DEC 28 1993

Re: Discrimination Complaints of XXXX, Department of Justice Complaint Nos. XXXX, Dear Mr. XXXX : This letter constitutes the Department of Justice's Letter of Findings with respect to your complaints filed with our office on April 19, May 11, and May 24, 1992, under title II of the Americans with Disabilities Act (ADA), against the State of New Jersey. By a letter dated October 30, 1992, we informed you that we would not be investigating your allegations concerning race, color, national origin, or age discrimination in the State's jury selection procedures because we were unable to determine that the State agency, the New Jersey Administrative Office of the Courts, that is the focus of these allegations receives Federal financial assistance. Title II prohibits discrimination against qualified individuals with disabilities on the basis of their disability in the services, programs, or activities of a State government such as New Jersey. Our office enforces the requirements of title II of the ADA for certain State entities, through investigation, negotiation, and if necessary, referral for possible litigation. Your complaints included the following allegations: (1) New Jersey's jury selection criteria discriminate against individuals with disabilities because the jury selection list is comprised only of those individuals who have a valid driver's license or who are registered to vote. You claim that individuals with disabilities are more likely not to drive or vote than individuals without disabilities. (2) New Jersey discriminates against people over 75 years of age because jury selection criteria exclude them from serving on a jury. You believe that this

01-00118 -2exclusion is based on the fact the State regards people over 75 years old as being disabled. (3) New Jersey discriminates in its jury fees which are only $5.00 per day of jury service. You assert that individuals with disabilities are more likely to be low-income and thus, under your hypothesis, could not afford to serve on juries as a result of the low jury fees. (4) New Jersey does not allow persons who have been convicted of a felony to serve on juries. You contend that this exclusion discriminates against ex-drug addicts who have committed felonies. (5) New Jersey voting procedures discriminate against individuals with disabilities who are mentally competent to vote but who reside in nursing homes and other residential institutions. You contend that these individuals are excluded from voting privileges because of their disabilities. (6) New Jersey's use of a veteran's preference in its hiring practices discriminates against individuals with disabilities who were unable to serve in the military. You claim that as a result of the veteran's preference, the State regards those individuals who have not served in the military as having a disability. We have completed our investigation of your complaints. As discussed in detail below, we conclude that the State of New Jersey's policies and practices referenced in your allegations do not violate title II of the ADA. Legal Standards

The Department's title II regulation at 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 or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." Although title II provides for equality of opportunity for individuals with disabilities, it does not guarantee equality of results. The basis for many of the specific requirements in the Department's regulation is the principle that individuals with disabilities must be provided an equally effective opportunity to participate in or benefit from a public entity's benefits and programs as individuals without disabilities.

01-00119 -3Your complaint is premised on the allegation that various New Jersey statutes, policies, and practices have an adverse impact on undefined classes of individuals with disabilities. Title II was modeled on section 504 of the Rehabilitation Act of 1973, as amended. Section 504 prohibits discrimination against qualified individuals with disabilities on the basis of their disabilities by recipients of Federal financial assistance. Therefore, an interpretation of title II's standards in many cases will be based on a reading of section 504 and the judicial interpretations of that provision. In Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court urged caution in using the adverse impact standard in determining whether a State's scheme for providing health benefits to its residents discriminated against individuals with disabilities. Although the Court recognized that a State's statute or policy might be challenged because it effectively excluded participation by individuals with disabilities, the court rejected the notion that a State must " ... evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then ... consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped." 469 U.S. at 298. Although not dispositive of your allegations, we note that

you did not provide the name of a single individual with a disability who was allegedly discriminated against under any of these New Jersey statutes. Rather, your allegations appear to be based on conjecture as to the possible impact that these statutes may have on individuals with disabilities. Review of Allegations Criteria for Selection to the Jury Pool You allege that New Jersey's jury selection criteria discriminate against individuals with disabilities because the jury selection list is comprised only of those individuals who have a valid driver's license or who are registered to vote. You claim that individuals with disabilities are more likely not to drive or vote than individuals without disabilities. According to the New Jersey Administrative Office of the courts, the jury manager in each county compiles the lists of eligible individuals for jury duty. The county manager merges the list of licensed drivers in the county with the list of registered voters in the county and purges duplicate names. Persons are selected for jury duty from this list. There is no evidence that basing jury selection on whether an individual has a valid driver's license or is registered to vote excludes qualified individuals with disabilities, on the basis of their 01-00120 -4disability, from serving on juries. Although some classes of individuals with disabilities may not qualify for a driver's license, these same individuals would qualify for jury selection by registering to vote. For these reasons, the evidence does not sustain your allegation. Age Restrictions for Jury Service You allege that the State's policy of denying people who are 75 years of age or older the opportunity to serve on a jury violates title II of the ADA. You contend that the State's exclusion implies that people over 75 years of age are "regarded as being disabled." Section 35.104 of the title II regulation defines disability with respect to an individual as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) has a

record of such an impairment; or, (3) is regarded as having such an impairment. Nothing in the New Jersey statute implies that people over 75 years old are excluded from jury service because they are regarded as having a physical or mental impairment that substantially limits a major life activity. For these reasons, the evidence does not sustain your allegation. Jury Fees You claim that New Jersey discriminates in its jury fees which are only $5.00 per day of jury service. You assert that individuals with disabilities are more likely to be low-income and thus, under your hypothesis, could not afford to serve on juries as a result of the low jury fees. New Jersey pays a juror $5.00 for each day of jury service. Although you contend that this discriminates against individuals with disabilities because allegedly a disproportionate number of individuals with disabilities have low incomes, there is no factual basis or evidence that these fees discriminate against qualified individuals with disabilities. For this reason, we conclude that your allegation is without merit. Exclusion of Felons Persons convicted of a felony are not qualified to serve on a jury in New Jersey. You contend that this exclusion discriminates against ex-drug addicts who have committed felonies. Although an ex-drug addict who was convicted of a felony (whether or not the felony was related to his/her drug addiction) is not qualified to serve on a jury, the decision to exclude persons convicted of a felony from jury service does not discriminate against qualified individuals with disabilities based on their disability status. All felons without regard to their disability status are excluded from jury service. Moreover, there is no evidence that drug addicts as a class are 01-00121 -5convicted of felonies in any greater number than other classes of felons. For these reasons, the evidence does not sustain your allegation. Nursing Home Residents You assert that New Jersey's voting procedures discriminate

against individuals with disabilities who are mentally competent to vote but who reside in nursing homes and other residential institutions. You contend that these individuals are excluded from voting privileges because of their disabilities. New Jersey does not exclude individuals with or without disabilities who are mentally competent and reside in nursing homes or other institutions from registering to vote. According to the New Jersey Division of Elections, a voter who is permanently and totally disabled can apply for an absentee ballot. The county clerk will furnish an application for an absentee ballot for all future elections without further request by the voter. See N.J.S.A. 19:57-4. An individual with disabilities who resides in a nursing home or other institution may request the local Board of Elections to mail an application for voter registration or may request along with an affidavit by a physician that the individual be registered at his or her residence. See N.J.S.A. 19:31-6. These alternative methods of registering and voting provide equivalent access to an individual with a disability to exercise his/her right to vote. For these reasons, the evidence does not sustain your allegation. Veteran's Preference Finally, you claim that New Jersey's use of a veteran's preference in its hiring practices discriminates against individuals with disabilities who were unable to serve in the military. You further contend that the veteran's preference discriminates against non-veterans because you believe that it labels them as being "inferior." You allege that as a result of the veteran's preference, the State regards those individuals who have not served in the military as having a disability. New Jersey provides a preference to veterans in hiring individuals for State and local government positions. This hiring preference, however, does not violate title II of the ADA because all persons, including those with disabilities, who did not serve in the armed forces, are not qualified for a veteran's preference. Conversely, all veterans, including many individuals with disabilities, are qualified to apply for a veteran's preference. Under the veteran's preference, the hiring authority must choose among the top three candidates. You claim that the candidates that are not among the top three candidates are

01-00122 -6perceived as having a disability. Under the Department's title II regulation, an individual with a disability is defined, inter alia, as one who is regarded as having an impairment that substantially limits one or more of the individuals major life activities. 28 C.F.R. 35.104. Under the veteran's preference, those who are not selected because they are not one of the top three candidates are not perceived by the State as having a disability. This is because New Jersey's veteran's preference is not based on an assessment of the physical or mental impairments of those who do not qualify for the preference. Rather, New Jersey's veteran's preference simply recognizes the contributions made by those who served in the military. For these reasons, the evidence does not sustain your allegation. Conclusion This letter constitutes our Letter of Findings with respect to your 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. 552, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of your or other's privacy. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

01-00123