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National Center for State Courts

COURT CONSULTING SERVICES

1331 Seventeenth Street, Suite 402 Denver, Colorado 80202-1554 (303) 293-3063/1-800-466-3063/FAX: (303) 296-9007

Roger K. Warren President Daniel J. Hall Vice President

MEMORANDUM

TO: Dan Hall Kay Farley Lori Montgomery Tisha Zelner Linda Caviness Carol Flango Chang-Ming Yeh

FROM: DATE: SUBJECT:

Jerry Kuban, Court Consulting Services June 16, 2004 NCSC Response/Reaction to Tennessee v. Lane, Docket No. 02-1667, decided May 17, 2004

BACKGROUND The United States Supreme Court reached a decision in Tennessee v. Lane, Docket No. 02-1667 ruling that states are subject to lawsuits by private individuals for money damages under Title II of the Americans with Disabilities Act in cases involving access to the courts. Inquiries have been made concerning what NCSC has done or is doing in this area and this memo attempts to summarize NCSC capacity to provide information on ADA.

NCSC ADA FEDERAL GRANTS AND WORK PRODUCTS Shortly after the passage of the Americans with Disabilities Act in 1990 NCSC obtained a federal grant to enhance court awareness of ADA requirements. This grant allowed for the gathering of ADA-related materials and publications and resulted in the development of a selfevaluation document that could be used by courts to evaluate their compliance/deficiencies

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regarding ADA requirements. The Court Consulting Services Division (CCSD) has continued to distribute this document in hard copy to courts that request it. The volume of material gathered during the term of this grant was significant and in 1994 CCSD culled this material prepared a resource and training materials manual that was available for purchase by the court community. The manual was supplemented in 1996. The Tables of Contents for these manuals are found in Attachment A. ADA Resource Center for State Courts--General Information In 1999, the National Center for State Courts (NCSC) received a $100,000 grant from the U.S. Department of Justice, Bureau of Justice Assistance to establish an ADA Resource Center for State Courts, (award number 1999-DD-BX-0084). The purpose of this project was to educate court decision makers about the requirements of the Americans with Disabilities Act and to provide technical assistance for implementing the Act in courts. All ADA information generated as a result of the grant can be found on the NCSC website at www.ncsconline.org, click on Court Information Portal. The general purpose of this ADA project was to identify ADA materials, policies and procedures that have already been developed by the courts and provide a vehicle for sharing and disseminating the information. As one component of the project, staff developed a paper-based survey that was circulated to the courts via the Conference of State Court Administrators for voluntary completion in late spring 2001. The survey did not attempt to measure the level of court compliance with the ADA, but was intended only to collect information regarding successful practices, policies and procedures currently used by the courts to make them more accessible to individuals with disabilities. All returned surveys were screened by NCSC staff, who then entered data from some of the most informative surveys into the Court Information Profiles. The ADA project also developed issue papers on selected ADA topics, obtained samples of settlement agreements from the U.S. Department of Justice, and created a frequently asked questions section. ADA Profiles These profiles highlight ADA compliance activities in 43 court locations across the country including: 2

Alaska Court System Administration Superior Court of California, County of Alameda Superior Court of California, County of Humboldt Superior Court of California, County of Orange Superior Court of California, County of Shasta El Paso County, Colorado Combined Court Montrose County, Colorado Combined Court Colorado 12th Judicial District, Probation Department Denver, Colorado Juvenile Court Florida 1st Judicial Circuit Court Florida 10th Judicial Circuit Court Florida 18th Judicial Circuit Court State of Hawaii Judiciary Kentucky 25th Judicial Court Norfolk, Massachusetts Probate and Family Court Issue Papers

Angoon, Alaska District Court Superior Court of California, County of Calaveras Superior Court of California, County of Imperial Superior Court of California, County of Sacramento Superior Court of California, County of Sonoma La Plata County, Colorado Combined Court Otero County, Colorado Combined Court Colorado 18th Judicial District, Probation Department Colorado Supreme Court Florida 6th Judicial District Court Florida 12th Judicial Circuit Court Florida 19th Judicial Circuit Court Iowa 2nd Judicial District First Parish Court of Jefferson Parish, Louisiana

Arizona Supreme Court Superior Court of California, County of Contra Costa Superior Court of California, County of Los Angeles Superior Court of California, County of San Luis Obispo Supreme Court of California Mesa County, Colorado Combined Court San Juan County, Colorado Combined Court Colorado 18th Judicial District Connecticut Superior Court Florida 7th Judicial Circuit Court Florida 14th Judicial Circuit Court Supreme Court of Georgia 10th Judicial District, Johnson County, Kansas Berkshire, Massachusetts Probate and Family Court

The ADA project team developed briefing papers on four specific topics to help courts understand and address the issues involved in complying with ADA requirements. The papers are available for retrieval through NCSC's Court Information Database. The briefing papers are: Communication Accessibility in the Courts Implementing the Americans with Disabilities Act in a Trial Court Implementation of the Americans with Disabilities Act in the New Jersey Judicial System Assisting the Blind and Visually Impaired

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Settlement Agreements The U.S. Department of Justice is authorized to investigate complaints to determine whether a public entity is in compliance with Title II of the ADA and the Department's implementing Title II regulation. The Department is authorized to investigate the facts, issue findings, and where appropriate, negotiate and secure a voluntary compliance agreement. The following are examples of settlement agreements resolving a variety of ADA issues in court settings. These are found on the NCSC website and were selected after considerable discussion with a USDOJ representative. Settlement Agreement between the United States of America and ... Perry County, Kentucky Allendale County, South Carolina Butte County, South Dakota City of Cambridge, Ohio City of Houston, Texas City of Mount Vernon, Washington Frequently Asked Questions The NCSC website also addresses frequently asked questions regarding the ADA including: 1. 2. 3. 4. 5. ADA and Its Application to State Courts Eliminating Discrimination in Policies and Practices Effective Communication Program Access General ADA Compliance in Courts

All ADA information can be accessed via the NCSC website: www.ncsconline.org, click on Court Information Portal. NCSC ADA Website As indicated above, all ADA material created as a result of the 1999 grant is available on the NCSC website at www.ncsconline.org, click on Court Information Portal. This information is also available in hard copy at a cost of approximately $80. The Table of Contents of the hardcopy material is found in Attachment B. Finally, the ADA self-evaluation instrument mentioned earlier is being scanned and readied for inclusion on the NCSC/ADA website.

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U.S. ACCESS BOARD ACTIVITIES The Access Board is an independent Federal agency devoted to accessibility for people with disabilities. It operates with about 30 staff and a governing board of representatives from Federal departments and public members appointed by the President. Key responsibilities of the Board include: · Developing and maintaining accessibility requirements for the built environment, transit vehicles, telecommunications equipment, and for electronic and information technology Providing technical assistance and training on these guidelines and standards Enforcing accessibility standards for federally funded facilities

· ·

OMB TO COMPLETE REVIEW OF NEW ADA AND ABA GUIDELINES WITHIN 30 DAYS The Access Board in developing new guidelines covering access to facilities covered by the Americans with Disabilities Act (ADA). These guidelines will overhaul the existing ADA Accessibility Guidelines (ADAAG), which were first published in 1991. As part of this effort, the Board is also revising its guidelines for federally funded facilities required to be accessible under the Architectural Barriers Act (ABA). Both the ADA guidelines and the ABA guidelines specify access in new construction and alterations and provide detailed provisions for various building elements, including ramps, elevators, restrooms, parking and signage, among others. Last February, the Board completed its work on these guidelines and submitted them to the Office of Management and Budget (OMB), the clearinghouse for Federal regulations. OMB, which originally scheduled 90 days for its review, recently indicated that it will require an additional 30 days. OMB is now expected to complete its review by late June 2004. The final guidelines will not be publicly available until cleared by OMB. The Board will publish the new guidelines as approved by OMB in the Federal Register and will post copies on its website. Publication is scheduled for July 26, 2004. The updated guidelines, as published by the Board, will not be mandatory as a design standard. Other agencies, such as the departments of Justice and Transportation under the ADA, and several others under the ABA, are authorized to set the design standards that must be met according to

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the Board's final guidelines. As part of this action, the agencies will specify when the updated standards take effect.

ISSUE-FOCUSED OUTREACH PLAN ADOPTED; COURTHOUSE ACCESS HEADS LIST Under a newly adopted plan, the Board will undertake outreach activities on yearly basis that highlight accessibility within a particular sphere or focus area. Outreach efforts will aim to increase awareness of a particular aspect of accessibility through partnerships with interested agencies and the development and distribution of information and guidance materials. As part of this work, the Board may also hold seminars or conferences on the subject. The goal of this program is to increase the visibility of different facets of accessibility in a manner that supplements the Board's technical assistance and training programs, builds partnerships with other entities, improves compliance with access requirements, and showcases best practices for accessible design. The Board will select a new focus issue each year according to criteria it adopted as part of the plan. Priority will be given to subject areas where accessibility has been problematic or not well understood and where supplementary guidance is needed. The Board intends to choose topics that relate directly to any of its guidelines and standards, are manageable in scope, and offer promising partnership opportunities with other agencies and organizations. This year the Board has chosen access to courthouses as its first focus issue. Elevated spaces within courtrooms, such as judges' benches and witness stands, and space limitations within the well of the court have posed challenges to designers as to how access can best be achieved. There has also been confusion over how to apply the guidelines for courthouses the Board previously developed under the ADA since they have not yet been incorporated into enforceable standards, including those governing the design of Federal and state courthouses. In addition, there are known and potential design solutions for achieving access to courtroom spaces that bear further exploration. The Board plans to collaborate with agencies that oversee the construction of courthouses, such as the General Services Administration, on addressing these and other issues. The information to be developed will be relevant to Federal, state and county courthouses. In coming months, the Board will be planning activities that will highlight

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access to courthouses and develop information on best practices for courtroom access. A meeting on the subject is tentatively planned for this fall in Chicago. For further information on this Board effort, the contact is Elizabeth Stewart at (202) 272-0042 (voice), (202) 272-0082 (TTY), or [email protected] (e-mail).

BOARD AND AIA LAUNCH ON-LINE TRAINING COURSE The Board and the American Institute of Architects (AIA) have developed a web-based education course on the Board's ADA Accessibility Guidelines (ADAAG). The four-part course focuses on supplements to ADAAG that cover public sector facilities, including courthouses and prisons, and building elements designed for children's use. The AIA is making this course available on its web site to train architects and to provide continuing education credits to its members and others. The interactive course includes case studies, discussion of key issues, and multiple choice questions. Users can download a Course Supplement and copies of the guidelines. The four parts of the course are: · · · · Introduction/ Course Supplement Module 1: Judicial, Legislative, and Regulatory Facilities Module 2: Detention and Correctional Facilities; and Module 3: Building Elements Designed for Children's Use.

Users can take any or all of these sections and earn three health/ safety/ welfare learning (HSW) credits per module under the AIA program. The course is available on the AIA web site at: http://eclassroom.aia.org/courselist.cfm. A free version of the course is also available on http://www.access-board.gov/news/AB-AIAcourse.htm (however, education credits are not offered through the Board's site). The guidelines on judicial, legislative, and regulatory facilities address elements such as restricted and secured entrances, security systems, assembly seating, speakers' platforms, and assistive listening systems. Much of this module is devoted to courthouses and covers access to courtroom spaces, such as witness stands and jury boxes, holding cells, and jury deliberation rooms. The module on detention and correctional facilities addresses the minimum number of cells that must be accessible (2%) and provides technical criteria for accessible cells.

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The third module covers alternate specifications based on children's dimensions for certain elements covered by ADAAG. These include drinking fountains, water closets, toilet stalls, lavatories and sinks, and fixed or built-in seating and tables. (As originally published, ADAAG, like most other accessibility guidelines, provided specifications based only on adult dimensions.) The course also explains the status and proper application of these ADAAG supplements, which have not yet been incorporated by the Department of Justice into the enforceable standards.

ACTIONS THAT NEED TO BE TAKEN BY NCSC 1. Complete the posting of the ADA self-evaluation instrument on the NCSC ADA website. 2. Complete the posting of U.S. Department of Justice, ADA enforcement activities (consent decrees, formal and informal settlement agreements, and mediated cases) 3. Notify state court administrators of the existence of the NCSC ADA website and available hardcopy materials. Also, advise them of the on line training course covering the U.S. Access Board Accessibility Guidelines for Judicial Facilities. 4. Determine the feasibility and market for a Webinar and/or an ICM course on ADA. ICM did present a course in February 1993 titled Americans with Disabilities Act: Problems and Solutions for State and Local Courts. 5. Make contact with the U.S. Access Board to ensure that NCSC has a place at the table for the upcoming focus on access to courthouses and the upcoming fall meeting in Chicago.

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ATTACHMENT A

AMERICANS WITH DISABILITIES ACT RESOURCE AND TRAINING MATERIALS SEPTEMBER 1994 TABLE OF CONTENTS 1. Introductory Materials The Americans with Disabilities Act of 1990 The NEW Facts About Disability Implications of the Americans with Disabilities Act 2. Communication Communication Fact Sheet Communication Accessibility in the Courts 3. Sensitivity Disability Etiquette What the ADA Means to the Nondisabled Easing the Trials of Trial - Disabled Defendants 4. Training Americans with Disabilities Act and the Judicial System Meeting the Needs of the Disabled and Elderly in Court Americans with Disabilities Act Interactive Video Conference 5. Employment - Rights and Responsibilities The Americans with Disabilities Act - Your Employment Rights as an Individual With a Disability The Americans with Disabilities Act - Your Responsibilities as an Employer From Disabled to Enabled - New Law Extends Rights of Handicapped in Employment Right of Way - The Americans with Disabilities Act An Employee Compliance Checklist - The employment provisions of the ADA Psychological Testing in ADA's Wake Breaking Down Employment Barriers The Job Description Defense - What is it? Defining `Disability' The ADA Regulations - Facilitating individualized justice for the disabled. The ADA and AIDS The Threat to Safety Defense under the Americans with Disabilities Act 6. Reasonable Accommodation Reasonable Accommodation and Undue Hardship under the ADA How should courts determine "reasonable accommodations" which must be made in compliance with the Americans with Disabilities Act? Yielding on `Reasonable Accommodations' The Truth About Accommodations

7. Enforcement The Americans with Disabilities Act: Enforcement Mechanisms 8. Grievances Grievance Procedures of the State of New York Unified Court System 9. Blind and Visually Impaired Technical Assistance Guide - Obtaining Tape Recorded or Braille Transcriptions of Document for use by Visually-Impaired Persons Toward Equal Access: Providing Information Access Services to Blind and Visually Impaired Persons under the Americans with Disabilities Act (ADA) Assisting the Blind and Visually Impaired 10. Cognitive Impairments Introduction to Cognitive Impairments Reasonable Accommodations for People with Mental Illness under the ADA Mental Disabilities under the ADA: A Difficult Path to Follow 11. Deaf and Hard of Hearing ADA Questions and Answers for Deaf and Hard of Hearing Individuals Courtroom Accessibility Issues for Individuals with Nearing Disabilities Assistive Listening Systems Deaf Juror Statutes Technical Assistance Guide - Telecommunication Devices for Deaf Persons Court Obligations to Provide Interpreters for Deaf Individuals Eliminating Communications Barriers for Hearing- Impaired Clients 12. Jury Service Including Persons with Disabilities on the Jury Overcoming Jury Ban on the Blind and Deaf Jury Accessibility Blind District of Columbia Man Disputes his Bar from Jury Duty/Galloway v. Superior Court of the District of Columbia Jury Selection: The Courts, the Constitution, and the Deaf 13. Facilities Accessibility Issue Summary Courthouses and the Americans with Disabilities Act: A New Era Opens ADA Signage Requirements: What, Where, Why and How Americans with Disabilities Act - Facility Accessibility Court Accessibility - The Needs of Persons with Disabilities The Goal - Increased Accessibility: Mobilizing ADA at the Local Level Access and the Courts: The Americans with Disabilities Act Mandates Action Now Accessibility Survey #1 - Accessible Route Accessibility Survey #2 - Accessible Parking

Accessibility Survey #3 - Toilet Rooms ADA Accessibility Guidelines The Americans with Disabilities Act -Title 11 Self-Evaluation State and Local Government Facilities: Interim Final Rule Proposed Rule 11. Judicial, Legislative, and Regulatory Facilities 14. Program Accessibility `Program Accessibility': How Courts can Accommodate People with Disabilities Technical Assistance Guide - Access to Public Meetings Americans with Disabilities Act - Improving Court Access with Technology Managing Information Resources for Accessibility 15. Libraries Adaptive Technology Makes Libraries "People Friendly" Enabling Blind and Visually Impaired Library Users: lnmagic and Adaptive Technologies Americans with Disabilities Act Bibliography 16. Volunteer Programs How the ADA Affects Volunteer Programs 17. Resource Materials Resource List Public and Private Sector Resources Technical Assistance Guide - Sources of Information on Accessible Design, Disability Research and the Provision of Services to Individuals with Handicaps Technical Assistance Guide - Telecommunication Devices for Deaf Persons Other Resources 18. Assistive Devices Opening Doors for the Disabled - Adaptive Technology Lets Blind, Deaf, and MotorDisable Personal Computer Users Lead More Productive Lives Representative Accommodation Products Index

AMERICANS WITH DISABILITIES ACT (ADA) RESOURCE AND TRAINING MATERIALS SUPPLEMENT UPDATE OCTOBER 1996 TABLE OF CONTENTS

TAB 1 ADA and Employment TAB 2 Jurors - Access and Accommodations TAB 3 Services for the Hearing Impaired TAB 4 Mental Disabilities and Corrections TAB 5 ADA and the Unionized Workplace TAB 6 ADA - Questions and Answers TAB 7 Compliance and Enforcement TAB 8 General Articles

ATTACHMENT B

ADA RESOURCE CENTER FOR STATE COURTS GRANT #1999-DD-BX-0084 AWARDED BY THE BUREAU OF JUSTICE ASSISTANCE OFFICE OF JUSTICE PROGRAMS U.S. DEPARTMENT OF JUSTICE TABLE OF CONTENTS TAB 1 TAB 2 TAB 3 Court Profiles Summary, ADA Compliance Activities Original Survey of State Court Activity Related to Implementation of the ADA in Courts Issue Papers Implementation of the Americans With Disabilities Act in the New Jersey Judicial System, Ernest J. Comer, Chief, Court Access Services, Administrative Office of the Courts, State of New Jersey Implementing the Americans With Disabilities Act in a Trial Court, Mark Van Bever, Court Administrator for the Eighteenth Judicial Circuit of Florida Publications Making Room for Mediation: ADR Facilities in Courthouses, Anne Endress Skove, Knowledge & Information Service Office, National Center for State Courts with the Support of a Grant from the State Justice Institute Assisting the Blind and Visually Impaired, Greta T. Tyler, Executive Director, The Alliance for the Blind and Visually Impaired Communication Accessibility in the Courts, Jo Williams, Director, ADA Project, American Speech-Language-Hearing Association Americans with Disabilities Act, A Selective Bibliography Frequently Asked Questions Settlement Agreement Examples of Issues in Court Settings City of Houston, Texas City of Mount Vernon, Washington Butte County, South Dakota Cambridge, Ohio Perry County, Kentucky Allendale County, South Carolina ADA Title II Self-Evaluation Document

TAB 4

TAB 5 TAB 6

TAB 7

Information

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