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FAIR USE NOTICE: This page may contain copyrighted material the use of which has not always been specifically granted by the copyright owner. This material is being made available in an effort to advance understanding of political, human rights, economic, scientific, and social justice issues, etc. It is believed this constitutes a "fair use" of any such copyrighted material as provided for in section 107 of the U.S. Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material in this message is distributed without profit to those who have expressed a prior interest in receive the included information for research and educational purposes. For more information go to http://www.law.cornell.edu/uscode/17/107.html. If you wish to use copyrighted material from these pages for purposes of your own that go beyond "fair use", you must obtain permission from the copyright owner. ABA URGES EQUAL ACCESS TO COURTS FOR INDIVIDUALS WITH DISABILITIES By Alex J. Hurder, ADA Mental & Physical Disability Law Reporter, September/October 2002 ABA's Resolution The American Bar Association (ABA) has called on all federal, state, territorial, and municipal courts to make courthouses and court proceedings accessible to individuals with disabilities. The ABA Resolution, passed by the House of Delegates in February 2002, recommends appointment of a disability accomodations coordinator for every courthouse as the key to ensuring equal access. The coordinator serves as the link between the court system and the individual with a disability. The resolution states: RESOLVED, That the American Bar Association urges all federal, state, territorial, and municipal courts to help ensure equal access to justice by making courthouses and court proceedings accessible to individuals with disabilities, including lawyers, judges, jurors, litigants, court employees, witnesses, and observers. FURTHER RESOLVED, That the American Bar Association recommends that the appropriate judicial or administrative official in each courthouse designate a disability accommodations coordinator to develop procedures for receiving requests for accomodations from individuals with disabilities and for responding with reasonable accommodations that meet the needs of the individual, including, where appropriate, removal of architectural barriers, modification of rules and practices, and provision of auxiliary aids and services. The Resolution emphasizes the obligations of courts systems to meet and then go beyond what is minimally required under the Americans with Disabilities Act (ADA)-1- and Section 504 of the Rehabilitation Act of 1973 (section 504)-2-. Federal and territorial courts, as well as state and municipal courts, are urged to ensure equal access to justice for all individuals with disabilities, including lawyers, judges, jurors, litigants, court employees, witnesses, and observers. This is particularly important for federal courts, which are not bound by the ADA and subsec 504. Title II of the ADA-3- prohibits discrimination in public services by a public entity against a qualified individual with a disability. The term "public entity" includes state and local governments and their agencies, the National Railroad Passenger Corporation, and commuter authorities-4-. Section 504 prohibits discrimination against a qualified individual with a disability by federal executive branch agencies and by state and private entities that receive federal funds-5-. Court Access Studies Disabilities can affect participation in the justice system in diverse ways. A comprehensive study - published in 1993 by the ABA Commission on Mental and Physical Disability Law and the ABA Commission on Legal Problems of the Elderly and funded by the State Justice Institute - describes how mental and physical disabilities can affect the participation of jurors with disabilities in legal proceedings-6-. For example, mobility impairments can cause difficulty climbing stairs, opening doors, using restrooms, and sitting for long periods. Persons with hearing and communication impairments are limited in their ability to participate in court proceedings, understand witnesses and the judicial process, and seek and receive information, schedules and instructions. Vision impairments make it difficult to read signs, view evidence, and review court documents. Persons with cognitive and developmental disabilities may have difficulty expressing their needs and other information to court personnel and lawyers, understanding rapid speech, remembering facts or instructions, and comprehending legal implications. Finally, psychiatric disabilities can limit a person's ability to concentrate, screen out external stimuli, and make decisions quickly or while under stress. The study's findings apply equally to the participation of judges, lawyers, litigants, court employees, witnesses, and observers. In a 1996 study, the American Judicature Society focused on helping courts "make their facilities and proceedings accessible for the approximately 24 million Americans who are deaf or hard of hearing."-7- The study identified numerous unexpected barriers to full participation. Some courtrooms were too dark, preventing persons who are deaf or hard of hearing from reading lips or signs. Other courtrooms used noncaptioned videotapes to explain procedures such as jury selection. At times, court personnel made decisions for persons who are deaf or hard of hearing, rather than employ an interpreter or provide an assistive device. Reasonable Accomodations/Modifications Under the ADA Often, a reasonable accommodation or modification can eliminate barriers that prevent persons with disabilities from participating in legal proceedings. The disability accommodations coordinator can play a crucial role in identifying appropriate accommodations and securing them in time to make participation possible. To be effective, however, the coordinator should not only have the authority to arrange meaningful accommodations, but also be knowledgeable about disabilities, auxiliary aids and services, and the functions of courts. It is also important to educate court personnel and the public about the role of the coordinator and ways to request an accommodation. The ABA Resolution asks courts to follow the lead of the ADA and Section 504 in recognizing the removal of architectural barriers, modification of rules and practices, and provision of auxiliary aids and services as means of ensuring equal access to justice for individuals with disabilities. Both statutes require an interactive process in which the individual with a disability and the state or local court system negotiate appropriate accommodations. This process of negotiation requires a case-by-case appraisal of the individual's abilities and an analysis of the nature of the service, program, or activity. The Resolution responds to the practical necessity of designating a person to receive requests and arrange for reasonable accommodations. In passing the ADA in 1990, Congress adopted the concept of discrimination that had been developed by federal agencies to implement Section 504-8-. Congress recognized that affording identical treatment to all does not give individuals with disabilities equal access to proceedings, programs, and activities. These individuals might be excluded unless accommodations are made for their unique needs. Title II of the ADA protects the rights of lawyers, litigants, jurors, witnesses, and observers to participate in court activities, regardless of disability. It prohibits discrimination against a qualified individual with a disability in the services, programs, and activities of a public entity. A qualified individual with a disability is "an individual with a disability who with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."-9- Title II requires state and local court systems to make reasonable modifications in policies, practices, or procedures if necessary to avoid discrimination, unless the modifications would fundamentally alter the nature of the service, program, or activity.-10 Furthermore, the removal of barriers and the provision of auxiliary aids and services must be at no additional cost to the individual or group that requires the accommodations.-1- While Title II prohibits discrimination in public services, Title I prohibits discrimination against a qualified individual with a disability in employment.-12- It protects judges and other employees of a court system. Discrimination under Title I includes a failure to make reasonable accommodations for an otherwise qualified individual with a disability. The duties to make reasonable accommodations require an employer to remove barriers, provide auxiliary aids and services, and make reasonable modification to rules, policies, and practices, unless such accomodations constitutes an undue burden on the employer.-13- What Courts Have Done Already Court systems have taken many different approaches to implementing the ADA and ensuring equal access for individuals with disabilities. For example, the New Jersey court system maintains a web site dedicated to court access for persons with disabilities. The judiciary's policy statement provides that "[i]n accordance with the Americans with Disabilities Act, the New Jersey Law Against Discrimination, and related laws, the Judiciary will promote the ADA as an integral part of the culture and environment of the judiciary and will provide reasonable accommodation to qualified individuals with disabilities."-14- Courts will honor an individual's choice with regard to the auxiliary aid or service, unless another equally effective means of communication is available, or the means chosen would result in a fundamental alteration in the nature of the particular service, program, or activity or an undue financial or administrative burden. The web site provides a list of county ADA Coordinators who receive requests for accommodation, explains the procedures for requesting an accommodation, and provides a grievance procedures for persons who are dissatisfied. Further, in 1995, the U.S. Judicial Conference adopted a policy on court acess for individuals with communications disabilities.-15- The policy called on federal courts to identify an office or person to serve as "access coordinator." The coordinator's duties include receiving requests for auxiliary aids and services, educating court personnel about the potential needs of persons with communications disabilities, and publicizing the policy and locations for requesting accomodations. Some courts have included explicit references in their rules to the right of persons with disabilities to receive reasonable individualized accommodations. For example, California Supreme Court Rule 989.3 makes it "the policy of the courts of this state to assure that qualified individuals with disabilities have equal and full access to the judicial system." This rule allows any person with an interest in a court proceeding to request an accommodation from the court-16-, and permits ex parte requests in appropriate circumstances-17-. Any information submitted to the court must be kept confidential-18-. Pursuant to this rule, accommodations include, but are not limited to, "making reasonable modifications in policies, practices, and procedures" and "furnishing, at no charge, ... auxiliary aids and services," such as equipment, devices, materials in alternative formats, and qualified interpreters or readers. "Program accessibility" must be provided by methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provisions of services at alternate sites. Rule 989.3 was an attempt to remedy accessibility problems - i.e., lack of assistive listening devices, sign language interpreters, knowledge by court personnel as to access barriers - discovered by the California Judicial Council Standing Committee on Access and Fairness-19-. Significantly, the Committee found a consensus among speakers that stereotypes about individuals with disabilities "must be removed before any physical or programmatic accommodation for persons with disabilities can be effective in generating full and equal access to the courts." Like California, the Maryland court system also amended its court rules to give notice to court personnel, lawyers, parties and witnesses that individuals with disabilities have a right to request accommodations-20-. The rules contain an official form - with spaces for the person to check - listing a variety of aids and services, and invites requests for other accommodations. The aids and services include assistive listening devices, communication boards, personal tape recorders, videotaped testimony, visual aid machines, documents in large print, special lighting, a "quiet" room, interpreters, escorts, guide dog accommodations, recesses at specific intervals, and special scheduling of proceedings-21-. Moving Forward Rules of civil procedure and criminal procedure, local rules, and rules of appellate courts, juvenile courts, and probate courts should all be reviewed and, if necessary, revised to eliminate provisions that might discriminate or discourage an individual with a disability from requesting an appropriate accommodation. Legislatures must recognize that accommodations impose additional costs on court systems-22-. All branches of government should cooperate in making the judicial branch available and accessible to all. *Alex J. Hurder is a clinical professor of law at Vanderbilt Law School. He is co-chair of the Committee on Rights of Persons with Disabilities of the ABA section of Individual Rights and Responsibilities. Notes:
WORKING TOGETHER TO ATTAIN FAIRNESS
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