The focus of this article is on the Americans with Disabilities Act (ADA) and the obligations of judges to all persons who use court services and who need accommodation to do so.
The United States Department of Justice (DOJ) for many years has made enforcement of the ADA a major priority. A significant part of the DOJ’s focus is on compliance by state and local governments. Type in “ada.gov” on your search engine and you will find the DOJ website dedicated to giving information and technical assistance for compliance with the ADA. The left side of the webpage is entitled “New on ADA.gov” and is a listing of settlement agreements and consent decrees reached between the DOJ and various defendants. The majority of those agreements and decrees are with governmental entities: states, cities, counties, universities, and public hospitals. It also includes actions against privately held entities, including a hapless taxi-cab driver/owner in St. Thomas, Virgin Islands who refused to allow an individual to bring a service animal into her taxi cab.
Title I of the ADA mandates that a person with a disability cannot be treated differently in obtaining and holding a position if he or she can do the job with a reasonable accommodation. As an employer, a judge must respond to, and have an interactive dialogue or process with, any employee who seeks accommodation due to a disability. If as a result of that process, a judge is unsure as to whether the accommodation can or should be given, please consult with this author before denying the accommodation.
Title II of the ADA places responsibility on governmental entities to make public services available to everyone. In DOJ publications on this issue, courtrooms are given as an example of facilities that need to make accommodations for disabled persons. Every judge must assess whether or not their courtroom is accessible, and take appropriate action if necessary. It is the county council or other local government entity that has the ultimate responsibility and power to take action to accommodate needs. Most courts do not have the ability independently to make and implement substantial changes in the physical structure of the courtroom, such as redesigning the jury box so a juror can sit in a wheelchair with the rest of the jurors.
Judges should evaluate every aspect of the accommodation needs of counsel, parties, witnesses and jurors. If a juror can get into the courtroom, but cannot access the private jury restroom, an appropriate solution will have to be found. If a witness can get in the courtroom, but can’t sit in the witness seat to give testimony, accommodation must be made. A judge must educate and work with the local council or financing authority in order to accomplish the necessary changes.
There is no “grandfather” clause in the ADA, and our beautiful old courthouses were made without today’s emphasis on disability accommodations. When a courthouse is eligible for listing on the National Register of Historic places, there will have to be balance between not destroying the historical significance of the property and making services equally accessible to all users. For several counties, this was not possible and courts had to move from the historical courthouse.
In addition to physical mobility, the needs of those with limited sight or hearing must be considered. Rule 2.3 of the Indiana Code of Judicial Conduct on “Bias, Prejudice, and Harassment” provides:
(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding. (emphasis added)
Part of compliance with this rule is making the court proceedings accessible to users as a right, and not begrudgingly. It is the court’s responsibility to provide accommodations such as braille documents and sign language interpreters, if needed, for witnesses, parties, jurors and even attorneys. This responsibility extends to all aspects of the proceeding that are ordered by the court, and not just to the primary hearing or trial. If a user asks for an accommodation that seems unreasonable or unnecessary, the court should enter into a dialogue about what is required.
Not every accommodation requested must be granted. For example, it is permissible to provide a reasonable alternative to what is requested, if available. A public entity is also not required to provide individuals with personal devices, such as hearing aids, wheelchairs or prescription eyeglasses. If possible, judges should reach an agreement on the record as to the accommodation that will be provided to the person who needs it. Cost will rarely be a good defense for a public entity in refusing an accommodation. In the DOJ’s Technical Assistance Manual, an example is given of a rural school district with only one elementary school. It is a one-room schoolhouse accessible only by steps, but there are no students who use wheelchairs. Nevertheless, the ADA requires the school to provide wheelchair accessibility in case a student did come to need it, or in case a parent or visitor might need access.
This is an area of the law where judicial immunity is limited.
For the protection of the court and taxpayers, when there is a controversy or question relating to Title II, judges should consult with Angela Joseph, the ADA Coordinator on Title II issues at the Division of State Court Administration. Angela may be reached at 317-234-3935 or firstname.lastname@example.org.