THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

AMERICAN COUNCIL OF THE BLIND OF NEW YORK, INC., MICHAEL GOLFO, and CHRISTINA CURRY, on behalf of themselves and all others similarly situated,
        Plaintiffs,
 v.
CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, BILL DE BLASIO, in his official capacity as Mayor of the City of New York, and POLLY TROTTENBERG, in her official capacity as Commissioner of the New York City Department of Transportation,

Defendants.

Case No. 18 Civ. 5792 (PAE)

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

ZACHARY BANNON
Assistant United States Attorney
– Of Counsel –

AUDREY STRAUSS
United States Attorney for the
Southern District of New York
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2728
E-mail: Zachary.Bannon@usdoj.gov

PRELIMINARY STATEMENT

On October 20, 2020, the Court held that the City of New York “deprived [blind and low-vision individuals] of meaningful access to its signalized crossings and the pedestrian grid, in violation of the [Americans with Disabilities Act (“ADA”)] and Rehabilitation Act,” by failing to install Accessible Pedestrian Signals (“APS”) at the vast majority of its signalized intersections. Dkt. No. 126 (“Order”) at 26. The parties have since filed competing remedial plans to address the City’s violation. See Dkt. Nos. 142-3 (“City Rem. Plan”), 143 (“Pls. Rem. Plan”). To assist the Court as it considers the parties’ competing remedial plans, the United States of America respectfully submits this Statement of Interest1 to outline the legal framework for providing access to the City’s signalized crossings and pedestrian grid under Title II of the ADA, the Rehabilitation Act, and the relevant regulations.2

As explained below, the remedy adopted to redress the City’s ADA and Rehabilitation Act violations should: (1) ensure that newly constructed and altered signalized intersections are accessible and that existing signalized intersections are modified such that individuals with vision-related disabilities have an equal opportunity to safely and efficiently travel within the pedestrian grid; (2) allow for the use of alternative methods to provide individuals with vision-related disabilities access to the pedestrian grid only where those methods are as effective as APS and prioritize integration; (3) consider financial and administrative burden only in choosing between equally effective alternatives, as the City has forfeited the argument that costs establish a defense to liability, see Order at 37; and (4) be implemented expeditiously, while prioritizing access to important areas of public life and intersections that present heightened safety risks. The United States, however, does not seek to apply these principles to each fact presented by the parties’ competing plans.

INTEREST OF THE UNITED STATES

The United States submits this Statement of Interest because this litigation implicates the proper interpretation and application of Title II of the ADA. As the federal agency charged with enforcement and implementation of Title II of the ADA, 42 U.S.C. §§ 12133-12134, the Department of Justice has an interest in supporting the proper and uniform application of the ADA, in furthering Congress’s intent to create “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(2), and in furthering Congress’s intent to reserve a “central role” for the federal Government in enforcing the standards established in the ADA.  Id. §12101(b)(3).  In the context of access to the pedestrian grid specifically, the United States recently intervened in litigation in the Northern District of Illinois concerning the accessibility of Chicago’s signalized intersections and pedestrian signals. See Am. Council for the Blind v. City of Chicago, No. 19 Civ. 6322 (EEB), Dkt. No. 74 (N.D. Ill. Apr. 8, 2021).

PROCEDURAL BACKGROUND

In 2018, the American Council of the Blind of New York, Inc., and two named plaintiffs brought this action on behalf of a class of blind and low-vision pedestrians alleging that the City of New York violated Title II of the ADA by failing to provide non-visual crossing information at the vast majority of signalized intersections in the City. Dkt. No. 1. On October 20, 2020, the Court resolved several of the plaintiffs’ claims, reserved decision on others, and directed that the matter move promptly forward to the remedy stage. Order at 66-67. Relevant here, the Court concluded that the installation and maintenance of the City’s signalized intersections is a “service, program, or activity” of the City pursuant to 42 U.S.C. § 12132, Order at 21-23, and that the City has denied “meaningful access” to this service to blind and low-vision individuals because it provides APS3 at only 3.4% of the City’s intersections with visually accessible crossing information, id. at 24-40. The Court also concluded that the City violated Title II by failing to install APS at newly constructed signalized intersections, but that certain other changes did not rise to the level of “alterations” sufficient to trigger the requirements of 28 C.F.R. § 35.151(b). Order at 40-65.

Following the Court’s summary judgment decision, the parties attempted to negotiate a mutually agreeable remedial plan. See Dkt. Nos. 130-33. Unable to do so, the parties engaged in remedial discovery, Dkt Nos. 134-38; submitted competing remedial plans on March 19, 2021, Dkt. Nos. 141-45; and will submit responses on April 30, 2021, Dkt. No. 138. The United States respectfully submits this Statement of Interest to outline the legal framework applicable to evaluating the remedial proposals.

DISCUSSION

The statutory and regulatory framework established to implement Title II of the ADA, as well as several case-specific concerns implicated by the parties’ remedial proposals, are set forth below.

  1. Statutory and Regulatory Background
  2. Congress enacted the ADA in 1990 to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to foster “equality of opportunity, full participation, independent living, and economic self-sufficiency” for those individuals. 42 U.S.C. § 12101(b)(1). Title II of the ADA, applicable to public entities, contains a simple mandate: “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132.

    At its core, the ADA seeks to ensure that individuals with disabilities are provided with “equality of opportunity.” 42 U.S.C. § 12101(b)(1). And as the Supreme Court has held under the Rehabilitation Act, individuals with disabilities “must be provided with meaningful access to the benefit that [an entity] offers.” Alexander v. Choate, 469 U.S. 287, 301 (1985) (emphasis added); see also id. at 306 (concluding that state did not violate the Rehabilitation Act where it provided “meaningful and equal access to [a] benefit”); Henrietta D. v. Bloomberg, 331 F.3d 261, 273-74 (2d Cir. 2003) (meaningful access means “evenhanded treatment”); Payan v. Los Angeles Cmty. Coll. Dist., No. 17 Civ. 1697 (SVW), 2018 WL 6164269, at *12 (C.D. Cal. Oct. 16, 2018) (“Choate’s ‘meaningful access’ requirement is coextensive with the concept[] of . . . ‘equal opportunity’ under Title II. This conclusion is bolstered by the fact that Choate itself at times seems to use the terms ‘meaningful’ and ‘equal’ interchangeably.”).  Congress intended that Title II be interpreted consistently with Choate. House Report No. 101-485, 1990 U.S.C.C.A.N. 303, 367 (1990) (“[I]t is the Committee’s intent that [42 U.S.C. § 12132] also be interpreted consistent with Alexander v. Choate, 469 U.S. 287 (1985).”). Although this standard is “necessarily fact-specific,” where there exists “an obstacle that impedes [an individual’s] access to a government program or benefit, they likely have established that they lack meaningful access to the program or benefit.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1267 (D.C. Cir. 2008).

    The ADA directs the Department of Justice to promulgate regulations implementing Title II. 42 U.S.C. § 12134(a); 28 C.F.R. Part 35 (Title II implementing regulations); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 273-74 (2d Cir. 2003) (“In interpreting the statutory terms [of the ADA] we look to the views of the Justice Department, which was charged by Congress with issuing regulations.”); Brooklyn Ctr. for Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 641 (S.D.N.Y. 2013) (“Courts look to the regulations promulgated by the Department of Justice” when “interpreting the mandates of the ADA.”). Subpart B of the implementing regulations, 28 C.F.R. §§ 35.130-139, contain “General Requirements.” Section 35.130(a) of Subpart B restates the broad non-discrimination mandate of Title II of the ADA, 42 U.S.C. § 12132, providing: “No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” “The remaining paragraphs in § 35.130 establish the general principles for analyzing whether any particular action of the public entity violates this mandate.” 28 C.F.R. Part 35, App. B. In particular and as relevant here, “[a] public entity . . . may not . . . [a]fford a qualified individual with a disability an opportunity to participate in or benefit from [an] aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(ii). And “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Id. § 35.150(d).

    Subpart D of the regulations—titled “Program Accessibility”—applies these non-discrimination principles in the context of access to government programs. See 28 C.F.R. §§ 35.149-52. Subpart D also begins with a broad proscription: “[N]o qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity.” 28 C.F.R. § 35.149. The subsequent two sections set out the program accessibility standards applicable to “existing facilities,” 28 C.F.R. § 35.150, and “new construction and alterations,” 28 C.F.R. § 35.151.

    Beginning with existing facilities, 28 C.F.R. § 35.150(a) provides that “[a] public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” Section 35.150(a) further provides that a public entity need not necessarily “make each of its existing facilities accessible to and usable by individuals with disabilities” to satisfy that standard, nor must it “take any action that would threaten or destroy the historic significance of an historic property” or “take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens[.]” 28 C.F.R. § 35.150(a)(1)-(3). “A public entity may comply with the requirements of this section through . . . any . . . method[] that result[s] in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(b)(1).4 However, a public entity must “give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.” Id.

    The subsequent section, 28 C.F.R. § 35.151, applies to the design and construction of and alterations to facilities. Each newly constructed facility must be readily accessible to and usable by individuals with disabilities unless ready access is structurally impracticable. 28 C.F.R. § 35.151(a)(1). Where full compliance is structurally impracticable, “any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.” 28 C.F.R. § 35.151(a)(2). Further, facilities that undergo alterations must be made readily accessible to and usable by individuals with disabilities to the maximum extent feasible. 28 C.F.R. § 35.151(b)(1). “If physical construction or alterations commence on or after March 15, 2012, then new construction and alterations subject to this section shall comply with” the standards set forth in the Department of Justice’s 2010 ADA Standards for Accessible Design. See 28 C.F.R. § 35.151(c)(3); see also 2010 ADA Standards for Accessible Design (Sept. 15, 2010), available at https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf.

    The history and text of the ADA and its regulations are replete with examples establishing that removal of structural barriers to public transportation and public rights of way is a primary focus of the ADA. See, e.g., 42 U.S.C. § 12101(a)(2) (“[D]iscrimination against individuals with disabilities persists in such critical areas as . . . transportation . . . and access to public services.”); id. § 12101(a)(5) (“[I]ndividuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural, transportation, and communication barriers.”); see also 28 C.F.R. § 35.151(i)(2) (“Newly constructed or altered street level pedestrian walkways must contain curb ramps . . . .”). The House Report accompanying the ADA explains, “[t]he employment, transportation, and public accommodations section of this Act would be meaningless if people [with disabilities] were not afforded the opportunity to travel on and between the streets.” House Report No. 101-485, 1990 U.S.C.C.A.N. at 367.

  3. Meaningful Access to Pedestrian Crossings
  4. At issue at this remedial phase is what New York City must do to ensure that blind and low-vision individuals have “meaningful access” to the City’s signalized intersections and pedestrian grid. Order at 26. As noted above, the analysis is governed by the ADA’s program accessibility regulations, which require that a public entity’s services, programs, and activities—in this case the City’s installation and maintenance of signalized intersections and the pedestrian grid—when viewed in their entirety are accessible to individuals with disabilities. These regulations impose strict requirements for new and altered facilities as well as existing facilities.

    The remedial question before the Court requires consideration of: (1) individuals with vision-related disabilities equal opportunity to travel within the signalized intersections and pedestrian grid as required under Title II of the ADA and DOJ’s implementing regulations, (2) the methods the City may utilize to provide program access to its signalized intersections and pedestrian grid, (3) the role of financial and administrative burden in fashioning a remedy, and (4) the appropriate timing and prioritization of a remedial plan.

    1. Equal Opportunity to Travel Safely and Efficiently within the Pedestrian Grid.

      The Court has determined that the City’s “installation and maintenance of signalized intersections and the pedestrian grid plainly constitutes a service, program, or activity of a public entity,” requiring “meaningful access” to individuals with disabilities. Order at 22-23. The parties agree that, pursuant to 28 C.F.R. § 35.151(a)(1), APS must be installed at all intersections at which pedestrian signal crossings were installed from June 27, 2015, moving forward. City Rem. Plan at 2 (“This plan is in addition to [the Department of Transportation’s] commitment to install APS at all newly signalized intersections.”); id. at 5 (“The in-house crew will also install APS at new signals installed without APS after June 27, 2015.”); Pls. Rem. Plan at 13 (“It is beyond dispute that APS, like all other necessary accessibility features, is required to be installed as part of all new signal installations.”); see also Order at 64-65. The parties disagree, however, about the extent to which existing signalized intersections (in this case, those installed before June 27, 2015) must be modified to ensure that the pedestrian grid, when viewed in its entirety, is readily accessible to and usable by individuals with vision-related disabilities. See 28 C.F.R. § 35.150(a)(1).

      Section 35.130 of the implementing regulations provides that “[a] public entity, in providing any aid, benefit, or service, may not . . . [a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.”  28 C.F.R. § 35.130(b)(1)(ii).  In this case, the “service” at issue is access to safe and efficient pedestrian travel on the streets of New York City.  See Order at 22.  As the Court recognized in its summary judgment order, the City’s pedestrian grid facilitates the efficient movement of pedestrians within the City, and signalized intersections ensure that such movement is safe. Order at 5.  Accordingly, to ensure program access to the pedestrian grid, the Court should ensure that individuals with vision-related disabilities have equal opportunity to travel safely and efficiently within the grid.

      “[E]qual” “opportunity,” 28 C.F.R. §35.130(b)(1)(ii), includes safety, as the provision of services that are “less safe” to individuals with disabilities by itself “constitutes . . . prohibited discrimination,” Putnam v. Oakland Unified School Dist., No. 93 Civ. 3772 (CW), 1995 WL 873734, at *11 (N.D. Cal. Jun. 9, 1995). The City has already made the determination that certain intersections need to be signalized to ensure safe access to the pedestrian grid. But individuals with vision-related disabilities have been left out of that targeted calculus. Cf. Scharff, 2014 WL 2454639, at *11 (“[T]he accommodation sections of Title II will be meaningless, and social costs will be aggravated, if people who are blind or visually impaired are not afforded the opportunities to travel safely on and between streets.”).5 And concerns about the safety of pedestrian travel may well deter individuals with vision-related disabilities from accessing the pedestrian grid at all—a result the ADA was meant to combat. See Wright v. New York State Department of Corrections, 831 F.3d 64, 83 (2d Cir. 2016) (“An accommodation is not plainly reasonable if it is so inadequate that it deters [an individual] from attempting to access the services otherwise available to him.”).

      Equal opportunity also means timely access. The Second Circuit has explained that the ADA requires the elimination of barriers that prevent efficient access to government services. For example, in Wright v. New York State Department of Corrections, 831 F.3d 64 (2d Cir. 2016), the Second Circuit noted that accommodations provide meaningful access to a government service only when they “overcome structural impediments and non-trivial temporal delays that limit access to programs, services, and activities.” Id. at 73 (emphasis added). And in Celeste v. East Meadow Union Free School Dist., 373 F. App’x 85 (2d Cir. 2010), the Circuit concluded that a student was denied meaningful access to programs offered by his middle school because “minor architectural barriers in the school forced him to take a ten minute detour each way in order to reach and return from the athletic fields behind the school,” resulting in “an unnecessary usurpation of [his] time.” Id. at 88. In other words, the concept of program access may allow for the provision of services in a manner that results in trivial delays, but structural barriers that impose even a ten-minute detour may deny an individual meaningful access. In the context of the pedestrian grid—often the only means of access between two points, as between a public transportation hub and an individual’s destination—even relatively short delays may be non-trivial. This is particularly true for individuals with vision-related disabilities, who may have increased difficulty locating alternative routes with safe pedestrian crossings. Cf. Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 201 n.13 (2d Cir. 2014) (provision of alternative poll sites would be unreasonable where individuals would have no way to know whether a site is accessible).

      The Department of Justice’s Technical Assistance Manual also contains guidance on the necessity of efficient travel as a feature of program access to the pedestrian grid. See The Americans with Disabilities Act Title II Technical Assistance Manual (“Technical Assistance Manual”) § II-5.3000, available at https://www.ada.gov/taman2.html; see also 42 U.S.C. § 12206(c)(3) (directing the Department of Justice to promulgate a technical assistance manual); G.P. v. Claypool, 466 F. Supp. 3d 875, 887 n.11 (N.D. Ill. 2020) (“The TA Manual is regularly consulted to flesh out the regulatory framework of the ADA.”). In the related context of curb ramps for individuals with mobility impairments, the Technical Assistance Manual provides that “public entities are not necessarily required to construct a curb ramp at every such intersection.” Technical Assistance Manual § II-5.3000.  However, the Technical Manual makes clear that while “[a]lternative routes to buildings that make use of existing curb cuts may be acceptable under the concept of program accessibility,” it may be acceptable only “in the limited circumstances where individuals with disabilities need only travel a marginally longer route.” Id.

      The Department of Justice’s regulations provide that program accessibility “does not necessarily require a public entity to make each of its existing facilities accessible.” 28 C.F.R. § 35.150(a)(1).  In some instances, however, to provide equality opportunity to the services of a public entity as is required by 28 C.F.R. § 35.130(b)(1)(ii), the law will require as much. See, e.g., Disabled in Action, 752 F.3d at 206 (affirming remedial plan that required all poll sites to be made accessible).The relevant inquiry into the program accessibility of the pedestrian grid is fact specific, but requires a comprehensive solution that ensures safe and efficient travel for individuals with vision-related disabilities.

    2. Methods of Access
    3. Public entities may provide access to their services by eliminating structural barriers to their facilities, but they are “not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.” 28 C.F.R. § 35.150(b)(1). “Whatever method is chosen, the public entity must ensure that people with disabilities have access to programs and services under the same terms and conditions as other people.” U.S. Dep’t of Justice, Civil Rights Division, Disability Rights Section, ADA Update: A Primer for State and Local Governments, at 9 (June 2015), available at https://www.ada.gov/regs2010/titleII_2010/titleII_primer.pdf; Hernandez v. New York State Bd. of Elections, 479 F. Supp. 3d 1, 12 (S.D.N.Y. 2020) (relying on the ADA primer); see also 28 C.F.R. § 35.130(b)(1)(ii) (noting that a public entity may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others”).

      Integration is a critical consideration in selecting between methods for providing access to a program. When Congress enacted the ADA, it found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).  Therefore, “[i]n choosing among available methods for meeting the requirements of” 28 C.F.R. § 35.150(b)(1), “a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.” Id.

      Thus, to provide program access, any proposal for how to provide individuals with vision-related disabilities with access to the pedestrian grid should both prioritize integration and be effective. The City’s remedial proposal discusses several methods by which it could provide individuals with vision-related disabilities with access to the pedestrian grid, such as applying modified APS design approaches, developing new technology, and designating “zones of accessibility.” See City Rem. Plan at 6-7 (discussing the installation of APS units on existing poles); id. at 7-9 (discussing the development of smartphone technologies that may reduce the cost of APS installation); id. at 2-5 (discussing “zones of accessibility”).

      The City’s proposal “to designate zones of accessibility,” without developing a comprehensive plan to provide program access to the pedestrian grid in other areas, see City Rem. Plan at 2-5, may run afoul of the ADA’s integration mandate. 28 C.F.R. § 35.150(b)(1). As will be discussed in Section II.D.2, it is appropriate for the City to prioritize access in areas with the most significant needs, but that prioritization must come with a plan that affords access to the pedestrian grid in accordance with the program accessibility standards implementing Title II.

      Otherwise, determining whether a proposed method of access is effective is fact specific. For example, the Technical Assistance Manual examines a rural one-room library with an entrance at the top of several steps, noting that it could be made accessible to individuals with mobility disabilities “through a bookmobile, by special messenger service, through use of clerical aids, or by any other method” so long as the method results in its services being “readily accessible,” as provided for in 28 C.F.R. § 35.150(a)(1). Technical Assistance Manual § II-5.2000. However, “a public entity must give priority to the one that results in the most integrated setting appropriate to encourage interaction among all users, including individuals with disabilities.” Id. For the library, priority goes to “constructing a ramp because that is the method that offers library services to individuals with disabilities and others in the same setting.” Id.   

      If there is more than one effective mechanism that the City can employ to provide access to safe-crossing information and efficient travel within the pedestrian grid, the ADA allows for flexibility, so long as integration is prioritized.

    4. Financial and Administrative Burden
    5. The City’s remedial plan and supporting documents also discuss the financial and administrative burdens associated with remediating the violations found by the Court. See Dkt. No. 142 ¶ 12 (declaration of the Deputy Commissioner in the Traffic Operations Division of the New York City Department of Transportation discussing the financial and administrative difficulties incumbent to APS installation); Dkt. No. 142-7 (same, from the Associate Commissioner for Budget and Capital Program Management). The ADA regulations do not “[r]equire a public entity to take any action that it can demonstrate would result . . . in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3).However, a public entity cannot rely on this defense absent a formal finding of burden issued by the relevant “head of a public entity.” Id. As the Court recognized, the City did not make this finding in in support of a defense to liability. Order at 37. As the Court also recognized, “on claims arising from the failure to make a facility accessible at the time of alterations or construction, [the City] does not have available the undue burden or financial alteration defenses[.]” Order at 64. Accordingly, at this stage, the City cannot rely upon burden to justify the provision of lesser access to its signalized intersections and pedestrian grid for people with vision-related disabilities.

      As a result, if the Court determines that it is appropriate to consider cost in fashioning a remedy for the City’s violations, it should do so only to select between remedial options that meet the standard of ensuring program access to the City’s signalized intersections and pedestrian grid. This approach is consistent with the Supreme Court’s directive in a related context that “[f]inancial constraints may not be used to justify the creation or perpetuation of constitutional violations, but they are a legitimate concern of government defendants in institutional reform litigation and therefore are appropriately considered in tailoring a [remedy].” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 392-93 (1992). And it is consistent with the approach taken by several other courts that have considered resource constraints in tailoring remedies for Title II and Rehabilitation Act violations even where defendants did not establish an undue burden defense at the liability stage. See, e.g. American Council of the Blind v. Mnuchin, 878 F.3d 360, 367 (D.C. Cir. 2017); see also Disabled in Action, 752 F.3d at 203 (approving remedial order that balanced the City’s “practical resource constraints”).

      In assessing cost, Department of Justice regulations make clear that it is critical to consider “all resources available for use in the funding and operation of the service, program, or activity.” 28 C.F.R. § 35.150(a)(3) (emphasis added). Significant sources of funding are available to fund the provision of APS, including from several federal sources. See U.S. Dept. of Transp., Fed. Highway Admin., Pedestrian and Bicycle Funding Opportunities, available at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/funding/funding_opportunities.cfm (last visited Mar. 14, 2021) (listing twelve sources of federal funding that may be used for “signs/signals/signal improvements (including accessible pedestrian signals)”). These sources of external funding are appropriate to consider in assessing compliance costs.

    6. Implementation of a Remedial Plan
    7. Both parties agree that achieving program accessibility to the pedestrian grid for individuals with vision-related impairments may take years. See Pls. Rem. Plan at 17 (proposing ten-year plan); City Rem. Plan at 10 (same). The Department of Justice’s regulations suggest that any remedial plan must seek to provide individuals with vision-related disabilities with meaningful access to the pedestrian grid expeditiously, with a focus on providing access to important areas of public life, providing for safe crossings in areas with heightened safety concerns, and pursuing cost-effective remediation. If possible, the City should develop remedial priorities in consultation with individuals with disabilities and provide a mechanism for their continued input throughout the implementation of a remedial plan.

      1. Timing
      2. The Department of Justice implementing regulations initially required all structural changes necessary to provide individuals with disabilities with meaningful access to government services to be made “as expeditiously as possible,” and in almost all instances within three years of the ADA’s effective date. 28 C.F.R. § 35.150(c).6 Section 35.150(c) does not apply on its own terms to modifications made outside this initial three-year period. However, this provision makes clear that, while the Department recognized that structural changes necessary to bring a public entity’s facilities into compliance with the ADA could not always be made immediately, they should be accomplished without undue delay.

        Courts have looked to § 35.150(c) for guidance when fashioning injunctive relief even outside the time-period in which that provision operated as a direct regulatory requirement. See, e.g., Miller v. City of Johnson City, Tennessee, No. 94 Civ. 246 (TGH), 1996 WL 406679, at *6 (E.D. Tenn. May 29, 1996) (“The Court finds that under the facts of this case, the plan for installing curb ramps formulated by the City is as expeditious as possible.”); Ramirez v. District of Columbia, No. 99 Civ. 803 (TFH), 1999 WL 986914, at *4, 6 (D.D.C. Oct. 14, 1999) (enjoining a public entity to bring its bathroom into compliance with the ADA within twenty days, reasoning in part that the entity was “long overdue in bringing [the bathroom] within compliance of the ADA,” because the modification had not been made under the time-period afforded by 28 C.F.R. § 35.150(c)). Here too, the Court should adopt a remedy that ensures that the City remediates its ADA violations expeditiously.

      3. Priority
      4. As noted in the Court’s summary judgment order, the City developed a “Prioritization Tool” around 2011 to determine, based on the characteristics of a given intersection, where APS installation should be prioritized. Order at 8. The City’s proposed remedial plan would eliminate that system in favor of prioritizing zip codes with high population densities of individuals with vision-related disabilities and of facilities serving visually impaired clients. See City Rem. Plan at 3. Given that any remedial plan will likely be implemented over several years, prioritization remains key. Title II case law and regulations identify several considerations that may inform this priority and indicate that priorities should be developed in consultation with individuals with vision-related disabilities, whom the remedial plan is designed to benefit.

        To begin, consideration should be given to whether intersections are adjacent to important public facilities or services and places of public accommodation. In the analogous context of curb ramps, 28 C.F.R. § 35.150(d)(2) provides that when developing a long-term compliance plan, priority should be given to “walkways serving . . . State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.” 28 C.F.R. § 35.150(d)(2). In addition, consideration should be given to intersections that pose heightened safety concerns. See, e.g., Putnam,1995 WL 873734, at *11 (emphasizing that provision of facilities that are “less safe . . . constitutes . . . prohibited discrimination”). For example, intersections that utilize Leading Pedestrian Intervals and Exclusive Pedestrian Phases, which aim to increase pedestrian safety by creating an interval of time during which only pedestrians may enter an intersection, may disarm low-vision individuals of their primary mechanism for determining when it is safe to cross a street—the sound of traffic. Order at 13-14. Accordingly, installing APS at these intersections could be prioritized to mitigate that safety concern.

        Finally, to the extent cost is a consideration, see Am. Council of the Blind, 878 F.3d at 367, the City may be able to defray costs through federal funding or take advantage of otherwise ongoing construction activity to reduce installation costs.

        As the City develops priorities for a remedial plan, it may benefit from input from with individuals with vision-related disabilities and organizations representing those individuals. In a similar context, the Department of Justice’s ADA regulations provide that when a public entity is evaluating its services, policies, and practices for compliance with the ADA, it should “provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the . . . process by submitting comments.” 28 C.F.R. § 35.105(b). If practical here, allowing individuals with vision-related disabilities to have initial and ongoing input into the process for developing remedial priorities would ensure that the community that the remedial plan is designed to benefit is heard.

CONCLUSION

“[P]roviding meaningful access to individuals with disabilities in a large, crowded city with inaccessible facilities is not an easy task that lends itself to simple or singular solutions.” Disabled in Action, 752 F.3d at 206. As outlined above, Title II, the Department of Justice’s implementing regulations, and precedent support implementation of a plan that ensures individuals with vision-related disabilities can travel within the pedestrian grid in a safe, timely, and integrated manner.

Respectfully submitted,
AUDREY STRAUSS
United States Attorney for the
Southern District of New York

By: /s/ Zachary Bannon
ZACHARY BANNON
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Telephone: (212) 637-2728
Email: Zachary.Bannon@usdoj.gov


1 Congress has authorized the Attorney General to send “any officer of the Department of Justice . . . to any . . . district in the United States to attend to the interests of the United States in a suit pending in a court of the United States.” 28 U.S.C. § 517; see Georges v. United Nations, 834 F.3d 88, 91 & n.10 (2d Cir. 2016).

2 “Because the standards imposed by Title II on public entities are generally equivalent to those of [the Rehabilitation Act],” this Statement of Interest will rely upon cases interpreting these statutes interchangeably. See Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016); see also 28 C.F.R. Part 35, App. B (“Because title II of the ADA essentially extends the antidiscrimination prohibition embodied in section 504 to all actions of State and local governments, the standards adopted in this part are generally the same as those required under section 504 . . . .”).

3 “Accessible pedestrian signals and detectors provide information in non-visual formats (such as audible tones, speech messages, and/or vibrating surfaces).” U.S. Dep’t of Transp,, Fed. Highway Admin., Manual on Uniform Traffic Control Devices for Streets and Highways § 4E.09 Accessible Pedestrian Signals and Detectors – General (2009 ed.) (the “MUTCD”), available at https://mutcd.fhwa.dot.gov/pdfs/2009/mutcd2009edition.pdf (last visited Mar. 13, 2021). The Federal Highway Administration’s MUTCD provides technical standards for the installation of APS at signalized intersections. See MUTCD § 4E.09-13.

4 28 C.F.R. § 35.150’s “readily accessible to and usable by” standard “is a term of art” that “contemplates a high degree of convenient accessibility, entailing accessibility of parking areas, accessible routes to and from the facility, accessible entrances, usable bathrooms and water fountains, accessibility of public and common use areas, and access to the goods, services, programs, facilities, accommodations and work areas available at the facility.” House Report No. 101-485, 1990 U.S.C.C.A.N. at 401.

5 In Title II litigation, courts use the terms “accommodation” and “modification” interchangeably. See McElwee v. County of Orange, 700 F.3d 635, 640 n.2 (2d Cir. 2012).

6 The one exception to the regulation’s three-year requirement is statutory and applies to intercity and commuter rail: “All stations in the intercity rail transportation system shall be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as soon as practicable, but in no event later than 20 years after July 26, 1990.” 42 U.S.C. § 12162(e)(2)(A). Congress was aware of the accessibility issues posed by the pedestrian grid when it passed the ADA, see House Report No. 101-485, 1990 U.S.C.C.A.N. at 367, but did not include a statutory provision providing a comparable time period for alterations to the grid.