ACCESS TO THE COURTS: A GUIDE TO REASONABLE

 ACCOMMODATIONS FOR PEOPLE WITH DISABILITIES

By:  Stephen S. Pennington and Jamie C. Ray*
 

     More than twelve years ago, President Bush signed the Americans with Disabilities Act(“ADA”).  This comprehensive civil rights law makes it unlawful to discriminate against a qualified individual with a disability in private sector employment, state and local government services, public accommodations, transportation and telecommunications. The ADA was enacted after the federal government found widespread discrimination against individuals with disabilities. In signing the law, President Bush stated that the ADA “signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.”

     While the ADA has made a difference in the lives of many individuals with disabilities, the Department of Justice, in a recent publication titled, “Enforcing the ADA: Looking Back on a Decade of Progress”, has recognized that there is still work to be done.  While achieving access to state and local courts may appear to be but one small part of the ADA, it is crucial to affirming the rights of citizens with disabilities to participate in everyday civic life.  This article is intended to inform the public with regard to their rights.

     Under Title II of the ADA, no qualified individual with a disability shall, by reason of such disability, be subjected to discrimination by a state or local court, or be excluded from participation in or be denied the benefits of their services, programs, or activities. This article reviews who is covered under Title II of the ADA, outlines the duty of state and local courts to reasonably modify their policies, practices or procedures, describes accommodations that are typically used in court and how to request them, and sets forth the remedies for persons with disabilities when their rights are violated.

Who Is Covered Under the ADA

     A person is protected against disability discrimination under the ADA if he is a “qualified individual with a disability.”  Disability means “a physical or mental impairment that substantially limits one or more “major life activities.” The ADA also protects persons with a history of such a disability and those who are regarded as having a disability, but do not.

     A mental or physical impairment is defined as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:  neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine, [or] any mental or psychological disorder . . ..”

     Although some impairments, such as HIV, paraplegia, deafness, and mental retardation are recognized as disabilities, the ADA does not contain an exhaustive list of those conditions constituting a disability. Whether an individual is disabled under the ADA must be determined on a case-by-case basis.

     To be protected under the ADA, a person must have a “substantial” impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, and learning or working. 

     A “qualified individual with a disability” means an individual with a disability who, with or without reasonable modification to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the state or local court.

Duties of State and Local Courts under the ADA

     Under Title II of the ADA, state and local courts have an affirmative duty to:

1. Provide for effective communication,

2. Modify policies, practices and procedures to enable individuals with disabilities to participate in, and receive the services and benefits, and

3. Make existing facilities and new construction readily to and usable by individuals with disabilities.

     In this regard, the ADA is fundamentally different from other civil rights statutes that simply mandate neutral treatment. The ADA’s affirmative obligation covers, not only those policies and procedures which intentionally exclude those with disabilities, but also “facially neutral barriers” which work to discriminate against the disabled.

As a result, a court may not:

• Keep a person from participating in its services, programs, or activities;

• Deny an individual the benefits of its services, programs, or activities; or,

• Discriminate against a person with a disability.

In addition, a court must:

• Make its facilities accessible or usable; and,

• Ensure that persons with disabilities can communicate in court.

     A person’s rights in state and federal courts are different. The ADA does not apply to federal courts. Federal courts include district courts, bankruptcy courts, circuit courts of appeals, and the United States Supreme Court. However, under federal law, if an individual has a hearing impairment and is a party or a witness in a case, he may have a right to a certified interpreter.  He may also have rights in federal administrative proceedings, like social security hearings.

     To implement the Act’s regulations, state and local courts, like other public entities, must make “reasonable” modifications for qualified individuals with disabilities. The Act does not require such modifications when they would “fundamentally alter” the nature of the service, program or activity, or, with existing facilities, create an undue administrative or financial burden.

     The court must determine whether a requested modification of an existing facility would pose an undue administrative or financial burden.  In making this determination, all resources of the court must be considered.  The court may not consider only those funds set aside especially for ADA compliance; rather, it must consider the entire judicial operating budget. Unlike Title III of the Act, which requires public accommodations to remove architectural barriers where such removal is “readily achievable,” the Title II standard is much higher.

Examples of Reasonable Accommodations

     The duty to provide adequate communication includes the provision of “auxiliary aids and services”, which may include interpreters, note-takers, transcription services, assistive listening devices, telecommunication devices for the deaf, tape decks, audio recording, brailled materials, and large print materials.  Furthermore, each program “when viewed in its entirety,” must be readily accessible.  There is no need to make each facility accessible.  Accordingly, not all courtrooms need be accessible.  Under Title II structural changes to existing facilities are not required unless there is no other feasible way to make the program accessible.  However, alterations to existing structures and all new construction must meet federal guidelines for accessibility.

     Title II allows the courts a great deal of flexibility.  Instead of having to alter each and every courtroom, one lower level courtroom could be modified to accommodate wheelchairs. Often, simple changes which cost little or nothing will satisfy the ADA.  For example, one court has found that a juror with visual limitations could be accommodated by moving the juror closer to the witness box, having documents actually read into the record, and providing an enlarged print version of the transcripts of the tape used at trial.

     An additional concern under Title II is that courts must ensure that all programs are integrated.  That is, individuals with disabilities generally may not be segregated from other court users.  Although segregating individuals with disabilities may be more convenient or less costly, this is not satisfactory under the ADA.  Finally, courts must conduct a self-evaluation of their compliance with the ADA, and prepare a written transition plan outlining how program accessibility will be achieved.

     The court may suggest its own accommodation, as long as it is “effective”. Accommodations might include: schedule changes to accommodate public transportation schedules or medication schedules, additional time to respond to court deadlines, telephonic hearings for people with mobility limitations or environmental sensitivities, and assistive listening systems, sign language interpreters, real-time captioning, written material on computer-readable disc, reader services or telecommunication devices for the deaf. 

     The following are examples of some accommodations that might be reasonable for different disabilities.  However, one should not feel limited by these examples.

     If the person has a visual impairment

• The court or the judge could provide forms and instructions in Braille or on audiotape.

• In the courtroom, the judge, or any designated reader, could read written materials out loud.

• If the person has limited vision, the judge could let the person sit where he could see better.

• If it would help, the court could provide for more light.

     If the person has a hearing impairment:

• The judge could let the person sit where he can hear better, or where he can see the sign language interpreter.

• If the person is a party to the case or a witness, the court could have the proceeding interpreted in a language that the person can understand, by a qualified interpreter appointed by the court.

• The court must provide the person with an assistive listening system or a computer-aided transcription device if he tells the court it is needed before the proceeding.

      If the person has a mental impairment:

• The court could let him have a coach or support person with him at the proceeding.

• If she is a witness, the court could have her testimony videotaped instead of forcing her to appear in person at a formal proceeding.

     If the person has a physical disability:

• If the person has trouble getting to the courthouse to pick up forms, the clerk could mail them to him.

• If a room in the courthouse is inaccessible, the court could change the proceeding to a different room.

• If the person is a witness, the court could have the testimony videotaped instead of forcing her to appear in person at a formal proceeding.

     If the person has another disability, or if he has more than one disability:

• If medication or fatigue limits the person’s activities, the court could schedule the proceeding for a time when he will be able to participate fully.

• If the person is sensitive to chemicals, the court could have people who wear fragrances stay away from him.

• If the person has aphasia or dyslexia and has problems with sequences of letters or number spoken out loud, the court could have people speak very slowly or write down the words, letters or numbers.

Requesting a Reasonable Modification

     A person does not have the right to modifications unless he asks for them. This can be done in writing or orally. Most courts prefer that the request be in writing.

     An individual with a disability should make his or her request as early as possible. Most courts want the request at least five days before the day that the accommodation will be needed. However, even if the request cannot be made five days in advance, it should be made anyway. The request should include a description of the accommodation sought, along with a statement indicating what impairment necessitates an accommodation.

      The ADA envisions a non-adversarial process for determining the need for accommodation. 

Remedies for ADA Violation

     An individual with a disability seeking to make a claim under Title II of the ADA against a state or local court has three options:

1. file an administrative complaint with the Department of Justice;

2. seek relief under the court’s internal grievance procedure; or,

3. seek relief under the court’s internal grievance procedure; or, file a civil action.

     Remedies under the ADA are not limited to intentional or deliberate acts of discrimination.  The ADA protects an individual from the effects of benign neglect, apathy and indifference as well.  

     An individual who alleges that a state or local court has violated Title II of the ADA may file an administrative complaint with the Department of Justice. An administrative complaint must be filed within 180 days of the date of the alleged discrimination. If the Department of Justice is unable to resolve the complaint, the matter is referred to the Attorney General for enforcement.

     Instead of filing an administrative complaint with the Department of Justice, an individual may utilize a court’s grievance procedures. Under Title II of the ADA, public entities that have at least 50 workers must have in place grievance procedures for the “prompt and equitable” resolution of complaints.

     The individual may also file a civil action in federal court. One seeking to file a claim under Title II is not required to first file a complaint with the Department of Justice.

     Title II of the ADA incorporates the remedies and procedures of section 505 of the Rehabilitation Act, which in turn, incorporates the remedies and procedures of Title VI of the Civil Rights Act of 1964.  Prevailing parties are entitled to the full range of legal and equitable remedies, including attorney fees. 

Conclusion

     The ADA gives “qualified individuals with a disability” the right to be free from discrimination and to be reasonably accommodated in state and local courts. The law protects all persons participating in court activities, including litigants, witnesses, jurors, spectators and attorneys and applies to any type of court proceeding at any level. Under Title II, one may pursue administrative or legal remedies to seek access to a state or local court and may recover legal and equitable damages.