Read Laura Hershey’s letter to Mayor Wellington Webb about his decision to support Sacramento’s anti-ADA position
I sent the following letter to Denver Mayor Wellington Webb, to express my objections to his Administration’s decision to sign onto an amicus brief in the case of Barden v. City of Sacramento. In that case, Sacramento is asking the U.S. Supreme Court to declare that Title II of the Americans with Disabilities Act does not require local governments to make public streets and sidewalks accessible.
Laura Hershey
1466 South Lincoln Street
Denver, Colorado 80210
phone: 303-733-5228
fax: 303-733-5228
January 31, 2003
Mayor Wellington E. Webb
1437 Bannock Street, Suite 350
Denver, Colorado 80202
via email: mayorden@ci.denver.co.us
Dear Mayor Webb:
I am writing to you as a citizen of Denver, a disabled person who uses a wheelchair, and as a member of the Colorado Cross-Disability Coalition (CCDC), to ask you to take immediate action to withdraw the City and County of Denver's name from an amicus brief filed in the case of Barden v. City of Sacramento. Denver is on the wrong side of this case. Please act quickly to undo this shameful decision.
In this case, several individuals with disabilities including people who use wheelchairs sued the City of Sacramento for failure to provide adequate access to streets and sidewalks, in compliance with Title II of the Americans with Disabilities Act (ADA). Sacramento argued in district court that public city sidewalks are not "a service, program, or activity" of local governments, and are therefore not subject to the ADA's accessibility requirements. On appeal, the Ninth Circuit Court of Appeals ruled that public city sidewalks are indeed covered by the ADA. Now the City of Sacramento has petitioned the United States Supreme Court to decide this case. The Supreme Court has not yet agreed to hear the case, but Sacramento is it already preparing its amicus curiae brief, and asking other local government entities to lend their support to its outrageous assault on our civil rights.
I was shocked yesterday to learn that Denver has signed on to Sacramento's amicus brief TWICE -- once as the City of Denver, and once as the County of Denver.
Access to public streets and sidewalks is a fundamental component of true freedom and equal participation for citizens with disabilities. Disabled people have the same desires as other citizens to work, pay taxes, go to school, raise families, patronize local businesses, do volunteer work, participate in community activities, and vote. If we cannot travel down sidewalks or cross the streets safely, then we cannot do any of these things. Unramped curbs, narrow walkways, and unrepaired sidewalks are barriers which violate our right to equal participation in society. Civil rights violations like these are the reason that Congress passed the Americans with Disabilities Act in the first place. It is astonishing to me that some cities are now trying trying to get the Supreme Court to strike down a key piece of this important civil rights legislation.
I hope to talk with you soon about withdrawing Denver's support from Sacramento's anti-ADA position. Please call me. My contact information is above.
Respectfully,
Laura Hershey
LauraHershey@cripcommentary.com
cc: Wayne Cauthen, Mayor's Chief of Staff
Julie Reiskin, Director, Colorado Cross-Disability Coalition
I received the following letter from Mayor Webb in response to my objections.
Wellington E. Webb
Mayor
City and County of Denver
Office of the Mayor
City and County Building
Denver, Colorado 80202-5390
Telephone: 720-865-9000
Fax: 720-865-9010
February 18, 2003
Ms. Julie Reiskin
Colorado Cross-Disability Coalition
655 Broadway, Suite 775
Denver, CO 80203
Ms. Laura Hershey
1466 South Lincoln Street
Denver, CO 80210
Re: Your letters of February 5 and February 11, 2003
Dear Ms. Reiskin and Ms. Hershey:
This letter is written in response to your concerns regarding Denver's participation as an amicus in the case of Barden v. City of Sacramento. Please be assured that Denver, as a strong supporter of the rights of disabled persons under the Americans with Disabilities Act (ADA), took this position not in opposition to the ADA, but only because we believe that the decision by the 9th Circuit would do much harm to the ADA compliance efforts of cities such as Denver. Denver is not alone in these concerns, since a number of other large American cities joined as amici in support of the City of Sacramento.
We believe the Americans with Disabilities Act ("ADA") must be grounded in reality and based upon what is realistically achievable in improving the environment in which persons with disabilities live and function.
For this reason Title II of the ADA distinguishes "programs, services and activities"of governments from "facilities" owned by governments. Denver and other cities have understood the ADA's definition of programs, services and activities to constitute things that a municipality does, such as operating recreational programs and collecting fines and taxes. The ADA requires that these programs and services must be readily accessible to disabled persons when viewed in their entirety. However, the requirement for access to programs and services does not require immediate physical reconstruction or alteration of all facilities. The ADA provides that access to programs and services can be achieved by alternative means such as redesigning equipment or reassigning program locations to accessible buildings. This reflects the intent of the ADA to achieve access to programs and services in a way that recognizes the fiscal constraints of local government.
Municipal facilities, on the other hand, must come into compliance with the ADA not by immediate construction or remodeling of all facilities but only when a public entity either materially alters an existing facility or constructs a new facility. This too reflects Congress's recognition that it would be fiscally impossible for local governments to immediately make all older facilities and infrastructure accessible to persons with disabilities. "Facility", as defined in the rules interpreting the ADA, clearly means physical property that the government owns, as opposed to programs, services and activities.
Barden V. City of Sacramento was first made known to Denver officials at the International Municipal Lawyers Association convention in Denver this summer. The case was reviewed by our City Attorney because of its holding that the sidewalks constitute programs, services and activities. A number of major American cities, including Denver, found this decision to be an anomaly, reflecting neither the intent of Congress nor the clear meaning of the ADA. Interpreting the ADA in the manner suggested by the 9th Circuit would present an impossible financial burden to American cities and could result in extensive litigation as to whether every sidewalk in America must be made immediately accessible.
I believe that Denver has a good record of responsiveness to the concerns of the disabled community, consistent with its financial constraints and obligations to provide other types of services to its taxpayers and citizens. Sidewalks throughout Denver are continually being upgraded and made accessible. The efforts of Denver's Commission for People with Disabilities and the ongoing modification of City facilities such as at Red Rocks Park, show that Denver is extremely sensitive to concerns and needs of the disabled community.
However, I believe that the 9th Circuit decision, if left unchallenged, would render it difficult if not impossible for cities to meaningfully comply with Title II of the ADA. As Mayor, I prefer to see Denver's limited financial resources spent on projects and actions that demonstrably benefit the disabled community through a reasonable approach under the ADA.
Thank you for expressing your concerns on this important matter.
Yours truly,
Wellington E. Webb
Mayor