THE PROFESSIONALIZATION OF URBAN ACCESSIBILITY.

• Author: Dorfman, Doron

Introduction 1214 I. U.S. Disability Access Law--An Introduction to a Layered System 1217 A. The Architectural Barrier Act of 1968 1220 B. Section 504 to the Rehabilitation Act of 1973 1221 C. Title II and Title III to the ADA 1223 II. Disability Access Law in Israel--Introducing a Rights Discourse 1225 A. Paradigm Shifts in Israeli Disability Access Law 1225 B. The Equal Rights for People with Disabilities Law 1228 III. Professionalization and Urban Accessibility 1230 III. Professionalization and Urban Accessibility 1231 IV. A Diffused Model of Accessibility Professionalization in Large U.S. Cities 1236 A. Litigation and Professionalization 1237 B. Accessibility Professionalization at the Local Government Level 1242 i. New York City's Mayor's Office for People with Disabilities 1243 ii. Los Angeles's Department of Disability and San Francisco's Mayor's Office on Disability 1244 iii. Chicago's Mayor's Office for People with Disabilities 1246 V. Accessibility Professionalization and Regulation at the Local Level in Israel 1247 A. A Centralized Model and the Creation of a New Licensed Profession 1247 B. Regulation and Professionalization of Accessibility in Tel Aviv-Jaffa 1250 VI. A Vision for Urban Accessibility Professionalization 1253 Conclusion 1256 INTRODUCTION

U.S. disability access law has a compliance issue. While disability law "on the books" is composed of civil rights legislation, regulations, and specified codes, in reality, decades after their enactment, many places of public accommodation remain inaccessible and out of reach for individuals with physical disabilities. (1) Disability law scholars have observed that federal level enforcement of accessibility standards is not done at the design stage but only ex post through private litigation. (2) However, scholars have paid much less attention to the ways state and local laws enforce accessibility standards. This Article begins filling this gap in the literature by looking at the enforcement level of disability access in the context of urban built environments. (3)

Specifically, this Article examines the ways large U.S. cities have used their regulatory tools and state laws to move access enforcement forward through a process of professionalization. (4) Disability scholars have observed how disability access law increased the need for professional experts on accessibility, who serve as agents of enforcement in the early stages of planning, development, and construction in urban environments. (5) The United States did not standardize the process of producing accessibility experts on the federal level. Instead, it left the approach to states' and local authorities' discretion. Each city decides whether it wants to take an active or passive role in instituting accessibility professionals and enforcement mechanisms.

Many municipalities in large cities have established a special office or commission in charge of enforcing accessibility of the built environment. (6) Not all large cities, however, take the same approach to create expertise for implementing disability access laws, creating what this Article terms a diffused model of professionalization and enforcement. (7) While most cities take a similar "hands-on" approach with enforcing disability access laws in their government-owned buildings and facilities, various methods exist for enforcing the law in privately owned places of public accommodations. New York City does not actively enforce accessibility at private projects' approval or design stages but invites developers and architects to consult the City's accessibility professionals on their plans. (8) Big cities in California, like Los Angeles and San Francisco, use a similar approach but also rely on state law to standardize the profession of accessibility experts. A business owner or landlord is incentivized--by receiving some immunity and benefits in private litigation against them--to hire such an expert to assess their site's accessibility. (9) Chicago takes the most active role in employing accessibility professionals to review every application for new buildings or renovation permits and ensures compliance at the design stages. (10) This diffused model has affected the way disability access laws are being enforced, (11) as the role of accessibility professionals was not clearly established ex ante at the design level of the built environment, but ex post through private litigation over buildings already erected. Scholars argued the limited mechanisms for enforcing accessibility established in the ADA--composed of private litigations from which plaintiffs could not get monetary damages--are a reason for still-widespread noncompliance with accessibility standards. (12) In addition, an orchestrated campaign against plaintiffs bringing accessibility suits also contributes to the lack of enforcement. (13) This Article argues that encouraging enforcement of disability access laws in the design and execution stages by certified accessibility professionals, rather than relying on litigation ex post, would provide a solution to a model that has proven ineffective in ensuring accessibility.

This Article also looks beyond the United States to Israel, a country that modeled its disability rights laws after those of the United States (14) but with a centralized model of professionalization and enforcement, standardized, streamlined, and enforced at the national level. (15)

The two legal systems diverge on issues of federalism, the role of government, and legal culture, yet they converge on their views of the ways disability antidiscrimination law should look. The Israeli system, however, embraces a centralized and proactive approach to the professionalization of accessibility experts and enforcement of accessibility, putting in place national regulatory mechanisms that can only be found sporadically within local governments in the United States. The Israeli ideas about enforcing accessibility are not entirely foreign in the U.S context; showing how a full embrace of these mechanisms can look is instructive in offering valuable lessons and recommendations on how professionalization could lead to enforcement of accessibility standards.

This Article looks at how the Israeli Commission for Equal Rights for People with Disabilities, a statutory body, has actively enforced disability access laws through various tools indicated in Israeli disability rights legislation, including creating a new licensed profession. The Article then describes how the city of Tel Aviv-Jaffa, one of the most influential municipalities in Israel, has dealt with accessibility professionalization and enforcement of the law on its premise. (16)

After analyzing the different models and ways to ensure access, the Article moves to a normative level and offers a vision for urban accessibility professionalization. (17) It alludes to the inherent tension within the professionalization process regarding participation by lay, disabled citizens with "access-knowledge" stemming from lived experience (18) as well as the need of standardized training and certification. It also offers ways to create a more effective, standardized, and inclusive avenue to ensure accessibility in urban environments.

This Article proceeds as follows. Section I describes the three-tiered system of U.S. disability access laws, briefly illustrating and contextualizing federal accessibility laws and regulations. Section II describes and contextualizes Israel's disability access law system. Section III briefly discusses existing approaches and theories on accessibility professionalization. Section IV introduces and discusses the U.S. diffused model of accessibility professionalization and enforcement on the municipal level in select big cities: New York City, Los Angeles, San Francisco, and Chicago. Section V presents the centralized Israeli model of accessibility professionalization and enforcement and discusses its implementation in the city of Tel Aviv-Jaffa. Lastly, the Article turns to our proposed vision for urban accessibility professionalization in Section VI and then concludes.

1. U.S. DISABILITY ACCESS LAW--AN INTRODUCTION TO A LAYERED SYSTEM

   Access is foundational for disability rights, both conceptually and practically. (19) Without the ability to navigate the built environment, people with disabilities cannot enjoy the same services and opportunities nondisabled individuals get, and they cannot exercise their rights as equal citizens. (20) Thus, the accessibility of public space is the cornerstone for the "right to live in the world." (21)

   Traditionally, disability access law has been thought to apply differently in the public sphere than in the private sphere. The main laws and regulations focused more on the public sphere and less on private property, striking a compromise between disability rights advocates' and property owners' interests. (22) This Article focuses on disability access law, specifically the need for accessibility in the public sphere.

   U.S. disability access law operates on three levels: federal, state, and municipal. The Americans with Disabilities Act (ADA), the most comprehensive civil rights and antidiscrimination law pertaining to people with disabilities, sets standards and deals explicitly with accessibility in public spaces. It is not, however, a planning and zoning law. That is why the ADA and other federal disability rights laws do not preempt local land use and zoning law created in accordance with state property law. (23) States have the authority to regulate planning and zoning through the Tenth Amendment's police powers, and they delegate this authority to the local government. (24) Therefore, planning and executing inclusive and accessible urban development, in large part, rests with local and regional authorities. (25) The rationale is connected to the main topic of this Article--expertise. Local governments are in the best position to know the community...