Yes. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities and services of public entities, including courts. The ADA applies to all state and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of state or local governments.*
All state, county and municipal courts are covered by the ADA. In the State of Tennessee, this includes the State Supreme Court, Court of Appeals, Court of Criminal Appeals, Circuit Courts, Chancery Courts, Criminal Courts, Probate Courts, General Sessions Courts, Juvenile Court and Municipal Courts. The ADA does not cover the judicial branch of the federal government, which is covered by other laws.*
Court must ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible. Court programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as program accessibility, applies to court facilities that existed on January 26, 1992. Courts do not necessarily have to make each of their existing facilities accessible if the service, program, or activity can be made accessible in another manner. For example, if a court holds hearings on the second floor of a building without elevators, it can make the program accessible by holding the hearings in an accessible room on the first floor or in another facility. The specific judicial system will be viewed in its entirety when determining accessibility. Therefore, if the court system in a particular jurisdiction consists of numerous facilities, and a specific proceeding can be moved within reason from an inaccessible facility to an accessible facility, the specific judicial system would be in compliance with the program accessibility requirements.*
Yes. A public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. The undue financial or administrative burden determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion. The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity. For these reasons, a denial of a requested modification because of undue financial or administrative burden would be extremely rare, and entities are cautioned about the use of this limitation.*
No. Public entities are not required to make structural changes to existing facilities if other methods may be effective in achieving compliance with the Americans with Disabilities Act. C.F.R. § 35.150(b)(1).
Some options might be:
No. Comments should not be made from the bench that would disclose the reason for relocation. Such disclosure could constitute a discriminatory or retaliatory act, both of which are prohibited by the Americans with Disabilities Act.
Generally, it is not. Carrying an individual with a disability is considered an ineffective and therefore an unacceptable method for achieving program accessibility. Carrying will be permitted only in manifestly exceptional cases, and only if all personnel who are permitted to participate in carrying are formally instructed on the safest and least humiliating means of carrying. “Manifestly exceptional” cases in which carrying would be permitted might include, for example, programs conducted in unique facilities, such as an oceanographic vessel, for which structural changes and devices necessary to adapt the facility for use by individuals with mobility impairments are unavailable or prohibitively expensive. Carrying is not permitted as an alternative to structural modifications such as installation of a ramp or chairlift. C.F.R. § 35.150(b)(1), analysis supplement.
A court facility will be in compliance with the ADA for new construction and alterations if it follows either of two accessibility standards. It can choose either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), which is the standard that must be used for public accommodations and commercial facilities under Title III of the ADA. If the court chooses the ADA Accessibility Guidelines, it is not entitled to the elevator exemption (which permits certain private buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator).*
Alteration to historic courthouses must comply with the specific provisions governing historic properties in ADAAG or UFAS to the maximum extent feasible. Under those provisions, alterations should be done in full compliance with the alterations standards for other types of buildings. However, if following the usual standards would threaten or destroy the historic significance of a feature of the courthouse, alternative standards may be used. The decision to use alternative standards for that feature must be made in consultation with the appropriate historic advisory board designated in ADAAG or UFAS, and interested persons, including those with disabilities, should be invited to participate in the decision-making process.
The alternative requirements for historic buildings or facilities provide minimal level of access. For example:
Funding is available through the Community Development Block Grant program (CDBG) at the U.S. Department of Housing and Urban Development, which may be used for accessible purposes, such as installation of ramps, curb cuts, wider doorways, wider parking spaces, and elevators. Units of local government that have specific questions concerning the use of CDBG funds for the removal of barriers should contact their local HUD Office of Community Planning and Development or call the Entitlement Communities Division at HUD, (202) 708-1577, for additional information. *
The United States Department of Justice and seven other federal agencies are charged with enforcing Title II of the ADA. Individuals may file complaints with the U.S. Department of Justice within 180 days of the alleged discrimination. The Department of Justice will investigate each complete complaint, attempt informal resolution, and, if no resolution is achieved, will issue a Letter of findings to the complainant and to the public entity.*
A court must ensure that its communications with individuals with disabilities are as effective as communications with others. A court must make available appropriate auxiliary aids and services where necessary to ensure effective communication. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved. The ADA does not require the provision of any auxiliary aid that would result in an undue financial or administrative burden or in a fundamental alteration in the nature of the services of the court. However, a court is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Both of these limitations are derived from existing regulations and case law under section 504 of the Rehabilitation Act and are to be determined on a case-by-case basis. When providing the auxiliary aid or service, the court must not pass on the costs of these aids to the person with disability, and the court must give primary consideration to the type of aid or service requested by the person with the disability.*
Appropriate auxiliary aids and services for individuals with visual impairments may include qualified readers, taped texts, and Braille or large-print materials. The auxiliary aid chosen should depend on the specific nature of the individual’s disability and preferred mode of communication. Examples of auxiliary aids and services that benefit individuals with hearing impairments include qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephone compatible with hearing aids, closed-caption decoders, open and closed captioning, teletypewriters (TTYs), videotext displays, and exchange of written notes. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved and the individual’s specific disability and preferred mode of communication. For example, court employees can often communicate with individuals who have hearing impairments through written materials or notes. In many simple transactions, such as paying fines or filing documents, communications provided through such simple methods will be as effective as the communications provided to other individuals in similar transactions. Many transactions, however, involve more complex or extensive communications that cannot be provided through such simple methods and may require the use of qualified interpreters, assistive listening systems, videotext displays, or other aids or services.*
Courtroom spectators with disabilities are participants in the court program and are entitled to such aids or services as will afford them an equal opportunity to follow the court proceedings. The ultimate determination of which “spectators” are ultimately accommodated and the type of accommodation received, should be determined on a case by case basis and should not result in an undue financial or administrative burden being imposed on the court. Where a court has the responsibility for providing qualified sign-language interpreters, it also has the responsibility to pay for the services of the interpreters. In addition, the ADA regulations specifically prohibit interpreting services being assessed as an element of normal “court costs.”
Title II’s anti-discrimination provision employs expansive language intended to reach all programs and actions undertaken by public entities. According to the Department of Justice, Civil Rights Division, Disability Rights Section, Congress intended Title II—including the terms “services, programs or activities”—to be read broadly to cover every action taken in every forum in which a public entity may function. Courts, in allowing spectators to attend proceedings, are providing a service, program or activity covered by title II.*
No. The ADA covers sign language interpreters for the deaf and hard of hearing. Interpreters for persons with limited English proficiency are covered by Tennessee Supreme Court Rules 41 and 42.
No. Public entities that communicate by telephone must provide equally effective communication to individuals with disabilities, including hearing and speech impairments. If telephone relay services, such as those required by Title IV of the ADA, are available, these services generally may be used to meet this requirement.
Relay services involve a relay operator who uses both a standard telephone and a teletypewriter (TTY) to type the voice messages to the teletypewriter (TTY) user and read the teletypewriter (TTY) messages to the standard telephone user. Where such services are available, public employees must be instructed to accept and handle relayed calls in the normal course of business.
However, state and local agencies that provide emergency telephone services must provide “direct access” to individuals who rely on a teletypewriter (TTY) or computer modem for telephone communication. Telephone access through a third party or through a relay service does not satisfy the requirement for direct access. *
Where a court provides information in written form, it must, when requested, make that information available to individuals with vision impairments in a form he or she can use. Braille documents are not required if effective communication can be provided by other means. It is permissible for staff to read a form to a person with vision impairment and if necessary, fill out the person’s responses. Producing documents in Braille, large print, or other formats are also potential forms of modification.
In determining what type of auxiliary aid or service is necessary, a public entity shall give primary consideration to the requester’s preferred mode of communication. The public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. The public entity shall honor the choice unless it can demonstrate that another effective means of communication is available or that the use of the means chosen would not be required under the terms of the act.*
A court must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program or activity. An example of an inappropriate eligibility criterion would be an automatic exemption from jury service for individuals with hearing or visual disabilities. A public entity must reasonably modify its policies, practices or procedures to avoid discrimination. If the public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, it is not required to make that modification. For example, where a local zoning ordinance requires a setback of 12 feet from the curb in the central business district and a courthouse requires a variance to encroach on the setback by three feet to install a ramp to the front entrance, granting the variance may be a reasonable modification of town policy for a county courthouse. On the other hand, where an individual with an environmental illness requests a court to prohibit the use of perfume or other scented products by its employees who come into contact with the public, adopting such a policy may not be considered a “reasonable” modification of the court’s personnel policy.*
Examples include rewriting policies that categorically exclude people with disabilities from serving on juries, such as people who are deaf or blind; permitting a witness or spectators with diabetes to consume candy as needed to maintain blood sugar levels; or explaining the words on an instruction sheet to a citizen who is mentally retarded.*
Yes. The service animal must be permitted to accompany the individual with a disability to all areas of the facility where members of the public, including people with business before the court, are allowed to go. An individual with a service animal may not be segregated from other people. *
No. The care or supervision of a service animal is solely the responsibility of his or her owner. The court is not required to provide care, food, or a special location for the animal.*
You may exclude any animal, including a service animal, from your facility when that animal’s behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards staff or members of the public may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on past experience with other animals. Each situation must be considered individually. Although a court may exclude any service animal that is out of control, it should give the individual with a disability who uses the service animal the option of continuing to conduct his or her business without having the service animal on the premises.*
No. The ADA Coordinator can ensure that persons with disabilities are afforded the opportunity to serve as jurors. However, an ADA Coordinator is not authorized to release a person from jury duty because of a disability. Persons who are seeking release from jury duty should speak with the county’s jury coordinator or court clerk.
INTERACTING WITH PERSONS WITH DISABILITIES†
The most important guideline is to treat persons with disabilities with the same courtesy, dignity and respect that you afford every other person. There is no need to be nervous or apprehensive in talking or working with people with disabilities. Other helpful tips include:
Yes. There are terms that are generally offensive to persons with disabilities. For example, handicapped is a term that derived from a perception that persons with disabilities had “cap in hand” seeking charity, and is therefore, thought to be offensive. Terms such as crippled, disabled and deformed carry negative connotations and should also be avoided. Persons should seek to use more positive terms such as accessible, as in “accessible parking” or “accessible restroom,” as opposed to “handicapped.”
In addition, when referring to persons with hearing disabilities, the term for one who cannot hear is “deaf.” The term from someone who has difficulty hearing, but does posses some ability to hear, is “hard of hearing.” The term “hearing impaired” should be avoided, because when it is translated into sign language, it is conveyed as “broken hearing.”
Finally, focus on the person rather than the disability. Instead of referring to “the blind attorney,” refer to the attorney who is blind; instead of “the disabled juror”, use “the juror who is disabled”; instead of “the epileptic”, use “the person with epilepsy.” Using this language, persons with disabilities are identified as persons rather than being identified by their respective disabilities.
A person with a mobility disability has partially or completely lost the use of one or more of the person’s limbs. Many such disabilities are visibly apparent, as the individual may rely upon an assistive device such as wheelchairs, crutches, canes or scooters. However, other mobility disabilities, such as arthritis are not as visible, but should be treated equally seriously. Important tips to remember when interacting with someone with a mobility disability:
There is no certification process for service animals. Therefore, the current guideline is that if a person represents that an animal is a service animal, you must treat it as such. When a service animal is present, consider the following:
*Source: National Centers for State Court Website, “Frequently Asked Questions Americans with Disabilities Act (ADA)”, www.ncsconline.org/D_KIS/ADAResources.htm
†Source: A Meaningful Opportunity to Participate: A Handbook for Georgia Court Officials on Courtroom Accessibility for Individuals with Disabilities. Georgia Commission on Access and Fairness in the Courts, Administrative Office of the Courts.