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Abstract

In an effort to advance the rights of handicapped people to use mass transportation, the Department of Transportation has enacted a series of regulations that required facilities to be updated to allow for effective use by the handicapped, including the non-ambulatory wheelchair bound. As part of these regulations, section 504 of the Rehabilitation Act contained a general clause prohibiting discrimination against the handicapped by recipients of federal funds. The legislative history of the Rehabilitation Act makes it clear that Congress intended the handicapped to be integrated into mainstream society. Imposition of such a dichotomy, moreover runs afoul of the Federal-Aid Highway Act which requires effective use of mass transportation for the handicapped - mobility. While section 504's early history was closely tied with the Civil Rights Act of 1964, Congress, courts, and administrative agencies have increasingly lost sight of the statute's genesis. What began as a humanitarian gesture to give the handicapped substantive statutory equal protection rights has since disintegrated into yet another "symbolic law" with practically no enforcement muscle behind it. The Supreme Court's conclusion that affirmative action is not generally required in a cause of action based exclusively on section 504 placed an onerous burden on the handicapped. While the DOT regulations, governed in part by section 504, specify the steps which must be taken to make mass transit accessible, federal fund recipients, the MTA in particular, have evidence their reluctance to comply and have been lent an increasingly sympathetic ear by the federal government. Thus, handicapped groups will have to be innovative in finding rights conferred by statutes other than section 504.

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