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What does all of this teach us about the value of lawsuits, committees and activism?



Riding lessons
or, what I learned trying to ensure accessible public transit in Chicago

By W. Carol Cleigh

Just as one must clearly understand that Marley is dead in order to grasp the message of "A Christmas Carol," one must clearly understand that we have three separate and unmistakably unequal transit boards in the Chicago metro area to understand the history of the fight for accessible transit here. These are the Chicago Transit Authority, Metra, and Pace.

The disability community sued the first two under state law in the mid-1980s. The Chicago Transit Authority lost in 1988 (the decision is known as the Jones decision, after Kent Jones, longtime disability activists and lead plaintiff). Metra settled its case in 1992 ("Jones II").

In the Jones decision, the CTA, which claims to provide 1.5 million rides in Chicago and 38 adjoining suburbs daily, was ordered to buy only buses with wheelchair lifts. In Jones II, Metra, which runs the suburban commuter rail system, agreed to renovate stations, make trains accessible and to run a paratransit service (known as RCAP, for Rail Corridor Access Program) until its trains were accessible.

Asking politely for access doesn't work.

None of this history gives the flavor of the times. In the 1980s, people with disabilities and allies put aside other differences and organized around the transit issue. According to those who were there at the time, it seemed as though everyone agreed that public transit should be accessible and that transit officials were worthy targets of protest and petition. Not everyone participated in direct action, but most supported those who did.

The trouble started when we "won" the transit battle.

Some of those who'd formed the coalition that won in the 1980s declared victory and went on to other issues. They didn't stay to work out the details of what "accessible" meant in relation to transit. Thus, committees formed by the lawsuits and the 1990 Americans with Disabilities Act were staffed by some whose agenda was not necessarily aimed at creating transit for the whole community.

This is where the stories of CTA and Metra diverge.

Several of those who originally sued and protested against Metra are still on the Metra Access Committee -- or MAC. MAC became the de facto Americans with Disabilities Act Advisory Committee for Metra. These folks have worked, some for 15 years or more, to make Metra accessible, first as protesters and plaintiffs, then as advisory committee members. Their long-term commitment paid off when Metra trains became accessible in 1999, and will pay off again when the last key rail station becomes accessible later this year.

When I joined the MAC, in 1997, there was tremendous tension between disabled committee members and Metra. This was due in part to a marketing executive who had been Metra's representative to the committee. Without access to decision makers, the committee felt they were being schmoozed. When I joined, Metra was just about to give us the bad news that it might be another 10 years before we had accessible diesel cars. The committee was in an uproar; an emergency meeting was called (the committee had a right to call emergency meetings under the Jones II settlement).

My greatest contribution to the committee -- and perhaps to accessible transit in Chicago -- was the seemingly innocuous suggestion that Metra contact the bondholder to finance construction of the rail cars. At the time, Americar, the firm building the cars, appeared to be unable to complete the contract.

For any large public contract, there must be a performance bond: insurance that Metra would be paid if the builder failed to deliver. But we, and Metra, didn't want the money -- we wanted the rail cars. For far less than it would have cost them otherwise, the bondholder provided the capital Americar needed and we got the rail cars two months ahead of schedule. Everyone won, Americar got paid, the bondholder was out far less money than they would have been, Metra got the cars they needed, and we got lifts on enough cars for at least one accessible car per train.

This was the beginning of a new relationship with Metra. They now had to respect that we knew something about business; they began to listen to us more carefully. For the first time they seemed to understand that we were not out to merely spend money; that we would look for the best solution, not the most expensive one.

The RCAP paratransit system at the time was serving fewer than 90 people daily. It was clear that this number would wane year by year. The Jones II settlement had capped the cost of the program at $3 million per year, but as happens with paratransit systems, the cost per ride continued to increase. A single paratransit ride could cost Metra more than $70, because the ride could start or end as far away as Kenosha or Joliet -- anywhere the rail lines went.

However, the MAC felt that it was our duty to see that Metra had done everything possible to ensure that those who had been riding RCAP would be able to get to work and the other places they needed to go when that system finally folded. The MAC kept Metra from discontinuing the RCAP program for almost two years after they had the right to do so. We wanted to make sure that those who'd been riding RCAP had, and knew about, other alternatives.

When the RCAP system was finally scheduled for termination, a vocal group started coming to MAC meetings to try to convince us that the program should continue. Time and again, we pointed out that Metra did not have to continue RCAP to comply with ADA.

The protesters who wanted paratransit to continue accused us of cross-disability bias and regional prejudice. We declined to respond. Our stance seemed to solidify the relationship between MAC and Metra. Our unwillingness to turn on them under pressure showed that we would stand behind decisions we'd taken a part in making.

Once people started to ride the accessible trains, though, uproar over the loss of RCAP quickly died. It seemed that former paratransit users were so happy with access arrangements on the trains that they no longer wanted separate, unequal transportation.

Activism is always necessary, but it is far more effective with an agency that values its public image.

The long years of work by the MAC have been vindicated by usage: on average more than 40 wheelchair users ride daily, and the numbers are increasing by nearly 50 percent each year; we've even had trains that needed multiple access cars, although each accommodates five to six mobility devices.

Two years ago, I spoke about transit issues at a conference of the Coalition of Citizens with Disabilities in Illinois. Several people came up to me afterward to say that they had traveled in Chicago and had no problems with access. It took only a question or two to determine that they'd ridden Metra. I quickly explained the difference between Metra and CTA.

CTA didn't use their court-ordered committee (the Joint Implementation Committee, or JIC) as the basis for the advisory committee required under ADA. Instead, they established a separate committee mostly populated by people who seem to be wimps and agency wonks with no direct need for accessible public transit.

While the JIC was doing its job, making sure CTA bought lift-equipped buses and deployed them across the city, CTA quietly marginalized the committee. At the end of the JIC's legal mandate, less than two-thirds of CTA's bus fleet had lifts. And 40 percent or more of those could be counted on to be broken on any given day.

When CTA decided to dissolve the JIC, those who had worked on it felt their job was not yet finished. They invaded the ADA Advisory Committee to try to make it relevant to disabled users' needs.

The fireworks then began in earnest.

Those who'd worked on the JIC put together a set of bylaws for the ADA Advisory Committee took over a meeting and got the Committee to approve them. The bylaws mandated that the disability community decide who would represent them.

The CTA refused to accept these bylaws. They would, they said, decide not only who would be on the committee, but who would chair it as well -- in this case a CTA employee, who performed the dual role of chief apologist for the agency and chair of its ADA Advisory Committee.

Explosions became regular fare at Advisory Committee meetings. CTA taped the meetings but we never got minutes. There was thus no way to track committee decisions. CTA commitments were similarly forgotten. Committee members pointed out glaring violations of ADA regulations. Nothing was done about them.

For at least five years, the CTA's ADA Advisory Committee has done nothing significant to fulfill its mandate. CTA lags far behind other metropolitan area transit agencies on accessibility. Few disabled people ride the mainline system. Most are still stuck using separate and inherently unequal paratransit.

In 1998, in my role as President of the Progress Center for Independent Living, a suburban independent living center, I signed a letter to the Federal Transit Administration -- a formal complaint about CTA paratransit on behalf of our constituency. FTA investigated and found CTA in "material non-compliance" with the ADA. They have yet to apply sanctions, though, other than requiring CTA to file quarterly reports on the "progress" they've made toward correcting the problems.

A friend once observed that if she wanted to design a system that might technically meet the requirements of the ADA without providing real access, she would use CTA as a model.

In 2000, disabled activists and Access Living, Chicago's independent living center, filed suit against CTA in federal court. For years we'd tried to work within the system, complained to the FTA, sat through endless, pointless meetings, and gotten nowhere. We were fed up. The settlement agreement reached nearly two years later was a victory, says Equip for Equality, our state protection and advocacy agency, which represented us in the lawsuit. Yet some of us who were named plaintiffs are now being denied all access to transportation.

CTA claims the right to secure our devices no matter how improperly (see "Unsafe At Any Speed," Ragged Edge, March/April) and have been denying us access to transportation on that basis since last August. They now say they have the right to even disassemble our wheelchairs and use the securement system in a way that its manufacturer calls "outside the parameters of the safe use" of their system. To the disability community, it's clear that CTA is retaliating for the lawsuit in the only way they think they can.

There is no plaintiffs' committee to monitor compliance with this latest settlement agreement, and it may be part of the reason that it has gone so wrong so quickly. When our attorneys were asked about this during settlement negotiations, they claimed that the judge called it "a deal breaker." Perhaps we should have insisted upon it anyway. The "deal" we got might have been better broken. Instead of a committee, we have an "independent monitor" -- paid by CTA with offices in their building -- who occasionally meets with those who can ride CTA to get to meetings. The reports we've seen so far have whitewashed both obvious non-compliance and retaliation against plaintiffs. Even when CTA has been declared out of compliance, no sanctions seem to apply.

Fifteen years and yet another lawsuit after the Jones decision -- and we still can't enforce our right to access on CTA. And we can't sue them again for five years.

What about that third transit board? Pace Suburban Bus never got sued in the 1980s, and they didn't form an ADA Advisory Committee until 1999. Since then, access has improved, but it hasn't been easy.

Pace knew that they had to have some semblance of ADA advice. However, instead of forming a standing committee, Pace decided to hold quarterly public meetings. The same issues were brought to each meeting. There was no mechanism for holding anyone accountable, so nothing ever changed. We'd attend meeting after meeting where the same issues were raised. Pace treated each like it was the first time they'd heard it. Not productive.

Several suburban independent living centers wanted a standing committee with stable membership chosen by the community who could hold Pace accountable if they didn't improve. Pace didn't want to give it to us.

For more than eight years, these center directors and others had been asking politely, and been politely ignored. Finally, Suburban Access Squad, a tiny group of activists, got several directors to agree to support our plan of action, and within four months, we had our committee.

SAS members attended Pace board meetings and spoke during the public comments period -- first a few came, then a few more, then a bunch. Finally we scheduled an action on the front lawn at Pace headquarters followed by most of us moving into the boardroom.

Bless 'em, the center directors brought consumers by the vanload. We made the front page of the Metro section of the Chicago Tribune -- the biggest action for disability rights a Chicago suburb has ever seen.

We moved inside to the boardroom. Pace had just hired a new Executive Director, T. J. Ross, and none of us knew what to expect. We came prepared to speak, but our action outside had already spoken volumes. The board passed a motion to form a standing committee.

One thing we should have done before we won, though, was talk among ourselves about what the committee would look like once we had it. What followed was six months of wrangling over committee structure and membership. It seemed to those of us who'd been the activists in the group that some who had no direct, personal need for public transit and who wanted to be more "polite" were now trying to dismiss SAS. After our experience with Metra and the CTA, we weren't about to leave our infant committee in anyone else's hands -- particularly not in the hands of people who didn't ride transit.

We wrangled, but we all won. We now have a functional committee. Several of the original activists have stayed on; a majority of the steering committee has activist credentials. Everyone now on the committee seems to be dedicated to the long-term success of accessible transit.

Pace's paratransit program has shown great improvement. In most of the Pace service area, we can now call any time the day before and expect a ride within a reasonable window of the time we ask for. The carriers used to openly laugh at users who called after 7 a.m., but we got the last laugh.

Pace's paratransit carriers now treat customers with respect rather than condescension. Most of our people are comfortable calling them on it when they fail, knowing that neither Pace nor the committee will tolerate retaliation for complaints.

Most disabled people in areas served by Pace still rely on paratransit, because there are serious problems with infrastructure (there are no sidewalks or curbs, much less curb cuts in many areas). Even in those areas that are urbanized enough to have sidewalks, the Midwestern winter can sabotage access with snowdrifts piled in bus stops and curb cuts, or temperatures so low that many cannot wait for a bus due to health issues.

What does all of this teach us about the value of lawsuits, committees and activism?

1.Asking politely for access doesn't work. Our community must sooner or later learn what Frederick Douglass said more than a century ago: "This struggle may be a moral one or a physical one, but it must be a struggle. Power concedes nothing without demand. It never has and never will."

2. Activism is always necessary, but it is far more effective with an agency that values its public image. I believe that a large part of the reason that we've never really been successful using direct action against CTA is that they are shameless. Both of the other transit boards care about news coverage.

3. Lawsuits are only as good as their enforcement. If those activists who'd started with Metra hadn't stayed the course, and brought in new blood when they needed it, we'd have been waiting another seven years for the train cars instead of enjoying them for the past three. Also while laws and lawsuits can be helpful, they should be seen as the beginning rather than the end of a process.

4. Committees are needed, but to be useful they must be credible representatives of the community. We need people to serve on committees who have a personal stake in accessible transit and are willing to commit in the long term to learning regulations and holding agencies to them. One of the biggest problems with the wimps on the CTA committee is that they've never encountered the ADA regulations that they're supposed to be enforcing and few of them ride CTA's system. They believe whatever CTA tells them rather than finding out for themselves. A healthy measure of skepticism is a necessary quality in anyone who wants to serve on an ADA advisory committee.

5. It's always easier to create change in an agency that is smaller and more innovative than one that is larger and enamored of the status quo. Metra is one-fifth the size of the CTA in terms of number of rides daily and Pace is even smaller. The scandal is that Metra currently provides more rides for wheelchair users than CTA does on their elevated trains. That's not proportional, it's pure numbers. In fact, Metra provides twice the number of rides for wheelchair users CTA does. The agency is a fifth the size, with proportionally fewer trains, and higher fares, but it carries twice as many wheelchair users.

CTA whines and complains about the soaring cost of paratransit while doing nothing to make their only alternative, the mainline system, accessible. At the same time Metra proves that if they'd build a truly accessible system, our people would willingly ride it, at least for the non-snowy months of the year. If they'd build it, we would come.

W. Carol Cleigh is a Chicago-area activist and frequent contributor to Ragged Edge. Her other articles include     'Accessible' Transit: Unsafe at Any Speed? and     Creating Access -- Now and for the Future

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