Abstract 

Excerpted From: Henry Goldberg, A Promise Deferred: An Examination of Accessibility's Intersection with Race/ethnicity in the Philadelphia Transit System and the New York City Subway, 54 Columbia Human Rights Law Review 780 (Spring, 2023) (236 Footnotes) (Full Document)

Ironically, but perhaps not surprisingly, arguably the most public attention paid to the New York City (N.Y.C.) subway system's inaccessibility came from a tragic accident involving a seemingly able-bodied individual. On January 28, 2019, Malaysia Goodson, aged twenty-two, died in an N.Y.C. subway station. She had entered the Seventh Avenue station in midtown Manhattan with her one-year-old daughter, pushing the baby in a stroller, when she encountered a familiar problem: there was no elevator for her to use. She picked up the stroller and tried to carry it with her as she walked down the stairs--but she ended up falling down them instead. She was found unconscious and was declared dead that evening. Articles streamed in from as far as London noting and often questioning the lack of accessibility on public transit, both in N.Y.C. and elsewhere. Politicians and even N.Y.C.'s Metropolitan Transportation Authority (MTA), which itself runs the city's public transportation services (including the subway), called for accessibility improvements. However, two voices were missing from the fray: neither the MTA's acting chair nor the N.Y.C. Transit Authority's president ever called Ms. Goodson's family to offer condolences. On January 30, two days after the incident, the city's chief medical examiner stated that Ms. Goodson's death was likely due to a pre-existing medical condition--and not, as many had naturally assumed, due to trauma from the fall; this finding was made official about 4.5 months later.

Now, over three years after Ms. Goodson's tragic fall, not that much has changed. Back then, roughly 120 stations were ADAaccessible; today, about 131 are. And while the MTA has made substantial promises about its plans to update its network to comply with the Americans with Disabilities Act (ADA), and has even reached a tentative settlement in a lawsuit on the matter, it remains to be seen whether or not they will be able to stay on schedule with the renovations.

When Congress passed the ADA in 1990, Pat Wright, Executive Director of the Disability Rights Education and Defense Fund, was quoted as saying, "No longer will people with disabilities be second-class citizens." Over thirty years after the ADA mandated that public transit be made as accessible as possible for people with disabilities, one cannot help but wonder the extent to which his statement was wishful thinking. Perhaps alternatively, another question worth considering is: which Americans did the ADA elevate out of second-class citizenship?

The truth of the matter is this: the ADA undoubtedly created much-needed protections for people with disabilities, but there are still vast obstacles that people with disabilities are forced to grapple with, including when it comes to accessibility. The Southeastern Pennsylvania Transportation Authority (SEPTA) (in Philadelphia, Pennsylvania) and the MTA (in N.Y.C.), have both been particularly slow in the "accessibilization" of their stations and services. For example, barely half of Philadelphia's subway and commuter rail stations are fully accessible despite the fact that the Philadelphia metropolitan area has the highest rate of disability (13.2%) out of the nation's ten biggest metro areas. Meanwhile, in N.Y.C., depending on the methodology of counting stations, 24-28% of subway stations are ADA-compliant.

Of course, people with disabilities are not the only ones who have long been excluded from public transit systems in the United States: people of color--particularly Black people--have also long been largely denied equal access to public transportation. The fact that discrimination has long been so prevalent in public transit thus merits the question: is the accessibilization of stations being done in a manner that is racially and ethnically equitable? Thanks to the federal infrastructure bill passed in 2021, the MTA is expected to receive over $10 billion in new federal funding, and SEPTA is expected to receive $540 million. Given this influx in capital, this is a critical moment for determining the future of these agencies' accessibilization efforts. Thus, it is especially important now that steps are taken to ensure that accessibilization is conducted in a racially and ethnically equitable manner.

This Note employs an empirical analysis to attempt to provide an answer to this question, relying on 2019 American Community Survey (ACS) data combined with geospatial data of the rail and tram stops in Philadelphia and the subway stations in N.Y.C. The findings suggest that there is a disparity in accessibility between and/or ethnic groups in both Philadelphia and N.Y.C. In Philadelphia, Black residents appear to have reduced access to ADA-compliant transit options, and in N.Y.C., Latine residents and, particularly, Afro-Latine residents have reduced access to accessible transit. The ideal solution for this would be for the Federal Transit Administration (FTA) to include specific measures combating this problem in its forthcoming revised document of binding Title VI guidance (the "Title VI Circular" or "Circular"). However, it is assumed that that will not occur. Thus, the viability of an administrative complaint on this matter is discussed, and the conclusion reached is that, relying on the data and analysis in this Note, there is likely a feasible Title VI disparate impact claim regarding the accessibilization of the Philadelphia transit system and the N.Y.C. subway.

Part I describes the relevant federal laws regarding racial and ethnic equity and the relevant federal, state, and local laws governing accessibility. It then delves into the important social issues around the intersection of race/ethnicity, disability, and transit before touching on the current and future states of accessibility in the Philadelphia and N.Y.C. transit systems. Part II discusses the sources of the data, the variables employed, and the hypotheses made, as well as the various tactics used to organize and clean the data for analysis. Part III discusses the results of that analysis and some of the results' implications for accessibility and racial equity. Finally, Part IV discusses the potential solutions to this problem, such as the inclusion of particular provisions in the Circular currently being revised by the FTA and, failing that route, an administrative complaint alleging violations of the already-existing FTA regulations around Title VI.

[. . .]

Thus, the data conclusively shows that there is a substantial and statistically significant disparate impact in the way that accessibilization has been conducted in the Philadelphia and N.Y.C. transit systems. Regardless of whether any intentionality existed, there is at least a significant disparate impact. For a number of reasons, including, for example, spatial constraints and the reluctance of the MTA when it comes to complying voluntarily with federal and local laws, federal action is necessary to address this problem. The ideal response would be for the FTA to incorporate in its revised Circular a number of changes combating this effect, including clarifying the existing equality directive on facility equity to more explicitly include accessibilization efforts. But given the FTA's fairly strong history of enforcement recently and the pro-enforcement posture expressed in its Federal Register notice, a good alternative solution would be to instead file an administrative complaint alleging that the order in which stations and facilities were accessibilized constituted a violation of the FTA's Title VI regulations.

Justin Dart, Jr., described the ADA as "a promise to be kept." But as this Note has shown, Philadelphia and N.Y.C. have often deferred and denied that promise for certain racial and ethnic minorities-- whether intentionally or not--for over thirty years. SEPTA and the MTA have had more than ample opportunity to address this problem on their own, and they have failed to do so. The federal government must tighten its Title VI regulations to ensure that moving forward, the rights that the ADA promised all Americans can truly become rights for all.

J.D. Candidate, 2023, Columbia Law School; B.A., 2020, Vanderbilt University.