by Stephen Rosenbaum
Several weeks ago, a U.S. Court of Appeals ruled that Arlington, Texas had to make its newly built or remodeled sidewalks accessible to its disabled residents—or to anyone with a disability who might walk or roll in this city of over 365,000. Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011). The ruling itself is not remarkable. In fact, three other federal appeals courts had previously determined that newly constructed or altered sidewalks constitute a “service, activity or program” for purposes of the Americans with Disabilities Act (ADA), making municipalities responsible for their continued accessibility. Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993);
Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002); and Ability Center of Greater Toledo v. Sandusky, 385 F.3d 901 (6th Cir. 2004). In the Sacramento case, the Supreme Court had declined to take up the City’s appeal.
What is remarkable is how long it took the Fifth Circuit Court—whose decisions hold sway in three southern states—to get in step with circuits on the west and east coasts and the Midwest. On September 15, a narrow majority of the court (8-7) sitting en banc reversed an earlier ruling by a three-judge panel, essentially adopting the reasoning of their fellow judges in the other circuits. The panel’s decision in favor of Arlington had turned not only on the nuanced definition of “service, [activity or program].” In their zigzag deliberative journey, the three jurists had also considered whether the plaintiffs had standing and a right to file an enforcement action as private citizens against this city just west of Dallas, and whether their suit was timely. 575 F.3d 432 (5th Cir. 2009)(“Frame I”), withdrawn, 616 F.3d 476 (5th Cir. 2010)(“Frame II”). This is not about hypotheticals or symbolism. The use of a pedestrian walkway can mean the difference between safety and serious injury, or even life and death, for people with disabilities. It is key to independence and mobility. An estimated 13.5 million Americans use wheelchairs, canes, crutches, or walkers, according to recent census data, and 7.8 million people report some level of visual impairment, including 1.8 million who are completely blind. US Census (2008) The Kinney court observed almost two decades ago that sidewalk inaccessibility is an “obstacle to the smooth integration of those with disabilities into the commerce of daily life.”
As I walk the streets of Egypt’s largest city, I wonder what a sidewalk accessibility mandate would mean in Cairo. I say “walk the streets” for a reason. The concept of sidewalk as path of pedestrian travel doesn’t really exist here, except for tourists and newly arrived expatriates. Side streets or highways. Two lanes or six. You walk in that narrow space between parked cars—or double-parked cars—and moving traffic. Your elbow may come close to a side view mirror or your knee might brush up against a fender turning right in front of you. Oh, and not all drivers use their headlights at night. Yes, when in Cairo, do as the Cairenes do. The question I’ve been unable to answer, however, is: Are people walking in the streets because the sidewalks are universally inaccessible, or is sidewalk maintenance such a low priority because the custom is to walk alongside traffic?
True, the curbs are very high and curb cuts and ramps are virtually non-existent. Where they do exist, it is to facilitate a wheelbarrow or delivery dolly. They tend to be too narrow or too steep, and above street-level. The sidewalk surface is uneven, composed of a mosaic of pavement stones and tiles. Under foot there are invariably upended pieces of pavement, wide cracks, craterlike gaps, fresh and dried excrement, bricks, sand piles and sandpits, fallen branches and rubbish. You might find a tree, signpost or potted plants in the middle of the path, the hood of a parked vehicle or young people seated at café tables sipping sodas or smoking shisha. You might even stumble upon a flock of lambs patiently waiting for slaughter before the Eid al-Adha holiday. All of this is in addition to the permanent layer of casually tossed litter. Occasionally the pavement narrows, as it does in many developing countries and European city centers, to less than two feet in width. Lastly, there is the ubiquitous drip of overhead air conditioner units (slightly better in cooler temps and more affluent neighborhoods) which makes sidewalk travel that much more unpleasant.
To be sure, the condition of these sidewalks does not square with the ADA, as interpreted by the various American appellate courts. That is, sidewalk as a “public forum” that facilitates the public’s “convenience and benefit” of a safe means of transportation. Or sidewalk as protection for pedestrians from the “very real hazards of traffic” by providing “safe passage.” In its brief on behalf of the Arlington plaintiffs, the Department of Justice argued that maintaining a system of sidewalks for personal, commercial or other purposes is “one of the most fundamental services provided by any municipality.” Amicus Brief at p. 3. It is a good thing that Egypt is not subject to Fifth Circuit law—or Second, Third or Ninth— as these concepts do not really translate easily here. Newly built or altered, it seems to make little difference as the sidewalk is anything but an efficient means of transportation, much less a public forum.
To the extent there is applicable law, it is of the soft variety. The U.N. Convention on the Rights of Persons with Disabilities was ratified by Egypt in 2008, weeks before its entry into force. Article 9(1) is unsurprisingly general, calling on state parties to “take appropriate measures” to ensure equal access to the physical environment and to transportation. Facilities and services are to be “open or provided to the public.” There is surely no national or international adjudicatory body about to parse the meaning of “facilities and services” in the Egyptian context, much less order implementation of Article 9 to the degree required to “eliminat[e] obstacles and barriers” to roads, transportation and workplaces, which is also called for in this article. UN Convention National law is no help either. The basic disability legislation, Law No. 39 of 1975, has longstanding explicit provisions, albeit unenforced, about rehabilitation and vocational and employment quotas Rights of Disabled Persons in Egypt
No statute, however, addresses disability-based discrimination, access or barrier removal. But, there is a lot of talk about adopting comprehensive legislation, particularly since the January 25 Revolution.
Where the pavement is accessible in Egypt, it is likely to be found adjacent to (new) government facilities. Only then might one see identified and unambiguous disabled access and signage, as in parking lots, paths, or ramps. Government should be the leader in fostering civil rights—in employment, services, education, and transportation and access. Interestingly, the three-judge panel that originally heard the Arlington case had held that only those sidewalks which are “gateways” to public services, programs or activities need to be made universally accessible. 616 F.3d at 488. In its en banc decision, the 5th Circuit court rejected this as “arbitrary and unworkable,” but the dissent held to the gateways concept, although narrowed it further. In a caustic opinion written on behalf of the seven dissenters, Judge Jolly (who authored the Frame I and II panel decisions) found that in the “specific and limited context of ‘designated public transit services’” cities do have a duty to make their services, activities and programs equally accessible, including access to public facilities. 657 F.3d at 244. This more restricted reading would probably suit Arlington’s city council or risk manager just fine, as it is the largest city in America with no comprehensive public transportation system. This interpretation might also please the Cairo Governate, as public transit as a percentage of daily traffic has actually decreased in the last 40 years, according to Economist and Urban Planner David Sims. Worse, there are no signs since the January 25 Revolution that anyone in government or the many political parties is paying attention to transportation or planning, Sims recently told a lecture audience in the Zamalek district of Cairo. Likewise, equality and disability non-discrimination are not on the platform of any of the 30 or so major parties fielding candidates in parliamentary elections later this month.
It’s not like municipal maintenance of the public thoroughfare is a foreign concept here. Every morning men are toiling with handmade date-palm brooms and well-worn polyethylene bins. There are also men (and boys) who haul threadbare woven sacks brimming with trash, on their backs and in trucks. However, there seems to be excessive attention paid to the streets—even washing down the pavement, to go along with the obsessive car polishing and windshield wiping —while sidewalks are just partially cleared, dotted with neatly piled stacks of garbage or sand awaiting removal, but never totally free of debris, depressions or loose pavement. The Egyptian notion of the commons is a bit mysterious, which may explain why maintenance is not a fundamental municipal service. Scrupulous sweeping and squeegee mopping by individual proprietors may occur directly in front of a retail shop or in a residential or commercial building foyer. But, the adjacent walkways, hallways or stairwells will remain littered with food wrappers, cigarette butts, vegetable scraps, grime and grit. The communal garbage room in an apartment building could have as much trash lying on the floor or in front of the elevator door as is flung into the old-fashioned, multi-storey chute. (Don’t even think about recycling as a mitigating factor, although it seems to be done informally, if not optimally, at a stage beyond consumer participation). None of this bodes well for Cairo’s population with mobility impairments. From block to block, they are at the mercy of both the private and public sector’s sense of spatial responsibility.
The habit of strolling next to cars should not at all suggest that streets as de facto pedestrian thoroughfares offer protection or safe passage—whether disabled or nondisabled. Cairo is usually at the top of lists like World’s Worst Driving and Worst Traffic Jams. The concept of right-of-way depends on who has higher acceleration or a louder horn. Marked pedestrian crossings are rare and barely visible. Traffic lights are equally rare and optional at best. Police officers ambivalently perform their duties at busy intersections—and their directions are not necessarily heeded. If you want to cross a street, do not expect any break in traffic or reduction in speed by approaching vehicles. Do plan to cross boldly and without hesitation, even when the traffic flow is 50 mph / 80 km/h. It should come as no surprise, then, that disability visibility is pretty low in public spaces.
What exactly are the mobility and transportation options for people with disabilities in Greater Cairo? According to Egypt’s statistics agency, there are approximately eight million people with disabilities. Of this number, about 15 percent have physical disabilities, seven percent have impaired vision and four per cent have impaired hearing. The Egyptian Gazette (Mar. 24, 2010) I may see an adult outdoors being wheeled in a chair at most twice a month, or a blind person using a cane on the arm of another. My sightings have been too brief to know how they got that far and how they will reach their destination. Down the block from my apartment, I was slightly startled one morning to see a man crawling on his knees, yes, in the middle of the street with bumper-to-bumper cars, and casually greeting me with Sabah al-khair. Safety aside, these are not images of independence or dignity.
Buses and mini-vans abound—some are public and many are part of the informal sector. The microbuses are always jammed, with no pretense of accessible entry and seating. Some newer and larger public buses are less full, but I’ve not glimpsed any with kneeling devices or platform ramps. Taxicabs are ridiculously cheap, and plentiful. Even when not signaling for a taxi, a tourist is likely to find a cabbie actively trolling for passengers. Alas, they are not seeking disabled riders, and cabs are not wheelchair-accessible. As much as Mayor Bloomberg’s remarks last month were out of place in New York, they would be but a sad understatement if uttered today in Cairo: “[I]t’s too dangerous” for wheelchair users to hail a cab and most taxi drivers would “pretend they didn’t see them.” They “sit too far from the driver to establish a dialogue” and therefore “would not tip well,” he told the press in an effort to bolster his opposition to a Justice Department lawsuit to increase the number of accessible cabs. United Spinal Ass’n
Economist and Planner Sims writes in Understanding Cairo in Revolutionary Times that 88% of Cairenes are carless and dependent on public transit and yet private automobiles make up more than 2/3 of the city’s daily traffic. American University Cairo Press So, even if disabled residents and commuters have the assistive devices to leave their homes, they would have to know (or be) one of the few owners of a vehicle that can accommodate them as passenger or driver.
In a less-publicized revolutionary side story, disabled citizens are indeed taking to the streets—to protest. It started even before the Tahrir Square demonstrations leading to the ouster of President Mubarak. The campaign has intensified since then, with old demands cloaked in revolutionary rhetoric. The accompanying themes of desperation (threats of collective suicide) and pity may not be in sync with the international disability rights movement, but a public assembly with demands and threatened consequences is consistent with their fellow Egyptians’ means of influencing the interim government during this hiatus between Mubarak’s exit and new elections.
Public protest is still done at one’s own peril. Whereas most demonstrators fear the batons or bullets of police, or sometimes the army, the risk was of a different sort for those gathered last month at a rally of disabled job seekers. They had sought an audience with the Prime Minister, but were losing hope of ever meeting officials. One protester told a reporter that he and a fellow protester were actually hit by a car coming out of the cabinet premises, with one of them falling to the ground and the other dragged a ways on the hood until he jumped off. The Daily News Egypt (Oct. 31, 2011) It seems one cannot escape the leitmotif of the streets when talking about access. While barrier-free sidewalks, or public services and accommodations, are not necessarily at the top of the disability community’s agenda, there is a renewed push for Government responsiveness. This is a step in the right direction. As reported earlier this year, the sentiment is that “especially after January 25” the disability rights laws should finally be enforced. The Egyptian Gazette (June 17, 2011)