On Monday, a three judge panel of the Ninth Circuit Court of Appeals found that Portland’s local transit system, TriMet, does not have to make certain modifications for riders with disabilities.  The plaintiff, who uses TriMet’s paratransit system, LIFT, asked TriMet to accommodate her balance disorder by providing her rides only in sedans or taxis.  Her doctor had informed TriMet that riding on the LIFT bus aggravated her condition by causing her dizziness, nausea and emotional stress.

The court decision hinged on whether regulations of the US Department of Transportation (DOT) or the US Justice Department (DOJ) applied to the plaintiff’s request.  The DOJ regulations require public entities to make reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination.  The DOT’s regulations, the court found, do not have this requirement and since they govern the operation of paratransit systems, case dismissed.

Although the court set out a lengthy and detailed analysis of administrative law to support its conclusion, I sensed something else going on in the opinion.  At one point, the court says that the plaintiff “would like an enhanced level of service that would enable her to choose whatever vehicle she would like to ride.”  In concluding, the opinion says, “We recognize the importance of paratransit systems for disabled individuals… We are mindful, however, that the ADA requires only a ‘comparable’ level of service and the DOT regulations implementing the ADA ‘do not contemplate perfect service’ for the disabled.

"Like" to ride?  I can't help but sense in the use of this word an underlying bias against the notion of disability discrimination.  I've heard many comments over the years that the ADA does not level the playing field for people with disabilities but, instead, gives them special rights and benefits.  I made up a quote that I use to illustrate this view: “We’re not discriminating.  Anyone is allowed to use those steps!”

The court approvingly quotes a DOT regulation that says the ADA “is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre.”  I suppose the same thing could be said about steps.

When the judges said that the plaintiff wanted to choose whatever vehicle she likes, they may have been right, but the ADA would never require that.  The ADA would only require that she have access to a vehicle she needs. 

This little choice of words reveals, to my sensitive eye, a bias against the ADA and perhaps against those who must use public transportation.  After all, if a rider is reduced to relying upon this form of transportation, “good, bad or mediocre,” she should shut up and suffer with the rest of us.  Total exclusion thus becomes a problem of personal wealth rather than equal access to a public service.

[The case is Boose v. Tri-County Metropolitan Transportation District of Oregon]