This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings
JANE ANDERSEN: It is 10:30. We will get started. So welcome to the workshop about making pedestrian signals accessible. My name is Jane Andersen. I'm a trial attorney with the Department of Justice's Disability Rights Section. We are here today to talk about basically three cases that addressed the Americans with Disabilities Act and set goals for pedestrian signals and we're so grateful to be joined today by three people who have been involved in these cases.
First, I'm very happy to introduce you to Lori Scharff, who was the lead plaintiff in a lawsuit against Nassau County of Long Island. She also is involved in litigation against New York City in the capacity of the president of the American Council of the Blind of New York. I also have sitting to my left Madeleine Reichman, who is the senior staff attorney with disability rights advocates, DRA law firm for the City of Chicago, seeking accessible pedestrian signals. And my colleague, Matt Faiella is also here, an attorney in the Disability Rights Section.
Our objective for today is to discuss these cases and for you all to leave this workshop feeling empowered to be an effective advocate for widespread accessible pedestrian signals throughout cities and towns.
First today, we're going to hear from Lori to learn a little bit about her involvement in the Nassau County case, in the New York City case, and to understand why accessible pedestrian signals are so important and we're next going to hear from Matt and Maddie to hear about the relevant legal theories that were litigated and discuss some of the important remedies that courts have issued and that people are advocating for. So we have a lot of content to cover. I want to jump in, but ask the group here. We have six people, seven or eight people here. Maybe if we could get a show of hands, how many in this group are lawyers? And so five-ish, six. Six lawyers.
And for the nonlawyers in the group? I don't know, you can feel free to share sort of your interest in this group to make sure --
Dave: My name is Dave. I have general interest. I'm not a lawyer, but I'm a law office. I do everything that my spouse attorney does not do in her practitioner law office.
Katie: I'm Katie, I have total vision loss and I will be a lawyer if the bar goes well in July.
JANE ANDERSEN: And anybody else? You don't have to, but if anybody else wants to introduce themselves and what your interest is, we would love to hear that. If not, we'll jump right in.
All right. Jump right in then. Lori, again, thank you so much for joining us. I would love it if you could just tell a little bit about your background and specifically, you were the lead plaintiff in the lawsuit filed against Nassau County in New York. Can you tell us a bit of background of what led to that lawsuit?
LORI SCHARFF: Sure. Thank you, Jane. In the Nassau County case, what occurred was literally my neighbors informed me that they were drawing and painting lines on the sidewalk for some type of construction, which led me to check with the village and the village said oh, we don't know about this, but that's a good point. And the county had apparently submitted for state reimbursement for moving pedestrian poles and doing some major renovations along a large corridor in Nassau County. And it wound up that the Long Island Council of the Blind had three individuals who lived literally along that route.
And so we got in touch with the county and said you know look, we know that these intersections are undergoing reconstruction. One of the poles was being moved 20 feet away from the intersection up to what's legally required in the guidelines for a pedestrian-activated request, at an intersection. So that's a pretty big step right there. So we said okay, we would like to have these signals made accessible through an accessible pedestrian signal. So the purpose of an accessible pedestrian signal is to provide information that a sighted pedestrian obtains visually. Blind people typically, when they cross the street, use environmental cues and sound cues from traffic surge, things like that, to tell them when the pedestrian phase, which means the time when you should begin your crossing, starts on your street.
So you want to listen to your parallel traffic next to you and then, obviously, if your parallel traffic next to you is moving, nobody can go in front of you unless they're turning, but that's a whole ‘nother story. But we rely on the parallel traffic surge, but with modern intersections, that's really not feasible anymore. There is a lead pedestrian interval, which is when individuals waiting to cross the street receive anywhere from three to seven seconds' extra time to initiate their crossing before the parallel traffic begins moving and that's quite a bit of time.
It could mean that you've literally crossed half of a multilane street. So in these situations, when we went to the County, we said we really want these to be made accessible and they said oh, well nobody requested them. Well, we turned around and did a Freedom of Information request to the Department of Transportation and got back our own list from a few years earlier, which had requested them, which was kind of funny. And that was after we had to explain to the Freedom of Information officer who worked for the county Department of Transportation what an accessible pedestrian signal was.
So we worked through that case. We came to a settlement in that case, and implementation as a result of that settlement has occurred. With regards -- and in that case, let me just say that when we filed that case, we purposefully filed -- I am totally blind. One of the other individuals is low vision and the third individual is DeafBlind. So we went with a broad spectrum of needs to basically show it's not just people that are totally blind who need accessible pedestrian signals. If sighted people didn't need to have a walk sign, then they would leave them out, but obviously, they feel it's important that they know when they can see the traffic when it's time to cross. So when disability rights advocates approached us, and "us" being ACB of New York. I was president of the state affiliate at that time, and said, you know, is this something you would be interested in?
I, of course, said, yeah, definitely. And ACB of New York had formed a coalition of groups of people who are blind, including ACB of New York, NFB of New York City, as well as providers, vision providers within New York City, back in 2010. So when we filed that lawsuit, we had been working for many, many years with the New York City Department of Transportation, and while we felt that there was progress, I personally and ACB of New York did not feel like we had a strong commitment by the city, and so we were happy to participate in the case with disability rights advocates. And that was a very interesting process, as well.
JANE ANDERSEN: Definitely. Thank you so much. And I know we'll get into some of those details about that litigation and everybody's involvement. I was wondering. You talked a little bit about what information APS can provide to pedestrians. Can you walk us through all the steps and all the different information that APS can provide?
LORI SCHARFF: Sure. An accessible pedestrian signal, the pole if it's a push-button indicated signal, meaning you can activate it as a pedestrian, which I always recommend because typically, it gives you additional time during the walk phase to cross the street, those buttons will have a locater tone so that as a person who's blind with hearing, you're able to locate the button and push the button. Now, an accessible pedestrian signal conveys the same information to blind or DeafBlind people regarding the walk cycle. And the walk cycle is when you should initiate your crossing and when your crossing time has ended.
Some locales have countdown terms, and basically when a countdown timer is counting down, that's not when you enter the street basically. It's basically telling you you should be finishing your crossing at that point. But the accessible pedestrian signal gives you either auditory feedback through a rapid tick that tells you, when the rapid tick starts, that's when you step off the curb, or a tactile indicator by placing your hand on the arrow associated with the crossing that you wish to cross, there will be an arrow that, if installed correctly, should point and it should be -- if it's not a straight course, it should be pointing as an angle to follow the path of the crossing so the individual knows a little bit about the geometry of the intersection, that type of thing.
And again, it vibrates in a specific manner when you should initiate that crossing. And tactile indicators are not only good for people who are DeafBlind. Think about when somebody is mowing grass or weed whacking or there's large trucks sitting there idling and you may not be able to hear the accessible pedestrian signal effectively, or you want to doublecheck and have that reassurance. They really do serve a purpose.
JANE ANDERSEN: And you talked a little bit about how cities have changed the safety features that cities are implementing to help sighted pedestrians become more safe like leading pedestrian signals. That's when pedestrians have a head start before traffic starts crossing. Are there other modern traffic designs that you believe makes APS even more important than it was before?
LORI SCHARFF: Sure. The exclusive pedestrian phase, the EPP, also is a situation where you have the ability to basically cross an intersection in any direction, and as a person who's blind or DeafBlind, you don't get that information. Okay so you don't hear any traffic. There's traffic idling, but you don't necessarily -- you need to know when that actually starts. You need that initiation information, and it really is essential to have access to that information. Both in the Long Island cases and the New York case, that was our big thing is you know, we felt it was a right that we should have the same access as a sighted pedestrian.
When we really began working with New York City was when they went from the little pictures of the people walking and the people standing, from the words walk and don't walk, to the people walking, the visual images of people actually moving through the intersection. So we at that point had initiated quite a bit of discussion with the city and that's really what precipitated us pushing them on accessible pedestrian signals.
JANE ANDERSEN: Thank you so much. We'll come back to you, Lori. I appreciate all of that information. We're going to turn to discussion of the legal basis for the three cases that have been litigated in this space. There were three main legal theories that were advanced under the Americans with Disabilities Act, program accessibility, reasonable modifications and effective communications. Matt, if you can start telling us about program accessibility.
MATT FAIELLA: Sure, thanks, Jane. I'm Matt Faiella, trial attorney at DoJ. I'm white and wearing a blue suit, and tie and brown-gray hair. In terms of accessibility, we have a lot of lawyers in the room, probably a lot of folks know about it. So I'll try to be quick but give an overview. Under the ADA and the Rehabilitation Act, program accessibility can mean basically one of three things.
When you're looking at what we call an existing facility, you have to view a program, a service or activity of a public entity in its entirety to make sure that people with disabilities can readily access or use that program, service or activity and that they're not denied access or use of it because of an inaccessible facility. A facility is pretty broadly defined under the ADA. It can be equipment, it can be devices, it can be buildings. So basically, because a facility is inaccessible, people with disabilities cannot be denied access to the program, service or activity.
I think the quintessential example or one of the classic examples is a library building. So if you have a library building that is pre-existing, it predated when the ADA requirements became effective, and it has let's say a second floor and no elevator, the programs, services and activities of the library have to be accessible to people who maybe use a wheelchair and can't get to the second floor. That would mean making sure people can get books retrieved from the second floor without delay, that the library is going to have programming, like a speaker come in, that they do that on the first floor. Things like that. The building doesn't necessarily have to have an elevator installed if it's older.
But if it's newer, from January 26, 1992, onward, then it would need to have that elevator. It would need to automatically be accessible. So for new construction, and new facilities, you need to have them be automatically accessible. And similar for altered facilities. So there have been changes to the library, they've redone parts of the building, then that can trigger a requirement for them to have to install an elevator.
It's kind of program access at a very high level. And in those cases, about accessible pedestrian signals, Lori's case in Nassau County, the New York City case and in Chicago, all three courts have said that the program access requirement means that when you're looking at the city's pedestrian signal program, and access to the pedestrian grid, that you have to let people who are blind, DeafBlind, or have low vision, in order to give them equal access under the ADA or meaningful access under the Rehabilitation Act to that program, you have to have accessible pedestrian signals.
One caveat would be there's not a ton of clarity and we'll talk about it later about remedies, what percentage of accessible pedestrian signals are required at intersections that have regular visual pedestrian signals, but in New York City, the court said look, about 95% of signalized intersections did not have APS so the court easily determined that was a violation of program access. And in Chicago, they were even more egregious at 99% inaccessible, and so the court there said yeah, that's a violation of program accessibility. The courts also had said that even though there are those specific ADA standards they you must install APS, that didn't matter. The program access requirement to make sure people with disabilities can readily access and use the services, programs or activities of the public entity, I'm just pausing for a second because it looks like Lori is no longer on the screen -- so Lori, can you hear us?
>> If she is not reconnecting, maybe it's a problem with the Zoom link.
MATT FAIELLA: Thank you so much. Where was I? I'll just continue, because Lori has actually already heard this, we've practiced this before.
[Laughter]
And she's very familiar, a celebrity in my mind, Scharff v. Nassau County is the case from 2014 in this area. But essentially, the court said that even though there are no specific ADA standards, the same way there might be standards a door has to be a certain width, there's no ADA standards saying an intersection has to have a certain signal. We know people with disabilities are being denied accessibility because they can't meaningfully access the pedestrian grid and access this pedestrian signal program. There we are. Lori, can you hear us?
LORI SCHARFF: (Muted)
MATT FAIELLA: We can't hear you. You might be muted again.
LORI SCHARFF: Yes, I had to let the Labrador out. She was cantankerous.
MATT FAIELLA: I was just telling folks you've already heard a lot of this and you've established case law about access so you're not missing anything.
LORI SCHARFF: You're good.
MATT FAIELLA: But some really great case law there. Generally, under the ADA for the idea that you don't always need a specific standard under the ADA in order to enforce the ADA and require a public entity to give people more equal access. Another point is sort of very I would say -- not minutia, but it's nuance, the idea of the ADA requiring equal access and case law under the Rehabilitation Act which predates the ADA requiring meaningful access, and we're looking at a program at a citywide or entity-wide program, usually courts use the term meaningful access.
And some of these cases, though, in our Chicago case, we wanted the court and the court did recognize that equal access and meaningful access can be coexistent and really what you need to provide is equality of opportunity. And so like Lori pointed out, cities here have decided certain intersections are dangerous enough that they need to give visual signals to people who can see, so how on earth can they not give accessible pedestrian signals to people who are blind, DeafBlind, or have low vision. In order to provide that equality of opportunity, that information, we need to have APS installed. That's very high level.
ATTENDEE: Quick question. Lori mentioned a public records request for a request about -- was it just a factor that people had requested? Or was it where it was requested?
LORI SCHARFF: I was going to say we were trying to get as much work done and before we went to seek legal advice and we decided that we were going to do a Freedom of Information request and we were just a bunch of blind people. We had nobody that was in the legal area, but I said let's start with that and see what we got back, and we got back individual member requests as well as an organizational request that had been submitted to the county.
JANE ANDERSEN: And that's a great question. We are going to -- Maddie is going to talk about that next with respect to another claim and also remedies. I like exactly what you're thinking. It comes up in multiple areas in the litigation process. So yeah, we'll touch on that. Disability rights advocates, the New York city case and Chicago case and the accessibility claim Matt just talked about, they are also viewed under two different legal theories. Matt is going to share a little bit about that.
MADELEINE REICHMAN: I'm Maddie or Madeleine with Disability Rights Advocates. A brief visual description, I'm white, brown hair, wearing a white mask, and a blue and white shirt.
And I'm going to talk about the reasonable modifications or accommodations theory. I'll probably just use the word accommodations. They're kind of interchangeable. And this theory, it's very related to program access under both the ADA and Rehabilitation Act. But essentially, this theory provides that accommodations must be provided when needed to access a government service or program or activity when those accommodations are reasonable. And so there are two layers to reasonable accommodations. So on the one hand, public entities are required to proactively or affirmatively provide reasonable accommodations so that the program or service is readily accessible.
So in theory, you should not have to make the request and wait for the government to fill your request. You should be able to have that accommodation available so you can use the service. On the other hand, the public entity still is required to respond to individual accommodations requests. So in New York City and the Nassau County case, we don't actually have explicit rulings on the reasonable accommodations theory, but in Chicago, we did get a very nice holding, that Chicago overwhelmingly failed to reasonably accommodate blind and low-vision pedestrians. They overall failed to provide APS proactively. Like Matt said, there was less than 1% of all signalized intersections earlier in the case that had APS.
And Chicago also overwhelmingly failed to respond to individual accommodations requests. So according to the data that we got through discovery, we determined that only about six out of 38 requests made over the past 22 years had actually been filled and so a substantial number of requests for APS that were never responded to, the government never took any action on.
And, in fact, one of the earliest requests that we know about was from the early 2000s, and that request for APS is still pending, essentially. The government never responded to that, never installed APS at the requested intersection.
So I think that's all I'll say about the accommodation piece for now, unless there are more questions on that. So I can address our next theory, which is the effective communications theory. And so there are regulations under the ADA requiring that public entities ensure that communications with persons with disabilities are as effective as communications with others, and public entities have to do that by providing appropriate auxiliary aids or services. And so there's a regulation defining auxiliary aids and services helpfully as all effective measures of making visually delivered information or material available to people who are blind or have low vision. And so further requirements under the provision include that auxiliary aids and services must be provided in a timely manner, and they must protect the privacy and independence of the person with a disability.
And the public entity must also honor the person with a disability's preferred choice of auxiliary aids, unless they can show that another equally effective means of communication is available, or if they can prove an affirmative defense, like undue burden. And there are a few other defenses that I won't get into right now. So the Nassau County case was really great. The court in that case accepted the plaintiff's argument that APS constitutes an auxiliary aid under these regulations, and because that was the first APS case in the country, that was the first time we got an explicit court ruling that APS can be considered auxiliary aids under the ADA. So the New York City case, we actually did not move for a ruling on this theory, but we did in Chicago, and the Chicago court expanded on the Nassau County case's holding by explicitly ruling that Chicago violated its effective communications obligations by failing to install APS at signalized intersections across the city.
And so here, Chicago had actually tried to argue that the effective communications regulations don't apply to information communicated through pedestrian signals. It seems like they were trying to argue the regs don't cover information communicated for physical structures. They were trying to argue it only applies to interactions like court proceedings or interacting with the police or notices, but the Chicago court explicitly rejected that argument, because pedestrian signals communicate public safety information.
Chicago admitted that that is their purpose, and it's also important to get that public safety information timely, and so they particularly failed to meet that aspect of the effective communications regulations because there has been so much delay in the provision of APS.
JANE ANDERSEN: Thank you so much, Maddie, on that. And as we said, I think Lori mentioned that in the Nassau case, the case ended up settling so the court didn't have to take it to the next step of what happens when an entity is found to have violated the ADA by failing to install APS, but the New York court did. The case went, there were actually hearings and the court issued a remedial order.
In the Chicago case, the parties have fully briefed what the remedial order should be and that was fully briefed at the end of February and we were waiting on the court decision. We would love to start with Maddie to talk about what did the judge in the New York case do and what is New York City required to be doing right now?
MADELEINE REICHMAN: So a few years ago, the court came out with a remedial order, and this order of the court recognized as PRA and the advocates and plaintiffs did as well that this is going to be a major undertaking to install APS throughout a large city. None of us expected this to happen overnight. This will take time. But at the same time, these installations have to be made as expeditiously as possible under the regulations.
So the New York City court of the Southern District of New York ordered New York City to install APS at all of its approximately 13,000 signalized intersections over course of 15 years and that is sort of broken up further. So the court is giving the city ten years to install APS at 70% of all signalized intersections in the city, and that comes out to 10,000 intersections.
And then following those ten years, New York has another five years to install APS at the remaining 30% of signalized intersections in the city, and so that comes out to approximately 3,000 more intersections.
However, there is a caveat in the court's order, which is that once New York City installs APS at 70% of signalized intersections, it can then petition the court for an extension of the deadline to install the remainder of the APS upon a showing that meaningful access has already been achieved at 70% accessibility. So we're only right now about two years into the remedial plan, so we don't really know what New York is going to do or how the court will rule if New York does try to petition and argue that meaningful access has been achieved at 70%. So we're still waiting to see what happens, and as Matt was saying, it really gets into this thorny question of how much access is sufficient under the ADA and Rehabilitation Act? Does it really require APS at 100% at all signalized intersections as we are arguing? Or can meaningful access be achieved at anything less than that, which we disagree with that?
So the Southern District of New York basically punted on the question of what is meaningful access, and so that remains to be seen.
JANE ANDERSEN: Any other highlights from that order?
MADELEINE REICHMAN: Yeah. So obviously, installing APS at 13,000 intersections in 15 years, that's a lot and it really begs the question: How is New York going to decide which intersections get APS first? And so the order addresses this, as well, and called for New York to prioritize a few basic categories of intersections. So the most -- the first prioritized category is public requests for APS. So specifically, any outstanding public requests for APS, the court ruled, had to be completed in two years, and then ongoing public requests for APS at specific intersections get their own separate deadline. But those have to be prioritized all throughout the remedial plan.
The other intersections that have to be prioritized include -- pedestrian phases which Lori described earlier. Because those are particularly dangerous for blind and low-vision pedestrians, the court ordered New York to install these on an expedited basis and they have to install APS at these intersections within the first ten years. Other prioritized intersections include intersections that had been newly signalized within the last three years. So as Matt had mentioned with new facilities, those have to be made accessible at the outset and New York had ignored that obligation for years.
And so those intersections have to be made accessible within the first ten years of the plan. So for all of the other intersections that don't fall into these categories, New York has to develop its own method of prioritization and so it's still working on that and we haven't fully decided on that. We're working with the city to determine how that should go. But just another aspect of the remedial order requires that New York install APS throughout New York City neighborhoods on a fairly equal basis such that no one neighborhood or area or borough gets more APS than any others. And a note on that. Based on the independent monitor's most recent report, New York is struggling with this. It does seem to be disproportionately installing APS in some boroughs over others. So that's going to be an aspect of further litigation potentially.
And I'll just mention a few other aspects of the order. So another thing that is going to be really important here is compliance and making sure that New York City complies with the court's order, over the course of these ten to 15 years or maybe more, and so in order to help with that, an independent monitor was appointed, and so he's been doing inspections of the APS installations, evaluating whether they comply with the manual on uniform traffic control devices, and issuing yearly reports to report on the city's progress that go to the court.
And then we also have an APS advisory committee. So that includes members of the blind and low-vision community, and that committee needs quarterly and provides input and feedback to New York on their process, so that's one way to directly involve the community in either determining how this remedial order gets implemented.
And we have twice yearly town hall sessions for the public to provide feedback on the APS installations and installation plan. And then the last aspect of the order I'll mention is a funding requirement. So again, this is a major undertaking. We all recognize this will require a lot of dollars to make happen, and so in order to prevent New York from being able to come to the court in a few years and say, you know, your honor, we just can't fund this, there's a requirement in the order that the city pursue all possible sources of funding to implement the remedial order and New York was also ordered to appoint a point person to oversee the pursuit of funding for the APS installation plan. And yeah, I think that's the end.
JANE ANDERSEN: It's a really detailed, wonderful decision and I highly recommend reading it if you're interested in remedial orders. And the United States and disability rights advocates have just fully briefed, we've proposed a joint remedial order with the plaintiffs of the United States and why don't you tell us what we're arguing for and how does it differ from what was ordered in New York?
MATT FAIELLA: Good news. We also argued in Chicago for 100% coverage. In a lot of program facility matters, a lot of people say you don't need to have perfection. Here, we're not asking for 100% of all intersections. We're asking for 100% of those intersections that have these pedestrian signal devices. Those, Chicago has deemed dangerous enough like I mentioned, so they need APS.
JANE ANDERSEN: What percentage is that?
MATT FAIELLA: So yeah, Chicago has about 30,000 total intersections and only a little under 3,000 are signalized. So 10% of the city is signalized. So we're saying really we want 10% of the city to have APS. Perhaps in the future, there could be a world where there are lawsuits about making the rest of the city have APS, but right now, we focused on the signalized intersections under these lawsuits. So that's what our remedy is seeking. 100%. New York has a lot more intersections than Chicago. New York has 13,000 or more that are signalized. Chicago has about 3,000, a lot lower scale.
But we nevertheless thought we were being quite reasonable and generous telling Chicago you should have to get this done within a decade, within ten years total. Chicago said no, no, no, we want to have 15 years to get to 70% coverage and that's all we need because in the New York case, apparently, they extracted from that remedial order that 70% equals meaningful access, and then you're done, whereas in the New York order, the court said 70% is the point where it becomes quote at least plausible that you could achieve meaningful access.
So part of our briefing called them out for that. Part of our briefing also encourages our judge in Chicago not to punt on the issue and to decide that 100% coverage is necessary and we really are hopeful that that will happen. We think we have strong claims and we've benefited from all the hard work that DRA did in the remedy in New York and tried to apply some lessons learned. We have a lot of the same prioritization categories, requests that are pending from actual people who want APS, LPI, APP, other kinds of dangerous intersections. One thing that we have that is sort of a lesson learned from New York that we've applied in Chicago because we've got about 14 months, New York is about 14 months ahead of us in terms of when the remedial order was issued versus when we had to finish briefing on the remedy in Chicago.
We did ask that Chicago have to engage an expert on orientation and mobility to work with, to install these devices so that they're installed correctly, knowing that New York has had some problems making that happen, and knowing that orientation and mobility specialists tend to really know how to do this the right way, so that people who are blind, DeafBlind, or have low vision actually can use APS in a way that they were intended to be used. That's one thing we added. We also added a requirement that Chicago appoint or designate folks within the city Department of Transportation to know how to correctly install APS, and that Chicago have a public, very transparent system that tells people where there have been requests for APS, where there have been requests to service or maintain APS that might be broken, and that those requests be timely processed.
So a lot of this is the same as in the New York case, but we've been able to fine-tune things a little bit based on the New York experience. We also have an independent monitor, community advisory committee that's really important. The people who live and work in Chicago should be able to help the city figure out how to prioritize any extra APS that they're going to be required to install within a certain year, if they've already hit their mark on outstanding requests and LPIs and APPs. Those are some of the highlights.
JANE ANDERSEN: Excellent. We're going to open it up for some questions, but before we do that, I was hoping Lori, I didn't know if there's any sort of last words of advice you would give to folks here that maybe that want to advocate in their own communities or towns, what advice or tips would you give?
LORI SCHARFF: I really would say make sure you're educated about where there are pedestrian crossings. Sometimes, people who are blind cross in places that are not meant for pedestrians to cross. Not all legs of an intersection are necessarily meant to be crossed. That would be the first thing. The other thing is that with regards to infrastructure work and things like that. Right now, there is a lot of work going on across the country with regards to changing intersections and intersection design and things like that, because of the money that became available through the federal government, so really look at what your Department of Transportation, Department of Public Works, whatever they happen to call it, get in there and figure out what would be beneficial.
And I would say a lesson that really was learned in both Long Island and New York City was that the elected officials office for people with disabilities is not always the best place to go to try to befriend somebody. In both of those cases, those tended to be our obstacles, and we were -- when we formed the Pedestrians for Accessible and Safe Streets, which is the coalition that Maddie spoke about back in 2010, the goal was really to work with the Mayor's Office and the Department of Transportation and it was varied success with the Mayor's Office.
And I think that if sometimes, you could get buy-in from the elected officials, it would go a little better.
I just did want to mention that regarding the lead pedestrian interval and the exclusive pedestrian phase, those intersection-type of setups can literally occur with the flip of a switch. When we filed our case in New York, many members of the Pedestrians for Accessible and Safe Streets knew that the city was doing some work, but didn't know what it was and didn't even realize the changes had occurred on over 1,000 intersections literally overnight. And once they realized what happened, they were really shocked and honestly, I think they felt some betrayal by the Department of Transportation, because it woke them up as to the importance of having access to information.
JANE ANDERSEN: I think that's a huge point and something we're definitely pushing for in the Chicago case currently and I know the New York case, the New York judge did recognize how APS was so important at those intersections.
LORI SCHARFF: Yes, he did.
JANE ANDERSEN: That was great. So I guess we've been talking a lot about the legal theories and strategies. We don't have a ton of time, but I would love just the practical information. High-level, some of the most important things, witnesses, experts, information that you would want to share, if there are lawyers in the room thinking about filing a case in a different city or down. Do you want to started, Maddie?
MADELEINE REICHMAN: Matt talked before briefly about the importance of involving orientation and mobility specialists in the implementation of a remedial order. That was also really important in the litigation and trying to prove liability under the aide and Rehabilitation Act. So during discovery, we proffered an orientation and mobility specialist to explain to defendants and the court what APS is, why it's important, how blind and low-vision pedestrians use it.
And the harms that result from not having APS. And so that was really crucial I think.
We also engaged an engineering expert who we featured a little less prominently, but that was very useful for us because when Chicago came back and tried to argue well it's too hard to do all of this work for X, Y and Z reasons because of all the infrastructure and all of these engineering issues, as lawyers, we're not really trained in those sorts of things, and so we had an engineering expert examine what the city was saying about internal infrastructure and all of that, and to provide his own independent evaluation and sort of rebut the city's arguments.
So I would say if you are going to be litigating this in another city, definitely consider what experts you're going to retain and try to do so because it's really helpful for the court.
JANE ANDERSEN: Matt, any practical tips?
MATT FAIELLA: I would echo our own expert in Chicago. Linda Meyers is fantastic, and the court's decision from last year granting us partial summary judgment in the case and really all these big claims, it kind of almost copy-pasted in the expert report and talks about the phases of crossing the street and it really helped the court understand the issue. Because as obvious as it has become to me, most people who are sighted don't have to think about all the different aspects of crossing a street and how an APS can help, and similarly with the engineering expert, really helpful to have that and to have a reality check for us if there was something that Chicago said that was valid, that sometimes happens.
Just kidding.
[Laughter]
If there was something that was valid for a concern for them, we want to know that and work around that. We're trying to problem solve. We're not just trying to say Chicago is a bad actor and we win. We want to actually make them a good actor. So having that expertise on the engineering side has been helpful and then DRA did it so well, Lori has had her personal life out there in these cases but having the stories of people who are blind, DeafBlind, or low-vision in these cases really has mattered and made a difference.
There was class certification grants in Chicago and many individuals in addition to the three individual named plaintiffs in Chicago whose stories were part of the record and in summary judgment, the court relied on those stories to show that they really were impacted and denied equal and meaningful access because part of Chicago's response was basically hey, you never got hit by a car and you still made it to all your appointments on time so aren't you okay?
Ignoring the fact that Anne Brash, one of the main plaintiffs in Chicago, stopped going out to lunch because she feared for her life just walking to and from her office. So having those stories and people willing to share them, that was really important. Collect those stories. I think also the requests have been discussed. Make requests, follow up on the requests, create those records. They're never going to hurt if you can show a court in Chicago, we were able to show the court, Chicago had well over a decade of ignoring this issue, putting out public statements, touting its work to install APS and didn't actually follow through ever. So the more records you have of that type of conduct, I think the stronger your case will be.
JANE ANDERSEN: That was really great. I would love to open it up to questions or comments now.
LORI SCHARFF: If I could just say one thing. I do want to mention. I know some of cities who have gotten some pushback because apparently, they are being lobbied for lack of a better word by Oko, which is an app that can be used from your phone to identify when the walk phase has begun. However, personally, I believe we shouldn't have to carry an external device to have access to information. In addition to that, depending on the lighting and depending on the type of walk indicator, there are some cities that still have the words walk and don't walk that appear and Oko does not work with those types of signals.
JANE ANDERSEN: That's a great point and Chicago did raise that, not to sort of get out of what they would have to do, but they wanted to have the option that if one day in the future --
MATT FAIELLA: Chicago, I'm paraphrasing here, they said there may one day be something called Miovision, an app that connects to the traffic signals so people can use that, really cynically I'll say, it's a program they want to use to have better traffic signal data. It really isn't about accessibility. But they're trying to put this out there as a reason for the court to basically say oh, I'm not going to require you to install APS everywhere. At the end of the day, Lori is right. There is no app in the U.S. Department of Transportation's manual on uniform traffic control devices, but APS are in that manual and there are very specific technical standards about how APS are to be installed.
Lori pointed out, the direction the tactile arrow has to face, all those things, very, very specific standards. There's nothing, anywhere near that on the app front and our orientation and mobility expert Linda Meyers and in the New York case Janet Barlow all have addressed the issue of apps and how apps may be helpful for some people, but it's not going to be what gives you the equal and meaningful access that an APS gives you. You shouldn't have to as Lori said have a charged cell phone with service in your hand while you also have other things in your hand walking around the city.
LORI SCHARFF: I do want to mention that Polara does have an app that syncs with the newest generation of their signals so that you could request a signal and receive information on your phone directly from their newest generation signals. But in addition to that, there still will be a vibrile-tactile and an audio cue from the push button box.
ATTENDEE: My name is Jennifer. I'm in private practice in Chicago. So thank you, hats off to you for your work in Chicago. As I'm doing work across the state and some of these smaller communities where we're struggling to get funding in our cases for sidewalk remediations, how are you -- what was your -- I know these are quite expensive, these APS systems. How are you fighting back against the undue burden defense on that?
JANE ANDERSEN: Well, yeah, I'll say so in the New York case, helpfully, the DoJ provided a letter with all these sources of federal funding that municipalities could apply to, to provide APS. That's a public filing in the New York case. Very detailed. The judge in that case explicitly referred to some of those sources of funding in its summary judgment decision to undermine New York's undue burden defense. So we also used that in Chicago, although interestingly Chicago hasn't made an undue burden defense.
ATTENDEE: Because they have a lot of money.
LORI SCHARFF: Well, in New York, they tried to say they just didn't know any funding was available. It's like, really?
ATTENDEE: In Chicago, they said we don't want federal funding. We're doing it all ourselves. They didn't want the burden of whatever the federal --
ATTENDEE: And I'm making a sarcastic face right now. I'm from Chicago.
JANE ANDERSEN: But so I think that would be important for smaller municipalities, doing that research and finding out what's available.
But then, as we mentioned in the New York remedial order, there's a provision that New York is required to pursue funding, and so they have to appoint someone to basically figure that out, and they can't just throw their hands up in the air.
And so that I think is also going to be part of the independent monitor's reporting. They're going to be examining whether New York is actually pursuing that funding.
But I guess there's a possibility maybe for a smaller town or city that there could be problems with that.
In that case, the parties and the court can work together to figure out some plan, whether that's extending the deadline so that they have more time to apply for more funding, you know. There are solutions that can be figured out, but yeah, most importantly I think there are funding sources out there.
MATT FAIELLA: And the undue burden defense, we didn't talk too much about it, but basically, it requires the public entity to have a written statement from a high-ranking official that they explored all possible sources of funding or all possible ways to get this done and still couldn't. And even if they have that statement, and even if the court is like you couldn't do this. They still have to keep doing everything they can. So yes, it can excuse them from some level of liability, but on the other hand, it still doesn't excuse them from having to keep achieving access. So I know it's a hard problem for some entities. But it doesn't mean they don't have to do anything. Maybe instead of installing five, they install three in a year, but at least they're still moving forward and that's what they're required to do.
ATTENDEE: I'm thinking ahead. There's been great success in New York and Chicago, but I live in a city like Seattle and I'm wondering, does the DoJ have appetite for continuing this fight in other cities? And what would you need to hear from community members for the DoJ to consider in that other cities?
MATT FAIELLA: I do want to mention, our U.S. attorney's office of the Disability Rights Section, we're based in D.C., we work really closely with our U.S. attorneys’ offices throughout the country and in Chicago, there's no way we on the DoJ side could have done this without Patrick Johnson in our U.S. attorney's office there.
There's an U.S. attorney's office in Seattle. So it's appropriate to file complaints with us in D.C. through our complaint portal online, Civil Rights Division has a pretty user-friendly complaint portal, so if you feel you're being denied program access, effective communication, whatever it may be, you can file a complaint with us. Some of those complaints we are able to open in D.C. Some of those complaints we're able to open with the U.S. attorney's office. So Jane and I are not at the pay grade that we can do this all the time, but certainly, this is an area that we're very passionate about, which is really important. And so getting complaints is one way for us to know we have to keep fighting.
LORI SCHARFF: And I do know just to add to that, I know that there has been some movement within the DeafBlind community specifically in Seattle on this issue. So you may, by connecting like Matt just mentioned, you may be adding yourself into a group that's already working on issues.
ATTENDEE: Would DoJ submit a statement of interest in any of these cases if a PNA was to file?
JANE ANDERSEN: That's the same thing -- if you do file a lawsuit or if you're aware of filing a lawsuit, you should reach out to us and let us know. So in the New York case, we were not a party, but we did submit two statements of interest through the U.S. attorney's office in New York to work on that and that was on the remedial phase and it is something that is part of our mission to consider whether that would be appropriate in this case. We encourage you to reach out to us and we can start that conversation.
MATT FAIELLA: Statement of interest for folks who don't know is like an amicus brief. The federal government has a thing called the statement of interest that we're allowed to file without having to go through the same hoops for filing an amicus brief as a trial lawyer in parallel.
ATTENDEE: And I don't know I'm thinking some other cities, like New York and Chicago were really bad, but there are some success stories.
I don't want to misstate but-long Linda Meyers, our expert in San Francisco, and what other cities? Are there other ones? I don't know if anyone is at 100%.
MATT FAIELLA: I'm not aware of anyone at 100%. I know in New York City -- sorry in San Francisco, there have been sort of a negotiated resolution through local advocates instead of going down the litigation route. And so I know that that's been a success story there. I don't know the percentage that San Francisco is at just yet, but they're leaps and bounds ahead of New York or Chicago at this point.
ATTENDEE: And I know the city they had a city engineer from Portland and they had a policy in place. Understanding what cities' policies are with respect to APS. What's the alteration policy? If they are making changes, are they then installing APS? Understanding that I think is helpful to know are they on a path to get there at some point? So how long that might be. Those are all kind of very interesting things to think about.
ATTENDEE: What do you think about expanding accessibility to things like cafes and parks having signs have Braille on them or requiring all city restaurants to have Braille saying whether the site is accessible or not? Or a park, for example. What would be the obstacles to passing a regulation like that?
MATT FAIELLA: We do have certain requirements for signage, so there are sometimes requirements that certain signage have Braille, but I think if for some reason, there weren't an explicit pre-existing requirement, there could be reasonable modifications requests made. The U.S. access board creates our standards and the process with the ADA is the U.S. Access Board will publish standards, and then once those are published, then the Department of Justice can adopt those as the minimum standards. We can go higher than that, but we can't go lower.
And so the U.S. access board and DoJ are two places you could go to recommend certain standards if they're not already in existence.
I do know for APS in terms of public parks, that's fair game for the kinds of cases we're working on. If there are signalized crossings in parks, then those can be part of being remediated. They count as signalized crossings.
I know Central Park in New York they do. There's actually an older case about inaccessibility in a county park in California, where the crossing did not have APS and the court said that that could be a violation, so in terms of crossings in parks, those are fair game.
In terms of more specifically signage and whatnot, if it doesn't have to be signage with Braille or some other standards, there could be an obligation that there's a reasonable modification request by the individual.
ATTENDEE: And in your prior two cases, did you consider particularly dangerous crosswalks in calculating priorities? I know in my home town, there's some intersections that they consider particularly dangerous that require red light cams. Did you consider that?
MADELEINE REICHMAN: In Chicago, we're arguing that a dangerous intersection should be prioritized and Chicago seems to accept that as a principle for the remedial order luckily. We've been focusing on leading pedestrian intervals, the pedestrian phases, but also T-shaped intersections, mid-block intersections, three or more streets that converge, particularly long crosswalks, crosswalks that have islands in the middle. So we have been considering factors like those and yeah, Chicago seems to be on board with some of those, but not all of them. Hopefully, we'll get all of those factors into the remedial order.
JANE ANDERSEN: And in Chicago, the elevated tracks are super loud, but that's something that we're prioritizing.
MADELEINE REICHMAN: As well as intersections that are close to public transport points and other services or programs like libraries and medical facilities and parks.
LORI SCHARFF: There are some prioritization tools that are out there. I unfortunately don't know how to find them, but they look at these types of things and usually are developed between an orientation and mobility specialist and an engineer from the local Department of Transportation to take in factors from both sides of the community.
MATT FAIELLA: And another thing is if you make requests. Those are part of the prioritization in New York and Chicago, so if there are community requests coming in because community members know a particular intersection is really dangerous, even if it doesn't have LPI or any of these other features, it doesn't matter. It's a request from a community member that I need APS here and that should be prioritized.
So definitely make a request if you can in your city if you know it's a dangerous intersection, but that is inherently part of our prioritizations in those two cases.
ATTENDEE: I have a follow-up question on that, Jennifer from Chicago again. In terms of defining an intersection as particularly dangerous. Is that in terms of configuration are you dealing with? Or did you do anything in discovery to say give us information on where more pedestrian accidents occur?
ATTENDEE: I think we did do discovery -- (inaudible).
MATT FAIELLA: We requested accident information, but we think we wound up basing the categories on I think it was basically difficult to extract these are going to be the most dangerous. And so because you don't know if the number of accidents was related to if someone was blind or low vision. So the numbers could be so stark in some jurisdictions that it's clear from the data. I don't want to suggest the data aren't important there, but the categories of intersections that we chose for prioritization were consistent with orientation and mobility experts.
And the city in the remedial phase engaged an orientation and mobility expert Robert Emerson who has published articles with the New York City on the plaintiff side. So it's kind of a small community. But we actually have agreement with Chicago on the categories of intersections that are the most dangerous. Their report actually read almost like it could have been filed by our side in that respect. There just was an argument, we said okay, because they're so dangerous, prioritize them and Chicago said because they're so dangerous, give them APS at some point within the next 15 years and we said that's not enough. They're all dangerous enough to deserve APS. I hope that answers.