June 10, 2019
In the hallways of the court at 60 Centre St. on June 5, lawyers for disability rights activists declared an accessibility hearing “an unqualified success.”
Disability activists had brought an anti-discrimination lawsuit against the Metropolitan Transportation Authority to require it to install elevators in every New York City subway station. Currently, only about 20 percent of the city’s subway stations have at least one elevator. Even fewer if you consider that many subway stations have multiple subway lines, all of which are not accessible by elevator and a high percentage of MTA elevators are out of order at any one time.
The MTA had filed a motion to dismiss the lawsuit, which the judge denied, making it possible for the suit to go forward. One of the plaintiffs, Susan Dooha, executive director of the Center for Independence of the Disabled, declared: “We’re thrilled. We’re vindicated. We expect to proceed to trial, and we expect to win. The judge was well-founded in his legal decisions about why our case survives those efforts to dismiss it.”
‘Elevators now, remember Malaysia Goodson!’
Protesters carried signs reading “Elevators now” as well as “Remember Malaysia Goodson,” the African-American woman who died Jan. 28 in a fall down subway stairs while carrying her baby in a stroller. The station did not have an elevator.
“You carry a stroller down the stairs, you never think, ‘I might die,’” said Diana Limongi, host of the Parenting & Politics podcast. “My God, how many times have I done this?” (WPIX-TV, June 5)
Emily Seelenfrend, an attorney for the plaintiffs and a wheelchair user, said the ruling sent a strong message. “This issue is no different than saying it’s illegal to prohibit women or people of color from access to public transportation.” The judge’s ruling, she said, is “the same thing for people with disabilities.”
A rally prior to the court hearing included a speaker from each disability group present. Speeches were interspersed with chanting, creating a very vocal, determined atmosphere. Speakers included Monica Bartley, Center for Independence of the Disabled, New York; Jessica De La Rosa, Brooklyn Center for Independence of the Disabled; Jessica Murray and Sasha Blair-Goldensohn, Rise and Resist Elevator Action Group; Jean Ryan, Disabled in Action; Colin Wright, Transit Center; Mary Kaessinger People’s MTA; Terrea Mitchell, People’s Power Assemblies; Edward Yood, Communications Workers of America, Local 1180 Committee on People with Disabilities; and Diana Limongi Gabriele, Up-Stand and Parenting and Politics. A video of the rally can be accessed at youtu.be/7F8q0n8kOQY . Or scroll below.
Opponents of gentrification in Chinatown and the Lower East Side were demonstrating outside the courthouse at the same time. The Coalition to Protect Chinatown and the LES packed a separate courtroom the same morning to fight the construction of four illegal megatowers in the downtown Two Bridges neighborhood between the Manhattan and Brooklyn Bridges (peoplefirstnyc.org). People’s MTA organizer Tony Murphy invited them to join us, which they did for a time. We let them know we are against gentrification, too.
A historic connection exists between the struggle of Chinese Americans and disability rights. In the 1974 U.S. Supreme Court civil rights decision of Lau v. Nichols, Chinese-American students in San Francisco won the right to access education in their own language. This civil rights case broke new legal ground, and it also helped lay the basis for access and reasonable accommodation rights granted to people with disabilities, as codified in the Americans with Disabilities Act of 1990. New York City’s Chinatown is also the only community that holds a block party every July to commemorate the birthday of the Americans with Disabilities Act.
‘Without struggle, there is no progress’
Rally participants, including many wheelchair users, then packed into the courtroom at 10 a.m. There was barely room to move.
Judge Shlomo Hagler identified four points of law that had to be addressed. The judge had clearly prepared for the hearing, citing at least three precedents on each point and indicating he had more at his fingertips if needed.
First was the statute of limitations. The MTA argued that the statute of limitations had passed, and that if disabled people wanted to bring a suit they should have done it back in the early 1900s when the subways were first built! Judge Hagler said that every time a person is discriminated against, the statute starts again.
Second was jurisdiction. Does the court have the authority to rule in the matter? Judge Hagler said it clearly does: It is an anti-discrimination suit, which the court can decide.
The third and fourth points involved “preemption” and the role of the city. The MTA argued that it is a state agency and that state law preempts New York City’s Human Rights Law. The judge ruled that the two laws are not in conflict.
James Kerwin, an attorney for the MTA, maintained that the Eastern Paralyzed Veterans Association reached an agreement in 1983 with the MTA to make 100 stations accessible and that the New York State Legislature had concurred in legal agreements that these stations be made accessible by July 2020. The judge countered that this didn’t mean they couldn’t make many more than 100 accessible.
Judge Hagler rejected the MTA’s contention that state law had supremacy over city law: “There has never been a decision from any court that has preempted the New York City Human Rights Law in the area of discrimination,” Hagler said. “There can never be a situation where the state would license any agency to discriminate against any individual.”
He cited a court decision in which the so-called Patrolmen’s Benevolent Association unsuccessfully tried to stop the NYC Council and the City of New York from curtailing police racial profiling and stop-and-frisk harassment of Black and Brown New Yorkers by claiming that New York state law sanctioned such profiling and harassment and precluded intervention by the city to prevent it.
Incidentally, many disability groups are currently suing the New York Police Department because many of the police precincts to which the public is “invited” to monthly meetings to discuss community concerns are not accessible for wheelchair users.
On the fourth point, lawyers for the city argued the city has no control over the MTA and while the city owns the subway system, it leases it to the state and therefore has no control over it.
Judge Hagler said it could be better clarified through the “discovery” process exactly how much control the city has or doesn’t have to make all the subways accessible. But, he reiterated, the city still had no license to discriminate by denying subway accessibility. He ruled that the MTA’s motion to dismiss was denied.
The case will resume Aug. 1. “Sometimes these cases can take years,” Susan Dooha said, speaking from experience. Her organization has fought and won disability cases in the past. She said she was convinced that they’ll prevail in this case, even if it takes a long time.
At a memorial meeting for Paula Wolff, a beloved and militant wheelchair user activist, recently deceased, Dooha warned that this fight is not over and recalled the advice of the great Frederick Douglass: “If there is no struggle, there is no progress.”
