What Equals Accommodation: The Service or the Transcript?
The Americans with Disabilities Act lists Communication Access Realtime Translation (CART) as a legitimate auxiliary aid for people who are deaf or hard-of-hearing. And, in fact, a decision by the Ninth Circuit Court of Appeals confirmed that realtime is a reasonable accommodation for deaf and hard-of-hearing people under the ADA.
But what actually constitutes the provision of an ADA-defined auxiliary aid that allows a person to "obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others"? Is it the actual provision of CART or a printout of the CART translation at the end of the judicial proceeding?
This issue came up in Gregory v. Administrative Office of the Courts of the State of New Jersey (No. 99cv1748). Gregory's lawsuit arose from his appearances before the New Jersey Superior Court to resolve ongoing disputes involving the custody and support of his three children. Certain New Jersey courts use audio- or videotape to record the proceedings. Litigants can purchase a copy of the tape for $10.
Several times Gregory, who is deaf, requested a printout of the CART service provided to him as required by the ADA "so that he might review the proceedings afterward to determine the accuracy of his comprehension." Gregory offered to pay the same $10 fee for the printout as hearing litigants pay to receive a copy of the court proceedings.
However, the state's Administrative Office of the Courts denied Gregory's request. Because proceedings that employ an official court reporter are not also audio- or videotaped, it would be impossible for Gregory to purchase such a recording. Instead he would have to purchase a copy of the official transcript at the court-mandated per-page rate.
Gregory contended in his complaint that the Administrative Office's refusal to provide him with a CART printout for the same fee that is charged for recordings that are available to hearing litigants violates the antidiscrimination provisions of Title II of the ADA. Gregory also sought certification as a class action, damages for expenses incurred because of the alleged discrimination and reasonable attorneys' fees and other reasonable costs.
The Court terminated the case without prejudice on September 11, 2000, pending the outcome of the Supreme Court's ruling in Board of Trustees v. Garrett, which focused on whether state employees may recover money damages by reason of the state's failure to comply with Title I of the ADA. Soon after the Supreme Court ruled in Garrett that the 11th Amendment barred such lawsuits, Gregory petitioned to reopen his case and amend his complaint so it conformed to the Supreme Court's ruling. Specifically, he sought to name two state officials as defendants, withdraw his request for damages and plead a cause of action under Section 504 of the Rehabilitation Act.
On October 18, 2001, the U.S. District Court in New Jersey granted Gregory leave to reopen his case and amend his complaint. On June 30, 2004, shortly before the case was scheduled to go to trial in federal court, the state agreed to pay Gregory's legal fees and provide him with printouts of the CART translation whenever he appears in New Jersey's Superior Court, Appellate Division, or Supreme Court.
So does this mean that the provision of a CART printout meets the requirements of the ADA as the actual provision of CART currently does? Apparently yes in this particular case. However, though the state's agreement is specific to Gregory, it could likely be used as a precedent when similar situations arise in the future.
Settlement Improves Communication Access at Two California Campuses
The Chronicle of Higher Education reports that the University of California settled a federal class-action lawsuit by agreeing to give deaf and hard-of-hearing students at its Berkeley and Davis campuses more control over the communication access services they receive under the Americans with Disabilities Act.
In Siddiqi v. Regents, the plaintiffs charged that the university failed to make reasonable accommodations for deaf and hard-of-hearing students as required by the ADA. Previously, students had to select either the use of sign language interpreters or CART providers during lectures. Now, with the settlement, students may use both sign language interpreters and CART providers at the same time. Moreover, the university must install assistive listening technology, such as closed captioning equipment, in all classrooms that seat 50 or more people.
Realtime Upheld as "Reasonable Accomodation"
The U.S. Ninth Circuit Court of Appeals in August determined that realtime reporting is a reasonable accommodation for deaf and hard-of-hearing people under the ADA. The case, Duvall v. County of Kitsap (Wash.), No. 99-35934, involved a deaf man who wanted realtime interpreting for his divorce proceeding in state court. The judge denied the request, and the man sued in federal court. The case was dismissed in part because realtime was not considered to be a reasonable accommodation in this instance. The Ninth Circuit reversed, holding that summary judgment was improperly entered at the lower level. The opinion can be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf.
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