Sid Wolinsky, Disability Rights Education and Defense Fund, Inc., USA
The United States experience prior to the ADA made it quite clear that the
effective enforcement depended on a variety of approaches. Certainly, governmental
enforcement alone could not be relied upon to bring about barrier-free environments.
Over-burdened and under-resourced government officials neither had the funds
nor the inclination to make disability access a priority. Similarly, there
was not sufficient financial incentive in litigation to rely on private
court enforcement as the sole device for effecting legislation.
Disability groups themselves are important in the enforcement process, however
they must be organized and they must have effective skilled assistants.
This includes professionals with legal training, design experts and consultants,
and existing public interest and political groups willing to put architectural
barriers on their action agenda.
There is no single-most powerful enforcement tool. Where lawsuits brought
by private organizations and disability groups have been utilized, they
have been extremely effective. However, there can only be a limited number
of such suits, they require an aware disability constituency and, accordingly,
they are not likely to affect a large geographical area.
Conversely, government enforcement has a much broader scope, but has not
been as effective in individual cases. One of the most important weapons
has been the authority of a local building department to refuse to issue
a building permit where accessibility guidelines have not been followed.
In situations where a structure slips past the local building department,
it is important to have very severe penalties such as fines, damages, penalties,
and injunctive relief to modify the building. The right of an individual
complainant to his or her attorney's fees in successful architectural barrier
litigation has been extremely important in the enforcement process in the
United States.
By and large, national or even state enforcement has not tended to be very
effective, in part, because of the size of the areas that need to be covered.
Enforcement by local building departments seem to work best but result in
inconsistent application of the laws and spotty enforcement.
Advocates in other countries who are contemplating legislation should consider
at least the following factors:
very severe penalties for infractions,
the right to attorney's fees for successful claimants where private
causes of action are brought.
Advocates in other countries who are contemplating similar legislation should
use model legislation that has already been developed. Before the introduction
of the legislation, however, they should hold conferences and seminars to
help organize disability groups around the issues and to obtain their input
into the total legislative package. Support across disability lines is critical.
In addition, the legal community, especially the law school community, should
be involved in the process and their expertise and support should be solicited.
In every country, a substantial percentage of the legislature are also members
of the bar and their involvement with local law faculties will be of assistance.
Wherever possible, existing bodies (such as local building departments)
should be utilized for enforcement purposes, combined with the establishment
of new organizations and enforcement mechanisms.
