Introduction 1140 I. Understanding Independent Navigation by Blind Individuals 1144 A. Blindness Defined 1144 B. Blindness as a Legally Protected Disability 1148 1. The Americans with Disabilities Act 1148 2. Americans with Disabilities Act Accessibility Guidelines (ADAAG) 1150 3. The Rehabilitation Act of 1973 1150 4. State and Local Statutes 1151 II. Title II of the ADA and the American Council of the Blind Cases 1152 A. ADAAG as One Key to Violations of Title II of the ADA 1152 B. Sidewalk Accessibility Cases 1154 C. Injunctive Relief and Court Monitoring 1158 1. Injunctive Relief 1158 2. Court Monitoring 1159 D. American Council of the Blind APS Cases 1163 1. American Council of the Blind of New York, Inc. v City of New York 1163 2. American Council of the Blind of Metropolitan Chicago v. City of Chicago 1169 III. Mandate of the ADA: Court Monitoring is a Solution 1171 A. Analysis of Liability 1171 B. Independent Standards / ADAAG 1174 C. Model for Independent Monitor 1175 D. Future Developments 1177 1. Vision Zero Collaboration 1177 2. Emerging Technologies 1179 Conclusion 1180
INTRODUCTION
"Every day I cross New York City streets and I am scared I will be killed because there are not enough [Accessible Pedestrian Signals]. (1) Without fail, at least once a day, I almost get hit by a vehicle because of the lack of APS telling me where and when it is safe to cross." (2)
These are the words of Christina Curry, one of the named plaintiffs in American Council of the Blind of New York, Inc. v. City of New York. (3) Ms. Curry, who is legally blind and has severe hearing loss as well as a mobility disability, has some remaining usable vision. (4) However, she cannot see traffic in street crossings unless it is very close to her and therefore cannot rely on visual street signals to help her cross a street. (5) She lives in the Bronx, works in Harlem, and uses New York City sidewalks just like any sighted pedestrian: to commute to work, run errands, visit doctors, and meet friends all over the city. (6)
In addition to fearing for her life when she crosses an intersection, Ms. Curry faces inconvenience, frustration, and humiliation as a blind person attempting to navigate the pedestrian grid in New York City. (7) Before traveling, she maps out how to get to a specific location by taking the least dangerous path, even if it means taking a longer route. (8) She tries to cross an intersection only in packs of people, often waiting as long as 20 minutes for others to show up so she can cross with them. (9) She sometimes crosses streets by using subway stations instead of the crosswalk, walking downstairs and underground to the other side of the street, which takes more time, energy, and money. (10) She even uses taxis and car services to avoid walking where she feels unsafe. (11)
Ms. Curry is not alone in her struggles. Seven million people living in the United States have some degree of vision loss and an additional one million are blind; (12) an estimated 43 million people worldwide live with blindness. (13) Vision is not binary--in that one is sighted or is not sighted--but rather exists on a spectrum, and blindness also exists on a spectrum. (14) While there are differing types of challenges that visually impaired people face, depending on how much usable vision they possess, if any, visually impaired people are capable of independently navigating their environments. (15) To do this, they use white canes, (16) guide dogs, (17) and sighted guides. (18)
Street intersections pose a particularly difficult challenge for those with low or no vision. (19) Signalized intersections provide visual information about crossing safety in the form of green lights and walk signals. (20) Low vision pedestrians rely heavily on their audio cues to know when it is safe to cross. For example, they listen for oncoming traffic as well as traffic running parallel to where they are standing, and they listen for other pedestrians and cross with them (21) (as Ms. Curry does). (22)
However, there is a solution to the problems in crossing intersections that Ms. Curry and other visually impaired people face daily: APS. This solution helps blind and low vision pedestrians safely cross intersections, both quickly and with complete independence. (23)
APS are devices that communicate information about pedestrian timing in nonvisual formats such as audible tones, verbal messages, and vibrating surfaces. (24) According to Ms. Curry:
APS [have] a vibro-tactile surface that I can press that vibrates when it is safe to cross, and its arrow points to the crosswalk so I know exactly where to cross. Because I cannot see visual pedestrian signals, APS help[] me orient myself to the crosswalk and know when it is safe to cross the street. (25)
Research shows that Ms. Curry's experience is typical of the success blind users have with APS. These devices allow users to be significantly more accurate in their judgment of when the walk signal begins, reduce the number of crossings blind pedestrians begin during the "Don't walk" phase of the cycle, reduce delay in blind pedestrians' crossings, and result in significantly more crossings completed before the signal changes (i.e., increased safety in crossings). (26)
While APS have been available for decades, and the City of New York installed its first in 1957, (27) they are still not widely used at intersections. Plaintiffs have brought suits alleging that cities are violating the Americans with Disabilities Act (ADA) by failing to provide APS. (28) Title II of the ADA requires public entities, including local governments, (29) to allow people with disabilities to benefit from all of their programs, services, and activities. (30) There has been debate about what constitutes a program or service of a public entity, (31) including whether sidewalks qualify as a program or service of a city. (32)
However, two recent cases brought by the American Council of the Blind (33) against the cities of New York (34) and Chicago (35) have found that the cities have violated the ADA by not installing APS at signalized intersections. The New York case is currently in remediation (36) and provides a useful model for other cities, including Chicago, which is still in the process of agreeing to a remedial plan. (37) The Southern District of New York held that it needed to remain involved to make sure that New York City's plan for installing APS at intersections was ambitious enough to be meaningful. (38) As Ms. Curry noted, her "goal in this case is to improve the safety of New York City's intersections for blind and deafblind people through the installation of APS." (39) APS can improve the safety of all intersections across the country for blind and low vision people.
This Note explores the way that courts can and should intervene to address Title II ADA violations by cities for lack of APS at intersections and to give meaningful access to the pedestrian grid to blind and low vision individuals. Part I will provide an overview of the landscape surrounding independent navigation for blind individuals, including the use of APS, as well as an overview of disability rights laws including Title II of the ADA. (40) Part II will examine how the ADA is applied in cases like the two American Council of Blind cases mentioned above, in a variety of settings, with specific reference to remediation. (41) It will then examine the two cases in question and the approaches courts have taken to remediate the ADA violations. (42) Part III will argue that the model that the District Court put into place, with monitoring by the court, is useful for future suits. (43) While litigation is cumbersome, the courts exist to provide remedies like these and will play a vital role in providing meaningful access to the pedestrian grids for blind and low vision individuals. Similarly, city planners in other jurisdictions can look to the findings in these cases to understand their liability in terms of compliance with Title II of the ADA. Finally, there is an opportunity for the low vision community to collaborate with the Vision Zero movement. The goal of the Vision Zero movement, discussed further in Part III, is to eliminate traffic fatalities, and installing APS at intersections would certainly further this goal.
I. UNDERSTANDING INDEPENDENT NAVIGATION BY BLIND INDIVIDUALS
Part I of this Note gives an overview of the landscape of independent navigation by blind individuals. Section I.A provides a primer on blindness, accommodations for individuals with low vision, and APS as a solution for independent navigation for blind and low vision pedestrians. (44) Section I.B discusses blindness as a legally protected disability under the ADA and other regulations, with a particular focus on Title II. (45)
A. Blindness Defined
As discussed in the Introduction, (46) blindness is not a binary in which either one can see, or one cannot see. (47) There are many facets of human vision. (48) The facet with which most people are familiar is visual acuity, (49) which is measured by a standard eye chart. (50) The most commonly used chart, the Snellen chart, has 11 rows of capital letters, with the top line being the large capital "E" and representing 20/200 vision. (51) The lower lines on the chart represent progressively greater visual acuity, going beyond 20/20 to 20/15 or even 20/10. (52) While visual acuity is one facet of vision, it is primarily concerned with clarity of central vision and the ability to take in information at a distance. (53) Another important facet of vision is the visual field, which encompasses peripheral vision. (54) This is measured not through an eye chart, but by having a patient look straight ahead while attempting to see items at the outer edges of their visual field. (55) Finally, vision consists of the ability to see in full light as well as low light; some blind people have trouble with night blindness, or the...
