Sacramento Sidewalk Case

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Sacramento settles sidewalk case, avoiding Supreme Court

June 27, 2003 -- The U.S. Supreme Court without comment rejected the appeal by Sacramento to overturn the Ninth Circuit ruling that city sidewalks were covered by the Americans with Disabilities Act of 1990 and therefore have to be accessible

The city of Sacramento just a few days earlier had agreed to settle the lawsuit brought by disabled activists over access to city sidewalks. Under the terms of the settlement agreement the city will assign 20 percent of its transportation funds for the next 30 years to improve sidewalks, crosswalks and curb ramps. The settlement also calls for the city to pay up to $795,000 in attorneys' fees, as well as $10,000 to each of the eight named plaintiffs.

The Sacramento City Council unanimously approved the settlement during a closed-door meeting. The case, known as Barden v. Sacramento, had worried activists nationwide who feared that, if the Supreme Court took the case, the Americans with Disabilities Act might be curtailed further.

Read story in Sacramento Bee

Sidewalks are covered by disabilities act, says White House atty

June 3, 2003 -- "Laying and maintaining a network of walkways, or sidewalks, for pedestrians to move about is one of the first and most elementary functions of a municipality," wrote U.S. Solicitor General Theodore B Olson, the White House attorney, urging the Supreme Court last week to deny Sacramento's request that the high court hear a case on whether "sidewalks" must be made accessible under the Americans with Disabilities Act.

"Providing and upkeeping a network of walkways for pedestrians to get around town is a quintessential, not to mention ages old, government service."

In March, the high court had sought the administration's views on the issue. Sacramento, joined by over 200 other cities, asked the Court late last year to hear its appeal in a case it had lost at the Ninth Circuit, in which disabled individuals had sued the city for failing to install curb ramps or to maintain them, saying it refused to remove obstacles --benches, sings, wires protruding from walkways -- that made sidewalks impassable or dangerous, and that it had refused to even develop the "transition plan" required the law. The case, which has been in litigation for years, is now close to settlement. The Court has not yet announced whether it will take the case.

In the brief, the Solicitor General argued that the Ninth Circuit opinion was "correctly decided," and that it did not conflict with any prior Supreme Court decisions or opinions in other circuits -- thus, there was no reason for the high court to hear the case.

Activists who have been watching the case, called Barden v. Sacramento, expressed hope that, based on the Justice Department's brief, the Court would now refuse the case, keeping the ADA Title 2 out of the high court for now. A number of advocates praised the administration for its views on the matter -- that "sidewalks are for everyone."

In the lawsuit and in the appeal to the Supreme Court, Sacramento and other cities argue that sidewalks are not a "service" of governments as defined by the ADA.

Not true, said the Justice Dept.; ADA regulations clearly provide "that newly constructed or altered sidewalks and intersections must include curb ramps" -- citing 28 C.F.R. 35.151(e). And while this may indeed incur costs for cities, it said, "in enacting the ADA, Congress made a determination that the societal benefits of promoting community access to those with disabilities outweigh the societal costs of complying with the ADA."

Earlier, Lex Frieden, head of the National Council on Disability, a government agency, had urged Olson to advise the Court that the ADA covered sidewalks. Frieden added, "Substantial federal funding is available for making sidewalks accessible to people with disabilities," citing The Transportation Equity Act for the 21st Century (TEA-21), which authorized the use of Surface Transportation Program funds for the installation of "pedestrian walkways," and the modification of public sidewalks to comply with the Americans with Disabilities Act.

"In addition," said Frieden, "public responsibility for making sidewalks designed and built with public funds accessible to people with disabilities did not begin with the ADA or the Rehabilitation Act of 1973. Technical guidance on making sidewalks accessible has been available since 1961."

Read Frieden's letter