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Stumbling Blocks Before the Blind, or Mass Transit as a Civil Rights Issue, by Michael Lewyn

by Michael Lewyn
 

Introduction

The Bible states, "Thou shalt not . . . put a stumbling block before the blind."  (Leviticus 19:14.)  But American government at all levels has done exactly that, by making jobs and other opportunities unavailable to millions of blind people and other Americans who, due to physical disability, age, youth or economic hardship, do not drive cars.  Government at all levels has built highways to develop suburbs and other newly developed areas, thereby redistributing jobs, housing and tax bases to those areas, without providing public transit so that carless Americans can reach suburban jobs.   By doing so, government has kept the blind and other carless Americans away from employment and shopping opportunities. 

The federal government has sought to better the lot of the disabled through the Americans with Disabilities Act, enacted in 1990.  The ADA requires employers and owners of public accommodations to "reasonably accommodate" disabled employees, and requires that bus and rail service be made fully accessible to the disabled.  Because the ADA imposed a costly mandate upon bus and rail systems but did not provide funds with which to implement that mandate, it has forced cutbacks in bus service for everyone (including disabled people who already used public transit) and has thus been counterproductive to some extent.

This article describes in greater detail how government has punished transit-dependent Americans, and suggests that a "second ADA" be passed in order to remedy the defects of the first.  Specifically, I propose a variety of reforms to ensure that disabled Americans (and indeed, all Americans) have at least some opportunity to get to work without driving.

The American Disabilities Act...

The Scope of the Problem

It is unclear exactly how many Americans have some need for public transit.  In 1990, there were 163 million Americans with drivers licenses, but 183 million Americans over the age of 16 and 222 million over 5.  So even if one assumes (incorrectly) that every person with a drivers' license owns a car, at least 20 million Americans old enough to drive don't.  Because some carless Americans carry a drivers' license for identification, the actual number is larger (I know because for several years I have been one of them).   It is also not clear how many of these carless Americans do not drive because of a physical disability (as opposed to other reasons such as economics).  According to a 1998 Harris survey, 30 percent of disabled Americans reported inadequate transportation as a problem.  Economist Robert O'Quinn estimated that there are hundreds of thousands of blind Americans, 7.9 million Americans with some form of hearing impairment, and 720,000 wheelchair-bound Americans.  

Transportation is not merely an issue of disability rights, but also a racial issue to some extent.  African-Americans, for example, are less likely to own cars than whites.  In the Buffalo, New York, metropolitan area, for example, nearly half of all African-American households, as opposed to 13 percent of white households, lack cars.

Transportation is not only....

Why is Transportation a Civil Rights Issue?

Before addressing more technical issues in detail, I would like to address a question of principle: What does transportation have to do with the civil rights of the disabled (or for that matter, of ethnic minorities, who tend to be disproportionately carless)?

Transportation is a civil rights issue in two ways.  First, government has a moral duty not to make life more difficult for the most vulnerable among us, such as the disabled.  As shown below, government has spent taxpayers' money building highways into the hinterlands for the convenience of drivers, thereby promoting  the relocation of development to areas with minimal or nonexistent public transit.  But government has spent little or no money to make those areas accessible to non-drivers. Thus, the government has discriminated against transit-dependent individuals and groups.  In other words, if the government makes area X accessible to drivers, it should also make area X accessible to non-drivers.

Second, relocation to transit-free areas essentially allows employers to evade civil rights laws.  If X Corp. wants to avoid applications from the disabled or minorities, it can move to a transit-free area that many disabled people and many minorities (i.e., those without cars) cannot reach.  By doing so, it might not totally eliminate its "problem" but can at least minimize its exposure to "undesirables."  Indeed, there is some evidence that some suburbs resist public transit in order to keep inner-city minorities out of their neighborhoods.  For example, Gwinnett County, a booming suburb of Atlanta, voted to keep out Atlanta's public transit system MARTA, and much of the opposition was explicitly based upon keeping out Atlantans (two-thirds of whom are African-American).

The government has discriminated....

Government vs. the Transit-Dependent

Americans like to believe that their society has become more tolerant and inclusive over time.  But for the transit-dependent, disabled or otherwise, life has become more difficult over the past several decades, as jobs migrate from transit-oriented city centers to transit-free suburbs.  For example, William Julius Wilson has written that between 1947 and 1972, central cities of the 33 most populous metropolitan areas lost 880,000 manufacturing jobs and 867,000 retail-wholesale jobs, while their adjacent suburbs gained jobs.  Generally, transit service has not kept pace with the suburbanization of employment, especially in smaller cities. 

Some would argue that the growth of auto dependency is a natural result of the free market at work.  Not so!  In fact, government at all levels has promoted auto dependency and therefore punished transit users in several possible ways, a few of which are discussed below.

Funding the competition

For over 80 years, the federal government has favored highways over public transit. In 1916, the Federal Road Act offered funds to states that organized highway departments.  In the 1950s, the federal government massively expanded road capacity by building the Interstate Highway system.  By contrast, the federal government did not subsidize transit at all until 1962.  But even today, federal highway spending exceeds federal transit spending by about a 5 to 1 margin.  And in recent decades, the gap has grown.  Since 1980, federal highway spending has continued to grow, while federal transit spending (adjusted for inflation) has been almost cut in half.

Highway spending has made life more difficult for transit-dependent Americans because highways make it more convenient for the affluent to move to transit-free suburbs and other areas far from traditional urban centers.  Jobs eventually followed the affluent to those areas, which in turn reduced the number of jobs available to the transit-dependent. 

Miscellaneous means of driving people into suburbia

The highway system is not the only government policy that encouraged migration to transit-free suburbia.  In fact, government has driven Americans into the suburbs (so to speak) in ways that have nothing to do with transportation.  To name a few:

  • Until the 1970s, the Federal Housing Administration guaranteed loans primarily to suburban (as opposed to urban) home buyers.  For example, the FHA would refuse to guarantee loans in racially integrated areas, and would favor new homes (which tended to be in newly developed suburban areas) over older urban homes.
     
  •  The federal government has heavily subsidized low-income housing in cities.  Indeed, federal subsidies are so extensive that in some cities, such as Buffalo (where I live) virtually every neighborhood is within a mile or two of a low-income housing project.  By contrast, relatively few suburbs have public housing.  As a result, cities have a lot of poor people, which translates into higher crime and tax bases the size of phone booths, both of which encourage middle-class people to move to suburbs.
     
  • School desegregation.  In the name of desegregation, the federal judiciary has for several decades decreed that urban schools must be racially integrated.  But the courts have imposed no similar obligations upon suburban schools.  Minorities tend to be poorer than other Americans, and many middle-class Americans tend to prefer homogeneously middle-class schools (which quickly develop reputations as "good" schools).  As a result, desegregation has led first to "white flight" from cities, and more recently to "black middle-class flight." 

Unfunded mandates

The federal government has also attacked transit users directly, through statutes requiring transit authorities to undertake activities requiring additional funding, without providing that additional funding.  Transit authorities are then required to raise fares and cut service in order to generate such money.  For example, federal laws govern labor relations issues, drug testing, and other matters facing transit providers.  Such indirect regulation imposes additional costs upon transit providers (and thus upon transit users).

Especially noteworthy are the requirements of the ADA itself.  The ADA requires that buses and trains be transit accessible, and that persons incapable of using traditional public transit be provided with special door-to-door "paratransit" service.  These changes have, according to the American Public Transit Association, cost transit authorities (and thus transit users) $1 billion per year. 

If the federal government increased spending on public transit at the same time it was imposing ADA costs upon them, the transit-dependent disabled (and indeed, everyone else) would benefit from the ADA.  But instead, the federal government cut spending on mass transit operations by 40 percent between 1990 (when the ADA was enacted) and 1996 alone, causing a predictable round of service cuts and fare hikes.

On balance, the ADA has helped wheelchair users (who could not use most transit vehicles before the ADA was passed).  But its impact on disabled people who could use transit (such as the blind) and on other transit-dependent Americans has been less positive. 

If spending on public transit....

Solutions

Government at all levels has been anything but fair to transit-dependent Americans.  It has, through a variety of techniques, driven drivers further and further into suburbs, but has not always made suburban jobs accessible to transit-dependent Americans.   Simple justice dictates that government make up for its decades of discrimination.  Can it do so without bankrupting the public fisc?  Yes, in several ways.

At a minimum...

At a minimum, governments should no longer be allowed to worsen the woes of the transit-dependent by reducing bus and train service.  After all, governments rarely tear down highways or narrow roads, so why should they be allowed to "tear down" bus routes?  Accordingly, I propose the following statute: "No state or local agency receiving federal funds shall reduce bus or train service in any way, or reduce maintenance to subsidize service, or raise fares above level X (say, the rate of inflation plus some appropriate multiplier).  Transit users may take legal action to enforce this provision."  (States or counties could enact similar laws by substituting "state" or "county" for "federal").

This statute would ensure that transit users are at least able to rely upon current levels of service.  Moreover, such a statue would be relatively cheap because it requires only that current levels of service be maintained.  Minimum levels also ensure that public transit does not become a whipping boy whenever a budget surplus disappears.  In the alternative, public transit cutbacks could be allowed only where significant highway cutbacks were allowed (say, reductions in spending or narrowing of roads).

A "no cutbacks" mandate would have the added benefit of promoting neighborhood stability.  Just as some people or businesses move to an area in order to take advantage of a nearby highway, a person or business might be more likely to move near a transit stop if it was certain that transit service would not be eviscerated the next time politicians got hungry for money.

No roads without transit

In recent decades, the major reduction to Americans' transit access has not been through cutbacks in transit, but rather through highway spending by Big Government—spending that shoveled money to suburban drivers without helping transit-dependent Americans reach newly created suburbs. 

In the future, America could avoid such fiascos by enacting laws tying road improvements to transit improvements.  For example, surface highway or similar legislation could be amended to provide that no jurisdiction receiving federal highway funds could widen a road, create a new road, or create a new highway interchange unless areas served by such projects received regular transit service (say, once every half an hour until midnight). 

Such language may not increase government spending by one cent.  If local governments did not want to spend money on transit, they wouldn't spend money on road improvements, either.  If that happened, transit users would benefit (because fewer jobs would be relocated to transit-free suburbs) and the taxpayers would be better off as well.  And if total highway funding remained constant, motorists could benefit if money once devoted to new roads or road widening was devoted instead to maintenance of existing roads and transit.

Sidewalks everywhere

Of course, a bus stop will not help the transit-dependent unless they can walk or otherwise have access to it.  And to do that they need sidewalks.  Sidewalks should be required at all new building, planned-unit development, and subdivision construction, and sidewalk placement programs for existing areas should be provided, as well.

Going all the way: Universal Employment Transit Access (UETA)

The Case for UETA

If we are willing to impose additional costs on taxpayers or businesses, we could make every significant employer in America transit-accessible.  Here, we can reason by analogy to the ADA.  The ADA requires employers with over 15 employees to reasonably accommodate the disabled.  Why not require employers to reasonably accommodate not only the disabled, but millions of other transit-dependent Americans by being transit-accessible?  Specifically, an "ADA II" could require that, "Every employer within a metropolitan area with over 15 employees must be accessible by public transit that reaches the workplace X times per hour until two hours following the end of the work day or midnight, whichever is earlier."  The advantage of this statute seems obvious—it would eliminate the problem of total inaccessibility to transit (though not, admittedly, the problem of three-hour commutes by people who have to change buses or trains). 

There is reason to believe that this "universal employment transit access" statute, or UETA, might be affordable even if the public sector shouldered its entire cost.  In private correspondence with the American Public Transit Association, it was suggested to me that if once-an-hour service to all metro area jobs was mandated, it would cost $1 billion—no more than the existing costs of the ADA;  less than 1 percent of the total combined transportation budgets for all local, state, and federal entities;  and less than 5 percent of the federal transportation budget.   More frequent service would, of course, cost more.  

UETA might well be more costly than $1 billion or $2 billion dollars per year, in which case it might be undesirable.  On the other hand, universal transit access would have a variety of benefits, including:

  • By making it easier for poor transit users (as well as the disabled) to reach suburban jobs, UETA would reduce poverty and welfare dependency.
     
  • By making life easier for all transit users (as opposed to the transit-dependent alone), UETA would increase transit ridership,  thereby reducing traffic congestion and air pollution.

The Case Against

Even if, as I would like to believe, UETA would only cost a small amount of money, arguments will be raised against it.

It could be argued, for example, that paratransit is more efficient.  Yet existing paratransit frequently works only in times and places served by regular mass transit, and to be comparable to UETA would require state and local governments to bring paratransit to every job within a metro area.  Paratransit is questionable in other ways, as well.  If paratransit is more efficient than buses, why has Congress required that buses must also be wheelchair- accessbile?  And public transit benefits the public as a whole rather than merely the disabled, because it benefits people too young or too old to drive, and economically deprived transit riders (who may use bus, train, and other forms of transit, but not paratransit), and benefits the public as a whole by reducing traffic congestion, air pollution, and welfare dependency.  

Of course, there are broader arguments against public transit spending as a whole.  For example, a common argument is that transit "doesn't pay for itself."  Since few types of government spending pass this test, this argument in and of itself doesn't hold water.  Even highway spending does not pay for itself, because (a) state and local highway spending exceeds fuel tax revenues and (b) drivers are subsidized in a variety of ways not reflected in highway spending.  General tax revenues, for instance, pay for driving-related costs such as military spending to protect Persian Gulf oil, air pollution abatement, and the like.

Another argument against public transit is that public transit is "inefficient" because Americans are in love with their cars.  But in fact where transit service is extensive people will ride.  For example, in New York City a majority of commuters use buses and trains to get to work.  In cities with in-between levels of service (like Buffalo and St. Louis), 10-15 percent of commuters take transit to work, and in cities with very little service ridership is much less.  Moreover, the number of people who need transit service is actually higher than transit ridership in many areas.  In the city of Buffalo only 13 percent of people use transit to get to work, yet a stunning one-third of households don't have a car. Arguably, UTEA might lure some of these people away from lives of unemployment and into the workplace.

Universal transit access....

Conclusion

The issues surrounding equitable transit access for the transit-dependent are about simple justice.  Governments have constructed roads so healthy, middle-class drivers can reach the emerging job centers created by those roads.  But in many parts of America, those same governments do not want to bring buses or trains to those areas, so the blind (and the disabled, the poor, the young, and the old) cannot reach them.  Is that fair?  Or is government just putting stumbling blocks before the blind? 

  

Michael Lewyn is an attorney in Buffalo, New York.  He writes a monthly column focusing on urban affairs for Buffalo Beat, a local weekly, and has written on urban and transportation issues for a variety of newspapers and magazines, including The Washington Post, St. Louis Post-Dispatch, Buffalo News, Cleveland State Law Review, and Urban Lawyer
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