TOWARDS AN URBAN DISABILITY AGENDA.

• Author: Bagenstos, Samuel R.

Introduction 1335 I. Principles 1336 A. Independence 1338 B. Integration 1339 C. Democratic Participation 1340 D. Full Access to Economic, Educational, and Recreational Opportunities 1342 II. Problems 1343 A. The Legacy of Inaccessible Design 1343 B. The Unavailability of Public Transportation 1348 C. The Inaccessibility of New Technology 1351 D. Legal and Practical Limits on Cities 1354 E. The Disenfranchisement of Disabled Peoble 1355 Conclusion: Speculations on the Prospects for Action 1357 INTRODUCTION

The overwhelming majority of Americans with disabilities live in metropolitan areas. (1) Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems--or even the so-called "urban crisis"--during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even when city leaders have focused attention directly on the impact of disability policy on their municipalities--for example, Philadelphia Mayor Ed Rendell's attacks in the mid-1990s on the Americans with Disabilities Act's (ADA) requirement to install curb cuts--they have done so as part of a more general attack on mandates on state and local governments, in and out of the disability context. (2)

This symposium is a welcome exception to these trends. By focusing specifically on the intersection between disability and the city, the papers from this conference will spur discussion of these important questions. In this contribution, I ask what we should want from an urban disability agenda. I begin by setting out some principles that should guide such an agenda. I then highlight some of the key barriers, in existing law and politics, for achieving those principles. In the last Section, a brief conclusion, I speculate on the prospects for addressing those barriers and ask whether the COVID-19 pandemic has made effective action on this front more or less likely.

I offer this contribution as an exercise in issue spotting. My goal is not to set forth a detailed critique of any current urban policy, nor is it to offer any particular path forward. Rather, it is to identify some key considerations for policymakers to address as they construct a truly inclusive urban agenda.

1. PRINCIPLES

   In this Part, I offer four principles that should guide an urban disability agenda: independence, integration, democratic participation, and full access to economic, educational, and recreational opportunities. I derive these principles from two sources: the goals central participants in the American disability rights movement articulated, and the positive values that urbanists argue cities can provide. Entire books have been written to articulate, defend, complicate, and challenge these principles. In this brief Essay, I cannot offer a full defense or even elaboration myself. I offer these principles simply as a set of plausible guideposts for a policy agenda.

   I should emphasize that these are ideal principles against which we might judge disability policy, and urban policy, and the intersection of the two. Of course, current practice fails to meet those ideals in any number of ways. Part II of this Essay discusses the ways in which cities fall short in achieving these ideals for people with disabilities. But we cannot forget the ways in which our system fails to achieve these ideals for many nondisabled people as well. In particular, the structure of cities and local government law often rests on and reinforces racial and socioeconomic segregation, in ways that directly conflict with the principles of integration, democratic participation, and full and equal access to opportunities. (3) I take it as a given that any urban agenda should seek to fight those harmful tendencies and achieve the valuable ideals that push in the other direction, in and out of the disability context.

   This Essay focuses on the disability slice of the problem, because that is the topic of this symposium. An urban disability agenda, in my view, should be part of a broader democracy-and-equality agenda. And that broader agenda may appropriately push to expand the power of other levels of government--federal, (4) state, (5) or regional (6)--over cities. But to the extent that cities continue to have an important role in our politics and society, they should pursue the following principles in addressing disability. Those who seek to promote what Richard Schragger has called "a revived urban liberalism" (7) should think of disability--and the principles below--as a key part of that program.

   1. Independence

      In previous works, I have argued that one overarching principle helped to unite disparate strands of the United States' disability rights movement as it coalesced in the 1970s and 1980s. That principle was "independence." Independence is an ideal with a strong resonance in American culture. But disability rights activists offered their own distinct spin on that ideal. They did not define independence as rugged individualism or negative liberty. Rather, they understood the concept "in terms of agency, freedom from paternalistic institutions, and the ability to live a full life in the community." (8) Importantly, these activists recognized that assistance and support might be necessary to enable disabled individuals to experience independence. One student of the independent living philosophy put the matter particularly pithily: "A person who can get dressed in fifteen minutes with human assistance and then be off for a day of work is more independent than the person who takes two hours to dress and then remains homebound." (9) Consistent with this view, most American disability rights activists have sought policy interventions that enable people with disabilities to make effective "choices concerning how to live their lives, what services to receive, and how and where to receive them." (10)

      An urban disability agenda should strive to promote this sort of independence. It should seek to eliminate those physical, policy, and attitudinal barriers that prevent disabled people in urban settings from making choices that control their own lives. And it should support the services that will enable individuals with disabilities to make such effective choices.

   2. Integration

      Integration, too, should be a goal of an urban disability agenda. As with independence, American disability rights activists generally strongly support integration as a policy goal. The history of disability in this country has been one of separation and exclusion. At least until the efforts of the disability rights movement began in earnest, disabled people were frequently sequestered in separate institutions out of the mainstream of American life. The result, for people with disabilities, was substandard services, (11) exclusion from important opportunities in the community, and increased stigma. (12) In a vicious cycle, separating disabled people from the community reinforced societal prejudice, which fed efforts to maintain the separation. (13)

      Disability rights activists have thus sought "the full integration of people with disabilities into all areas of public, civic, and community life." (14) Integration is important because it provides disabled people access to opportunities and because it reduces stigma and prejudice.

      The city is a key location in which integration can take place--both in and out of the disability context. As political theorist Iris Marion Young argues, integration is--ideally, though too often not in practice--a key component of city life: "Different groups dwell in the city alongside one another, of necessity interacting in city spaces." (15) City life thus can be well-positioned to "instantiate[] social relations of difference without exclusion." (16) Local government law scholar Gerald Frug argues that cities can help reap important benefits of building community by "foster[ing] their citizens' engagement with otherness." (17) A disability urban agenda should ensure that the "otherness" in which city residents engage reaches across the disabled-nondisabled divide.

   3. Democratic Participation

      The city has long been understood as a vehicle for self-governance--one that is more accessible to the public than state or federal governments. This point goes back to Tocqueville or even the Greek city-states. But the notion of the city as "the hope of democracy" has many modern adherents. (18) Frug, for example, argues: "Reestablishing the definition of political democracy as popular involvement in the decisionmaking process, rather than as merely providing a choice of candidates at an election, is possible only at the local level." (19) Law professor Yishai Blank summarizes an extensive literature showing that "[p]opular participation in the political process is often more equitable, more accessible, and less expensive in local settings. And lay participation in local government and politics--much more prevalent than in state or federal institutions--creates the opportunity for people to participate in decisionmaking, and breeds good democratic citizenship." (20) Even those who do not endorse Frug's intensely participatory understanding of democracy can agree that in a smaller polity, it is easier for individual citizens to affect the outcomes of elections and participate in pluralist bargaining. (21) A disability urban agenda, therefore, should aim to ensure that the avenues of democratic participation are open to those with disabilities.

      Ensuring that disabled people can participate in urban governance has distinct benefits, whatever one's understanding of democracy. First, it provides them the opportunity to participate in the...