state, what do
In the transit world, there is a separate adversarial situation between the transit system and labor. Today is another 24 hour strike by the Tube workers in London (the 5th this year?) and the second 24 hour strike by the UK national rail employees.
Back in the ’70’s, San Francisco MUNI went out on strike. The citizens were wiling to pay anything to get a no-strike clause in the contract. So, SF MUNI guarantees the workers they will always be among the three highest paid transit groups in the US. BTW, MUNI can’t do anything if 25% of the workers magically choose to call in sick on the same day.
You can practically set your watch to the BART employees going on strike every three years when the contract comes due.
Muni doesn’t actually pay high wages, though. Starting bus drivers get paid around $54,000, which is so far below market Muni hasn’t been able to find enough qualified workers for years.
And there are transit strikes here, too – short ones leading to higher wages. One of the impetuses for contracting out operations (for example, to the MTR in Stockholm) is to reduce the ability of unions to demand wages in excess of productivity.
You wanna whine about bus driver productivity I want to know how productive lawyers who bring frivolous environmental lawsuits are.
There aren’t any problems with bus driver productivity that I know of – train driver productivity is the problem.
Silly me. “bus driver…. ” gave me the impression the subject was bus drivers. The device they clock in on isn’t next to the steering wheel of the bus or in the cab of a train.
I know that you have lived in Stockholm, but it seems that you doesnt understand the swedish system of collective bargaining… contracting the operations to a private company in fact makes the risk of strikes higher.
MTR is going to introduce one man operation on the commuter trains later this year – be prepared for total caos when a huge part of the drivers will leave and start working for other rail operators. SJ is hiring every driver they can get a hand on, just one example.
The issue isn’t avoiding strikes, I don’t think – it’s subcontracting the decision of whether to give in or wait out the workers’ strike fund to a private company, which is subject to less political pressure to give in.
> The courts can compel the MTA to install elevators, but have no way of ensuring the MTA do so efficiently.
You’re confusing what the courts can do with what the plaintiffs in this case settled for.
London, of course, is the world’s oldest system ( 1863 ) & is therefore, most difficult to upgrade.
Even so, every year, another 5-20 stations become “step-free” ( we are getting there – slowly
Boston, Chicago, and Berlin are all among the world’s oldest systems too, and yet they’re largely accessible, and Berlin also does so at low cost (Boston and Chicago don’t).
Oh, make no mistake, the reason adversarial legalism has been the only option in NYC is that the MTA and the NYCT before it have just been utter bigoted jackasses when it comes to disability rights. Every time disability rights organizations have tried to work cooperatively, they’ve been met with open hostility, lawbreaking, general bigotry, since ***the 1950s***.
Adversarial legalism is a *backstop* to be used when the agencies are run by bigoted, vicious criminals. Like the MTA was. There was no excuse for the non-accessible retrofits of stations which were done in Brookyn in the 2000s and 2010s — this was flat-out black-letter-law illegal and no other agency in the entire US did anything similar. It was deliberate malice on the part of MTA officials.
When you’re faced with actual malice due to bigorty by bad actors, and you don’t have quite enough political power to throw out the mayor and governor over the issue (which disability rights organizations have never had), adversarial legalism is the only way to retain rights.
Massive improvements in accessibility have happened in other parts of the country without constant lawsuits, because the public agencies involved weren’t run by bigoted jackasses. Boston and Philly both had major lawsuits a few decades ago, but nothing since, because they’ve been cooperative since then. Chicago is similar. San Diego acted early for accessibility and has had no lawsuits.
The backstop is going to leave New York as the second least accessible major global metro system (maybe even least accessible if Paris gets its act together in the interim).
I mean to be fair that they didn’t put lifts in after refurbing a station in the 1990s is pretty bad. Every station in London that gets a refurb gets made accessible these days – the only exception is the central line at bank which has very curved platforms.
Yes, that’s New York too. The way it works in practice is that ADA is bundled with other things, like adding more staircases or just doing routine long-term maintenance and charging it to the ADA grant.
Well, yeah. It would be better to be able to replace the mayor, but NYC just elected the excreable Eric Adams, best known for illegally parking on sidewalks, not living in NYC, lying about his address, and making excuses for murderous cops. So it’s pretty clear there isn’t quite the political organization to get a decent government in NYC yet. Maybe in a few more years…