Scott LaBarre]

The Braille Monitor – November, 2000 Edition

Scott LaBarre

Public Rights of Way:

What Is the Right Way?

by Scott C. LaBarre

From the Editor: Scott LaBarre is President of the National Association of Blind Lawyers and President of the Denver Chapter of the NFB of Colorado. Like many of us he is concerned about how to do what we can to enable blind people to travel safely while encouraging them to acquire and use good blindness skills. Though local governments must be required to spend the funds necessary to provide the information blind travelers really need, we must also not make unreasonable financial or personal demands. These various constraints areexceedingly difficult to balance, and there is growing evidence that poor choices are being made. If we are to play an informed role in advocating for wise decisions, we must know what is happening and what decisions are being made. The following article is the first of several over the next few months to discuss these important issues. This is what Scott says:

Throughout recorded time blind people have struggled along doomed to second-class citizenship. In recent times, however, we in the organized-blind movement have fought to emerge from this despair into the promise of first-class citizenship. Because of our hard work and perseverance our dream of real freedom and true opportunity is far more nearly a reality today than ever before.

As we slowly gain a firmer foothold on the so-called, largely mythical "level playing field," we must be very careful about defining terms like "equality" and "equal access." Because we have done our job fairly effectively, we could well get exactly or at least mostly that for which we ask. The old adage rings true. Be careful what you ask for because you might just get it.

As the blind and the disabled generally find ourselves with an ever- increasing capacity to affect public policy, we must consider very carefully the way we want society to treat us, and therefore we must think about the way such ideal treatment will be carried out day to day in our communities.

The purpose of this article is not to review civil rights laws and the way they have emerged, but a little must be said on the subject. In our own country the Declaration of Independence and our Constitution have been the foundation on which all else has followed. A tour of French civil law, British common law, and the other origins of our civil structure might be interesting to some but not particularly useful to this discussion. It is sufficient to say that these different systems ignited and influenced our own; and our laws, society,and history have brought us to the point at which it became necessary to pass specific laws protecting the civil rights of different classes of people. Almost everyone is familiar to some degree with the Civil Rights Act of 1964, which was signed by President Johnson and prohibited discrimination on the basis of race, national origin, religion, and gender.

What a number of people do not know is that there was some effort to include individuals with disabilities as a protected class under the Act. The Federation's founder, Dr. Jacobus tenBroek, acted as a chief advocate for defining the disabled as a protected class.

After 1964 concerted efforts continued to increase legal protection for the disabled on both the state and federal levels. In addition to many state laws making it unlawful to discriminate on the basis of disability, Congress passed the Rehabilitation Act of 1973, which outlawed discrimination on the basis of disability by any program receiving federal funds and by the federal government itself. At that time no federal law prohibited discrimination based on disability by the private sector, state governments, or local governments, if the program or activity in question did not receive federal funding.

In 1990 President Bush signed into law the Americans with Disabilities Act (ADA), which filled the gaps left by the Rehabilitation Act of 1973. The Act calls for the complete integration of individuals with disabilities into our society by mandating that covered entities under the Act provide them equal access.

Probably no one today would publicly admit that he or she opposes "equal access" for the blind and the disabled. Certainly all of us who are blind want it, because equal access presumably brings with it first-class citizenship. The ADA mandates that I be provided "equal access." It is comforting to know that a federal law guarantees that I will have access to virtually every aspect and sector of society.

The real problem arises when we attempt to define what "equal access" means practically speaking. There are a bewildering number of programs, entities, situations, and circumstances to which the ADA arguably applies. What does i mean to have equal access to a restaurant, a museum, public transportation, city streets, test-administering agencies, a doctor's office, employers of all types, a convenience store, or educational institutions? Well, by now you get the idea.

For the moment we will put aside the impossible task of defining "equal access" for the blind and address instead a more current issue. Generally speaking, in our federal scheme Congress passes a law and then relies onfederal agencies to develop regulations that implement or, in many cases, hinder implementation of that law. Title II of the ADA makes it unlawful for state and local governments to discriminate on the basis of disability. Furthermore, these governments have the duty to provide access to all of their programs and facilities. This includes, of course, public rights of way.

What is a public right of way? It is a street, sidewalk, intersection, driveway, or roadway. In other words, it is any path of travel out of doors which the state or local government controls and is expected to maintain.

The Architectural Transportation and Barriers Compliance Board (hereafter ATBCB) has the duty of developing access standards for other federal departments to implement. Consequently the ATBCB has had the job of developing standards to implement many sections of Title II of the ADA. So any federal regulation regarding access to a public right of way starts first with the ATBCB.

Recently it has become necessary to revisit the regulations that apply to public rights of way and to examine new areas of concern. To that end the ATBCB has been charged with suggesting some new standards. In recent years the board has formed advisory committees which have representation from all relevant parts of the private sector, public governments, and the citizenry in general. These advisory committees write standards for the Board to consider.

Last fall, 1999, the ATBCB formed the Public Rights of Way Access Advisory Committee (PROWAAC) to revisit existing standards and consider new regulations affecting public rights of way. PROWAAC contains representation from approximately forty different entities, with most having a delegate and alternate delegate on the committee. For blindness issues representatives from the Association for Education and Rehabilitation of the Blind and Visually Impaired, the Seeing Eye, Council of Citizens with Low Vision International, the American Council of the Blind, and of course the National Federation of the Blind serve on the committee. Dr. Maurer asked Peggy Elliott, NFB Second Vice President, and me to serve on this advisory committee known as the Public Rights of Way Access Advisory Committee. Mrs. Elliott officially serves as the Federation delegate and I as the alternate delegate.

At its first meeting in December of 1999, PROWAAC decided that it would be wise to divide into four subcommittees: Intersections, Sidewalks, Roadways, and Signals and Wayfinding. Mrs. Elliott serves on the Intersections Subcommittee, and I have been serving on the Signals and Wayfinding Subcommittee.

The Intersections Subcommittee concerns itself with any design features of intersections that affect individuals with disabilities. How should curb ramps be designed so that people using wheelchairs can access them? How long and wide should these ramps be?

Blindness intersects with this subcommittee on issues like the following. Should there be detectable warnings to alert a blind person that he or she is at an intersection? Should the curb ramp be directional so that the blind can use it to determine the direction in which they should cross the street?

The Signals and Wayfinding Subcommittee addresses issues that are almost exclusive to blind people. Should there be accessible pedestrian signals at light-controlled intersections so that the blind know when it is safe to cross? Should there be detectable strips in the intersection or on the sidewalk so that the blind know which path to follow to reach a certain destination? Should there be audible signs in public rights of way so that the blind have needed information?

The initial meeting of PROWAAC addressed mainly organizational issues such as forming the aforementioned subcommittees. We got to the real work in Austin, Texas, in February of this year. At that time all the subcommittees began substantive discussions of the issues in their assigned areas of responsibility. Since February we have met in ashington, D.C., during May and in San Francisco during August. Typically these meetings last three days with time spent in both our subcommittees and in the committee as a whole.

In mid-October we will be meeting in Washington, D.C., to consider final reports from all the subcommittees and to make recommendations to the ATBCB. By the time this article is published, we will have concluded the October meeting.

After PROWAAC has made its final report, the ATBCB must adopt it in part, in whole, or not at all. After the ATBCB considers the matter, members of the public will be given the opportunity to make comments on the proposed standards coming from the ATBCB. After that period of public comment the ATBCB will adopt the final standards. Because the ATBCB has no enforcement powers, the Departments of Transportation and Justice must adopt the ATBCB's standards in regulations. When those departments do so, yet another period of public comment will be available.

So, even though very important issues are being considered by PROWAAC, the recommendations made by the committee are only advisory. However, a great deal of the ground work is being done by this group at this time, and the ATBCB, the Department of Justice, and the Department of Transportation hope to be able to adopt PROWAAC's recommendations without a great deal of additional work. Our job as the Federation will be to make our voices heard in these governmental bodies when the time is appropriate. Mrs. Elliott and I are doing our best to represent the Federation pursuant to NFB policy as expressed in resolutions adopted over the years.

Although PROWAAC has not adopted a final report yet, the subcommittees have begun proposing standards for the whole committee's consideration. It would take an entire Monitor issue to report every topic and standard considered and voted upon by the various subcommittees. I will share here some of the highlights and more important issues that affect the blind.

As mentioned previously, the Signals and Wayfinding Subcommittee has largely focused on issues concerning the blind. Specifically we have spent a great deal of time discussing accessible pedestrian signals (hereafter APS). Previously we commonly referred to APS's as audible traffic signals. Because such signals can also be tactile, the term of art is now "accessible pedestrian signal."

Although the definition of an APS is not yet set in stone, it is accurate to say that an APS is an electronic device connected to a traffic signal which will, at a minimum, give an audible or tactile message to the user when the status of the traffic light changes. From that basic definition APS's can vary greatly in the information they provide. Some have recorded voices that advise the pedestrian about the name of the street or intersection at which he or she is standing. Some have only a tactile arrow that vibrates when it is time to cross the street to which the arrow is pointing. Some have a rapidly beeping noise. Others use bird chirping and coo-cooing to indicate the onset of the pedestrian phase. Yet others are designed to provide a beacon noise so that the blind pedestrian can follow it across the intersection. Still others come complete with a locator tone which allows the blind or visually impaired individual to locate the push button so that he or she can activate the

APS.

I must report on two significant votes of the Signals Subcommittee. It recommended the following standard: wherever there is an APS, there shall be a locator tone. The subcommittee passed this recommendation on a vote of 6 to 0 to

1. I will take a moment here to explain the voting of the subcommittee and, for that matter, the voting of the committee as a whole. We vote by casting either an A vote, which means completely supportive; a B vote, which means mostly supportive but the item in question still needs work; or a C vote, which means absolute opposition to the item in question. As the Federation's representative on the subcommittee, I was the only C vote.

As indicated earlier, a locator tone allows the blind pedestrian to find the push button so that he or she can activate the signal. Earlier in the process the subcommittee had recommended that poles with these push buttons should be located at standard places on a corner. That is why I voted against installing locator tones at every signal with an APS. If we can expect to find a push button in a standard location, why do we need a locator tone to find it? In my opinion there is no reason to add additional noise to the existing environment unless absolutely necessary.

Are there appropriate places where locator tones would be helpful? Probably. For example, with a mid-block crossing controlled by a pedestrian- activated signal, a locator tone may be helpful. If you are walking along a sidewalk with a mid-block crossing, you may not notice such a crossing unless you are paying very close attention to the traffic. A locator tone in such a situation could alert the pedestrian to search for a push button and thereby find the mid-block crossing.

Earlier in the subcommittee's deliberations, we passed a recommendation that the locator tone be only two decibels above ambient noise levels. Each such tone would have a device able to sense the level of ambient noise in the intersection and adjust the level of the tone accordingly. I have observed several sites with locator tones that certainly create additional noise and distraction at the crossing. Therefore it only makes sense to limit such

noise and distraction to a minimum while providing extra auditory information only when it is absolutely necessary.

The subcommittee also considered the question of where APS's should be installed. Many different votes were taken on this issue, but one vote is particularly significant. The subcommittee voted to recommend the following standard: whenever there is a new installation of a traffic-control device, there shall be an APS. The vote on this recommendation was four voting A, one voting B, and two voting C. Ken Kobetsky of the Association of State Highway Traffic Organizations joined me in casting a C vote. Mr. Kobetsky and I both expressed the view that such a standard is too broad. The B vote was cast by Lucas Frank of the Seeing Eye. He felt that such a standard may be too

broad.

What would such a standard mean if actually adopted into enforceable regulation? The key is to understand the meaning of the term "new installation." A new installation means any time a traffic department installs a new traffic light. It is my understanding that traffic lights are replaced every ten years or so. So, whenever a municipality replaces the traffic-control devices anywhere there is an expectation that pedestrians can cross, an APS would have to be installed. Ultimately this would lead to the installation of an APS wherever a traffic-control device indicates when a pedestrian can or cannot cross the public right of way. APS's would be located at all signalized intersections, regardless of their level of difficulty.

As indicated above, Peggy Elliott sits on the Intersections Subcommittee, and, when Mrs. Elliott could not attend the August meeting of PROWAAC, Allen Harris, Treasurer of the National Federation of the Blind, capably sat in for Peggy. Because I had to concentrate entirely on the Signals and Wayfinding Subcommittee, I am not competent to report on the details of the Intersections Subcommittee's deliberations. My understanding is that the Subcommittee will recommend a standard calling for truncated domes, so-called detectable warnings, to be placed at the bottom of any curb ramp that ends flush with the street. The purpose for so doing is to alert the blind and visually impaired when they step into the street. Furthermore, I understand that the Intersections Subcommittee will recommend a standard requiring curb ramps to be directional. In other words, by their location and orientation they will indicate the direction in which a pedestrian should cross the intersection.

Are these standards concerning locator tones, APS's, detectable warnings, and directional curb ramps necessary to ensure that the blind have access to public rights of way? That is the billion dollar question. I don't have enough time or space in this article to address this fundamental question. If I had to summarize the Federation's position on these issues, I would say that we have espoused a standard saying that public entities should be required to provide those adaptations to the built environment necessary for the blind to travel safely and effectively. Tax dollars and our finite public resources should not be spent on adaptations or devices which some might find helpful but which are not necessary.

We are reporting on these issues because inevitably your rights will be affected. Your environment is where these adaptations and devices will be built and placed. It is of paramount importance that we exercise our civic duty to participate in the governance of the country. In other words, when it comes time for us to provide public comment, we must do so. If we do not take the opportunity, we may be forced to live in an environment not of our own choosing.

There are many philosophical issues which we have not been able to address here. What is "equal access"? Is it a violation of my and your civil rights not to provide all information presented visually in a non-visual format? For that matter, what is a civil right? Why is it important to advocate a standard based on necessity rather than one based on helpfulness? How should our finite public resources be allocated on behalf of the blind? These issues and others will be the focus of future articles.

Additionally, PROWAAC has not yet addressed other important matters. Where should we require talking signs? The ones PROWAAC members have examined are transmitted by remote infrared signals. The user carries a receiver, and, when he or she points it at the sign, an audio message is voiced using either a speaker or headphones.

PROWAAC has also begun considering the issue of guide strips, raised tactile bands placed in the middle of a crosswalk or sidewalk so that a blind person can feel the intended path of travel. The Intersections Subcommittee is apparently turning this subject over to the Signals and Wayfinding Subcommittee for further work. These issues and many more will be addressed at the PROWAAC meeting in mid-October. We will report to you the result of this meeting in future Monitor articles. As mentioned previously, the intention of the October meeting is to finalize recommendations to be forwarded to the ATBCB.

In one sense this article provides an answer to the question, "Why the NFB?" The blind must be active in determining the policies that will affect us. Because of our work over the last sixty years, we will have a voice, a very influential voice. We will, that is, if we take advantage of the opportunity to do so. I am confident that we will. The result will bring us one step closer to defining the meaning of first-class citizenship.

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