The right to be rescued: disability justice in an age of disaster.

• Author: Weibgen, Adrien A.
• Position: Introduction through III. Origins of BCID v. Bloomberg, p. 2406-2436

NOTE CONTENTS INTRODUCTION I. THE MORAL CHALLENGES OF DISASTER PLANNING FOR PEOPLE WITH DISABILITIES II. THE AMERICANS WITH DISABILITIES ACT, THE REHABILITATION ACT, AND THE RIGHT TO BE RESCUED : A. Statutory Framework for Legal Challenges to Emergency Plans for PWDs B. What Do the ADA and RA Require in an Emergency? 1. Cases Challenging the Practices of Private Entities or Individual Agencies 2. Structural Reform Litigation III. ORIGINS OF BCID V. BLOOMBERG IV. THE PERFECT STORM: CLASS CERTIFICATION & HURRICANE SANDY A. Hurricane Sandy Hits B. Standing To Sue and Class Certification C. Wal-Mart v. Dukes: The Challenge That Wasn't D. How Hurricane Sandy Impacted the Case E. The Trial V. THE RULING AND SETTLEMENT CONCLUSION: RAISING UP THE RIGHT TO BE RESCUED: THE SIGNIFICANCE AND PROMISE OF BCID INTRODUCTION

We are living in an age of disaster. Since 1980, the United States has sustained 178 weather and climate disasters in which overall damages reached or exceeded one billion dollars. (1) The United States experienced eight such disasters in 2014 alone, including tornados, hurricanes, post-tropical cyclones, droughts, wildfires, and other severe weather events. (2) As startling as these figures are, they are likely to get worse in the years ahead; the risk of disasters is on the rise. From 2000 through 2009, there were three times as many natural disasters as there were from 1980 through 1989; climate-related disasters accounted for about eighty percent of this increase. (3) The impact of these disasters will continue to increase as population and economic resources become increasingly concentrated, and increasingly concentrated within areas that are disproportionately vulnerable to disasters, (4) including coastal cities.

As communities face more and more climate-related challenges, they will face more moral ones as well. Although it is tempting to think of weather and climate incidents as "natural" disasters, that is a misnomer; nearly all "natural" disasters arise in part from human error or oversight. (5) More fundamentally, the choices we make about where to live, how to live, and how to build put us at risk for disasters. In this way, disasters are socially constructed. How we choose to respond to the urgent human needs that arise from large-scale weather events determines the degree to which these events become "disasters." As disasters become more frequent, social inequalities will be thrown into sharper relief, and the consequences of such inequalities will become increasingly dire. Communities will be forced to grapple with two essential questions: in preparing for disasters, how "ready" is ready enough, and to what degree should identity and social status determine who is put in danger, left in misery, and left to die?

This Note explores the legal responsibilities of local governments toward marginalized communities in a time of crisis and argues that people with disabilities (PWDs) have a "right to be rescued": a legal right to have their unique needs accounted for and addressed in emergency planning. Exploring a series of cases that established this right, I focus on an innovative class action lawsuit in which the court found that the City of New York failed to ensure that PWDs have meaningful access to the City's emergency services. In Part I, I examine the moral challenges inherent in disaster planning for PWDs, arguing that the tendency to under-plan for the needs of PWDs during periods of disaster stems both from a general misunderstanding of their unique needs and from a tacit acceptance of the notion that emergency planning requires prioritizing some lives over others. In Part II, I explain how the Rehabilitation Act of 1973 and the Americans with Disabilities Act create a framework for disability rights litigation, but leave open the question of the extent to which government actors and private entities must plan for the evacuation of and communication with PWDs in times of emergency. I explore the small handful of cases that have addressed this issue to date, providing the context in which the case against the City of New York ultimately arose. In Part III, I discuss the origins of that case, Brooklyn Center for Independence of the Disabled (BCID) v. Bloomberg, and describe the parties' disagreements about what constitutes harm. In Part IV, I detail the dramatic intervention of Hurricane Sandy mere days before the class was certified, and I explore the effect of the storm on the trial. In Part V, I discuss the ruling in the case, the stipulation of settlement, and its significance in helping to strengthen the legal foundation of the right to be rescued. Finally, in Part VI, I discuss the significance and promise of the BCID ruling and the principles that should guide emergency planning for PWDs in light of recent litigation and other considerations. In particular, I argue that cities should consult with PWDs and outside experts to create detailed plans that anticipate and clearly address the needs of PWDs in emergencies, and that cities should clearly communicate the range of available services to provide PWDs with the opportunity to plan for their own needs.

As New York rebuilds after Hurricane Sandy, the nation faces a future in which disasters will become the norm. This Note argues that the story of BCID v. Bloomberg and the man-made disaster that surrounded it should serve as a call to action for other urban areas that have yet to adequately plan for the needs of PWDs in emergencies. Adequate planning for the needs of PWDs during disasters is not merely morally correct; it is legally required, and it is critical that local governments get their plans in order before the next storms, and lawsuits, come.

1. THE MORAL CHALLENGES OF DISASTER PLANNING FOR PEOPLE WITH DISABILITIES

   Almost one in five people in the United States has a disability, and of those, more than half report having severe disabilities. (6) Despite this reality and despite legal protections that are meant to ensure reasonably equal access to PWDs, many programs, services, public facilities, and private establishments remain inaccessible to PWDs and are not planned with the needs of PWDs in mind. (7) Similarly, although large-scale disasters occur with relative frequency, few people invest significant mental energy into planning ahead for catastrophes or regard the possible occurrence of an extreme weather event as a part of everyday life. As a result, planning for the needs of PWDs in a time of disaster requires thinking along two axes that are out of the ordinary and present many unique challenges--both moral and legal.

   As this nation's experiences during Hurricane Katrina, Hurricane Sandy, and other disasters have made clear, extreme weather events and other emergencies do not impact all populations equally. It is uncomfortable to recognize our collective role in apportioning the burdens of calamitous events; indeed, "natural" disasters are so called because "it suits some people to explain them that way. As 'natural' events, disasters are nobody's fault." (8) But "risk and vulnerability are not indiscriminately distributed in disasters, nor are preexisting systems of stratification eliminated"; (9) instead, disasters frequently exacerbate forms of social marginalization that existed all along. (10) For instance, people who are poor are less likely to have ready access to cash and private vehicles to evacuate in a disaster. (11) Where poor people are concentrated in a neighborhood, entire neighborhoods may be at great risk and face difficulty complying with evacuation orders, as was the case in New Orleans during and after Hurricane Katrina. (12)

   PWDs are particularly at risk during times of disaster as a result of various impairments. Many PWDs, including those who are blind, deaf, or hard of hearing, may have difficulty accessing the information they need to escape safely. (13) Those with mobility issues may be unable to exit their homes and make their way to safe shelter without dedicated assistance and accessible transportation options--an everyday challenge that can quickly become deadly. (14) Sadly, "[i]t is no surprise that people with disabilities are often overlooked or given short shrift when ... emergencies arise. In the best of circumstances, challenges facing this group may be invisible because they arise out of the implicit assumptions and institutional arrangements that form the backdrop of daily life." (15)

   The failure to plan for the needs of the most at-risk populations during periods of disaster may also be rooted in the rationale that emergencies require us to prioritize the needs of some at the expense of others. As one scholar has noted,

   [T]he principle of utility might translate into a policy of attempting to save the greatest number of lives and thus to direct treatment to those who are most likely to benefit from it.... Utilitarian principles might militate against prioritizing care for the disadvantaged in an emergency if such individuals would require a disproportionate amount of resources. (16) Arrested for murder after actively hastening the deaths of patients at the Memorial Medical Center in New Orleans during Hurricane Katrina, one physician went on to argue "for changing the standards of medical care in emergencies," reportedly contending, "that doctors need to be able to evacuate the sickest or most severely injured patients last." (17) Although many PWDs are healthy people who live independently, emergency management and disaster responders often incorrectly equate disability with illness and do not see the need to plan for PWDs as part of the general population during times of emergency. (18) Indeed, in many instances, officials may not see the need to plan for PWDs at all, as the BCID plaintiffs argued in their suit against the City of New York. (19) As one expert on the needs of PWDs during disasters explains, "People with disabilities are thought of as almost, but...