Prelude to Drafting the Original ADA Bill - Part 5

What Is a "Wheelchair" and Is a Person Who Uses One a "Pedestrian"?

My first collaboration with Dave concerned the legal status and meaning of wheelchairs. In our early conversations shortly after I met Dave in the fall of 1985, he told me that people in the Division of Ranger Activities in the National Park Service had questions and concerns regarding the use of wheelchairs in the parks. The general rule that park rangers had been applying was that vehicles were not permitted on walkways, paths, and most other areas in the parks apart from roadways and parking areas. The operative principle in designated wilderness areas was no wheeled devices; both the Park Service and the U.S. Forest Service prohibited public use of motor vehicles, motorized equipment, or other forms of mechanical transport in wilderness areas. Wheelchairs were clearly “wheeled devices,” motorized wheelchairs were certainly “motorized equipment,” and both were means of “mechanical transport.” This was leading to confusion and disputes about whether and where in various park areas wheelchairs were permitted, and the rangers were on the front lines of interpreting and enforcing the rules in circumstances that, at times, involved disgruntled wheelchair users and their companions. Some park personnel thought that people using wheelchairs were banned from using all unpaved pathways and certainly from wilderness areas. Others thought that manual wheelchairs were okay, but that electric wheelchairs were classified as vehicles and required to stay off of pedestrian walkways. Dave told me about one incident in which a motorized wheelchair user was threatened with a ticket for “driving” on a sidewalk. Conversely, a person using a motorized wheelchair might risk being ticketed if she or he proceeded on a street or road; Dave recalled one guy using an electric wheelchair in Louisville who got a traffic ticket for driving while intoxicated. Dave was committed to facilitating use of the parks by people in wheelchairs, and asked me if I knew of legal standards regarding the status of wheelchairs in relation to access to public spaces and passageways. I told him I would see what I could find.

“Wheelchair” is not a traditional legal term; Black’s Law Dictionary, the most widely used American legal dictionary, does not have an entry for “wheelchair.” Moreover, I was aware that, except for recognizing (as documented in the writings of Jacobus tenBroek) that people with disabilities are not barred from using public sidewalks and thoroughfares, and that common carriers (private or public concerns that transport goods or people for a fee) have a general duty to carry travelers with disabilities, the courts had had little occasion to consider the rights of wheelchair users. It happened, however, that in the previous year I had done some research on the meaning of “pedestrian” (for an article on the legal status of runners that I tried, unsuccessfully, to get published in Runner’s World Magazine), so I could readily identify legal rulings expressing the view that a person using a wheelchair is a pedestrian:

While it is true that a pedestrian is ordinarily understood to be one who travels on foot, nevertheless the mere circumstance that he or she has attached to his or her feet roller skates, or ice skates, or walks on stilts, or uses crutches, or is without feet and propels himself or herself along by means of a chair or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.[1]

Further digging led me to some relevant provisions of the Uniform Vehicle Code (UVC) that had been adopted by the National Committee on Uniform Traffic Laws and Ordinances (NCUTLO) on November 28, 1984. The UVC contains model motor vehicle and traffic laws for use throughout the U.S. that states can adopt or ignore as they choose, though most states have adopted most of them. The subcommittee that had recommended the changes explained that people who use motorized wheelchairs could not use sidewalks because they were legally deemed to be operating motor vehicles, but were not permitted to use the roadways because their “motor vehicles” could not meet registration and equipment requirements. And the problem was growing because more and more people with disabilities were seeking to use the streets and walkways, both because of increased emphasis on mobility and employment of such individuals and because of increasing use of small, inexpensive motorized wheelchairs. The committee considered it “ridiculous to eliminate physical barriers for [people with disabilities] but leave the legal ones in place. We have spent money putting in curb cuts for them only to bar their use on the sidewalks under [prior legal standards]. A motorized wheelchair is nothing more than a substitute for legs.”[2] Based on such sentiments, NCUTLO made four pertinent changes to the Uniform Vehicle Code that (1) declared that motorized wheelchairs would no longer be classified as “motor vehicles”; (2) gave users of motorized wheelchairs the same rights and duties as other pedestrians, including those relating to proceeding on a sidewalk or roadway; (3) expressly authorized electric wheelchairs to be used on sidewalks; and (4) established the following definition of motorized wheelchair: “Any self-propelled vehicle designed for, and used by, a handicapped person, that is incapable of a speed in excess of eight miles per hour.”[3]

I discussed with Dave the judicial statements about a person using a wheelchair being a pedestrian and the Uniform Vehicle Code provisions, and provided him copies. He, in turn, passed this information along to his colleagues in the National Park Service, and stressed that a wheelchair, whether manual or motorized, should not be considered a vehicle, and that the UVC definition of “motorized wheelchair” showed promise, although it might need some modification. Some of this thinking made its way into the National Park Service’s June 1986 proposed rule revising its vehicles and traffic safety regulations; a provision was added to clarify that under the Park Service regulations people with disabilities using wheelchairs were pedestrians and their activities should not be restricted except as the activities of other pedestrians were restricted.[4] In its final form, promulgated in April 1987, the provision declared: “The regulations in this chapter are intended to treat a mobility-impaired person using a manual or motorized wheelchair as a pedestrian, and are not intended to restrict the activities of such a person beyond the degree that the activities of a pedestrian are restricted by the same regulations.”[5]

I did not know it at the time when Dave and I were discussing the overlaps and boundaries between wheelchairs and vehicles, and between users of wheelchairs and pedestrians, but the difficulties inherent in trying to regulate vehicles in parks is a classic scenario in American jurisprudential analysis. In 1958, a renowned Harvard law professor and philosopher by the name of H.L.A. Hart argued in a law review article that grew out of a high-flown Harvard-law-professor debate, that language is inherently open-textured and so each law and rule has fuzzy edges, with a core of certainty and a “penumbra of doubt.” Professor Hart invoked the following example to illustrate the inexactitude of statutory language:

A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these … to be called “vehicles” for the purpose of the rule or not? If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behavior be regulated by rules, then the general words we use -- like “vehicle” in the case I consider -- must have some standard instance in which no doubts are felt about its application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.[6]

Since he formulated it, Hart’s example has been reiterated and discussed by many legal scholars and teachers of legislative interpretation in law schools, colleges, high schools, and even elementary schools. To Hart’s examples – automobiles, bicycles, roller skates, toy automobiles, and airplanes – later commentators have added a long-list of other possible candidates for coverage by the no-vehicles law, including a motorcycle rider, a mother pushing her young child in a stroller or baby carriage, a young person using a scooter, a maintenance worker operating a riding mower, a garbage truck driven into the park to pick up garbage from trash barrels, an ambulance driver on the way to pick up an unconscious person in the park, a skateboarder, a child on a tricycle, members of a patriotic group that desires to have a decommissioned army tank placed in the park as a war monument, a police car chasing a bank robber, a horse-and-buggy that provides rides to tourists, and even someone riding her elephant through the park. And what about wheelchairs?

With the benefit of Dave’s input, the Park Service’s regulations classified users of wheelchairs as pedestrians and not vehicle operators. The Park Service also adopted a few minor changes to other provisions consistent with that idea, by clarifying that a manual wheelchair was not a bicycle, nor, consistent with the Uniform Vehicle Code, was a motorized wheelchair a “motor vehicle.”[7] A number of comments received on the proposed rule focused on a related issue that Dave and I had discussed – the need to define the terms “manual wheelchair” and “motorized wheelchair” – just what exactly is a wheelchair?

Wikipedia tells us that “[a] wheelchair is a chair with wheels”; that sounds simple enough. But the simplistic literal interpretation is very inexact and misleading. My desk chair has wheels on it, but no one would consider it a wheelchair; some chairs of judges and jurors in courtrooms have wheels on them but that does not make them wheelchairs. Moreover, the literal, root meaning is not very useful when the term is being used in a legal context to expand or limit the rights and opportunities of individuals. In such a circumstance, it is important to circumscribe Hart’s “penumbra of doubt” in accordance with applicable policy considerations. In the case of wheelchair access to the parks, one such policy interest is the Section 504 and Architectural Barriers Act objective of making facilities, programs, and activities accessible to and usable by individuals with disabilities. To effectuate such a goal, it is preferable to include as many types of mobility devices that people with disabilities may need and choose to use to get around. For example, some people whose disability makes it difficult or impossible to sit may use a “standing wheelchair” that supports the user in a standing or nearly standing position. Other individuals, with an impairment of one leg below the knee, use a “knee scooter” on which they can grasp the handlebars, rest the impaired leg on the scooter, and push with the unimpaired leg. Still others, including the late disability leader Dr. Fred Fay, get around on a motorized bed equipped to move and turn corners.

In my work with Dave, he was seeking to prevent people who had a legitimate need to use a mobility device from being defined out of access to park locations through narrow application of standards for what constitutes a wheelchair. Means of achieving mobility are numerous and, not infrequently, individualized, and new ones are continuously being developed, so it is impossible to provide a comprehensive list of all of them. As the Park Service was developing its regulations, the task was to make the wheelchair exception to no-vehicles-in-certain-areas requirements broad enough to encompass appropriate mobility alternatives. At the same time, the standard could not be too open-ended. Tempering the Park Service’s objective of facilitating the public’s access to and enjoyment of the parks are its duties to protect and preserve the parks’ natural and cultural resources, and to maintain public safety. Wheelchairs and similar devices could not be permitted in park areas if their operation would cause environmental damage or pose a significant hazard to other park users or to the persons using the devices.

People with mobility impairments have shown a lot of creativity in developing ways to get around. They have taken advantage of transportation mediums developed for other purposes and they have invented or adapted ones of their own (including all sorts of racing wheelchairs). Dave and his long-time colleague Kay Ellis, who served as Accessibility Program Leader with Dave at the National Park Service and later played the same role with the U.S. Bureau of Land Management, told me about all sorts of vehicles and adaptations that people who had impaired mobility wanted to use for mobility in the parks. Kay remembered a guy who wanted to use his scooter on the C&O Canal trail, and said that, as she and her colleagues contemplated formulating a standard that would give him permission to do so, they worried about the questions that would arise about other vehicles whose use for mobility might be sought, including bicycles (that were permitted in some park areas but not others), and even hovercraft, and who-knows-what-else that might be developed in the future. Where should the line be drawn between standard scooter wheelchairs and motorized beach wheelchairs with large balloon tires, and 3-wheel and 4-wheel ATVs and dirt bikes? Dave described requests received from individuals with mobility impairments to use their SUVs, pickup trucks, and off-road vehicles for mobility on the beaches at Canaveral National Seashore in Florida and Assateague Island National Seashore in Maryland and Virginia. He told of being referred a letter from a member of Congress from Louisiana regarding use of a 3-wheeled, off-road, gasoline-powered mobility device with hand controls, to which he replied that an off-the-road vehicle could not be used on park trails or in a wilderness area, but this was something of a “judgment call,” not directly compelled by any specific authoritative rule or standard.

The standard could not be that people with disabilities would be permitted to use in the parks any type of vehicle that would enhance their mobility; some limitations had to be established. On the other hand, the Park Service certainly did not want or know how to establish technical criteria – dimensions, weight, power source, number and type of wheels, speed, turning radius, etc. – for each mobility device whose use in the parks was sought, nor did park rangers and other personnel have the expertise or time to make exacting, fine-point distinctions between such devices to permit entry. The challenge was to devise a workable, practical standard that would enable people with disabilities to use and enjoy the parks, while making sure that their mobility vehicles could be used in park areas without damaging park facilities or the natural environment, and without endangering other visitors and park personnel.

The Uniform Vehicle Code definition of “motorized wheelchair” that I had given to Dave excluded cars, trucks, ATVs, dirt bikes, SUVs, and the like, which, while they might be “used by” a person with a disability, were not “designed for” people with disabilities. To address safety concerns and limit the amount of environmental damage a vehicle deemed a “motorized wheelchair” might cause, the Uniform Vehicle Code specified that it would only apply to a vehicle that “is incapable of a speed in excess of eight miles per hour.” While these elements of the definition were well-intentioned, they had some flaws. The “designed for” criterion was less-than-clear-cut; for example, if the design of a standard automobile or truck or a mammoth SUV permitted hand-controls to be added, it would be accurate to say that it was “designed for” use by (among others) people with disabilities, but it would be unreasonable to consider it a wheelchair. As to the maximum speed cap, how was a park ranger supposed to accurately determine whether a particular vehicle being brought into a park or onto a trail was “incapable” of exceeding eight miles per hour? Was the wheelchair user to be forced to go as fast as possible and then be measured with a speed gun? What if the test site was not perfectly level or there was a tailwind or headwind? And why is eight miles per hour the appropriate ceiling for all such vehicles? Does it matter that some wheelchair athletes can greatly exceed eight miles an hour in a manual wheelchair?

These and other concerns led the National Park Service to seek to improve on the Uniform Code definition. To make sure that “motorized wheelchair” would not include vehicles developed and manufactured for broad consumer use, the regulation refined the wording so that it applied only to vehicles “designed solely for and used by a mobility-impaired person.” In wrestling with how to ensure that wheelchair-like devices that were too big, too heavy, too polluting, or otherwise unfit for use in park areas (some devices described as “tank wheelchairs” or “an electric tank-wheelchair hybrid,” that are used primarily for hunting, fishing, and getting through snow, provide mobility on tank-like tracks that would be terribly destructive on most trails), someone at the Park Service came up with a criterion that a motorized wheelchair had to be “both capable of and suitable for use in indoor pedestrian areas.” Restricting vehicles from using outdoor areas of parks because the vehicles are not suitable for indoor pedestrian use seems a mite illogical, but it proved to be a reasonably workable and effective standard. Thus the Park Service regulations defined “motorized wheelchair” as “a self-propelled wheeled device, designed solely for and used by a mobility-impaired person for locomotion, that is both capable of and suitable for use in indoor pedestrian areas.” In issuing the regulation, the Park Service added the following explanatory comment: “Accordingly, a small, motorized, three or four-wheel vehicle designed for outdoor recreational purposes would not qualify as a motorized wheelchair, even if used by a mobility-impaired person.”

The Park Service also included in its regulations a clear, succinct, broad definition of a manual wheelchair as “a device that is propelled by human power, designed for and used by a mobility-impaired person.” The definitions of "bicycle" and "motor vehicle" were revised to expressly exclude a manual or motorized wheelchair. These changes, plus the language discussed previously clarifying that the regulations were not intended to restrict the activities of a mobility-impaired person using a manual or motorized wheelchair beyond the degree that the activities of pedestrians are restricted, are not perfect. But they reflect a commendable effort to balance the desire to promote wheelchair access to the parks, while tempering it with the need to set limits in order to protect persons, property, and the natural and cultural resources in areas under the jurisdiction of the National Park Service. In my work with them, I had the opportunity to see the pivotal importance of enlightened, hard-working public servants such as Dave Park, Kay Ellis, and their colleagues. Their expertise and insights would again come to the fore a few years later as we were crafting accessibility standards for public accommodations, government facilities, and wilderness areas under the ADA.

Continue to Part 6: Formal Release of Toward Independence and Initial Reactions

[1] Jermane v. Forfar, 108 Cal.App.2d 849, 240 P.2d 351, 353 (Cal. App. 1952): Eichinger v. Krouse, 105 N.J.L. 402, 144 A. 638 (1929) (emphasis added). The language is quoted in American Law Reports, Annotated, 30 A.L.R.2d 866, 873.

[2] National Committee on Uniform Traffic Laws and Ordinances, Agenda for NCUTLO National Committee Meeting, November 27-29, 1984, p. 30.

[3] Id. at pp. 30-31.

[4] Vehicles and Traffic Safety, 51 Fed. Reg. 21840 (proposed June 16, 1986), §1.2(f) (to be codified at 36 C.F.R. pt. 1).

[5] Vehicles and Traffic Safety, 36 C.F.R. § 1.2(e), (52 Fed. Reg. 10670(Apr. 2, 1987)).

[6] H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958).

[7] Vehicles and Traffic Safety, 36 C.F.R. § 1.4, (52 Fed. Reg. 10670(Apr. 2, 1987)).