T.

5/12/94 MAF:SHK:ca

MAY 13 1994 (STAMPED) XXX XXX XXX RE: Complaint Number X XX v. Pennsylvania Minor Judiciary Education Board Dear Mr. X :

This letter constitutes our Letter of Findings in response to your complaint filed with our office against the Minor Judiciary Education Board of Pennsylvania (Board) under title II of the Americans with Disabilities Act of 1990 (ADA). Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, and activities of a State or local government. Your complaint alleges that the Board denied your request for additional time to complete the certifying examination for prospective district judges on December 5, 1992. You stated that you needed the additional time because your disability, congenital cerebral palsy, prevents you from hand writing essay examinations. The Board disputed your allegation that you were denied the additional time requested. You have stated that at the time you enrolled in the certifying course on October 1, 1992, you notified the Board that you would require accommodation in taking the examination because of mild cerebral palsy that affects your writing speed and legibility. You also offered to provide appropriate documentation to establish that the requested accommodations were necessary because of your disability. You further allege that your request for a stenographer to write your examination answers and for additional time to complete the examination were initially denied, but that Mr. Robert Hessler later orally agreed to the request after receiving a telephone call from the President of the College on your behalf. On the day of the

cc: Records CRS Chrono MAF Kaltenborn.

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01-00177 -2examination, however, you allege that Mr. Hessler collected your examination papers before you had finished, despite your objections. The regulation implementing title II, found at 28 C.F.R. Part 35, and specifically at Subpart B, 28 C.F.R. 35.130, states that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any service, program, or activity conducted by a public entity. Title III of the ADA also requires that any person that offers examinations related to licensing or certification for professional purposes shall offer such examinations in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. 42 U.S.C. 12189. Section 36.309 of the Department's title III regulation implements this provision for private entities. 28 C.F.R. 36.309. Section 36.309 of the title III regulation provides additional guidance on the requirements that apply to examinations administered by public entities under title II. The title II regulation requires a public entity to provide qualified individuals with disabilities an "equal opportunity to obtain the same result" from its programs and activities as the opportunity provided to individuals without disabilities. ​ 35.130(b) (1) (iii). With respect to administration of examinations, an "equal opportunity to obtain the same result"

would be an equal opportunity to demonstrate the skills, knowledge, and achievement that the examination is intended to measure. See 28 C.F.R. 36.309 (b) (1) (i). The specific requirements of the regulation apply this general principle to particular situations. Section 35.130(b) (7) requires a public entity to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to avoid discrimination on the basis of disability, i.e., to provide a qualified individual with a disability (as defined in 28 C.F.R. 35.104) an equal opportunity to demonstrate the skills, knowledge, and achievement that the examination is intended to measure. Modifications must be provided unless the public entity can demonstrate that the requested modification, or an equally effective alternative modification, would fundamentally alter the service, program, or activity. 28 C.F.R. 35.130[b][7]. The Department contacted the amanuensis provided to you by the Board for the examination, and she confirmed your allegation that you objected to being required to turn in your paper because you had not checked your answers. Based on the preponderance of the evidence, therefore, we have concluded that the Board did not abide by its agreement to allow you as much time as you needed to

01-00178 -3complete the examination. Because the Board did not respond to your offer to provide documentation concerning your disability and need for accommodation, it cannot dispute your allegation that you needed additional time. We therefore find that the Board violated title II by requiring you to turn in your paper before you were ready to do so. However, the Chairperson of the Board, Judge Michael J. Conroy, Jr., has offered to allow you to re-take the examination, at no additional cost, to again provide an amanuensis, and to allow you as much time as you need to complete the examination. You have rejected this offer. We have determined that Judge Conroy's offer would provide full relief for the alleged

violation in this case. In addition, Judge Conroy has assured us that, in the future, the Board will provide appropriate accommodations requested by individuals with disabilities taking the examination and will ensure that any questions about the nature of the disability and the accommodation required will be resolved prior to the examination. Therefore, we have determined that any violation of title II has been corrected and we are closing our file on this case. This letter contains our determination with respect to the allegations of discrimination in your administrative complaint. If you are dissatisfied with our determination, you may file a complaint presenting your allegations of discrimination in an appropriate United States District Court under title II of the ADA. Under the Freedom of Information Act, 5 U.S.C. 522, we may be required to release this letter and other correspondence and records related to the complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by law, release of information that could constitute an unwarranted invasion of your or other's privacy. You should be aware that no one may intimidate, threaten, or coerce anyone or engage in other discriminatory conduct against anyone because he or she has taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. If you have any questions regarding this letter, please feel free to contact Ms. Sara Kaltenborn, the attorney assigned to this case, at (202) 307-2235 (Voice) or (202) 307-2678 (TDD). In

01-00179

-4any correspondence regarding this matter, please reference the Department of Justice complaint number cited above. Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review section Civil Rights Division cc. The Honorable Michael J. Conroy

01-00180

T. 3/15/94 MAF:SHK:ca DJ XX

The Honorable Michael J. Conroy, Jr. Chairperson of the Minor Judiciary Education Board of Pennsylvania Room 392, City Hall Philadelphia, Pennsylvania 19107 Dear Judge Conroy: The Coordination and Review Section is prepared to issue a Letter of Findings with respect to the complaint filed with our office against the Minor Judiciary Education Board of Pennsylvania (Board) under title II of the Americans with Disabilities Act of 1990 (ADA). Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, and activities of a State or local government. The complaint alleges that the Board denied the complainant's request for sufficient time to complete the certifying examination for prospective district judges on December 5, 1992. The complainant alleged that he notified the Board that he would require accommodation in taking the examination because of his disability, mild cerebral palsy, which affects his writing

speed and legibility. He also offered to provide appropriate documentation to establish that the requested accommodations were necessary because of his disability. He further alleged that his request for a stenographer to write his examination answers and for additional time to complete the examination were initially denied, but that Mr. Robert Hessler later orally agreed to the request after receiving a telephone call from the President of the College on his behalf. On the day of the examination, however, according to the complainant, Mr. Hessler collected his examination papers before he had finished, despite his objections. The regulation implementing title II, found at 28 C.F.R. Part 35, and specifically at Subpart B, 28 C.F.R. 35.130, states that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any service, program, or activity conducted by a public entity. cc: Records CRS Chrono MAF Kaltenbo. XXX .con

01-00181 -2The title II regulation requires a public entity to provide qualified individuals with disabilities an "equal opportunity to obtain the same result" from its programs and activities as the opportunity provided to individuals without disabilities. ​ 35.130(b)(1)(iii). With respect to administration of examinations, an "equal opportunity to obtain the same result" would be an equal opportunity to demonstrate the skills, knowledge, and achievement that the examination is intended to measure. See 28 C.F.R. 36.309(b)(1)(i). The Department contacted the amanuensis provided to the complainant by the Board for the examination, and she confirmed the allegation that the complainant was not allowed sufficient

time to complete the examination. Based on the preponderance of the evidence, therefore, we have concluded that the Board did not abide by its agreement to allow the complainant as much time as he needed to complete the examination. Because the Board did not respond to the complainant's offer to provide documentation concerning his disability and need for accommodation, it cannot dispute the allegation that the complainant needed additional time. We therefore are prepared to find that the Board violated title II by requiring the complainant to turn in his paper before he was ready to do so. The purpose of this letter is to request written confirmation of the Board's offer to allow the complainant to retake the examination, at no additional cost, to again provide an amanuensis, and to allow the complainant as much time as he needs to complete the examination. We have determined that this offer, which the complainant has rejected, would provide full relief for the alleged violation in this case. In addition, in order to close our file in this matter, we need written confirmation of your oral assurance that, in the future, the Board will provide appropriate accommodations requested by individuals with disabilities taking the examination and will ensure that any questions about the nature of the disability and the accommodation required will be resolved prior to the examination. You should be aware that no one may intimidate, threaten, or coerce anyone or engage in other discriminatory conduct against anyone because he or she has taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. If you have any questions regarding this letter, please feel free to contact Ms. Sara Kaltenborn, the attorney assigned to this case, at (202] 307-2235 (Voice) or (202) 307-2678 (TDD). In

01-00182 -3any correspondence regarding this matter, please reference the Department of Justice complaint number cited above.

Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division

01-00183