US. Department of Justice Civil Rights Division T.11/22/93 sB0:MF:ca:jfb Coordination and Review Section P.O.

Box 66118 Washington, DC 20035-6118 FEB 3 1994 The Honorable Brian Shortell Superior Court for the State of Alaska Third Judicial District Anchorage, Alaska 99501 Re: Department Justice Number X Dear Judge Shortell: We received a complaint alleging discrimination on the basis of disability by the Superior Court for the State of Alaska, Third Judicial District, Anchorage, Alaska. Specifically, Mr. X alleged that the court improperly denied him the right to submit briefs to it on audio cassettes. He claimed this right as a result of a visual impairment that he alleged restricts his ability to write. We reviewed Mr. X complaint under title II of the Americans with Disabilities Act of 1990 [ADA]. As pertinent to the complaint, title II prohibits discrimination against qualified individuals with disabilities by State governmental entities such as the Superior Court for the State of Alaska, Third Judicial District, Anchorage, Alaska. As the enclosed Letter of Findings to Mr. X reflects, this office determined that no violation of title II has occurred. Our determination relates solely to the allegations reviewed in the attached letter and not to any other issues concerning the court's compliance with title II of the ADA. Sincerely,

Stewart B. Oneglia Chief Coordination and Review section Civil Rights Division Enclosure cc: Records CRS Chrono Friedlander FOIA Stewart udd:Stewart.shortell.ltr 01-00158 Ret/ 1/13/94 SBO:MF:LMS:ca DJ X

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Re: Department of Justice Number X Dear Mr. X : This letter constitutes our Letter of Findings with respect to your complaint against the Superior Court for the State of Alaska, Third Judicial District, Anchorage, Alaska, alleging discrimination on the basis of disability. Specifically, you assert that the court improperly denied you the right to submit briefs on audio cassettes. You claim this right as a result of a visual impairment that allegedly restricts your ability to write. Factual Background According to the information that you have provided this office, you appealed, pro se, an adverse decision of the Alaska State Commission for Human Rights [Commission] to a complaint

that you had filed with the Commission. This appeal is being heard by the Superior Court for the State of Alaska, Third Judicial District, Anchorage, Alaska. X v. Alaska Commission For Human Rights, et al., Case No. X Civil. On January 12, 1993, you filed a motion with the court requesting that the court "grant permission to submit all legal briefs required for this action on recorded audiocassette [sic] tapes." In your motion, you stated that the motivation for your request was that your "[s]evere visual disabilities restrict writing."

cc: Records CRS Chrono MAF Stewart.

X

.lof FOIA

01-00159 -2In response, counsel for the commission filed a petition in opposition to your motion noting that despite your alleged inability to write, all your prior pleadings to the court had been in writing. 1 Moreover, she maintained that your mere unsubstantiated assertion of the need for such a modification to the court's rules is not a sufficient basis for granting your motion. counsel argued that "[t]he court should require, at a minimum, a showing of the nature of the disability and independent verification that the accommodation requested is necessary." Finally, counsel argued that you could [even if you had a disability that limited your ability to write] dictate legal briefs and have them transcribed. Counsel stated that ` X should bear the responsibility and cost of having the audio cassette transcribed and submitted to the court." On January 29, 1993, the court denied your request to file audio cassettes "... for the reasons stated in [the

Commission's] opposition." You contend that the court's order violates title II. In your initial complaint to this office dated February 16, 1993, you characterized your disability as "severe visual disabilities that restrict my abilities to write." This is the same generalized statement you made to the court as a basis for your request to submit audio cassettes in place of written briefs. In your letter to us of April 14, 1993, you note that you have additional disabilities that make writing difficult. You state that "[m]y ability to write an Appellant [sic] Brief as required [and without modification] by Alaska Rules of Court, Rule 212 is grossly restricted by my combined disabilities.... My ability to write is restricted by my ability to read. My ability to read is affected by my low vision problems combined with my Specific Learning Disability [SPL]/Dyslexia -- 'smaller type documents replete with `legalese' are very difficult for me to read as well as copy. Also, my Cyclothymia affects my ability to concentrate at times." With respect to these additional disabilities, the information you submitted to us supports the conclusion that you have mild to moderate dyslexia. X , an instructor at the University of Alaska, performed several tests on you during the Fall of 1990. She determined that the tests indicated that you had a mild to moderate form of dyslexia. in addition, in a November 1991 decision in your appeal for Social Security

1 You provided us with all the pleadings and other written materials that you have filed with the court. We note that your penmanship is very good and you express your ideas clearly. We had no difficulty understanding the content of the documents you wrote. 01-00160 -3Disability payments, an Administrative Law Judge of the U.S. Department of Health and Human Services concluded: Mr. X has a left hemisphere brain dysfunction

which causes difficulty with processing language and has resulted in dyslexia as well as difficulty with fluctuating vision. Stress, including work stress, aggravates the claimant's condition.... The documentary evidence reflects that the claimant has significantly decreased abilities to read and to perform work activities which require visual coordination.... [citations omitted]. Other documentary evidence that you have provided this office supports these conclusions with respect to your learning disabilities. We requested information on your visual disability and how this disability limits your ability to write in our letter to you dated April 8, 1993. Specifically, we asked for a description of your visual impairment including any medical diagnoses of this visual impairment. In response, you submitted several diagnoses of your visual acuity and learning disabilities. A diagnosis dated January 21, 1991, by Dr. X , an ophthalmologist with the Optometric Therapy Associates of Broomwall, Pennsylvania, was provided. You had complained about sensitivity to glare and bright lights and difficulty with sustained focusing. She reported that "[h]e feels he cannot see print clearly and is unable to see groups of letters or words at the same time and that the words often appear to wave in and out." Dr. X stated that "Mr. X was found to have a moderate degree of nearsightedness [myopia] for which he is currently wearing corrective lenses." She concluded that your "[n]earsightedness or myopia has the principal effect of blurring objects located at far distances." She also noted that you had difficulty with focusing skills that may " ... include blurred vision while reading, inability to clear vision at distance after reading and fatigue or headaches while reading." She also found that you had difficulty with eye coordination that " ... may result in double vision, frequent loss of place when reading, headaches or eyestrain and inability to sustain a visual task for prolonged period of time."

01-00161 -4Another diagnosis dated September 3, 1991, was done by Dr. X Steinberg, an ophthalmologist and Chief, Low Vision Center, Scheie Eye Institute, Department of Ophthalmology of the University of Pennsylvania, Philadelphia, Pennsylvania. You were examined by Dr. X on April 2, 1991. Dr. X states in her report that you sought her review based on " . . . complaints of difficulty with fatigue after reading, sensitivity to fluorescent light and sunlight and fluctuating vision." She noted that "... your refraction represented a significant amount of overcorrection of [your] nearsightedness." She concluded at the time of your examination that "... your symptoms could possibly be due to asthenopia due to chronic overcorrection of your nearrsightedness." Based an her examination, Dr. X prescribed new eyeglasses with "... a bifocal correction to relax your need for accommodation at near." Dr. X reported that you returned to the Low Vision Center on April 23, 1991, complaining that " ... your vision continued to pulse in and out of focus." She said that you also stated that you were required to hold reading material closer when using your bifocal glasses than without them. She referred you to Dr. neuroophthalmologist, based on the symptoms you reported. Dr. X summarized Dr. X conclusions based on his examination April 26, 1991. Dr. X concluded " . . . that your presenting visual acuities with he new eyeglasses were 20/20 in both eyes. His physical examination suggested evidence of a minimal disfunction in the left hemisphere of your brain which corresponds to your difficulty with certain language functions. This could explain the difficulty that you have with vision under conditions of stress. It certainly helps to explain your fluctuating vision, meaning that when you are stressed your vision is poor because you have difficulty processing what you are seeing. When you are relaxed, as you have noted, your vision improves tremendously." With respect to your learning disability, Dr. X observed that "Dyslexia is an extraordinarily frustrating condition. In your case it is made more acute during times of

stress and can become a vicious cycle in that you are stressed by your Dyslexia, which makes your vision worse, which makes you even more stressed, which makes your vision worse."

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-5Legal Standards Alaska court rules require that a litigant file briefs and other motions in writing. You contend, however, that these rules should be modified because your disability restricts your ability to write. Section 35.104 of the title II regulation defines "[d]isability ... with respect to an individual, [as] a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." [emphasis added] Although the evidence reflects that you have mental impairments, these impairments do not appear to substantially limit your ability to write. When an individual with a disability requests a modification to a governments program to allow for his or her effective participation, the requester must show some nexus [i.e., connection] between the limitations imposed by the particular disability and the requested modification. The fact that you may be restricted as opposed to having a substantial limitation in performing a particular activity [i.e., writing] may not be sufficient to justify modifying a program's requirement. Although the evidence does indicate that, as a result of your learning disability, you have problems with the processing of information, you have provided little, if any, evidence that focuses upon the impact these mental limitations have on your ability to write. It is true that you may have "some difficulty" in writing that arises from your learning disability. The evidence you submitted does not reflect, however, that the mental impairments arising from your learning

disability impose substantial limitations on your ability to write memoranda such as those that would be required in a pro se judicial proceeding. In addition, when an individual requests a modification from a court, the requester must follow the reasonable rules of the court for making such a request. Subsection 35.130 (b)(7) of the Department's title II regulation provides: A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

01-00163 -6Section 35.160 states, in relevant part, that: (a) A public entity shall take appropriate steps to ensure that communications with ... participants ... with disabilities are as effective as communications with others. Although these sections require a court to make reasonable modifications to its rules "to avoid discrimination" and to ensure "effective communication," it is the requesting individual's obligation to demonstrate the nature and severity of his or her disability and a nexus between the physical or mental impairments resulting from that disability and the requested modification to the court's rules. In judicial proceedings, a court does not consider factual statements contained in a motion such as the one you filed to be "evidence" of the alleged facts contained in the motion. As the Commission's counsel pointed out, you should have filed an affidavit with supporting documentation explaining your disabilities and how these disabilities "restrict" to a

substantial degree your ability to write. This is the first step in securing a modification of a court's rules on the basis of a disability. There is a particular need for a litigant to establish the physical or mental limitations resulting from his or her disability where the mental or physical limitations of the disability are not physically manifested, such as would be the case with an individual who has a learning disability. 2 A court is not required to address a litigant's request for a modification to its rules based on a mere allegation of his or her physical or mental disability. Rather, the litigant must demonstrate the type of disability and a nexus between the mental or physical limitations resulting from the disability and the need for a modification to the court's rules to allow the litigant's effective participation in the proceeding. It is only after such a showing that a court is required to consider whether the requested modification is needed and, if so, whether permitting the requested modification would fundamentally alter the nature of the judicial proceeding.

2 Obviously, a deaf litigant could establish without difficulty the need for alternative forms of communications.

01-00164 -7Conclusion We conclude that the court did hot violate title II of the ADA when it denied your motion to file audio cassettes in place of written briefs. 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 your 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 that could constitute an unwarranted invasion of your or other's privacy. Sincerely,

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

cc: The Honorable Brian Shortell

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