Wednesday, April 18, 2007

The ADA vs the University of Michigan

The University of Michigan is being sued by retired veterans for violating the Americans with Disabilities Act by failing to significantly increase access for disabled persons as a part of the current renovation of their football stadium. The suit turns on the distinction between a "repair" and an "alteration." Before reading further y0u might want to think what you believe the meanings of these two words are and ask yourself whether each of the following things constitutes a repair or an alteration.
a. Building two multi-story structures on both the east and west sides of the stadium (the language is taken from an official University of Michigan web site.
b. The west-side structure will include an elevated concourse
c. A new press box for media and game operations [will be built]
d. The east-side structure will include an elevated concourse with new concessions and restrooms, and additional indoor and outdoor seating
e. Approximately 83 suites and 3,200 club seats will be added in total
f. Widening seats and aisles and adding seating for mobility-impaired fans
For what its worth, the University of Michigan calls these actions a "renovation" on one university web site and this is a much stronger term than "alteration" The problem is that the Vets want increased access to the stadium in numbers consistent with the requirements of the Americans with Disabilities Act. The ADA requires that in the case of any alteration/renovation of any such structure, 1% of the seats must be for, if we use the U of Michigan term, "mobility-impaired fans." Michigan plans to make room for a grand total of 282 places for "mobility-impaired fans." Full compliance with the ADA would result in 1,000 wheelchair-accessible seats, as an SI.com article notes. The problem is that Michigan is desperate to add 83 luxury suites and 3,200 club seats to the structure because these are excellent sources of income. It apparently cannot do these things, as well as increase access to restrooms, and provide seating for 1,000 wheel-chair using fans while increasing the size of the stadium.

The language of the ADA is being interpreted in the Code of Federal Regulations (CFR). The term "alteration" is defined in the CFR as:
as a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof. It further states that alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts of elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.
I have not found a nice neat characterization of what constitutes a "repair," but it is a pretty straight-forward concept, especially when contrasted with how the CFR characterizes "alteration."

When Ohio State renovated its stadium, it lowered the field thereby adding seating below what the original stadium provided and erecting an outer shell around the stadium (recall Michigan's "two multi-story structures" on the stadium's sides) that, in combination with the old shell, allowed both for increased seating above the level of the original stadium, as well as adding a giant press box and high priced luxury suites and high priced luxury seats just below the boxes. The athletic director did that while bringing the stadium up to code in regard to providing wheel-chair access as well as greater access to restrooms for women. There was no effort to evade the requirements of the ADA or other requirements of the law. Notre Dame also renovated its stadium by adding an outer shell to allow for an increase in seating as well as adding a nicer press box. Notre Dame also acted in accordance with the dictates of the ADA and other statutes. Ohio State and Notre Dame are two of Michigan's greatest rivals, but unlike their rivals, Michigan manifestly does not want to sacrifice overall seating as the result of adding luxury suites and luxury seats by creating more spaces for disabled persons.

I think that by anyone's common sense interpretation of the meanings of "alteration" and "repair" what Michigan proposes to do is not at all a repair but is instead an alteration or even renovation of the stadium. Ohio State some years ago did a sizable repair of the concrete face of the stadium for safety purposes (it didn't want chunks falling off onto the heads of fans). Such an action is a clear case of a repair. Adding seats to a stadium as Ohio State and Notre Dame did, and Michigan proposes to do, is a clear case of an alteration. Adding types of structures that did not exist in the stadium as it was before the renovation occurred, such as luxury seating and luxury suites, is another quite clear case of an alteration.

The University of Michigan may also be playing a word game by using the term "seating for mobility-impaired" fans, as opposed to "providing wheel-chair access." I am mobility impaired in that I use a four wheel walker that has a seat on it when I need to go long distances. For the last two years Ohio State has provided me access to the "rich people" elevators that go to the highest part of the stadium as well as a spot on a wide concourse that serves as the first row of the highest level of the stadium. My walker takes up about the same room as a folding chair. But, since all of the seating on that concourse is temporary (non-mobility-impaired people use temporary folding chairs), Ohio State would be able to meet a substantial increase in demand for seating for wheel-chair using fans. It is unseemly for a major university to play word games just so it can make more money.

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