rats as heroes
Rats are now being used to clear land mines in Mozambique.

Harding-Coolidge vs. Bush-Cheney
I mentioned a few posts ago that I didn't think the current Administration's policies were consistent with the conservatism I grew up with. I grew up in what I think of as a traditional Republican environment: the major values of my parents on domestic issues were pretty much those of Harding, Coolidge, Eisenhower and Ford (Nixon I leave aside because of wage-price controls).

To be sure, there are some continuities: like 20th-century Republicans, Bush the younger is pro-business and anti-union. But the differences are significant.

20th-century Republicans generally favored balanced budgets and a lean, economical government. As late as the 1990s, the balanced budget amendment was generally a Republican cause and was opposed by Democrats. But this administration has gone out of its way to run up debt, by cutting taxes and increasing spending at the same time. In the long run, this will of course lead to more money wasted on interest on the debt- so we will pay more to government and get less.

For most of the 20th century, the Democrats were the party that started wars (including Korea and Vietnam) and the Republicans generally ended them. (Exception: World War II, a clear success, and World War I, which I think was not such a success - both begun and ended by Democrats). Even under President Reagan, America began only the war in Grenada, and that was concluded quickly and successfully. The Bush clan has began four wars- though to be fair, two of those (Afghanistan and Panama) appear to have been reasonably successful (Though as one alert reader has pointed out, "success" in Afghanistan is mitigated by our failure to capture bin Laden or completely wipe out the Taliban- but at least Afghanistan is (a) more stable than Iraq and (b) not ruled by Taliban anymore).

Republican isolationism was typically based on what Republicans viewed as realism- the attitude that the United States had no business saving the world from itself.

But one major argument for the current war in Iraq is that it would somehow turn Arabs into small d-democrats (or to use one common cliche, "change the political dynamics in the Middle East"). Will it work? We will see after the Iraqi elections on Jan. 30.

interesting Shoah related thought
From God's Presence in History, by Emil Fackenheim:

The more than one million Jewish children murdered in the Holocaust died neither because of their faith, nor despite their faith, nor for reasons unrelated to the Jewish faith. Since Nazi law defined a Jew as one having a Jewish grandparent, they were murdered because of the Jewish faith of their great-grandparents. Had these great-grandparents abandoned the Jewish faith, and failed to bring up Jewish children, then their fourt-generation descendants might have been among the Nazi criminals; they would not have been among the Jewish victims . . . not a single one of the six million died becuae they had failed to keep the divine-Jewish covenant; they all died because their great-grandparents had kept it, if only to the minimum extent of raising Jewish children. Here is the point where we reach radical religious absurdity. Here is the rock on which the "for our sins are we punished" suffers total shipwreck."
(pp. 70, 73)

wisdom from the Sage of Baltimore
We suffer most, not when the White House is a peaceful dormitory, but when it is a jitney Mars Hill, with a tin-pot Paul bawling from the roof.

H.L. Mencken (praising Calvin Coolidge)

Conservatives, liberals, radicals and reactionaries
From The True Believer, By Eric Hoffer (pp. 77-8)

"The conservative doubts that the present can be bettered, and he tries to shape the future in the image of the present. He goes to the past for reassurance about the present . . . [the idea] that our new fads were very ancient heresies, that beloved things which were threatened had rocked not less heavily in the past."

"The liberal sees the present as the legitimate offspring of the past and as constantly growing and developing toward an improved future..."

"The radical and reactionary loathe the present. They see it as an aberration and a deformity . . . [the latter] sees the future as a glorious restoration rather than an unprecedented innovation. In reality the boundary line between radical and reactionary is not always distinct. The reactionary manifests radicalism when he comes to recreate his ideal past. His image of the past is based less on what it actually was than on what he wants the future to be."

After reading Hoffer, I understand better why I am so out of sorts with the Bush Administration. I am, and have always been, more of a conservative in Hoffer's sense of the term than anything else - and more so as I get older. I think America in 2000 was a pretty good place, and that it was unlikely to get much better. I think the Bush Administration's policies often lean towards some sort of radical reaction.

wisdom of the ages
I have no trouble with my enemies. I can take care of my enemies all right. But my damn friends... they're the ones that keep me walking
the floor nights! - Warren Gamaliel Harding

very well done
Rabbi Benjamin Blech has an excellent article on the tsunami disaster in Jewsweek

Blech criticizes suggresions that the tsunami is Divine punishment for some sin or other, pointing out that religious leaders who so argue:

are guilty of a common error of logic. Any student of a Philosophy 101 course knows that just because A causes B, doesn't mean that B is always the result of A. Nails on the highway cause flat tires, but not all flat tires are caused by nails on the highway. Yes, it's true that the Bible teaches that sin is followed by tragic consequences. But that doesn't mean that every tragedy is the result of sin.

the ultimate answer to all questions about religion and politics
A charming little story from Chabad

In 1921, Rabbi Yosef Yitzchak Schneersohn of Lubavitch was subpoenaed by one of the government offices of the newly established Bolshevik regime in Rostov-on-Don. He was asked to clarify an issue: Does the Jewish religion support monarchism or communism? This was not exactly a pleasant tea with crackers-there was significant danger involved. In typical Schneersonian style, the rabbi determined that he would tell it as it is, leaving no room for ambiguity concerning his opinions.

So he told them the following story:

In one of my journeys to Petersburg -- this was in the winter of 1913 -- I traveled in a second class coach and my travel companions were government employees and spiritualist Christian clergy.

In that year, Russia was celebrating the 300th anniversary of the rule of the family Romanov. My fellow travelers were involved in a heated discussion concerning monarchy in general. The central question was: How does our holy Torah relate to monarchism?

Some said that the Bible supported monarchism. Others argued that the Bible was socialist. One argued that the Bible is clearly communist.

At first, I took no part in that discussion. But then there entered some Jewish friends, good acquaintances of mine, and they insisted that I state my opinion.

So I said as follows: All of you with all your various opinions, all of you are correct. Every party -- monarchism, socialism, communism -- all have pros and cons. It is a well-known principle of philosophy that there is nothing good without bad and there is nothing bad without good. In every good thing you will find some bad mixed in and in everything bad you will find some good . . . Therefore, each one of you finds in our holy Torah [substitute scripture of choice if not Jewish- ed.] only the positive aspects of your party.

amusing pseudo-intellectual quotes
From Andrew Sullivan's blog

POSEUR ALERT WINNER 2004: "But how to paint or sketch such a genius at substitution [as Jacques Derrida]? One must, one can only catch him, portray him in flight, live, even as he slips away from us. In these sketches we shall catch glimpses of the book's young hero rushing past from East to West, -- in appearance both familiar and mythical: here he is for a start sporting the cap of Jackie Derrida Koogan, as Kid, I translate: lamb-child, the sacrificed, the Jewish baby destined to the renowned Circumcision scene. They steal his foreskin for the wedding with God, in those days he was too young to sign, he could only bleed. This is the origin of the immense theme that runs through his work, behind the words signature, countersignature, breast [sein], seing (contract signed but not countersigned), saint --cutting, stitching -- indecisions -- Let us continue." - from the prefatory author's note in "Portrait of Jacques Derrida as a Young Jewish Saint," by Helene Cixous, published by Columbia University Press.

POSEUR ALERT RUNNER-UP: "Admittedly, Midge Decter's biography of Donald Rumsfeld may stand the test of time as a classic achievement in the literature of coprophagia; the vivid yet bulimically svelte anthology of paranoid slanders Ann Coulter has given us in "Treason" has added something innovative to that small, delectable canon of hallucinatory works that also includes Celine's Bagatelles Pour un Massacre and the unjustly anonymous Protocols of the Elders of Zion; and the eloquent-as-a-treacle-tart Christopher Hitchens, in a prodigious outpouring of books and articles, has rendered the mental process by which intellectual prostitutes magically change form in alignment with shifting power formations as legibly as few besides Curzio Malaparte have managed since the fall of Mussolini." - Gary Indiana, Village Voice.

POSEUR ALERT HONORABLE MENTION I: "Yesterday I posted an announcement of my new piece on gay marriage. This piece, I believe, will shift the gay marriage debate from speculation about the future to a discussion of present realities. For that reason, I see it as the most important piece on gay marriage I've ever published." - Stanley Kurtz.

POSEUR ALERT HONORABLE MENTION II: "The value of listening to Brion's score by itself - with the exception of his thematically tongue-in-cheek "Strings That Tie to You" - is situated in the potency of its corresponding visual nostalgia. This seems to be the logical fate of most film scores, but in the case of Eternal Sunshine, Brion's insistence on certain themes popping in and out of his textures seems particularly appropriate, as the soundtrack's fluid matrix performatizes the cinematography's mind/body collapse: In the film, Brion's organi-synthgaze postlude "Phone Calls" plays after Joel decides not to try and save his first memory of Clementine, but just to enjoy it. Here, Brion's score meets Eternal Sunshine's oculophilia halfway, and fittingly comprises one of the film's most potent scenes." - Nick Sylvester, Pitchforkmedia.

"Starve the beast" theory defanged

It has become conventional wisdom among some economic conservatives that if government cut taxes, spending will miraculously cut itself as government becomes starved for revenue - notwithstanding spending's failure to cut itself over the past four years (as well as under Reagan).

But a recent op-ed from the Cato Institute (of all places) suggests otherwise: that tax cut-induced deficits actually lead to higher spending.

Money quotes:

"However, economist William Niskanen, chairman of the Cato Institute (also my employer), has presented econometric evidence that federal spending tends to increase when tax revenues decline, flatly contradicting the starve-the-beast theory. Furthermore, according to William Gale and Brennan Kelly of the Brookings Institution, members of Congress who signed the President's "No New Taxes" pledge were more, not less, likely to vote for spending increases, which is hard to square with the starve-the-beast theory.

"Starve the beast" is really a conjecture about the psychology of voters and legislators. The idea embodied in Friedman's statement is that mounting deficits will spur voters to choose representatives who will impose fiscal discipline. But why would voters react that way? Will they be worried about deficits causing rising interest rates, or about the prospect that their children will be stuck with a huge bill?

It seems just as likely that current voters would prefer to have their kids and grandkids foot the bill. In the long run, we're all dead, and the dead don't pay taxes. If the doctor gives you a month to live, why not run up the Visa?

Niskanen's analysis suggests that when current spending is financed by current taxes, voters see it as their money being spent, and so are more motivated to be frugal. But when current spending is financed by debt, voters see it as future voters' money being spent. If voters prefer to benefit now and have some one else pay later, there is no good reason to think legislators will see deficits as a reason to restrain themselves."

Social Security not going broke after all
Go to the Social Security Administration trustees' page of economic assumptions:

Scroll all the way to end for GNP assumption; their "intermediate" assumption is 1.8% growth, a level that (as SSA itself points out) is far lower than American economic growth in recent decades.

In other words, the almost universally-shared view that Social Security is "going broke in 2042" is based on an assumption that is at best unduly pessimistic.

Bottom line: the Social Security "crisis" may be completely imaginary.

Of course, one can argue that we should turn Social Security upside down to prevent a crisis that might not occur.

But I note that the sort of people who are most likely to favor this argument tend to be utterly uninterested in doing anything about global warming- a phenomenon which, like Social Security, is not a present concern at all, but which has become prominent based on projections (based on computer models) about an alleged disaster that might or might not happen 50 years from now.

old Buffalo Beat op-eds from 2001
BLUE DOG PRESS/BUFFALO BEAT OP-EDS

These are some of my last op-eds from Blue Dog Press (a Buffalo weekly I used to write for). Upon reading them, I notice my thinking has evolved: I am less skeptical about missile defense than I was before 9-11; I still don't think it would have much impact upon the calculations of an ordinary ruthless dictator like Sadaam Hussein, but I think it could reduce the number of casualties should a terrorist who has no return address (and thus cannot be deterred by the threat of nuclear annihilation) get his hands on a few nukes too many.

The Paradox of Missile Defense (Blue Dog Press 7-25-01; one of my last Blue Dog Press articles)

by Michael Lewyn

Ever since President George W. Bush was inaugurated, his administration has insisted on planning to spend tens of
billions of taxpayer dollars on a missile defense system to protect American cities from the yet-to-be-deployed
missiles of Iraq, North Korea and a variety of other small thugocracies.

The logic of missile defense is as follows: during the Cold War, we survived without missile defense because the
Soviet Union was rational enough to be deterred by our thousands of nuclear warheads. But over the next few years,
our pint-sized enemies may deploy nuclear missiles, and may either (a) be irrational enough to fire atomic bombs at
the United States even if by doing so they risk annihilation themselves, or (b) use their future nuclear deterrent to
prevent the United States from mounting a conventional invasion the next time these ""rogue states"" threaten their
neighbors, for example, if Iraq invades Saudi Arabia or North Korea invades South Korea.

But paradoxically, missile defense may make less sense now than at the height of the Cold War. Here''s why:
during the Cold War, the Soviet Union''s thousands of missiles threatened not just American cities, but America''s
own missiles. In fact, the Soviet Union had so many missiles that they arguably could have destroyed all of
America''s land-based missiles (though not our air- and sea-based missiles) in their silos. This, in turn, meant that if
some technical breakthrough allowed the Soviets to destroy our air- and sea-based nuclear weapons, they could, in
theory, have been able to fight and win World War III in half an hour, by destroying our nuclear deterrent.

It logically followed that if we deployed a missile defense that destroyed 50 percent of Soviet missiles before they
entered U.S. territory, we would have insured that our own nuclear deterrent would survive a first strike by the
Soviets, thus deterring the Soviets from starting World War III. Therefore, a Cold War-era missile defense would
actually have been of significant value, even if it did not destroy every single incoming missile.

By contrast, the missile system proposed by President Bush would probably be designed only to deter nuclear
attacks by smaller nations with only a few dozen missiles apiece, far too few to threaten America''s nuclear
deterrent.

It follows that the Bush program would protect only America''s cities rather than its missiles, and thus would have
to be 100 percent effective in order to avoid a catastrophe. Suppose, for example, North Korea decides to fire 20
nuclear weapons at United States territory. Even if the missile defense system was 90 percent effective, and 2 of
North Korea''s weapons landed on American cities, millions of Americans would die, as would (a few hours later) a
few million North Koreans who our own nuclear weapons would vaporize. Because even a 90 percent effective
system would be unable to prevent a foreign dictator from killing millions of Americans, such a system would have
little deterrent value.

It could be argued that without a missile defense system, one of America''s less powerful enemies could use their
future nuclear deterrent to prevent the United States from using its own conventional deterrent. For example, a
nuclear-armed Iraq could invade Saudi Arabia and suggest to American leaders that any attempt to rerun the Gulf
War would lead to a rerun of Hiroshima in an American city. But these threats would be effective whether a missile
defense was 10 percent effective or 90 percent effective, because even a 10 percent chance of a blown-up American
city (or, for that matter, the destruction of an American city or two by 10 percent of Iraq,,s nuclear missiles) would
be sufficient for Iraq''s deterrent to work. In other words, unless the United States or its enemies knew with
absolute certainty that our missile defense would be 100 percent effective, a missile defense would not prevent
those enemies from mounting conventional attacks upon their neighbors.

Even supporters of a missile defense concede that an American missile defense would not, in fact, be 100 percent
effective. For example, Frank Gaffney (who was responsible for missile defense policy in the Reagan Defense
Department) wrote in the March issue of Commentary, ""Even the best defense would likely have some leakage, a
fact that, for a nation relying on it, could well prove catastrophic."" It logically follows that missile defense is
unlikely either to prevent an attack by a so-called ""rogue state"" or to deter a conventional war by a rogue state.

In defense of missile defense, Gaffney argues: ""an adversary contemplating an attack in the face of even partially
effective defenses could never know whether his warheads would succeed in reaching their targets and if so, which
ones they would be. This in itself may create an additional disincentive to launching a strike in the first place,
particularly if the consequences of doing so would be certain and devastating retailiation by a still wholly or mainly
unscathed United States."" In other words, Gaffney asserts that a dictator would be crazy enough to risk being
blown up by mounting a successful nuclear attack against the United States, yet not crazy enough to take the risk
that his nuclear attack would be frustrated by missile defense, an obviously absurd scenario. So an imperfect missile
defense is unlikely to deter even the most deranged dictator.

??2001 Blue Dog Press Published July 25, 2001

REALITY TV: THE GOOD, THE BAD, AND THE UNETHICAL


By Michael Lewyn

To a much greater extent than motion pictures or plays, network television radically changes from year to year.

For a while, the dominant fad might be the wholesome family situation comedy. Then, a raunchier comedy becomes
popular, and all of the television networks try to copy it by airing potty-mouthed farces. For a time, hour-long
dramas are popular, and the networks fall all over themselves imitating those.

Recently, the latest fad has been so-called reality television, a generic term for shows that feature non-actors in
contrived situations. For example, Survivor (the reality show with which I am most familiar) drops numerous
persons into some isolated landscape, such as a tropical island or a desert, tells them to vote each other off the show
on a regular basis, and then, after a series of strange challenges (eating bugs, standing on a pole), the final tribe
members face their peers. After the ultimate votes are cast, a large sum of money is awarded to the person who
survives the elimination battle.

Generally, I find Survivor (and its knockoffs -- for the five or ten minutes that I have examined them) to be
anything but reality TV. I personally have never been on a tropical island with 15 strangers with whom I have to
simultaneously live and plot against -- and I suspect the same is true for most readers. Big Brother forced a group
of strangers to live together in a studio-fabricated house as television viewers voted off whom they felt were the
most annoying. On The Mole, players hunted for the spy amongst them. Fear Factor finds folks willing to do almost
anything (be with 400 live rats or get dragged by a horse) to win $50.000.

Frankly, Survivor isn''t any more realistic than most other television shows. For example, television executives
justify their obsession with crime, premarital and extramarital sex, and violence on the grounds that these
phenomena do in fact occur in the United States. But these problems are hardly as significant to my life as they are
to most television shows.

For example, I have not been murdered even once, nor has my apartment ever burned to the ground -- yet TV news
intensely covers crime and fire, and television entertainment is filled with violence. And about my sex life... let''s
just say that there''s not as much sex in my life as there is on television. In fact, about one-fourth of my life (as
much as one-third on good days) consists of sleep -- yet television scarcely ever portrays anyone sleeping, let alone
sleeping for one-fourth of an episode (7.5 minutes of a 30 minute sitcom --with commercials; and 15 minutes of a
one-hour drama).

If television truly reflected reality (say, by airing extended coverage of actual human sleep, a la Andy Warhol''s
movie, aptly titled Sleep), it would be far more relaxing -- but perhaps even less entertaining than it is today, if such
a thing were possible, that is.

But even if Survivor were more realistic, it would nevertheless still fail to retain my attention. I simply don''t find
other people''s lives interesting enough to watch on television. Rather, I prefer to obsess on the soap opera of my
own life. Over the past 15 years, I have lived in eight different cities, held eleven different jobs (counting temporary
jobs of various types), been laid off once, narrowly avoided termination once (by leaving a law firm only a few
months before it folded), and experienced four nationwide job hunts (once of which involved 48 interviews in over
a dozen cities). Even now, I am hardly stuck-in-a-rut. I usually have to prepare for a new class or two every
semester, work hard to retain the good will of both my students and the administrators who have the power to fire
me, worry that the law school where I teach will not stay in business, and write enough scholarly articles to have a
decent chance of tenure. Perhaps if I were used to job security, I would be a bit more interested in the adventures of
some people thrown onto an island, who are told to work with and against each other.

Perhaps being a contestant on a reality show is more fun than watching one -- but nevertheless, I would not like to
be part of these shows'' institutionalized backbiting. Jewish tradition understandably condemns lashon hara
(Hebrew for ""evil talk"" -- but more loosely translated as gossip, or negative comments about others). Yet, some
of the reality shows are structured to encourage lashon hara. On Survivor, for example, contestants have to vote
each other off the show. This encourages them to speak negatively about their fellow combatants, scheming, of
course, that someone else will be voted off the show before they are.

I realize that I wouldn''t necessarily burn in Hell if I were to spend a few months as part of the Survivor cast -- but
nevertheless, such a situation could not possibly be good for my ethical development.

So watch Survivor and its ilk if you must, but definitely don''t treat the contestants as role models.




??2001 Blue Dog Press Published July 03, 2001

SPECIAL NEEDS, SPECIAL CIRCUMSTANCES

BY MICHAEL LEWYN

On October 25, 1979, Johnny Paul Penry raped and murdered Pamela Carpenter.

He confessed that, after he installed a stove in Carpenter''s home, he planned to return for an encounter that would
prove deadly for her.

In his own very chilling words, Penry said, ""I decided I would go over to the chick''s [Carpenter''s] house and get
me a piece. I also wanted to get the money that she had in her purse. I knew that if I went over to the chick''s home
and raped her that I would have to kill her, because she would tell who I was to the police, and I didn''t want to go
back to the pen.""

After entering Carpenter''s home, Penry hit her repeatedly and raped her for thirty minutes. ""I sat down on her
stomach and I told her that I loved her and hated to kill her, but I had to so she wouldn''t squeal on me."" Penry
(who was on parole from a previous rape) then stabbed Carpenter in the chest and ran away. Carpenter clung to life
for an hour and then died from her wounds. According to the Texas Supreme Court, she ""was in the grip of violent
pain...up until the time she died.""

More than twenty-one years have passed since that tragic day, and Johnny Paul Penry''s fate has not yet been
resolved. After Penry was convicted of murder and sentenced to death by a Texas jury, he appealed the death
sentence, asserting that (to quote the U.S. Supreme Court''s description of his argument) ""it would be cruel and
unusual punishment, prohibited by the Eighth Amendment, to execute a mentally retarded person like himself.""
The Supreme Court did not adopt his argument, but has twice remanded his case to the Texas courts on more
technical grounds. Specifically, the Court has held that the Texas courts did not clearly instruct juries that Penry''s
retardation should be considered as a mitigating factor.

Recently, the High Court once again stayed Penry''s death sentence. His case (and the general issue of whether
retarded murderers should be executed) has attracted a significant amount of publicity. In fact, the Texas state
legislature passed a bill banning the execution of mentally retarded persons, but the bill was vetoed by Governor
Rick Perry.

The case against executing the retarded was articulately stated years ago by Justice William Brennan, who
concurred in the first Supreme Court opinion halting Penry''s death sentence. Brennan argued that ""the impairment
of a mentally retarded offender''s reasoning abilities, control over impulsive behavior, and moral development in
my view limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty
of death is always and necessarily disproportionate."" Similarly, the American Association on Mental Retardation
(AAMR) argued before the Supreme Court that because of ""disability in the areas of cognitive impairment, moral
reasoning, control of impulsivity, and the ability to understand basic relationships between cause and effect,""
mentally retarded people cannot act with the level of moral culpability that would justify capital punishment.

Penry''s own behavior rebuts these arguments. Justice Brennan wrote that a retarded defendant''s lack of ""control
over impulsive behavior"" bars capital punishment. But Penry was anything but impulsive. He confessed that for
three weeks before he killed her, he ""thought about [Carpenter] a lot. He made the decision to rape her when he
""saw a girl in City Hall who reminded me of [Carpenter]."" Penry decided at that time that he would murder
Carpenter in order to escape detection. While he was stabbing her, he actually told her that he was killing her ""so
she wouldn''t squeal on me.""

It is hard to imagine a more calculated, controlled crime. Far from being unable to control his impulses, Penry was
about as ""impulsive"" as Timothy McVeigh. Like McVeigh, he mulled over the details of his crime before
committing it, and killed not on impluse, but based on a rational calculation of costs and benefits. Specifically, he
believed that if he stabbed Carpenter to death, he would be less likely to ""go back to the pen"" than if he merely
raped her and allowed her to live.

The AAMR asserted that retarded individuals lack ""the ability to understand basic relationships between cause and
effect."" But Penry murdered Carpenter because he had exactly that ability. He murdered Carpenter because he
believed that there would be a cause/effect relationship between his murder and his freedom: that his decision to
murder Carpenter would cause the fortunate (for him) effect of eliminating the only witness to his rape of her, thus
hampering the police investigation.

I gladly concede that some killers who science defines as ""mentally retarded"" should not be executed because of
their mental problems. For example, the defendant who is incapable of distinguishing between death and sleep. But
Johnny Paul Penry knew exactly what he was doing when he raped and murdered Pamela Carpenter, so if capital
punishment is morally appropriate for anyone at all, Johnny Paul Penry deserves to die.

??2001 Blue Dog Press Published June 27, 2001

Biblical Politics

By Michael Lewyn

As I have become more interested in my religious heritage, I have begun to look at the Bible now and then,
especially the one part of the Bible which lays down a large number of specific laws: the Five Books of Moses
(Genesis, Exodus, Leviticus, Numbers and Deuteronomy) also known as the Pentateuch or (to us Jews) the Torah.
Generally, the most religious Americans are also the most politically conservative, but the Pentateuch does not
always support this tendency.

On the cultural issues that motivate the Religious Right, the Pentateuch does tend towards positions that might be
considered conservative in this century (or even in the last century). For example, the text states: ""He that smiteth a
man, so that he dieth, shall surely be put to death"" (Exodus 21:12). To be fair, Jewish commentators watered down
capital punishment by endorsing a variety of procedural protections for defendants. Nor is the Bible''s law-and-
order tendency mitigated by a desire to protect criminals merely because they had disadvantaged backgrounds: it
states ""Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor favor the
person of the mighty"" (Leviticus 19:15). And despite the Religious Right''s intense interest in abortion, this
subject is never directly mentioned in the Pentateuch.

But on economic issues, the Pentateuch is not particularly right-wing. It seeks to protect debtors by limiting the use
of clothing as collateral (Exodus 22:25-26), and creates an early version of bankruptcy law by mandating that all
debts be released at the end of every seven years (Deuteronomy 15:1). The Pentateuch also protects the poor in a
variety of ways. It states to the ancient Hebrews: ""if thy brother be waxen poor, and his means fail with thee, then
thou shalt uphold him"" (Leviticus 35:38).

More specifically, it adds: ""And when ye reap the harvest of your land, thou shalt not wholly reap the corner of thy
field, neither shalt thou alter the gleaning of thy harvest. And thou shalt not glean thy vineyard, neither shalt thou
gather the fallen fruit of thy vineyard, thou shalt leave them for the poor and the stranger."" (Leviticus 19:9-10).
This passage would appear to mandate a modest form of workfare, requiring ancient Israelites to support the poor
with the fruits of their labor as long as the beneficiaries were willing to exert the effort necessary to turn agricultural
products into food and money. On the other hand, such modest forms of relief do not contemplate the total
elimination of poverty or inequality.

The Pentateuch also shows some environmentalist tendencies: for example, after God tells Moses to give the Levites
(ancient Israel''s priestly tribe) cities to dwell in, God adds: ""open land round about the cities shall ye give unto the
Levites... for their cattle, and for their substance, and for all their beasts. And the open land about the cities, which
ye shall give unto the Levites, shall be from the wall of the city and outward a thousand cubits round about.""
(Numbers 35:2-4). In other words, the Bible creates an urban growth boundary for the Levites: a greenbelt that, like
that enacted in 20th-century Oregon, limits the sprawl of urban and suburban development and requires everything
beyond that boundary to be used for agriculture and other rural land uses. The Pentateuch adds: ""When thou shalt
besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof... is the tree of
the field man, that it should be besieged of thee?"" (Deuteronomy 20:19). It therefore appears that the author of the
Bible was the original pro-tree environmentalist.

Like religious conservatives and secular liberals, the Pentateuch is critical of discrimination. It states: ""Thou shalt
not curse the deaf, nor put a stumbling-block before the lind"" (Levicitus 19:14). And, ""if a stranger sojourn with
thee in your land, ye shall not do him wrong"" (Leviticus 19:33). Although these passages hardly mandate specific
legislation, they do emphasize the value of fair treatment for foreigners and the disabled.

It could even be argued that the Pentateuch confronts racism: God inflicts a skin disease upon Miriam (Moses,,
sister) after she ""spoke against Moses because of the Cushite [Ethiopian] woman who he had married."" (Numbers
12:1). (However, the Bible does not directly state the cause of Miriam''s complaints, so this passage is ambiguous).

In sum, the author or authors of the Pentateuch endorsed a kind of centrist populism, moderately redistributionist on
economic issues, conservationist on environmental issues, but culturally conservative. Of course for some, this
discussion may beg the question: so what? The answer depends not only on one''s view of the Bible''s divine origin
or lack thereof, but also on the extent to which one''s own morality and faith should shape a religiously diverse
society.

??2001 Blue Dog Press Published June 21, 2001

PROHIBITION: THE LESSER EVIL?

By Michael Lewyn

A few months ago, I saw the Oscar-nominated movie Traffic. The apparent message of the film was that despite the
billions of dollars spent on the so-called War on Drugs, anybody who wants to smuggle drugs into the United States
can easily do so, and anyone who wishes to buy illegal drugs can easily do so. The film''s popularity reflects a
common (albeit not a majority) point of view: drug prohibition has failed to stop drug use, and is thus a failure.

Certainly, drug prohibition has failed to live up to its lofty goals. Our politicians and bureaucrats have ranted for
decades that if we only throw enough money at law enforcement, we can eradicate the scourge of illicit drugs from
American soil. But millions of Americans continue to sell and use cocaine, heroin, PCP and similar substances. On
the other hand, the drug war has not been a total failure. Between 1991 and 1999, the number of drug-related
murders in America nosedived by 58 percent (from 1353 to 564) ---- a decrease even faster than the overall 1990s
decrease in crime. Similarly, use of illicit drugs appears to have decreased. Surveys by the U.S. Substance Abuse
and Mental Health Services Administration reveal that in 1985, 12.1 percent of Americans used (or at least were
willing to admit to using) one or more illegal drugs in the month prior to the survey, while in 1998, 6.2 percent of
Americans did so. Use of cocaine, the most popular illicit drug other than marijuana, decreased from 3.0 percent to
0.8 percent. Such surveys are of questionable accuracy, because some people lie even on anonymous surveys, and
because some changes may not be statistically significant; nevertheless, it appears that drug use has not increased
and may well have decreased. So maybe the War on Drugs isn''t a complete failure.

It follows that we cannot resolve the issue of drug prohibition merely by deciding that current laws are overly harsh,
or by noticing that millions of Americans still use cocaine, heroin and similar intoxicants. Even if drug prohibition
is imperfect, it may still be the lesser evil if its benefits outweigh its costs: that is, if the problems created by the
status quo are less obnoxious than those caused by legalization. I don''t know what the right answer to this question
is ---- but I do have a pretty good idea what factors we should be thinking about.

American legislators, judges and voters generally believe that what Americans do to their own bodies is their
business. Otherwise, tobacco would be illegal, as would a variety of other dangerous practices (such as drinking
alcohol or maybe even eating fatty foods). Indeed, this norm is so widespread that Americans are willing to allow
each other to do things to their own bodies that harm other beings, such as abortion (which kills an arguably human
fetus). It follows that the case for drug prohibition rests not on harm to users but on harm to nonusers ---- that is,
crime caused by drug addicts.

It could be argued that the drug war itself causes a great deal of violent crime. Sellers of illegal drugs rob and kill
each other to wipe out the competition ---- a problem that would go away if large corporations sold cocaine and
heroin. Addicts steal to support their habit; arguably, fewer would do so if drugs were legal, because legalization
might entice more businesses into the drug market, thus causing the supply of drugs to increase, thus causing prices
to go down.

But there is another side to the argument. If now-illegal drugs were legal, some Americans who don''t use them
would do so, both because they would no longer fear prosecution and because such drugs might become less
expensive than they are today. Some of those Americans would become addicts, and some of those addicts would
commit crimes ---- either because of the intoxicating effects of illegal drugs, or to get money to support their
habits.

How many Americans would become drug addicts if the most dangerous drugs were legalized? Certainly not a
majority; most Americans are too rational even to smoke cigarettes, let alone smokable ""crack"" cocaine. But it
seems equally clear that a few Americans would yield to temptation; when cocaine became cheaper in the late 1980s
and early 1990s, the streets of America''s ghettoes overflowed with crackheads. If even one percent of America''s
adults became drug addicts, we would have about two million new drug addicts on our hands.

In other words, legalization would prevent some crimes (especially those arising from the drug trade) yet create
others (especially those committed by frenzied addicts). To decide whether cocaine or heroin should be legalized,
we should start thinking about whether the second group will be more numerous than the first.

??2001 Blue Dog Press Published June 13, 2001

Blaming the Victims

By Michael Lewyn

One common excuse for state government''s failure to stem suburban sprawl is the ""blame the victims"" theory:
the view that the troubles of cities such as Buffalo are fundamentally the result of incompetent municipal
government, rather than state policies that promote migration to suburbia (such as funding roads that shift
development to the countryside). For example, Washington pundit Gregg Easterbrook argues that Americans
""sought the suburbs in order to escape the corruption and mismanagement of urban government.""

But in fact, there is little correlation between city competence and city wealth. In 2000, the Maxwell School of
Citizenship & Public Affairs And Governing magazine graded the efficiency of 35 city governments. Fourth-place
Minneapolis lost population in the second half of the 20th century, as did eighth-place Milwaukee. Conversely,
some poorly-managed cities continue to grow. Columbus''s city government was the fourth worst, yet Columbus
has gained population in every decade since 1950. In fact, of the ten most incompetently managed cities, five
(Nashville, San Francisco, Anchorage, Columbus, and Los Angeles) have gained population in recent decades. It
therefore appears that some well-run cities have been bled dry by their suburbs, while some poorly run cities
continue to grow and prosper, evidence that municipal incompetence is only a minor factor in sending Americans to
suburbia.

It could be argued that high taxes rather than incompetent service delivery drives middle-class flight from cities. But
Buffalo has lower property taxes than many of its suburbs, yet continues to lose population to them. Conversely,
New York City has a city income tax, yet continues to grow.

Admittedly, many urban governments tax more and provide less than their suburban counterparts. But to the extent
that this is so, sprawl is more cause than effect. This is so for three reasons. First, if a city''s middle class migrates
en masse to suburbia, its tax base will be smaller and it will thus be forced to raise taxes or reduce services. Second,
if a city''s middle class migrates to suburbia, its schools will become less prestigious, because children from
disadvantaged backgrounds tend -- other factors being equal -- to be slower learners than middle-class children.
Third, suburban sprawl itself may facilitiate the election of incompetent urban governments.

Because of middle-class flight to suburbia, older cities are dominated by low-income voters, who tend to favor
liberal politicians whose tax-and-spend, soft-on-crime policies drive away anti-tax middle-class voters. For example,
in Washington, D.C., the ""white flight"" of the 1950s and 1960s and the middle-class black flight to suburbia of
more recent decades combined to create a low-income, overwhelmingly African-American electorate that was
responsive to Marion Barry''s appeals to black pride, and supported his attempts to create jobs by inflating the city
payroll. As a result, Barry was able to reduce the size of the city''s police force, get convicted of using crack
cocaine, and nevertheless be reelected mayor in 1994. The results of Barry''s policies were calamitous: between the
1980 Census (two years after Barry was first elected) and 1998 (when he left office, hopefully for the last time) the
city of Washington lost population more rapidly than the city of Buffalo, even though the population of the
Washington region increased by over 30 percent. But paradoxically, Barry benefitted from the city''s decay: the
voters who moved to the suburbs were middle-class voters who were likely to oppose him, while those who stayed
in the city tended to be his low-income supporters.

By contrast, had there been no middle-class flight during the last half of the 20th century, the city of Washington
would have been resembled the Washington metro area as a whole; that is, it would have been a 3/4 white city with
a 10 percent poverty rate instead of a 2/3 black city with a 20-25 percent poverty rate. In such a city, a Marion
Barry-type candidate could not have been elected or reelected. Thus, Marion Barry and politicians like him are
results, rather than causes, of sprawl.

Moreover, the ""blame the victim"" theory of suburban sprawl requires us to believe a number of bizarre
coincidences. Most Northeastern and Midwestern American cities gained population in the 1930s and 1940s and
lost population for several decades thereafter. So, to believe that suburban sprawl is the result of municipal
incompetence, one would have to believe that dozens of city governments, by an incredibly strange coincidence,
became unable to police their streets or improve their schools at exactly the same time -- an obviously unbelievable
proposition. In recent decades, the inner suburbs of Rust Belt cities such as Buffalo and Cleveland have begun to
lose population. So, to believe that municipal incompetence is the major cause of middle-class flight, we would have
to believe that all of these suburbs became ungovernable at exactly the same time, an equally unbelievable
proposition.

In sum, the claim that urban incompetence causes suburban growth is meritless, both because the correlation
between municipal competence and urban decay is weak, and because urban decay may be a cause, rather than a
result, of incompetent government.

old Atlanta Journal-Constitution op-eds
ATLANTA JOURNAL-CONSTITUTION OP-EDS

Tuesday, February 19, 2002

Car czars won't yield to transit alternatives
MICHAEL LEWYN
FOR THE JOURNAL-CONSTITUTION

In most of America, including Atlanta, the car reigns supreme.

According to a 2000 report by the conservative Georgia Public
Policy Foundation, more than 90 percent of metro Atlanta commuters
drive to work.

Government exists primarily to serve the driver. For example, Gov. Roy Barnes wants to spend $2.4 billion on the Northern Arc (a highway
designed to shift development to Forsyth County and Cherokee
counties, which have no public transit whatsoever) but recently
refused to extend $10 million to MARTA to prevent bus service
cutbacks.

Common sense dictates that drivers such as me would feel secure in
our supremacy, perhaps even secure enough to give nondrivers a few
crumbs from the table. But not all drivers are so magnanimous. For
example, Boston Globe columnist Jeff Jacoby complained a few years
ago: "The car-haters aren't fooling around, and they're not going to
give up until Big Brother takes the T-bird away."

And last year in Atlanta, the Georgia Highway Contractors
Association ran advertisements claiming that evil environmentalists
were "preventing us from driving cars and forcing us to live
downtown."

And what evidence is there of this vast anti-auto conspiracy?
Certainly the streets of Atlanta contain no such evidence; the
clogged interstates prove that no one is "preventing us from driving
cars" or "forcing us to live downtown."

Jacoby writes: "Don't underestimate the intensity of the zealots'
antipathy toward private cars. 'We need bicycles and we need buses,'
demands environmental crusader Bill McKibben."

So evidently, our fearless conspiracy fighters believe that if you
support allowing anyone to ride a train, a bus or even a bicycle, you
are an anti-auto "zealot." To be fair, reasonable people can disagree
about the cost-effectiveness of some of the rail projects undertaken
in the name of increasing transit ridership. For example, the Georgia
Public Policy Foundation report criticized proposals for large-scale
commuter rail on economic grounds --- but the same report endorsed
express buses.

But the blunderbuss of more radical transit critics swings against
any alternative to driving, even the humble bus. When MARTA proposed
to eliminate two-thirds of Sunday bus service last year and to
eliminate all service to Roswell, the anti-transit zealots did not
argue that the consumer choice they (pretend to) glorify should
extend to buses as well as cars. Instead, they endorsed MARTA's anti-
transit jihad.

For example, a Georgia State professor wrote an Atlanta Journal-
Constitution op-ed column calling for the elimination of public
transit entirely outside unspecified "high-density corridors."
Fortunately, MARTA only partially heeded these arguments,
implementing a more modest package of cutbacks.

Despite their pseudo-libertarian rhetoric against conspiracies to
force people out of their cars, anti-transit pundits and activists
are basically auto-totalitarians: They wish to create an absolute
dictatorship of the automobile, a society where government, by
building roads such as the Northern Arc to develop places without
transit and then slashing bus service in the places that already have
transit, makes it impossible to work without a car.

As for the millions of Americans too poor, too young, too old or
too disabled to drive --- those Americans might as well not exist.
And as for the environmental extremists who just don't like spending
their lives in 2,000-pound metal boxes, "The time has come to run
these plodding idealists off the road," wrote Heritage Foundation
pundit Steven Hayward.


January 21, 2001

Parents' attempts at 'protection' do children no favors in long run
MICHAEL LEWYN
FOR THE JOURNAL-CONSTITUTION

One night not long ago, I was chatting with a middle-aged woman
about the virtues and vices (mostly vices) of raising children in
suburban Atlanta.

I said something like: "I wouldn't want to raise kids in Atlanta,
at least not in the areas where my relatives live. When my mom was
10, she was able to take her grown-up relatives on a streetcar tour
of Atlanta. But my suburban nephew and niece are going to be
prisoners of their parents' cars until they are 16. They can't take
buses anywhere because there are no bus routes where they live, and
they can't walk to a bus stop or a shop because there are no
sidewalks and nothing within walking distance."

The woman responded: "This is a different time. The world is so
dangerous that you can't expect these children to walk outside." In
other words, my dowager acquaintance believed that every suburb and
neighborhood is chock full of child molesters, and that the only way
to protect children from evildoers is to keep them locked up in their
parents' houses and cars until they turn 16 --- at which point their
parents will whisk them from a world of infantile helplessness to a
world of auto ownership and unlimited mobility. What's wrong with
this argument?

Plenty. First of all, the woman's argument requires one to believe
two contradictory positions. On the one hand, America's streets are
so dangerous that no one under 16 can ever be let out of the Holy
Trinity of Home, Car and School. On the other hand, the same streets
(and nearby expressways) are so safe that as soon as the same
children turn 16, they may not only be released from the Home/Car/
School bubble, but may (indeed, must, in order to free their parents
from carpool work) be given a 2,000-pound metal box that they must
drive at 50 or 60 mph, despite the dangers of carjackers and bad
driving. Both propositions cannot be true. If children are endangered
by perverts on the streets, they are even more endangered by
criminals and drunken drivers on the highways.

Indeed, auto-dependent lifestyles have killed far more American
children than pedophiles. In 1998, 1,772 American children15 were
killed in auto accidents while they were passengers in cars
(presumably cars being driven by their parents or their friends'
parents), according to federal statistics. Another 316,000 were
injured.

Each year, 100 American children are abducted and murdered by
strangers, according to federal crime statistics. Only 6 percent of
all sexually assaulted children are molested by strangers, and 77
percent are assaulted in their parents' home.

In other words, the only strangers most American children need to
fear are strangers in cars. So Americans who "protect" their children
by keeping them off the streets may well be making their lives more
rather than less dangerous. Indeed, isolated suburban children may be
in more danger from criminal strangers than are urban children.

Common sense suggests that a 10-year-old who is used to going
outside will be far more likely to intelligently distinguish friend
from foe than a 10-year-old whose experience of the world is limited
to Mommy's car and the voice of the family TV.

Auto-dependent children also suffer from a more long-term danger:
obesity and obesity-related diseases. As children walk less, they
exercise less. And when children exercise less, they become fatter
and more prone to heart disease, cancer, diabetes and other obesity-
related diseases. According to the Department of Health and Human
Services, "walking and bicycling by children 5-15 has dropped 40
percent between 1977 and 1995," and by an odd coincidence the
"percentage of young people who are overweight has doubled since
1980."

Of children 5 to 15 who are overweight, 61 percent have one or
more cardiovascular disease risk factors, and 27 percent have two or
more."

So by locking children in their homes, Americans are preparing
them for a lifetime of heart disease and other health problems. So to
those of you who wish to isolate your children in a protective
bubble, I quote the fifth century poet Rutilius Numatianus: "Because
of their fear, they shun what is good. . . . Whatever their reasons,
I find them strange."

Books I read in 2004 (some, but not all, of which I actually understood)
Judaism/Religion/Philosophy:
1. Maimonides, Guide for the Perplexed
2. Levi, Moments of Reprieve
3. Feuchtwanger, Jew Suss
4. Blech, If God Is Good Why Is The World So Bad?
5. Maccoby, Judaism on Trial
6. Kayser, Life and Times of Yehuda Halevi
7. Hsia, Trent 1475
8. Lamm, The Shema
9. Morniss, Climbing Jacob's Ladder
10. Sacks, One People?
11. Segal, Historical Consciousness and Religious Tradition in Azariah de Rossi's Ner Einayim
12. Plaut, The Torah (finished start of year- mostly read in 03)
13. Friedman, Commentary on the Torah
14. Kaplan, American Reform Judaism- An Introduction
15. Davidman, Tradition in A Rootless World
16. Taub, The Malbim Esther
17. Berkovits, Not In Heaven
18. Mittmelman, The Scepter Shall Not Depart from Judah
19. Kugel, The God of Old
20. Telushkin, The Ten Commandments Of Character
21. Halivni, Midrash, Mishnah and Gemara
22. Heschel, The Earth Is The Lord's
23. Lopes Cardoso, The Written and Oral Torah
24. Halberstam, Everyday Ethics
25. Moore, To The Golden Cities
26. Adler, Desires Right and Wrong
27. Scherman, Rosh Hashanah Guide
28. Stern, Days of Awe
29. Halevi, The Kuzari
30. De Sola Pool, Why I Am A Jew
31. Rosenzweig, On Jewish Learning
32. Scholem, The Mystical Messiah
33. Wenger, New York Jews and the Great Depression

Politics
1. Longstreth, Main Line WASP
2. O'Rourke, Eat The Rich
3. Brinkley, Brinkley's Beat
4. Raskin, Overruling Democracy
5. Novoselic, Of Grunge and Government

Urbanism
1. Gillman, The Limitless City
2. Rusk, Cities Without Suburbs (updated edition)3
3. Smart Growth Network, 100 Ways To Smart Growth II
4. Frank, Health and Community Design
5. Waldie, Holy Land

Fiction
1. Roiphe, Lovingkindness
2. Mirvis, The Ladies Auxillary
3. Just, Echo House
4. Marquez, 100 Years of Solitude

Other
1. Mencken, In Defense of Women

another article (for a social science journal)
http://bst.sagepub.com/cgi/reprint/20/4/295

Marquette law review article on sprawl
84 Marq. L. Rev. 301

SUBURBAN SPRAWL: NOT JUST AN ENVIRONMENTAL ISSUE


Michael Lewyn [FN1]


Copyright ? 2000 Marquette Law Review; Michael Lewyn


I. Introduction: What the Argument is About
Once upon a time, 'city' was not a dirty word in America. Between 1900 and 1950, every American city with over 500,000 people gained population. [FN2] But over the past several decades, metropolitan America has been transformed by suburban sprawl--the movement of people (especially middle-class families) and jobs from older urban cores to newer, less densely populated, more automobile-dependent communities generally referred to as suburbs. [FN3]
At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN4] But by 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN5] Some central cities have been devastated by sprawl: for example, St. Louis has lost 60% of its people since 1950, while Buffaloand *302 Cleveland have lost over 45% of their people. [FN6] The cities that have gained population have grown either by being hubs for immigration from other countries (like New York and Los Angeles) or by annexing newly developed areas that would be considered suburbs in other cities (like Little Rock, Indianapolis and Albuquerque). [FN7] As cities have become smaller, they have become poorer. [FN8] In 1960, central cities contained one-third of America's poor people; by 1990, the central city share had climbed to one-half, [FN9] and thirty-one of America's thirty-seven largest cities had poverty rates above the national average. [FN10] Jobs as well as people have fled to suburbia: [FN11] About 95% of the 15 million new office jobs created in the 1980s were in suburbs, [FN12] and suburbs captured 120% of net job growth in manufacturing. [FN13] Today, two-thirds of all new jobs are created in suburbs. [FN14]
In recent years, Vice President Gore and numerous other commentators (especially within the environmental movement) have criticized suburban sprawl. [FN15] For example, Vice President Gore describes sprawl this way:
*303 Acre upon acre of asphalt have transformed what were once mountain clearings and congenial villages into little more than massive parking lots. The ill-thought-out sprawl hastily developed around our nations cities has turned what used to be friendly, easy suburbs into lonely cul-de-sacs, so distant from the city center that if a family wants to buy an affordable house they have to drive so far that a parent gets home too late to read a bedtime story. [FN16]
Gore complains that sprawl 'has left 'a vacuum in the cities and suburbs which sucks away jobs . . . homes and hope; as people stop walking in downtown areas, the vacuum is filled up fast with crime, drugs and danger.' ' [FN17] A book published by the Natural Resources Defense Council blames sprawl for landscapes lost, traffic congested, air and water polluted, public health endangered, and a potential energy crisis that could make those of the 1970s look mild by comparison. [FN18] A Sierra Club website asserts that sprawl increases traffic; pollutes our air and water; worsens flood damage; destroys parks; farms and open space; wastes our tax money, and crowds our children's schools. [FN19] Such concerns are not new. Decades ago, a California city's zoning ordinance blamed sprawl for 'air, noise and water pollution, traffic congestion, destruction of scenic beauty [and, thus,] disturbance of the ecology and environment.' [FN20]
In the political arena, environmentalists are the leading opponents of sprawl, [FN21] while conservatives tend to be skeptical of anti-sprawl policies. [FN22] Environmentalists typically focus on the environmental costs of sprawl, [FN23] and endorse more extensive government regulation of landuse. *304 [ FN24] Some conservatives and libertarians, by contrast, deny that sprawl is a problem at all, and suggest that sprawl merely reflects the desires of affluent consumers. For example, Steven Hayward of the Pacific Research Institute writes in National Review that 'the threat of sprawl is vastly overblown' [FN25] and accuses sprawl opponents of believing that 'commuting suburbanites are making unenlightened lifestyle choices because they lack the expert supervision that only their betters in government can provide. ' [FN26] Similarly, conservative columnist Thomas Sowell describes sprawl as 'today's contrived crisis' [FN27] and asserts that '[t]he real objection [[[to sprawl] may be that all this is going on without the guiding hand of Big Brother.' [FN28] Thus, the conventional conservative wisdom, as of early 2000, seems to be that: (1) sprawl is merely the result of the free market at work; (2) even if sprawl has negative effects, it cannot be limited without implementation of the liberal/environmentalist agenda of larger and more intrusive government; therefore, (3) conservatives should do nothing to fight sprawl. This article rejects all three propositions. Specifically, I argue that: (1) sprawl is in large part a result of runaway statism rather than the free market; (2) sprawl threatens conservative values such as consumer choice, the work ethic, and social stability, and (3) free-market, anti-spending solutions can limit sprawl and revitalize cities.


II. Background: How Statism Created Sprawl
As noted above, many conservatives believe that sprawl is merely the free market at work. [FN29] But, in fact, sprawl is in large part an unintended consequence of governmental blundering.
*305 Government's pro-suburban bias has been especially blatant in three areas: housing policy, transportation policy, and education policy. In addition, government land use policy has made city and suburb alike more sprawling and auto-dependent than a free market would dictate.

A. Housing: Turning America Into Sprawl Land
Federal housing policy has moved middle-class families out of cities both by subsidizing migration to suburbs, and by turning cities into dumping grounds for the poor.


1. Paying Americans To Move To Suburbs
The federal war against urban America began in the New Deal era, when the federal government inflicted the Federal Housing Administration (FHA) mortgage insurance program upon American cities.
Before the New Deal, mortgages were typically granted for no more than two- thirds of the appraised value of a home, so buyers needed to acquire at least 33% of the value of a property in order to make a down payment, and usually 50%. [FN30] Most loans had five to ten year terms. [FN31] During the 1930s, this system broke down, as 'financial instability caused many American homeowners to default [on their mortgages].' [FN32] To protect homeowners and home sellers, the FHA has insured long-term, low-down payment mortgages against default since 1934. [FN33] Specifically, the FHA guaranteed over 90% of the value of collateral so that down payments of only 10% of home value became the norm. [FN34] The FHA also extended repayment periods to twenty-five or thirty years, resulting in lower monthly payments. [FN35] These loan guarantees dramatically reduced bankers' risk from mortgage lending, which in turn caused banks to lower interest rates to borrowers. [FN36] By 1974, the FHAhad *306 insured over 11 million home mortgage loans. [FN37]
As a rule, FHA guaranteed home loans only in 'low-risk' areas. [FN38] FHA guidelines defined low-risk areas as areas that were thinly populated, dominated by newer homes, and without African-American or immigrant enclaves nearby--areas that disproportionately tended to be suburban. [FN39] For example, one FHA underwriting manual taught that the FHA should concentrate its efforts on newer, lower-density areas because ''crowded neighborhoods lessen desirability,' and 'older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy.'' [FN40] Another New Deal creation, the Home Owners Loan Corp. (HOLC), 'redlined' cities by issuing maps placing metropolitan neighborhoods in various categories, from 'green' (the most desirable) to 'red' ('high-risk' neighborhoods where the federal government would not insure mortgages). [FN41] Even areas with relatively small African-American populations were usually given the lowest rating. [FN42]
FHA policies also favored new construction over renovation of existing homes. FHA subsidies for repair were smaller than subsidies for the purchase of new homes, so 'a family could more easily purchase a new home than modernize an old [home].' [FN43] Because the newest suburbs tend to have the newest homes, this criterion also favored suburbs. [FN44]
As a result of the FHA's biases, the FHA generally insured suburban mortgages while refusing to insure urban mortgages. For example, residents of suburban St. Louis County received far more FHA insurance than residents of the city of St. Louis. [FN45] Similarly, theFHA *307 did not insure even one mortgage in Camden, N. J., or Patterson, N. J., until 1966. [FN46]
In the 1960s, Congress replaced New Deal malice with Great Society blundering. In order to undo the damage caused by FHA redlining, Congress enacted the Section 235 Homeownership Assistance Program in 1968. [FN47] This program subsidized low-income homebuyers by providing mortgage insurance and reducing interest rates to as low as 1%. [FN48] From 1969 to 1979, approximately 500,000 homes were purchased under the program. [FN49] But instead of stabilizing cities, Section 235 fueled 'white flight' from cities. In some communities, the federal infusion of capital to the poor fueled 'blockbusting:' Realtors sold 'a few homes to minority purchasers,' then 'spread the rumor that the neighborhood would soon become entirely black,' thus causing 'a wave of panic selling.' [FN50] Whites would sell their homes at artificially low prices, [FN51] and neighborhoods turned from all white to all black in a manner of months. [FN52] Because low-income purchasers were required to put very little of their money at risk, they could afford to buy homes that they could not afford to maintain, and were therefore forced to abandon those houses upon discovering their defects. [FN53] 'By 1979, over ninety-thousand homes, or approximately 18% of the dwellings subsidized under Section 235 [had been] assigned to [the federal government] or foreclosed. ' [FN54]


2. Turning Cities Into Dumping Grounds
While the federal government was bribing middle-class home buyers to leave cities, it was bribing the poor to stay in cities. Another New Deal program, the Housing Act of 1937, [FN55] funded local housingauthorities *308 that provided housing for the poor. The Housing Act provided that any city desiring public housing had to create a municipal housing authority or enter into an agreement to cooperate with one. [FN56] Thus, economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN57] In fact, the Housing Act made it impossible for some suburbs to build public housing even if they wanted to. This statute's 'equivalent elimination requirement' mandated that one unit of substandard housing be eliminated for each unit of public housing built. [FN58] 'Because most suburbs had little substandard housing, even [suburbs] that wished to participate in the public housing program were sometimes excluded.' [FN59] As a result of these limitations, many suburbs have little or no public housing. [FN60]
In addition to ensuring that most public housing would be built in cities, the federal government also guaranteed that public housing would be packed with poverty. The Housing Act required that public housing be affordable by families of 'low income,' defined as 'families who are in the lowest income group and who cannot afford to pay enough to cause private enterprise . . . to build an adequate supply of decent, safe, and sanitary dwellings for their use.' [FN61] Congress also set income limits for the program that grew more stringent over the years. [FN62] Today, the law requires that 60% of all occupants of existing public housing earnless*309 than 30% of their metro area's median income. [FN63]
In addition to mandating that public housing be dominated by the poor, the federal government also made it less convenient for public housing authorities to deter antisocial conduct. 'In the early years of the public housing program, [public housing authorities] had enormous latitude in admission and eviction decisions,' and therefore could easily screen out or evict 'problem' tenants. [FN64] But in the 1960s, the federal courts forced public housing authorities to give their residents due process protections. [FN65] For example, the courts ordered housing authorities to provide tenants with a hearing, access to records, and an opportunity to cross-examine witnesses prior to eviction. [FN66] The courts also prohibited public housing authorities from evicting tenants who had criminal records or bore illegitimate children. [FN67]
Not surprisingly, public housing projects are 'havens of crime.' [FN68] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some projects are even more horrendous. [FN69] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of 1% of that city's population, but account for 11% of the city's murders. [FN70] Similarly, a 1993 study found that 'crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods.' [FN71] Because public housing projects are such undesirableneighbors, *310 the concentration of public housing in cities makes nearby city neighborhoods less desirable to anyone who can afford to avoid them. [FN72] And by concentrating public housing in central cities, the federal government has, therefore, given suburbs a huge competitive advantage over cities.
Paradoxically, the federal government encouraged cities to destroy functional neighborhoods to build these 'havens of crime.' [FN73] The Housing Act of 1949 [FN74] gave mayors broad powers to condemn huge chunks of land in the name of 'urban renewal.' [FN75] Urban renewal projects resulted in the demolition of over 400,000 housing units [FN76] and 100,000 small businesses, [FN77] as well as fostering the deterioration of neighborhoods threatened with such destruction. [FN78] In some cities, government destroyed functional neighborhoods in order to build public housing. For example, in Buffalo, Mayor Frank Sedita destroyed a once-stable Italian neighborhood near downtown Buffalo to build the Shoreline housing project. [FN79]
In other cities, urban renewal destroyed urban neighborhoods without providing those neighborhoods' displaced residents with *311 housing, [FN80] thereby causing those neighborhoods' low-income residents to destabilize nearby areas. For example, in Boston, the federal bulldozer destroyed 2500 units of housing in Roxbury, a low-income African-American community. [FN81] The displaced persons quickly moved into nearby Dorchester, triggering a wave of white flight that turned Dorchester into a racially segregated low-income neighborhood. [FN82]
While the federal government kept the poor locked up in cities, local governments (with assistance from the federal government) tried to keep the poor out of suburbs. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN83] SZEA, which was quickly enacted by the majority of states, [FN84] granted municipalities power to regulate the location and use of buildings. [FN85] Suburbs quickly used their zoning powers to keep out the poor, [FN86] by limiting apartment construction to keep out 'undesirables' or requiring minimum lot sizes to keep out less expensive homes. [FN87] For example, in1970 *312 more than 99% of vacant land in New Jersey was zoned to exclude multifamily housing, and in Connecticut's Fairfield County 89% of the vacant land was subject to minimum lot requirements of one acre or more. [FN88] The predictable consequences of these regulations is to keep prices high and keep low-income purchasers out of a suburb or neighborhood. [FN89] In fact, the Supreme Court upheld one of the first anti-apartment zoning ordinances in Village of Euclid v. Ambler Realty Co. [FN90] Just as government keeps the poor in cities, it keeps the poor out of suburbs. Either way, cities become the dumping ground for the poor.

B. Transportation: Putting Suburbs First
Statist transportation policy, like statist housing policy, has consistently favored suburban migration. For most of the 20th century, all levels of government have funneled money into highway construction. By doing so, government destroyed urban neighborhoods both directly (through physical destruction of cities) and indirectly (by draining cities of their middle-class tax base).


1. How Government Put Roads First
Early in the 20th century, state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers 'to reimburse local treasuries . . . for the cost of streets, traffic maintenance, and police services'--but instead frequently chose to subsidize drivers by relying on general taxation. [FN91] Thus,*313 government essentially taxed the general public (including railroads, transit users, and rail users) to support drivers. [FN92] By contrast, streetcar services were typically private and unsubsidized. [FN93] To make matters worse, streetcar fares were often controlled by government and, despite World War I-era inflation, were not allowed to rise. [FN94] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN95]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue therefrom to fund highway construction projects. [FN96] By 1927, 'highways were second only to education as recipients of state and local expenditure,' and 'one-third of state assistance to local government was for highway construction.' [FN97]
In 1921, the federal government began to support highway building, by enacting a Federal Highway Act [FN98] that designated 200,000 miles of road as eligible for federal matching funds, and by creating a Bureau of Public Roads to plan an interstate highway system. [FN99] By that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN100] (By contrast, most transit systems were privately owned, received no government assistance, and paid taxes to support the highway system and other government functions). [FN101]
During the New Deal era, government largess to the highways grew. By 1940, government spent $2.7 billion on highways. [FN102] By contrast, at that time the total operating costs of all intracity bus and rail systems (except commuter rail) were $661 million--mostly *314 private rather than government spending. [FN103]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, the government funneled $4.6 billion into highways and virtually nothing into transit. [FN104] In 1954, President Eisenhower appointed a committee on highways chaired by Lucius Clay, a member of the General Motors board of directors. [FN105] Not surprisingly, Clay's committee endorsed a massive highway spending scheme. That scheme was enacted into law as the Interstate Highway Act, [FN106] which created a 41,000-mile Interstate Highway System. [FN107] Under the Act, the federal government paid for 90% of the system's construction and maintenance costs, states paid 10%, and municipalities paid nothing. [FN108] By contrast, the federal government did not begin to subsidize public transit until 1962. [FN109] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by 37%. [FN110] Today, federal road spending exceeds transit spending by a margin of almost five to one. [FN111] This statistic dramatically understates the 'funding gap' between roadsand *315 transit, because federal transit spending is canceled out [FN112] by a variety of federal mandates that either increase transit agencies' costs or reduce their revenues, including (1) Americans with Disabilities Act provisions mandating that transit agencies install costly amenities to serve the disabled [FN113] (which alone cost transit providers about $1 billion a year in the early 1990s, about one-fourth of federal transit spending), [FN114] (2) labor laws that limit transit operators' ability to reduce labor costs [FN115] (which alone cost transit providers $2 billion to $3 billion per year, [FN116] or about half of all federal transit spending); [FN117] (3) imposition of federally mandated wage rates for federally funded construction; [FN118] (4) limitations upon transit agencies' use of parts manufactured in foreign countries; [FN119] and, (5) limitations on charter and school bus service in competition with the private sector. [FN120] Moreover, some states are even more pro-road and anti-transit than the federal government. For example, some states require fuel tax revenues to be spent exclusively on roads. [FN121]
Henry Ford, one of America's first auto magnates, summed upthe*316 relationship between the highway and the city when he stated: 'We shall solve the city problem by leaving the city.' [FN122] Government's obsession with road building has degraded cities and accelerated suburban sprawl in two ways: by the physical destruction of city neighborhoods and by making suburban life more convenient.


2. How Roads Destroyed Cities
During the first decade of interstate highway construction, bureaucrats destroyed millions of homes [FN123] and countless communities [FN124] in order to build interstate highways. For example, nearly 20% of Baltimore's African-Americans had their homes destroyed to make room for I-95 and I-83. [FN125] In Miami 20,000 families were displaced in order to build highways. [FN126] Overtown, one of Miami's African-American neighborhoods, 'was reduced to an impoverished enclave of tenements near downtown Miami. ' [FN127] In Cincinnati, I-75 bulldozed through the city's African-American West End, and the displaced West Enders quickly flooded nearby neighborhoods (causing massive 'white flight' from those areas). [FN128] In Cleveland, an inner-belt freeway displaced 19,000 city residents. [FN129] In Milwaukee, the Wisconsin Department of Transportation destroyed Bronzeville, a hub of local African-American culture, while building I-43, [FN130] and nearly destroyed the Third Ward, anItalian-*317 American neighborhood, while building I-794. [FN131] According to Milwaukee's current mayor, 'Bronzeville has disappeared without a trace.' [FN132] and '[t]wo years after the elevated freeway was built, [the Third Ward] had declined so much that the city contemplated turning the remains of the Third Ward into a pornographic combat zone for strip joints and erotic book stores.' [FN133]
Even neighborhoods not destroyed by highways have been damaged by them. For example, in the 1950s the federal government ruined the Treme section of New Orleans, one of the city's oldest neighborhoods, [FN134] to build the I-10 expressway. The community's main street was Claiborne Avenue, which boasted 200 businesses in its heyday and had a 6100-foot-long median. [FN135] The Louisiana Highway Department built I-10 on that street, because Highway Department bureaucrats thought that it was the most direct path from the central business district to eastern New Orleans. [FN136] With the construction of the interstate, the street's median became a strip of dirt, covered with 'a concrete roof 100 feet wide and 25 feet overhead.' [FN137] I-10 became a physical barrier that cut the neighborhood in half, and Claiborne Avenue's oak trees were replaced with concrete pillars. [FN138] Not surprisingly, Treme became a crime-filled slum. [FN139] Thus, the government had nearly destroyed Treme in order to provide commuters with an escape route to the suburbs.
Even the threat of a new highway sometimes eviscerated urban neighborhoods. For example, throughout the 1960s, Buffalo planners debated a city highway known as the West Side Arterial, that (if built) would have destroyed much of the Lower West Side of Buffalo. [FN140] At first, the creation of the West Side Arterial seemed inevitable, because 'throughout the late 1960s . . . city, county, and state planning officials were still enthusiastic about the West Side Arterial.' [FN141] For example, theNew *318 York Department of Transportation engineer Norman Krapf explained: 'It is imperative that we get started on the preliminary layout of a highway that is capable of handling the future highway traffic destined for downtown Buffalo.' [FN142] Banks, insurance companies, and government agencies were not reasonably unwilling to invest in a neighborhood destined for condemnation. For example, in 1971 the U.S. Department of Housing and Urban Development (HUD) denied an application for a grant to rehabilitate Lower West Side dwellings because, according to HUD, '[t]he project is in the probable roadway corridor of the proposed West Side Arterial.' [FN143] Not surprisingly, homeowners took the hint and left the neighborhood. In 1960, 1900 families attended Immaculate Conception Church in the neighborhood. By 1973 only 500 were left. [FN144]


3. How Roads Built Up The Suburbs
Highways have accelerated sprawl by enabling people to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN145] And where highway-driven residential development goes, commercial development inevitably follows, as retail businesses and other businesses move to suburbs in order to accommodate their suburban employees. [FN146] As onefederal *319 court has pointed out, '[h]ighways create demand for travel and [suburban] expansion by their very existence.' [FN147]
For example, Washington's Capital Beltway, a sixty-six mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN148] But instead, the Beltway because a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Va. [FN149] And as suburbs grew more populated, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) then spurring development in even more suburbs. [FN150] A study by the Surface Transportation Policy Project showed that each of the 50 largest metro areas in America added new road capacity in the 1980s and 1990s. [FN151]
Some deny that highways cause sprawl. For example, Ronald Utt, in a paper published by the Heritage Foundation, argues that the interstate highways did not cause sprawl because '[s]uburbanization was well underway in 1960, when the federal interstate highway program hadbeen *320 in existence for just four years.' [FN152] This assertion does not prove that highways are unrelated to sprawl, both because the state and federal governments had begun to support highway building long before the interstate highway system was built, [FN153] and because other antiurban government policies (such as the FHA's antiurban lending policy) had also been in effect for decades before 1960. [FN154] Moreover, Utt's assertion overlooks the fact that American cities' most stunning setbacks occurred after 1960. Of the eighteen American cities which had more than 500,000 people in 1950, every single one gained population between 1930 and 1950. [FN155] By contrast, in the 1950s, thirteen of the cities lost population, and two lost over 10% of their population. [FN156] In the 1960s, fifteen lost population, and six lost over 10%. [FN157] And in the disastrous 1970s, sixteen lost population and fourteen lost over 10%. [FN158] In other words, the sprawl that went along with the interstate system snowballed as interstates were built during the 1960s and 1970s. [FN159]
Utt argues that because some cities in Europe and Japan have also experienced population losses, suburban sprawl is a natural result of affluence. [FN160] But Utt himself admits that sprawl arises fromtransportation *321 policy, arguing that '[i]n Europe and Japan, as well as in many American cities, comprehensive and heavily subsidized public transit systems helped facilitate the exodus of central-city residents to outlying communities.' [FN161] Utt cannot have it both ways: He cannot intelligently argue that public transit facilitated suburban migration without admitting that highways had the same effect. Moreover, even highway-generated sprawl is not confined to the United States. For example, one recent Swedish-planned development has been described as a 'vast linear Edge City of business parks and hotels and out-of-town shopping centres, stretching along the E-4 highway, for twelve miles and more towards the Arlanda Airport. It is almost indistinguishable from its counterparts in California and Texas.' [FN162]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion concede that highways affect the location of development. For example, in 1999, the National Association of Home Builders (which favors increased road spending) [FN163] conducted a survey that purported to show the popularity of suburban living: The survey asked respondents what amenities would encourage them to move to a new area, and their top choice (endorsed by 55% of respondents) was 'highway access.' [FN164] If highway access makes a suburbmore *322 desirable, obviously building highways to a place makes that place more desirable to commuters and businesses.

C. Education: Making Cities Less Livable
Most readers of this article probably know someone who lived in a city neighborhood in their twenties, but moved to suburbia after marriage or childbirth so that his or her children could avoid urban public schools. [FN165] School-related flight from cities is especially common among middle-class whites: in 1990, seventeen large cities with majority white populations had school systems in which over 50% of pupils were black or Hispanic. [FN166] What went wrong? Why are urban schools so often stigmatized as 'bad schools' and avoided by middle-class parents? [FN167] Here too, government is the problem: Both the bureaucratic rules of the state-run 'public' school system and the blunders of federal judges have driven parents out of cities and into suburbs.


1. Why The System Is To Blame
If schools were left to the marketplace, popular schools, like popularuniversities, *323 bookstores and restaurants, would exist wherever parents were willing to pay for them. For example, many of America's most prestigious universities, such as MIT, Columbia, and NYU, are located in central cities. [FN168] Such schools might be concentrated in more affluent areas--but they certainly would not be limited to certain cities or counties within a metropolitan area, any more than popular bookstores or restaurants are limited to suburbia.
The status quo, of course, is far more hostile to urban parents than my hypothetical libertarian [FN169] world. In most of America, government bureaucrats assign students to schools based on their home addresses; [FN170] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN171] the average city school will nearly always have more low-income children than the average suburban school.
Other factors being equal, low-income children are harder to educate and achieve less than middle-income children, [FN172] and schools packed with low-income children have worse reputations (and therefore are less popular with middle-class parents) [FN173] than other schools.
*324 Low-income children are harder to educate because 'socioeconomic status (SES) and family background influence a student's achievement in school. ' [FN174] This is so because 'children reared in lower socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on the child's achievements.' [FN175] For example, Harvard sociologist Christopher Jencks has concluded that '[q]ualitative differences between high schools seem to explain about 2 percent of the variation in the students' educational achievement' [FN176] and '[e]qualizing the quality of elementary schools would reduce cognitive inequality [as measured by test scores] by 3% or less.' [FN177] Similarly, a 1960s survey by sociologist James Coleman suggested that everything schools did accounted for only 5% to 35% of the variation in students' academic performances; he concluded that 'the inequalities imposed on children by their home neighborhood and peer environment are carried along to become the inequalities with which they confront adult life at the end of school.' [FN178] In sum, it may be the case that if suburban children and urban children switched schools, school boards, teachers, and administrators, the suburban/urban achievement gap would be as large as it is now.
This view is supported by the fact that low-income children are harder to educate and achieve less even within the same school or school system. For example, P.S. 24, in Riverdale (an affluent neighborhood on the northern edge of New York City) has two educational programs: a regular program for relatively gifted students, and a 'special' program for slower students. [FN179] The 'special' programsare *325 dominated by children who are poor enough to qualify for government free-lunch programs, while the regular program is dominated by students from middle-class households. [FN180] In other words, poor children achieve less than rich children even within the same school.
It logically follows that even if they are relatively well run, schools filled with poverty-stricken children quickly get a reputation as 'bad schools' and parents tend to avoid them whenever possible. [FN181] And because, as noted above, state and local governments require urban children to go to schools within poverty-packed urban districts, those governments have made urban schools less prestigious than suburban schools.


2. How The Courts Made The Problem Worse
If students had always been assigned to schools based solely upon their address, most urban schools would be more socially diverse (and thus, less prestigious) than most suburban schools, but there would be exceptions: Affluent urban neighborhoods would have homogeneously affluent (and, thus, highly regarded) public schools, and middle-class parents would be clamoring to live in those neighborhoods so their children could attend those schools. But the federal courts have inadvertently foreclosed this option. For the past forty-five years, the federal courts have used a variety of techniques to force racial integration upon city schools but made little effort to integrate suburban schools. Because African-Americans and other blacks [FN182] tend to be poorer than whites, [FN183] a racially integrated urban school typically includes children from low-income households. As a result, parents who want to send their children to schools dominated by other middle-class *326 children (which is to say, most parents) [FN184] will usually seek to avoid integrated urban schools, and will often move to the suburbs in order to do so.
The federal government's attempt to integrate public schools began with Brown v. Board of Education, [FN185] which prohibited state-sponsored segregation of public schools. Over the next fourteen years, local governments and their constituents sought to evade Brown in a wide variety of ways, including closing public schools, violence against African-American students, and a variety of more moderate measures. [FN186] The courts responded by extending Brown. [FN187] In Green v. County School Board of New Kent County, [FN188] the Supreme Court rejected a 'freedom of choice' plan which permitted each pupil to choose a public school, on the ground that the plan had failed to erase segregation. In Swann v. Charlotte-Mecklenburg Board of Education, [FN189] the Court went a step further and allowed lower courts to create integrated city schools through forced busing, racial quotas and a variety of other techniques. [FN190] After Swann, federal courts have routinely ordered cities to bus students throughout the city in order to create racial balance in public schools. [FN191]
By the mid-1970s, some big-city school systems had become overwhelmingly African-American. [FN192] Thus, urban school systems could not create a large number of integrated schools because very few white students were left in some urban school systems. [FN193] In order to solve this problem, some integrationists urged the courts to adopt 'metropolitan busing plans' which would have discouraged 'white flight' by busing suburban whites into city schools dominated by African-Americans (or vice versa). [FN194] But in Milliken v. Bradley, [FN195] the Supreme Court rejectedmetropolitan *327 busing on the ground that the suburbs involved had never discriminated against blacks [FN196] (despite the fact that many American suburbs have excluded blacks through zoning designed to keep out poor and working-class people, [FN197] who tended to be disproportionately black [FN198]).
Thus, the federal courts, while attempting to split the difference between pre- Brown segregation and massive busing schemes, have in fact adopted a double standard: City schools must be diverse, while suburban schools typically need not be. By imposing differing obligations upon cities and suburbs, the federal courts have presented parents with the following choices: (1) send their children to urban public schools, so that their children would go to school with children from the poorest neighborhoods in the city; (2) stay in cities and spend thousands of dollars on private schools; or (3) move to suburbia and send their children to 'good' (i.e. homogeneously middle-class and usually majority-white) public schools for free. Not surprisingly, most parents prefer choice (3). [FN199]


3. Why Schools Matter
It could be argued that middle-class flight from cities is caused by factors unrelated to education, such as transportation policy, housing policy, and crime. [FN200] But this argument is belied by the fact that middle-class flight from cities has primarily been a family phenomenon. Forexample,*328 in Washington, D.C., a 1967 court decision sought to integrate city schools by busing African-American students into majority white schools and eliminating a 'tracking plan' which placed brighter students (who were mostly white) into separate classes. [FN201] Over the following dozen years, white enrollment in Washington public schools declined by over 70%, [FN202] while the city's population of single whites declined by only 6%. [FN203] Similarly, in Boston, where courts sought to integrate public schools through a controversial busing plan, [FN204] the city's juvenile white population declined by over 50% in the 1970s, while the city's single adult white population decreased by only 3%. [FN205] In other words, white flight from cities has been led by the people who are naturally the most concerned about schools--families with children. This fact strongly suggests that schools and sprawl are closely related.
Moreover, property values are higher in suburban school districts even where houses and crime rates are identical to those of nearby city neighborhoods. For example, in May 1996, USA Today published an article on housing values in various metropolitan areas. [FN206] The article pointed out that property values were consistently higher in areas where school districts had good reputations, even when other factors were identical. [FN207] For example, the article compared a house in an affluent part of Milwaukee with a house less than half a mile away in the suburbof*329 Shorewood. In nearly every possible respect, including crime rates, the houses and locations were comparable. [FN208] Yet the Shorewood house was significantly more expensive, because of the Milwaukee public school system's poor reputation. [FN209] If the alleged high quality of suburban school districts affects suburbanites' property values, it logically follows that prestigious schools make suburbs more popular with homeowners.

D. How Big Brother Makes Suburbia Sprawling
In addition to encouraging migration from city to suburb, government has also made both city and suburb far more sprawling and auto-dependent than the market would dictate. In the absence of government regulation, American suburbs might have looked like Lake Forest near Chicago or Shaker Heights near Cleveland: communities that accommodated the automobile without being totally auto-dependent, communities where roads and sidewalks, pedestrians and drivers, mingled together peaceably. [FN210] But thanks to stifling government zoning codes,
[W]e have separated housing from every other human activity. The result is the familiar pattern we see today in edge-city suburbs--commercial offices in one parking pod, commercial retail in another, light industrial in another, and housing on cul-de-sacs, completely isolated from everything. Housing subdivisions consequently have no corner stores and nothing much else within walking distance, except more housing. [FN211]
The original purpose of zoning was to make crowded, rapidly growing cities more livable by separating polluting industries from *330 housing. [FN212] But over time, zoning laws have spread--both geographically (to non-industrial suburbs) and functionally (to cover even the least polluting land uses). [FN213]
The American version of suburbia was created in part by a few bureaucrats in our nation's capital. In 1921, the federal Department of Commerce formed an advisory committee on zoning and drafted the first Standard State Zoning Enabling Act (SZEA). [FN214] By 1925, nineteen states had enacted zoning statutes based on the 1921 Act. [FN215] In 1926, the Commerce Department published a revised version of SZEA [FN216] that was adopted by most states. [FN217] SZEA set up a general grant of power to cities to allow them to restrict building and lot size, the size of yards and other open spaces, the density of population, and the location and use of structures for trade, residence, and other purposes. [FN218] The SZEA declared that such legislation would be designed 'to prevent the overcrowding of land [and] to avoid undue concentration of population.' [FN219] Specifically, SZEA defined zones as parcels wherein all lots conform to the same requirements of minimum lot size, yard size, and distance of buildings from streets. [FN220] By requiring minimum lot and yard sizes for all lots within a given zone, SZEA effectively mandates 'single use zoning' which often keeps stores out of residential zones andvice *331 versa, keeps rental properties out of zones reserved for single family homes, and forces all homes in an area to be roughly the same size. [FN221] The practical consequences of the Enabling Act and its state and local clones are that absent a zoning variance, walkable traditional neighborhoods are outlawed in many American suburbs, because every activity demands a separate zone of its own; people cannot live within walking distance of shopping, and offices cannot be within walking distance of either. [FN222]
Cities as well as suburbs often adopted similar restrictions. In 1916, Dan Hoan, mayor of Milwaukee, stated: 'Congestion of the population is a serious problem confronting our community. This can be overcome only by a spreading out of the population.' [FN223] To remedy this so-called problem, Milwaukee used zoning to restrict 'Polish flats' (three or four-room houses where spare rooms were rented out to boarders). [FN224] And in downtown Sandy, Utah, '[the city's] zoning ordinance says only two words about mixing residential and commercial uses: 'Not permitted." [FN225]
Just as bureaucratic regulation of housing and commerce has made cities and suburbs less pedestrian-friendly, local governments' regulation of parking has also accelerated auto dependence. Governments make neighborhoods more auto-dependent and accelerate sprawl by forcing businesses, apartment buildings, and developers to provide (usually free) parking. [FN226] For example, nearly all building codes require developers to provide two off-street parking spaces per house, and apartment buildings must provide at least one parking space per bedroom and sometimes more. [FN227] Some suburbs are even morerestrictive; *332 Schamburg, Ill. demands that developers provide 1.5 spaces per one bedroom unit, thereby ensuring that apartment buildings have 50% more parking spaces than people. [FN228] Commercial developers are also required to provide parking for stores and office buildings. [FN229] Municipalities typically calculate the amount of 'necessary' free parking based on Institute of Transportation Engineers surveys that count the number of vehicles parked at the time of peak parking demand in areas with ample free parking and nonexistent public transit--in other words, the maximum imaginable amount of vehicles. [FN230] Local governments' free parking mandates create significant costs for developers: 'In Los Angeles, the average construction cost of an office building, excluding the cost of parking, is about $150 per square foot.' [FN231] The installation of four aboveground parking spaces per 1000 square feet of office space (a fairly typical requirement) costs $40 per square foot. [FN232] Thus, free parking requirements increase the cost of office space by 27%, and underground parking is even more expensive. [FN233] Such requirements also increase the cost of housing. For example, a requirement that each apartment include one parking space increases the cost of housing by 12.5%. [FN234]
Governments' parking mandates augment sprawl in a variety of ways. First, when businesses are forced to provide parking, driving becomes cheaper and more convenient, [FN235] and homeowners have a greater incentive to live in auto-dependent areas. In addition, the resulting increases in driving, other factors being equal, cause the roads to become more congested, [FN236] thus giving government an excellentexcuse *333 to build and widen roads [FN237] which (as explained above) [FN238] accelerates sprawl by making it more convenient for motorists to move further away from cities' older areas. Second, government parking mandates make cities and suburbs less pedestrian-friendly and more auto-dependent, by forcing consumers to walk through huge parking lots to shop and work and to share this space with speeding vehicles. [FN239]
It could be argued that such parking mandates are necessary to prevent streets from being deluged with parked cars. Assuming, arguendo, that limiting the number of parked cars is a legitimate function of government, this problem can sometimes be solved without bureaucratic parking mandates. Employers can sometimes reduce demand for parking by allowing employees to 'cash out' their parking benefits. For example, upon moving to new offices in the Seattle suburb of Bellevue, Washington, the 430 employees of the engineering firm of CH2M Hill were offered the following choice: They could get $40 per month (reflecting the cost of a parking space) if they walked, bicycled, carpooled or took transit to work, or they could get free parking if they drove alone. [FN240] The percentage of employees driving alone quickly nose-dived from 89% to 54%. [FN241] Such arrangements are less frequent where employers by law must provide enough parking for every employee, because such employers have no incentive to economize on parking. [FN242]
Government also makes streets inconvenient for pedestrians through traffic planning. For example, traffic engineers use a standard procedure for grading drivers' experiences at intersections. If driverswait *334 an average of five seconds or less to get through an intersection, they have an 'A' level of service (the ideal). [FN243] If drivers wait fifteen to twenty-five seconds, they have a 'C' level of service, and if they have to wait a minute or longer, they have an 'F' level of service. [FN244] By contrast, engineers have no such scheme for grading pedestrian service, and as a result pedestrians often have to wait sixty seconds or longer to cross. [FN245]
Traffic engineers also make streets unfriendly to pedestrians by making them extremely wide. For example, much of Main Street in Buffalo, N.Y., is six lanes wide--a width that discourages pedestrians from walking across the street unless absolutely necessary. [FN246] By making Main Street too wide to be easily walkable, government's traffic engineers have also hastened the decay of Main Street by depriving its merchants of walk-in traffic. [FN247] By contrast, another commercial street a few blocks away, Elmwood Avenue, is only four lanes wide and is thriving. [FN248]
Finally, traffic engineers make cities less competitive by limiting on-street parking. [FN249] Cities sometimes limit on-street parking in order to accelerate access to freeways (and thus accelerate access to suburbs). [FN250] But the elimination of on-street parking discourages pedestrians from crossing a street by eliminating a buffer between pedestrians and cars (thus effectively widening that street), [FN251] and also discourages downtown business patrons from parking near stores, thus making downtowns lesscompetitive *335 with suburbs. [FN252] For example, in Milwaukee, parking was banned on Wisconsin Avenue in the 1930s to allow an additional driving lane for cars. As a result, '[b]usinesses suffered from the perception of shoppers that there was no place to park, even though a two-thousand space parking ramp was built nearby.' [FN253] According to Milwaukee's Mayor Norquist, Wisconsin Avenue recently became more prosperous after on-street parking was reinstated. [FN254]

E. Alternative Explanations of Sprawl--or, Misguided Counterarguments
It could be argued that despite the pro-sprawl policies outlined above, suburban sprawl is the natural result not of state and federal bungling but of the incompetence of city governments in population-losing older cities [FN255] or Americans' understandable desire for more space. [FN256] It has also been argued that pro-sprawl federal policies are counterbalanced by anti-sprawl federal policies. [FN257] Each of these arguments will be addressed in turn.


1. Blaming the Victims
It has been argued that municipal incompetence rather than suburban sprawl is the cause of cities' problems, and that if cities would only provide their citizens with decent services and lower taxes, they would be able to compete with suburbs successfully. [FN258] This argument has a grain of truth: middle-class Americans abandon cities not just because of the convenience provided by new and widened highways, but also because of crime, high taxes, and public schools with poor reputations. [FN259] Nevertheless, cities are not solely, or even primarily, to blame for their own problems.


*336 a. Confusing Cause and Effect
High taxes, high crime, and poor schools are less a cause of suburban sprawl than a result of suburban sprawl. This is so for a variety of reasons.
First, if a city's middle class migrates en masse to suburbia, its tax base will be smaller and it, therefore, will, other things being equal, have to raise taxes or reduce services. [FN260] So other things being equal, middle-class migration to suburbia may actually cause higher taxes and poor services in cities.
Second, suburban sprawl itself may facilitate the election of urban governments whose policies drive away middle-class taxpayers. Because of middle-class flight from cities, many cities are dominated by African-American and low-income voters, [FN261] who tend to favor left-leaning politicians and high-tax, redistributionist policies [FN262] that might drive outanti-*337 tax upper-income voters. For example, in Washington, the 'white flight' of the 1950s and 1960s [FN263] and the middle-class African-American flight to suburbia of more recent decades [FN264] combined to create a low-income, [FN265] overwhelmingly African-American urban electorate [FN266] that was responsive to Marion Barry's appeals to racial pride, [FN267] and to his attempts to create jobs by inflating the city payroll. [FN268] As a result, Barry was able to emasculate the city's police force, [FN269] get convicted of using crack cocaine, and nevertheless be reelected as mayor of Washington in *338 1994. [FN270] By the mid-1990s, 7% of Washington's population was on the city payroll, far more than in any other large American city. [FN271] Washington's nearest competitor, New York City, clocked in at 5.4%. [FN272] Not surprisingly, Washington's taxes significantly exceeded those of its suburbs: City residents paid 9.5% of their income in city income taxes, as opposed to 5.75% in nearby Virginia. [FN273] The results of Barry's policies were calamitous: Washington lost 27% of its population between 1980 and Barry's departure in 1998, [FN274] while the Washington metro area's population increased by over 30%. [FN275] Between 1990 and 1998, Washington lost 13.8% of its population, [FN276] more than all but two other American cities. [FN277] By contrast, if Washington had not been ravaged by the pro-suburban federal policies discussed above, [FN278] it might have had a more racially diverse, middle-class electorate that would never have tolerated Barry's shenanigans.
Third, the common complaint that 'bad schools' drive people out of cities [FN279] exemplifies how state and federal policies cause 'bad' municipal services. State and federal governments' anti-urban transportation,*339 housing and educational policies have, as discussed above, caused cities to become disproportionately comprised of the poor [FN280] and thereby caused urban schools to become dominated by children from poor households. Because children from low-income households tend to be low achievers in school, [FN281] the 'quality gap' between city schools and suburban schools arises from state and federal incompetence rather than municipal incompetence.
Fourth, cities' high crime rates arise partially from government policy. As explained above, federal housing policy and exclusionary suburban zoning caused low-income households to be concentrated in cities, while a variety of federal, state, and local policies encouraged middle-class flight to suburbia. [FN282] As a general rule, low-income areas in cities are more dangerous than high-income areas. [FN283] If poor areas are more crime-ridden, and government policy caused cities to be dominated by poor people, it logically follows that government policy made cities more dangerous than suburbs.


b. Bizarre Coincidences
The claim that bad city government rather than state and federal misconduct drives middle-class families out of cities is logically, as well as factually, flawed.
As noted above, most older American cities gained population in the 1930s and 1940s and have lost population ever since. [FN284] Thus, to believe that suburban sprawl is the result of municipal incompetence, one would have to believe that dozens of city governments, by an incredibly strange coincidence, became unable to police their streets or improve their schools at exactly the same time--obviously a bizarre proposition.
The 'municipal incompetence' theory also fails to explain why, inmany*340 stagnant metropolitan areas, older suburbs closer to the city have begun to lose population. For example, every suburb contiguous to Cleveland and Buffalo lost population during the 1990s. [FN285] So to believe that municipal incompetence causes population loss, one would have to believe that all of these suburbs became ungovernable at exactly the same time--obviously a proposition too bizarre to be believable. Indeed, this theory is even less plausible than the theory that big cities' incompetence caused their problems. It could perhaps be argued that big cities have become ungovernable because of their sheer size (although the growth of cities that have annexed their suburbs [FN286] and of the nation's very largest cities [FN287] suggest otherwise)--but this argument cannot plausibly be made about inner ring suburbs that are just as small as their rivals further away from central cities.


c. Good Government And Bad Cities
The theory that bad city government causes suburban sprawl rests on the assumption that the most inefficient governments drive out people and businesses while competent city governments do not. Undeniably, high taxes and municipal incompetence are factors that drive out middle-class taxpayers--but far from the only factor. [FN288] Some cities with relatively competent municipal governments are being bled to death by sprawl, while other less well-run cities continue to grow. [FN289]
In 2000, the Maxwell School of Citizenship & Public Affairs and Governing Magazine graded thirty-five big cities on the management oftheir*341 governments. [FN290] The two highest-graded cities, Phoenix and Austin, [FN291] have gained population in recent decades. [FN292] But not all of the well-run cities are doing so well. Fourth-place Minneapolis has consistently lost population since 1950, as has eighth-place Milwaukee. [FN293] Conversely, some poorly managed cities continue to grow. Columbus was fourth from the bottom according to the Maxwell School survey, [FN294] while Los Angeles was third from the bottom. [FN295] Yet, both cities have gained population in recent decades. [FN296] In fact, of the ten most incompetently managed cities, five (Nashville, San Francisco, Anchorage, Columbus, and Los Angeles) gained population during the 1990s. [FN297]
It could be argued that high taxes rather than incompetent service delivery drives middle-class flight from cities. Although taxes are hardly irrelevant, [FN298] they are not the only factor governing a city's ability to survive sprawl. Cleveland imposes only $593 per capita in taxes, far less than Indianapolis ($688), Seattle ($772), and Denver ($959). [FN299] Yet Cleveland has lost nearly half its 1950 population, while the other threecities *342 have gained population over time. [FN300] Why? Perhaps because the other cities have been able to annex some of their suburbs, while Cleveland is confined within its 1940s boundaries. [FN301] Similarly, Buffalo has lower taxes than its suburbs, [FN302] yet has lost over 45% of its 1950 population. [FN303]
Utt cites New York, Milwaukee, and Indianapolis as examples of cities that have fought suburban sprawl during the 1990s by the simple expedient of electing mayors who have governed more effectively than their predecessors. [FN304] But these three examples show the futility of counting on good government to reverse suburban sprawl. Indianapolis continues to grow because decades ago, it merged with a surrounding county, and thereby took over a great deal of suburban territory. [FN305] (Ironically, Utt condemns the metropolitan government that saved Indianapolis from the fate of Cleveland). [FN306] In fact, the 1990s have been less kind to Indianapolis than prior decades: The city grew by 4% from 1980 to 1990, but only 1% from 1990 to 1998. [FN307] Despite its dramatic drop in crime, New York grew more slowly in the 1990s than in the 'bad old days' of the 1980s: by 3% in the 1980s and by only 1% in the 1990s. [FN308] And in Milwaukee, the 1990s have been a difficult decade: After losing only 1% of its population in the 1980s, the city lost 8% of its population in the 1990s--even though it has cut taxes by 21.4% during the 1990s. [FN309] It may be that with less charismatic and competent mayors, these cities would have been in much deeper trouble. But nevertheless, these cities' anemic growth in the 1990s suggests that factors other than the competence of a city's leadership underlie urban decline.
In fact, the cities that have rebounded most impressively in the 1990shave *343 done a mediocre job of fighting major urban problems. Of the fifty largest American cities, only four gained population in the 1990s after losing population in the 1980s: Chicago, Atlanta, Denver, and Kansas City. [FN310] According to the Maxwell School study, these cities have thoroughly mediocre governments: Chicago was No. 16 of 35 in governmental competence; Denver, No. 17; Kansas City, No. 20, and Atlanta No. 22--and all finished behind seemingly doomed cities such as Philadelphia and Baltimore (both of which have lost about 30% of their 1950 population). [FN311] Similarly, the 'comeback cities' have not done an especially good job at fighting urban problems such as crime. In 1997, three of the four 'comeback cities' (Chicago, Atlanta, and Kansas City) had higher murder rates than supposedly better-governed Milwaukee, and all four had higher murder rates than New York City. [FN312] While New York's murder rate declined by almost two-thirds between 1991 and 1997 (from 29.3 per 100,000 to just 10.5 per 100,000), Denver's murder rate declined by 29% (from 18.4 to 13.1 per 100,000), Chicago's murder rate declined by 16% (from 32.9 to 27.4 per 100,000), Atlanta's by 30% (from 50.9 to 35.6 per 100,000), and Kansas City's by 28% (from 30.8 to 22.1 per 100,000). [FN313] (Nationally, the murder rate declined by about 30%, from 9.8 per 100,000 to 6.8 per 100,000). [FN314] Yet three of these four cities grew faster than New York City in the 1990s. [FN315] In sum, the quality of a city's government is undeniably relevant to the speed of suburban sprawl, but is only one relevant factor among many.


2. Another Counterargument: The 'Natural Desire' Theory
It could also be argued that even if government has discouraged city living in a variety of ways, the status quo was nevertheless inevitable because Americans, when empowered by prosperity, naturally desire the bigger houses and bigger lots they get by choosing low-density suburban living, [FN316] and the effects of pro-sprawl government programsare *344 thus minor. [FN317] This argument requires one to believe that even if cities had crime rates, school systems, tax rates, and government services identical to those of suburbia, they would still be as depopulated as they are now--a proposition that should seem highly questionable to everyone who has known anyone who moved to suburbia for the schools. [FN318]
More importantly, this argument overlooks a simple fact: that livable city neighborhoods have sky-high property values. Neighborhoods like Buckhead in Atlanta, Cleveland Park in Washington, D.C., and Boston's Back Bay are more expensive than many suburban neighborhoods. [FN319] For example, in 1998 the average home price in Buckhead was $364,952--more than the average home price in all but one of greater Atlanta's suburbs. [FN320] Similarly, the average home in the Back Bay cost $444,000 in 1996, more than twice the metro Boston average, [FN321] and the average home in the zip code that includes Cleveland Park cost $571,095 in 1996, [FN322] more than three times the cost of the average Washington-area home. [FN323] If 'good' city neighborhoods areexpensive, *345 the demand for such neighborhoods obviously exceeds the supply. [FN324] In other words, despite cities' 'bad' schools and higher crime rates, there is a huge pent-up demand for city living. And if government had not turned city schools and neighborhoods into crime-ridden warehouses for the destitute and the dispossessed, the demand for city living would be higher still.


3. The Most Bizarre Counterargument: Does The Government Favor Cities?
One commentator has argued that 'critics of sprawl overlook the many policies that favor central cities, such as downtown renewal, subsidized stadia placed in central cites, and heavily subsidized downtown-focused rail transit systems.' [FN325] But none of these policies are tremendously helpful to central cities.
As explained above, the federal 'urban renewal' program destabilized central cities by destroying housing and displacing people and businesses. [FN326] And although rail systems mitigate the effect of sprawl upon the carless poor [FN327] and make it easier for suburban commuters to reach downtown jobs, their impact on cities is unclear: Like highways, rail systems that extend into suburbia make it more convenient for central city workers to live in the suburbs (as opposed to urban neighborhoods near downtown), and thus may actually accelerate sprawl under certain circumstances. [FN328] And the idea that sports stadia counterbalance pro-sprawl policies requires one to believe that a significant number of families scared out of cities by crime-ridden public housing projects [FN329] and poverty-packed schools, [FN330] and lured out of cities by convenient highways, [FN331] will nevertheless move back to a city to be a few miles closer to a ballgame. To state such a bizarre proposition is torebut *346 it. [FN332]


III. Sprawl as a Conservative Issue: Or, Why You Should Oppose Sprawl Even if
You Are Not an Environmentalist
As noted above, environmentalists have traditionally fought sprawl, while conservatives have often criticized anti-sprawl policies. But in fact, even the most anti-environmentalist conservatives [FN333] have excellent reasons to fight suburban sprawl. As explained below, sprawl reduces, rather than enhances, consumer choice, dissolves social stability, and increases welfare dependence.

A. Economic Freedom vs. Suburban Sprawl
Economic conservatives claim to favor more consumer choice and less government; [FN334] but sprawl, as explained below, means less freedom and higher taxes.


1. Sprawl vs. Freedom
Conservative economist Milton Friedman has argued that the market is superior to government not just because it is more efficient but also because it produces 'unanimity without conformity'--that is, because millions of consumers can satisfy their diverse needs without imposing their desires on others. [FN335] And in some metropolitan areas (such as the American cities of the first half of the 20th century, or many Canadian and European cities today) consumers can choose among a wide variety of options: they can live in city or suburb, and can live with no cars or plenty. [FN336] Such diversity, such unanimity without conformity,*347 is what supporters of economic freedom should support.
But in most of metropolitan America, conformity is the rule in two respects. Sprawl has made auto ownership mandatory in most of America, and has made suburban living mandatory in large chunks of America. [FN337] To quote one newspaper article, 'the suburban sprawl that started after World War II forced Americans to go everywhere by car. Traditional, walkable communities are mostly a thing of the past.' [FN338]


a. Drive or Die
In a free society, government generally should not force a particular mixture of products down consumers' throats: Consumers should be free to spend half their income on mortgage payments and take the bus to work, or live in a rundown trailer park and throw their money at a BMW. But in fact, government-induced sprawl has forced most American adults [FN339] to spend thousands of dollars on one product: a functional automobile.
In a few cities, like New York and Washington, one person can comfortably survive without a car. But in most cities and suburbs, government policies have made auto ownership virtually mandatory. [FN340] As explained above, government has, through the highway system, the education system and the FHA, lured middle-class people and their jobs to the suburbs, and then used zoning and traffic engineering to make those suburbs as auto-oriented as possible. [FN341] Government has further rigged suburban life in favor of the auto by building roads for drivers but providing minimal public transportation to nondrivers. [FN342] Thus, suburbanites often need a car even if they live in regions with relatively well-developed transit systems, and in most smaller and Sun Belt citieseven *348 city residents can barely function without them. [FN343] Because two-thirds of all new jobs are now created in suburbs, many workers need a car just to get to work. [FN344] In fact, a survey by the U.S. Department of Commerce shows that only 54.4% of American households have any public transit at all available, and that only 28.8% claim to have satisfactory public transit. [FN345]
Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN346] For example, the Boston region has a central city with a well-developed transit system and a commuter train system that serves many of its suburbs. [FN347] But even in Greater Boston, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN348] Just 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer neighborhoods. [FN349]
The situation is even worse in Sun Belt cities. For example, Atlanta's second-largest suburban county (Gwinnett County, which had 522,000 people in 1998) has no public transportation whatsoever, [FN350] and even some neighborhoods within the city limits have virtually no bus service. [FN351] Even in areas with bus service, the absence of sidewalks (or even lawns that one can walk on) prevents would-be riders from walkingsafely *349 from residential areas to the bus stop. [FN352] Not surprisingly, less than half of Atlanta-area entry level jobs are located within a quarter-mile of a public transit route. [FN353]
And in smaller cities, a non-driver's life is more desperate still. For example, in Macon, Georgia, 16% of city households [FN354] (and 14% of households in the county that includes Macon) [FN355] lack cars, yet city buses only operate until 6:45 p.m. in the evening on weekdays, Saturday service is limited, and there is no service on Sundays or holidays. [FN356] Because many entry-level employers require their newest employees to work evening and weekend shifts, this system virtually shuts many of Macon's carless residents out of the job market. [FN357]
And many employers are not transit-accessible at all: Macon's largest employers are located in the area's periphery far from any bus line: Brown & Williamson (cigarettes), Riverwood (paper mill), Cagle's (chicken processing), Cigna (insurance data processing) and the hotel operators and fast food establishments among major streets. [FN358] As a result, Macon's employers of unskilled labor often ask would-be employees whether they have a car--and if the answer is no, the applicant won't be hired. [FN359]
Macon's transportation system limits a wide variety of other activities as well. The largest supermarket chain in the area, Kroger, is not efficiently served by the buses. While two of the system's routes pass Kroger stores, the routes do not swing down access roads and intothe *350 store parking lots to permit less agile riders (such as children and senior citizens) to reach the stores. [FN360] The two largest Kroger stores in the area are not on bus lines, nor is a large discount supermarket, FoodMax, or a new Publix supermarket. [FN361] Conversely, a largely abandoned shopping center where anchor tenant K-Mart closed in 1991 is served by the system--but the new K-Mart is not. [FN362] Churches are not served by the system at all, because churches tend to be most active on Sundays and weekday evenings, when the bus system is shut down. [FN363] Even on the bus system's limited routes, the frequency of service is so minimal as to discourage use. For example, students who use public transit to attend Macon College must devote the entire day to the ordeal. After rising before 6:00 a.m. to catch the first bus from their homes to the downtown transfer station, students must catch a morning bus from downtown to the college at 7:30 a.m. Later in the day, they have only one opportunity to return home. [FN364] Needless to say, drivers suffer from none of these limitations: Government has built a toll-free, twenty-four hour system to serve them, and by building highways further and further away from downtown Macon, has encouraged employers to relocate to areas not served by bus routes. [FN365]
In sum, in most of America (especially in suburbs and small cities) government has rigged transportation systems to make driving a necessity for anything resembling a normal life, by building roads that shifted development to newer areas without creating bus routes or rail lines to serve those highway-created suburbs. Free enterprise devotees would certainly oppose a law ordering consumers to spend thousands of dollars a year on television sets, housing or ice cream. It logically follows that they should oppose policies that have the effect of forcing consumers to spend thousands of dollars on automobiles. [FN366]


*351 b. Suburbia or Else
Just as government policies have forced Americans to buy more cars than they might otherwise buy, government policies have forced Americans out of cities and into suburbs. The tyranny of the automobile arises in part from a second tyranny: the tyranny of suburbia. In a few metro areas urban decay has advanced so far that cities are essentially not an option for any consumers but the most adventurous. [FN367]
This fact is reflected in the mainstream media: all too often 'suburban' is used as a synonym for 'white,' 'respectable,' 'moderate,' or 'middle-class,' [FN368] while the word 'urban' is used as a synonym for 'poor,' 'dangerous,' or 'black.' [FN369] In the most degraded cities, like Detroit and Newark, urban decomposition is so advanced that even single people are unwilling to live in the city. For example, an elite [FN370] prep school in Connecticut, Choate Rosemary Hall (CRH), has dozens of alumni in New Jersey suburbs and hundreds in New York City--but not one who lives in Newark. [FN371] And in southeastern Michigan, CRH has about twenty alumni in Detroit's suburbs--but not one who lives in the city of Detroit. [FN372] By contrast, healthier big cities are jam-packed with CRH alumni, especially younger alumni. For example, about 1000 CRH alumni live in Manhattan, and 180 more live in New York City's other boroughs. [FN373]
*352 Even where single people can live in the city, families often cannot. For example, in Cleveland even the most open-minded Clevelanders were unwilling to stay in the city after marriage, because of the state of the city's public school system (which was unusually disreputable even by the low standards of urban public school systems) [FN374] and because nearly all of the area's private schools (except for a few parochial schools) are in the suburbs. [FN375] As a result, in Cleveland only 4% of households earning over $100,000 live in the city. [FN376] Even institutions that would be urban in other communities are suburban in Cleveland. For example, the city's major bohemian-oriented shopping street, Coventry Road, is in the suburb of Cleveland Heights, [FN377] as is the office of EcoCity Cleveland, one of the area's leading anti-sprawl groups. [FN378]
In sum, suburban life is often not an option but a virtual necessity for Middle-class Americans, because of the shortage of safe city neighborhoods and reputable city schools. So by fighting sprawl and preserving cities, Americans can actually expand, rather than limitconsumer *353 choice.


2. Sprawl Means Higher Taxes
Over the past two decades, taxes have become a defining issue in American politics, like the New Deal in the 1930s. [FN379] Conservatives and Republicans have generally opposed higher taxes; liberals and Democrats have not. [FN380] As explained below, sprawl is more likely to raise local taxes than to lower them.


a. Taxes in the Cities
Although suburban sprawl is not generally thought of as a tax issue, sprawl in fact means higher taxes and bigger government. Here's why: As cities lose middle-class residents and retain the poor, they become poorer. [FN381] In the metro areas encompassing the twenty-three American cities that David Rusk designates as 'zero elasticity' cities (that is, cities that have been unable to annex their suburbs) city per capita income is, on the average, only 66% of suburban per capita income. [FN382] And in most older cities, the city-suburb income gap has widened over time. In every single one of America's twenty-four most distressed cities (which Rusk defines as cities that have lost 20% of their 1950 population, are over one-third black or Hispanic, and have average income levels less than 70% of suburban income levels), [FN383] the gap between the average suburban income and the average city income widened during the 1980s. [FN384]
Common sense dictates that as a city becomes poorer, its tax basewill*354 decline, and tax hikes will thus become more tempting. [FN385] For example, between 1972 and 1987, Cuyahoga County (Cleveland and its older suburbs) lost $1.5 billion worth of payroll, while Cleveland's newer outer suburbs gained over $1 billion. [FN386] Moreover, poorer cities will typically have to spend more money to obtain the same quality of public services as affluent suburbs, because poorer populations will need more money for public assistance and poverty-related health care than would the population of a more affluent city, and poorer people are more likely to commit crimes (thus causing higher criminal-justice related spending). [FN387]
And as a city (and more recently, its inner suburbs) [FN388] becomes dominated by poorer voters, its electorate will be more likely to be dominated by liberals and Democrats who will prefer higher taxes to reductions in the size of government. [FN389] For example, between 1976 and 1996, in the city of Buffalo, the Republican percentage of the two party presidential vote nosedived from 37% to 17%--a twenty percentage point drop that dwarfed the national four point drop in the Republican vote (from 49% to 45%). [FN390] In Buffalo's population-losing inner ring suburbs, Republicans suffered comparable losses between 1976 and 1996. For example, the Republican nominee lost fourteen points in Lackawanna (from 35% to 21%), Cheektowaga (from 45% to 31%), and West Seneca (50% to 36%) as well as nineteen in Tonawanda (from 56% to 37%). [FN391] By contrast, in Clarence, a still-growing outer suburb, the Republican nominee lost only eight points (from 64% to *355 56%). [FN392] In the Maryland suburbs of Washington, D.C., the Republicans suffered an eleven point drop (48% to 37%) in the mature suburb of Montgomery County, and only a four point drop (50% to 46%) in booming Howard County. [FN393] In Philadelphia, the Republicans lost fifteen points (from 32% to 17%). The Republicans lost twelve points in Delaware County, a stagnant Philadelphia inner suburb (from 56% to 44%) but only five points in booming Chester County (61% to 55%). [FN394]
In sum, suburban sprawl causes cities and older suburbs to become poorer, which means they have a smaller tax base, which means that (a) their politicians will be more tempted to raise taxes, and (b) their voters will be poorer, more politically liberal, and thus less fiscally conservative.


b. Taxes in the Suburbs: Or, Tax and Tax, Spend and Spend, Sprawl and Sprawl
It could be argued that even if city residents face higher taxes from the redistribution of people and jobs caused by sprawl, suburbanites do not. After all, suburbanites often live in growing areas with few poor people to make demands on government or elect pro-spending politicians. [FN395] But even in suburbia, sprawl's impact on the public fisc is at best ambiguous. [FN396] A fast-growing suburb benefits from a larger residential and commercial tax base, but suffers when its new residents demand additional schools and roads to serve them. [FN397] For example, in *356 rapidly-growing [FN398] Loudoun County near Washington, D.C. the annual tax rate increased by 11% from 1997 to 1998 in order to pay for new services. [FN399] Likewise, Prince William County, another high-growth Washington suburb, [FN400] has the highest real estate tax rate of any county in Virginia. [FN401] Such tax increases arise from the infrastructure expenses caused by population growth. In Prince William County, for example, schools are so overcrowded with new residents' children that students are crammed into more than 100 classroom trailers. [FN402] Some suburbs also try to temporarily limit or avoid tax increases by taking on huge debt loads. In Loudoun County, debt payments rose from 3.3% of the county budget in 1990 to over 10% in 1999. [FN403] In rapidly expanding Howard County, [FN404] between Baltimore and Washington, debt nearly tripled from $130 billion to $384 billion from 1987 and 1997. [FN405] In Montgomery County, Maryland, some areas are growing while others are shrinking. So to accommodate these population shifts, the county built seventy new schools during the 1980s, while closing sixty-eight. [FN406] Thus, Montgomery County had the worst of both worlds: the money it spent building the now-closed schools had become a waste of money, yet the county also had to throw money at new schools.
Some suburban cities and counties try to finance the costs of increased residential development by encouraging increased commercial development. For example, Howard County's planning goals state that commercial development should account for 25% of the county's tax base because those developments provide revenue without adding students to the school system. [FN407] This strategy, although helpful if it works, is quite risky: Because many commuters wish to live close to work, any increase in commercial development may create a demand for nearby residential development, which in turn increases the costs ofgovernment *357 services. [FN408] And if a suburb tries to solve this problem by limiting such residential development, workers will have to commute from other areas, which in turn means more traffic congestion, which creates political pressure for more roads, which in turn means higher spending and higher taxes. [FN409]
In fact, groups generally recognized as supportive of suburban expansion openly admit that sprawl means bigger government. The National Association of Home Builders (NAHB), hardly an anti-sprawl organization, [FN410] has issued a policy statement endorsing a so-called 'Smart Growth' strategy that includes '[p]lanning and constructing new schools, roads, water and sewer treatment facilities and other public infrastructure in a timely manner to keep pace with the current and future demand for housing. ' [FN411] NAHB does not pretend that developers will bear these costs. [FN412] Instead, it asserts that
[a]ppropriate bodies of government should adopt capital improvement plans . . . designed to fund necessary infrastructure required to support new development. Ensuring that infrastructure is funded equitably and that the cost is shared equitably throughout all segments of the community--existing residents as well as newcomers--is an even greater challenge. [FN413] *358 In other words, NAHB admits that sprawl (or as NAHB calls it, 'new development') means higher government spending for schools, roads, and other 'infrastructure' designed to 'support new development.' As NAHB claims, Americans may be entitled to 'have a free choice in deciding where and in what kind of home to live.' [FN414] But developers and home buyers are not necessarily entitled to finance that 'free choice' by taxing others.


c. The Car Tax
In 1997, the average American household spent $6060 on car-related expenditures: $2736 on new and used vehicle purchases, $1098 on gasoline, $293 on finance charges, $682 on maintenance and repair, $755 on car insurance, and $501 on leasing costs, rental costs, and license fees. [FN415] Households with teenage children must spend even more, because they 'need' cars not just for both parents, but for the children as well. [FN416] As explained above, Americans live in areas where autos are a daily necessity not because of free choices made in a free market, but because of government policies that have made daily life without a car impossible for many drivers. [FN417] It logically follows that American auto dependency is an unfunded mandate analogous to the thousands of pages of federal regulations contained in the Federal Register, and that most auto-related spending is a form of indirect taxation just as much as if government enacted a law requiring consumers to spend $6060 per household on automobiles (a sum equaling 89% of the average federal income tax payment). [FN418] And if auto-related spending is a tax paid by consumers, it further follows that any efforts to reduce auto dependency reduce the burden of government upon the American people. Or to put the matter another way: if the average American could avoid owning a car, he or she would get the equivalent of an 89% income tax cut to save, invest, or spend on other consumer goods.
In sum, sprawl means higher taxes, plus a continuation of the car taxthat *359 squeezes so many American households.

B. Sprawl and Cultural Conservatism
Suburban sprawl also affects two values commonly associated with cultural conservatism: social stability and the work ethic.


1. Sprawl vs. Stability
As Paul Weyrich of the Free Congress Foundation has pointed out,
Community is of significant value to most cultural conservatives, for very good reason. Without it, there are few mechanisms to uphold morals and maintain standards of behavior. Traditionally, when most people were part of a community, they behaved for fear of community sanctions. But where there is no community, community sanctions cannot exist. [FN419]
And for community to exist, there must be stability: Today's stable, safe neighborhoods must be tomorrow's stable, safe neighborhoods, so their residents and their children and grandchildren can build a community rather than being driven out by the next wave of urban decay.
But sprawl creates constant instability: Today's suburbs can quickly become tomorrow's slums. Some of today's poor city neighborhoods were once rich, outlying areas comparable to today's suburbs--neighborhoods that were created by streetcars just as today's suburbs were created by highways. [FN420] For example, in Detroit, 19th century tycoons built mansions near Woodward Avenue-- an area that in the late 20th century became, in one commentator's words, 'something worse than a slum' where the remaining 'hopelessly decayed mansions stand in these blocks like inscrutable megaliths in a wilderness of rubble. ' [FN421] Cleveland's Euclid Avenue has met a slightly less horrible, yet nevertheless unfortunate, fate. In 1892, fifty-three of sixty-eight millionaires named in the New York Tribune's list of America's richest people called Euclid Avenue home. [FN422] And in the first half of the 20thcentury, *360 Euclid became a thriving commercial strip, 'a regional retail nexus with trolley cars feeding six department stores, live theater, and downtown offices.' [FN423] But by the late 1990s, one-third of the 8.2 million square feet of upper-floor office space on Euclid Avenue was empty, [FN424] seventeen storefronts were empty, [FN425] and the blocks of Euclid Avenue east of the city's business district were a 'weed-filled wasteland[].' [FN426]
And as sprawl has accelerated, the decay of city neighborhoods has accelerated. The number of high-poverty census tracts (that is, tracts where over 40% of the inhabitants have incomes below the federal poverty line) [FN427] in metropolitan areas increased by 131% between 1970 and 1990, [FN428] and the number of persons trapped in these slums nearby doubled. [FN429] The spread of urban decay was fastest in the cities of the Northeast and Midwest: in 1970, these areas had 379 high-poverty tracts (164 in the Northeast, 215 in the Midwest) and in 1990 they had 1471 (578 in the Northeast, 893 in the Midwest). [FN430]
Milwaukee presents one of the most extreme examples of urban decay. In 1980, the city had only nine high-poverty census tracts, all packed tightly around downtown Milwaukee. [FN431] In 1990, the city had forty-two, most of which were also close to downtown and to the original nine ghetto tracts. [FN432] The sudden decay of Milwaukee's core was due partially to a regional economic downturn, and partially due to 'racial succession' (i.e. white flight to outlying areas). [FN433] In the tracts where poverty exploded during the 1980s, the number of white residentsdeclined *361 from 1767 per tract in 1970 to 613 per tract in 1990. [FN434]
Many other cities suffered similar 'ghetto explosions' from 1970 to 1990: for example, in Buffalo the number of high poverty tracts increased from 3 to 26, [FN435] in Pittsburgh from 14 to 42, [FN436] in Rochester from 4 to 20, [FN437] in Chicago from 48 to 184, [FN438] in Minneapolis from 7 to 33, [FN439] and in Cleveland from 20 to 69. [FN440]
Admittedly, the Rust Belt's urban decay arises partially from regional economic decline as well as from suburban sprawl. [FN441] But if regionwide economic decline was the only cause of urban decay, the economic gap between city and suburb would have remained constant over the years. But in fact, per capita city income has dropped from 96% of suburban income in 1973 to 84% in 1990. [FN442] Similarly, city population has typically declined far more rapidly than suburban population. For example, the population of metropolitan Buffalo decreased by 6% between 1980 and the mid-1990s, [FN443] while the city population declined by 16%. [FN444] And in Milwaukee, Minneapolis, and Rochester, city population declined in recent decades while the suburbs continued to grow. [FN445] Moreover, even some growing cities suffered from growing blight as the middle class moved to the city's fringes: for example, Columbus, Ohio (whose citywide population has consistently grown in recent decades) [FN446] had six high-poverty census tracts in 1970 and twenty-four in 1990. [FN447]
In turn, the decline of the oldest, closest-in city neighborhoods has set in motion a chain of events that endangers newer city neighborhoods and even suburbs. As the oldest neighborhoods decay, they become *362 occupied by the poor, and nearby middle-class neighborhoods become uncomfortably close to city slums, which in turn causes them to become less appealing and eventually decay, which in turn starts the cycle in another nearby neighborhood. And by using its powers to drain cities of middle class taxpayers, government has accelerated this cycle. [FN448]
In recent decades, urban decay has spread out beyond the central city line. The most troubled suburban municipalities near cities as varied as Los Angeles, Detroit, and Miami have crime rates higher than those of the nearby big cities themselves. [FN449] For example, in 1997, Highland Park, Michigan, had 53 murders per 100,000 people (15% more than nearby Detroit) and 1196 robberies per 100,000 people (over 30% more than Detroit). [FN450] Similarly, Compton, Ca., had 66 murders per 100,000 people (more than four times as many as nearby Los Angeles), and 807 robberies per 100,000 (nearly 40% more than Los Angeles). [FN451] And Opa Locka, Fl., had 41 murders per 100,000 (over 50% more than nearby Miami) and 1369 robberies per 100,000 (18% more than Miami). [FN452] Although these municipalities are extreme cases, city crime has increasingly spread to some suburbs. In 1991, for instance, nine of Chicago's suburbs had higher crime rates than the city of Chicago. [FN453] Poverty as well as crime has spread past the city line: today, both the ten poorest and the ten richest incorporated cities in America are suburbs. [FN454] For example, both Chicago and St. Louis have suburbs with median household incomes 40% lower than those of the cities themselves. [FN455]
And even where older suburbs are not as poor or as dangerous as nearby cities, they are often in decline. For example, most of Cleveland's inner suburbs have experienced dramatic declines inhousehold *363 income relative to other suburbs. In Cleveland's poorest inner ring suburb, East Cleveland, household income declined from 77% of the metro area mean in 1970 to 57% in 1990. [FN456] Other suburbs experiencing similar declines include Bedford (101% to 87%), Bedford Heights (106% to 84%), Brooklyn (109% to 81%), Brook Park (127% to 101%), Euclid (103% to 82%), Fairview Park (136% to 113%), Garfield Heights (100% to 82%), Lakewood (99% to 93%), Maple Heights (103% to 85%), Mayfield Heights (103% to 85%), Middleburg Heights (138% to 114%), North Olmsted (124% to 115%), Parma (111% to 96%), Parma Heights (114% to 89%), Seven Hills (148% to 121%), South Euclid (117% to 106%), and Warrensville Heights (104% to 84%). [FN457] All but two of these suburbs lost population during the 1990s, [FN458] as did all of Cuyahoga County (which includes seventy-seven square miles within the city of Cleveland [FN459] and 381 square miles of suburbia) [FN460]--not because metro Cleveland as a whole lost population, but because 'outer counties' like Geauga, Lake, and Medina sucked away middle-class Clevelanders. [FN461] In fact, Cleveland's decay is not limited to the inner ring of suburbs (that is, those suburbs that are contiguous to the city). Of the declining suburbs listed above, several (Bedford, Bedford Heights, Mayfield Heights, Parma Heights, Middleburg Heights, Seven Hills, South Euclid, and North Olmsted) are second- and third-ring suburbs: that is, they border inner ring suburbs but not Cleveland itself. [FN462]
Cleveland is not alone; suburbs in other metro areas, especially slow-growth areas in the Midwest and Northeast, are experiencing similar problems. The major inner ring suburbs of older cities such as Buffalo, St. Louis, Minneapolis, and Chicago lost population during the 1990s. [FN463]
*364 In sum, suburban sprawl, like the French Revolution, devours its own children. Sprawl creates inner ring suburbs, only to destroy them a few decades later by creating outer suburbs to skim off their elites. So as long as cities and older suburbs continue to lose their most affluent citizens to newer suburbs, no community is truly safe from the ravages of neighborhood decay, and no stable community can endure.


2. Sprawl vs. Work
Conservatives claim to believe that people should be independent rather than relying on government for handouts. For example, it took a Republican Congress to enact the welfare reform bill that limited the amount of time anyone can spend on welfare. [FN464]
But sprawl punishes work and rewards welfare dependency. Here is why: Thanks to suburban sprawl, most low-skill jobs are located in areas that are inaccessible by public transportation or nearly so. [FN465] In small cities like Macon, many jobs are inaccessible without a car either because the public transportation system does not reach major employers or because the buses stop running early in the evening. [FN466] And even in the relatively transit-friendly Boston metropolitan area, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN467] Just 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer neighborhoods. [FN468] So to get off welfare and get a job, a welfare recipient often needs a car which she probably cannot afford (otherwise she would not be on welfare in the first place). [FN469] The recipient may be stuck in a vicious cycle: she needs the car to get a job, but she can't get a job unless she has a car first. Thus, the dispersion of employment opportunities caused by sprawl frustrates welfare reformand *365 encourages welfare dependency. [FN470]
Even if one assumes that a welfare recipient can somehow obtain a car, the costs of auto ownership encourage welfare dependency at the margins. For example, suppose that welfare recipient A can earn $700 a month on welfare and $900 after taxes at work, but would have to spend $250 a month on a car if she gets a job. On balance, A would be better off on welfare because the cost of a car reduces her overall pay to $650 ($900 in wages minus $650 in auto expenses). Thus, the auto dependency caused by sprawl discourages work and encourages welfare dependency.


IV. Solutions to Sprawl: Or, Stopping Sprawl Without Empowering Government
Conservative hostility to anti-sprawl measures is based on the delusion that there is no way to limit sprawl without increasing government spending or government regulation of land use. [FN471] In fact,*366 even if conservatives must agree to disagree with environmentalists on some fiscal and regulatory issues, they can still fight sprawl in other ways consistent with conservative values.
For example, conservatives can focus on (1) eliminating highway spending that encourages sprawl, (2) breaking the link between residence and schooling, so that families can live in cities without being trapped in urban schools, and (3) limiting sprawl by reducing rather than increasing government regulation of land use.

A. No New Roads
If state and federal policy caused our urban crisis, the logical solution is to stop the policies that led to the crisis. Because highway spending has been a significant cause of suburban sprawl, [FN472] we can take a significant bite out of both sprawl and big government by eliminating sprawl-generating highway spending.
Specifically, state and federal governments should prohibit the use of their funds to build or widen roads in newer suburban areas. Because highway spending totaled $101 billion in 1997, [FN473] such a 'paving moratorium' would give taxpayers a significant break (including, ironically, drivers, whose fuel taxes pay for more than half of government highway spending). [FN474] A paving moratorium would not prevent settlement in existing suburbs--but would prevent government from creating new suburbs by building more highways, and would thus prevent government from turning today's suburbs into deserted slums.
Government justifies new and widened roads on the ground that more roads, not fewer, are needed to deal with traffic congestion. [FN475] Butthe*367 claim that new roads eliminate congestion is at best speculative. Admittedly, if new and widened roads did not affect development patterns, a new or widened road might reduce traffic congestion. But in reality, highway building affects where people live and work. If government builds highway X to suburb Y, homeowners and businesses will soon move to subdivisions near X's interchanges, thereby increasing traffic along the interchanges. [FN476] Thus, '[b] uilding more highways to reduce traffic congestion is an exercise in futility. Whenever it is done, more people take to their cars, and before long the roads are as clogged as ever.' [FN477] Even people and groups sometimes identified as pro-sprawl admit as much. As Joel Garreau of the Washington Post has written, '[t]he more capacity you add, the more likely you are to make the place more popular . . . creating more traffic.' [FN478] Mr. Garreau is hardly an anti-sprawl activist; for example, he has described the status quo as the 'manifest pattern of millions of individual American desires over seventy-five years.' [FN479] Similarly, the National Association of Home Builders (which advocates accelerated road construction) [FN480] conducted a survey that reveals that highway access would influence 55% of respondents to move to a new community--more than any other amenity. [FN481] By admitting that highways encourage movement to areaswith *368 highway access, the NAHB has effectively conceded that highways shift development to suburbs (thus making those suburbs more rather than less congested). [FN482]
Numerous studies suggest that 'induced traffic' eliminates some or all of the reduction of congestion caused by new roads and road widenings. For example, Mark Hansen, a professor of transportation engineering at the University of California at Berkeley, used statewide California statistics in concluding that new road capacity is almost entirely offset by induced traffic within five years. [FN483] A study conducted by Robert B. Noland, a former transportation analyst at the Environmental Protection Agency, similarly found that a 10% expansion in roads produced a 2.8% rise in travel over two to four years. [FN484] These traffic increases arise because in the short run, motorists switch from other routes, because they abandon mass transit and drive instead, and because development may shift people and jobs to areas near the highway. [FN485] In fact, studies such as Hansen's, if accurate, may actually overestimate the benefits of new roads by failing to account for the medium- and long-run changes in development plans caused by new and widened roads (that is, the changes that occur more than four or five years after the road is built or widened).
For example, in 1991, Montgomery County, Maryland (a suburb of Washington) widened Interstate 270 to as many as twelve lanes to reduce traffic congestion. [FN486] According to Sidney Kramer, Montgomery County executive from 1986 to 1990, '[y]ou saw a tide of development go forward because of that improvement.' [FN487] One of the high-growth suburbs created by the I-270 widening, Germantown, Maryland, grew from just over 41,000 people in 1980 to 70,000 people in 1998. [FN488] In turn, the growth of Germantown and nearby suburbs caused traffic to increase. In fact, traffic along I-270 has surpassed the levels statehighway *369 planners forecast for 2010 in their 1984 study of the proposed widening. [FN489] The Maryland highway department reported that the '1997 volume at Route 28 in Rockville was 193,000 vehicles [per] day-- 2,000 more than the 2010 projection.' [FN490] According to David Palank, an area real estate broker, '[w]ith all the lanes that are there, it just doesn't seem to be moving that quickly . . . I haven't found any relief at any time. It seems like it was congested and continues to be congested.' [FN491]
If I-270 was an aberration, areas that increased road space would have experienced a reduction in congestion during the 1990s, or at least less congestion than areas that did less road-building. But recent studies show otherwise. The Hartford, Ct., and Providence, R.I., areas experienced similar population growth between 1982 and 1997. [FN492] But Hartford's road capacity stagnated, while Providence increased its road mileage by 59%. [FN493] If road-building reduced congestion, Providence would have far less congestion than Hartford. But a study by the Texas Transportation Institute (the official research agency for the Texas Department of Transportation and the Texas Railroad Commission) [FN494] revealed that the two areas had similar levels of traffic growth and traffic congestion. In 1997, the cost of congestion per eligible driver was $390 in Hartford and $360 in Providence (Nos. 49 and 50 of 68 areas surveyed). [FN495] Rush-hour congestion increased by 200% from Hartford and 225% in Providence between 1982 and 1997. [FN496] Annual delay per driver increased by 283% in Hartford and 320% in Providence between 1982 and 1997. [FN497] In other words, Providence built far more roads, yet congestion increased in Providence just as rapidly as in Hartford.
The correlation between free-flowing traffic and free-spending road builders is equally weak in fast-growing metro areas. For example, Charlotte and Fresno had comparable population growth rates (64% and 57%). [FN498] But Charlotte increased its highway mileage by 113hile *370 Fresno's road-building lagged behind its population growth (with only a 27% increase). [FN499] Charlotte's congestion cost $680 per driver, while Fresno's cost only $315. [FN500] Annual delay per driver increased by 356% in Charlotte and only 171% in Fresno, [FN501] while peak hour congestion increased by about the same amount in both areas (229% in Charlotte and 225% in Fresno). [FN502]
Ironically, drivers are sometimes the biggest losers from road-building: When states favor road-building over routine street maintenance, roads become rutted and packed with potholes. A recent survey by The Road Information Program, a group financed by the road construction industry, shows that 35% of roads in Detroit and New Orleans are in poor condition. [FN503] Over 30% of roads were in poor condition in three other metro areas (Los Angeles, Indianapolis, and San Jose), and 20% to 30% of roads were poor in fourteen others (San Francisco, Chicago, Baltimore, Sacramento, Grand Rapids, Norfolk/Virginia Beach, Oklahoma City, Denver, Dallas, Houston, New York, Washington, Philadelphia, and Austin). [FN504] By an odd coincidence, all of these areas increased highway capacity in the 1980s and 1990s. [FN505] For example, Detroit's highway mileage increased by 21% (far ahead of its anemic 5% population growth) while New Orleans's highway mileage increased by 45% (despite that region's 4% population growth). [FN506] It, therefore, appears that some states are letting existingroads *371 deteriorate so that they can build new roads instead.
In sum, both common sense and actual experience support the view that suburban road-building creates sprawl without mitigating congestion. Thus, continued road widening and roadbuilding is pointless, if not harmful.

B. Ending the Urban School Crisis
As Mayor Norquist of Milwaukee has pointed out, '[a] major factor in the extreme separation of rich and poor in the United States is that people who are rich avoid city schools.' [FN507] As explained above, a 'bad' school (one with a poor reputation) is typically 'bad' at least partially because of its disadvantaged student body. [FN508]
Indeed, many suburbanites implicitly admit as much by fighting attempts to enroll urban children in suburban schools, on the ground that the admission of such children would 'ruin' their schools. [FN509] For example, Cleveland's suburban public schools have locked out urban children by refusing to participate in Cleveland's voucher program, [FN510] and some states have even created the crime of 'enrollment fraud' to criminally punish urban parents who seek to sneak their children into suburban schools. [FN511] If suburban schools would in fact be adversely affected by the enrollment of urban students, suburban school districts' alleged superiority obviously rests upon the background of their pupils rather than the excellence of their teachers and administrators. Thus, even suburbanites know that the quality of their 'good' schools rests on the absence of low-income students rather than on the superiority of their teachers or administrators.
It logically follows that even if government can improve poverty-packed urban schools slightly by spending more, raising expectations, or other reforms, [FN512] it probably can never make such schools as attractive to middle-class families as homogenous suburban schools. It further follows that if government wishes to stop driving middle-class families out of cities, it must stop forcing parents to choose between middle-class-dominated schools and city living. The most market-orientedremedies *372 for the urban education crisis (other than the complete abolition of government-funded education in city and suburb alike) are various forms of the voucher system.
Under a voucher system in its purest form, 'money spent on schooling [would] go directly into the pockets of families with school-age children, who could spend their voucher wherever they pleased--in either public or private systems. ' [FN513] Less radical voucher plans might require the government to pay only part of a student's private school tuition, just as college students obtain tuition assistance through government-backed loans and grants. [FN514]
Any form of voucher program, other than one limited to the poor, [FN515] would discourage middle-class flight by ensuring that parents could live in the city and nevertheless send their children to selective private or suburban schools for free (or at least at a lower price, depending on the generosity of the program). [FN516]
*373 Some criticize the voucher system as a repudiation of the American ideal of the 'common school' where children of different backgrounds cross paths and learn about one another. [FN517] And indeed it is arguable that a public school system that in fact educated children of different backgrounds together might 'teach [children] respect for opposing points of view and ways of life, and to provide them with the intellectual skills necessary to evaluate ways of life different from their parents.' [FN518] It follows that in pre-suburban America, this 'common school' argument might have had some relevance to reality. But in major metropolitan areas, the common school concept has been assassinated by sprawl: Middle-class families live in middle-class suburbs with homogeneously middle-class schools, while poor families live in cities or poor suburbs with homogeneously poor schools. [FN519] By contrast, a voucher system will increase children's exposure to diversity by enabling parents to live in or near diverse neighborhoods without sending their children to widely feared urban schools. For example, suppose Mr. and Mrs. X are willing to expose their children to city life but fear city schools. Under today's educational system, when the X children reach school age, they would reluctantly leave the city in order to avoid city schools. Under the voucher system, Mr. and Mrs. X would be able to live in a diverse city neighborhood and send their children to schools similar to those that their children would attend if they lived in suburbia. [FN520]
*374 A related argument is that competition between city schools and private schools would be 'unfair,' because private schools could exclude the least desirable students. [FN521] This argument is beside the point, because many of the most 'desirable' students (i.e. high-achieving students from middle-class households) will be segregated in any event as long as the middle class continues to avoid city schools, [FN522] and because suburban schools can exclude some of the least desirable students by using zoning and the resulting high property values to exclude low-income households [FN523] whose children are more likely to be slow learners. [FN524] Whether middle-class children go to exclusive urban schools or exclusive suburban schools, those schools will be segregated by class as well as ability; but under the status quo, this segregation creates the additional evil of urban decay. In other words, the status quo equals class segregation plus sprawl, but vouchers would at worst create class segregation minus sprawl. Because two social evils are worse than one, the voucher system is obviously preferable to the status quo.
Indeed, the 'unfairness' argument leads to absurd results. One commentator argues that vouchers are unfair because '[i]f they [private schools] choose not to help children with discipline problems, they can turn those students away. ' [FN525] Presumably, the author of this article believes that it is 'fair' for children in urban public schools to share their classrooms with a horde of bullies, while other children are able to learn in a more orderly environment. This hardly seems like a fair result. The author's remark exemplifies the kind of societal double standard that has made many American cities unattractive to the middle class: Cities have become the dumping ground for the destitute and the disorderly, while social justice demands nothing of suburbanites except pious proclamations.
*375 Voucher critics predict that an increased demand for private schools might cause private schools to raise tuition and make vouchers so fiscally impractical as to make private schools financially unaffordable, [FN526] and that vouchers will naturally lead to government overregulation of private schools. [FN527] These arguments overlook the fact that the United States already has a modified voucher system at the college and university level: the intricate web of grants and loans that help Americans attend private as well as public colleges. [FN528] If vouchers reduced access to college or made colleges worse, America's college and university system would be inferior to that of other countries. In fact, Americans attend college in greater numbers than citizens of other affluent countries, [FN529] and our university system, far from having been crushed by government regulation, is so superior that in 1995, 452,599 foreign students came to American universities to learn. [FN530] Thus, vouchers have worked well at the university level, and accordingly, should be provided for younger students. Moreover, it is unlikely that government funding would endanger the quality of private schools, for the simple reason that the government must regulate its own schools, but at least has the option of not regulating private schools. [FN531] Thus, government would probably not regulate private schools as extensively as it regulates public schools. [FN532] America's experience with charitable tax deductions suggests that government subsidies to private schools wouldnot *376 lead to overregulation. Though the federal government certainly attaches some strings to the charitable deduction, charitable institutions are certainly not regulated as extensively as government-run schools. [FN533]
Another common anti-voucher argument is that vouchers violate the Establishment Clause of the First Amendment [FN534] by subsidizing church-run schools. [FN535] This assertion is quite controversial, and is rejected even by some constitutional law scholars generally regarded as liberals. [FN536] Even if this argument is correct, a voucher system could still pass constitutional muster if it was confined to secular institutions. [FN537] It could be argued that the exclusion of sectarian schools would make any voucher experiment useless, because most existing private schools are either parochial schools or elite schools for the rich. [FN538] This argument is questionable because if government paid a significant amount of tuition [FN539] for private schools, entrepreneurs might create non-sectarianschools. *377 Just as the public demand for food and drink has encouraged entrepreneurs to form restaurants and taverns, the voucher-generated public demand for schooling would create a market that private entrepreneurs would fill. [FN540]
It could be argued that government can 'save' city schools by spending more money on them. [FN541] But there is little correlation between school spending and educational achievement. Although some city school systems spend less than suburban schools, [FN542] others do not. ''[I]n 1989-90, big-city schools systems as a group spent over $5447 per pupil in 1989-90, compared with $5427 in suburban areas and $4507 in rural communities.' [FN543] '[E] ven when adjustments are made for' [cities' greater expenses,] 'per pupil spending' by [city] 'schools, on average, is only 1%' [below] 'that of their suburban competitors.' [FN544]
Moreover, there is little evidence that well-funded urban schools are significantly superior in any way to their underfunded counterparts. For example, Milwaukee public schools spend more than the state average per pupil and more than some suburbs, yet most middle-class parents avoid them. [FN545] And in Kansas City, Missouri, a desegregation decree mandated that the city be granted a bonanza of funds: between 1987 and 1992, the state devoted $1.5 billion to the school district. [FN546] As a result, the Kansas City school district spends at least 30% more than the most well-funded suburban districts, and over twice as much as less well funded suburban districts. [FN547] Although students' test scores improved modestly in absolute terms, their performances on statewide tests did not improve relative to their peers in other school districts throughout the state of Missouri. [FN548] Thus, it appears that even where urban schoolsoutspend*378 suburban schools, student achievement does not improve enough to make urban schools attractive to middle-class parents.
A related argument is that vouchers would drain money from government-run schools. [FN549] This argument, even if true, is beside the point for two reasons. First, if, as suggested above, government-run schools do not consistently benefit from spending increases, [FN550] they might not be significantly harmed by spending cuts. Second, this 'harm' merely eliminates an unfairness to private school parents, who would no longer have to pay twice for education, once for their own child's schooling and once (through taxes) for the schooling of children in government-run schools. [FN551]
In order to give governments a chance to evaluate the validity of opponents' concerns, any voucher plan which includes private schools should be limited to the group that needs vouchers most--residents of cities where the school system drives out the middle class. Thus, a state or federal voucher plan might give vouchers only to residents of cities above a certain size that had lost population in recent decades or that have higher poverty rates than their region as a whole. If the voucher system worked well enough, governments could follow up by expanding vouchers to all children. [FN552]


1. Vouchers Lite
A less radical plan would be a 'public schools only' voucher plan. Under such a system, the federal or state government could radically expand consumer choice by enacting the following statute: 'No publicly funded elementary or secondary school receiving state [or federal, depending on who enacted the statute] funding shall discriminate in its admissions on the basis of residence.' Under a 'public schools only' voucher plan, parents would be free to send their children to suburban or urban schools, no matter where they lived. This plan would increase consumer choice without creating the practical, constitutional, and fiscal difficulties of a voucher system that included private schools. [FN553]*379 However, a 'public schools only' voucher plan would do less to combat sprawl than a pure voucher plan, because parents with children in suburban schools might be tempted to move to suburbs in order to reduce their commutes to suburban schools.

C. Housing and Land Use Policy
Although a libertarian, non-coercive land use policy cannot dictate where people live, such a policy can give Americans the opportunity to live in more pedestrian- and transit-friendly environments. As explained above, traditional, walkable neighborhoods have been virtually outlawed in much of America, thanks to local zoning laws dictating that almost nothing may be within walking distance of anything else, that commercial streets must be built for the happiness of cars rather than people, and that densities must be lower than a free market could tolerate. [FN554]
One remedy for this problem might be the complete abolition of zoning laws. [FN555] The abolition of zoning would maximize individual freedom and reduce housing costs by allowing developers to build as they pleased, without any interference from government. On the other hand, the abolition of zoning might be even more politically impossible than any reforms discussed below, and would have the added cost of eliminating sprawl-limiting ordinances (such as those limiting development in newer suburbs) as well as sprawl-creating ordinances. [FN556]
*380 A narrower remedy to zoning-generated sprawl would be a Pedestrian's Bill of Rights, which would target zoning laws that encouraged sprawl and discouraged the creation of walkable neighborhoods. Such a statute would limit localities' zoning powers by eliminating many of the most onerous sprawl-creating zoning restrictions. For example:
(1) States should outlaw government-imposed minimum lot sizes, yard sizes, house sizes, or setbacks (that is, the distance between a house and the street). [FN557] Where lots, yards and setbacks are humongous, houses are so far from each other that their occupants cannot walk from one house to shopping, or even to other houses. [FN558] If people want to live in such an environment, they can certainly try to do so--but there is no reason why government should encourage them to by ordering developers to create unwalkable subdivisions.
(2) States should outlaw municipal restrictions on residential development in commercial zones, and allow some retail development in apartment buildings and other residential areas. [FN559] Under the status quo of single-use zoning, suburbanites who would like to walk to work or to shopping often cannot do so, because the dead hand of government prohibits would-be landlords from building or renting apartments in commercial zones. [FN560] It follows that if shop owners or office park developers were consistently allowed to rent surplus space to residential tenants, more Americans would be able to walk to work, shopping, and other opportunities. Similarly, states could allow some commerce in residential areas while preserving their residential nature by allowing retail development in residential zones up to a certain percentage of a subdivision's or apartment building's square footage (up to, say, 10%) so that homeowners could walk to some amenities withouthaving *381 their neighborhoods completely transformed. [FN561]
(3) Duplex homes and apartments should be permitted by law in all residential construction. [FN562] If a homeowner wants to rent out his basement, he or she should be allowed to do so. Restrictions on rental use of homeowners' property increase housing prices, [FN563] are far more intrusive than similar restrictions on commercial use, and increase auto dependency by artificially reducing population density.
(4) Municipalities should be required to permit home offices and telecommuting not involving show windows or exterior display advertising. [FN564] Just as Americans should be allowed to walk to work, they should be allowed to work at home.
(5) Municipalities should not be allowed to require businesses to provide more free parking than the market would dictate. [FN565] This rule would prevent government from subsidizing drivers by artificially increasing the supply of free parking, and would make streets more pedestrian-accessible by encouraging on-street parking (which buffers pedestrians from traffic). [FN566] Similarly, streets should be narrower so that pedestrians could cross more safely, [FN567] and on-street parking should be allowed as a matter of course. [FN568]
As a rule, metro areas with few zoning restrictions have cheaper housing. [FN569] For example, Houston has no zoning at all and is more affordable than other big cities. [FN570] It logically follows that in addition tomaking *382 American cities and suburbs more walkable and increasing property owners' freedom, zoning deregulation would have one other beneficial side effect: increasing the supply of low-rent, affordable housing and thereby limiting or even eliminating the demand for public housing [FN571] (which, as explained above, has turned cities into dumping grounds for the poor).


V. Conclusion
Suburban sprawl is not an invention of environmental extremists, but an issue that should cut across ideological lines. Sprawl exists in large part because of government policies favoring suburbia and forcing auto dependence, and can be at least partially remedied by policies that make government smaller and less intrusive. More importantly, sprawl reduces rather than enhances consumer choice--because when an American family moves to a suburb because they feel that they have to do so to educate their children decently, or buys an extra car because they think they cannot live without one, we are all a little less free.

(Footnotes omitted due to length of article)

Col. J. Envtl. L. article on how govt. sabotages transit
26 Colum. J. Envtl. L. 259


Columbia Journal of Environmental Law
2001


Article


*259 CAMPAIGN OF SABOTAGE: BIG GOVERNMENT'S WAR AGAINST PUBLIC
TRANSPORTATION


Michael Lewyn [FNa1]


Copyright ? 2001 Columbia Journal of Environmental Law; Michael Lewyn


I. Public Transit: Pros and Cons ....................................... 261
A. The Benefits of Transit ........................................ 261
B. The Inadequacy of Transit ...................................... 263
C. The Anti-Transit Story ......................................... 266
II. How Government Has Sabotaged Public Transit ......................... 267
A. Highway Policy ................................................. 267
1. How Government Put Highways In The Driver's Seat ............. 267
2. Highway Spending and Transit: Recipe for Reduced Ridership ... 270
a. First, Use Highways To Create Suburbs . . .................. 270
b. . . . Then Keep Transit Out Of The Suburbs ................. 273
B. Unfunded Mandates: How Big Brother Makes Transit Unaffordable .. 275
1. The Americans with Disabilities Act .......................... 275
2. Labor Laws that Limit Transit Operators' Ability to Reduce
Labor Costs ....................................................... 276
3. Limitations upon Transit Systems' Use of Parts Manufactured
in Foreign Countries .............................................. 277
4. Limitations on Charter and School Bus Service in Competition
with the Private Sector ........................................... 277
C. Other Anti-Transit Policies: Or, How To Attack Transit By
Attacking Cities .................................................. 278
1. Federal Housing Administration Mortgage Insurance ............ 278
2. Public Housing Policies that have Concentrated Poverty and
Crime in Cities ................................................... 279
3. Prestigious Schools for Suburbs and "Bad" Schools for Cities . 281
4. A Tax Code that Favors Driving and Suburban Life ............. 282
D. How Zoning Makes Suburbs Auto-Dependent ........................ 284
III. Does It Matter? ..................................................... 285
IV. Conclusion .......................................................... 287



*260 Introduction
Public transportation [FN1] helps the carless poor and disabled reach jobs and other opportunities, while reducing traffic congestion and air pollution by keeping cars off the road. Nevertheless, public transit has had limited political support in recent decades. Politicians and bureaucrats have used highways to create auto-oriented suburbs, while often failing to provide public transit to those suburbs. As a result, transit users are second-class citizens in most of America, and many Americans are compelled to pollute the air and congest the highways merely to work, shop, and play.
The political elite's failure to support public transit is based on the view that despite decades of state and federal support, transit ridership has dwindled and will inevitably continue to dwindle because of Americans' love of their automobiles--a claim that in turn is based on the assumption that government has in fact sought to promote public transit. This article criticizes that assumption, and explains that far from promoting public transit, government at all levels has sabotaged transit in a variety of ways: by building highways to suburbs unserved by public transit, by loading down transit systems with unfunded mandates, by using housing, education and tax policy to encourage migration to those suburbs, and by using zoning policy to make suburbs as auto-dependent as possible.


I. Public Transit: Pros and Cons

A. The Benefits of Transit
Public transportation benefits the public in at least four significant ways. First, public transit gives mobility to the millions of Americans who do not or cannot drive, including 24 million disabled Americans, [FN2] *261 5.4 million senior citizens, [FN3] and ninety four percent of welfare recipients. [FN4] By transporting the poor and the disabled to jobs and other opportunities, America's buses and trains help America meet a variety of social goals, including the Americans with Disabilities Act's goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society" [FN5] and the 1996 Welfare Reform Act's [FN6] goals of "end[ing] the dependence of needy families on government benefits by promoting job preparation [and] work." [FN7]
Second, public transportation reduces air pollution. For example, buses emit only 1.54 grams of nitrogen oxide per passenger-mile (as opposed to 2.06 for single-person autos), 3.05 grams of carbon monoxide per passenger-mile (as opposed to 15.06 for single-person autos) and 0.2 grams of hydrocarbons per passenger-mile (as opposed to 2.09 for single-person autos). [FN8] Buses are likely to become even cleaner over the next decade or two. [FN9] As a result of federal programs and political *262 pressure, cities throughout America are purchasing buses using fuels that pollute less than do diesel buses. [FN10] A 1996 Federal Transit Administration study reports that if transit users drove cars everywhere, America's air would be afflicted with more than 126 million additional pounds of hydrocarbons and 156 million additional pounds of nitrogen oxide. [FN11]
Third, public transit reduces traffic congestion, because every person who is capable of driving but nevertheless chooses to ride public transit takes one automobile (his or her own) off the road. It follows that if public transit didn't exist, some cities would face startling increases in traffic congestion. For example, one study suggests that if New York City and its suburbs eliminated their public transit systems, the number of cars on the road would increase by 47.2% (or 1.9 million more cars). [FN12] Even more auto-dependent regions obtain some benefit due to public transit: for example, Los Angeles would have 6.2% more traffic without transit. [FN13]
Fourth, public transportation makes all Americans, even drivers, freer by giving them more flexibility: just as owning a car gives a driver the flexibility to go more places, owning a car and living near bus routes and train stops gives that driver the flexibility to go even more places in more ways.

*263 B. The Inadequacy of Transit
Despite the benefits of public transit, transit-dependent persons are second-class citizens in much of America. [FN14] A survey by the U.S. Commerce Department shows that only 54.4% of American households have any public transit at all available to them, and that only 28.8% claim to have satisfactory public transit. [FN15] Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN16] For example, more than one-third of all entry-level jobs in the Baltimore region cannot be reached at all without an automobile, [FN17] the majority of entry-level jobs in metro Atlanta are not within a quarter mile of public transportation, [FN18] and residents of low-income neighborhoods in Cleveland could access less than half of metro *264 area jobs even with an eighty minute commute. [FN19] In smaller cities, a non-driver's life is more desperate still. For example, in Macon, Georgia (a city of 114,000 people), [FN20] sixteen percent of city households [FN21] (and fourteen percent of households in the county that includes Macon) [FN22] lack cars, yet city buses only operate until 6:45 PM in the evening on weekdays, Saturday service is limited, and no service is available on Sundays or holidays. [FN23] Because many entry-level employers require their newest employees to work evening and weekend shifts, Macon's bus schedule virtually shuts carless residents out of the job market. [FN24] Many of Macon's employers are not transit-accessible at all, because they are located on the area's periphery, far from any bus line. [FN25] By building highways, government has encouraged employers to relocate to such areas. [FN26]
American public transit is inadequate because transit is funded far less generously than highways: between fiscal year 1992 and 1999, states had more than $33.8 billion in federal funding available to spend on either highways or public transportation, but spent only 12.5% of that sum on public transit. [FN27] Nearly half of that 12.5% was spent by two states (New York and California) [FN28] and six states (Delaware, Kansas, Mississippi, North Dakota, South Dakota, and Wyoming) used none of their allotted money on mass transit. [FN29] Direct federal support for transit has only occasionally been more generous. Between 1980 and 1998, federal support for state and local public transit declined sharply in real terms, *265 increasing by only one-third while the cost of living nearly doubled. [FN30] During the same period, federal highway grants soared by 114%. [FN31]
As a result of these trends, transit agencies have periodically been forced to either raise fares or reduce service. For example, in 1995, Congress passed a budget reducing operating assistance [FN32] to public transit by over forty percent. [FN33] As a result, half of all American transit agencies raised fares, cut back service, and/or laid off workers in late 1995 and early 1996. [FN34] Similarly, in the early 1990s thirty-one percent of transit systems took similar steps [FN35] in order to pay costs imposed by the federal Americans with Disabilities Act [FN36] (which requires transit systems to spend $1.4 billion per year to make transit service accessible to the disabled). [FN37] Transit fares increased by 150% between 1980 and 1998, *266 while gasoline prices were decreasing. [FN38] As transit agencies raised fares and reduced service, transit ridership declined from 8.9 billion trips in 1989 to 7.7 billion in 1995. [FN39] Conversely, when federal support for transit increased in the late 1990s, [FN40] ridership rose to nine billion in 1999--the highest ridership level in forty years. [FN41]

C. The Anti-Transit Story
Why do so many American communities have so little transit service? Pundits and politicians justify the status quo on the ground that, in the words of U.S. Representative Tom DeLay, "mass transit . . . has failed in this country" [FN42] because "[p]ublic use of mass transit has fallen by two billion passengers since 1960, despite a taxpayers' investment of more than $100 billion during that same period of time." [FN43] Similarly, one newspaper columnist writes: "[f]or decades we have been bombarded with demands that we get out of our cars and into mass transit . . . . Nevertheless, we drive." [FN44] The "story" told by transit critics is a simple one: government spends money on public transit, and most people don't use it. Thus, public transit is a waste of money. [FN45]
This article tells a sharply different story: far from encouraging people *267 to use buses and trains, government at all levels has inadvertently sabotaged public transit. For nearly a century, governmental transportation, education, housing and tax policies have reduced transit ridership by encouraging Americans to move from transit-friendly cities to suburbs with little or no transit service. It logically follows that if government reverses those policies, transit ridership will continue to increase.


II. How Government Has Sabotaged Public Transit
Far from fighting a losing war against "America's romance with the automobile," [FN46] government has forced Americans into cars by eliminating non-drivers' access to jobs and community facilities. For most of the 20th century, government has funneled billions of dollars into highway construction. [FN47] Highway construction increased driving and reduced transit ridership by encouraging development to shift from older, transit-accessible areas to newer suburbs, most of which are inaccessible except by automobile. [FN48] In addition, government at all levels has reduced transit system revenues (and thus transit service) through unfunded mandates; [FN49] has adopted education, housing and tax policies that indirectly shifted development to suburbs; [FN50] and has enacted zoning laws that made those suburbs as auto-dependent as possible (thereby depressing transit ridership by making it more difficult for suburbanites to use transit). [FN51]

A. Highway Policy


1. How Government Put Highways In The Driver's Seat
Early in the 20th century, the state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers to reimburse local treasuries for the costs of streets, *268 traffic maintenance, and police services, but instead frequently chose to subsidize drivers by relying on general taxation. [FN52] Thus, government essentially taxed the general public (including railroads and transit users) to support drivers. [FN53] By contrast, transit providers were typically private and unsubsidized. [FN54] To make matters worse, the government often controlled transit fares and, despite World War I-era inflation, did not allow them to rise. [FN55] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN56]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue to fund highway construction projects. [FN57] By 1927, highways were second only to education as recipients of state and local expenditure, and one-third of state assistance to local government was for highway construction. [FN58]
In 1921, the federal government began to support highway building, by enacting the Federal Road Act [FN59] that designated 200,000 miles of road as eligible for federal matching funds, and by creating the Bureau of Public Roads to plan an interstate highway system. [FN60] By that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN61] Adjusted to present dollars, this amounts to $12.48 billion. [FN62] At the same time, most transit systems were privately *269 owned, received no government assistance, and paid taxes to support the highway system and other government functions. [FN63]
During the 1920s and 1930s, government's highway empire continued to grow. By 1940, government spent $2.7 billion--$30.95 billion in present dollars [FN64]--on highways. [FN65] By contrast, at that time the total operating costs of all intra-city bus and rail systems (except commuter rail) were $661 million--mostly private rather than governmental spending. [FN66]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, government funneled $4.6 billion--$30.63 billion in present dollars [FN67]--into highways, and virtually nothing into transit. [FN68] In 1954, President Eisenhower appointed a committee on highways. The committee endorsed a massive highway spending plan that was enacted into law as the Interstate Highway Act, [FN69] which created a 41,000 mile Interstate Highway System. [FN70] Under the Highway Act, the federal government paid for ninety percent of the system's construction and maintenance costs, states paid ten percent, and municipalities paid nothing. [FN71] By contrast, the federal government did not begin to subsidize public transit until the 1960s. [FN72] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by thirty-seven percent. [FN73] Today, federal road spending exceeds federal transit spending by a margin of more than four to one. [FN74] Moreover, state governments are *270 often even more pro-road and anti-transit than the federal government; for example, some states require fuel tax revenues to be spent exclusively on roads, [FN75] and others have simply spent as little as possible on transit. [FN76]


2. Highway Spending and Transit: Recipe for Reduced Ridership


a. First, Use Highways To Create Suburbs . . .
State and federal pro-highway policies have reduced transit ridership by encouraging people and jobs to move from transit-friendly cities to newer suburbs. [FN77] At first, highways merely enabled commuters to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN78] However, where highway-driven residential development came, commercial development inevitably followed, as retail businesses moved to suburbs in order to serve those suburbs' new residents and other businesses followed their employees to suburbia. [FN79] As one federal court has pointed out, *271 "[h]ighways create demand for travel and [suburban] expansion by their very existence." [FN80]
For example, Washington's Capital Beltway, a sixty-six-mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN81] Instead, the Beltway became a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Virginia. [FN82] As suburbs grew more populated in Washington and in other cities, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) spurring development in even more suburbs. [FN83] In fact, each of the fifty largest metro areas in America added new road capacity in the 1980s and 1990s. [FN84]
As a consequence of government's road-building sprees, [FN85] among *272 other factors, [FN86] many older American cities suffered enormous population losses by the end of the 20th century. [FN87] At the end of World War II, roughly seventy percent of metropolitan Americans lived in central cities. [FN88] By 1990, only about forty percent of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN89] Jobs, as well as people, have fled to suburbia: today, two-thirds of all new jobs are in suburbs. [FN90]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion implicitly concede that highways affect the location of development. For example, in 1999 the National Association of Home Builders (which favors increased road spending) [FN91] *273 conducted a survey that asked respondents what amenities would encourage them to move to a new area; respondents' top choice (endorsed by fifty-five percent of respondents) was "highway access." [FN92] If highway access makes a suburb more desirable, it follows that government shifts people and jobs to a suburb by building highways there.


b. . . . Then Keep Transit Out Of The Suburbs
The state and federal governments' highway spending spree might not have eviscerated transit if those governments had served suburban employers and subdivisions with buses and rail lines. Instead, government effectively decreased service for non-drivers while increasing service for drivers: that is, government drove private transit companies out of business by funding competition from highways, [FN93] took over what was left of transit service, [FN94] and actually reduced transit service while it was doing so (by thirty-seven percent between 1950 and 1970). [FN95]
As a result, most of the suburbs created by government highway spending have minimal or nonexistent public transit. For example, the most transit-friendly American metro area is New York City and its suburbs, where transit systems provide fifty percent more service hours per capita than in the second best-served metro area. [FN96] Yet even in the New York area, courts have acknowledged that auto ownership is "a necessity and not a luxury in the suburbs where mass transit facilities are *274 not as readily available to residents as they are to city dwellers." [FN97] The situation in more auto-oriented metro areas is as bad or even worse: as noted above, the majority of entry-level jobs in metro areas as diverse as Baltimore, Cleveland, and Atlanta are inaccessible to transit-dependent urbanites or nearly so. [FN98] In fact, entire suburban counties lack transit service: Atlanta's second largest suburban county, Gwinnett County, which had a population of 522,000 people in 1998, had no public transportation whatsoever. [FN99] As a result, news stories throughout America routinely refer to cars as a "necessity." [FN100]
Indeed, even opponents of public transit spending admit that highway-created suburbs are far more auto-dependent than cities. For example, in 1995 U.S. Representative Nick Smith justified transit cutbacks on the *275 grounds that "[i]nstead of the jobs being in the inner city and the suburbs needing transportation downtown, now the jobs are outside of the cities. The main reasons for mass transit for tax dollar subsidies just [aren't] there anymore." [FN101] In other words, anti-transit politicians seek to grind transit users under the heel of a self-fulfilling prophecy: they have reduced demand for public transit by building highways that shifted jobs to suburbia, and now claim that transit service should be reduced still more because--thanks to their own policies--jobs have moved to suburbia.
In sum, government at all levels has systematically reduced public transit ridership by building highways that made newer suburbs possible, while often failing to create public transit service to those suburbs. But highway spending is merely the tip of government's anti-transit iceberg.

B. Unfunded Mandates: How Big Brother Makes Transit Unaffordable
In recent years, federal road spending has exceeded transit spending by a margin of over four to one. [FN102] Some commentators suggest that this gap is appropriate or even too narrow, because transit systems receive fifteen to twenty percent of all federal spending even though transit users comprise about five percent of all commuters. [FN103] This argument overlooks the fact that federal transit spending is at least partially canceled out by a variety of federal mandates.


1. The Americans with Disabilities Act
The Americans with Disabilities Act requires that transit providers make any newly purchased or leased bus or train "readily accessible to, and usable by individuals with disabilities," [FN104] and that transit systems *276 provide paratransit service [FN105] to individuals who, due to their disability, are unable to use traditional buses and trains without assistance, [FN106] need to travel at a time when buses or trains accessible to the disabled are unavailable, [FN107] or are unable to travel to a bus or train stop. [FN108] The ADA alone cost transit providers $1.4 billion per year in the mid-1990s, about one-third of federal transit spending. [FN109]


2. Labor Laws that Limit Transit Operators' Ability to Reduce Labor Costs
Section 13(c) of the Federal Transit Act, [FN110] a statute enacted to ensure that unionized transit workers did not lose their collective bargaining rights when local governments took over financially beleaguered private bus and rail lines, [FN111] in effect mandates "that transit agencies pay six years' wages and benefits to their employees affected by layoffs." [FN112] This statute alone may have cost transit providers $2-3 billion per year by the mid-1990s, [FN113] about half of all federal transit spending at that time. [FN114] The federal government also inflates transit systems' labor costs by imposing federally mandated wage rates for federally funded construction. [FN115]
*277


3. Limitations upon Transit Systems' Use of Parts Manufactured in Foreign
Countries [FN116]
The "Buy American" provisions of the Federal Transit Act provide that steel, iron and manufactured goods used in transit projects must be produced in the United States [FN117] unless the Secretary of Transportation chooses to waive this requirement. [FN118] Waivers are allowed if application of the "Buy American" statute is not in the public interest, American-made components are not of satisfactory quality, if the cost of including domestic material will increase the cost of the overall project by over twenty-five percent, or the cost of the American-made components is sixty percent of the cost of the goods at issue. [FN119] Contractors on transit projects must sign "Buy American Certificates" that describe the extent to which their goods are American-made. [FN120]


4. Limitations on Charter and School Bus Service in Competition with the
Private Sector [FN121]
The Federal Transit Act provides that a transit system receiving federal aid may not provide charter bus transportation service outside the urban area in which it provides regularly scheduled mass transportation service if the recipient will thereby "foreclose a private operator from providing intercity charter bus service if the private operator can provide the service." [FN122] The same act provides that transit systems receiving federal aid may not "provide schoolbus transportation that exclusively transports students and school personnel in competition with a private operator." [FN123]
Every dollar that transit systems spend or forego in order to comply with these federal rules and regulations is a dollar that they cannot use to expand or preserve service. In fact, transit agencies have occasionally reduced service in order to finance compliance with federal mandates: *278 for example, in the mid-1990s thirty-one percent of American transit agencies reduced service, raised fares or laid off employees in order to pay costs imposed by the Americans with Disabilities Act. [FN124]

C. Other Anti-Transit Policies: Or, How To Attack Transit By Attacking Cities
Highway spending is hardly the only government expenditure that has reduced transit use or moved jobs away from transit users. Over the past several decades, a wide variety of government policies have indirectly encouraged Americans to move to auto-dependent suburbs.


1. Federal Housing Administration Mortgage Insurance
Since 1934, the Federal Housing Administration (FHA) has insured long-term, low down payment mortgages against default. [FN125] By 1986, the federal government backed two-thirds of the single-family mortgages in the United States. [FN126] For many years, FHA guaranteed home loans only in "low-risk" areas. [FN127] FHA guidelines defined low-risk areas as areas that were thinly populated, dominated by newer homes, and had no African-American or immigrant enclaves nearby--areas that disproportionately tended to be suburban. [FN128] In fact, FHA manuals *279 specifically taught that the FHA should favor newer, lower-density areas because "crowded neighborhoods lessen desirability [and] older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy." [FN129] Public transit is less feasible in lower-density areas, because as houses and apartments are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN130] So by bribing homeowners to move to low-density suburbs, the FHA inadvertently reduced transit ridership by causing population to shift to areas where public transit was inconvenient or inadequate.


2. Public Housing Policies that have Concentrated Poverty and Crime in Cities
Public housing policies, by concentrating poverty and crime in cities, have driven middle-class families out of cities and into auto-oriented suburbs. New Deal-era federal housing legislation provided that any municipality desiring public housing had to either create a municipal housing authority or cooperate with another city's housing authority. [FN131] Economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN132] Moreover, the federal government's "equivalent elimination requirement" kept public housing out of suburbs by mandating that one unit of substandard housing be eliminated for each unit of public housing built. [FN133] Because most suburbs had little substandard housing, even suburbs that wished to participate in the public housing program were excluded. [FN134] As a result *280 of these limitations, many suburbs have little or no public housing. [FN135]
By law, public housing projects are packed with poverty: forty percent of all occupants of existing public housing must earn less than thirty percent of their metro area's median income. [FN136] Because homogeneously poor areas tend, other factors being equal, to be more crime-ridden than more affluent areas, [FN137] public housing projects are "havens for crime." [FN138] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some public housing projects are even more horrendous. [FN139] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of one percent of that city's population, but account for eleven percent of the city's murders. [FN140] Similarly, a 1993 study found that the incidence of crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods. [FN141] By concentrating public housing in central cities, the federal government has concentrated poverty and crime in cities, thus accelerating the flight of the middle class and their employers to auto-oriented suburbs, [FN142] which in turn (as noted above) has reduced the share of people and jobs served *281 by public transit. [FN143]


3. Prestigious Schools for Suburbs and "Bad" Schools for Cities
Over the past several decades, many American parents have moved to suburbia in order to keep their children out of urban public schools. [FN144] This problem is in part a consequence of state governments' school assignment policies. In most of America, students are assigned to public schools based on their home addresses: [FN145] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN146] the average city school will nearly always have more low-income children than the average suburban school. Other factors being equal or nearly so, low-income children are harder to educate and achieve less than middle-income children, because "socioeconomic status (SES) and family background influence a student's achievement in school." [FN147] This is so because "children reared in low socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on a child's achievements." [FN148] It follows that schools packed with low-income *282 children will usually be less prestigious than middle-class schools. Thus, so long as state and local laws require urban children to attend schools packed with low-income children, urban schools will have bad reputations that drive away middle-class parents.
In recent decades, the federal courts have widened the gap between city and suburb in the name of "desegregation:" the courts have often required cities to create racial balance in urban schools, [FN149] while allowing lily-white suburbs to continue maintaining lily-white schools. [FN150] These rulings ensured that city schools would be more racially diverse than suburban schools, which in turn meant that because blacks tend to be poorer than whites, [FN151] city schools, even those in affluent areas, would contain more low-income children than suburban schools. This desegregation, in turn has made city schools less prestigious and thus less appealing to middle- class families. [FN152] As noted above, when middle-class families flee to auto-dominated suburbs, they are more likely to drive to work, and transit ridership plummets.


4. A Tax Code that Favors Driving and Suburban Life
Employers may provide parking to their employees as a tax-free fringe benefit worth up to $170 a month, while the tax-free ceiling on transit passes is only sixty-five dollars per month. [FN153] To a much greater extent than European countries, America taxes income and savings rather than consumption. [FN154] Thus, the tax code encourages Americans to purchase space-consuming items and the large suburban houses necessary to house those items. [FN155] Moreover, state and federal fuel taxes are too small to recapture the social costs of driving, such as highway spending not paid *283 for by fuel taxes, [FN156] the costs of auto-induced air pollution, the costs of medical care resulting from auto collisions, the costs of military spending to protect Persian Gulf oil, and the costs of police enforcement of auto-related laws such as traffic and parking laws. [FN157]
These policies have combined to place older cities in a vicious spiral of decay: as middle-class families fled to the suburbs, urban tax bases diminished, causing local government to raise taxes or reduce services, further accelerating middle-class flight, creating additional pressures for tax increases, and so on. [FN158] As urban neighborhoods emptied out, middle-class families were replaced by poor ones, [FN159] causing crime to increase, [FN160] thus accelerating middle-class flight.
In turn, the middle-class exodus from older cities and neighborhoods has reduced transit ridership in two ways. First, as employees and employers fled cities, they relocated to suburbs with minimal public transit, reducing their opportunities to use public transit. [FN161] Second, such reductions in ridership have sometimes pushed public transit into a vicious spiral: reduced ridership was used to justify reductions (or to prevent improvements) in service, [FN162] which in turn reduced ridership, which decreased transit system revenues, causing additional service reductions and fare increases. [FN163]

*284 D. How Zoning Makes Suburbs Auto-Dependent
While the federal and state governments were driving Americans into suburbs, local governments were (with state and federal support) making those suburbs as auto-dependent as possible through zoning legislation. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN164] SZEA, which was quickly enacted by the majority of states, [FN165] granted municipalities power to regulate the location and use of buildings. [FN166] The SZEA declared that zoning laws would be designed to "prevent the overcrowding of land [and] to avoid undue concentration of population" [FN167]--in other words, to reduce population density. SZEA-inspired zoning ordinances have artificially reduced densities [FN168] by limiting apartment construction [FN169] or by forcing all lots in a neighborhood to be of a minimum size. [FN170] For example, in 1970 more than ninety-nine percent of vacant land in New Jersey was zoned to exclude multifamily housing, and in Connecticut's Fairfield County eighty-nine percent of vacant land was subject to minimum lot requirements of one acre or more. [FN171] Such anti-density *285 zoning reduces transit use because, as noted above, [FN172] public transit is less feasible in low-density areas: as residences are spread farther apart, fewer people can walk short distances to bus and train stops. By using highway spending to create suburbs while zoning those suburbs to be auto-dependent, government reduced transit providers' revenues in two ways: first, it reduced transit providers' urban ridership, and second, it made it difficult for transit providers to serve suburbanites. By reducing transit providers' revenues, government forced them to cut back service and raise fares, [FN173] thus causing ridership losses that caused additional revenue losses. [FN174]


III. Does It Matter?
It could be argued that no matter what government does to encourage transit use, the inherent advantages of autos make any attempt to increase transit patronage futile. Even transit supporters sometimes fall victim to fatalism: one pro-transit commentator complains that "[t]he popularity of the automobile has long been the bane of urban planners who wish to increase transit ridership [because of the public] preference for the convenience and freedom that the automobile represents." [FN175] The facts prove otherwise. If people have enough transportation options and density is high enough to make transit efficient, most people will use it. For example, seventy-four percent of commuters to New York's central business district use public transit to get to work, as opposed to 1.8% of commuters to Orlando's business district. [FN176] Surely New Yorkers and Floridians desire "freedom and convenience" equally, but in New York, government evidently does less to make transit inconvenient. [FN177] Even in *286 suburbia, transit can be an option. For example, in Rosslyn, one of Washington, D.C.'s suburban employment centers, [FN178] 20.1% of employees use transit to get to work, [FN179] more than in the central business districts of many major cities. [FN180] Transit-oriented employment centers such as Rosslyn and Manhattan have survived eighty years of government hostility to public transit: if government stopped sabotaging public transit, these centers might be even more transit-friendly. Government can increase transit use if it stops sabotaging areas already serviced by transit, [FN181] and eliminates zoning laws that make transit inefficient by artificially reducing suburban population density. [FN182] Even if the state and federal governments do not increase transit funding by one cent, they can increase transit service and give Americans more transportation choices if they take a few actions.
* Stop funding highways and road widenings in suburbs with minimal or nonexistent public transit, because, as noted above, such highways shift development to auto-dominated suburbs. [FN183]
* Compensate transit systems for unfunded mandates that increase transit systems' costs, or eliminate such mandates altogether. [FN184]
* Break the link between schooling and residence, by allowing urban children to attend prestigious suburban and/or private schools rather than marooning them in urban schools with bad reputations. [FN185]
*287 * Reform the tax code to favor work and saving over the consumption of fuel and land. [FN186]
* Prohibit local governments from enacting zoning laws--such as minimum home and lot sizes and restrictions on apartment buildings--that artificially reduce density. [FN187]


IV. Conclusion
Far from "bombarding [Americans] with demands that we get out of our cars and into mass transit," [FN188] government has bombarded Americans with reasons to drive everywhere: highways that make it convenient to relocate to suburbs, zoning laws that make those suburbs as auto-dominated as possible, FHA loans that have bribed Americans to move to those suburbs, school systems that march middle-class families from city to suburb, and public housing projects that scare them away from urban neighborhoods. If we want a society where Americans are free to leave the driving to someone else, we need not drag Americans out of their cars. Rather, all we need to is to consign government's anti-transit policies to the ash heap of history.

(footnotes omitted due to length of article)

Hastings law review article on ADA and public transit
52 Hastings L.J. 1037


Hastings Law Journal
July, 2001


Articles


*1037 "THOU SHALT NOT PUT A STUMBLING BLOCK BEFORE THE BLIND": THE AMERICANS
WITH DISABILITIES ACT AND PUBLIC TRANSIT FOR THE DISABLED


Michael Lewyn [FNa1]


Copyright ? 2001 Hastings College of the Law; Michael Lewyn

The Bible states: "Thou shalt not . . . put a stumbling block before the blind." [FN1] Yet American governments at all levels have done exactly that, by making jobs and other opportunities unavailable to the 24 million [FN2] disabled Americans dependent on public transit, including 1.1 million blind Americans, [FN3] and some of the 3.2 million *1038 Americans [FN4] who are severely visually impaired. [FN5] Specifically, the state and federal governments have, by building highways to suburbs with minimal or nonexistent public transportation and through a variety of other policies encouraging migration to suburbs, redistributed jobs and other civic opportunities to those suburbs. [FN6] By redistributing development to areas without effective public transit, government has systematically excluded the blind and other transit-dependent Americans from employment, shopping, and other opportunities. [FN7]
The federal government has sought to better the lot of the disabled through the Americans with Disabilities Act (ADA), [FN8] which, inter alia, ordered local governments to make bus and train systems more accessible to the disabled. [FN9] But in fact, the ADA has not met its goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society." [FN10]
The ADA imposed costly requirements upon local public transit systems but did not give local governments funds with which to satisfy this mandate. [FN11] By reducing the funds available to transit systems, the *1039 ADA has sometimes forced cutbacks in transit service for everyone [FN12] (including, ironically, the disabled to the extent that disabled people were able to use public transit before the ADA's enactment). [FN13]
The ADA does not forbid such cutbacks, because it "does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN14] In other words, the ADA does not require that disabled transit users be made equal to the auto-using majority. Instead, that statute requires merely that disabled transit users be made equal to other transit-dependent Americans. It follows that if a state or local government is not interested in aiding the transit-dependent disabled, it can freeze the disabled out of the transportation system by slashing service for all users of public transit [FN15]--even if it increases spending on highways and other driver-related services. [FN16] Thus, government can and does make the transit-dependent disabled second-class citizens by making all nondrivers second-class citizens.
*1040 Part I of this Article describes how federal, state and local transportation policies (and to a lesser extent, a variety of other public policies) disable the transit-dependent disabled. Part II describes the evolution of black-letter law governing public transit for the disabled: the first pre-ADA attempts to make public transit accessible to the disabled, and then the ADA itself and case law thereunder. Part III explains why the ADA is inadequate and sometimes even counterproductive, and Part IV suggests a variety of reforms to end government's exclusionary transportation policies.


I. How Big Brother Disables the Disabled
It has been suggested that employment and social opportunities for the disabled have improved in recent decades [FN17]--and in some respects this may be so. [FN18] But for most [FN19] of the 24 million transit-dependent disabled Americans, [FN20] life has become harder as America has become more auto-dependent. This Part explains how life has become more difficult for transit-dependent Americans in recent decades, and shows how government created this problem by driving people and jobs away from transit hubs and into auto-dominated suburbs.

A. Transit-Dependent Americans as Second-Class Citizens
Once upon a time, almost every metropolitan American could go anywhere with streetcar fare and his or her feet; in the first decades of the 20th century, developable urban real estate was typically within walking distance of streetcar lines. [FN21] Even today, one can comfortably survive without a car in a few American cities. [FN22] But in some smaller *1041 cities [FN23] and in even more suburbs, auto ownership is virtually mandatory for a normal life. [FN24] Because two-thirds of all new jobs are now created in suburbs, many workers need a car just to get to work. [FN25] In fact, a survey by the U.S. Commerce Department shows that only 54.4% of American households have any public transit at all available to them, and that only 28.8% claim to have satisfactory public transit. [FN26]
Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN27] For example, the Boston region has a central city with a well-developed transit system and a commuter train system that serves many of its suburbs. [FN28] But even in Greater Boston, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN29] Only 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer *1042 neighborhoods. [FN30] Similarly, more than one-third of all entry-level jobs in the Baltimore region cannot be reached at all by bus or train. [FN31]
The situation is even worse in Sun Belt cities. For example, Atlanta's second largest suburban county (Gwinnett County, which had 522,000 people in 1998) has no public transportation whatsoever, [FN32] and even some neighborhoods within the Atlanta city limits have virtually no bus service. [FN33] Not surprisingly, less than half of Atlanta-area entry-level jobs are located within a quarter-mile of a public transit route. [FN34] And Atlantans know their public transit system is unsatisfactory: a recent survey revealed that only 22% of metro Atlantans regard their region's public transit system as good or excellent--a percentage that nosedived to as low as 7% in some counties. [FN35]
And in smaller cities, a nondriver's life is more desperate still. For example, in Macon, Georgia (a city of 114,000 people), [FN36] 16% of city households [FN37] (and 14% of households in the county that includes Macon) [FN38] lack cars, yet city buses only operate until 6:45 PM in the evening on weekdays, Saturday service is limited, and there is no service on Sundays or holidays. [FN39] Because many entry-level employers require their newest employees to work evening and weekend shifts, this system virtually shuts many of Macon's carless *1043 residents out of the job market. [FN40] And many of Macon's employers are not transit-accessible at all, because they are located on the area's periphery, far from any bus line. [FN41] As a result, Macon's employers of unskilled labor often ask would-be employees whether they have a car--and if the answer is no, the applicant won't be hired. [FN42]
Macon's transportation system limits a wide variety of other activities as well. The two largest Kroger supermarkets in Macon are not on bus lines, nor is a large discount supermarket, FoodMax, or a new Publix supermarket. [FN43] Conversely, a largely abandoned shopping center where anchor tenant K-Mart closed in 1991 is served by the system--but a new K-Mart is not. [FN44] Churches are not served by the system at all, because churches tend to be most active on Sundays and weekday evenings, when the bus system is shut down. [FN45] Even on the bus system's limited routes, the frequency of service is so minimal as to discourage use. For example, students who use public transit to attend Macon College must devote the entire day to the ordeal. After rising before 6 AM to catch the first bus from their homes to the downtown transfer station, students must catch a morning bus from downtown to the college at 7:30 AM. Later in the day, they have only one opportunity to return home. [FN46] Needless to say, drivers suffer from none of these limitations: government has built a toll-free, 24-hour system to serve them, and by building highways further and further away from downtown Macon, has encouraged employers to relocate to areas not served by bus routes. [FN47] So in Macon, as in most of America, the transit-dependent disabled are more isolated than ever.
*1044 Not surprisingly, the disabled have become poorer as suburbia has sprawled beyond the reach of public transportation. For example, in 1988, at the eve of the ADA's passage, men with disabilities earned 36% less than their non-disabled counterparts, as opposed to only 23% less in 1980. [FN48] Similarly, in 1988 women with disabilities earned 38% less than their non-disabled counterparts, as opposed to only 30% in 1980. [FN49] Since the passage of the ADA, employment levels among the disabled have continued to stagnate. [FN50] There is no way of knowing to what extent inadequate transportation (as opposed to other factors) [FN51] caused this problem--but transportation problems undoubtedly render the disabled less employable. [FN52] According to one pre-ADA poll, 28% of unemployed Americans with disabilities blamed lack of transportation for their unemployment. [FN53] For example, Jay Rochlin, then the Executive Director of the President's Committee on Employment of Disabilities, informed Congress in 1988:
*1045 It makes little sense to protect an individual from discrimination in employment if, for example, they have less than adequate accessible public transportation services. We have conducted surveys in 45 communities over the last seven years, and, consistently, inaccessible transportation has been identified the major barrier, second only to discriminatory attitudes. [FN54] If inaccessible transportation keeps the disabled unemployed, it logically follows that the decay of public transit in recent decades has had something to do with the growth of poverty and unemployment among the disabled.


(1) How Government Has Sabotaged Public Transit
It could be argued that America's auto dependency is a natural result of affluence [FN55] or of "America's romance with the automobile." [FN56] But in fact, government has, in a wide variety of ways, eliminated nondrivers' access to jobs and community facilities.
For most of the 20th century, government has funneled billions of dollars into highway construction. [FN57] Highway construction immobilizes the disabled by shifting development from areas accessible to the transit-dependent disabled to areas inaccessible except by automobile. [FN58] In addition, government at all levels has reduced transit system revenues through unfunded mandates, [FN59] has adopted education and housing policies that indirectly shifted development to suburbs, [FN60] and has enacted zoning laws that made those suburbs as auto-dependent as possible (thereby reducing transit ridership and transit system revenues). [FN61] All of these policies have immobilized the transit-dependent disabled, either by shifting development to areas with minimal or nonexistent public transit or by starving transit systems of revenue that they could have used to expand service to such areas.


*1046 (2) Highway Policy


(a) How Government Put Highways in the Driver's Seat
Early in the 20th century, state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers to reimburse local treasuries for the costs of streets, traffic maintenance, and police services--but instead frequently chose to subsidize drivers by relying on general taxation. [FN62] Thus, government essentially taxed the general public (including railroads, transit users, and rail users) to support drivers. [FN63] By contrast, streetcar services were typically private and unsubsidized. [FN64] To make matters worse, streetcar fares were often controlled by government and, despite World War I-era inflation, were not allowed to rise. [FN65] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN66]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue therefrom to fund highway construction projects. [FN67] By 1927, highways were second only to education as recipients of state and local expenditure, and one-third of state assistance to local government was for highway construction. [FN68]
In 1921, the federal government began to support highway building, by enacting a Federal Road Act [FN69] that designated 200,000 miles of road as eligible for federal matching funds, and by creating a Bureau of Public Roads to plan an interstate highway system. [FN70] By *1047 that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN71] By contrast, most transit systems were privately owned, received no government assistance, and paid taxes to support the highway system and other government functions. [FN72]
During the 1920s and 1930s, government's highway empire continued to grow. By 1940, government spent $2.7 billion on highways. [FN73] By contrast, at that time the total operating costs of all intracity bus and rail systems (except commuter rail) were $661 million, and most of that sum was financed by private spending. [FN74]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, government funneled $4.6 billion into highways, and virtually nothing into transit. [FN75] And in 1954, President Eisenhower appointed a committee on highways chaired by Lucius Clay, a member of the General Motors board of directors. [FN76] Not surprisingly, the committee endorsed a massive highway spending plan. That scheme was enacted into law as the Interstate Highway Act, [FN77] which created a 41,000 mile Interstate Highway System. [FN78] Under the Act, the federal government paid for 90% of the system's construction and maintenance costs, states paid 10%, and municipalities paid nothing. [FN79] By contrast, the federal government did not begin to subsidize public transit until the 1960s. [FN80] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by 37%. [FN81] Today, federal road spending exceeds transit *1048 spending by a margin of more than 5-1. [FN82] Moreover, state governments are often even more pro-road and anti-transit than the federal government; for example, some states require fuel tax revenues to be spent exclusively on roads. [FN83]


(b) How Highway Spending Harms the Transit-Dependent
As noted above, many American suburbs have minimal (or even nonexistent) public transit. [FN84] Highways caused jobs and community activities to move to these auto-dependent suburbs, thus depriving the transit- dependent of jobs and other opportunities.
At first, highways merely enabled commuters to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN85] But where highway-driven residential development came, commercial development inevitably followed, as retail businesses moved to suburbs in order to *1049 serve those suburbs' new residents and other businesses followed their employees to suburbia. [FN86] As one federal court has pointed out, "[h]ighways create demand for travel and [[suburban] expansion by their very existence." [FN87]
For example, Washington's Capital Beltway, a 66-mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN88] But instead, the Beltway became a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Virginia. [FN89] And as suburbs grew more populated, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) thus spurring development in even more suburbs. [FN90] A study by the Surface Transportation Policy Project showed that each of the 50 largest metro areas in America added new road capacity in the 1980s and 1990s. [FN91]
*1050 As a consequence of (among other factors) [FN92] government's road-building sprees, [FN93] many older American cities had suffered enormous population losses by the end of the 20th century. At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN94] But by 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN95] Some central *1051 cities have been devastated by sprawl: for example, St. Louis has lost 60% of its population since 1950, while Buffalo and Cleveland have lost over 45% of their population. [FN96] The cities that have gained population have grown either by being hubs for immigration from other countries (like New York and Los Angeles) or by annexing newly developed areas that would be considered suburbs in other cities (like Little Rock, Indianapolis, and Albuquerque). [FN97] Jobs, as well as people, have fled to suburbia: [FN98] about 95% of the 15 million new office jobs created in the 1980s were in suburbs, [FN99] and suburbs captured 120% of net job growth in manufacturing. [FN100]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion implicitly concede that highways affect the location of development. For example, in 1999 the National Association of Home Builders (which favors increased road spending) [FN101] conducted a survey that asked respondents what amenities would encourage them to move to a new area, and their top choice (endorsed by 55% of respondents) was "highway access." [FN102] If highway access makes a suburb more desirable, it follows when the government builds a suburban highway, people and jobs move to locations near highway exits.


*1052 (c) Throwing the Disabled (and Everyone Else) Off the Bus
The state and federal governments' highway spending spree would not have harmed the disabled if those governments had built buses and trains to bring the transit-dependent to suburban jobs and civic centers. But instead, government effectively decreased service for nondrivers while increasing service for drivers: that is, government drove private transit companies out of business by funding competition from highways, took over what was left of transit service, and actually reduced transit service while it was doing so. [FN103]
During the first half of the 20th century, governments at all levels poured billions into highways while buses, trains and streetcars were privately owned and had to make do without government subsidy. [FN104] In fact, governments actually taxed streetcar companies to support highway spending, [FN105] and starved streetcar companies of revenue by limiting fares. [FN106]
While the federal government was funding the interstate highway system in the 1950s and 1960s, local governments began to take over failing transit systems. [FN107] But local governments did not increase transit service so that riders could reach auto-oriented suburbs. Instead, government reduced transit service in two ways: first by building highways to places unserved by public transit [FN108] (thus causing opportunities to migrate to those areas) [FN109] and second by reducing service to places that already had public transit. Between 1950 and 1970, vehicle miles of public transit service declined nationally by 37%. [FN110] According to a legislative finding contained in the Urban Mass Transportation Act, "in the early 1970's continuing even minimal mass transportation service in urban areas was threatened." [FN111]
*1053 The federal government began to support public transit in the early 1960s, [FN112] but today federal road spending exceeds transit spending by about a 5-1 margin. [FN113] And some suggest that even this sum is too much, because transit systems receive 15-20% of all federal spending even though transit users comprise about 5% of all commuters. [FN114] This argument overlooks the fact that federal transit spending is canceled out by a variety of federal mandates, including (1) the ADA itself, which alone cost transit providers $1.4 billion per year in the mid-1990s, about 1/3 of federal transit spending, [FN115] (2) labor laws that limit transit operators' ability to reduce labor costs [FN116] (which alone may cost transit providers $2-3 billion per year, [FN117] about half of all federal transit spending), [FN118] (3) imposition of federally mandated wage rates for federally funded construction, [FN119] (4) limitations upon transit systems' use of parts manufactured in foreign countries, [FN120] and (5) limitations on charter and school bus service in competition with the private sector. [FN121] Every dollar that transit *1054 systems spend or forego in order to comply with these federal rules and regulations is a dollar that they cannot use to expand or preserve service.


(3) Other Anti-Transit Policies
Moreover, highway spending is hardly the only government expenditure that has reduced transit use or moved jobs away from transit users. Over the past several decades, a wide variety of government policies have indirectly encouraged Americans to move to areas unserved by public transit, including:
* Federal Housing Administration mortgage insurance. Since 1934, the Federal Housing Administration (FHA) has insured long-term, low down-payment mortgages against default. [FN122] By 1986, the federal government backed 2/3 of the single-family mortgages in the United States. [FN123] For many years, FHA guaranteed home loans only in "low-risk" areas. [FN124] Specifically, FHA manuals taught that the FHA should favor newer, lower-density areas because "crowded neighborhoods lessen desirability [and] older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy." [FN125] Public transit is less feasible in lower-density areas, because as houses and apartments are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN126] So by *1055 bribing homeowners to move to low-density suburbs, the FHA inadvertently reduced transit ridership by causing population to shift to areas where public transit was inconvenient or nonexistent. Such population shifts caused reductions in transit service, both because declining ridership arguably justifies reductions in service [FN127] and because jobs eventually followed people to the suburbs [FN128] (thus reducing the number of jobs accessible to transit-dependent urbanites).
* Zoning policies that made suburbs as auto-dominated as possible. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN129] SZEA, which was quickly enacted by the majority of states, [FN130] granted municipalities power to regulate the location and use of buildings. [FN131] The SZEA declared that such legislation would be designed to "prevent the overcrowding of land [and] to avoid undue concentration of population" [FN132]--in other words, to reduce population density. SZEA-inspired zoning ordinances have reduced densities by limiting apartment construction [FN133] or by forcing all homes in a neighborhood to be the same size. [FN134] For example, in 1970 more than 99% of vacant land in New Jersey was zoned to exclude *1056 multifamily housing, and in Connecticut's Fairfield County 89% of vacant land was subject to minimum lot requirements of one acre or more. [FN135] Such anti-density zoning reduces transit use because, as noted above, [FN136] public transit is less feasible in low-density areas: as residences are spread farther apart, fewer people can walk short distances to bus and train stops. So by using highway spending to create suburbs while zoning those suburbs to be auto-dependent, government reduced transit providers' revenues in two ways: first by reducing transit providers' urban ridership, and second by making it difficult for transit providers to serve suburbanites. And by reducing transit providers' revenues, government forced them to cut back service to transit-dependent individuals. [FN137]
* Public housing policies that, by concentrating poverty and crime in cities, drove middle-class families out of cities. New Deal-era federal housing legislation provided that any municipality desiring public housing had to create a municipal housing authority or to cooperate with another city's housing authority. [FN138] Thus, economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN139] Moreover, the federal government's "equivalent elimination requirement" kept public housing out of suburbs by mandating that one unit of substandard housing be eliminated for each unit of public housing built. [FN140] Because most suburbs had little substandard housing, even suburbs that wished to participate in the public housing *1057 program were excluded. [FN141] As a result of these limitations, many suburbs have little or no public housing. [FN142] Public housing projects are by law packed with poverty: 60% of all occupants of existing public housing must earn less than 30% of their metro area's median income. [FN143] Because homogeneously poor areas tend, other factors being equal, to be more crime-ridden than more affluent areas, [FN144] public housing projects are "havens for crime." [FN145] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some projects are even more horrendous. [FN146] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of 1 percent of that city's population, but account for 11% of the city's murders. [FN147] Similarly, a 1993 study found that crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods. [FN148] So by concentrating public housing in central cities, the federal government has concentrated poverty and crime in cities, thus accelerating the flight of the middle class and their employers to suburbia, [FN149] which in turn (as noted above) both reduces the share of people and jobs served by transit and, by reducing ridership, justifies reductions in transit service. [FN150]
*1058 * Prestigious schools for suburbs and "bad" schools for cities. Over the past several decades, many American parents have moved to suburbia in order to keep their children out of urban public schools. [FN151] This problem is a consequence of state governments' school assignment policies. In most of America, students are assigned to public schools based on their home addresses: [FN152] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN153] the average city school will nearly always have more low-income children than the average suburban school. Other factors being equal, low-income children are harder to educate and achieve less than middle-income children, because "socioeconomic status (SES) and family background influence a student's achievement in school." [FN154] This is so because "children reared in low socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on a child's achievements." [FN155] It logically follows that as long as state and local laws require urban children to attend schools packed with low-income children, urban schools will drive away middle-class parents. And as noted above, when middle-class families flee to auto-dominated suburbs, the businesses that cater to them and *1059 employ them eventually do so as well, [FN156] thus reducing opportunities for transit-dependent Americans. [FN157]
* A tax code that favors driving and suburban life. Employers may provide parking to their employers as a tax-free fringe benefit worth up to $170 a month, while the tax-free ceiling on transit passes is only $65 per month. [FN158] To a much greater extent than European countries, America taxes income and savings rather than consumption. [FN159] Thus, the tax code encourages Americans to purchase space-consuming items and the large suburban houses necessary to house those items. [FN160]
These policies have combined to place older cities in a vicious spiral of decay: as middle-class families fled to the suburbs, urban tax bases diminished, causing politicians to raise taxes or reduce services, further accelerating middle-class flight, creating additional pressures for tax increases, and so on. [FN161] And as urban neighborhoods emptied out, middle-class families were replaced by poor ones, [FN162] thus causing crime to increase, [FN163] thus accelerating middle-class flight.
In turn, the middle-class exodus from older cities and neighborhoods has adversely affected transit-dependent Americans (including, of course, the disabled) in two ways. [FN164] First, as employers fled cities, they relocated to places with minimal public transit, thus reducing the number of jobs accessible to transit-dependent Americans. [FN165] Second, as middle-class families left the city, they also *1060 abandoned urban transit systems, pushing public transit into a vicious spiral: reduced ridership could be used to justify reductions in service, [FN166] which in turn reduced ridership, which decreased transit system revenues, causing additional service reductions and fare increases ad infinitum. [FN167]


II. Disability Law and Transit-Dependent Americans

A. Historical Background: Before the ADA
As early as the 1970s, the federal government sought to expand disabled Americans' access to public transportation.
Section 16(a) of the Urban Mass Transportation Act (UMTA), [FN168] enacted in 1970, [FN169] provided that:
elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation services so that the availability to elderly and handicapped persons of mass transportation that they can effectively utilize will be assured . . . . [FN170]
Section 504 of the Rehabilitation Act of 1973 similarly provided that:
[n]o otherwise qualified person with handicaps in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to *1061 discrimination in any program or activity receiving Federal financial assistance. [FN171]
Congress then enacted section 165(b) of the Federal-Aid Highway Act of 1973 (FAHA), which directed that:
projects receiving Federal financial assistance . . . shall be planned, designed, constructed, and operated to allow effective utilization by elderly and handicapped persons who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability . . . are unable without special facilities or special planning or design to utilize such facilities and services effectively . . . . The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons. [FN172]
To implement these statutory mandates, the federal Department of Transportation (DOT) promulgated regulations in 1976 requiring transit systems to make "special efforts in planning public mass transportation facilities and services that can effectively be utilized by elderly and handicapped persons." [FN173]
Two days before the DOT regulations were published, [FN174] President Ford issued Executive Order 11,914, [FN175] which required the Department of Health, Education and Welfare (HEW) (now the Department of Health and Human Services) [FN176] to coordinate implementation of the policy of nondiscrimination announced in the Rehabilitation Act.
HEW's guidelines, issued in 1978, required all recipients of federal funds to make public transportation "readily accessible to and usable by handicapped persons." [FN177] Specifically, HEW required retrofitting of subways and buses to make those modes of transportation fully accessible to the disabled. [FN178]
HEW guidelines also discussed the role of paratransit--that is, transportation provided upon request by a disabled individual rather *1062 than on fixed routes. [FN179] HEW stressed that transit systems should offer the disabled access to public transit "in the most integrated setting appropriate" [FN180] but added that HEW did not construe the guidelines "to preclude in all circumstances the provision of specialized services [targeted to the disabled] as a substitute for, or supplement to, totally accessible services." [FN181]
In 1979, DOT promulgated regulations in compliance with the HEW guidelines. Those regulations mandated across-the-board alterations to ensure that all transportation facilities were made accessible to handicapped persons. [FN182] For example, the DOT mandated that every bus purchased after July 2, 1979 have a wheelchair lift, and that at the end of ten years half of all transit system buses be wheelchair-accessible. [FN183] The 1979 regulations were immediately challenged by the American Public Transit Association, a trade association of public transit systems. [FN184] In American Public Transit Association (APTA) v. Lewis, [FN185] the U.S. Court of Appeals for the District of Columbia Circuit invalidated the regulations. The court interpreted the Rehabilitation Act's nondiscrimination requirement to mean that transit systems must take "modest, affirmative steps to accommodate handicapped persons" [FN186] and held that DOT's regulations were not authorized by the statute because they "require extensive modifications of existing systems and impose extremely heavy burdens on local transit authorities." [FN187] The court remanded the case to DOT so the agency could determine whether its regulations were authorized by UMTA or FAHA. [FN188]
In response, DOT promulgated more modest interim regulations rather than issuing a final set of regulations. [FN189] The interim regulations contained two noteworthy provisions. First, the regulations contained a "local option" provision allowing transit systems to choose whether to accommodate the disabled through *1063 making buses more accessible to the disabled, establishing a separate paratransit system, or using disabled-accessible buses for some areas and paratransit for others. [FN190] Second, the interim Regulations contained a "safe harbor" provision relieving transit systems of their obligation to serve the disabled as long as they spent three and a half percent of funds on such services. [FN191]
In December of 1982, Congress enacted the Surface Transportation Act of 1982 (STAA), which required DOT to issue regulations establishing minimum criteria for the provision of services to the disabled. [FN192] The primary purpose of STAA was not to "specify any substantive standard" [FN193] but to "prod DOT into action following the 1981 remand of the regulations in APTA v. Lewis." [FN194]
Nevertheless, DOT did not issue final regulations until 1986. [FN195] The regulations maintained the interim regulations' local option provision, and established minimum service criteria for transit-only systems (that is, systems that proposed to serve the disabled solely through fixed-route transit), [FN196] paratransit systems, and mixed systems combining fixed-route transit and paratransit. The minimum service criteria required, inter alia, that transit service for the disabled be comparable in hours, days of service, service area, and fares to service for the non-disabled. [FN197] In addition, the regulations maintained the interim regulations' "safe harbor" provision. The safe harbor provision stated that transit systems were not required to spend more than 3% of operating costs on service for the disabled, even if, as a result, they did not meet the DOT's minimum service criteria. [FN198]
In ADAPT v. Skinner, seven disabled individuals and disability rights organizations challenged the local option and safe harbor provisions of the regulations. Plaintiffs argued that the local option provision was invalid because the law required "mainstreaming" (that is, that fixed-route buses and trains be accessible to the disabled even *1064 in jurisdictions providing paratransit service) and that the safe harbor provision was arbitrary and capricious. [FN199] The U.S. Court of Appeals for the Third Circuit rejected the first argument and endorsed the second. The court upheld DOT's local option rule, because none of the relevant statutes (the Rehabilitation Act, UMTA, FAHA and STAA) expressly required mainstreaming, [FN200] because case law thereunder had generally rejected mainstreaming, [FN201] and because DOT's local option rule was "adequately supported by record evidence of the relative costs and benefits." [FN202] The court also relied on the doctrine that in "the absence of a clear congressional mandate . . . [courts should] defer to an agency's interpretation of the relevant statute in its regulations." [FN203]
By contrast, the court held that the 3% safe harbor provision was "arbitrary and capricious" [FN204] because "under the safe harbor provision, cities could deny to the disabled the minimum quality of service mandated by the Congress with impunity." [FN205] The court explained that "according to DOT, if the 3% safe harbor were implemented, cities of less than one million people in which the transit authorities implemented a paratransit-only system would virtually never meet all of the applicable service criteria" [FN206]-- a result that was not contemplated by Congress. [FN207] In fact, the 3% safe harbor violated STAA because that statute required DOT to establish minimum service criteria, and the safe harbor rule allowed transit operators in all but the largest cities to avoid meeting those criteria. [FN208]

B. Why Pre-ADA Law Was Inadequate
After ADAPT, many transit systems sought to make their buses available to the disabled; by 1990, 35% of America's buses, and half of all newly acquired buses, were accessible to the disabled. [FN209]
*1065 Nevertheless, Congress believed that "17 years of experience with [[the Rehabilitation Act] . . . have demonstrated the need for further legislative action in this area." [FN210] Under the local option rules, a transit system could comply with DOT regulations solely by making their buses and trains accessible to the disabled [FN211] while failing to meet the needs of the 1.4 million Americans [FN212] who required additional assistance to use public transportation. [FN213] For example, individuals with severe vision impairments cannot use ordinary trains and buses without assistance if they are traveling in unfamiliar surroundings or have only recently lost their vision. [FN214] Similarly, "chronic fatigue . . . a lack of cognitive ability to remember and follow directions, or a special sensitivity to temperature" [FN215] may prevent an individual from traveling to a bus stop.
Conversely, a local government could seek to meet the needs of the disabled solely through paratransit, but this option also could not accommodate all disabled transit users. The House Education and Labor Committee found that paratransit was often inadequate
for the following reasons, among others; the need to make reservations in advance often conflicts with one's work schedule or interests in going out to restaurants and the like; the cost of rides when used frequently is often exorbitant; limitations on time of day and the number of days that the paratransit operates; waiting time; restrictions on use by guests and nondisabled companions who are excluded from accompanying the person with a disability; the expense to the public agency; and restrictions on eligibility placed on use by social service agencies. [FN216]
For example, one disabled witness from Indianapolis testified that he was forced to rely on that city's paratransit services because his city had only six buses with wheelchair lifts, and that one day when he was released from a hospital, the transit agency "called to say that they could not pick me up even though I had scheduled my ride three weeks in advance . . . there are more than 100 persons on a *1066 waiting list to utilize this very limited form of accessible public transportation." [FN217] Congress sought to solve these problems by enacting the ADA.

C. The ADA's Requirements
Section 202 of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." [FN218] Much of Title II of the ADA [FN219] clarifies this general rule by explaining what transit systems must do to avoid "discrimination" against the disabled.
The ADA's most significant transit-related provisions, Sections 222 and 223, [FN220] require transit systems to provide the disabled with both accessible fixed route service and paratransit. Section 222 provides that any public entity that purchases or leases a new bus, rapid rail vehicle, or light rail vehicle, must make the vehicle "readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN221] However, nothing in Section 222 requires public entities to purchase or lease new vehicles, or even to provide any transit service at all. Thus, a public entity can avoid Section 222 by reducing transit service. [FN222]
Section 222 specifically "mandates lifts [for wheelchairs] on every new public transit bus." [FN223] The House Committee on Public Works and Transportation added that
[a]lthough individuals who use wheelchairs are specifically referenced, the concept of making a vehicle readily accessible to and usable by individuals with disabilities involves more than simply making it available to an individual using a wheelchair. For example . . . this section may require vehicles to incorporate non-slip floors for individuals whose disabilities cause balance problems *1067 or specific visual information for the hearing-impaired. [FN224]
Transit systems may not evade ADA requirements by purchasing used vehicles that are not accessible to the disabled, because a transit agency may not purchase or lease used buses or trains unless it "makes demonstrated good faith efforts to purchase or lease a used vehicle for use on such system that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN225] Similarly, transit systems may not evade the ADA by remanufacturing buses or trains, because all remanufactured transit vehicles must be "to the maximum extent feasible, readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN226]
Section 223 requires all government agencies operating fixed route systems to provide paratransit service as a "safety net" for disabled individuals incapable of using conventional public transit. [FN227] Such service must be "sufficient to provide to [disabled] individuals a level of service . . . comparable to the level of designated public transportation services provided to individuals without disabilities using such system." [FN228] Specifically, paratransit systems should have response times [FN229] and service areas [FN230] comparable to those of fixed *1068 route service. Paratransit services must be provided to (1) disabled individuals who are unable, due to their disability, to board, ride or disembark from buses or trains without the assistance of another individual (other than the operator of a wheelchair lift or other boarding assistance device); [FN231] (2) any disabled individual who needs a wheelchair lift or other boarding assistance device to board, ride or disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individual wants to travel at a time when fixed route vehicles with such assistance devices are not available; [FN232] (3) individuals who can travel on a bus or train but cannot, due to their disability, travel to a bus or train stop; [FN233] and (4) to persons traveling with disabled individuals eligible for paratransit service. [FN234]
Like Section 222, Section 223 essentially requires state and local governments to provide comparable transit service for disabled and non-disabled alike, but does not prohibit governments from reducing transit service for everyone. [FN235] Moreover, government agencies need not comply with Section 223 if doing so "would impose an undue financial burden on the [[agency]." [FN236] In such situations, transit *1069 systems need only provide paratransit services "to the extent that providing such services would not impose such a [undue] burden." [FN237] Transit systems must prepare paratransit plans after a public hearing and public comment, [FN238] and submit such plans annually to DOT for its approval. [FN239] Should DOT find that a plan does not satisfy ADA requirements, it must disapprove the plan, and the transit system must submit a modified plan. [FN240] A transit system must comply with its own paratransit plan. [FN241]
Sections 222 and 223 are the most widely applicable provisions of the ADA because fixed-route bus systems serve more riders than rail systems or demand-responsive service. [FN242] ADA provisions governing demand-responsive systems, [FN243] new transit facilities (such as rail stations and bus terminals), [FN244] and rail systems echo Sections 222 and 223. For example, the ADA requires demand-responsive systems to make new vehicles accessible to the disabled, [FN245] and requires new *1070 transit facilities [FN246] and alterations of existing facilities [FN247] to be accessible to the disabled.
The ADA also requires that rail systems go beyond merely improving new or altered facilities. Specifically, it requires that "key" rail stations (such as stations with high ridership, end-of-the-line stations, and stations at which riders likely to transfer between rail lines or between buses and trains) [FN248] be made accessible to the disabled within three years, [FN249] and that all rail systems operating multi-car trains have "at least 1 vehicle per train that is accessible to individuals with disabilities . . . as soon as practicable but in no event later than the last day of the 5-year period beginning on the effective date of this section." [FN250]
Title II of the ADA (which encompasses the public transportation provisions discussed above) provides that the remedies set forth in the Rehabilitation Act [FN251] shall govern actions involving discrimination relating to government programs. [FN252] The House Judiciary Committee explained that the ADA, like the Rehabilitation Act, provides for a private right of action. [FN253]
Finally, the ADA required the DOT to issue regulations implementing its transit-related provisions, [FN254] which the DOT did in 1991. [FN255] In addition to interpreting some of the ADA provisions addressed above, [FN256] DOT regulations addressed a wide variety of issues not directly addressed by the ADA. For example, DOT regulations:
*1071 * require that vehicles already accessible to the disabled remain accessible [FN257] and gave specific directions as to how wheelchair lifts should be maintained; [FN258]
* provide that paratransit fares may not exceed twice the fixed-route fare for a comparable ride; [FN259]
* prohibit paratransit providers from imposing restrictions on priorities based on an individual's trip purpose; [FN260]
* require that certain major bus stops should be announced for disabled passengers; [FN261]
* provides that where numerous bus routes serve one bus stop, transit systems shall provide means by which visually impaired individuals may identify the proper vehicle to enter; [FN262]
* require that disabled passengers be allowed to travel with portable oxygen supplies [FN263] and service animals; [FN264]
* require that disabled passengers be provided with adequate information about public transportation; [FN265]
* require that certain bus and train seats be designated as priority seating for the disabled; [FN266] and
* set forth means of administrative enforcement of the ADA. [FN267]
In addition to issuing regulations, DOT simultaneously issued guidelines interpreting those regulations. [FN268] Parts of these guidelines merely restate the regulations, but others are less obviously based on the ADA or the regulations. For example, the guidelines clarify that paratransit service may be either door-to-door or curb-to-curb and that paratransit service may therefore take an individual to an accessible transit stop rather than to an ultimate destination, [FN269] and interpret the nondiscrimination requirement of the ADA to mean that obnoxious conduct associated with a disability does not justify *1072 exclusion of disabled passengers unless it represents a direct threat to other riders. [FN270]

D. ADA Case Law
Case law interpreting the ADA's public transportation provisions has been quite sparse, perhaps because many disputes under the ADA settle. [FN271] Nevertheless, a few decisions have interpreted those provisions, and will be discussed below.


(1) Service Reductions
Hassan v. Slater [FN272] is arguably the most far-reaching case decided under the ADA's transit-related provisions. In Hassan, a disabled commuter alleged that a transit agency's decision to close a nearby rail station [FN273] violated the ADA. Because of the station's closure, the nearest station would be four miles from the plaintiff's home--too far for plaintiff to walk, and too far for plaintiff to afford a taxicab ride to the station on a regular basis. [FN274]
The court denied plaintiff's request for a preliminary injunction, holding, inter alia, that he had "not established a likelihood of success on the merits." [FN275] The court explained that "[i]t does not appear that the ADA requires the [transit system] to keep all of its stations open . . . rather, the ADA only requires that [it] make new stations and its designated key stations fully accessible to and usable by people with disabilities." [FN276] The transit agency's decision to close a station did not breach the latter requirement, because "the station closing affects all potential users, not merely disabled users." [FN277]
*1073 The Hassan court could simply have stated that because the station at issue was not a new facility or a "key station," [FN278] the ADA was irrelevant. Instead, the Hassan court apparently went out of its way to point out that a transit system has a right to terminate service as long as it harms disabled and nondisabled transit users equally--a ruling that would seem to apply to buses and key stations, as well as to non-key stations.
The Hassan court's view is not unique: another district court has noted that "the ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN279] Similarly, the DOT has noted that "the ADA does not attempt to meet all the transportation needs of individuals with disabilities . . . the ADA is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad or mediocre." [FN280]
This view is not directly foreclosed by the text of the ADA, which appears to focus on equal treatment between disabled and non-disabled transit users. For example, the ADA provides that if a government chooses to finance public transit, transit vehicles must be made accessible to the disabled, [FN281] and paratransit service must be "comparable to the level of designated public transportation services provided to individuals without disabilities." [FN282] But as the Hassan court pointed out, the ADA does not explicitly require state and local governments to provide transit service to anyone, nor does it state how much transit service to provide to individuals without disabilities. Thus, a local government can, under Hassan, comply with the ADA by eliminating public transportation entirely--hardly a result consistent with the ADA's goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society . . . [by ensuring that] this country can continue to make progress in providing much needed transit services for individuals with disabilities." [FN283] Obviously, the ADA's purpose is not satisfied when transit service is reduced rather than increased.
*1074 If politically powerful majorities used public transit, the majority could not reduce transportation to the disabled without reducing transportation for itself. But in reality, transit users are a disorganized, dispossessed minority. Transit riders are disproportionately poor, [FN284] and have no lobby that makes political contributions (unlike auto- and highway-related interests). [FN285] Not surprisingly, politicians use public transit as a whipping boy whenever money is scarce: federal highway grants to state and local governments increased by 150% between 1980 and 1999, [FN286] while public transit grants nosedived in real terms, increasing by only 27% while the cost of living nearly doubled. [FN287] And over the long term, as noted above, transit-dependent Americans have fewer opportunities than they once did because of the movement of jobs to transit-free suburbia. [FN288]
So by limiting transit service to the disabled to the same level as transit service to everyone else, the Hassan court essentially interpreted the ADA to mean that one group of second-class citizens (the disabled) is equal to another group of second-class citizens (other transit-dependent Americans)--hardly a result consistent with the ADA's ideals. It follows that Hassan, although consistent with the ADA's text, is hardly consistent with its egalitarian goals.


(2) Service Slip-Ups
Most ADA claims, by contrast, have involved narrow issues and been decided upon narrow grounds. For example, in Midgett v. Tri-County Transportation District, [FN289] a wheelchair user contended that *1075 "he would like to travel to work by bus, but because of [a local transit agency's] alleged failure to adequately train its bus operators and failure to maintain the wheelchair lifts" [FN290] his mobility was impeded in violation of the ADA. On one cold morning, a bus stopped for plaintiff but the bus's wheelchair lift was inoperable due to cold weather. [FN291] That very same day, plaintiff was unable to board two other buses due to similar maintenance problems. [FN292] Plaintiff accordingly sought a preliminary injunction requiring "a laundry list of augmented practices" [FN293] including, inter alia, improved data collection, improved bus driver training, a media outreach program to increase awareness among bus riders of lift access and complaint procedures, a backup system to ensure against lift failure in cold weather, a dedicated customer service line for lift users, and revised scheduling procedures to allow sufficient time for inspections. [FN294]
The court refused plaintiff's request for injunctive relief, for two reasons. First, the court found that "the desired corrective action has already been taken." [FN295] For example, the transit agency's maintenance department had recently begun using a new hydraulic fluid that enabled its wheelchair lifts to operate more consistently in cold weather. [FN296] Second, although "plaintiff points to occasional lift problems he and other wheelchair passengers have encountered, when viewed in the larger context of [[the] entire fixed-route system . . . the occasional lift problems do not violate the ADA or its implementing regulations." [FN297]
Thus, Midgett holds that occasional inaccessibility problems, as opposed to a pattern of incompetence, do not violate the ADA if a transit agency has taken steps to eliminate the problem; it is not clear from Midgett whether plaintiff's problems with wheelchair lifts would have been actionable had the transit authority did nothing. As a practical matter, Midgett suggests that the courts will not meddle in a *1076 transit system's management merely because service breaks down occasionally.
But other cases, such as James v. Peter Pan Transit Management, Inc., [FN298] hold that service breakdowns may violate the ADA if they are sufficiently egregious. In James, a wheelchair-using plaintiff claimed that she had "experienced numerous problems with CAT Connector [a local demand-response system] due to inoperable CAT Connector wheelchair lifts and improperly trained CAT Connector drivers." [FN299] After describing plaintiff's complaint, the court enumerated nineteen separate examples of CAT Connector incompetence. [FN300]
The court denied defendants' [FN301] summary judgment motion because plaintiff had submitted evidence that the bus service had repeatedly failed to check wheelchair lifts to determine whether they were operable (which in turn caused lifts to become inoperable), failed to promptly repair vehicles with defective lifts, and did not train drivers to operate lifts. [FN302] Thus, a issue of fact requiring trial existed as to whether defendants "adequately maintained and repaired its CAT Connector wheelchair lifts and adequately trained its employees to operate the lifts." [FN303]
Similarly, Cupolo v. Bay Area Rapid Transit [FN304] granted a preliminary injunction requiring a transit agency to repair its elevators. The Cupolo plaintiffs, a class of individuals with mobility disabilities, alleged that they were repeatedly unable to use the elevators at a transit agency's key rail stations. For example, in one fourteen-month period there were 76 separate incidents in which passengers were trapped in elevators. [FN305] The court found that the transit agency's own documents indicated "widespread problems," [FN306] that the "much of the [agency's] maintenance work has been fairly cursory," [FN307] that the agency "has had difficulty obtaining replacement parts in a timely manner . . . [which] has exacerbated problems with *1077 repairing elevators speedily," [FN308] and that the agency's "inability to perform through preventive maintenance . . . has probably been a significant factor behind the problems encountered by class members." [FN309] In sum, the transit agency's problems constituted "a pattern of unreliable elevator service that cannot accurately be characterized as isolated or temporary interruptions." [FN310]
Because the ADA requires transit systems to make key rail stations accessible to disabled persons, and unreliable elevator service "resulted in the denial of access to [trains] to individuals with mobility disabilities," [FN311] the court found that plaintiffs had demonstrated a strong likelihood of success on their ADA claim. The court further found that the transit agency's plan to repair its elevators did not render the suit moot, because many of the elevators' problems had not been resolved. [FN312] The court accordingly granted a preliminary injunction requiring that the elevators in the transit agency's key stations be repaired. [FN313]
Despite their varying results, James and Cupolo are consistent with Midgett: the former cases hold that a transit agency violates the ADA through consistently inadequate service, while the latter case holds that isolated service problems do not violate that statute.


(3) Establishing Disability
In Hamlyn v. Rock Island County Metropolitan Mass Transit District, [FN314] the court made it clear that a person who is "disabled" for other ADA-related purposes is also "disabled" for purposes of the ADA's public transit provisions, and that all disabled persons are entitled to equal treatment regardless of the cause of their disability.
The Hamlyn plaintiff, who suffered from AIDS, sought to be included in a county program reducing bus fares for disabled *1078 passengers. [FN315] The program's application form, however, stated: "WHO DOES NOT QUALIFY: A. Applicants whose sole disability is . . . AIDS." [FN316] The court held that because AIDS is a disability under the ADA, [FN317] and the ADA bars discrimination by reason of disability, [FN318] the ADA's language barred the transit agency from excluding persons disabled by AIDS. [FN319] Thus, Hamlyn stands for the proposition that just as a transit agency cannot discriminate against the disabled generally, it also may not discriminate against persons with one particular type of disability--a result clearly supported by the ADA's provision that "no qualified individual with a disability shall, by reason of such disability . . . be subject to discrimination by any [public] entity." [FN320]
The case of Weinreich v. Los Angeles County Metropolitan Transit Authority [FN321] addressed a different eligibility issue: whether a plaintiff can be required to pay to prove his disability. Between 1982 and 1992, the Weinreich plaintiff participated in a transit agency's reduced fare program. [FN322] In 1992, the transit agency promulgated a rule requiring disabled participants to provide medical information recertifying that they are disabled. [FN323] In 1993, plaintiff sought an exemption from this rule on the ground that he could not afford to pay a doctor to recertify his condition. [FN324] The transit agency refused to grant an exemption, and refused to renew plaintiff's eligibility for the program. [FN325] Plaintiff then filed suit [FN326] under the ADA, asserting that the ADA mandated "reasonable modifications whenever a state imposes a requirement that prevents qualified disabled people from having 'meaningful access' to a state-provided benefit." [FN327] The court *1079 disagreed, holding that plaintiff's lack of access to the reduced fare program was based not upon his disability, but upon his failure to prove his disability (and in particular upon his poverty, which prevented him from proving disability). [FN328] In other words, the ADA bars discrimination due to disability, but does not bar transit systems from imposing fees that adversely affect the poorest among the disabled. This rule, although seemingly hard-hearted, seems consistent with the ADA. That statute apparently contemplates that transit authorities may on occasion charge fares unrelated to ability to pay; for example, DOT regulations authorize transit systems to charge more for paratransit than for conventional bus service. [FN329]


(4) Alterations of Facilities
Two separate ADA provisions provide that if a public transit or commuter rail agency alters its facilities, such alterations must, "to the maximum extent feasible . . . [be] readily accessible to and usable by individuals with disabilities." [FN330] The case of Molloy v. Metropolitan Transit Authority [FN331] applied this rule to a commuter railroad's attempt to automate ticket sales at a commuter rail station.
In Molloy, a group of individuals and organizations representing the interests of blind and visually impaired riders challenged the railroad's decision to remove ticket clerks from numerous commuter rail stations, and to substitute ticket vending machines at a majority of those stations. [FN332] Plaintiffs sought a preliminary injunction against the staff reduction plans, and the railroad argued in response that the ADA was inapplicable because no "alterations" to its facilities occurred. [FN333]
The court separately addressed the removal of the ticket clerks and the installation of the vending machines. As to the first issue, the court held that such staffing changes did not constitute "alterations" within the meaning of the ADA, for three reasons. First, the language of the ADA (which refers to "alterations" to stations or *1080 facilities) [FN334] inherently suggests a physical alteration to a structure rather than a change in personnel. [FN335] Second, DOT regulations interpreting the ADA support this view, because the regulations list numerous examples of "alterations," all of which involve physical changes to facilities rather than personnel changes. [FN336] Third, the ticket clerks only worked at the station until 1 PM. So if the removal of ticket clerks constitutes an "alteration," "every day at one o'clock the station [would be] altered in contravention of the statute" [FN337]--obviously an absurd result.
By contrast, the installation of ticket vending machines was clearly an "alteration" to the station, because it was a physical change that would require additional wiring and communications lines. [FN338] The railroad argued that the installation of the machines was not an alteration because the alterations, like such primitive changes as the installation of a bench, could be removed. The court disagreed, explaining: "[i]t is easy to imagine, however, how the installation of a bench in a station could block an otherwise wheelchair-accessible path, or otherwise render a station less accessible to the disabled." [FN339] The court nevertheless declined to grant an injunction because plaintiffs could purchase tickets through other means and would thus not be irreparably harmed by the installation of the machines. [FN340]
Molloy appears to be consistent with the ADA's language, in that it defines "alterations" to "facilities" as physical alterations rather than other changes affecting the quality of service. As the court pointed out, any other holding would have led to bizarre results.


(5) Paratransit
Cases under the paratransit provisions of the ADA have been decided upon the narrowest of grounds. In O'Connor v. Metro *1081 Ride, [FN341] a disabled couple sued a transit provider for personal injuries suffered after a paratransit driver left them at the end of a driveway instead of helping them into a friend's house. [FN342] The husband sought to push his wheelchair-using wife into the friend's doorway, but instead fell down the latter's stairs, causing both husband and wife to be injured. [FN343] Plaintiffs then sued the transit agency under, among other grounds, the ADA.
The transit system argued that the ADA did not require it to provide plaintiffs with door-to-door service, because the ADA and DOT regulations require only "origin-to-destination" service. [FN344] The court held that it did not need to define the scope of the term "origin-to-destination," reasoning: "[b]ecause Defendants incorporated door-through-door service in the paratransit plan they proposed to the Department of Transportation, they may be liable under the ADA." [FN345] This ruling was based upon Section 223(e)(4) of the ADA, which provides that the term "discrimination" includes the failure "to provide paratransit or other special transportation services in accordance with the plan or modified plan the public entity submitted to [DOT]." [FN346] In other words, a transit agency must follow the paratransit plan it submits to the DOT--even if that plan is more ambitious than the ADA would otherwise require. O'Connor appears to follow the plain meaning of the statute, and therefore should not be particularly controversial. [FN347]
State courts as well as federal courts have interpreted the ADA's paratransit provisions. In Sells v. New Jersey Transit Corp., [FN348] the court upheld a state transit agency's decision to deny paratransit services to a mentally retarded plaintiff. Plaintiff applied for paratransit service on two separate grounds.
*1082 First, plaintiff claimed that he was generally unable to use fixed-route transit. [FN349] But plaintiff himself testified at a hearing that he "was still sometimes using regular fixed route bus service." [FN350] Because the evidence showed that plaintiff rode ordinary buses, the court rejected his claim that he could not do so. [FN351]
Plaintiff also claimed that even if he was generally able to use fixed-route service, he was no longer able to safely walk from his residence to the nearest bus stop for the route he used to get to work, because the nearest bus stop was three miles away, and he could no longer cut through a field that he had previously been able to cut across. [FN352] The state agency disagreed, finding that plaintiff in fact lived only half a mile from the bus stop, and because (despite the absence of sidewalks on his route) there was a grass median that he could use. [FN353] The court affirmed without much discussion, stating that the state agency's findings "that the expressed dangers were less severe than originally described and that the actual distance was less than the original calculation . . . have ample support in the record." [FN354]
Sells stands for the proposition that a disabled person (other than one with a walking-related disability) is not entitled to paratransit merely because he cannot conveniently or pleasurably travel to a bus stop--for example, if he has to walk 1/2 mile on a street without sidewalks. Rather, the bus stop must be virtually impossible to reach. This view is probably consistent with the DOT's regulations, which provide that a person is ineligible for paratransit only when "a reasonable person with the impairment-related condition in question would be deterred from making the trip." [FN355] Nevertheless, Sells reduces the mobility of the ambulatory disabled, because unfavorable conditions such as the absence of sidewalks are likely to ensure that some individuals will walk to a bus stop only if absolutely necessary. [FN356]
The case of Pfister v. City of Madison [FN357] was far simpler. In Pfister, plaintiff appealed a city's denial of her application for paratransit service, on the ground that her impaired vision, mobility *1083 impairments and migraine headaches required her to use such service. The court agreed with the city's decision, based on "testimony from a paratransit driver that on several occasions [plaintiff] had asked to be dropped off at one location and would then make her way to her ultimate destination on her own, and that this involved traveling several blocks." [FN358] Such testimony established that plaintiff was capable of walking to a bus stop and thus did not need paratransit. [FN359]
The Pfister court's dictum may be more noteworthy than its holding. In response to the city's argument that many people with impairments similar to plaintiff's disabilities rode fixed-route buses, the court responded: "it is irrelevant what other riders do, since the question is whether [plaintiff] is prevented from traveling to a boarding location." [FN360] Thus, Pfister suggests that a plaintiff's eligibility for paratransit should be determined solely by reference to plaintiff's own capacities, as opposed to those of other persons with similar problems.


(6) Damages
In addition to addressing when injunctive relief is appropriate for minor service breakdowns, the Midgett court addressed the question of when damages were an appropriate remedy for violations of the ADA's public transit provisions. Specifically, that court held that "compensatory damages are not available under Title II of the ADA absent a showing of discriminatory intent or, at a minimum, deliberate indifference." [FN361] Because no evidence of discriminatory *1084 intent was presented in Midgett, the court granted summary judgment as to plaintiff's claim for compensatory damages.


III. The ADA: Inadequate or Counterproductive?

A. At Best Inadequate . . .
The purpose of the ADA is to provide mobility to the disabled. [FN362] But the ADA's requirements (at least under current case law) are inadequate to achieve this goal.
The ADA requires that most of the same buses and trains that are available to the general public be made accessible to the disabled as well. [FN363] And transit systems have to some extent met this narrow goal. [FN364] But the ADA does not state how much service must be provided either to the disabled or to the general public. As a result, courts have suggested that disabled transit users may receive minimal service as long as other riders are similarly immobilized. For example, the Midgett court wrote that "the ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN365] Similarly, the Hassan court wrote that the ADA does not prohibit major reductions in service (such as the closing of a train station) as long as the cutback "affects all potential users, not merely disabled users." [FN366]
It logically follows that a government may meet its obligations under the ADA by reducing rather than increasing transit service. For example, suppose county X does not want to go to the expense of providing transit service to the disabled. It can comply with the ADA and cut costs by refusing to provide transit service for anyone, as *1085 many municipalities have in fact done. [FN367] For example, in Tulsa, Oklahoma, the city council voted first to eliminate, and later to drastically limit, a bus route from suburban Sand Springs to downtown Tulsa because paratransit for Sand Springs would have cost at least two and a half times the cost of fixed-route service. [FN368]
Such policies are by no means politically impossible or even infrequent. Transit-dependent Americans are a small minority of the electorate, [FN369] are disproportionately low-income, [FN370] and, unlike highway users, are supported by no significant lobby that can make campaign contributions to candidates. [FN371] As a result, transit has had far less political support than automobiles and highways. While highway spending has dramatically increased over time no matter how tight the fiscal constraints affecting the rest of government, [FN372] transit spending has gone up and down depending on the strength of federal, state and municipal finances. For example, governmental support for public transit operating expenses [FN373] actually decreased by about 20% in real terms between 1990 (the year of the ADA's enactment) [FN374] and 1996. [FN375]
The ADA apparently does not require that disabled transit users be made equal to the auto-using majority: instead, it requires only *1086 that they be made equal to other transit-dependent Americans, [FN376] who in most of small-town and suburban America are also second-class citizens. [FN377] If the federal government had followed similar principles when it enacted civil rights laws addressing racial discrimination, [FN378] it would have required that African-Americans be treated identically to other then-despised minorities (for example, homosexuals) rather than being treated identically to the white majority--obviously an absurd result. A policy that would be absurd when applied to African-Americans has been unsuccessful when applied to disabled Americans: some studies suggest that disabled Americans are as poor today as they were in 1990. [FN379]

B. Or Counterproductive?
If the ADA had merely allowed transit systems to eliminate bus routes or avoid creating service where none existed, it would have been at worst harmless. But in practice, the ADA actually gives transit systems an incentive to reduce transit service for everyone. [FN380]
As noted above, in the late 1990s the ADA cost transit authorities about $1.4 billion a year [FN381]--more than 1/3 of all federal *1087 transit subsidies for some years. [FN382] But the federal government did not help state and local governments pay the cost of the ADA's mandates; instead, the federal government actually reduced transit spending while it was dumping the costs of transporting the disabled upon state and local transit systems. Between 1990 and 1996, the federal government increased total transit spending by less than the rate of inflation, [FN383] and reduced operating subsidies by over 40%. [FN384]
By both reducing subsidies and imposing the ADA's costs on transit agencies, the federal government took a huge bite out of transit agencies' revenues. If $1.4 billion in ADA costs [FN385] are subtracted from the total of federal transit grants, federal support for transit was cut nearly in half, after adjusting spending totals for inflation, between 1990 and 1999. [FN386]
And because federal spending cuts were targeted to operating subsidies [FN387] (which disproportionately fund small-city, bus-only transit [FN388] systems used primarily by the poor and the disabled) [FN389] as *1088 opposed to capital spending (which primarily funds rail projects in a few big cities), [FN390] those cutbacks disproportionately affected the transit-dependent poor and disabled.
Not surprisingly, most transit agencies raised fares and cut service during the early and mid-1990s. In late 1995 and early 1996 alone, half of all American transit agencies raised fares, cut back service, and laid off workers due to reductions in federal operating assistance. [FN391]
But transit service would have been reduced even if the federal government had not reduced assistance to transit systems, because the ADA essentially pitted disabled riders against other passengers. In May 1995 (six months before the harshest federal budget cuts were enacted), [FN392] a survey by the American Public Transit Association (a transit system trade association) [FN393] revealed that 31% of transit systems had reduced service, increased fares, or laid off employees to meet the costs of ADA compliance, and 29% were considering doing so. [FN394] For example, in 1997 suburban Chicago's bus system, Pace, increased paratransit services, but financed the increase by eliminating eight bus routes and increasing paratransit fares by one-third. [FN395]
Other transit agencies eliminated or reduced fixed-route bus service in order to avoid spending money on comparable paratransit service. For example, Henrico County, Virginia reduced evening bus service after the ADA was enacted, because it was not willing to *1089 spend $500,000 to provide evening service to paratransit users. [FN396] In such a situation, everybody loses: paratransit users get no more service, and fixed-route riders get less.
If no disabled persons had been able to use public transit before the ADA's enactment, it could be argued that the ADA benefited the disabled by shifting resources from nondisabled transit users to disabled transit users. But this was not the case. In fact, many disabled Americans have always been able to use buses and trains that do not fully comply with ADA standards: for example, blind Americans could generally use fixed-route buses before the ADA was enacted. [FN397] By and large, the ADA's reforms were targeted towards paratransit users [FN398] (who constitute a small minority of disabled nondrivers) [FN399] and wheelchair users. [FN400] Thus, the ADA, by reducing service to the citizenry as a whole, actually reduced service to those disabled persons who used public transit before its enactment (that is, disabled persons other than wheelchair users).
Indeed, even paratransit users sometimes suffer from the ADA, in two ways. First, as noted above, the ADA as written gives transit systems a financial incentive to eliminate bus routes for everyone in order to reduce its obligations to paratransit users. A transit system need only provide paratransit service to persons living within 3/4 of a mile of a bus or rail stop [FN401]--so if the system eliminates a bus route, it also eliminates its obligation to serve disabled persons living near that route. [FN402] In fact, some transit systems have eliminated bus routes for *1090 that very purpose. [FN403] Second, transit systems have been forced to eliminate paratransit service for persons living outside the 3/4 mile limit in order to finance other ADA requirements. For example, in Lafayette, Indiana, the local bus system limited paratransit service to persons living within the 3/4 mile limit in order to finance service for persons living within that territorial limit. [FN404]
The ADA's purpose was to increase transit service for the disabled - but in fact the ADA has, by reducing transit agencies' revenues, sometimes reduced transit service for the disabled.


IV. Solutions
The ADA, as interpreted by the courts, is fatally flawed because instead of requiring that the disabled be given comparable transportation to the auto-using majority, it requires only that the disabled be given as much transportation as other transit-dependent Americans [FN405]--which is to say, not much. [FN406] This means that where, as in most of America, transit-dependent Americans are an impoverished minority, the transit-dependent disabled, too, are an impoverished minority. It follows that if the disabled are to achieve anything resembling equality of transportation opportunities, the disabled must be given opportunities equal to those given to drivers. This Part proposes a variety of transportation-related [FN407] reforms that, if enacted, will move the disabled toward such equality.

*1091 A. No More Cutbacks
In Hassan, the court gave local governments free rein to cut transit service without reducing services for drivers or violating the ADA. [FN408] As a result, the ADA may sometimes actually decrease the mobility of the disabled, by giving local governments an incentive to reduce all transit service in order to finance ADA-mandated spending [FN409] or to avoid spending money on comparable paratransit services for the most severely disabled. [FN410] Such attacks upon public transit may technically comply with the ADA, but nevertheless are destructive of the ADA's goal of making the disabled more independent and employable. [FN411]
The logical solution to this gap in the ADA is to overrule Hassan (either legislatively or judicially), [FN412] by prohibiting local governments from reducing transit service or maintenance [FN413] in any way, or from raising fares without raising drivers' costs in a similar manner (e.g., by raising fuel taxes by the same amount as transit fares were raised). *1092 Or to preserve governmental flexibility and avoid a direct conflict with Hassan, a legislature or court could allow transit cutbacks only if government reduced comparable services for drivers--for example, by closing one road for every bus route eliminated, or by reducing road funding by the same percentage as transit funding was reduced. Because local governments would presumably be unwilling to close roads [FN414] or otherwise inconvenience drivers except during the gravest fiscal crises, this statute would effectively bar the elimination of bus routes.
A "no cutbacks" law would not only prevent reductions in service, but also protect the settled expectations of the disabled and other transit-dependent individuals: they could establish homes and businesses near bus routes, and be secure in the knowledge that government could not make their investments worthless by reducing service. By contrast, today anyone who relies upon the existence of public transportation services does so at his or her peril. [FN415] Moreover, a "no cutbacks" law would be cheaper than mandating massive increases in service, because it would require only that local governments maintain existing levels of service.
It could be argued that a "no cutbacks" law would impair the ability of governments to respond to fiscal crises. This argument lacks merit, for two reasons. First, public transit spending comprises only 2% of state and local government spending. [FN416] Second, government has grown so consistently over time [FN417] that spending reductions are unlikely to be truly necessary under any circumstances short of an emergency that could require cutbacks in highway service (e.g., reductions in highway maintenance spending) as well as transit service. Thus, a "no cutbacks" statute would merely prevent public *1093 transit from being singled out for budget cuts rather than giving transit a privileged position.
It could also be argued that a "no cutbacks" statute would prevent transit systems from eliminating "inefficient" routes with low ridership. This argument is essentially a variant of the common anti-transit argument that public transit does not "pay for itself" [FN418]--an argument that proves too much. Few if any government services pay for themselves in the sense of being paid for by users: for example, no trust fund supports food stamps or other social welfare programs, and highway spending is supported partially by general revenues. [FN419] So a policy based solely on such a narrow definition of "efficiency" narrowly defined would require the elimination of most government services.
Admittedly, a "no cutbacks" law would not require actual expansion of public transit, nor would it narrow the gap between the transit-dependent disabled and auto users - but at least it would prevent local government from widening that gap.

B. No Roads Without Transit
State and local governments do not reduce transit service solely by eliminating bus routes or reducing hours of service: they also reduce opportunities for the transit-dependent by the more politically popular [FN420] technique of building and widening roads. As noted above, [FN421] suburban road expansions often reduce opportunities for transit-dependent individuals (including the transit-dependent disabled) by encouraging individuals and their employers to move to areas with little or no public transit.
*1094 The only way to prevent such "stealth cutbacks" is a "No Roads Without Transit" (NRWT) law that would condition all road expansions in metropolitan areas upon transit improvements to commercial areas served by (and thus likely to develop because of) [FN422] road improvements.
Specifically, a state or federal law could provide that any new or widened roads be accompanied by significant transit service to the road itself (if the road was a commercial street accessible to pedestrians) or to commercial streets near highway exits (if the road was a limited-access highway). [FN423]
The major advantage of NRWT is that it would not increase government spending by one cent: if governments did not want to spend money on transit, they would not have to spend money on roads. Indeed, drivers might be better off, because if local governments were unwilling to throw money either at roads or at transit, they might reduce transportation spending and reduce the gasoline taxes that traditionally finance a large portion of such spending. [FN424] NRWT merely applies the principles of the ADA to highway spending: just as the ADA apparently gives local governments the choice between providing public transit to the disabled and providing public transit to no one, [FN425] NRWT would give local governments the choice between improving transportation for the transit-dependent (including the transit-dependent disabled) and improving transportation for no one.

C. More Radical Remedies
A "no cutbacks" law, together with a NRWT law, would prevent governments from using transportation policy to widen the gap between the transit-dependent disabled and drivers. But neither proposal would remove or even narrow inequities caused by past policies. To remedy the harm caused by the policies of the past century, government would actually have to improve transit service *1095 rather than merely refusing to further degrade public transit. Ideally, state and local governments would be required to make most or all jobs transit-accessible.
Such a "universal transit access" law would, despite its cost, merely extend existing ADA principles. The ADA as written already provides that no covered employer (that is, employer with over 15 employees) [FN426] may discriminate against the disabled, [FN427] and that a qualified individual is one who "with or without reasonable accommodation, can perform the essential functions of the employment position." [FN428] Thus, employers have a duty to "reasonably accommodate" disabled employees under the ADA [FN429] unless such an accommodation would create "undue hardship." [FN430] For example, an employer in an area with no evening bus service might be required to allow a disabled employee to work an earlier shift so that the employee could finish work in time to use a bus [FN431]--but only if such an accommodation would be "reasonable" enough not to create "undue hardship." This principle could be extended to require that employers fail to reasonably accommodate disabled employees as a class if they locate in areas without public transit. Because mandatory relocation would arguably constitute "undue hardship" such a requirement should not be imposed by judicial fiat.
Instead, a "universal transit access" law could require that every urban or suburban [FN432] employer covered by the ADA (that is, every employer employing 15 persons or more) [FN433] be reachable by regular bus or train service. For example, the statute could provide: "All employers which are located within a metropolitan area and which employ over 15 persons must be accessible by fixed-route transit *1096 service. Such service must run at least once an hour until after the closing of the employer's business." This statute arguably would not require a significant number of employers to relocate, because many suburban governments might, in order to receive sales and property tax revenue from employers, be willing to invest in bus service in order to retain suburban employers. [FN434]
Such a statute would benefit millions of people: a 1998 Harris survey revealed that 30% of disabled Americans surveyed (and 17% of nondisabled individuals) [FN435] identified inadequate transportation as a problem. Admittedly, a "universal transit access" statute would by no means grant the transit-dependent disabled full equality with drivers, because some individuals would no doubt have to take multiple buses (that is, take bus A, then transfer to bus B to reach suburban employer C) to reach suburban employers. But at least the disabled would be entitled to something they now lack: a guaranteed minimal level of transit service to suburban employers.
The most persuasive objection to such a proposal would be cost--and certainly the costs of such a bold proposal would require further study. However, there is some reason to believe that state and local governments could afford to comply with a universal transit access statute. According to a researcher at the American Public Transit Association, hourly bus service to every employer with over 15 employees would cost only $1 billion [FN436]--less than 1% of total government transportation spending [FN437] and less than 0.1% of all state *1097 and local government spending. [FN438] It follows that even if bus service was required every quarter hour, the total cost might be as low as $4 billion--less than 4% of total government transportation spending [FN439] and less than 0.4% of total state and local government spending. [FN440] If these estimates are correct (admittedly a huge if) the costs of universal transit access would certainly be low enough to justify a universal transit access law. Alternatively, if universal transit access risked imposing heavy costs on existing employers or on local governments, a state or federal government could grandfather existing businesses by requiring only that new businesses be transit-accessible.
It could also be argued that an employer's duty to accommodate individual disabled employees (for example, by allowing them to finish work before bus service stops running) would render universal transit access unnecessary. [FN441] This argument is meritless for two reasons. First, some employers have no offices served by any public transportation, and thus could not reasonably accommodate transit-dependent employees. Second, disabled job applicants might be unable to avail themselves of such a reasonable accommodation, either because of ignorance of their legal rights or inability to even reach a workplace for a job interview.

D. Paratransit Only: A Reform That Won't Work
It could be argued that the reforms above are unnecessary, because an expanded paratransit system alone could handle the needs of the disabled. The logic behind this argument is that traditional fixed-route systems waste billions on mostly-empty buses rather than targeting service to the disabled who need transit the most. [FN442]
This argument lacks merit for three reasons. First, paratransit is arguably even less cost-effective than fixed-route service. [FN443] Nearly *1098 80% of disabled persons who use public transportation rely on fixed-route buses rather than paratransit, [FN444] less than 5% of all transit-dependent disabled individuals are physically incapable of using fixed-route service, [FN445] and less than 2% of all transit trips involve any form of demand-response transportation (including but not limited to paratransit). [FN446] Yet paratransit engulfs about 3/4 of all ADA-related spending. [FN447]
Second, paratransit, despite its high cost, need not serve all disabled Americans under existing law: as noted above, the ADA requires local governments to finance paratransit service not for all disabled Americans, but only for riders who, for one reason or another, are unable to use fixed-route transit to reach their destinations. [FN448] Moreover, paratransit users are subject to a variety of other limitations that make paratransit less effective than fixed-route service. For example:
* Paratransit users often must make reservations 24 hours in advance to use paratransit, [FN449] instead of receiving service on demand. As the House Education and Labor Committee found at the time of the ADA's enactment, this limitation "often conflicts with one's work schedule or interests in going out to restaurants and the like." [FN450] Because the demand for service exceeds the amount of service *1099 available, there is often a waiting list for paratransit service; moreover, rides are often delayed. [FN451]
* DOT regulations require only that reservation service must be available only during normal business hours (as opposed to evenings and weekends). [FN452] So a rider cannot schedule a ride if he learns of his needs the evening before a possible trip.
* Just as paratransit is more expensive for state and local governments, it is also more expensive to riders: under DOT regulations, paratransit fares may be twice the fixed-route fare for a comparable ride. [FN453]
* Reductions in fixed-route service might lead to reductions in paratransit service, because under current law paratransit need not serve anyone who lives more than 3/4 mile from a bus or train stop. [FN454]
* Paratransit service need not cross jurisdictional boundaries even for persons living within 3/4 mile of a bus stop. [FN455]
To be sure, all of these problems could be solved by changes in the law: transit systems could be required to serve paratransit users on demand no matter where they lived, and all disabled Americans could be made eligible for paratransit service. But such innovations would cause the cost of paratransit to balloon--and some of the same commentators who now complain about the alleged cost and inefficiency of fixed-route service would no doubt complain about the cost and inefficiency of paratransit service. Finally, fixed-route service has advantages that paratransit lacks. Because the general public uses fixed-route buses and trains, such service not only aids the disabled, but aids other public goals, such as the public interest in helping the carless poor reach jobs, [FN456] the public interest in reducing *1100 traffic congestion by taking cars off the road, [FN457] and the public interest in reducing auto-induced air pollution. [FN458] So even if fixed-route buses are more expensive than paratransit, they also create benefits that paratransit service targeted to the disabled does not create.
In sum, a paratransit-only strategy is no substitute for expanded fixed-route service--both because the limited paratransit service required by the ADA does not serve the disabled as effectively as fixed-route service, and because the paratransit expansion necessary to make paratransit a worthy substitute for fixed-route service might be just as expensive and less socially useful than existing fixed-route service.


Conclusion
For nearly a century, government at all levels has, through a variety of policies, immobilized transit-dependent Americans (including many disabled Americans). The ADA attempted to remedy this wrong by requiring that the disabled receive as much public transportation as anyone else--a solution that has proven to be unworkable because thanks to the anti-transit policies of the past, many jobs and other opportunities are now inaccessible by public transit. It follows that if America wishes to give the disabled full mobility, it must make the disabled equal not only to other transit users but to drivers, by prohibiting government from expanding highway service without expanding transit service, by prohibiting further cutbacks in transit service, and by increasing transit service to existing job sites.

[FNa1]. Associate Professor, John Marshall Law School. Formerly a law clerk to Judges Morris Arnold (W.D. Ark., more recently 8th Cir.) and Theodore McMillian (8th Cir.) and Visiting Assistant Professor, University of Miami School of Law. I would like to thank Adam Milani, Jeffrey Van Detta, and David Oedel for their helpful comments. Any errors of fact or logic, of course, are mine alone.

[FN1]. Leviticus 19:14.

[FN2]. According to the Federal Transit Administration, 24 million disabled Americans are dependent on public transit. See William W. Millar, Testimony of the American Public Transit Association Before the Labor, Health & Human Servs., Educ. & Related Agencies Subcomm. of the House Appropriations Comm., Feb. 5, 1998, available at 1998 WL 8991781. Disabled Americans are by no means the only transit-dependent Americans. Most of the very poor cannot afford cars, 62 million Americans are too young to drive, and 5.4 million elderly Americans do not drive. See Anne Simmons, A Ride to Work: TEA-21 and PRWDRA, 18 Law & Ineq. 243, 260 (2000) (94% of welfare recipients do not own automobiles); U.S. Dep't of Commerce, Bureau of the Census, Statistical Abstract of the United States 1999 at 22 (119th ed. 1999) (62 million Americans under age 16) (hereinafter 1999 Abstract); Charles T. Dubin, American Association of Retired Persons Public Policy Statements on the Americans with Disabilities Act, Fed. Law., Mar./Apr. 1997, at 28, 29 (5.4 million seniors do not drive). Cf. Robert L. Mullen, The Americans with Disabilities Act: An Introduction for Lawyers and Judges, 29 Land & Water L. Rev. 175, 180 (1994) (noting likely explosion of elderly population over next few decades).

[FN3]. See Nancy Lawler Dickhute, Jury Duty for the Blind in a Time of Reasonable Accommodations: The ADA's Interface with a Litigant's Right to a Fair Trial, 32 Creighton L. Rev. 849, 881 n.4 (1999) (1.1 million Americans legally blind).

[FN4]. Id.

[FN5]. This figure is based on Millar's estimate that 24 million disabled Americans are transit-dependent, supra note 2, and Dickhute's statement that just over 4 million Americans are blind or severely visually impaired, see Dickhute, supra note 3, at 881 n.4.

[FN6]. See infra notes 86-102, 123-63 and accompanying text (describing government policies that favored suburban growth).

[FN7]. See infra notes 24-54 and accompanying text (describing second-class status of transit-dependent Americans).

[FN8]. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. ?? 12001-12213).

[FN9]. See, e.g., 42 U.S.C. ? 12132 (no disabled person may be excluded from public services); 42 U.S.C. ? 12142 (public transit systems may not purchase or lease a new bus unless it is readily accessible to individuals with disabilities, including individuals who use wheelchairs); 42 U.S.C. ? 12143 (such agencies must provide on-demand "paratransit" service to disabled persons unable to use traditional public transit). See generally Bonnie P. Tucker, The Americans with Disabilities Act: An Overview, 1989 U. Ill. L. Rev. 923, 931-32 (briefly summarizing ADA provisions most relevant to public transit).

[FN10]. H.R. Rep. No. 101-485, pt. I (1990), reprinted in 1990 U.S.C.C.A.N. 267, 268.

[FN11]. See Millar, supra note 2; Brigid Hynes-Cherin, Testimony of the American Public Transit Association, Before the Subcomm. on Surface Transp. of the House Comm. on Transp. & Infrastructure, Sept. 26, 1996, available at 1996 WL 10831544 (pointing out that the ADA "is being implemented at the same time that federal financial support is declining" and explaining that "ADA costs to transit operators will exceed $1.4 billion annually... more than twice the $400 million annual amount of transit operating assistance since FY 1996"); Brian Doherty, Disabilities Act: Source of Unreasonable Accommodations, San Diego Union-Trib., July 16, 1995, at G1 ("The American Public Transit Association claims $1.1 billion per year just for the paratransit provisions of the ADA."). While the federal government was raising transit systems' costs, it was also reducing grants to transit systems; as a result, ADA costs canceled out over 1/3 of federal grants to state and local transit systems during the late 1990s. See American Public Transit Association, Transit Fact Book 52 (1998) (federal support for transit operating expenses decreased by over 40% between 1990 and 1996, and local support decreased by over 20%); Hynes-Cherin, supra (ADA cost transit operators $1.4 billion per year); 1999 Abstract, supra note 2, at 314 (federal government granted state and local governments $3.9 billion for mass transit in fiscal year 1999, down from $4.3 billion in fiscal year 1995).

[FN12]. See James Rana, Trying to Keep Transit's Head Above Water, Providence J.-Bull., Nov. 24, 1996, at 11 (Providence, Rhode Island bus agency reduced service because "like every other transit agency in the nation, [it] had been hurt by reductions in federal operating assistance.... At the same time... Uncle Sam is demanding cleaner-running buses and more service to handicapped riders."); Jerry Crimmins, Pace Expands Van Pool, Service to Disabled, Chi. Trib., Nov. 18, 1996, at 1 (Chicago suburban bus company reduced overall bus service in order to increase spending on special vans for disabled.); Associated Press, Transit Cuts "Too Much"--So Say Local Officials Who'll Protest in Washington, Wis. St. J., Feb. 24, 1996, at 3B (Municipal transit officials urged federal government to modify ADA because "federal mass transit cuts, costly regulations, and unfunded mandates are forcing cities across Wisconsin to reduce service.").

[FN13]. For example, 35% of all buses were accessible to the disabled before the ADA was enacted, and most visually impaired riders were able to use public transit before the passage of the ADA. See H.R. Rep. No. 101-485, pt. I, at 24; Jennifer Orsi, Bus System Catches Protests From Blind Passengers, St. Petersburg Times, Nov. 18, 1989, at 1 ("No one depends on public transportation more than the blind" according to president of Tampa Bay chapter of National Federation for the Blind.).

[FN14]. Midgett v. Tri-County Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999).

[FN15]. See supra note 12 (describing nationwide mid-1990s cutbacks in transit service, caused by ADA costs and reductions in federal aid to transit providers); Hassan v. Slater, 41 F. Supp. 2d 343, 351 (E.D.N.Y.), aff'd, 199 F.3d 1322 (2d Cir. 1999) (allowing closure of commuter train station because, inter alia, "[i]t does not appear that the ADA requires the MTA defendants to keep all of its stations open").

[FN16]. See 1999 Abstract, supra note 2, at 314 (highway spending increased between fiscal years 1995 and 1999, while federal aid to transit decreased).

[FN17]. See Sharon Rennert, All Aboard: Accessible Public Transportation for Disabled Persons, 63 N.Y.U. L. Rev. 360, 360 (1988) ("Over the past twenty years, society has begun to confront and remove many of the physical and attitudinal barriers that have segregated disabled people.").

[FN18]. Id. (To increase the mobility of the disabled, "our communities have begun to adapt their landscapes by adding curb cuts, ramps, wider doorways, and braille signs.").

[FN19]. Excepting the 1.4 million persons so severely disabled that they are unable to use a regular bus or rail system. Id. at 399.

[FN20]. See Millar, supra note 2 (24 million figure given).

[FN21]. See Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 189 (1985).

[FN22]. See Lowell Cohn, 'Stick Made Chilly First Impression, Press Democrat, June 7, 1999 ("You really don't need a car in New York City."); James Taylor et al., Car-Free in Boston: The Guide To Public Transit in Greater Boston and New England (2000).

[FN23]. See, e.g., infra notes 37-47 (describing virtually nonexistent public transit in Macon, Ga.)

[FN24]. See Miller v. Anckaitis, 436 F.2d 115, 120 (3d Cir. 1970) ("For the urban poor, in particular, remoteness from the thriving suburban segment of the industrial economy and a deteriorating public transportation system often make use of an automobile the only practical alternative to welfare."); People v. Coutard, 454 N.Y.S. 2d 639, 642 (Dist. Ct. 1982) ("In a suburban county such as ours, the use of an automobile by most of its citizens is often as necessary as placing bread upon their tables."); Cent. Towers Co. v. Borough of Fort Lee, 390 A.2d 677, 680 (N.J. Super. Ct. 1978) ("Automobiles are a necessity and not a luxury in the suburbs where mass transit facilities are not as readily available to residents as they are to city dwellers"); John Norquist, The Wealth of Cities 172 (1998) ("As in the rest of the advanced industrial world, driving a car in Canadian cities is a travel choice, not a necessity. Only the U.S. government denies this choice to its citizens."); Charles Belfoure, Neighborhood Profile: Woodlawn, Balt. Sun, Feb. 7, 1999, at 1M ("[T]he suburban sprawl that started after World War II forced Americans to go everywhere by car.").

[FN25]. See Anne Gearan, Clinton to Loosen Car Restriction for Food Stamp Recipients, Charleston Gazette & Daily Mail, Feb. 24, 2000, at P7A.

[FN26]. See Paul M. Weyrich & William S. Lind, Does Transit Work? A Conservative Reappraisal, at http://www.apta.com/info/online/weyrich2new.htm (last visited July 7, 1999) (citing survey). These statistics may actually overestimate Americans' access to public transit, because some Americans whose public transit is in some sense "satisfactory" may not be able to use it to reach key destinations such as their jobs--for example, "reverse commuters" who live in transit-friendly cities but work in auto-dependent suburbs.

[FN27]. See Gearan, supra note 25 ("[E]ven in metropolitan areas with extensive transit systems, fewer than half the entry-level jobs are accessible by that means.").

[FN28]. See Conservation Law Foundation, City Routes, City Rights 20 (1998) [[hereinafter City Routes].

[FN29]. Id.

[FN30]. Id.

[FN31]. See Marcia Myers, Jobs out of Reach for the Carless, Balt. Sun, Nov. 16, 1999, at 10.

[FN32]. See Stacy Shelton, Transit Chief Faces Hurdles in Gwinnett, Atlanta J. & Const., Feb. 11, 2000, at C1 (noting that Gwinnett is nation's largest county without public transit).

[FN33]. For example, my parents live within the city of Atlanta about 10 miles from downtown Atlanta, but (except for a "maid bus" that comes from downtown once in the morning and returns downtown in the afternoon), they have no bus service. See Michael E. Lewyn, Are Spread out Cities Really Safer? (Or, Is Atlanta Safer Than New York?), 41 Cleve. St. L. Rev. 279, 295 n.63 (1993); MARTA Web Site, at http://www.itsmarta.com/riding/busroutes/bus_ sch.htm (last visited Feb. 17, 2000) (listing buses 701-17, a group of once-a-day "maid buses").

[FN34]. See F. Kaid Benfield et al., Once There Were Greenfields 125 (1999).

[FN35]. Jerome Thompson, Public Transit: Can You Get Around, Atlanta J. & Const., July 10, 2000, at G3.

[FN36]. See 1999 Abstract, supra note 2, at 48.

[FN37]. See U.S. Dep't of Commerce, Bureau of the Census, 1990 Census of Population and Housing, Population and Housing Characteristics for Census Tracts and Block Numbering Areas: Macon-Warner Robins, GA MSA at 177 (1993). Cf. Alewine v. City Council, 699 F.2d 1060, 1069 (11th Cir. 1983) ("[A] small percentage of Macon's population require [sic] public transit....").

[FN38]. See David G. Oedel, The Legacy of Jim Crow in Macon, Georgia, in Just Transportation 97, 102 (Robert D. Bullard & Glenn S. Johnson, eds., 1997).

[FN39]. Id.

[FN40]. Id. at 103.

[FN41]. Id.

[FN42]. Id.

[FN43]. Id.

[FN44]. Id.

[FN45]. Id.

[FN46]. Id.

[FN47]. Id. at 100 ("In theory, Macon's extensive road network may be used (or at least indirectly enjoyed) by the entire population. In fact, however, the roads operate as instruments of isolation for many residents without cars, [by] facilitating white flight to the periphery [of the area]."). See also Alex Wayne, City Tries To Make Jobs Reachable, Greensboro News & Rec., July 25, 1999, at B1 (7 of High Point, North Carolina's 20 largest employers located along North Carolina Highway 68, which is not served by public transportation; Chamber of Commerce official describes absence of transit as "a prime reason that women are not able to work" based on survey showing that 75% of area public housing residents viewed transportation as barrier to employment); infra notes 84-102 and accompanying text (discussing impact of highways upon suburban development).

[FN48]. See H.R. Rep. No. 101-485, pt. II, at 32 (1990).

[FN49]. Id. A more recent Harris poll survey for the National Organization on Disability found that among people of working age (ages 18-64) only 32% of disabled persons held full- or part-time jobs, compared to 81% of those without disabilities. See Survey Program on Participation and Attitudes, available at http://www.nod.org/hs2000.html#execsum [hereinafter Survey Program]. See also William Neikirk, Clinton Orders U.S. Agencies to Hire More Disabled People, Chi. Trib., July 27, 2000, at 16 (reporting testimony by Department of Justice official that of the 30 million adults with significant disabilities, 75% are unemployed or underemployed).

[FN50]. See Murray Weidenbaum, Why the Disabilities Act Is Missing Its Mark, Christian Sci. Monitor, Jan. 16, 1997, at 19 ("One survey reported that the portion of men with disabilities who are working dropped from 33 percent in 1991 to 31 percent in 1995. Using a different definition of disability, another study showed no change."); Liz Spayd, Poll Finds Harsh Life for Disabled, Wash. Post, July 22, 1994, at A21 (Harris poll revealed that "jobless levels for the disabled... show virtually no improvement over those revealed in a Harris poll conducted eight years ago."); Pat Lee, Fence Post, Chi. Daily Herald, Aug. 29, 1998, at 10 (1998 Harris poll revealed that "29 percent of those with disabilities reported being employed full or part time. This rate is down 5 percentage points from the 1986 Harris poll in spite of the passage of the Americans with Disabilities Act in 1990.").

[FN51]. See Weidenbaum, supra note 50 (blaming unemployment among the disabled on overly generous government disability payments that discourage labor force participation); Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants?, 34 Harv. C.R.-C.L. L. Rev. 99 (1999) (suggesting that courts interpreting ADA have narrowed its scope by favoring defendants).

[FN52]. See H.R. Rep. No. 101-485, pt. II, at 37 (Numerous witnesses in Congressional hearings pointed out that transportation is a major obstacle to the disabled.).

[FN53]. See Seth J. Elin, Curb Cuts Under Title II of the Americans with Disabilities Act: Are They Bringing Justice or Bankruptcy to Our Municipalities?, 28 Urb. Law. 293, 297 (1996). The article cited a 1990 article referencing the poll; thus, the poll must have been conducted before that date. Id. at 326 n.26.

[FN54]. Id. (citation omitted).

[FN55]. See Kenneth A. Small, Transportation and Urban Change, in The New Urban Reality 197, 205 (Paul E. Peterson ed., 1985) (asserting that increased auto use is a natural result of higher incomes.).

[FN56]. Federico Cheever, The United States Forest Service and National Park Service: Paradoxical Mandates, Powerful Founders, and the Rise and Fall of Agency Discretion, 74 Denv. U. L. Rev. 625, 636 (1997) (using phrase to explain auto traffic in national parks).

[FN57]. See infra notes 62-83 and accompanying text.

[FN58]. See infra notes 84-102 and accompanying text.

[FN59]. See infra notes 115-21 and accompanying text.

[FN60]. See infra notes 122-28, 138-57 and accompanying text.

[FN61]. See infra notes 129-38 and accompanying text.

[FN62]. See Jackson, supra note 21, at 163; Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 425 (1935) (Motor vehicle-related fees "will not pay for one-half of the usual expenditure in Tennessee for highways. The balance is being paid in part by general property taxes.").

[FN63]. Walters, 294 U.S. at 425, 428 (noting that state taxed railroads to support highway construction).

[FN64]. See Paul Weyrich & William S. Lind, Conservatives and Mass Transit: Is It Time for a New Look? 10 (1996); Alewine v. City Council, 699 F.2d 1060, 1068 (11th Cir. 1983) (until 1960, most transit systems privately owned).

[FN65]. Weyrich & Lind, supra note 64, at 10.

[FN66]. Id.

[FN67]. See Richard Briffault, Our Localism: Part II--Localism and Legal Theory, 90 Colum. L. Rev. 346, 380 n.149 (1990).

[FN68]. Id. By this time, the states were also providing suburbs with sewers and water service. By contrast, the states were less generous to cities because by the 1920s, cities had already built similar facilities for their own citizens. Id.

[FN69]. 42 Stat. 212 (1921). Cf. State v. Smith, 295 P. 986, 997 (Kan. 1931) (referencing the Road Act, and noting that it required state governments to build highways themselves rather than relying on counties to do so).

[FN70]. Jackson, supra note 21, at 167.

[FN71]. Weyrich & Lind, supra note 64, at 10.

[FN72]. Id.

[FN73]. Id.

[FN74]. Id.

[FN75]. Id.

[FN76]. See James Howard Kunstler, The Geography of Nowhere: The Rise and Decline of America's Man-Made Landscape 106 (1993).

[FN77]. See Pub. L. No. 85-767, 72 Stat. 885.

[FN78]. See Kunstler, supra note 76, at 106-07.

[FN79]. See Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 1367 (D. Md. 1973); Norquist, supra note 24, at 153.

[FN80]. Office of Management and Budget, Budget of the U.S. Gov't: Historical Tables, Fiscal Year 1996 (1995) (first federal mass transit spending listed in 1962). See also Town of Secaucus v. United States, 889 F. Supp. 779, 783-84 (D.N.J. 1995).

[FN81]. See Norman Krumholz & Janice Cogger, Urban Transportation Equity in Cleveland, in Metropolitan Midwest: Policy Problems and Prospects for Change 211, 211 (Barry Checkoway & Carl V. Patton eds., 1985) [hereinafter Checkoway]. Cf. 49 U.S.C. ? 5301(b)(4) (legislative finding that "in the early 1970's continuing even minimal mass transportation service in urban areas was threatened because maintaining that transportation service was financially burdensome").

[FN82]. See Liam A. McCann, TEA-21: Paving over Efforts to Stem Urban Sprawl and Reduce America's Dependence on the Automobile, 23 Wm. & Mary Envtl. L. & Pol'y Rev. 857, 859 (1999) ("[M]ore than eighty percent of the money in TEA-21 [the 1998 transportation funding bill] will go toward highway funding."); Jeff Plungis, Auto Research Faces Cutbacks, Detroit News, March 1, 2001 (Bush administration proposed highway spending of $32.3 billion and transit spending of $6.7 billion, increases from $30.2 billion and $6.2 billion respectively); 1999 Abstract, supra note 2, at 636. A similar gap exists at other levels of government. See 1999 Abstract, supra note 2, at 635, 652; Electronic correspondence from Daniel Duff, American Public Transit Association (Feb. 9, 2000) (on file with author) (stating that government highway spending 5.4 times as high as transit spending). And to the extent government has invested in transit, those investments have sometimes redistributed money from bus service to more expensive train service rather than expanding riders' transit options. See Peter Gordon & Harry W. Richardson, Defending Suburban Sprawl, Pub. Int., Spring 2000, at 65, 69 (Some cities' "bus systems have been cannibalized to pay for rail."); Eric Mann, Confronting Transit Racism in Los Angeles, in Just Transportation 68, 71 (Robert D. Bullard & Glenn S. Johnson eds., 1996) (Los Angeles reduced bus mileage by 16% between 1988 and 1997 while building subway).

[FN83]. See State ex. rel. O'Connell, 452 P.2d 943, 948 (Wash. 1969) (state not allowed to spend gasoline tax revenue on public transportation, based on provision in state Constitution requiring such revenue to be spent for highway-related purposes); Michigan Road Builders Ass'n v. Dep't of Mgmt. & Budget, 495 N.W.2d 843, 847 (Mich. App. 1992) (Under Michigan law, 90% of gas and license tax revenue must be used for roads.).

[FN84]. See supra notes 29-35 and accompanying text.

[FN85]. See Penny Mintz, Transportation Alternatives Within the Clean Air Act: A History of Congressional Failure to Effectuate and Recommendations for the Future, 3 N.Y.U. Envtl. L.J. 156, 159 (1994) ("Highways made land outside cities accessible, which in turn made the land attractive for development."); Douglas S. Massey & Nancy A. Denton, American Apartheid 44 (1993) ("In making this transition from urban to suburban life, middle-class whites demanded and got massive federal investments in highway construction that permitted rapid movement to and from central cities by car."). Cf. City of Davis v. Coleman, 521 F.2d 661, 675 (9th Cir. 1975) (noting possible "urban sprawl" caused by new highway interchange).

[FN86]. See Gordon & Richardson, supra note 82, at 70 ("[F]irms now follow the labor force to the suburbs where their employees live."); Earl Daniels, Building Boom: Area's Residential, Commercial Growth Spurt, Fla. Times-Union, Jan. 13, 2000, at E1 (quoting Jacksonville realtor Barry Goldstein's statement that "[w]e have population growth in the suburban area, and when you have the growth of residential, you have a demand for other services"); Wolfgang Zuckermann, End of the Road: The World Car Crisis and How We Can Solve It 240 (1991) ("[T]he new road system had drawn many of the former city-center shoppers to new homes in the suburbs. Many retail firms consequently abandoned downtowns to develop new stores on the periphery of urban areas where motorists could easily reach them using the freeway system. In many cases, offices followed suit, and some suburban downtowns developed around freeway intersections.").

[FN87]. Sierra Club, v. United States Dep't of Transp., 962 F. Supp. 1037, 1043 (N.D. Ill. 1997) (citing Swann v. Brinegar, 517 F.2d 766, 777 (7th Cir. 1975)).

[FN88]. See Glen Frankel & Stephen C. Fehr, As the Economy Grows, The Trees Fall, Wash. Post, Mar. 23, 1997, at A1.

[FN89]. Id. See also Jackson, supra note 21, at 165 (pointing out that many of Detroit's suburbs have risen along major roads).

[FN90]. See, e.g., Alan Sipress, Widen the Roads, Drivers Will Come, Wash. Post, Jan. 4, 1999, at B1 (discussing Maryland's widening of I-270 near Washington, which spurred suburban development but failed to reduce congestion); Stephen Fehr, Montgomery's Line of Defense Against the Suburban Invasion, Wash. Post., Mar. 25, 1997, at A1 (discussing developers' support for a new highway linking Washington's Maryland suburbs with its Virginia suburbs, ostensibly in order to reduce congestion on Washington's Beltway); Glenn Frankel & Peter Pae, In Loudoun, Two Worlds Collide, Wash. Post, Mar. 24, 1997, at A1 (In Loudoun County, a suburb of Washington, the "four-lane Dulles Greenway, a toll road designed to ease the commute for eastern residents, has opened up the west for further growth."). Loudoun County, like most newer suburbs, has minimal bus service. See Jennifer Lenhart, A Needed Lift, Wash. Post Nov. 8, 1999, at B1 (describing isolation of elderly nondrivers who moved to Loudoun County to live near adult children).

[FN91]. See Surface Transportation Policy Project, Why Are the Roads so Congested?, at http://www.transact.org/constr99/default.htm (last visited Jan. 22, 2000) [hereinafter Roads]. Frequently, the new and widened highways have been located in the newest, most affluent outer suburbs, thus increasing the inequality in tax bases and services between those suburbs and central cities or less politically favored suburbs. See Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047, 1099 (1996); Myron Orfield, Talk Radio Called Him a Commie and Put Him on Hold, Minn. Star Trib., May 23, 1995, at 13A (In Minneapolis/St. Paul, "the southern and western outer-ring suburbs have gotten all of the new freeways and sewer systems--billions of dollars in improvements--and therefore virtually all of the region's new tax base.").

[FN92]. See infra notes 122-29, 139-64 and accompanying text (describing other government policies causing middle-class flight to suburbia); Jonathan Simon, From a Tight Place: Crime, Punishment and American Liberalism, 17 Yale L. & Pol'y Rev. 853, 856 (1999) (noting that urban crime another factor causing middle-class flight to suburbs).

[FN93]. It has been argued that highways do not cause migration to suburbia because "[s]uburbanization was well underway in 1960, when the federal interstate highway program had been in existence for just four years." Ronald Utt, Cities and Suburbs, at http://www.heritage.org/issues/chap13.htm (last visited Jan. 20, 2000). See also Peter Gordon & Harry W. Richardson, Critiquing Sprawl's Critics, Cato Inst. Pol'y Analysis No. 365, at 6 (Jan. 24, 2000) (Interstate highway program was not a cause of suburban migration because "there was significant suburbanization before 1956."). This argument lacks merit for three reasons. First, the state and federal governments had begun to support highway building long before the interstate highway system was built. See supra notes 62-75 and accompanying text. Thus, highway-building may have caused suburban growth before the enactment of interstate highway legislation. Second, other antiurban government policies (such as the Federal Housing Administration's policy of providing mortgage insurance to suburbanites but not to city-dwellers) had also been in effect for decades before 1960. See Michael E. Lewyn, The Urban Crisis: Made in Washington, 4 J. L. & Pol'y 513, 546-49 (1996) (describing FHA policies in more detail); infra notes 122-28 and accompanying text. Third, American cities' most stunning setbacks occurred after the creation of the interstate highway program. Of the 18 American cities which had more than 500,000 people in 1950, every single one gained population between 1930 and 1950. See Information Please Almanac 1955, at 215- 18 (Dan Golepaul ed., 1954). By contrast, in the 1950s, 13 of the cities lost population, and 2 lost over 10% of their population. See The World Almanac and Book of Facts 1976, at 210 (George E. DeLury ed., 1975) [hereinafter World Almanac 1976]. In the 1960s, 15 lost population, and 6 lost over 10%. Id. And in the disastrous 1970s, 16 lost population and 14 lost over 10%. See The World Almanac and Book of Facts 2000, at 390 (Robert Famighetti ed., 1999) [[hereinafter World Almanac 2000]. In other words, the redistribution of people from city to suburb snowballed as interstates were built during the 1960s and 1970s.

[FN94]. See David Rusk, Cities Without Suburbs 5 (2d ed. 1995); Benfield et al., supra note 34, at 120.

[FN95]. See Shelby D. Green, The Search for a National Land Use Policy: For the Cities' Sake, 26 Fordham Urb. L.J. 69, 73 (1998) (citing 1990 census statistics). Cf. Dixon v. Hassler, 412 F. Supp. 1036, 1045 (W.D. Tenn. 1976), aff'd, 429 U.S. 934 (1976) (by 1960s, "most cities in the United States lost population... except for gains in the suburban surrounding areas by way of annexation").

[FN96]. See World Almanac 2000, supra note 93, at 390.

[FN97]. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404, 412 (8th Cir. 1985) (white population of city of Little Rock declined from 1950 to 1980 if annexed territory excluded, but increased by over 30% if annexed territory included); Rusk, supra note 94, at 4.

[FN98]. See Parents Assoc. v. Ambach, 451 F. Supp. 1056, 1060 (E.D.N.Y. 1978) ("Businesses have left the City, sometimes to the suburbs to which their middle-income 'white collar' workers have preceded them.").

[FN99]. See Benfield et al., supra note 34, at 14.

[FN100]. Id. This number exceeds 100% because cities were losing manufacturing jobs while suburbs were gaining such jobs. Id. See also NAACP v. Mt. Laurel, 336 A.2d 713, 742 (N.J. 1975) (noting shift of industrial jobs to suburbs).

[FN101]. See NAHB's Policy on Smart Growth, at http://www.nahb.com/main_ features/smartpolicy.html (last visited Feb. 20, 2000) ("Ensuring that the construction of schools, roads and other infrastructure keeps pace with the anticipated growth in population and economic activity is one of the biggest challenges facing [suburban] communities today.") [hereinafter NAHB Policy Statement].

[FN102]. See National Association of Home Builders, Consumer Survey on Growth, at http://www.nahb.com/main_features/smart_survey/summary.htm Issues (last visited Feb. 8, 2000) [hereinafter NAHB Growth Survey]. Similarly, Gordon and Richardson, in an article entitled "Defending Suburban Sprawl" (which seeks to do exactly that) admit in passing that "[g]ood highways and other communications reversed [the migration of jobs to cities] in the late twentieth century." Gordon & Richardson, supra note 82, at 70.

[FN103]. See supra notes 62-81 and accompanying text.

[FN104]. See supra notes 62-80 and accompanying text.

[FN105]. See supra note 63 and accompanying text.

[FN106]. See supra note 65 and accompanying text.

[FN107]. See Alewine v. City Council, 699 F.2d 1060, 1068 (11th Cir. 1983) (until 1960, most transit systems were privately owned).

[FN108]. See supra notes 24-35 and accompanying text (noting that many American suburbs have minimal transit service).

[FN109]. See supra notes 85-102 and accompanying text.

[FN110]. See supra note 81 and accompanying text. Cf. Larry Sandler, How Buses Fare, Milwaukee J.-Sentinel, Aug. 21, 1996, at 1 (Milwaukee County's average daily bus service decreased by 29% between 1963 to 1990.).

[FN111]. 49 U.S.C. ? 5301(b)(4).

[FN112]. See supra note 80 and accompanying text.

[FN113]. See McCann, supra note 82, at 859; Duff, supra note 82, Plungis, supra note 82.

[FN114]. See Utt, supra note 93 (making argument); Larry Sandler, Views on Transit Funds Diverge, Milwaukee Journal-Sentinel, Apr. 24, 1995, at B2 (quoting similar views by Wisconsin transit official); 1999 Abstract, supra note 2, at 641 (5.3% of all Americans use public transit to get to work).

[FN115]. See Hynes-Cherin, supra note 11 (ADA cost transit providers $1.4 billion annually); Doherty, supra note 11 (ADA paratransit provisions alone cost transit operators $1.1 billion annually); 1999 Abstract, supra note 2, at 314 (Federal transit spending ranged between $3.9 billion and $4.3 billion between fiscal years 1995 and 1999.); but cf. Plungis, supra note 82 (transit spending increased to just over $6 billion in early 2000s). As explained below, transit operators have often been forced to reduce service in order to meet ADA-related expenses. See infra notes 369, 394-97, 402-05 and accompanying text.

[FN116]. See 49 U.S.C. ? 5333 (Laborers on transit-related construction projects must be paid "wages not less than those prevailing on similar construction in the locality" and transit employees must be protected against diminution of collective bargaining rights or "worsening of their positions related to employment."); Greenfield & Montague Transp. Area v. Donovan, 758 F.2d 22, 23 (1st Cir. 1985) (describing statute); John Walters, Bus-Jacking the Revolution, Pol'y Rev., Jan./Feb. 1996, at 8 (same).

[FN117]. Id.

[FN118]. See 1999 Abstract, supra note 2, at 636 (federal government granted state and local government $4.56 billion for public transit in 1997).

[FN119]. See 49 U.S.C. ? 5333(a); N. Ga. Bldg. & Trades Constr. Council v. Metro Atlanta Rapid Transit Auth., 1982 U.S. Dist. LEXIS 9862, at * 3-4 (N.D. Ga. Aug. 4, 1982) (describing requirement).

[FN120]. See 49 U.S.C. ? 5323(j); Seal & Co. v. Wash. Metro. Area Transit Auth., 768 F. Supp. 1150 (E.D. Va. 1991) (describing requirement).

[FN121]. See 49 U.S.C. ?? 5323(d) & (f); Chi. Transit Auth. v. Adams, 607 F.2d 1284, 1293 (7th Cir. 1979) (discussing protection of school bus companies); Blue Bird Coach Lines v. Linton, 48 F. Supp. 2d 47, 49 (D.D.C. 1999) (discussing protection of charter bus companies).

[FN122]. See United States v. City of Parma, 494 F. Supp. 1049, 1057 (N.D. Ohio 1980), appeal dismissed, 633 F.2d 218 (6th Cir. 1980); Michael H. Schill & Susan Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1308 (1995).

[FN123]. See Gerald E. Frug, City Making 132-33 (1999).

[FN124]. See Jackson, supra note 21, at 207. In fact, the overwhelming majority of FHA loans went to suburban home buyers. See Massey & Denton, supra note 85, at 54 (describing FHA favoritism towards suburbs in St. Louis, Washington, and New York City metropolitan areas); George Steven Swan, The Political Economy of American Apartheid: Shaw v. Reno, 11 T.M. Cooley L. Rev. 1, 21 (1994) (FHA did not insure one mortgage in Camden or Paterson, New Jersey, until 1966.). The FHA became less biased against cities in the late 1960s, but by that time the damage had already been done; America's older cities had already skidded into a cycle of decay and decline. See Jackson, supra note 21, at 214-15 (describing more recent FHA policies); World Almanac 1976, supra note 93, at 210 (older cities had begun to decline in 1950s and 1960s); Massey & Denton, supra note 85, at 53 (describing long term damage to cities caused by loss of middle class).

[FN125]. See Jackson, supra note 21, at 207.

[FN126]. See James J. MacKenzie et al., The Going Rate: What It Really Costs to Drive 26 (1992) ("Densities above 7 housing units per acre are needed for cost-effective bus service while densities of over 9 housing units per acre are needed for cost-effective light rail service."); Pietro S. Nivola, Laws of the Landscape 15-16 (1999) ("The abandonment of public transportation is primarily a consequence of lower per capita incomes and low urban density. The clustered populations and workplaces of European and Japanese cities offer the critical mass needed to maintain comparatively high levels of transit ridership, whereas the decentralized urban conurbations of the United States are more efficiently served by automotive transportation.").

[FN127]. See, e.g., Thomas J. DiLorenzo, The Myth of Suburban Sprawl, USA Today, May 1, 2000, (Magazine), at 5456, available at 2000 WL 9014855 (attacking public transit spending on the grounds that ridership has declined since 1945).

[FN128]. See supra note 86 and accompanying text.

[FN129]. See Department of Commerce, Standard State Zoning Enabling Act (1926) (final version).

[FN130]. See Ex Parte City of Huntsville, 684 So. 2d 123, 125 (Ala. 1996) (SZEA used as a "model for zoning legislation in the majority of states"); 1 Anderson's American Law of Zoning ? 2.21 at 67-69 (Kenneth H. Young ed., 4th ed. 1995) (describing history of SZEA and pointing out that as early as 1930, 35 states had adopted that statute in whole or in part, and that "[a] ll of the states finally adopted zoning enabling legislation and most reflect the thinking of the draftsmen of the Standard Act").

[FN131]. See Chapman v. City of Troy, 45 So. 2d 1, 8, 241 Ala. 637, 639 (1941) (SZEA gives cities power to "divide the city into districts, and regulate the erection and use of the buildings in the several districts for trade, industry, residence or other purposes."); Lee R. Epstein, Where Yards Are Wide: Have Land Use Planning and Law Gone Astray?, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 345, 357-58 (1997).

[FN132]. SZEA, ? 3, quoted by Epstein, supra note 131, at 379 n.50.

[FN133]. See, e.g., Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding ordinance limiting land use to single family homes).

[FN134]. See, e.g., Simone v. Worcester County Inst. for Savings, 1995 U.S. App. LEXIS 9081, at *6 (1st Cir. Apr. 20, 1995) (Worcester zoning law required 8000 square foot lot for 2 family home). See also Paul S. Weiland, Environment in Context, 18 UCLA J. Envtl. L. & Pol'y 131, 138 (1999/2000) ("[C]urrent zoning practices often forbid high density development and mixed-use development.").

[FN135]. See Richard Briffault, Our Localism: Part I--The Structure of Local Government Law, 90 Colum. L. Rev. 1, 41 (1990). The purpose of such zoning is usually to exclude lower-income persons. See Jackson, supra note 21, at 242 (Zoning "served the general purpose of preserving residential class segregation and property values."). In one Chicago-area suburban neighborhood, city planners seek to fix a minimum price of $275,000. See Kara Spak, Elgin, Hoffman Seen as Ripe for Senior Housing, Chicago Daily Herald, Jan. 26, 2001 ("Elgin's Far West Area plan dictates the average homoe price in the area will be $325,000, with a minimum home price of $275,000.").

[FN136]. See supra note 126 and accompanying text.

[FN137]. See infra note 392 and accompanying text (describing reductions in transit service due to 1990s revenue reductions).

[FN138]. See Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1091 n.11 (6th Cir. 1985); Jackson, supra note 21, at 224.

[FN139]. See Briffault, supra note 135, at 41("[I]n all areas suburban localities sought to exclude public or publicly subsidized housing."); Jaimes, 758 F.2d at 1096 n.23, 1097-98 (noting Toledo suburbs' refusal to allow public housing, which caused nearly all public housing units to be in city of Toledo); United States v. City of Parma, 661 F.2d 562, 566-67 (6th Cir. 1981) (describing similar obstructionism in Cleveland suburb); Jackson, supra note 21, at 224.

[FN140]. See Schill & Wachter, supra note 122, at 1293.

[FN141]. Id.

[FN142]. See Evans v. Buchanan, 393 F. Supp. 428, 435 (D. Del.), aff'd per curium, 423 U.S. 963 (1975) (Wilmington housing authority operated 2000 public housing units in city but fewer than 40 in suburbs.); Robert E. Mendelson & Michael A. Quinn, Residential Patterns in a Midwestern City: The St. Louis Experience, in Checkoway, supra note 81, at 151, 163 (In 1970 St. Louis had 10,000 units of public housing while suburban St. Louis County, with a larger population, had only 50.).

[FN143]. See 42 U.S.C. ? 1437n(a). See also Schill & Wachter, supra note 122, at 1294-95 n.43 (law was even more restrictive in 1980s).

[FN144]. See Patrolmen's Benevolent Ass'n v. City of N.Y., 74 F. Supp. 2d 321, 335 (S.D.N.Y. 1999) (equating "high-crime" areas with "low-income" areas) (citation omitted); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. Pa. L. Rev. 1203, 1215 (1995) ( "Using least squares regression, I estimate the relationship between crime and poverty to be: Major Crime Rate = 36.55 +.02 (percentage white) + .79 (poverty rate), where the units are census tracts and crime rates are expressed per 1000 inhabitants.").

[FN145]. Rucker v. Davis, 2000 U.S. LEXIS App. 1966, at *3 (9th Cir. Feb. 13, 2000).

[FN146]. See Gary Fields, Gun Risk Double in Public Housing, USA Today, Feb. 17, 2000, at 3A.

[FN147]. See Utt, supra note 93. See also U.S. v. Thompson, 1992 U.S. Dist. LEXIS 1420, at *1 (N.D. Ill. 1992) (describing project as "notorious" for crime); Nicholas Lemann, The Promised Land 295 (1991) (Robert Taylor Homes "quite possibly the worst place in the country in which to raise a family").

[FN148]. See Utt, supra note 93.

[FN149]. See Simon, supra note 92, at 856 (noting that crime a factor in middle-class flight to suburbs).

[FN150]. See supra note 127 and accompanying text.

[FN151]. See, e.g., Vicki Been, Comment on Professor Jerry Frug's The Geography of Community, 48 Stan. L. Rev. 1109, 1110 (1996) ("When I talk to the mothers and fathers of my children's friends about their inevitably impending move to the suburbs, they talk about the higher standard of living they will enjoy there... [including] the savings of writing one check for property taxes rather than one for property taxes and another for the private school tuition."); Kristin Kovacic, New Century, Same Place, Pittsburgh Post-Gazette, Jan. 1, 2000, at A19 ("[O]ur children were fast approaching school age. The rational response appeared to be moving to a suburban area with a good school district. Many city families we know were starting to move to these [suburbs] for the schools alone.").

[FN152]. See Kern Alexander & M. David Alexander, The Law of Schools, Students and Teachers in a Nutshell 9 (1995) ("[M]ost state laws require children to attend school in the district in which the student resides.").

[FN153]. See Benfield et al., supra note 34, at 123 (central cities contain half of America's poor, though they contain only 30% of total population).

[FN154]. Reed v. Rhodes, 1 F. Supp. 2d 705, 738 (N.D. Ohio 1998). In fact, the "quality" of schooling may influence as little as 2-3% of differences in students' educational achievement. See Christopher Jencks et al., Inequality 109, 159 (1972) (differences among elementary schools account for 3% of inequalities in educational achievement, and differences among high schools account for 2% of such inequalities).

[FN155]. Reed, 1 F. Supp. 2d at 739.

[FN156]. See supra note 86 and accompanying text (noting that jobs follow middle class to suburbs).

[FN157]. See supra notes 24-32 and accompanying text (noting that transit service in suburbs often quite limited).

[FN158]. See Nivola, supra note 126, at 25.

[FN159]. Id. at 25-26.

[FN160]. Id. at 26.

[FN161]. See Massey & Denton, supra note 85, at 55; Arnold W. Reitze, A Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 Envtl. L. 1549, 1574 (1991).

[FN162]. See Paul A. Jargowsky, Poverty and Place 50-57, 223-26 (1997) (in 1970s and 1980s, number of high-poverty census tracts increased in most American cities; for example, in 1980, Milwaukee had only 9 census tracts where over 40% of residents had incomes below federal poverty rate, but by 1990 number had increased to 42).

[FN163]. See supra note 144 and accompanying text (crime higher in poverty-packed neighborhoods).

[FN164]. And to the extent transit-dependent Americans are disproportionately city dwellers, they, like other urbanites, suffered from higher taxes and higher crime due to middle-class flight to suburbia, as city neighborhoods became poorer and city tax bases declined. See Massey & Denton, supra note 85, at 55; Lewyn, supra note 93, at 521.

[FN165]. See supra notes 24-32 and accompanying text (noting that most suburban jobsites not transit-accessible).

[FN166]. See, e.g., DiLorenzo, supra note 127 (describing transit spending as "wasteful" because ridership has declined since 1945); Editorial, Continuing Ridership Decline is Everyone's Concern, Pittsburgh Post-Gazette, Feb. 27, 1994, at D2 (When ridership declines, "operating costs must be reduced, service cut, fares increase or... subsidies raised.").

[FN167]. See Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 665 (3d Cir. 1989) ("[I]ncreases in fares or reductions in the quality or availability of service have the tendency of reducing ridership, and the reduction in ridership in turn diminishes revenue.") (Rosenn, J., dissenting); Frank Donze, Riders Oppose Higher RTA Fares, New Orleans Times-Picayune, Feb. 20, 1999, at B1 (quoting rider's suggestion that New Orleans transit agency in "death spiral"); Gary Washburn, New Roads Won't Ease Traffic Jams, Report Says, Chi. Trib., Apr. 2, 1992, at 4 (expressing similar concerns about public transit in Chicago).

[FN168]. 49 U.S.C. ? 5301(d).

[FN169]. See Ams. Disabled for Accessible Pub. Transp. ("ADAPT") v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989). The statute was originally at 49 U.S.C. ? 1612(a).

[FN170]. ADAPT, 881 F.2d at 1187 (quoting 49 U.S.C. ? 1612(a)). Today, the statute is almost identically worded, except that it substitutes "individuals with disabilities" for "handicapped persons" and makes several other grammatical corrections. See Historical and Statutory Notes to 49 U.S.C. ? 5301 (changes made "to eliminate unnecessary words").

[FN171]. ADAPT, 881 F.2d at 1187 (quoting 29 U.S.C. ? 794(a)). Today, the statute is almost identically worded, except that it substitutes the word "disability" for the word "handicap" . See Historical and Statutory Notes to 29 U.S.C. ? 794.

[FN172]. ADAPT, 881 F.2d at 1187-88 (quoting 23 U.S.C. ? 142).

[FN173]. 41 Fed. Reg. 18,234 (1976).

[FN174]. See ADAPT, 881 F.2d at 1188.

[FN175]. 41 Fed. Reg. 17,871 (1976).

[FN176]. See 20 U.S.C. ? 3508.

[FN177]. ADAPT, 881 F.2d at 1188.

[FN178]. Id.

[FN179]. See ADAPT, 881 F.2d at 1186 n.1 (defining "paratransit"). Paratransit users are generally served with wheelchair-accessible vans rather than with conventional buses. Id.

[FN180]. 43 Fed. Reg. 2132, 2138 (1978).

[FN181]. ADAPT, 881 F.2d at 1188.

[FN182]. 44 Fed. Reg. 31,442 (1979).

[FN183]. Id. at 31,478.

[FN184]. ADAPT, 881 F.2d at 1188. See also American Public Transit Association, Transit Fact Book 7 (1998) (describing APTA).

[FN185]. 655 F.2d 1272 (D.C. Cir. 1981).

[FN186]. Id. at 1278.

[FN187]. Id.

[FN188]. Id. at 1278-80.

[FN189]. See ADAPT, 881 F.2d at 1188-89 (describing interim regulations and Congress's dissatisfaction with DOT's slow pace).

[FN190]. See ADAPT, 881 F.2d at 1188.

[FN191]. See ADAPT, 881 F.2d at 1188-89.

[FN192]. See ADAPT, 881 F.2d at 1189 (citing 49 U.S.C. ? 1612(d)). The statute is now codified at 49 U.S.C. ? 5310(f), which requires DOT "to prescribe regulations establishing minimum criteria... [federal aid recipients] shall comply with in providing mass transportation to elderly individuals and individuals with disabilities."

[FN193]. ADAPT, 881 F.2d at 1195 (emphasis omitted).

[FN194]. Id. at 1196.

[FN195]. See 51 Fed. Reg. 18,994 (1986).

[FN196]. A fixed-route transit system is one "on which a vehicle is operated along a prescribed route according to a fixed schedule." 42 U.S.C. ? 12141(3).

[FN197]. See ADAPT, 881 F.2d at 1189-90.

[FN198]. Id. at 1190.

[FN199]. Id. at 1186-87. An arbitrary and capricious regulation violates the federal Administrative Procedure Act. See 5 U.S.C. ? 706.

[FN200]. ADAPT, 881 F.2d at 1191.

[FN201]. Id. at 1193-94.

[FN202]. Id. at 1198.

[FN203]. Id. at 1193.

[FN204]. Id. at 1201.

[FN205]. Id.

[FN206]. Id.

[FN207]. Id.

[FN208]. Id. at 1202-03.

[FN209]. See H.R. Rep. No. 101-485, pt. I, at 24 (1990); Paul Stephen Dempsey, The Civil Rights of the Handicapped in Transportation: The Americans with Disabilities Act and Related Legislation, 19 Transp. L.J. 309, 317 (1990).

[FN210]. H.R. Rep. No. 101-485, p. IV, at 24.

[FN211]. See ADAPT, 881 F.2d at 1191-98 (upholding local option rule allowing local governments to rely solely on improving fixed-route transit).

[FN212]. See Rennert, supra note 17, at 399.

[FN213]. See H.R. Rep. No. 101-485, pt. II, at 37 ("Witnesses testified about the need to pursue a multi-modal approach to ensuring access for people with disabilities which provides that... paratransit is made accessible for those who cannot use the fixed route accessible vehicles."); id. at 38 (quoting numerous witnesses).

[FN214]. See H.R. Rep. No. 101-485, pt. I, at 29.

[FN215]. Id.

[FN216]. H.R. Rep. No. 101-485, pt. I, at 38.

[FN217]. Id.

[FN218]. 42 U.S.C. ? 12132.

[FN219]. 42 U.S.C. ?? 12131 et. seq.

[FN220]. 42 U.S.C. ?? 12142-43.

[FN221]. 42 U.S.C. ? 12142(a). DOT later issued detailed guidelines that define what makes a bus, train, or facility "accessible" to the disabled. See 49 C.F.R. ?? 37.7 and 37.9, 49 C.F.R. pt. 38.

[FN222]. See infra notes 273-83 and accompanying text (discussing case law allowing transit agencies to reduce service).

[FN223]. H.R. Rep. No. 101-485, pt. I, at 58 (1990) (additional views of John Paul Hammerschmidt and ten other legislators). However, the obligation to purchase lift-equipped buses may be temporarily suspended if such buses are unavailable. See 42 U.S.C. ? 12145; 49 C.F.R. ? 37.71 (b-g) (setting forth procedures for waiver).

[FN224]. H.R. Rep. No. 101-485, pt. I, at 27.

[FN225]. 42 U.S.C. ? 12142(b). See 49 C.F.R. ?? 37.73 (b-d) and 37.81 (b-d) (setting forth procedures for waiver). The "good faith" provision does not mean that transit providers may purchase inaccessible vehicles merely because they are less expensive; rather, the agency must show that it cannot find an accessible vehicle even after a nationwide search. See 49 C.F.R. ? 37.73, App. D. The DOT has stated that "good faith efforts [[may] involve buying fewer accessible buses in preference to more inaccessible buses." Id.

[FN226]. 42 U.S.C. ? 12142(c)(1). The term remanufacture "is to include changes to the structure of the vehicle which extend the useful life of the vehicle for five years... [but not] engine overhaul and the like." 49 C.F.R. ? 37.75, app. D. See 49 C.F.R. ?? 37.75(d) (remanufacturing bus to make it accessible to disabled feasible unless "engineering analysis demonstrates that including accessibility features required by this part would have a significant adverse impact on the structural integrity of the vehicle") and 37.83(c) (establishing same proposition for rail cars and trains). This subsection does not apply to "historic vehicles." 42 U.S.C. ? 12142(c)(2). The National Register of Historic Places determines whether a vehicle is "historic," 49 C.F.R. ? 37.76(d), and if an agency operates an historic vehicle, it need only make "such modifications to make the vehicle accessible which do not alter the historic character of such vehicle, in consultation with the National Register of Historic Places." 49 C.F.R. ? 37.76(e). See also 42 U.S.C. ? 12148(b)(2) and 49 C.F.R. ? 37.83(d-e) (establishing similar rules for historic trains).

[FN227]. See 49 C.F.R. ? 37.121, app. D.

[FN228]. 42 U.S.C. ? 12143(a)(1).

[FN229]. See 42 U.S.C. ? 12143(a)(2) (Paratransit users should have "response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities."). DOT regulations provide that transit systems may require paratransit users to make reservations a day in advance. See 49 C.F.R. ? 37.131(b). Paratransit service hours, however, must be as extensive as those of a transit provider's fixed route service. See 49 C.F.R. ? 37.131(e).

[FN230]. See 42 U.S.C. ? 12143(c)(2) (requiring "the provision of paratransit and special transportation services required under this section in the service area of each public entity which operates a fixed route system"). Specifically, a transit agency shall provide service to any place within 3/4 of a mile of a bus or train stop in its jurisdiction. See 49 C.F.R.? 37.131(a)(1) and (a)(3).

[FN231]. See 42 U.S.C. ? 12143(c)(A)(i).

[FN232]. See 42 U.S.C. ? 12143(c)(1)(A)(ii). An individual may be paratransit-eligible for some bus routes but not for others, depending on whether an accessible bus is available for a particular bus route. See 49 C.F.R. ? 37.123, app. D.

[FN233]. See 42 U.S.C. ? 12143(c)(1)(A)(iii). See also 49 C.F.R. ? 37.123, app. D (Such disabilities may include, but are not limited to, blindness, chronic fatigue, lack of ability to follow directions, or unusual temperature sensitivity.).

[FN234]. See 42 U.S.C. ? 12143(c)(1)(B) and (C). Subsection (B) provides that at least one individual may always travel with a disabled individual, and Subsection (C) adds that additional individuals may also do so if space is available. DOT regulations establish that the one guaranteed companion is in addition to any personal attendant required by a rider, so that a disabled rider may travel with one personal attendant and one additional companion. See 49 C.F.R. ? 37.123(f)(1). On the other hand, a disabled individual may not be required to travel with an attendant. 49 C.F.R. ? 37.123, app. D.

[FN235]. See infra notes 368, 396 and accompanying text (noting that some transit agencies have reduced overall transit service in order to avoid supplying the disabled with paratransit services).

[FN236]. 42 U.S.C. ? 12143(c)(4). The Federal Transit Administration (FTA) may consider a wide variety of factors in deciding whether to grant or deny a "undue burden" waiver, including the likelihood of fare increases or service reductions in conventional transit service that might be caused by the denial of a waiver, the possibility of preventing such outcomes through efficiencies or coordination of efforts with other transit providers, the resources available for paratransit, current levels of paratransit and fixed-route service, and any other unique circumstances that may be relevant. See 49 C.F.R. ? 37.155(a).

[FN237]. Id. However, the FTA may require public agencies to provide a minimal level of paratransit service (e.g., service along a transit agency's most popular routes during peak hours of service) even if such service would be unduly burdensome. See 49 C.F.R. ? 37.153(c)(2).

[FN238]. See 42 U.S.C. ? 12143(c)(6). See also 49 C.F.R. ? 37.139 (describing appropriate contents of paratransit plans).

[FN239]. See 42 U.S.C. ? 12143(c)(7) and (d)(1).

[FN240]. See 42 U.S.C. ? 12143(d).

[FN241]. See 42 U.S.C. ? 12143(e).

[FN242]. See Transit Fact Book, supra note 184, at 110-123 (On an average weekday Americans take 16 million fixed-route bus trips, as opposed to 341,000 demand-response trips and about 8 million heavy and light rail trips.); id. at 119 (only 11 American metro areas have subway or similar rail service); id. at 121 (only 21 American metro areas have subway or similar rail service, some of whom have heavy rail service as well or have downtown-only service); H.R. Rep. No. 101-485, pt. II, at 94 (1990) (pointing out limited scope of demand responsive service other than paratransit).

[FN243]. See 42 U.S.C. ? 12141(1) (Demand-responsive system is "any system of providing... public transportation that is not a fixed route system.") Demand-responsive systems other than paratransit are generally limited to small towns and rural areas. See H.R. Rep. No. 101-485, pt. II, at 94.

[FN244]. DOT regulations define facilities as "buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or any other real or personal property" used to provide public transit. 49 C.F.R. ? 37.3.

[FN245]. See 42 U.S.C. ? 12144. This requirement does not apply, however, if a demand-responsive transit "system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service such system provides to individuals without disabilities." Id.

[FN246]. See 42 U.S.C. ? 12146.

[FN247]. See 42 U.S.C. ? 12147(a).

[FN248]. See H.R. Rep. No. 101-485, pt. I, at 32; 49 C.F.R. ? 37.47(b) (listing criteria relevant to definition of key stations).

[FN249]. See 42 U.S.C. ? 12147(b)(2)(A). This deadline may be extended, however, for "extraordinary expensive structural changes." 42 U.S.C. ? 12147(b)(2)(B) (allowing extensions for up to 30 years as long as 2/3 of key stations accessible within 20 years).

[FN250]. 42 U.S.C. ? 12148(b)(1).

[FN251]. 29 U.S.C. ? 794(a).

[FN252]. 42 U.S.C. ? 12133 ("The remedies, procedures and rights set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. ? 794(a)) shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202 [[42 U.S.C. ? 12132].").

[FN253]. See H.R. Rep. No. 101-485, pt. III, at 52. ADA plaintiffs, however, are typically limited to injunctive relief rather than damages. See Midgett v. Tri-County Transp. Dist., 74 F. Supp. 2d 1008, 1018 (D. Or. 1999) (Damages may be awarded only if transit system engaged in intentional discrimination or deliberate indifference to plaintiff's rights.).

[FN254]. See 42 U.S.C. ? 12149(a).

[FN255]. See 49 C.F.R. pts. 37, 38.

[FN256]. See supra notes 220-54 and accompanying text.

[FN257]. See 49 C.F.R. ? 37.161.

[FN258]. See 49 C.F.R. ? 37.163-65.

[FN259]. See 49 C.F.R. ? 37.131(c).

[FN260]. See 49 C.F.R. ? 37.131(d). In fact, providers should not even ask the purpose of a trip. See 49 C.F.R. ? 37.131, app. D.

[FN261]. See 49 C.F.R. ? 37.167.

[FN262]. See 49 C.F.R. ? 37.167(c). DOT has declined to prescribe specific means for such identification. See 49 C.F.R. ? 37.167, app. D.

[FN263]. See 49 C.F.R. ? 37.167(a).

[FN264]. See 49 C.F.R. ? 37.167(d).

[FN265]. See 49 C.F.R. ? 37.167(f).

[FN266]. See 49 C.F.R. ? 37.167(j).

[FN267]. See 49 C.F.R. ? 37.11.

[FN268]. See 49 C.F.R. pt. 37, app. D.

[FN269]. See 49 C.F.R. ? 37.123, app. D.

[FN270]. See 49 C.F.R. ? 37.5, app. D.

[FN271]. See, e.g., Collins v. S.E. Pa. Transp. Auth., 69 F. Supp. 2d 701 (E.D. Pa. 1999) (awarding attorneys' fees to plaintiffs who settled ADA dispute); Neff v. Via Metro. Transit Auth., 179 F.R.D. 585 (W.D. Tex. 1998) (upholding settlement of ADA action); James v. S.E. Pa. Transp. Auth., No. Civ. A. 93-CV-5538, 1997 WL 698035 (E.D. Pa. Nov. 4, 1997) (awarding attorneys' fees to plaintiffs who settled ADA dispute). Cf. Bacal v. S.E. Pa. Transp. Auth., No. Civ. A. 94-6497, 1998 WL 324907 (E.D. Pa. June 3, 1998) (interpreting ADA consent decree).

[FN272]. 41 F. Supp. 2d 343 (E.D.N.Y. 1999), aff'd, 199 F.3d 1322 (2d Cir. 1999) (table).

[FN273]. The station was a commuter rail station rather than a light or heavy rail station; however, commuter rail stations are subject to ADA provisions analogous to those governing other forms of public transit. See 42 U.S.C. ? 12161 et. seq.

[FN274]. Hassan, 41 F. Supp. 2d at 346. The court did not mention whether the station was served by buses.

[FN275]. Id. at 350.

[FN276]. Id. at 351.

[FN277]. Id.

[FN278]. Id. (noting that station at issue was not designated as key station).

[FN279]. Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999).

[FN280]. 56 Fed. Reg. 45584, 45601 (1991) (explaining 49 C.F.R. ? 37.123, setting forth standards for ADA paratransit eligibility).

[FN281]. 42 U.S.C. ? 12142(a).

[FN282]. 42 U.S.C. ? 12143(a)(1).

[FN283]. H.R. Rep. No. 101-485, pt. I, at 24 (1990).

[FN284]. See Transit Fact Book, supra note 184, at 13-14 (in 1992, 27% of transit trips taken by persons with family incomes below $15,000); 1999 Abstract, supra note 2, at 478 (about 13% of all Americans had family incomes below $15,000). The same is true of the disabled. See Survey Program, supra note 49 (29% of the disabled live in poverty, as opposed to 10% of non-disabled, and only 16% of disabled live in households earning over $50,000 annually, as opposed to 39% of non-disabled.).

[FN285]. I examined the Center for Responsive Politics Website, http:// www.opensecrets.org (last visited July 9, 2000), and could find no public transit-related Political Action Committee. By contrast, committees affiliated with the road construction, automobile, and homebuilding industries donated millions of dollars to candidates. Id.

[FN286]. See 1999 Abstract, supra note 2, at 314 (highway spending increased from $9.2 billion to $22.7 billion).

[FN287]. Id. at 314 (transit spending increased by 27%, from $3.12 billion to $3.94 billion), 882 (consumer price index doubled between 1980 and 1998). I note, however, that transit spending has increased in recent years. See Plungis, supra note 82..

[FN288]. See supra notes 25-47 and accompanying text (discussing large number of jobs and other opportunities inaccessible without car in suburbs and small cities).

[FN289]. 74 F. Supp. 1008 (D. Or. 1999).

[FN290]. Id. at 1010.

[FN291]. Id.

[FN292]. Id.

[FN293]. Id. at 1014.

[FN294]. Id.

[FN295]. Id. at 1018. In fact, the court stated that it would not award costs to the victorious defendant because plaintiff's complaints caused "valuable and beneficial improvements in [the] fixed-route bus system, particularly in the areas of accessibility, training, equipment and awareness... [thus] plaintiff's lawsuit ultimately benefited both the disabled and non-disabled members of the community." Id. at 1019.

[FN296]. Id.

[FN297]. Id. at 1018.

[FN298]. No. 5:97-CV-747-BO-1, 1999 WL 735173 (E.D.N.C. Jan. 20, 1999).

[FN299]. Id. at *2.

[FN300]. Id. at *4.

[FN301]. The defendants were a city and a private contractor hired to provide demand response service by the city. Although the contractor provided the service, the city was held vicariously liable for the contractor's conduct. Id. at *9 (public entity liable under ADA for independent contractor's violations as well as those of its employees).

[FN302]. Id. at *6-7.

[FN303]. Id. at *7.

[FN304]. 5 F. Supp. 2d 1078 (N.D. Cal. 1997).

[FN305]. Id. at 1080.

[FN306]. Id. at 1081.

[FN307]. Id.

[FN308]. Id.

[FN309]. Id. at 1082.

[FN310]. Id. at 1083.

[FN311]. Id.

[FN312]. Id. at 1084-85.

[FN313]. Id. at 1085-86. The parties eventually reached a settlement requiring the agency to
rehabilitate or replace all elevators and escalators in key stations over the next three or four years and promptly fix broken elevators and maintain them in good working order, as well as maintaining the sanitary conditions of the elevators... increas[ing] surveillance of the elevators to reduce incidence of vandalism and urination... [and improve the accessibility of other facilities and equipment].
Mattie C. Condray, Recent Developments in Public Transportation Law, 30 Urb. Law. 1091, 1094 (1998).

[FN314]. 986 F. Supp. 1126 (C.D. Ill. 1997).

[FN315]. Id. at 1129.

[FN316]. Id. at 1129-30.

[FN317]. Id. at 1130 (citing ADA legislative history, regulations, and cases). This conclusion was confirmed by the Supreme Court and expanded to encompass asymptomatic HIV-carrier status in Bragdon v. Abbott, 524 U.S. 624 (1998).

[FN318]. 42 U.S.C. ? 12132.

[FN319]. Hamlyn, 986 F. Supp. at 1130.

[FN320]. 42 U.S.C. ? 12132.

[FN321]. 114 F.3d 976 (9th Cir. 1997).

[FN322]. Id. at 978.

[FN323]. Id.

[FN324]. Id.

[FN325]. Id.

[FN326]. Ironically, the indigent plaintiff was represented by an attorney from the highly prestigious law firm of Skadden, Arps, Slate, Meagher, and Flom. See id. at 977 (naming counsel); In re Warner Communications Sec. Litig., 618 F. Supp. 735, 749 (S.D.N.Y. 1985), aff'd, 798 F.2d 35 (2d Cir. 1986) (describing Skadden, Arps as "prestigious").

[FN327]. Weinreich, 114 F.3d at 979.

[FN328]. Id.

[FN329]. See 49 C.F.R. ? 37.131(c).

[FN330]. 42 U.S.C. ? 12147(a) (alterations of fixed route services' facilities); 42 U.S.C. ? 12162(e)(2)(B)(i) (alterations of commuter and inter city rail stations). See also 42 U.S.C. ? 12147(b) (key rapid and light rail stations must be accessible to the disabled); 42 U.S.C. ? 12162(a) (new commuter or intercity rail stations, existing intercity rail stations, and key commuter rail stations must be similarly accessible).

[FN331]. 94 F.3d 808 (2d Cir. 1996).

[FN332]. Id. at 810.

[FN333]. Id. at 812.

[FN334]. 42 U.S.C. ? 12147(a) (referring to "alterations of an existing facility or part thereof"); 42 U.S.C. ? 12162(e)(2)(B)(i) (referring to "alterations of an existing station or part thereof").

[FN335]. See Molloy, 94 F.3d at 811.

[FN336]. Id. at 811-12.

[FN337]. Id. at 812.

[FN338]. Id.

[FN339]. Id.

[FN340]. Id. at 813. The court was rather vague as to whether plaintiffs' claim could succeed on the merits. The court explained that although the machines were not fully accessible to visually impaired riders, it was not yet clear whether the machines were accessible "to the maximum extent feasible" as required by the ADA. Id. at 812-13. Cf. 42 U.S.C. ? 12147(a) (Altered facilities need only be accessible to the disabled to maximum extent feasible.).

[FN341]. 87 F. Supp. 2d 894 (D. Minn. 2000).

[FN342]. Id. at 896.

[FN343]. Id.

[FN344]. Id. at 900 (citing 49 C.F.R. ? 37.129).

[FN345]. Id.

[FN346]. 42 U.S.C. ? 12143(e)(4).

[FN347]. In another section of its opinion, the O'Connor court also suggested that defendants violated the Rehabilitation Act by failing to provide door-to-door service, stating that paratransit's
purpose is to ensure the safety of disabled persons who "by reason of" their disabilities require special assistance to get around safely. Door-to-door service is one component of that assistance, and denial of it, if proved to a jury, is the precise type of behavior that the Rehab Act is enacted to prevent.
O'Connor, 87 F. Supp. 2d at 899. It is not clear, however, whether the court would have so held had the agency not promised such service in its transit plan.

[FN348]. 689 A.2d 1386 (N.J. Super. Ct. App. Div. 1997).

[FN349]. Id. at 1391.

[FN350]. Id.

[FN351]. Id.

[FN352]. Id.

[FN353]. Id.

[FN354]. Id. at 1392.

[FN355]. Id. at 1391-92 (quoting 49 C.F.R. ? 37.123, app. D).

[FN356]. Cf. H. Eric Schockman, Municipal Measures Offer Opportunities to Aid City, L.A. Daily News, Oct. 25, 1998, at V3 (improved sidewalks increase mobility of disabled).

[FN357]. 1995 WL 640599 (Wis. Ct. App. Nov. 2, 1995) (unpublished decision).

[FN358]. Id. at *2.

[FN359]. Id.

[FN360]. Id.

[FN361]. Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1018 (D. Or. 1999). There is a great deal of non-transit case law addressing the question of when compensatory damages are appropriate for unintentional discrimination under the ADA. See, e.g., Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (Intentional discrimination must be shown in order to recover compensatory damages under Title II of the ADA.); Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219-20 (11th Cir. 1992) (same); Tayofa v. Bobroff, 865 F. Supp. 742, 749-50 (D.N.M. 1994) (stating that courts have generally held that intentional discrimination a prerequisite to damages under 42 U.S.C. ? 12133), aff'd mem., 74 F.3d 1250 (10th Cir. 1996); Tyler v. City of Manhattan, 849 F. Supp. 1442, 1444-45 (D. Kan. 1994) (holding that the plaintiff could not recover compensatory damages because he did not allege that intentional discrimination caused his emotional distress, mental anguish and humiliation). But see Ferguson, 157 F.3d at 676-80 (Tashima, J., dissenting) (arguing that Title II does not require plaintiffs to prove intentional discrimination); Tyler, 118 F.3d at 1406 (Jenkins, J., dissenting) (same). For a discussion of the different standards courts have used to determine if an act is "intentional," see Leonard J. Augustine, Jr., Disabling the Relationship Between Intentional Discrimination and Compensatory Damages Under Title II of the Americans with Disabilities Act, 66 Geo. Wash. L. Rev. 592 (1998).

[FN362]. See H.R. Rep. No. 101-485, pt. I, at 24 (1990) (purpose of ADA to bring disabled "fully into the mainstream of American society").

[FN363]. See 42 U.S.C. ? 12142(a) (Newly purchased or leased buses and rail vehicles must be accessible to disabled.); 42 U.S.C. ? 12143 (Disabled persons incapable of using conventional public transit must be provided with paratransit service.).

[FN364]. See, e.g., Dan Hartzell, Tentative LANTA Workers Pact Awaiting Ratification By Union, Allentown Morning Call, Mar. 24, 2000, at B3 (By 2001, 50 of 70 Allentown, Pa. buses will be accessible to disabled.).

[FN365]. 74 F. Supp. 2d at 1012.

[FN366]. 41 F. Supp. 2d at 351.

[FN367]. See supra notes 27-47 and accompanying text (describing inadequacy of transit service in most suburbs and small cities); infra notes 369 and 396- 97 and accompanying text.

[FN368]. See Bill Swindell, Sand Springs Again Will Receive Bus Service, Tulsa World, Feb. 15, 1997, at A11. The service was limited to morning and evening rush hour due to concerns over the cost of providing paratransit for all-day service. Id.

[FN369]. See 1999 Abstract, supra note 2, at 643 (over 90% of households own cars).

[FN370]. See supra note 284 and accompanying text.

[FN371]. See supra note 285 and accompanying text.

[FN372]. See 1999 Abstract, supra note 2, at 314 (highway spending increased by 150% between 1980 and 1999, from $9.2 billion to $22.7 billion).

[FN373]. Operating expenses include the costs of operating and maintaining existing vehicles, such as employee benefits, tires, fuels, utilities, and insurance. See Transit Fact Book, supra note 184, at 57-58. By contrast, government has been more generous with capital costs (which include the costs of new facilities and construction). Id. at 38-39, 46-47. Over 2/3 of capital spending goes to rail. Id. at 47. Because the majority of cities have bus-only transit systems, spending figures for operating expenses are far more relevant to the majority of transit systems. See id. at 23 (America has 2250 bus systems, as opposed to 22 light rail, 16 commuter rail, and 14 heavy rail.), 69 (61% of transit users ride buses).

[FN374]. See George Bush, Signing Statement, Pub. L. No. 101-336, reprinted in 1990 U.S.C.C.A.N. 601 (Act signed in July 1990).

[FN375]. See Transit Fact Book, supra note 184, at 52 (government funding increased by less than 1% between 1990 and 1996); 1999 Abstract, supra note 2, at 495 (consumer price index for all items increased by 20% between 1990 and 1996).

[FN376]. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN377]. See supra notes 24-47 and accompanying text (describing inadequacy of American public transit).

[FN378]. See, e.g., 42 U.S.C. ? 2000a (prohibiting discrimination in public accommodations "on the ground of race, color, religion or national origin"); 42 U.S.C. ? 2000e-2 (prohibiting similar discrimination in employment context).

[FN379]. See supra notes 50-52 and accompanying text (questioning whether status of disabled has improved since 1990, and suggesting possible explanations for the absence of progress).

[FN380]. See John J. Coleman & Marcel L. Debruge, A Practitioner's Introduction to ADA Title II, 45 Ala. L. Rev. 55, 105 (1993) (If cities cannot afford to expand transit service for disabled to extent required by ADA, they face a choice between "either ignoring the regulations... or complying with the regulations in the only way that they can afford--eliminating mass transit entirely.").

[FN381]. See Hynes-Cherin, supra note 11. About 3/4 of this sum was spent to satisfy the ADA's paratransit requirements. See Doherty, supra note 11. It is unclear whether Congress expected the ADA to cost this much: before the statute's passage, the Congressional Budget Office estimated the costs of retrofitting buses and train stations to make them more accessible to the disabled, but refused to estimate the costs of the ADA's paratransit provisions. See H.R. Rep. No. 101-485, pt. III, at 80-82 (1990) (stating that "we cannot estimate the potential cost of the paratransit requirement" but estimating that addition of wheelchair lifts to buses would cost $20-30 million per year, maintenance of lift-equipped buses would cost $15 million per year, and modernization of rail facilities would cost $1 billion over 20 years).

[FN382]. See 1999 Abstract, supra note 2, at 314 (In the late 1990s, federal grants to transit systems ranged from $3.9 billion to $4.5 billion.).

[FN383]. See id. at 314, 495 (Transit spending increased from $3.7 billion to $4.2 billion, or 15%, while consumer price index increased by 20%.).

[FN384]. See Transit Fact Book, supra note 184, at 52. As noted above, operating expenses are more important to most transit users than capital expenses, because capital spending goes mostly to rail systems, and most cities lack rail of any sort. See id. at 37 (only 35.5% of capital grants went for bus-related projects), 119 and 121 (only 25 cities have heavy or light rail service).

[FN385]. See Hynes-Cherin, supra note 11.

[FN386]. I calculate this figure as follows: federal transit grants, including both capital subsidies and operating expense subsidies, increased in nominal terms from $3.7 billion to $4.2 billion between 1990 and 1998. 1999 Abstract, supra note 2, at 314. To reach the "post-ADA" total, I subtract $1.4 billion in ADA-related costs (thus giving a federal spending total of $2.8 billion, a 24% cut in nominal terms). See Hynes-Cherin, supra note 11 (estimating that ADA costs transit agencies $1.4 billion annually). I then factor in the 21% decrease in the dollar's value, 1999 Abstract, supra note 2, at 493, for a grand total of a 45% cutback.

[FN387]. See Transit Fact Book, supra note 184, at 38 (federal and state governments increased capital spending on transit between 1990 and 1996), 52 (federal government cut operating subsidies by over 40%, before adjusting for inflation); Congress Approves $4.1 Billion for Transit in Fiscal Year '96, Urban Transp. News, Nov. 8, 1995, available at 1995 WL 8354546 ("new starts" capital grant program not cut at all, while operating assistance cut by 44%) [[hereinafter $4.1 Billion].

[FN388]. See Transit Fact Book, supra note 184, at 37, 57 (only 35.5% of capital grants used for bus projects, as opposed to 57.6% of operating expenses); Mid-Sized Transit Agencies Hit Hardest by Federal Cuts, Urban Transp. News, Jan. 3, 1996, available at 1996 WL 8088255 (transit service cut most in mid-sized cities as opposed to larger cities, because mid-sized cities more dependent on federal operating assistance); Urban Caucus Opposes Operating Assistance Phase-Out, Urban Transp. News, Jan. 7, 1994, available at 1994 WL 2684899 ("[S]mall and mid-sized transit agencies... depend heavily on [operating] assistance."); Lean with the Green, Mass Transit, July 1, 1994, at 44 ("[F]ederal operating aid takes up a relatively small share of expenses for transit systems in large cities such as New York.").

[FN389]. See Transit Fact Book, supra note 184, at 72-73 (transit users in smaller cities more likely to be poor, female and disabled); Eric Mann, Radical Social Movements and the Responsibility of Progressive Intellectuals, 32 Loyola L.A. L. Rev. 761, 776 (1999) (bus riders in Los Angeles disproportionately low-income and minority to greater extent than subway riders).

[FN390]. See Transit Fact Book, supra note 184, at 37 (capital spending targeted to rail/non-bus projects), 23, 119, 121 (only a few large cities have rapid or light rail service).

[FN391]. See Fares Up, Service and Employment Down as Transit Budget Cuts Hit Home, APTA Survey Finds, U.S. Newswire, May 6, 1996, available at 1996 WL 5621136. The cuts were approved by Congress in November 1995, which means that the service cuts and fare increases took place over a period of only seven months. See $4.1 Billion, supra note 387.

[FN392]. In November 1995, Congress passed a budget that reduced operating assistance by 44%. Id.

[FN393]. See Transit Fact Book, supra note 184, at 7.

[FN394]. See Costs of Paratransit Service Higher than Government Admits, Urban Transp. News, May 24, 1995, available at 1995 WL 8354463.

[FN395]. See Crimmins, supra note 12.

[FN396]. See Marian Lumpkin, "Everybody Loses" in Bus Cuts, Richmond Times-Dispatch, Sept. 27, 1992, at B1. See also Swindell, supra note 368 (describing similar reductions in Tulsa bus service).

[FN397]. See Orsi, supra note 13 (blind especially dependent on public transit even before ADA's enactment).

[FN398]. See supra note 11 ($1.1 billion of $1.4 billion cost of ADA devoted to paratransit).

[FN399]. See Millar, supra note 2 (estimating that 24 million disabled Americans unable to drive); Rennert, supra note 17, at 399 (only 1.4 million Americans unable to use fixed-route transit).

[FN400]. See H.R. Rep. No. 101-485, pt. I, at 27 (1990) ("individuals who use wheelchairs are specifically referenced" in ADA); id. at 58 (Section 222 of ADA "mandates [wheelchair] lifts on every new public transit bus."); Tucker, supra note 9, at 931 (major ADA-related change to fixed-route service is that "new buses and rail systems will have to be fitted with lifts or ramps and fold-up seats or other wheelchair spaces with appropriate securement devices"); Regulations Compliance Update, Mass Transit, July 1, 1994, at 44 (Transit industry executives discussed ADA compliance, and consistently described their major challenges as paratransit spending and making buses wheelchair-accessible.).

[FN401]. See 49 C.F.R. ? 37.131(a)(1) and (a)(3).

[FN402]. See Judith Davidoff, Riders to Get Say on Bus Fares, Cuts, Cap. Times, May 6, 2000 ("Cutting an entire [bus] route can hire dire consequences not only for those who use the fixed route service, but for partransit riders as well: Service for people with disabilities is provided only within three-quarters of a mile from a mainline route."); Mark Eddington, Route Plan May Strand Disabled Riders, Salt Lake Trib., Feb. 25, 2000, at C1 (Possible elimination of bus routes in suburban Salt Lake City might strand disabled individuals living near areas served by routes.).

[FN403]. See Lumpkin, supra note 396 (describing service cuts near Richmond, Va.); Swindell, supra note 368 (describing service cuts in Tulsa, Ok.); Trebor Banstetter, Palm Tran Routes, SpecTran Cut in Jupiter, Palm Beach Post, Apr. 21, 1999, at 1B (describing service cuts in Jupiter, Fla.).

[FN404]. See Lori McClung, Losing Access: Compliance with Act Restricts Bus Line's Service Area, J. & Courier, Feb. 1, 1993, available at 1993 WL 3148300. Cf. Scott Powers, Board May Not Cut Its Bus Rides for the Disabled, Columbus Dispatch, Sept. 25, 1996, at 4B (bus system in Columbus, Ohio, considered but rejected similar cutbacks).

[FN405]. See Hassan v. Slater, 41 F. Supp. 2d 343, 351 (E.D.N.Y.), aff'd, 199 F.3d 1322 (2d Cir. 1999) (elimination of train station did not violate ADA if it "affects all potential users, not merely disabled users"); Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN406]. See supra notes 25-47 and accompanying text (describing gaps in American transit service).

[FN407]. In addition, a variety of other reforms in areas unrelated to transportation could assist transit-dependent Americans by reversing the anti-urban/anti-transit policies discussed supra in notes 129-60, thus making it easier for all Americans to live and work in transit-friendly areas. A full discussion of such "smart growth" reforms, however, is so extensive as to be beyond the scope of this Article. Cf. Michael Lewyn, Suburban Sprawl: Not Just an Environmental Issue Anymore, 84 Marq. L. Rev. 301, 371-82 (2000) (proposing educational and tax reforms to make cities and older suburbs areas more attractive to middle class); Andres Duany et al., Suburban Nation (2000) (proposing a variety of land use-related reforms to make suburbs and cities less auto-dependent).

[FN408]. See Hassan, 43 F. Supp. at 351.

[FN409]. See supra notes 394 and accompanying text (By 1995, 60% of transit systems either had reduced services, increased fares, or laid off employees to meet costs of ADA compliance, or were considering doing so.); Crimmins, supra note 12 (example of service reduction in order to meet costs of ADA compliance).

[FN410]. See Lumpkin, supra note 396 (example of service reduction calculated to reduce paratransit expenses by reducing fixed-route transit service); Swindell, supra note 368 (same); Banstetter, supra note 403 (same).

[FN411]. See 42 U.S.C. ? 12101(8) ("[T]he Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."); H.R. Rep. No. 101-485, pt. I, at 24 (purposes of ADA are to "welcome individuals with disabilities fully into the mainstream of American society" and to "make progress in providing much needed transit services for individuals with disabilities").

[FN412]. A legislative solution is preferable because as a matter of law, Hassan may have interpreted the ADA correctly. See supra notes 282-83 and accompanying text (suggesting that Hassan consistent with text of ADA).

[FN413]. I consider maintenance cutbacks to be de facto reductions of service, because such policies effectively reduce the quantity of transit service a rider can purchase by making buses unusable. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1010 (D. Or. 1999) (maintenance failures prevented disabled plaintiff from boarding buses); Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083 (N.D. Cal. 1997) (inadequate maintenance rendered trains unusable to disabled).

[FN414]. Cf. Roads, supra note 91 (fifty largest metro areas added new road capacity during 1980s and 1990s, usually at greater rate than growth of regional population).

[FN415]. See Banstetter, supra note 403 (Resident of Jupiter, Fla. opposed elimination of bus route because "My [visually impaired] wife and I deliberately chose our house because it is close to the bus lines... [t]his [[route cut] will create tremendous difficulties for us."); Davidoff, supra note 402 (quoting Madison, Wisconsin local officeholder's statement that "if you take off a route, you could be stranding people who are very transit dependent"); Eddington, supra note 402 (Superintendent of state developmental center asserted that if certain bus routes near Salt Lake City were eliminated, "about 100 people with disabilities would lose their jobs and independence if those routes are lost.").

[FN416]. See 1999 Abstract, supra note 2, at 317 (State and local governments spent $25 billion on public transit in 1996, and $1.3 trillion on all government services; thus, public transit constituted 2% of state and local budgets.).

[FN417]. Id. at 316 (state and local government spending increased by nearly 220%, from $307 billion to $982.6 billion, from 1980 to 1997), 495 (consumer price index increased by less than 100% during same period).

[FN418]. See Al Lembke, Rail Failures, Press Democrat, June 7, 1997, at B7 (criticizing proposed light rail system because "[n]o public transportation system pays for itself through fares.... The only people who benefit from such an undertaking are the contractors and politicians who get kickbacks").

[FN419]. See 1999 Abstract, supra note 2, at 635 (government at all levels spent $92 billion on highways, but received only $59 billion in fuel taxes). Moreover, government arguably subsidizes drivers by financing a variety of auto-related costs other than highways from general revenues. See F. Kaid Benfield, Running on Empty: The Case for a Sustainable National Transportation System, 25 Envtl. L. 651, 654 (1995) (According to study by Natural Resources Defense Council, "[a]utomobiles received a much higher aggregate subsidy than does bus or rail transport" because drivers do not pay social costs such as "congestion, subsidized parking, accidents, noise, building damage, and air and water pollution."); Lewyn, supra note 93, at 541- 42.

[FN420]. See 1999 Abstract, supra note 2, at 314, 635 (highway funding consistently increased in 1980s and 1990s).

[FN421]. See supra notes 85-102, and accompanying text.

[FN422]. See supra note 86 and accompanying text (noting that suburban highways shift commercial as well as residential development to suburbs).

[FN423]. Because the primary purpose of such a law would be to ferry transit users to jobs and recreational opportunities in the suburbs, the NWRT law would require service only to streets containing such amenities, and would require service for as long as such opportunities were open (e.g., until most or all merchants on the street closed at night).

[FN424]. See 1999 Abstract, supra note 2, at 635 (over 60% of highway spending financed by fuel taxes).

[FN425]. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN426]. See 42 U.S.C. ? 12111(5)(a).

[FN427]. See 42 U.S.C. ? 12112 (No covered employer "shall discriminate against a qualified individual because... of the disability of such individual.").

[FN428]. 42 U.S.C. ? 12111(8).

[FN429]. See 42 U.S.C. ? 12112(b)(5) (Discrimination means "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.").

[FN430]. Id. See also Jeffrey Van Detta, "Typhoid Mary" Meets the ADA: A Case Study of the "Direct Threat" Standard Under the Americans with Disabilities Act, 22 Harv. J. Law & Pub. Pol'y 849, 867 & nn.75-78 (1999) (discussing factors relevant to "undue hardship" inquiry).

[FN431]. See Patterson v. Meijier, 897 F. Supp. 1002, 1007 (W.D. Mich. 1995).

[FN432]. Presumably, such a statute would contain an exemption for rural employers; suburban employers could employ transit-dependent individuals from central cities, but rural employers by definition have no central city to recruit anyone from.

[FN433]. See 42 U.S.C. ? 12111(5) ("[T]he term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees.").

[FN434]. See Benfield et al., supra note 34, at 112-13 ("There is a common belief among local governments that, contrary to the situation with respect to residential neighborhoods, the revenues generated from commercial land uses have only positive fiscal benefits and may be used to offset the high costs of providing public services to residential developments.... As a result, many local governments still aggressively seek commercial and industrial developments.").

[FN435]. See Thomas P. Wyman, Disabled Fight to Keep IndyGo Service, Indianapolis Star, Dec. 14, 1998, at A1.

[FN436]. See Correspondence with Terry Bronson, Aug. 20, 1998 (on file with author). Ironically, the researcher opposed universal transit access on the ground that even $1 billion was too much because of the likely low ridership. I disagree, because I believe there may be a significant untapped potential demand for public transit. Only 5.3% of Americans use public transit to commute to work, 1999 Abstract, supra note 2, at 641, but 9% of households lack a vehicle, id. at 643, and many auto-owning households (including every such household with a child under 16) presumably include at least one nondriver. Specifically, there are 182 million persons over 16, but only 163 million licensed drivers. Id. Thus, 19 million adults have no drivers' license--a number that exceeds the number of carless households by 10 million. In addition, the 54 million Americans under age 16 presumably do not drive. Id.

[FN437]. See 1999 Abstract, supra note 2, at 635 ($101 billion spent on highways alone).

[FN438]. Id. at 1319 (State and local government spending exceeds $1.3 trillion.).

[FN439]. See supra note 437 and accompanying text.

[FN440]. See supra note 438 and accompanying text.

[FN441]. See Patterson v. Meijier, 897 F. Supp. 1002, 1007 (W.D. Mich. 1995) (such an accommodation reasonable).

[FN442]. See, e.g., Jerry Heaster, Mass Transit: Just the Ticket to Waste Taxes, Kansas City Star, June 9, 2000, at C1 (Instead of investing in buses and trains for everyone, society should "subsidize transportation assistance for the economically disadvantaged, the disabled or the elderly unable to get around on their own. This sort of taxpayer help, however, would be focused narrowly on the need of those for whom help is crucial to their well-being.").

[FN443]. See Rennert, supra note 17, at 362 ("Paratransit is so costly that it can meet only a small fraction of the transportation needs of disabled riders."); id. at 395-97 (citing DOT cost projections supporting this view and explaining that DOT actually overestimated usefulness of paratransit by counting only wheelchair users as disabled fixed-route users but counting all passengers as paratransit riders); Lynette Petty, Section 504 Transportation Regulations: Molding Civil Rights Laws to Meet the Realities of Economic Constraints, 26 Washburn L.J. 558, 600 (1987) ("Paratransit systems are the most expensive to operate.... An accessible bus system appears to be the most cost-effective approach for small cities.").

[FN444]. Cheryl Little, Disabled in Action, Envtl. Action, Mar. 22, 1996, at 27.

[FN445]. See Millar, supra note 2 (24 million disabled Americans unable to drive); Rennert, supra note 17, at 399 (1.4 million Americans too severely disabled to use fixed-route buses).

[FN446]. See Transit Fact Book, supra note 184, at 110-123 (On an average weekday Americans take 341,000 demand-response trips, as opposed to over 24 million bus and train trips.).

[FN447]. See Hynes-Cherin supra note 11 (ADA cost transit operators $1.4 billion per year); Doherty, supra note 11 (paratransit provisions of ADA cost transit operators $1.1 billion per year).

[FN448]. See 42 U.S.C. ? 12143(c)(1) (Paratransit services must be provided to disabled individuals who are unable to board buses or trains without assistance, cannot travel to bus or train stop, or wish to travel at a time when only buses or trains available are inaccessible to the disabled.).

[FN449]. See 49 C.F.R. ? 37.131(b).

[FN450]. See H.R. Rep. No. 101-485, pt. I, at 38 (1990).

[FN451]. See Kate Miller, Disabled Riders Rely on Unreliable Service, Tennesseean, July 5, 2000, at 1B (In Nashville, "[a]t times the waiting list for rides has topped 400.... Delays and changes in pickup times remain troubling. For a disabled person dependent on public transportation, these minutes can be the difference between having and not having a job, getting or not getting a degree and making or missing doctor appointments."); Alfonso R. Castillo, The Ride Stuff: Disabled Want Better Bus Service, Newsday, Mar. 18, 2000, at A37 (In Suffolk County, New York, paratransit riders "must call a week in advance if they expect to get an appointed time near the one they want... once the appointment is made, the buses rarely show up on time.").

[FN452]. See 49 C.F.R. ? 37.131(b).

[FN453]. See 49 C.F.R. ? 37.131(c).

[FN454]. See 49 C.F.R. ? 37.131(a)(1).

[FN455]. See 49 C.F.R. ? 37.131(a)(3).

[FN456]. See Heaster, supra note 442 (transit critic admits that public spending necessary to assist transit-dependent poor); Simmons, supra note 2, at 260 (94% of welfare recipients lack cars).

[FN457]. See Miller Tours, Inc. v. Vanderhoof, 13 F. Supp. 2d 501, 503 (S.D.N.Y. 1998) (State aids mass transit "as a means of reducing energy demands, traffic congestion, and air pollution.").

[FN458]. Id.

Utah article on growth boundaries
2002 Utah L. Rev. 1


Utah Law Review
2002


Articles


*1 SPRAWL, GROWTH BOUNDARIES AND THE REHNQUIST COURT


Michael Lewyn [FNa1]


Copyright ? 2002 Utah Law Review Society; Michael Lewyn


I. Introduction
Over the past several decades, metropolitan America has been revolutionized by suburban sprawl--"low-density, single-use development, married with strip and auto-oriented commercial land uses, at the very edges or beyond the fringe of existing urbanization." [FN1] Sprawl typically involves: (1) low-density development requiring dependence on automobiles; (2) segregated land uses (that is, commercial uses are far from residential uses); (3) long distances and poor non-automotive access between housing, jobs, and schools; (4) consumption of land for suburban development occurring at a faster rate than population growth; and (5) "consumption of agricultural and/or environmentally sensitive land for suburban development." [FN2] At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN3] By contrast, in 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN4] *2 In recent years environmentalists, [FN5] many planners, [FN6] and a few politicians [FN7] have sought to limit suburban sprawl. A recent survey by the General Accounting Office (GAO) revealed that 84% of county officials and 64% of city officials rate sprawl as a "high," "very high," or "moderate" concern. [FN8]
Critics of the status quo argue, inter alia, [FN9] that suburban sprawl:
1. Destabilizes urban neighborhoods, causing "a middle class exodus from the central city, causing in turn crime and the segregation of poorer and minority populations in the declining central city." [FN10]
2. Destroys farmland and open space; for example, "from 1982 to 1992 [America] lost to urban and suburban development an average of 400,000 acres per year of 'prime' farmland, the land with the best soils and climate for growing crops." [FN11]; and
*3 3. Forces Americans to drive in order to meet their basic needs, increasing vehicle traffic, thus increasing air pollution [FN12] and traffic congestion. [FN13]
*4 The most stringent [FN14] anti-sprawl measure adopted by any American state is Oregon's "urban growth boundary" (UGB) [FN15] program. Urban growth boundaries are "lines on maps, surrounding areas already marked by 'urban-type' development, within which that type of development is to be channeled and encouraged, *5 and beyond which such development is to be discouraged or forbidden." [FN16] Outside the boundary, rural industries (such as logging) and open space are promoted. [FN17]
This Article briefly describes Oregon law, and then focuses on three issues: (1) whether UGBs are constitutional under the Supreme Court's 2001 decision in Palazzolo v. Rhode Island [FN18] and other relevant precedent, (2) whether the UGB has in fact saved Portland (Oregon's largest city) [FN19] from the social problems caused by sprawl, and (3) whether the side effects of UGBs make them a cure worse than the disease of sprawl.


II. Background: What Oregon Law Requires
In 1973, Oregon enacted Senate Bill 100, which established a comprehensive statewide growth management program. [FN20] Senate Bill 100 was enacted based on legislative findings that "[u]ncoordinated use of lands within this state threaten the orderly development, the environment of this state and the health, safety, order, convenience, prosperity and welfare of the people of this state," [FN21] and that "[t]he promotion of coordinated statewide land conservation and development requires the creation of a statewide planning agency to prescribe planning goals and objectives to be applied by state agencies, cities, counties and special districts *6 throughout the state." [FN22] The Oregon Legislature accordingly created a new citizen commission to oversee the planning program, the Land Conservation and Development Commission (LCDC). [FN23] The Legislature also created the Department of Land Conservation and Development as LCDC's staff for implementing the program, [FN24] and directed the LCDC to appoint the Department's director and supervise its staff. [FN25] The Legislature further required all Oregon cities and counties to adopt comprehensive land use plans and regulations implementing such plans. [FN26] The Legislature defined a comprehensive plan as a "generalized, coordinated land use map and policy statement . . . that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs." [FN27] Such plans must be consistent with statewide planning goals [FN28] to be drafted by the LCDC. [FN29] Between 1974 and 1976, the LCDC adopted nineteen planning goals. [FN30] Local governments then adopted land use plans, which were reviewed by LCDC. [FN31]
Although the Oregon Legislature did not directly state that local governments must establish UGBs, it implicitly did so by using the term "urban growth boundary" in numerous statutes. [FN32] So the LCDC satisfied legislative intent when *7 it enacted Planning Goal 14, which specifically requires every incorporated community to establish a UGB [FN33] that excludes rural land. [FN34] The Oregon courts have interpreted Goal 14 "to prohibit urbanization outside existing UGBs" [FN35] and therefore to "preclud[e] the conversion of rural land to urban use" [FN36] outside UGBs. [FN37] Neither Goal 14 nor any other LCDC rule defines the term "urban use." [FN38] However, the Oregon courts have held that an outdoor performing arts center seating 15,000 people is an "urban" [FN39] land use, as are "areas of half-acre residential lots to be served by community water and sewer." [FN40] On the other hand, "residential density of one house per ten acres is generally not an urban intensity." [FN41]
Land outside UGBs may be converted to "urban use" only if such land is physically developed to the extent that it is no longer available for rural land uses [FN42] or is "irrevocably committed to urban levels of development" [FN43]--that is, if "it is impracticable to allow any rural uses in the . . . area." [FN44] To take advantage of these exceptions to Goal 14 (or to "take an exception," in the terminology used by Oregon courts), [FN45] a local government must show not only that commercial farm or forest use is impractical, but that all other rural uses (including sparse settlement, small farms, etc.) are impractical. [FN46]
*8 A UGB must contain the urban core and sufficient undeveloped land to accommodate population growth. [FN47] UGBs are drawn and amended based on seven factors enunciated in Goal 14: (1) the need to accommodate long-term population growth consistent with LCDC goals, (2) the need for housing, employment opportunities, and livability, (3) the orderly and economic provision for public facilities and services, (4) maximum efficiency of land uses, (5) the environmental, energy, economic, and social consequences of a plan, (6) the retention of agricultural land uses, and (7) the compatibility of urban land uses with nearby agricultural activities. [FN48]
Portland's UGB is administered by a regional agency, the Portland Metropolitan Service District (commonly known as "Metro"). [FN49] Metro has the power to force cities and counties to amend their land use plans to conform with the boundary set by Metro. [FN50] The Portland metropolitan UGB was adopted by Metro in 1979, approved by LCDC in 1980, [FN51] and encompasses twenty-four municipalities, portions of three counties, [FN52] and 369 square miles (or 236,000 acres) of land. [FN53]


III. Constitutionality: Are UGBs an Unconstitutional "Taking" of Land?
The United States Constitution provides that private property may not "be taken for public use, without just compensation." [FN54] It is not clear that the Framers of the Takings Clause intended it to restrict regulation of property (as opposed to *9 actual physical appropriation). [FN55] Nevertheless, the Supreme Court has held that "there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs." [FN56] Some commentators have suggested that UGBs are intrusive enough to constitute a "taking" of land, and thus cannot be implemented unless the government compensates all property owners adversely affected thereby. [FN57] Although no Supreme Court case is directly on point, lower court decisions have indirectly addressed the constitutionality of growth boundaries.

A. Are UGBs a "Taking" Under Supreme Court Precedent?


1. The Key Cases: A Summary
In the 1978 case of Penn Central Transportation Co. v. New York City, [FN58] the Supreme Court announced a three-part balancing test governing "regulatory takings" cases: in determining whether a land use regulation is intrusive enough to constitute a "taking," the court weighs the regulation's economic effect on the landowner, the extent to which the regulation interferes with a landowner's reasonable investment-backed expectations, and the character of the government action. [FN59] In the Palazzolo case, the Supreme Court reiterated its commitment to the Penn Central balancing test. [FN60]
*10 Of all the Court's post- Penn Central cases, the case of Agins v. Tiburon [FN61] is most closely on point. The Agins plaintiffs challenged municipal zoning ordinances that prohibited the construction of more than five single-family homes on the plaintiffs' five-acre tract of land. [FN62] Specifically, the plaintiffs argued that the zoning ordinances were a "taking" because they "forever prevented [their land's] development for residential use" [FN63] and thus "completely destroyed the [land's] value." [FN64]
The Supreme Court upheld the zoning ordinances, for two reasons. First, the ordinances "substantially advance legitimate governmental goals" [FN65]-- specifically, "protect[ing] the residents of [the city] from the ill effects of urbanization." [FN66] Second, the ordinances did not "prevent the best use of [plaintiffs'] land . . . nor extinguish a fundamental attribute of ownership" [FN67] because the plaintiffs "may be permitted to build as many as five houses on their five acres of prime residential property." [FN68]
The zoning ordinances upheld in Agins are quite similar to Oregon's urban growth boundaries. Both UGBs and the zoning laws at issue in Agins limit development in rural areas in order to prevent urbanization of those areas. [FN69] And like the ordinances at issue in Agins, Oregon law allows some residential development on rural land: the Oregon Supreme Court has stated that residential development outside UGBs is not an "urban use" (and is therefore allowed) if the developer builds no more than one unit every ten acres, [FN70] and has reserved judgment on whether the one-acre lots contemplated by Agins [FN71] are "urban" (and thus presumably forbidden outside UGBs). [FN72] In other words, the major difference *11 between the ordinances upheld in Agins and Oregon law is that the former allowed landowners to build one lot per acre, while Oregon law allows landowners to build one lot (and maybe more) per ten acres--a distinction of no obvious constitutional significance.
It could be argued that Agins is no longer dispositive, because Rehnquist Court rulings have sharply curtailed government regulation of land use. [FN73] Two decisions in particular are arguably relevant: Lucas v. South Carolina Coastal Council [FN74] and Palazzolo v. Rhode Island. [FN75]
The Lucas plaintiff purchased two beachfront lots in South Carolina on which he intended to build houses. [FN76] Two years after he purchased the lots, the state enacted a law which prohibited such beachfront construction. [FN77] The Court assumed for the purposes of its decision that this statute "rendered [plaintiff's] parcels 'valueless."' [FN78] The Court stated that as a general rule, [FN79] a taking occurs when land use regulation (1) "'does not substantially advance legitimate state *12 interests"' [FN80] or (2) "'denies an owner economically viable use of his land."' [FN81] Because the statute at issue prevented the plaintiff from gaining any financial benefit from his land, the Court held that the plaintiff had suffered a constitutional taking unless the state could "identify background principles of nuisance and property law that prohibit the uses he now intends." [FN82] The Court reasoned that
regulations that leave the owner of land without economically beneficial or productive options for its use--typically, as here, by requiring land to be left substantially in its natural state--carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. [FN83]
The Court accordingly remanded the case to the South Carolina courts so the state could have a chance to "identify background principles of nuisance and property law that prohibit the uses [Lucas] now intends in the circumstances in which the property is presently found." [FN84] The Court added in dicta that a landowner "whose deprivation is one step short of complete" [FN85] may be entitled to compensation under certain circumstances, explaining:
Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, '[t]he economic impact of the regulation on the claimant and . . . the extent to which the regulation has interfered with distinct investment-backed expectations' are keenly relevant to takings analysis generally. [FN86]
The Palazzolo court elaborated on Lucas by clarifying the Court's definition of a "total taking" [FN87] and by explaining the relationship among the factors relevant *13 to "partial taking" cases. [FN88] In 1959, the Palazzolo plaintiff formed a corporation to develop waterfront land in Rhode Island. [FN89] The corporation's applications were denied three times by various Rhode Island agencies--first for lack of essential information, and later on environmental grounds. [FN90] In 1971, Rhode Island enacted legislation creating the Rhode Island Coastal Resources Management Council ("the Council"), an administrative agency charged with the duty of protecting the state's wetlands. [FN91] In 1978, the corporation's charter was revoked for failure to pay corporate income taxes, and title to the property passed to the plaintiff as the corporation's sole shareholder. [FN92] The plaintiff then filed two additional development applications with the Council. Both were denied because of their adverse impact on salt marshes within the property; [FN93] under the Council's regulations, such salt marshes were "coastal wetlands" on which development must be limited. [FN94] The Rhode Island Supreme Court affirmed the decision of the Council. [FN95] The plaintiff appealed this decision to the U.S. Supreme Court, which reversed in part and remanded. [FN96]
The Supreme Court began its opinion with a general description of the law of regulatory takings. The Court held that "a regulation which 'denies all economically beneficial or productive use of the land' will require compensation under the Takings Clause." [FN97] The Court added that
where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of facts including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. [FN98] *14 Thus, the government generally must compensate landowners for regulations that are "total takings," [FN99] that is, those that deprive landowners of all "economically beneficial use" of their land. [FN100] By contrast, "partial taking[s]," [FN101] that is, regulations that do not eliminate all economically beneficial use of the plaintiff's land, are judged by the Penn Central three-part balancing test. [FN102]
As to the "total takings" half of this test, the Court affirmed the Rhode Island court, holding that the Rhode Island regulations were not a "total taking" because even after the Rhode Island authorities' adverse decision, the plaintiff could still build a $200,000 residence on his eighteen-acre parcel. [FN103] The Court explained that "[a] regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property 'economically idle."' [FN104] Further, "it is undisputed that the parcel retains significant worth for construction of a residence." [FN105]
The Court went on, however, to hold that the Rhode Island Supreme Court had erroneously analyzed the plaintiff's "partial takings" claim, and to remand the case to the Rhode Island courts so that they could address that claim under the Penn Central balancing test. [FN106] The Court reversed for two reasons. First, the Rhode Island Supreme Court erred in holding that the plaintiff's takings claim was not yet ripe for judicial review. [FN107] Second, the state court erred in holding that the plaintiff "had no reasonable investment-backed expectations that were affected by [the state's] regulation . . . [because he] did not become the owner of the land until 1978 . . . [when] there were already regulations in place limiting Palazzolo's ability to fill the wetlands for development." [FN108]
As to the latter issue, the Court explained that an otherwise unreasonable taking
do[es] not become less so through passage of time or title. . . . [Otherwise] the post enactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. [FN109] *15 In other words, a regulation may be a compensable "taking" even if it is enacted before the plaintiff buys the land being "taken."
Because the Court so held by a five to four margin, [FN110] Justice O'Connor's separate concurrence is especially significant as to the "investment-backed expectations" issue. Justice O'Connor wrote that "the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction," but that nonetheless, the Court's holding "[did] not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn Central analysis." [FN111] Instead, "interference with investment-backed expectations is one of a number of factors that a court must examine. . . . [T]he regulatory regime in place at the time the claimant acquires the property at issue helps shape the reasonableness of those expectations." [FN112] In support of this view, Justice O'Connor reasoned that if
existing regulations dictate the reasonableness of [investment-backed] expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. . . . [But] if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. [FN113] Justice O'Connor accordingly wrote that rather than adopting "per se rules," [FN114] courts "must attend to those circumstances which are probative of what fairness requires in a given case." [FN115] In other words, "investment-backed expectations" are *16 one of the three factors examined under the Penn Central balancing test, and a landowner's decision to acquire property already governed by the challenged regulations is in turn highly relevant to the presence or absence of such expectations.
Justice O'Connor also discussed the third of the Penn Central factors: the "character of the governmental action" challenged by a Takings Clause plaintiff. [FN116] She explained that under this prong of the Penn Central test, a "use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose." [FN117] This language echoes the Agins Court's requirement that a regulation "substantially advance legitimate governmental goals" [FN118] in order to not constitute a taking. Because Justice O'Connor supplied the crucial fifth vote for the Court's decision, her concurrence is likely to be followed by future courts. [FN119]
In sum, Palazzolo, interpreted in light of Justice O'Connor's concurrence holds:
1. That "a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings Clause." [FN120]
2. That a regulation allowing a landowner to build one house on eighteen acres of land is not such a "total" taking. [FN121]
3. That regulations other than "total takings" are governed by the Penn Central balancing test, under which the courts must balance: (a) "the regulation's economic effect on the landowner," [FN122] (b) "the extent to which the regulation interferes with reasonable investment-backed expectations," [FN123] and (c) "the character of the government action" [FN124] (that is, the extent to which a "substantial public purpose" [FN125] supports the regulation at issue).
*17 2. Applying the Case Law to UGBs


(a) Are UGBs an Unconstitutional "Total Taking"?
As noted above, a regulation which "denies all economically beneficial or productive use of land" [FN126] will generally require compensation under the Takings Clause. UGB statutes modeled on Oregon law are clearly not such a "total taking" under Palazzolo. [FN127] The Palazzolo plaintiff sought to persuade the Supreme Court that he suffered a "total taking" [FN128] because he could only build one $200,000 residence on his eighteen-acre parcel. [FN129] The Supreme Court flatly rejected this theory, holding that a regulation "permitting a landowner to build a substantial residence on an eighteen-acre parcel does not leave the property 'economically idle."' [FN130]
Landowners in Oregon can do far more with their land than the Palazzolo plaintiff could do with his, for two reasons. First, the Oregon courts have held that houses on ten-acre lots are not "urban uses" [FN131] and thus may be built outside UGBs. [FN132] By contrast, the Palazzolo plaintiff could only build one house on an eighteen-acre parcel. [FN133] Second, Oregon landowners are not even limited to building one house on a large parcel of land: instead, they may also use land outside UGBs for agricultural purposes, [FN134] and may even convert such land to urban uses if "it is impracticable to allow any rural uses" [FN135] on such land. Thus, Oregon law is apparently less restrictive than the regulations challenged in Palazzolo. It follows that if the Rhode Island regulations at issue in Palazzolo did not "leave the [plaintiff's] property 'economically idle,"' [FN136] Oregon's less *18 restrictive laws do not do so either, and thus are not a "total taking" under Lucas and Palazzolo.
Some commentators endorse a more pro-plaintiff interpretation of Supreme Court precedent. For example, one commentator writes that because UGBs "prevent development consistent with the otherwise predictable use of the property," [FN137] they automatically deprive landowners of "all or mostly all of the value of their property." [FN138] But this need not be the case. For example, suppose that a zoning ordinance, by preventing Blackacre from being turned into a subdivision, reduces its fair market value [FN139] from $20 per square foot to $12 per square foot. Blackacre will have lost 40% of its value--more than the owners would like, but certainly less than "all or mostly all of the value of their property." [FN140] By contrast, in Lucas, the value of plaintiff's property was allegedly reduced to zero. [FN141]
It has also been suggested that a taking occurs whenever property suffers "a significant dimunition in value." [FN142] If this is the case, UGBs, although not per se unconstitutional, [FN143] may lead to a large number of successful takings claims, because
the creation of the boundary itself will cause dramatic differences between the value of undeveloped property inside the boundary and the value of similar property outside. . . . [T]hose on the inside can rest assured that the supply of developable land is now artificially limited, and hence more valuable. Those on the outside will be prohibited from entering the market. [FN144] *19 The "significant dimunition in value" standard, however, was rejected in both Lucas and Palazzolo. The Lucas Court held that "in at least some cases the landowner with 95% loss will get nothing." [FN145] Moreover, a year after Lucas, the Supreme Court cited cases rejecting challenges to regulations that diminished land value by 75% and 92.5%, in a decision unanimously reaffirming that "our cases have long established that mere diminution in the value of property, however serious, is insufficient to demonstrate a taking." [FN146] As a result of such statements, lower courts applying Lucas have "not usually found a taking because the land use regulation attacked did not deny the landowner all economically viable use." [FN147]
The Palazzolo Court similarly held that a regulation that "places limitations on land that fall short of eliminating all economically beneficial use" [FN148] is not automatically invalid, but rather is subject to the Penn Central balancing test. [FN149] Thus, a regulation that significantly reduces the value of a landowner's property is not per se unconstitutional.


(b) Applying the Penn Central Balancing Test to UGBs
As explained above, [FN150] even a "partial taking" (that is, one that reduces the value of a landowner's property by less than 100%) may be a compensable regulatory taking if it "interferes with reasonable investment-backed expectations" [FN151] or is not "reasonably necessary to the effectuation of a substantial public purpose." [FN152] Neither of these factors turns Oregon's UGB statutes into a compensable "taking."
i. Investment-Backed Expectations
Justice O'Connor, writing as the crucial fifth vote in support of a five to four decision, [FN153] wrote that "the state of regulatory affairs at the time of acquisition" [FN154] *20 is relevant to the extent of landowners' investment-backed expectations, and that "the nature and extent of the permitted development under the regulatory regime vis-a-vis the development sought by the landowner may also shape legitimate expectations." [FN155] It follows that a UGB is unlikely to interfere with landowners' investment-backed expectations where, as in Oregon, UGBs have existed for over two decades, [FN156] because a property owner will rarely have an "investment-backed expectation" in resisting enforcement of statewide statutes and regulations enacted decades ago. [FN157]
Even in states where UGBs have not yet been enacted, proposed UGBs are likely to interfere with a landowner's reasonable investment-backed expectations only if a landowner reasonably relied on their absence--for example, where property outside the UGB has previously been zoned for (or was about to be zoned for) intensive development, and a landowner bought the property in reliance upon such zoning. [FN158] Otherwise, the landowner's reasonable expectations will not have been affected by the newly enacted UGB. State and local governments can easily minimize such problems by including land already zoned for development within UGBs. [FN159] It therefore appears that even if UGBs do diminish rural property values, rural landowners will rarely have constitutional claims under Supreme Court precedent.


ii. Substantial Public Purpose
Finally, a "partial taking" may also be a compensable taking if it is not supported by a "substantial public purpose." [FN160] As noted above, the Agins court held that limiting the spread of urbanization is a legitimate state interest justifying restrictions upon development of rural and suburban land. [FN161] Thus, UGBs (which, in Oregon, were enacted at least partially in order to protect rural land from the *21 spread of suburbia) [FN162] are clearly supported by a "substantial public purpose" under Agins.
In sum, three factors are relevant to whether a land use regulation constitutes a taking: the weight of the state interests favoring the regulation; whether the regulation renders plaintiff's property valueless or nearly so; and whether the regulation interferes with plaintiff's reasonable investment-backed expectations. [FN163] None of these factors supports a finding that UGBs generally constitute a "taking" that requires governments to compensate adversely affected landowners. Thus, UGBs are constitutional under Rehnquist Court case law.

B. Lower Courts Address UGBs (Sort Of)
Although the Oregon courts have upheld Oregon's land use laws, [FN164] they have never specifically addressed the constitutionality of UGBs. However, one federal decision indirectly supports the constitutionality of UGBs. In Buckles v. King County, [FN165] plaintiffs challenged a county's decision to zone their property as "Rural Area" pursuant to the Washington growth management statute (which established "urban growth areas" similar to the Oregon UGBs). [FN166] Plaintiffs *22 argued, inter alia, that this "designation 'fails to advance a legitimate county interest and thereby takes Plaintiffs' property without payment of just compensation."' [FN167]
The U.S. Court of Appeals for the Ninth Circuit began its discussion by noting that, as a general rule, "a land use regulation does not constitute a taking if the regulation does not deny a landowner all economically viable use of the property and if the regulation substantially advances a legitimate government interest." [FN168] The court then held that the county had advanced numerous substantial interests in support of its decision, one of which was "complying with the Growth Management Act's limitation on urban development outside of the urban growth boundary because the [plaintiffs'] property lies outside of King County's urban growth boundary." [FN169] If "limitation on urban development outside of the urban growth boundary" is a legitimate state interest, it arguably follows that a UGB statute specifically designed to limit such development advances a legitimate state interest. Thus, Buckles supports the constitutionality of UGBs.


IV. Have UGBs Cured the Mischiefs of Sprawl?
Although UGBs are probably constitutional, they may nevertheless be unwise if they fail to prevent problems associated with sprawl, such as urban decay, destruction of farmland, and automobile dependency. Oregon's UGBs appear to have prevented the urban decay that other cities have suffered as a result of sprawl. However, the impact of the UGB upon the Portland region's land use and transportation patterns has been less dramatic.

A. Saving the City
As suburbs have grown, older central cities throughout America have emptied out. Between 1900 and 1950, every large American city gained *23 population. [FN170] But most older cities have been devastated by sprawl: of the eighteen American cities with over 500,000 people in 1950, thirteen lost population in the 1950s, fifteen in the 1960s, and sixteen in the 1970s. [FN171] For example, by 2000 St. Louis had lost almost 60% of its 1950 population, while Buffalo and Cleveland had lost nearly half of their 1950 population. [FN172] Those cities that have gained population have done so either by becoming hubs for foreign immigration or by annexing newly developed areas that would be considered suburbs in other cities. [FN173] As cities have become smaller, they have become poorer. In 1990, thirty-one of America's thirty-seven largest cities had poverty rates above the national average, [FN174] and central cities contained half of America's poor (as opposed to one-third in 1960). [FN175] Jobs, as well as people, have fled to suburbia: about 95% of the fifteen million new jobs created in the 1980s were in suburbs. [FN176]
In some regions, city life is not a viable choice for any residents other than the poorest or most adventurous. For example, only 4% of Cleveland-area households earning over $100,000 live in the city of Cleveland. [FN177] Even institutions that would be urban in other communities are suburban in Cleveland: the office of EcoCity Cleveland, one of the area's leading anti-sprawl groups, is located in the suburb of Cleveland Heights. [FN178]
Middle-class flight feeds upon itself: as cities become more and more dominated by the poor, who cannot afford to move to suburbia, city neighborhoods become more dangerous (because poverty-packed areas have higher crime *24 rates), [FN179] city schools become less prestigious (because children from poor backgrounds are typically less academically proficient than students from affluent backgrounds), [FN180] and city tax bases dwindle due to the city's poverty (thus causing higher taxes and inadequate services) [FN181]--thus causing additional middle-class flight. [FN182]
While some older cities have decayed, Portland has grown and prospered. From 1980 (when the Portland UGB was created) [FN183] to 2000, the city of Portland's population grew by over 40% [FN184] after declining for several decades. [FN185] Moreover, Portland's population growth compared favorably to that of the central cities of the most comparable western metropolitan areas. Table 1 compares Portland's growth to that of Denver, Salt Lake City, and Seattle--three regions *25 that, although otherwise comparable, [FN186] have lacked UGBs for most or all of the past two decades. [FN187]


*26 TABLE 1: POPULATION GROWTH

City population % Metropolitan area
increase/decrease population % increase
1950-80 [FN188] 1980-2000 1980-2000 [FN190]
[FN189]
Portland -1.5 43.7 43.8
Denver 18.4 12.3 47.5
Seattle 5.6 14.0 46.2
Salt Lake 10.4 11.0 46.5
City

As Table 1 shows, the UGB allowed Portland to gain a proportionate share of the region's population growth, while Denver, Seattle, and Salt Lake City were left in the dust by their suburbs. By contrast, in the decades before the UGB was adopted, Portland was losing population while Denver and Seattle gained population--even though Portland annexed thirty-nine miles of land between 1950 and 1980, increasing its land mass by nearly 60%. [FN191]
Moreover, Denver, Seattle, and Salt Lake City are far healthier than some other cities in high-growth regions. For example, the Atlanta metropolitan area's population grew by over 80% (far faster than metropolitan Portland) during the 1980s and 1990s [FN192]--yet while the Atlanta region's population surged, Atlanta's central city population actually declined from 425,000 to just over 416,000. [FN193] *27 Similarly, metropolitan Washington, D.C. grew by over 40% from 1980 to 2000 [FN194] while the central city population tumbled from 638,000 to just over 572,000. [FN195]
Because Portland annexed almost twenty-two miles of previously suburban territory in the 1980s, [FN196] it could be argued that annexation rather than UGBs caused Portland's startling growth. This argument is probably incorrect, for two reasons. First, as Table 2 shows, Salt Lake City and Denver annexed even more territory than Portland did, yet they failed to experience comparable urban growth.


TABLE 2: CENTRAL CITY GROWTH THROUGH ANNEXATION, 1980-1990

% increase in city land area % increase in population
[FN197] [FN198]
Portland 21.0 43.7
Seattle 0 12.3
Denver 37.7 14.0
Salt Lake City 47.7 11.0

Second, Portland annexed land during the 1950s, 1960s, and 1970s just as it did in the 1980s, yet failed to gain population because the city's land area failed to keep up with the migration of city residents to suburbia: Portland encompassed 64 square miles in 1950 and 103 square miles in 1980--yet the city *28 actually lost population. [FN199] Without UGBs to limit sprawl, Oregonians moved to suburbia faster than the city of Portland could expand its boundaries. [FN200]
As Portland's population has grown, its economy has grown as well. The number of private sector jobs increased by 21.4% in the city of Portland between 1992 and 1997 [FN201] while jobs in Salt Lake City, Denver, and Seattle increased by 6.6%, 8.8%, and 8.4% respectively. [FN202]
Because of Portland's growth and prosperity, Portland is one of the few central cities that has not become a dumping ground for the region's poor. Table 3 compares poverty trends in Portland and other western cities to poverty trends in their suburbs.


*29 TABLE 3: POVERTY TRENDS, 1979-97 [FN203]

Poverty rate [FN204] 1979 Poverty rate 1997
Denver City 13.7 16.4
Denver suburbs 5.4 6.5
Seattle City 11.2 12.9
Seattle suburbs 6.1 5.9
Salt Lake City 14.2 16.2
Salt Lake City suburbs 6.3 6.7
Portland City 13.0 12.6
Portland suburbs 7.2 7.8

In Denver, Seattle, and Salt Lake City, the central city poverty rate is more than twice the suburban poverty rate, and the gap between city and suburb has stayed roughly the same or grown. [FN205] By contrast, Portland has actually narrowed the city-suburb economic gap: its poverty rate was 1.8 times the suburban poverty rate in 1979, and was only 1.61 times the suburban poverty rate in 1997. [FN206]
In sum, Portland's UGB has arguably enhanced rather than reduced consumer choice, by making the city of Portland a viable option for middle-class households. Before the UGB was created in the 1980s, Portland was losing population while other western cities were gaining population. But over the past two decades, Portland has (unlike other western cities) grown as fast as its suburbs, and has narrowed the city-suburb economic gap. So for city- dwellers and would-be city-dwellers, the UGB has been a success on this ground alone.

B. Protection of Natural Resources
The preservation of agricultural and other natural resources areas was a *30 primary motivation behind Oregon's planning statutes. [FN207] For example, Oregon law justifies the creation of LCDC by stating that the "promotion of coordinated statewide land conservation and development requires the creation of a statewide planning agency." [FN208] Presumably, the UGB's success in this respect can be measured by Oregon's success in preserving farmland.
Table 4 shows the amount of farmland in the counties that are part of the Portland, Denver, Seattle, and Salt Lake City metro areas.


TABLE 4: ACRES OF FARMLAND IN METRO-AREA COUNTIES [FN209]

1987 1992 1997 [FN210] % loss 1987-97
Portland 605,201 571,588 596,903 1.4
Seattle 154,628 135,969 118,141 23.5
Salt Lake City 418,138 414,542 263,120 37.0
Denver 1,311,463 1,312,770 1,308,710 0.2

*31 Table 4 suggests that Oregon's policies have been only moderately successful at preserving rural land. The Portland region has slowed farmland loss, but one of the three comparable metro areas (Denver) has been slightly more successful in doing so. On the other hand, the Portland region actually gained agricultural land between 1992 and 1997, while Denver's progress in farmland preservation was reversed. Thus, it is too early to tell whether the UGB is increasing the supply of farmland and/or rural land.
The inconclusive results of the UGB were hardly unforeseeable, because at the time of its creation, the Portland UGB included some vacant buildable land, thereby allowing developers to urbanize rural land without running afoul of the UGB. [FN211] This "land cushion" constituted 37% of the buildable land within the UGB, [FN212] giving developers ample opportunity to urbanize inside the UGB land. Presumably, a stricter UGB would have reduced development of rural land, but might have created negative side effects (such as land shortages leading to higher housing prices). [FN213] Moreover, thousands of "exurban" houses have been built outside the UGB, either on lands zoned for commercial farm and forest production or on "exception lands" (that is, land outside the UGB but identified as "committed" to urban land uses). [FN214] Thus, the UGB was lenient enough to allow development of a significant amount of rural land.
In sum, the Oregon UGB has been at best moderately successful in slowing the urbanization of rural areas: metropolitan Portland lost farmland in the 1980s and early 1990s, but may have slowed or halted those losses in recent years.

C. Sprawl, Automobile Dependency, and Portland
Thanks in part to suburban sprawl, [FN215] Americans drive more than ever. Between 1983 and 1995, the length of the average American commute increased by 37%. [FN216] As a result, vehicle miles traveled (VMT) grew four times faster than the driving-age population, as Americans spread farther and farther apart. [FN217] Also, because more Americans than ever live far from bus stops and other transit *32 facilities, [FN218] public transit usage in the U.S. is far lower than in other affluent countries, [FN219] and many jobs are simply inaccessible to the carless urban poor. [FN220] By making automobile ownership virtually mandatory for a normal life, [FN221] sprawl limits consumers' transportation choices [FN222] while arguably increasing traffic congestion [FN223] and air pollution. [FN224]
One measure of automobile dependency is the growth or decline of public transit use. Table 5 addresses this issue.


*33 TABLE 5: ANNUAL TRANSIT BOARDINGS, 1980-96 (IN MILLIONS) [FN225]

1980 boardings 1996 boardings % increase
Denver 46.9 69.8 48.7
Portland 50.3 79.8 58.7
Salt Lake City 19.1 23.8 24.9
Seattle 98.2 115.5 17.6

All four metropolitan areas experienced increased transit ridership at a time when the majority of metropolitan transit systems actually lost riders [FN226]--but transit ridership grew faster in Portland than in Denver, Seattle, or Salt Lake City. Because cities tend to be more transit-accessible than suburbs, [FN227] UGB-related growth in city population [FN228] may have contributed to Portland's surge in transit ridership.
It does not appear, however, that automobile use has decreased in Portland. Table 6 compares vehicle miles traveled ("VMT") in Portland to VMT in other urbanized areas.


*34 TABLE 6: DAILY VMT PER CAPITA IN URBANIZED AREAS, 1989-99 [FN229]

1989 1999 % increase
Denver 17.3 23.2 34.1
Portland 18.9 20.8 10.0
Salt Lake City 18.5 22.6 22.1
Seattle 24.2 25.9 7.0

Table 6 shows that Portlanders drive less than other westerners, and that their per capita VMT has grown more slowly than that of Salt Lake City and Denver commuters. Table 6 also shows, however, that Portland's VMT has grown more quickly than that of Seattle commuters. Although city residents drive less than suburbanites, [FN230] the number of city residents arguably added by the UGB (161,000 if every single city resident added between 1980 and 2000 would have lived in the suburbs otherwise) [FN231] comprised only 8.3% of the region's population [FN232]--not enough to massively reduce automobile use, especially since most residents of the city of Portland drive to work. [FN233]
In sum, Portland's transportation patterns differ only modestly from those of its western neighbors: transit use has risen, but automobile use has risen as well (albeit more slowly than in some other metropolitan areas).


*35 V. Are UGBs a Cure Worse Than the Disease?
The case against the UGB has been stated succinctly by the Almanac of American Politics, an authoritative guide [FN234] to American politics:
[Portland's] 'livable community' comes at a price. The Portland area was recently rated the fourth-least affordable place in the nation to purchase a new home. Portland's policies guarantee greater traffic congestion; even optimistic planners acknowledge that its population growth will be much larger than the number of people who can be persuaded to use mass transit. Greater population densities produce more intense pollution . . . . [FN235] In other words, the Almanac suggests that the UGB: (1) reduces housing affordability by limiting development; and (2) creates traffic congestion and pollution by increasing density. Other commentators have suggested that the UGB reduces housing quality by increasing density, and that regardless of their beneficial effects, such land use controls are an inappropriate government intrusion into property rights. [FN236] Each of these arguments will be addressed in turn.

A. Portland's So-Called Affordability Crisis
By most measures, Portland is not one of America's most expensive metropolitan areas. According to the National Association of Home Builders (NAHB), Portland's median home sale price in 2000 was $168,000, far less than *36 San Francisco ($505,000), New York ($237,000), Seattle ($220,000), Denver ($183,000) and literally dozens of other metropolitan areas. [FN237]
It could be argued that even though Portland is not incredibly expensive, the UGB has nevertheless triggered an affordability crisis by creating a rapid increase in home prices. [FN238] Table 7 tests this theory by comparing Portland's housing price increases to those of comparable metropolitan areas.


TABLE 7: HOUSING PRICE INCREASES IN THE URBAN WEST, 1991-2000 [FN239]

1991 median price (in 2000 median price (in % increase
thousands of dollars) thousands of dollars)
(1st quarter) (3rd quarter)
Denver 84 183 117
Portland 80 168 110
Salt Lake 76 151 98
City
Seattle 130 220 69

Table 7 shows that home prices in Portland have increased more slowly than home prices in Denver, and that Portland-area housing price appreciation has been only slightly more rapid than price appreciation in other western regions.
It could be argued that despite Portland's perfectly ordinary rates of housing appreciation, Portland's houses are nevertheless relatively more expensive than houses in other regions because wages are lower in Portland. Table 8 sets forth the ratio between median income and median home price for Portland and comparable metropolitan areas.


*37 TABLE 8: MEDIAN INCOMES AND MEDIAN HOME PRICES, 2000 (in thousands of
dollars) [FN240]

Median income Median home price Income as % of home price
Denver 62.1 183 33.9
Portland 53.7 168 31.9
Salt Lake City 53.4 151 35.3
Seattle 65.8 220 29.9

Table 8 shows that even after Portland's lower wages are accounted for, Portland is more affordable than Seattle and only slightly less affordable than Denver or Salt Lake City. In all four areas, the median home price exceeds median income by about a three to one margin.
If Portland's housing appreciation rate is lower than Denver's and its overall prices are lower than Seattle's, then why is it so often argued that Portland is unaffordable? UGB critics rely on the NAHB Housing Opportunity Index (HOI) [FN241] which, in recent years, has consistently labeled Portland as one of the nation's most expensive metropolitan areas. [FN242] The HOI, however, yields preposterous results. For example, metropolitan New York City's median income is only $2500 higher than Portland's ($56,200 as opposed to Portland's $53,700), and New York City's median home price is $69,000 higher ($237,000 as opposed to Portland's $168,000). Yet, the NAHB considers New York City more affordable than Portland! [FN243]
Why does the NAHB claim that New York is more affordable than Portland? The NAHB's affordability index is the percentage of homes allegedly "affordable" to a hypothetical household earning the median regional income. [FN244] Thus, NAHB reasons, New York is more affordable than Portland because New *38 York households earning the median income can allegedly afford 29.3% of homes, while Portland households earning Portland's median income can only afford 27.6% of homes. [FN245] This means that the prices of homes above the NAHB-designated "affordability level" (as well as the price and desirability of homes below this "affordability level") are irrelevant to the NAHB index.
Portland's apparent unaffordability may be related to the fact that the gap between Portland's most expensive and least expensive housing is smaller than similar gaps in New York or other cities. Thus, a homeowner who cannot afford the average house also cannot afford many of the area's cheaper-than-average houses. [FN246] For example, only about one-third of Portland-area homeowners have unusually high (50% over the regional median) or unusually low (50% below the regional median) housing costs. [FN247] In contrast, a majority of Los Angeles-area homeowners [FN248] and over 40% of New York-area homeowners have unusual housing costs. [FN249]
It follows that under the NAHB's criteria, the metropolitan areas with the largest gap between the most expensive and least expensive homes may seem *39 quite affordable, because such areas will have a large number of low-cost homes affordable to median-income homeowners. It further follows that the most dangerous cities are by definition relatively affordable under the NAHB's methodology, because the very cheap houses in expensive cities may be located in run-down, dangerous areas. [FN250]
The following hypothetical illustrates how the NAHB test may lead to absurd results. Imagine two cities, City A and City B. In both, the median housing price is $150,000. A household earning the median income can afford a $50,000 to $100,000 house, and any house costing under $50,000 is likely to be in a crime-ridden neighborhood and thus undesirable to all but the most adventurous (or desperate) homebuyers. Suppose that City A is a socially homogeneous city with very low crime rates, and that as a result the price gap between the best and the worst neighborhood is lower than in most big cities (as appears to be the case in Portland). [FN251] City A's housing prices are thus distributed as follows:

Over $200,000: 5%
$150-200,000: 40%
$100-150,000: 25%
$50-100,000: 20%
Under $50,000: 5%

Although City A has very few "high-end" houses, the remaining houses are so clustered in the $100,000 to $200,000 range that a median income household can afford only 25% of them. Thus, City A has an affordability index of 25 under the NAHB methodology. However, most of the low-end houses are not in crime-infested neighborhoods, so 20% of houses are both affordable and relatively desirable (i.e., not in a dangerous neighborhood). Thus, the real affordability index--that is, the percent of houses that are both affordable to middle-class homebuyers and located in neighborhoods that middle-class homebuyers would actually be willing to consider--is 20, almost as high as the NAHB affordability rating.
*40 Portland closely resembles City A. Portland's murder rate (5.3 murders per 100,000 residents in 1998) is lower than that of most big cities. [FN252] The Portland metropolitan area is significantly safer than most cities. [FN253] Portland's urban poverty rate is lower than the national poverty rate [FN254] and (as in City A) the price gap between Portland's most and least expensive houses is lower than in other metropolitan areas. [FN255]
By comparison, City B is a two-class city. It has a number of relatively safe elite neighborhoods and/or suburbs, an equally large number of cheap, crime-infested slums, and a tiny middle class. As a result, its housing prices are distributed as follows:

Over $200,000: 40%
$150-200,000: 10%
$100-150,000: 5%
$50-100,000: 5%
Under $50,000: 40%

Because 45% of City B houses are theoretically affordable to a median-income household (i.e., one who can only afford a $100,000 house), the NAHB would give City B an affordability index of 45--nearly twice that of City A. But because of City B's crime problem, many of its housing units are simply unthinkable to the average homebuyer concerned about his or her safety. In fact, when the dangerous "under $50,000" neighborhoods are excluded, City B's affordability rating drops to 5, one-fourth that of City A.
Thus, the NAHB index yields absurd results because it systematically disfavors relatively safe, homogenous cities and metropolitan areas (like City A and Portland), and favors cities and metropolitan areas sharply divided into rich and poor, safe and unsafe (such as city B). The relative affordability of America's most dangerous regions supports this interpretation of NAHB's tabulations. The five metropolitan areas with the highest violent crime rates in 1998 all had higher *41 "affordability scores" than Portland. [FN256] Table 9 compares Portland with two of these "City B" -type areas.


TABLE 9: HOUSING COSTS IN NEW YORK, PORTLAND, AND LOS ANGELES (4th quarter
1998) [FN257]

Median income (in Median home price (in NAHB
thousands) thousands) score affordability
Portland 49.6 155 38.7
Los Angeles 49.8 179 50
New York 49.8 160 56

Los Angeles and New York had median incomes virtually identical to those of Portland, and higher median home prices. Yet according to the NAHB, Los Angeles and New York (whose violent crime rates were nearly double those of Portland) [FN258] are far more affordable, presumably because they have more extremely inexpensive neighborhoods. For example, New York and Los Angeles have higher median home prices than Portland, [FN259] but also have more homes that cost under $200 per month than Portland. [FN260] Thus, the NAHB index appears to *42 reward cities with a profusion of dangerous, low-cost slums. The NAHB index of affordability may be flawed in other respects. The index fails to consider Oregon's lack of a sales tax (thus underestimating buyers' income). It also fails to account for the fact that second- and third-time buyers benefit from the rising resale value of their first homes, because they can make larger down payments on later homes. [FN261]
Even though Portland's housing prices have exploded in recent years, its overall cost of living has not. Between 1995 and 1999, Portland's consumer price index for all items increased by 12.7%--no more than in Denver (12.7%), and less than in Seattle (13.5%). [FN262] Thus, there is no reason to believe that Portland consumers are being impoverished by high housing prices.
In sum, Portland's property values have indeed gone up over the past decade, but its price increases and home values are in line with those of comparable metropolitan areas. The UGB may have had a marginal effect on Portland's housing costs, but it has hardly been the disaster that some have claimed. [FN263]

B. Portland's So-Called Congestion Crisis
Environmentalists argue that suburban sprawl increases traffic congestion, by increasing the number of cars on the road and the distances that drivers travel. [FN264] UGB critics argue, on the other hand, that anti-sprawl policies such as UGBs actually increase congestion by forcing a constant or growing number of *43 cars onto the same amount of land. [FN265] It follows, according to UGB critics, that Portland's UGB, by increasing density, has increased traffic congestion. [FN266]
The Texas Transportation Institute (TTI), a state research agency affiliated with Texas A & M University, [FN267] regularly conducts "urban mobility studies" that evaluate the extent of congestion in America's largest metropolitan areas. Its 2001 study [FN268] contains numerous measures of congestion trends, including increases in annual delay per person. [FN269] TTI ranked Portland number eleven (out of sixty-eight metropolitan areas ranked) in the 1982-99 increase in delay caused by traffic congestion--that is, TTI found that congestion increased at a more rapid rate in Portland than in all but ten metropolitan areas. But two of those ten were comparable areas which lacked UGBs for some or all of the relevant period--Seattle (no. 5) and Denver (no. 8). [FN270] In other words, congestion increased dramatically in Portland, but no more dramatically than in other areas without UGBs.
Moreover, there is no reason to believe that Portland's congestion increase was the result of increased density. According to TTI, Portland's population density actually decreased slightly from 1982 to 1999, from 3230 people per square mile to 3040. [FN271]
*44 Seattle's brief experience with UGBs supports the view that UGBs do not cause congestion. Seattle instituted UGBs in 1994 [FN272]--so if UGBs cause congestion, congestion in Seattle should have risen more dramatically in recent years than in earlier years. Instead, Seattle's delay per person exploded from nineteen hours per driver in 1982, to fifty-five hours in 1992, and then decreased to fifty-three hours in 1999. [FN273] Thus, the Seattle UGB has not increased traffic congestion.
It could be argued that the UGB has failed to dramatically increase congestion only because Portland has not yet become particularly dense, and if Portland does not dilute or eliminate the UGB in the future, density may increase and thus cause congestion. [FN274] The link between density and congestion, however, is weak. Table 10 lists the urbanized areas with more congestion than Portland, and compares their density to Portland.


TABLE 10: DENSITY AND DELAY PER PERSON, 1999 [FN275]

Delay per person (hours) Population per square mile
Los Angeles 56 5575
Atlanta 53 1585
Seattle 53 2295
Houston 50 1830
Dallas 46 1455
Washington 46 3420
Austin 45 1585
Denver 45 2240
St. Louis 44 1775
Orlando 42 1780
Miami 42 3785
Boston 42 2605
San Jose 42 4340
Nashville 42 1085
San Francisco 42 3205
San Berardino 38 2600
Minneapolis 38 1900
San Diego 37 3575
Indianapolis 37 2050
Louisville 37 2060
Tampa 35 1530
Portland 34 3040

*45 Table 10 shows no link between density and congestion: of twenty-one areas with more congestion than Portland, fifteen (including Seattle and Denver) are less densely populated. Thus, density either (a) does not cause traffic congestion or (b) increases traffic congestion so minutely that the congestion-causing effect of density is overwhelmed by other relevant factors.
In sum, traffic congestion in metropolitan Portland has grown about as fast as in other western metropolitan areas without UGBs--a fact that suggests UGBs neither cause nor cure traffic congestion to a significant extent. And if the UGB increases regionwide density in the future, traffic congestion will not necessarily increase as a result, because there is no clear correlation between regionwide population density and regionwide traffic congestion.

C. Density, UGBs, and Air Quality
Air quality is widely acknowledged to be linked in some way to density, sprawl, and UGBs, but there is no consensus as to how these problems are linked to UGBS. Environmentalists assert that sprawl creates pollution by increasing automobile use, [FN276] and that Oregon's land use policies might therefore limit pollution by limiting sprawl. [FN277] UGB opponents argue, however, that UGB-induced increases in density will lead to increases in pollution. One commentator reasons that "[a]s density rises, so does congestion." [FN278] "[G]iven the fact that air pollution rises as urban automobile speeds decline and as 'stop and start' operation increases, the result is greater air pollution." [FN279]
As noted above, [FN280] Portland's traffic congestion is no worse than that of less densely populated metropolitan areas, including otherwise comparable regions such as Seattle and Denver. [FN281] If Portland's policies are not certain to *46 cause increased traffic congestion, those policies obviously will not cause congestion-related pollution.
Moreover, air pollution in Portland is comparable to that of nearby metropolitan areas. Table 11 lists trends in carbon monoxide emissions for Portland and comparable western metropolitan areas.


TABLE 11: CARBON MONOXIDE EMISSIONS IN PARTS PER MILLION, 1989-98 [FN282]

1989 1998 % REDUCTION
Denver 7.8 3.9 50.0
Portland 8.2 5.1 37.8
Salt Lake City 7.7 4.9 36.3
Seattle 8.5 4.5 47.0

Table 11 reveals that all four metropolitan areas reduced carbon monoxide pollution by roughly similar amounts, and that Portland was slightly less successful in reducing carbon monoxide than Seattle and Denver but slightly more successful than Salt Lake City. Thus, it appears that Oregon's land use and transportation policies, to the extent those policies differ from those of other western states, have not significantly affected air quality. Portland's rather ordinary air quality performance should not be surprising, in view of Portland's apparent failure to reduce automobile use during the 1990s. [FN283]
It could be argued that even if the UGB has not yet increased pollution, it will do so in the future by encouraging higher density (which will in turn allegedly increase pollution by increasing traffic congestion). [FN284] To be sure, a scintilla of evidence supports this theory: Los Angeles has a higher population density than any other urbanized area [FN285] and has more carbon monoxide pollution *47 than most other large urbanized areas. [FN286] But Los Angeles is unusual in that it combines high density with high automobile dependency, [FN287] perhaps because its central core is far less dense than that of less automobile-oriented cities: the central city of Los Angeles had only 7426 people per square mile in 1990. [FN288] By contrast, each of the eight large metropolitan areas included in the study where at least 10% of commuters used public transit in 1990 [FN289] included or was near a central city with 9500 persons or more per square mile. [FN290]
Metropolitan areas with high levels of public transit use tend to have relatively clean air. Table 12 lists the five metropolitan areas with the highest public transit ridership, and their pollutant levels, and compares them to Portland and other comparable metropolitan areas.


TABLE 12: PUBLIC TRANSIT RIDERSHIP AND CARBON MONOXIDE, 1998

% of commuters 1998 using Carbon monoxide emissions
public transit [FN291] (parts/million) [FN292]
New York City 47.3 3.7
San Francisco 19.5 3.5
Chicago 17.1 3.4
Boston 14.2 2.9
Washington 13.7 3.3
Denver 4.4 3.9
Portland 6.0 5.1
Salt Lake City 3.0 4.9
Seattle 7.4 4.5

*48 The most public transit-friendly metropolitan areas are all less polluted than Portland, Denver, Seattle, or Salt Lake City. Therefore, if Portland can ever densify its central core and reduce automobile dependency to the extent that those metropolitan areas have done, air pollution is unlikely to increase.

D. Do UGBs Reduce Housing Quality?
UGB opponents argue that even if the Portland UGB does not increase housing costs, traffic congestion, or air pollution, it has reduced the quality of the housing stock by reducing the amount of buildable land, thus reducing home and lot sizes. For example, one anti-UGB article is titled: Squeezed Out: No Swingset, No Sandbox, No Space Left for the American Dream. [FN293] The article asserts that because few new homes are built on half-acre lots, "[t]he American Dream is dead in Portland." [FN294] Similarly, one anti-UGB activist asserts that if the UGB is not expanded or eliminated, "[p]eople will be crowded together, living on small lots." [FN295]
But in fact, the specter of a hyper-dense Portland is imaginary; Portlanders' homes and lots are as large as ever. Between 1986 and 1995, the median-sized owner-occupied home in Portland grew from 1674 square feet [FN296] to 1764 square feet. [FN297] The median lot size grew slightly, from .22 acre [FN298] to .23 acre. [FN299] The number of houses sitting on over half an acre of land grew from 74,000 [FN300] to 98,700. [FN301] And during the 1990s, "nearly 800,000 of the 1.4 million people living in the Portland area . . . saw no change in the density of their neighborhoods." [FN302] As a result, "only 5% of the region's residents live in areas with population density greater than 10,000 people per square mile." [FN303] In *49 Portland, as in other areas, more people are building bigger houses on more land. [FN304]
Critics argue that even if Portland has no density crisis today, a refusal to expand the UGB could eventually force Portlanders to live in an overcrowded, congested environment. [FN305] But in fact, Portland has plenty of room to grow. The city of Portland has just over 529,000 people living within its 124.7 square miles. [FN306] If the city's population tripled, it would have about 1.587 million people living within those 124.7 square miles, thus creating a density of 12,726 people per square mile, which is still a lower density than that of San Francisco. [FN307] In other words, if a million people moved to Portland in the next few decades, every single one of them could, in theory, be placed in the city of Portland without either making Portland inordinately dense or increasing suburban densities by one iota.

E. The Libertarian Argument Against UGBs
Libertarians argue that regardless of its utilitarian benefits, Portland's UGB should not be imitated because restricting landowners' use of their land violates their property rights. [FN308] This argument makes sense in principle: in a society that truly valued minimal government, any form of land use regulation would obviously be inappropriate. [FN309]
However, the United States is not such a society: even in colonial times, states and cities enacted planning statutes similar to UGBs. For example, the *50 Massachusetts Bay Colony "prohibited dwellings more than one-half mile from town meeting houses without court permission." [FN310] Today, as UGB critic Clint Bolick admits, "minimum lot sizes and restrictions on multiple uses, often popular tactics among suburban governments to keep their communities pristine and exclusive, definitely contribute to 'sprawling' suburbs." [FN311] A typical zoning ordinance has separate zones for: single-family large lot, single-family medium, single-family standard, multi-family low density, multi-family medium density, multi-family high density, general office, neighborhood commercial, community commercial, service commercial, central business district, limited industrial, and heavy industrial. [FN312] These regulations contribute to sprawl by separating residential and commercial uses, thereby making it difficult for people to go from their residences to shops and workplaces without driving. [FN313] Municipalities also reduce housing supplies and force Americans to drive by mandating minimum lot sizes and house sizes within zones. [FN314] These regulations were frequently enacted for the purpose of increasing housing prices. [FN315] They also inadvertently reduce transit use, because as residences are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN316] If pro-sprawl land use restrictions such as separation of land uses, minimum house sizes, and minimum lot sizes do not unduly infringe landowners' rights, neither do UGBs.
Similarly, UGB critics often support pro-sprawl government transportation policies. For decades, government has accelerated sprawl by building new roads into suburbia, thus encouraging development to shift from cities to suburbs. [FN317] But many critics of UGBs and other anti-sprawl measures are less than *51 critical of road spending. For example: (1) The Independence Institute, which purports to address "public policy issues from a free-market, pro-freedom perspective" [FN318] published an anti-UGB paper asserting that "[f]or traffic congestion to be mitigated . . . [r]oadway expansions will be necessary." [FN319] (2) Steven Hayward of the Heritage Foundation complained in a 1998 article that "Portland's planners . . . are substituting political decisions for marketplace decisions," [FN320] yet claimed in the same article that Portland will suffer increased traffic congestion because "the region deliberately avoids road-building." [FN321] (3) Grant Gulibon, a policy analyst for Pennsylvania's conservative Commonwealth Foundation, complains that the UGB "created an artificial scarcity of land . . . . Whenever a commodity becomes scarce the price goes up." [FN322] Yet Gulibon asserts that "[t]he reason [new roads] fill up right away is because you didn't build enough in the first place." [FN323]
UGBs undeniably increase government's voice in land use decisions--but so do a variety of well-established government policies, some of which are supported even by prominent UGB critics. Thus, UGBs are not uniquely intrusive.


VI. Conclusion
As explained above, UGBs are probably constitutional under Supreme Court Takings Clause precedent for two reasons. First, a UGB will rarely, if ever, cause a complete deprivation of economically beneficial use, and is thus unlikely to be a compensable "total taking" under Lucas and Palazzolo. Second, UGBs *52 will generally not be compensable "partial takings" under the Penn Central balancing test, because they are typically justified by a legitimate state purpose (that of preventing the urbanization of rural areas) and will, if prudently drafted, rarely interfere with landowners' investment-backed expectations.
The question of whether UGBs are wise public policy is a more difficult one. The Oregon UGB has apparently had one major benefit: enhancing consumer choice, by making the city of Portland a viable lifestyle choice for middle-class Portlanders, instead of merely a holding pen for people too poor to move to suburbia. And by making it easier for Portlanders to live in the city, the UGB has arguably made it somewhat easier for them to use public transit instead of being enslaved by their cars.
In other ways, Portland has continued to evolve in the same directions as nearby metropolitan areas without UGBs. On the negative side, this means that the UGB has not had an enormous effect upon automobile use, traffic congestion, or urban consumption of farmland. Although Portland's air is cleaner than it was a decade ago, the same is true for other western cities without UGBs. On the positive side, the UGB has not led to the horrors imagined by UGB critics. Portland's real estate is not significantly more expensive than that of comparable western cities, its traffic congestion is no more annoying, and its air is no more polluted. In sum, UGB supporters and opponents alike may have overestimated both the positive and negative effects of UGBs.

(footnotes deleted due to length of article)

note on copryight
Law journal articles posted on this blog are with the permission of the relevant journals.