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Americans with Disabilities Act

Courtroom and Court Programs

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ADA & ITS APPLICATION

• Does the ADA apply to the courts?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.

• What courts are covered by the ADA?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. See also TN Supreme Ct Rule 45.

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Definition of Disability

Federal laws define a person with a disability as"Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment."In general, a physical or mental impairment includes hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex, and mental retardation that substantially limits one or more major life activities. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.

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Definition of Disability

The term disability does not include—(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;(ii) Compulsive gambling, kleptomania, or pyromania; or(iii) Psychoactive substance use disorders resulting from current illegal use of drugs.

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What does the ADA require for accessibility to court facilities?

1. Individuals with disabilities may not be excluded from services, programs, and activities because existing buildings are inaccessible.

2. 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.

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Standard of review

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.

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Are there any limitations on the program accessibility requirement?

Yes, but…..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.

1. Determination can only be made by the head of the public entity or his or her designee and 2. must be accompanied by a written statement 3. of the reasons for reaching that conclusion, based on all resources available for use in the

program. 4. Then, the public entity must take any other action to 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.

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What can be done to make the judicial program accessible in a courthouse that is not fully

accessible to persons with disabilities?

Options might be:• Where a courtroom is on an inaccessible floor, i.e.

second floor in a building with no elevator, and an accessible courtroom or other room that may be appropriate for use to house the judicial program, service or activity, restrooms, and other accessible facilities exist on the first floor of the courthouse, the judicial program may be moved to the accessible courtroom or other appropriate facilities.

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What can be done to make the program accessible in a courthouse that is not fully accessible?

• Where a courthouse is inaccessible and/or the courtroom or other offices related to the judicial program are inaccessible, the judicial program or service may be moved to an alternate site that is readily accessible.– Comments should not be made 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.

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What can be done to make the program accessible in a courthouse that is not fully accessible?

• Where the appropriate modification requires the judicial program to employ the use of audio/visual means from a remote location in the building in which the proceedings are being held, the means for viewing should be of such quality that the proceedings are able to be heard clearly and the participants in the courtroom are identifiable.

• Where a courtroom is inaccessible requiring the relocation of a judicial program, service or activity, such program, service or activity should not be conducted in a hallway. It is more appropriate to relocate such program, service or activity to an accessible location (i.e., courtroom, library or office) on the first floor of the courthouse or to an alternate site that is readily accessible.

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Assistance?

• Is carrying a person with a disability an acceptable method of achieving program accessibility?Generally, it is not.

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How can a court determine if a new building is accessible?

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).

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Is any funding available to help courts comply with the ADA?

Funding may be 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.

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Region 4 -Atlanta Regional Office

Knoxville Field Office

Mary C. WilsonDirector, CPD

710 Locust Street SWSuite 300Knoxville, TN 37902

865-474-8225 ext.125

Mary.C.Wilson@hud.gov

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What does effective communication mean

in a court setting?

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.

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What kinds of auxiliary aids?

Depends on the specific nature of the individual’s disability and preferred mode of communication. VISUAL IMPAIRMENTS:

qualified readers, taped texts, and Braille or large-print materials

HEARING IMPAIRMENTS: 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

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Must documents be in Braille, large print or other formats?

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. Give primary consideration to the requester’s preferred mode of communication and honor the choice unless you 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.

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Interpreters?

(c)(1) A public entity shall not require an individual with a disability to bring another individual to interpret for him or her.(2) A public entity shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except—

(i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or(ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.

(3) A public entity shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

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Interpreters

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To whom?

Does the court have to provide a sign language interpreter upon request for court spectators or court observers?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.

ADA regulations specifically prohibit interpreting services being assessed as an element of normal “court costs.”

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What about Service Animals?

Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—(1) The animal is out of control and the animal's handler does not take effective action to control it; or(2) The animal is not housebroken.(c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

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What about Service Animals?

(d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.

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What about Service Animals?

(f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).(g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.

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What about Service Animals?

(h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

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What about other animals?

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Miniature horses

(1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—

(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;(ii) Whether the handler has sufficient control of the miniature horse;(iii) Whether the miniature horse is housebroken; and(iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(3) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.

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Direct threat

§ 35.139 (a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.