After I wrote about the absurdly high construction cost of wheelchair accessibility in New York and the equally absurd timeline resulting from said cost, I got some criticism from people I respect, who say, in so many words, that without government by lawsuit, there’s no America. Here, for example, is Alex Block extolling the notion of accessibility as a right, and talking about how consent decrees can compel change.
But in reality, accessibility is never a right. Accessibility is a feature. The law can mandate a right to certain standards, but the practice of accessibility law in the United States is a constant negotiation. The Americans with Disabilities Act mandated full accessibility everywhere – but even the original text included a balancing test based on the cost of compliance. In practice, legacy public transportation providers negotiated extensive grandfather clauses, and in New York the result was an agreement to make 100 key stations accessible by 2020. Right now, the negotiation has been extended to making 95% of the system accessible by 2055.
And this is why adversarial legalism must be viewed as a dead-end. The courts are not expert on matters of engineering or planning, and in recognizing their technical incompetence they remain extremely deferential to the state on matters of fact. If the MTA says “we can’t,” the courts are not going to order the system shut down until it is compliant, nor do they have the ability to personally penalize can’t-do or won’t-do managers. They can impose consent decrees but the people implementing those decrees can remain adversarial and be as difficult as possible when it comes to coordinating plans; the entire system assumes the state cannot function, and delivers as intended.
So as adversarial legalism is thrown into the ashbin of history as it should be, what can replace it? The answer is, bureaucratic legalism. This already has plenty of precedents in the United States:
- Drug approval is a bureaucratic process – the courts were only peripherally involved in the process of corona vaccination policy.
- The US Army Corps of Engineers can make determinations regarding environmental matters, for example the wetlands that the deactivated railway to be restored for South Coast Rail passes through, with professional opinions about mitigations required through Hockomock and Pine Swamp.
- Protection of National Parks is a bureaucratic process: the National Park Service can impose regulations on the construction of infrastructure, and during the planning for the Washington Metro it demanded that the Red Line cross Rock Creek in tunnel rather than above ground to limit visual impact.
- While the ADA is said to be self-enforcing via the courts, in practice many of the accessibility standards in the US, such as ramp slope, maximum gap between train and platform, elevator size, maximum path of travel, and paratransit availability are legislative or regulatory.
Right now, there’s an attempt by the FTA to improve public transit access to people with limited English proficiency. This, too, can be done the right way, that is bureaucratically, or the wrong way, that is through lawsuits. Last year, we wrote a response to an RFI about planning for equity highlighting some practices that would improve legibility to users who speak English poorly. Mandating certain forms of clarity in language to be more legible to immigrants who speak poor English and recommending others on a case-by-case basis does not involve lawsuits. It has no reason to – people who don’t speak the language don’t have access to the courts except through intermediaries, and if intermediaries are needed, then they might as well be a regulator with ethnographic experience.
What’s more, the process of government by lawsuits doesn’t just fail to create value (unless 95% accessibility by 2055 counts as value). It also removes value. The constant worry about what if the agency gets sued leads to kludgy solutions that work for nobody and often create new expected and unexpected problems.