Document Type

Article

Disciplines

International Law

Abstract

What is more important: an unchanging image of Boston's Public Library and Old South Church or an elevator providing disabled passengers access to an underground subway station? In 2006, the First Circuit Court of Appeals was presented with this question when it was forced to balance historic preservation law and disability access law in Neighborhood Association of the Back Bay, Inc. v. Federal Transit Administration.' This case exemplifies the tension that exists between the preservation of historic structures that are open to the public and the obligation to make modifications to such structures and their surroundings to accommodate persons with disabilities. In Back Bay, the court found that the transit authority was required by the Americans with Disabilities Act to make Copley Station accessible and had acted reasonably in considering (though ultimately dismissing) the negative impact of the project. While the transit authority's solution disrupted two notable properties and the streetscape of a historic district, the need for disability access won over the challenge brought by a citizens group hoping to preserve the historic environment.

Just as the United States is managing the tension between preservation and disability access, England is facing a similar tension despite a significantly different planning system. In both nations, two competing national policies have evolved: the preservation of national heritage and the protection of civil rights for the disabled. While both are justified, laudable independent goals, a significant tension exists between the two. Disability rights advocates argue that providing access to historic properties should trump preserving such properties' every detail, while some preservationists see accommodating the disabled as necessarily harming the historic environment they seek to maintain. Historic preservation laws have existed in both nations in some form since the turn of the twentieth century, but the modem legal framework dates from the mid-twentieth century. In 1990, the civil-rights-movement achieved a significant victory in America with the enactment of the Americans with Disabilities Act, which requires equal access to places of public accommodation for the disabled. Five years later, the English Parliament joined a growing chorus of legislatures when it enacted the Disability Discrimination Act 1995.

This Comment aims to compare the way policymakers in both nations are managing the balance between preservation and access and to identify ways to ease the inherent tension. Part I discusses the existing legal framework governing historic preservation efforts in both nations. In Part II, disability laws will be considered, in Part III the tension between these two conflicting schemes will be analyzed both from an American and English perspective, and in Part IV building entryways will be considered as a valuable case study in the practical balance between these competing interests.

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