Department of Justice Proposes Changes in ADA Title II and Title III Regulations : Your Comments Needed

It is crucial to ensure that everyone has effective and meaningful access to the justice system. Access to justice is a fundamental right guaranteed by the Constitution. Makeshift accommodations are not sufficient. People with disabilities should not be stigmatized or treated like second class citizens. It is not realistic to expect people with disabilities to create their own solutions for overcoming accessibility barriers on an as needed basis. Planning ahead can result in a courthouse that is both grand and accessible to all. There is no reason that constructing an accessible courthouse should be more expensive than constructing a courthouse with accessibility barriers. In addition, in many cases the cost of accessibility modifications to existing courthouses can be significantly decreased by focusing on low cost options for providing effective access. There cannot be an accurate economic value placed on access to justice. It is meaningless to compare the value of access to courthouses with access to places where leisure activities occur. Accessibility is not only an issue for people with disabilities but also impacts many others including senior citizens and parents with young children.

In Question 4 in the Notice of Proposed Rulemaking, the Department asks, in light of the Regulatory Impact Analysis, how to measure the intangible benefits that would accrue from accessible witness stands.

The Regulatory Impact Analysis did not sufficiently account for the importance of access to justice, which far outweighs any mitigation based on the relative infrequency of use for any given person. Given the essential role of access to justice in affording due process under the Constitution and avoiding discrimination in this crucial venue, we oppose revisiting this element with the Access Board and urge the Department to adopt it as drafted.

Comments

As the Supreme Court recognized in Tennessee v. Lane, 541 U.S. 509, 525 (2004), our country has a long history of violating the Constitution’s due process guarantee by discriminating against people with disabilities in the administration of justice. In order to ensure that past injustices toward people with disabilities are not repeated, it is crucial to ensure that everyone has effective and meaningful access to the justice system. Providing effective access to justice is not possible in courthouses where architectural barriers impede the path of travel and/or create situations which negatively emphasize an individual’s disability. For example, testifying at a hearing via video conference from an accessible location is not comparable to participating in the courtroom. Similarly, when a person with a disability who uses a wheelchair testifies from a location different than the witness stand, that person does not have comparable access to the justice system.

Courtroom areas that are not fully accessible stigmatizes not only the people with disabilities who are unable to independently use those areas but also all other people with disabilities who are entitled to participate in the justice system. The existence of this kind of stigmatizing injury in a court setting was recognized by a Memorandum issued by the Federal District Court for the Middle District of Tennessee in support of an Order denying Defendants’ Motion to Dismiss in Lane v. Tennessee (Case No. #3:98-0731, Docket Entry 318). It is understandable that people with disabilities who encounter inaccessible courtroom areas often feel like they are being singled out and treated as second class citizens. For example, people with disabilities who are confronted by barriers in a courtroom setting are faced with a choice between standing out as different due to participating from unusual locations or submitting to the humiliating and often unsafe practice of being lifted or carried in order to participate from regular locations which do not allow for independent access. Although the choice selected varies by person and occasion, neither is a satisfactory one.

Similarly, it is all too often the case that instead of taking the time to plan ahead in order to ensure that effective access will be achievable when needed, court personnel expect people with disabilities to propose their own ad hoc solutions as they encounter barriers to access.

In regard to existing courthouses for which modifications would result in an undue financial burden, the best practice may be for the court to change its location for a day or require all witnesses or jurors to be seated in the same accessible location whenever there is a participant with a disability who is blocked from accessing the witness stand or jury box. Unfortunately, even the kinds of accommodations that appear to be best practices can operate to shift focus from the court proceeding to the disability of an attorney, witness, party or spectator because it is apparent that disability is the reason why the location or seating is different than usual. In practice, last minute accommodations for people with disabilities are too often viewed as inconveniences for others. In addition, requesting these kinds of accommodations often requires people with disabilities to engage in additional planning ahead in order participate in court proceedings. This need for planning ahead likely increases the stress level for many people for whom going to court is already a very stressful process. Although granting accommodations is sometimes the best solution available to provide program access in some existing courthouses, it should not be an acceptable means for addressing accessibility barriers in courthouses where reasonable modifications can be made. This kind of ad hoc solution should never be necessary in newly constructed courthouses. Instead ensuring accessibility to allow for everyone to have access to justice should be a key concern during planning and construction of courthouses.

Although we recognize that the grandeur of courthouses emphasizes the gravitas of the proceedings, we are confident that stateliness can be combined with accessibility particularly when both considerations are taken into account prior to construction. There cannot be an accurate economic value placed on these items. The fact that fewer people go to court and spend less overall time there than places like restaurants does not mean that the benefit of accessible courtrooms is less than those of restaurants. Unlike restaurants, courts are essential to our justice system. Comparing access to justice to places where leisure activities occur is like comparing apples to oranges. There is no reason that constructing an accessible courthouse should be more expensive than constructing a courthouse with accessibility barriers. Moreover, in many cases the cost of accessibility modifications to existing courthouses can be significantly decreased by focusing on the use of low cost options to provide effective access.

When considering the importance of courthouse accessibility, it is also helpful to keep in mind that many people will experience a disability which impacts mobility if they live long enough. The benefit of accessibility features is not limited to the number of people who currently have disabilities. Moreover, accessibility features also benefit people who do not have disabilities. For example, accessibility features are often more convenient for everyone from parents pushing baby strollers to attorneys pulling carts with documents. When visiting a courthouse or other accessible venue, it is commonplace to observe people without disabilities using accessibility features such as automatic doors and ramps.

For these reasons, we oppose revisiting this element with the Access Board and urge the Department to adopt it as drafted.