U.S. Department of Justice Civil Rights Division Disability Rights Section P.O.

Box 66738 Washington, DC 20035-6738 November 14, 1996 Judge J. David Holt Greene Superior Court Courthouse P.O. Box 445 Bloomfield, Indiana 47424-0445 Re: Complaint Number XX Dear Judge Holt: This letter constitutes the Department of Justice's Letter of Findings with respect to the complaint filed with our office by XX against the Greene Superior Court under title II of the Americans with Disabilities Act (ADA) Specifically, Mr. XX complaint alleges that the Court failed to provide him with auxiliary aids or a continuance for his hearing on May 26, 1993, in spite of his illness and resulting difficulties hearing and speaking. FACTS Mr. XX claims that he suffered from a fever and difficulty hearing and speaking during his court date on May 26, 1993. He does not allege that this illness was more than temporary. The Civil Rights Division's investigation of Mr. XX complaints revealed that the Greene Superior Court is equipped with an assistive listening device that has routinely been provided to persons with hearing impairments. Regarding the hearing on May 26, 1993, the Court admits that Mr. XX filed a motion for continuance with the court prior to the hearing date, claiming illness, but the motion did not allege a disability nor did it seek to obtain an auxiliary aid. When the hearing was held, Mr. XX was present and actively participated in the hearing, responding to questions from the bench, objecting to

questions posed by defense counsel, carrying on conversations with defense counsel, and conducting direct and crossexamination of witnesses. There is no evidence to suggest that Mr. XX requested auxiliary aids at any time or asserted to the court at any time that he could not fully participate in the hearing. 01-00473 -2LEGAL STANDARDS Under the Department of Justice's title II regulation, "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." 28 C.F.R. S 35.130(a). The regulation further requires that "[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." 28 C.F.R. S 35.130(b)(7). The title II regulation further requires that public entities "shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. " 28 C.F.R. S 35.160(a). Moreover, a public entity "shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity" (28 C.F.R. S 35.160(b)(1)) unless the public entity can demonstrate that provision of auxiliary aids "would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens" (28 C.F.R. S 35.164), and that, "in determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities." 28 C.F.R. S 35. 160(b)(2). Auxiliary aids and services are defined in section 35.104 as including qualified interpreters, notetakers, transcription services, written materials, assistive listening devices, or

other effective methods of making aurally delivered materials available to individuals with hearing impairments. Finally, "disability" is defined in the title II regulation as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. 28 C.F.R. S 35.104. The preamble to the Department of Justice's title II regulation further defines what constitutes a disability as follows: [T]he duration, or expected duration, of an impairment is one factor that may properly be considered in determining whether the impairment substantially limits a major life activity. . . . The question of whether a temporary impairment is a disability must be resolved on a case-bycase basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual. 56 F.R. 35699. 01-00474 -3ANALYSIS In order to find that the Court discriminated against Mr. XX under title II, it is first necessary to determine that Mr. XX was "disabled" as defined in that regulation. It appears that Mr. XX illness was temporary and, in any event, did not effect his hearing or speech to the extent that he could not participate effectively during his court date an May 26, 1993. It is therefore unlikely that Mr. XX would be found to be a qualified individual with a disability entitled to the protections of title II of the ADA. However, even if Mr. XX were covered by the ADA, there is no evidence to suggest that Mr. XX ever requested any auxiliary aids or asserted during his hearing that he could not fully participate in the proceedings. The ADA does not require a public entity to provide auxiliary aids or other accommodations absent any notice that an accommodation is needed.

Conclusion Based on the foregoing information, we have concluded that there is insufficient evidence to find that the Greene Superior Court violated the ADA or its implementing regulations with respect to Mr. XX hearing conducted on May 26, 1993. We are, therefore, closing Mr. XX administrative complaint against the Greene Superior Court. Please note that, if Mr. is dissatisfied with our determination, he may file a private complaint in the United States District Court under title II of the ADA. We thank you for your cooperation during this investigation. Sincerely, Naomi Milton Attorney Disability Rights Section Civil Rights Division cc: XX 01-00475