Thank you for participating in the 2003-2004 audio conference series. A collaborative effort of the ten regional Disability and Business Technical Assistance Centers. DBTAC. You can contact the regional center that serves your area by dialing 800-949-4232 to get additional information about upcoming sessions and to have your questions involving the ADA and other disability-related laws answered. I wanted to let you know that today''s session is being real-time text streamed. You can access that on the Great Lakes web site at www.adagreatlakes.org. And this month, it is now possible to submit questions through that system. There is a dialogue box after you log in that will allow you to submit questions to the captioner and the captioner will then read those questions online so if you want to take advantage of that, that process, you can do that through the Great Lakes service to register. But as I said to find out information about upcoming sessions including the June 15th session, "To Disclose or Not To Disclose, The Pros and Cons of Doing So" with David Fram from the National Employment Law Institute. You can contact your Regional Center at 800-949-4232. We are very pleased to have back with us again today John Wodatch from the Department of Justice. He is the chief of the Disability Rights section within the Civil Rights section of the Department of Justice, and this afternoon, we are pleased to offer a Q & A session. It will not follow the typical format of our conference calls. There will not be a formal presentation followed by the Q & A. John will be providing some perspective on the Supreme Court case that was delivered yesterday, and then following that, we will provide instructions on how you can ask questions. So at this point, I would like to bring in John and first wanted to start out by thanking John and the assistance that he and his staff provide to the ten ADA centers through technical assistance and training and materials that they provide to us. So welcome John.
Thank you very much, Paul. I am delighted to be with you and with everyone this afternoon. I am particularly delighted to be able to talk about the Supreme Court''s decision yesterday in Tennessee versus Lane case. I thought in lieu of doing the usual kind of update, I would talk about this case and you can ask questions about this and I am fair game for any kind of questions that you might have in the Q & A session. I am still pretty much in a euphoric state of mind. It is not, I think you all know that our record in the supreme court is not always a great one, so when you have a victory, it is really puts everyone in a good state of mind and we think of this as truly a great victory. Five justices of the supreme court were willing to say and to say quite enthusiastically that Title II is appropriate legislation under section five of the 14th amendment as applied to the class of cases implicating the fundamental right of access to the courts. It does leave many challenges for the future and I guess one reason I am close to being giddy is to be honest with you, I thought the case was going to go in the opposite direction, so I am extremely happy that the threat of really serious damage to the ADA has been avoided. Because of this decision, private individuals will be able to bring Title II lawsuits directly against state court systems for all appropriate relief including monetary damages. And individuals would be able to sue the state courts directly and won''t have to rely on the limited perspective of relief offered that we had in the past by just suing state officials in the official capacity under the doctrine of ex parte young. Also because of this decision, the constitutionality of the department''s own enforcement efforts is firmly established. Although the issue in front of the court dealing with state sovereign immunity doesn''t apply to action that we in the Department of Justice can take. We are titled to its own constitutional. That threat has now gone involving access to the courts. That is part of the reason for my euphoric state of mind. What I thought I would do is go over the case in some detail a little bit and talk about the case itself, the legal reasoning and the decision and then sort of open up things for questioning. The case itself began in August of 1998, was brought by two individuals, George Lane and Beverly Jones, both are wheelchair users. They sued the state of Tennessee and 25 counties in the state of Tennessee because they were denied access to the state court system because of their disability. In Mr. Lane''s case, he was accused of two misdemeanor offenses and was compelled to answer the criminal charges in a courthouse in Polk County, Tennessee, but the courtroom was on the second floor of a building that had no elevator. First time he went to the court, he literally crawled up two flights of stairs. The second time he was supposed to appear, he refused. He said he wasn''t going to do that, and he thought it was inappropriate to be carried up these stairs by officers of the court. As a result of that, he was consequently arrested and jailed for his failure to appear. Miss Jones is a certified court reporter and she alleged that she had lost work and the opportunity to participate in the court proceeding and court process because of her disability. So they filed a lawsuit in 1998. The state pretty quickly filed a motion to dismiss on the grounds of immunity under the 11th amendment of the constitution, and basically saying they could not be sued by a private parties for money damages. The district court judge ruled in the favor of people with disabilities and denied the motion, but the state then appealed to the sixth circuit. At the time that the state appealed this, the United States intervened to defend the constitutionality of Title II and also to say that congress appropriately abrogated and people with disabilities can file lawsuits of this type. While the appeal was pending in the sixth circuit, the sixth circuit decided another case. You all may be familiar with this one. It is called Popovich versus Cuyahoga County Court of Common Please. That case decided the same issue. It held the ADAs abrogation of the 11th amendment is valid for claims based on due process principles, but not for equal protection principles. So in the Popovich case, which involved the court proceeding, the sixth circuit said he could proceed. Because of that decision, the sixth circuit affirmed the Lane versus Tennessee decision. And basically said this is a quote from the case, "physical barriers in government buildings, including courthouses and in the courtrooms themselves have had the affect of denying disabled people the opportunity to access vital services and to exercise fundamental rights." so in other words, the sixth circuit ruled in favor of the two people with disabilities. Then the state appealed to the Supreme Court. So we get to the decision there. A little background on what can seem to be fairly arcane constitutional law, but the fact that it is arcane doesn''t mean it is not important. 11th amendment to the U.S. constitution says that states are immune to lawsuits from citizens of their state. But there is a doctrine that allows congress to abrogate this immunity, in other words get rid of the immunity so they can be sued. But to do so, there have to be two things. The piece of legislation must unequivocally state that the law is intending to abrogate the state''s immunity and there must be a valid grant of constitutional authority that the congress is acting under. So those are the two principles that the court was looking at. The first question for the ADA is an easy one. The ADA specifically states that states are not immune to the lawsuit because of the 11th amendment. So the first part of the analysis is easy. What the analysis was all about, though, was whether congress had the authority to say people with disabilities could sue states for money damages. And there has been a recent line of cases dealing with this, really looking at our federal system of government and what are states rights and what are federal rights? Basically, the Supreme Court precedent goes on this basis. It says congress can abrogate the state''s ability to be immune from suit under the 14th amendment and that this power really is quite broad but not unlimited. The precedent in the past has said that congress has the authority to remedy and to deter violations of the 14th amendment even if the conduct that they are prohibiting is-includes some actions that themselves would not be prohibited by the 14th amendment. This is what the court has called, you may have called the phrase prophylactic legislation. So that it is possible for congress to enact a statute that not only forbids actions that would be themselves unconstitutional but some other actions that would be included that are discrimination but not of a constitutional basis. The test for whether congress had the authority to do this was called congruence of proportionality. What the Supreme Court has said is that there may be congruence of proportionality between the injury and the means congress has used to adopt to take care of the injury. Now, if you recall, we have been through this with the Supreme Court once in the Garrett case dealing with Title I. And in that case, the Supreme Court concluded that Title I was not a valid exercise of 14th amendment jurisdiction for public employment. They said that for two reasons. They said that Title I was not supported by a relevant history and pattern of constitutional violations. In other words, there was some information in the legislative history but what was being discussed wasn''t strong enough action to be a constitutional violation. And they also said that the ADA was such a broad remedial statute that it was insufficiently targeted to preventing unconstitutional discrimination of public employment. So that is the backdrop. What the Supreme Court did in Lane versus Tennessee is apply these same principles to Title II of the ADA. And in, I think you probably all know by now in a decision written by justice Stevens and joined by four other justices, Sandra Day O''Connor and Justices Ginsberg, Suitor and Breyer, those five justices constituted a majority. There was a descent by chief justice Rehnquist that was joined by Justices Kennedy and Thomas and a separate dissent by justice Scalia. So it is a 5-4 decision. Most of these decisions on these federal issues have been 5-4. In fact, the Garrett case was 5-4 in the other direction. The difference between these two cases is Justice O''Connor shifted her position between the Title I case Garrett and the Title II case. So here is what-basically the decision looked at a couple things. It started by looking at what congress knew when it passed the ADA. In other words, was there a history of discrimination by states that was constitutional in nature that would support use of the 14th amendment to support a piece of legislation? And the court went through and if you are interested in this, the Department of Justice brief which is on our web site, we tried to spend a lot of our time detailing the very detailed history that congress had before it. They had some 13 public hearings, congress did. If you will recall, Justin Dart led, had people in every state in the union provide information in diaries that were presented to the congress of acts of discrimination against them. And so the court relied on this information in coming to the conclusion that congress had a credible record in front of it. They said there was evidence of discrimination and prohibitions in voting in marrying, in serving as jurors, unjustified commitment, abuse and neglect of persons in state mental hospitals, irrational zoning decisions, unequal treatment of people with disabilities in the penal system, in public education and finally in the administration of justice, including exclusions from courts and courthouses. One report before congress said that 76% of public services and programs housed in state-owned buildings were inaccessible to and usable by people with disabilities. So based on this record, congress put in the statute itself a finding. The finding said discrimination against individuals with disabilities persist in such critical areas as education, transportation, communication, recreation, institutionalization, health services, voting and access to public services. And the court looked to this language in the statute, this discrimination against people with disabilities and access to public services and said this finding of the congress together with the record that supported it made a clear record, an extensive record that showed there have been discriminations against people with disabilities of a constitutional nature in the history of our country. This differentiates this case from the Garrett case. In Garrett, the Supreme Court says there was a strong legislative record but most of the evidence was about the provision of services and public accommodations, not employment. So the record and their view of the record changed, so that was the underpinning of this decision. That was the first part. The final line of inquiry, once you get over that is, okay, there was this record of discrimination in choosing the ADA did congress create a proportional response to the record or did they go too far? And basically, the court concluded, to use the words of the court here that the ADA is a reasonable prophylactic measure reasonably targeted to a legitimate end. And they did this by a fairly specific way. They said that the ADA reaches a wide array of conduct to enforce a wide array of constitutional guarantees. The one narrowing part of this court''s position was that they said we will not address the broad range of whatever Title II can address. The question is the constitutional right of access to courts. So we are only looking at access to courts. We are not looking at this specifically. We are not looking at lawsuits for damages for lack of access to state-owned hockey rinks. We are talking about courts. So they applied this and looked at the ADA. They said Title II is use of program accessibility, is congruent proportional to the right of access to the courts and said the ADA makes a series of reasonable modification-requires really a series of reasonable modifications that can be satisfied in a number of ways. They said for new facilities, you know, you have to follow specific architectural standards but for older existing facilities, there are a variety of less costly measures including relocating services to alternate accessible sites and that only when those were ineffective were there structural changes required under the ADA and even that is limited by the fundamental alteration limitation and undue burdens. So the Supreme Court looked at this and said, okay, the ADA is not only congruent but it is proportional in its response and therefore it is supported by the 14th amendment to the constitution. A couple thoughts about the case. Although the court adopted this approach sort of called an as applied approach. In other words, it didn''t decide whether all of Title II was constitutional or unconstitutional in all of its applications. Only used an as applied approach. In doing so it used a very broad analysis. I think it gives me hope that it will rule similarly in other areas implicating fundamental rights. Some of the issues I talked about unjust institutionalization, voting, education, these areas that the court went out of its way to discuss, I think, are signal that these are also areas that are going to be protected. I mean, they looked beyond just inaccessible courts in describing the harm that Title II is meant to address. It was just a large range of things. So I think when we are going to be talking about voting or commitment or institutional abuse or zoning o are prisons, those kinds of issues, we are going to be on very strong basis to make our case. We are going to be on much weaker grounds in areas outside this for example, there are a number of cases out there about parking placard fees and whether those are actionable under the ADA. I think we would have a much harder time based on this decision to follow those cases. The case itself, if you are wondering, now returns back to the district court and so if there is not a settlement in this case, it will go back to the district court and we are looking into, since we are a party to this, assisting the plaintiff''s attorneys in making the case that Mr. Lane and Miss Jones were discriminated against on the basis of disability and the state should have appropriate injunctive relief, although, I am told that an elevator has been installed in the particular courthouse, Polk County courthouse in Tennessee. I am not sure about the other 25 jurisdictions that were included. Then of course there is the issue of whether they are entitled to money damages and if so, how much? That is all yet to be determined. Keep in mind, I think you probably remember there are a lot of other cases in the court system right now and there is some pending, so there will be several appellate courts that will have to apply the principles that the Supreme Court has enunciated in Lane versus Tennessee in those cases. I think two of them deal with prisoners, and one deals with education. I also expect, I mean, the one thing that is probably clear from this is that this doesn''t end the litigation. It does allow people with disabilities to bring lawsuits. States are still going to have an avenue that they can challenge the constitutionality under the 11thth amendment and we will continue on. It is early to predict how that will play itself out, whether states will, you know, if a case is about voting or if it is about unjustified institutionalization, I think there is going to be less of an incentive for states to bring that kind of action on a motion to dismiss under the amendment but it doesn''t mean that they wouldn''t try. It just remains to be seen what kind of deference states will give to the supreme court and as they follow in this in these cases. Certainly in cases outside the issue of fundamental rights and liberties protected by the constitution, I think there will be much more litigation so the parking placard cases. The Supreme Court kept talking about the same hockey rink and whether Title II could require that to be accessible. Keep in mind in some of those other situations, it is not just the ADA that will be at issue, but many of these enterprises receive federal funding and so will be covered by Section 504, which puts them in a very different footing. So some of these are also, you know, unless a hockey rink is only a state entity, a lot of them are owned jointly by states and operated by private entities under Title III, so there would be Title III coverage. So if you thought this was the end of the line for constitutional litigation or inquiries, it certainly isn''t. The very important step, especially for those of the people like me who thought that the court was going to go the other way, I am just-I can''t tell you how pleased I am with the decision and the breadth of the decision and the language at which it uses but also keep in mind, it is only specifically applied to courts and the administration of justice. I hope that is not too confusing to you all. Why don''t we open this up for questions about Lane versus Tennessee or other things under the ADA that are on your mind.
Please, we would ask that you keep it to one question. We would like to get to as many people''s questions as we can. If you have a question that is personal to you, a specific question, we would ask that you contact your regional ADA center at 800-949-4232 with your question could be better addressed. Before we get to the questions from the callers, John, we did receive some e-mail questions prior to the start of the session, and one question came from a resident of New Jersey, who had a question regarding how the Department of Justice could play a more central role in enforcing the accessibility standards under Title III of the ADA. And she had referenced some places of public accommodation newly constructed that had not fully complied with the accessibility standards under Title III.
Okay, well I can tell you that one of our top priorities is trying to ensure that newly built buildings follow the ADA standards for accessible design because it is where the ADA, I think, is at its strongest and best making clear that when we are building a building now, it doesn''t cost that much to make it accessible when you are designing it. Designing a door that has a 32inch clear space as opposed to a 28 inch clear space causes no additional funds. So we should be very vigilant about new buildings. To be honest with you it is hard for to us always know about new buildings. We are-I hesitate to ask for people to send us more complaints because as most of you who send us complaints know, there is no way that we can do all of the complaints that we get and we can only do a small subset of them, but frankly, we don''t get many complaints about new construction. And if you have-if you know of instances where buildings are built incorrectly, I would ask you to let us know and see if we can follow up on that because it is an area we would like to see changed. We still spend a lot of our effort in terms of outreach to architects and contractors and builders and schools to try to get them to understand the ADA design standards and make buildings accessible but we know we have still got a long way to go.
Actually, you answered, I think, in part my first question, and that was you had mentioned that it was protected in as far as access to the courts was concerned but my question is maybe it is kind of redundant but what about the other Title II entities? Are we supposed to still operate under the DOJ/ADA guidance and the district court decisions?
Certainly I think as much as can be expected, this decision was an endorsement of the approach that was taken in our regulation, and that the congress took in the statute and so the idea of program accessibility for existing facilities, the idea that new ones have to be fully accessible, I think, is very good guidance and should be followed. I think there will be a time of sorting out what this means in terms of what are the fundamental areas that will be covered, but I think at this point, our guidance to states will be to follow the ADA statute and regulations and make the programs accessible.
Great, thank you. Even in situations where money damages may not be available, the Title II regulations are still enforceable and states do have that requirement to provide the programmatic access.
The question that I have has to do with institutions of higher education regarding accessible parking. Are there any requirements that dictate a specific minimum or maximum distance that must exist between the accessible parking spot the individual has been assigned and the building where the student has class or the employee works?
Well, there is no specific amount of, you know, how many feet, how many inches, how many meters. It is supposed to be the closest parking space or group of parking spaces to the entrance of the building that we are dealing with that deals with that in general terms. Now, so that is the language that would apply to a new facility. The problem that sometimes exists is the closest parking area may be difficult to make accessible. It may be uneven, it may be on a hill. But when we are looking at a case like that, we would try to make sure that it is the shortest distance possible from parking spaces to the building itself whether it is an employment situation, a student situation in terms of housing, whatever it is.
I work for an independent living center, and we often times receive ADA complaints. If I am not the person who is discriminated against, can I, or can the center, initiate the lawsuit?
I guess the answer to this, you are going to hate my answer. Depends, it may depend upon the nature of the violation. The nature of the violation is really personal to that person. For example, if they are denied an accommodation in testing. And it is not something unless you are doing it on behalf of a class of people, it is pretty hard for to you bring a lawsuit without having that person''s story involved in having them individually involved. It is a problem they have is the front entrance is accessible and the center wants to bring a lawsuit because the front entrance is accessible, you are clearly the center is in a position to make that case just on behalf of a group of people with disabilities. So it would depend upon which kind of fact situation that you looked at and also some judges are much more strict about this than others.
The Lane case referenced and the scope and coverage of the Lane case, I just wanted some clarification. Did you say that the Lane case is specifically-they are specific to courthouses only. Is that the only thing they cover or if a state agency violates the act under title 2, are there still ramifications there?
Okay. The case itself, the Lane versus Tennessee case, the way the Supreme Court decided only by its own terms directly applies to courts and the administration of justice so that anywhere it is clearest right now is if a state, if they are sued for money damages because the courts are inaccessible in some fashion, they are not going to be able to say you can''t sue us for money damages. Where it becomes less clear is okay, how about other a.m. of the state whether it''s the state board of education, the state transportation board, the case itself does not directly apply outside of courts, however, the reasoning in the case can be used to apply and so I would expect that there will be people with disabilities and groups of people with disabilities as well as the department of justice that will bring lawsuits saying that if you apply the rationale of the lane case to the following areas, the same result should apply. It is not clear what courts will say in response to that, and so that is the area that is the least clear. To the extent that we are going to be talking about parking placards and other things that don''t implement or don''t implicate basic constitutional freedoms, I think it is likely that lawsuits brought on those bases will probably lose and would be subject to a court saying that you can''t sue for money damages on those kinds of issues. What the Lane decision basically opens up is sort of a case by case application of the principles in Lane to other circumstances. And it will take some time to see how the courts sort that out.
how does the recent supreme court decision apply to government buildings (courthouses, etc) that are considered historical sites? The second question is. As a new deaf attorney practicing in Rochester, NY on a two year fellowship I am interested in continuing work protecting the rights of deaf and hard of hearing persons after the conclusion of my fellowship. What advice or guidance would you offer to me and other new attorneys on finding a fulfilling and busy career defending the rights of deaf and hard of hearing individuals.
Okay, thanks. Let us start with the historic-the supreme court decision basically doesn''t change the sort of issue of historic courthouses. It is still within the ADA regulations. Basically, there are a number of federal and state laws that require historic features to be preserved. The fact that a historic feature in a courthouse has to be preserved doesn''t mean it can''t be made accessible. What the ADA would require is that, you know, that you try to find a way to keep the historic features and make the building accessible and it has been my experience at both with the federal government and federal buildings in Washington as well as any number of state courthouses and state places of employment, state capitals that you can keep the historic features. The historic features might be the front entrance. So it might not be possible to make the front entrance accessible but there are ways to make other entrances accessible so that the building itself becomes accessible. I think it becomes sort of a case by case determination, but I don''t believe there is a building in this country that we can''t make accessible even if it is historic and find a way to have wheelchair users and other people with disabilities involved. Now, the initial reaction you will always get from the historic preservation folks is no, no, no, you can''t change that, but of course these buildings have been changed over the years. They have added air conditioning, lighting, they have added fire protection features. Adding accessible features is just another part of that. Okay, the second question, Spencer, I am delighted that you are embarking on a career involving disability rights, and I applaud you for doing that. And I am sure the people many Rochester will be lucky to have your advocacy. Although, have I to admit it is a hard time for attorneys finding jobs right now, which I know because the job market is a difficult one, there are a couple things that I would suggest. I would hope you would consider at some point a career in the federal government because I think it is a good employer, and it is developing a good record on providing reasonable accommodations. And the federal government doesn''t mean just coming to Washington, DC. There are U.S. attorneys offices and offices of other agencies that provide a wealth of jobs for enforcing the ADA, the fair housing act, the civil rights of institutionalized persons act and civil rights laws that provide opportunities for people with disabilities. There are also a number of avenues that I think the American Bar Association is creating a list of people with disabilities, so that agencies, that federal agencies that do have affirmative action obligations to seek out and hire people with disabilities have access to knowing about people with disabilities. One of the problems I have seen in job advertisements at the federal level is that there aren''t many people with disabilities that apply for them. They may not know about them. We may not do a good job of outreach. I think another way to deal with that is through organizations, the National Association of the Deaf and other organizations are pretty good at informing their members about job opportunities. I certainly hope you will consider-we in my own office hire people from time to time. We would love to make sure we had your application. If we couldn''t hire you here, we would certainly make sure you knew about opportunities elsewhere. There are also opportunities at the state level. I am a little less aware of how to do that, but I just spoke last week to the National Association of States Attorneys General, and they have a number of states have very active disability rights programs, and you are in Rochester. I don''t know if that is Rochester, New York, but if it is Rochester, New York, the New York attorney general''s office has several attorneys who do litigation and do other work on the rights of people with disabilities, and I would suggest you follow with those offices as well.
The current ADAAG currently requires detectable warnings of the truncated dome design required in parking lots and public right of ways. Will the new ADAAG, the truncated dome design be required in parking lots as well as public right of ways and is equivalent facilitation allowed or is the truncated dome design the only design allowed?
No, what we are talking about is when you have on curb ramps, whether they under parking lots or in other places, at one point, the ADA standards for accessible design required what are called truncated domes, which are like sort of little bumps on the ramp itself in a certain configuration. The idea behind the bumps or truncated domes was to give a physical clue to people who are blind that they were approaching a dangerous area, that they were approaching an intersection where there would be vehicular traffic. There was a lot of controversy about them because they were difficult to maintain. There were some groups of wheelchair users who maintained that they created a very uneven surface, that especially for someone who is in fragile condition could be damaging to their health. There were some groups of blind persons who thought they were a silly requirement and that blind people didn''t need that kind of physical cue. And as a result, at one point, the federal government suspended the requirement for them. The suspension ran out so they are now again required as we speak, and the department of transportation has told entities that they should-that receive federal funds that they should be putting truncated domes on new curb ramps. Let me get your question. There are new accessibility standards that are being developed by the access board and that I hope will be issued sometime this summer. I know the issue is being considered by them, and will be dealt with in terms of whether or not there should-and they are going to differentiate between different kinds of curb ramps. Some would have them required and some places and not in others. Your question about equivalent facilitation, I think at this point, equivalent facilitation always applies to any physical requirement in the ADA standards so that you don''t have to follow exactly what the ADA standards say as long as you have something that is equivalent and that meets the same kind of standards. This is one area where I think equivalent facilitation will work.
Not according to the U.S. Department of Transportation.
I am aware-fully, I became aware recently about the department of transportation''s, I guess guidance letter.
It is on their web site that says truncated domes are the only detectible warnings allowed. That is the problem we are having in Illinois-we have municipalities receiving federal funding, what type of warning design. DOT is saying truncated domes. DOJ and Great lakes is saying equivalent facilitation.
I have just recently been made aware of that and we will be discussing that issue with the department of transportation because the existing-one of the things that they say in the guidance is they suggest using the new standard, the 24 inch swath, and that is not required under any federal law at the moment.
Well, actually, the ADAAG requirements have the width of the ramp.
They do say that, but -
And 24 inches in depth.
But that is not a legally-that standard does not apply to anyone. It only applies to the department of justice until we adopt it, that standard does not apply to anyone.
So what is the current adeg requirement for detectible warning?
It is the old line standard that was there before, I think it is 36 inch one, but we accept equivalent facilitation of a variety of types.
But only in parking lots, not on public right of ways?
We have no standards whatsoever on public right of ways.
Okay.
Nothing that requires them on public right of way.
So in the new ADAAG, you are not going to require them in parking lots?
That would be, I believe the thinking.
Thank you for the question. Go ahead, John.
I understand-I became aware of a lot of frustration and confusion about this and I think the federal government is helping with the confusion and we are going to try and sort it out so that a lot of local governments are really worried about this. I am concerned that you don''t needlessly spend a lot of money on things that-redoing things that you don''t need to redo.
As long as it is come up, John, I am going to go ahead and have you address this on July 26th, the Access Board will publish the ADA/ADA revision.
Right. They are hoping to.
Hoping to, right. And talk about the process that will take place as far as the Department of Justice once the final revisions are published and also address a little bit more what we have seen already some confusion between people looking at the revisions and what are now still standards.
I would be happy to. The access board is hoping and planning to publish its final ADA accessibility guidelines on the anniversary of the ADA or close to it. We at the Department of Justice are hoping on the same day that they do that, we will also announce our intent to adopt those. Until we do adopt them, they are not legally supportable standards and do not apply to you. Therefore, and we will begin a process of putting them out for public comment, allowing public comment and that process will take probably a year to two years to complete. We hope to start it when the access board puts its guidelines out, but until that happens, the access board guidelines are just that, they are guidelines. They are not legally enforceable standards.
Yes, this question pertains to old rights of way and the term whenever feasible, we must comply with accessibility. If there is old area where we don''t have the space for sidewalks and the proper cross slope, what is the interpretation of feasible in these area where there is no right of way?
Are you talking about curb ramps?
I think it sounds like he is talking about sidewalks.
Sidewalks.
There is a great deal of discussion, especially out in the west coast areas after the unite-the ninth circuit decision in Sacramento about sidewalks. Clearly sidewalks are a program that is covered under the ADA that has been made clear now in the ninth circuit and we endorse that, so sidewalks have to be a program that is covered by the ADA. Clearly for many existing cities making them accessible especially in terms of cross slopes is going to be difficult. And whatever feasible means, I mean, for example, the streets of San Francisco, you are not going to remove the hills. And those will never be accessible in the same sense. I think what it means is you do what you can to make them accessible. Clearly, we would like to see a 36 inch clear path that is free of guide wires and telephone poles and as much as possible, does not have a cross slope. It is not always going to be possible given the terrain and the existing buildings and the existing site. And so I guess my advice to cities is to do the best job that they can and have a program of examining their sidewalks trying to make them clear as much as they can within the site that is there.
I have another e-mail question for you, John. This involves the Department of Justice''s project civic access. The question coming from Michigan, involves how long of an investigation takes place when the disability rights section decides to conduct one? And the process if fines are part of a settlement agreement, where those fines come from? And finally, what steps, if any, has the department had to take if an agreement is not followed by the Title II entity?
Okay. Under project civic access we work with the cities and governments to try to make a wide array of their services accessible, and usually, one of these investigations takes, I would say probably from four months to six to eight months to complete and come to fruition. Basically it entails us sending people out on site, picking which parts of the city''s facilities we are looking at, whether usually it is the town hall. It may also be the courts. It may be the police department, maybe the city parks, maybe the city web sites. It may be their emergency preparedness procedures. We look at a variety of different things in the city. Our experience has been that most cities are really, although they are not necessarily happy to see us when we are first there, they do come around and view the guidance that we give fairly carefully and make a lot of changes and work out a plan to make those changes to their physical plant. We have only had a couple of cities that we are still engaged in discussions with really balk at making the changes we think are necessary. We have tried not to deal-we don''t under Title II of the ADA, we do not get civil penalties. We get civil penalties against private entities under Title III. The reason congress divided that up that way is they wanted-they didn''t want taxpayer money to go as civil penalties to the federal government. They would rather have the money be used for whatever changes the city is doing. So we do not get fines against cities or states under Title II of the ADA. There was a third part to that question.
Dealing with if what steps, if any, the department-
What we traditionally do is we will go back out to the city site to make sure that all of the things that they specified and we try to make them as specific as possible. We were criticized in the press for making people move coat hooks but we will go back and look at the changes and make sure they are done and tell them to do them. We have only had two instances thus far where someone has said they were not going to do something that they had promised to do. We are trying to negotiate with them. If we can''t get the negotiation, we will sue them and have a court order them to do it.
Hi and thank you for this opportunity. Going back to your first answer, in addition to DOJ educating architects, contractors and inspectors, I wonder if it is possible that you could have some enforcers and educators and federal inspectors coming to states and checking municipal buildings, county buildings to start with but also maybe some monthly articles for citizens information since we have so many people coming in from other countries who are starting mom and pop stores and just don''t know about the ADA. And then of course you have people who ten years ago were 17 and now they are 27 and might start a store or something small and would want their parking lot to be correct, but I am finding here in central New Jersey that it is just not happening. Things are going backwards.
Yeah. We have a lot of-you know, you raised a couple very interesting points. We have a lot of interesting information available in up to ten languages. We now have an ADA web site in Spanish at ada.gov. We are trying to get as much of that information. We have worked with the Hispanic chamber of commerce and the Asian-American hotel and lodging association and others to try and get information to people whose language may be-whose first language may be other than English about this because they are starting businesses and they are starting a project with the small business administration to try to provide information through their channels and we are looking at developing an online tutorial on the ADA with the SBA. I am hoping that might be something we can accomplish in the coming months. So we are very interested in doing a lot of those avenues providing information. We simply do not have the numbers of people to go out and do investigations or refuse before something opens. Our hope is, there is a part of the ADA that calls for the certification of state and local building codes. And there are five states that are certified right now. Maine, Florida, we just did Maryland, Washington and Texas. What that means in those states, we have looked at the state accessibility code and it meets the same standards as the ADA standards. What that means is if somebody in those states follows it and the local code officials follows the standards in doing the certificate of occupancy, they should be able to catch violations. Now, I know they have waiver procedures and they don''t always catch everything that is there, but at least that is one way to use state and local enforcement officials in trying to get accessibility done. It has varying. In Texas they do a lot of training of the people who do it on accessibility so that they are more schooled in what the requirements are. Other states may not do that, but that is another possible avenue. But we will-another thing that has happened is right after the ADA came out there was a lot of training for a lot of businesses. And you are right, a lot of those people are gone so that the new people coming in don''t know about the ADA requirements. And we are always looking for opportunities to get information out to cover in the people with disabilities. We have our ADA information line and a fairly well developed ADA web site to try to get information to people. If you have other suggestions, we would be happy to try and follow up with them.
I am in Portland, Oregon, Region Ten and I am asking this question for participant Cheryl Garcia. She is interested in getting some information regarding TTDs. Equal communication to a public service organization such as health care facilities. Do health care facilities have to have TTDs or does a replay service satisfy? And what kind of staff training must happen?
Those are good questions. I can tell you we get a lot of complaints about hospitals and health care providers and lack of effective communication with people who are deaf or hard-of-hearing. The requirements under the ADA are that entities that are covered by it have to provide effective communication so that someone who is deaf or hard-of-hearing has an equal student to understand what is going on. We have not required that every single entity covered by the ADA has to have a TTY or TTD. We have said that for incoming calls especially for if they rely on the relay service, that is fine. They have to use the relay service if they do it. However, there are a number of kinds of health care facility where you may have to make an outgoing call while you are there, an emergency room, for example, and those kinds of circumstances where a deaf person is likely to be there and make a call out, we would require that they have TTYs and TTDs so that a deaf person or someone for whatever reason uses the TTY will have it at their-at the hospital at some of the health care providers that allow outgoing calls. There is no specific requirement for training although any time we enter into an agreement involving effective communication, training is one of the things that we spend a lot of our time including because with the amount of staff turn over that occurs it is really very important that they continue to train people because even with the relay system, people are not schooled with how to use them but there is no specific ongoing training requirement that is written into the ADA.
Yeah, I have a question about I know that they passed some of the regulations for open road buses but I want to know about tour buses, whether or not they are going to have requirements to make those accessible? And also, I want to know if down the road they will be requiring securements in airplanes so you won''t have to put your electric wheelchair under the belly of the plane and have it get broken?
Okay. To the extent that tour bus companies are covered under Title III. You are right, you have got the right conceptual idea. They are different than over-the-road buses although the new standards for over-the-road buses, I think, would be applicable to tour buses. So tour bus companies have an obligation to provide accessible tours to the extent it is not a fundmental alteration or undue burden. Frankly, we haven''t seen many cases or issues on tour companies and tour buses. We have had a couple but not in the 12 years or so we have been doing this. Not very many, and we would be, if there are issues you want to raise with us, we would be happy to look into them. In terms of your question about, I guess it is really a question what DOT might be doing under the future of the air care access act or whether they will get to a point where they will provide better guidance on securing power chairs and other chairs so we probably don''t have as many broken record or as much difficulty as we have had. I don''t know personally that they are looking into that issue. If you are interested in it, I would suggest that you write a letter to the people who do the air care access act and suggest that they and suggest that they look into this and suggest an approach for them.
Dealing with polling place accessibility. The question involves enforcement of polling place access.
Yeah, I hope you are all familiar with the new document, new in the past year that we have put out that is a check list on how to check to see if polling places are accessible. The ADA certainly applies to polling places, however, over the years, the ADA has not been interpreted to require that every polling place be accessible. The process has to be accessible. We have been trying to get local governments to make every polling place accessible and to adopt strategies to do that because there are 10 to 15 years ago there were nowhere near the number of accessible places that exist now. I know of two states that have made or have at least told us they have made every polling place accessible and that is Florida and Rhode Island. Other states are looking into this. A new wrinkle in this is the Help America Vote Act, which was passed by congress, which has a number of requirements, which kick in, in the future. One of the interpretations of the Help America Vote Act is that in 2006, every polling place will have to be accessible. And so we are trying to work with local governments. That is why we did the technical assistance piece so they could look at polling places to try to ensure that people with disabilities can vote with their neighbors and their local polling precinct or work at the polls and their polling precinct and have it be an accessible one. I know we are only working our way towards that goal at this point.
The question has to deal with, will there be a Title III required to go through another public comment period? By the Department of Justice.
The answer to that is, yes, the congress passed a regulatory flexibility act that requires any regulation that to go through what they call a decendio review so that just about every ten years where it is 12 years old so we are behind that we put it out for public comment so the public can raise questions about it. After we do the adopting the ADAAG rule, which we hope to start the process this summer, we will be coming out with rule making that will ask those questions so that people will have a chance to comment on any of the existing regulatory sections as well as proposed additional ones.
Hello, thank you. Our New Jersey state local state and local ADA coordinators do not know what they are expected to do. Because of that, local planning and zoning boards and construction officials architects and attorneys do not enforce ADA and also the New Jersey barrier freeload laws. How do we remedy that problem?
Wow. That is a long process. You know, there is no guidebook that says exactly what an ADA coordinator must do and it may-there are some very successful models around the country. And I know there are organizations of ADA coordinators I would suggest maybe getting in touch with some of them and seeing what are successful models in some places. I think one of the things that works is ensuring that the ADA coordinator is high enough in the local government chain to be involved in policy making. A lot of what I think the ADA coordinator does is good government planning sense as well as being involved in all of the things that a local government does whether it is, you know, simply how you pay parking tickets at town hall to whether you have materials in large print or on disk in the public records office to whether you have interpreters in the courts. I mean, there is a wide range of things. I would start with some of the materials that we have, especially self-evaluation materials which gives some idea of the scope of what an ADA coordinator would do as well as talk to some of the cities around the country that have good programs. Now, the problem with that is, I think you need a city that is probably the same size as your city. I can tell that you San Antonio probably has done some good things. I think the LA, ADA coordinators office has done some good things. This may not be relevant to a smaller town in terms of knowing what works well there, but I think it is-I think one way to generate some interest by the local government may be to have citizens who have disabilities and groups approach the mayor or the town council to try and include ADA planning in what is being done because it is, you know, it is really important to do it in the planning stage because then you avoid problems later, and it is always a lot easier and less costly to do it when you are thinking about it at the beginning of any planning process. It is never too late to start because there is always something new that is happening that will have some implications whether it is as simple as how you are doing your curb ramps or what city sidewalks are being repaired and why in making sure that disability issues are being considered or whether the person who does your certificate of occupancy, your local building code officials are really looking at accessibility issues, you know, if they allow a restaurant to open that has inaccessible bathroom, you know there may be a problem there, and that should be dealt with in the planning stage, not after the restaurant is opened.
That is exactly what situations exist here. We haven''t gotten the governing body on board but the problem is your attorneys and planners on the boards are professionals and they say, New Jersey has not accepted ADA and they do not have to enforce it. It is not our responsibility.
I understand it. As a legal technical matter that is true. They are not obligated to enforce it. What that attitude is wait until someone comes to sue us attitude which isn''t a very good government attitude. If these are people working for the government plus you are talking about people in your town with disabilities and their opportunity to participate in the town. I think the only way to change that attitude may be by bringing complaints either with us or with other associations to try and see what the impact is when you don''t do it, you know, the right way. New Jersey is a state that sent us its code. And we are in the process of looking at its code if the state code becomes certified, then, in fact, complying with that state code would be in effect complying with the ADA. That might be a long term solution for the facilities part. I don''t want to do a plug for any particular organization but I know there is an organization of ADA coordinators, and they may be able to provide some guidance as well. Cale- Yes, my name is Sherry Myers. I am with the centers for independent living in Pensacola, Florida. And our Florida constitution specifically states under basic rights article 1 section 2, it says no person shall be deprived of any rights because of race, religion, national origin or physical disability. Now, there are no reported cases interpreting physical disabilities, however, our supreme court has interpreted this constitutional provision regarding race and religion. And they have interpreted it the same way that the federal constitutional law interprets similar provisions, and that is that the state has to show a compelling state interest and discrimination. Now, what I am interested in is when we have a complaint against a state entity, a local, state governmental entity, or city, or county, governmental entity, the ADA, of course, would be applicable, but wouldn''t our state constitution, assuming that it follows the federal standard for constitutional interpretation of civil rights, wouldn''t it behoove us to start using our state constitution to advocate for people with disabilities?
Yes, certainly. Especially if you have got something like that, even though it is a little unclear how it works. Constitutional protections are the strongest ones that you have, especially in a state level, and if it has been, especially if it has been used in other areas for civil rights. I think finding a way to use it here is a very good idea. Some of our guidance can be helpful, although because we have covered both physical and mental disability, I don''t know if a lot of what we have will be useful, some of it will be, and some of the guidance or some of the things that are happening, for example, a lot of the work that is being done now on learning disabilities. I don''t know if you followed the recent research at Yale they have been using MRIs to observe the brains of people with learning disabilities and what they are finding is really what we think of as perhaps a mental impairment issue is really much more of a physical impairment issue. Same thing with a lot of the psychiatric condition. Some of that is being found to be physical. So I guess what I am saying is the definition might be included under physical disability might be expanded as our medical sciences get to know to understand more about how our body works. Ca;;e- That is a very good point, but the point that I am interested in is that with the ADA, you know, you can argue undue hardship and reasonableness, but with the state constitution that follows the federal cost of analysis, you are talking about compelling state interest and that is a much higher...
Much higher standard. I agree with you.
Like, if Tennessee versus Lane had been Florida versus Lane and brought in the state of Florida and the Florida constitution argued, it wouldn''t-
It wouldn''t have gotten as far as it did, right.
Right. It wouldn''t have gotten anywhere, you know?
I certainly encourage you to use it. I think it sounds like a very effective means. I haven''t seen it, you know, I haven''t seen that happen in other states. I have I to admit, I have never looked at state constitutions to see if your provision is common in other states as well.
It isn''t.
Okay.
I think we may be the only state that has this in the state constitution. Specifically enumerating disabilities.
I wish you good luck in using it. I will try and follow what happens.
My questions are. I have a general question about hearsay and the admissibility in court of the TTY transcript of a relay assisted TTY call. When the hearing person verbally performs a discriminatory act over the rela [inaudible] that is the end of the question.
I understand. It is an interesting question. I don''t have a definitive answer. And I saw some of this going on. I don''t know if it is a hearsay issue or just an evidentiary issue that and if you introduce that into evidence you would certainly have to have whoever produced it be able to verify that, in fact, that the words that are written down were, in fact, the words of the conversation. I am not familiar with what courts have done on that. It is a matter to do a little review. We have not ourselves used transcripts of TTY conversations either our own or from the relay system in any of our cases but we haven''t had cause to. So I don''t have any personal experience and I think it is an area of the law that will have to develop.
In this area the jury selected lists is based on the driver''s license lists and jury and witness boxes are not accessible. If the local inspecting authority doesn''t inspect for ADAAG compliance. Is the local authority responsible if the site is later found noncompliant?
Okay, the question about the jurors is an interesting one to me partly because one of the things in the Lane case that they talked about was one of the protected rights is the ability of a person who is a criminal defendant to have a jury of his or her peers which would include the whole population. So if, in fact, people with disabilities are being kept off juries because of the inaccessibility of jury boxes or because of the lack of interpreters or whatever else, that would clearly be not only a problem with the ADA and probably a violation of the ADA, but it also might raise fundamental questions about the fair trial given to a person with a disability. The second part of your question, would you repeat that again, I am sorry.
It dealt with whether or not local entities, I mean, municipalities could be held liable if a site is later found to be noncompliant with the ADAAG standards.
Under the ADA, it is not the-we have never-it hasn''t been held that the city is in violation of the ADA for doing that because the city doesn''t have an obligation to make its entities comply with the ADA, however, any facility itself, say it is a restaurant that opens up and it has an inaccessible rest room or doorway that is too narrow that would be a violation of the ADA that would make the restaurant in violation of the ADA, similarly if the city opened up municipal services that were inaccessible in a new building, that would itself be in violation of the ADA, not the act of the building code official or other inspector for doing that would not be an independent ADA violation.
Since the state and its ancillary institutions move very ponderously, how long is fair before filing a suit after notification that there is a problem? And if they have moved forward just a teeny bit, does that satisfy the court even though months have gone by?
Those are very thorny questions, and since I work for governmental entity that moves ponderously, you know, I guess it really depends upon the nature of the circumstances. If we are talking about life-threatening kinds of things, clearly any delay is going to be difficult. So if you are talking about a 911 system that doesn''t allow access for people who are deaf that would be a situation where any delay would be actionable. But if it is something else, I think it really depends on the circumstances and what people think are reasonable. Unfortunately, the courts in the second part of your question, courts react in different ways but courts tend to be fairly conservative in their approach, so if they are dealing with an entity that is done something even though it is not enough, they are probably going to give them more due than the person with a disability would like because it is just where we are as a society at this point. Again, that might change if it really is an emergency situation or something grievous has happened if there has been, you know a severe injury to someone or the potential for injury is large, then courts are going to be much more quick to act and to require much more stringent action, but it really does depend upon the facts of the situation.
Thank you for your question. I have another e-mail question for you, John. This one says I use a service animal and am a person without a visible disability and recently went into a store and was asked by the manager of the store what the animal did. I explained what the animal did, but is a store or place of public accommodation allowed to ask that question?
We have said in our guidance that a store can ask that question. They cannot ask are you a person with a disability? So I would expect the person to say the animal assists me with fetching things or with alerting me to sounds, but they do not have to say what the nature of the disability is. But we have said that they are allowed to ask that question. We have gotten some comment from some of the disability rights groups who want us to change that policy because it opens up the door to asking what they think are personal questions that someone shouldn''t have to be asked just to go and buy groceries for example or to go to a restaurant or check into a hotel. We have seen and so we are looking at that issue, although at this point, we do allow that question. We have seen an upswing in the number of complaints from hotels and restaurants denying and stores denying access to people who use service animals, including those with visible disabilities and those not with visible disabilities. All I can say is we are trying to take on more of those cases and provide more information to entities. This is certainly an issue I thought would have been put away a long time ago but it is very much still part of the kinds of issues we deal with. If you are interested in this area, there is some new guidance from the centers for disease control that apply to hospitals that they have-because early on, we have gotten a lot of complaints about hospitals and not allowing service animals into the hospital both for people who are there for the day as patients as well as visitors and there is some very good guidance from CDC on their web site.
I have a couple of questions. One involves anything you can tell us about seating and ticketing in live performances. And then the other one, what do you think that the Department of Justice might do to familiarize places of public accommodations with the requirements for the new ADAAG. You mentioned there might be some training but I was wondering if there might be something more you could tell us about that?
I will take your second question first. We haven''t done a plan yet but I think we recognize that once the new standards are in place, we are going to have to do an immense amount of outreach. There would be a lot of confusion about that so I think we will be doing training and trying to get information out in a variety of services. Right now we are trying to get the standards through O & B and we will turn our attention to doing more of that. We will try and use the DBTACs a lot and use existing state sources and other ways to get information out because it will be another important thing to do and change is always difficult and confusion will follow. I think we are aware of that. Your first question is a timely one. We have a lot of complaints about ticketing issues. We have never issued specific guidance on it and I think we are considering doing that. We have had certainly settlement agreement where we have required a number of ticketing issues and you asked specifically about live performance theaters and they as opposed to big sports venues where we have had questions as well. One of the problems that we see is a lot of the theaters are really old and so they don''t have 1% of their seats are accessible nor do they have accessible seats in all of the price ranges. What we have encouraged entities like this to do is to try to add as many accessible seats as they can to get to 1%. If they cannot have them in all areas, and a lot of these theaters do not have accessible means of access to the second floors or balconies, we have in settlement agreements and I would suggest you look at the settlement agreement for Radio City Music Hall which is a fairly large theater but again, one that didn''t-that had some difficulties. They will prorate the prices of seats on the first floor so that some of them so that the accessible seats are not all in the highest price range. We require them to hold the accessible seats until the place is sold out so that wheelchair users and others will have a chance to buy accessible seats. This becomes a problem, also, in sort of the big, big venues that sell out quickly. We have suggested for some of them that they hold open accessible seats for 24 hours or 48 hours after a sellout so that people with disabilities have an opportunity to be able to buy the seats before they are sold to non-wheelchair users. We do allow in the event of sellouts for accessible seating to be sold to the general public but we try to create protections so that wheelchair users and others have access to seating. I don''t know if you have a specific issue because this gets to be very detailed kind of information. We have not allowed theaters to ask if a person asking for an accessible seat is a wheelchair user or person with a disability which creates the problem for fraud, but we think it is inappropriate for someone with a disability, you know, to have to tell someone that they are a person of disability just because they want to see the Rolling Stones. So we have tried to deal with people who are worried about fraud and people buying the accessible seats and then selling them illegally to non-wheelchair users before an event is sold out and we have worked with some venues about that. What some venues have done is they have printed on the ticket for the accessible seat that this is for wheelchair users or other people with disabilities. If you have this ticket and people can have it legitimately, we reserve the right to move to you another seat in the arena. That is one way to try and combat fraud.
Thank you very much for your question, Suzanne. It is a longevity of the Stones may need to provide access to the stages themselves. The stones will need that in the very near future.
That might be a way to get more stages accessible.
With all these reunion tours. Once again, I would really like to thank you on behalf of all ten of the DBTACs for your assistance and participating in these sessions and we greatly appreciate the technical assistance and training that you provide to the DBTACs.
Thank you all for letting me do this and I thank you all for your patience today. Excellent. For those of you who want to hear again from John, he will be joining us July 20th to give his annual updates regarding DOJ initiatives. We will hear more about the project civic access and state certification process. To find out more information about upcoming sessions including the one June 15th, "To Disclose or Not to Disclose, The Pros and Cons" with David Fram, please contact your Regional Disability and Business Technical Assistance Center at 1-800-949-4232. We would like to thank all of you for participating in these sessions. It is a great way to educate and provide information regarding the ADA and other disability-related laws. And we look forward to being with you in June. Thank you very much and have a great afternoon.