U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66118 Washington, D.C.

20035-6118 Jun 14, 1993 (stamp) CERTIFIED MAIL RETURN RECEIPT REQUESTED Ms. Dana Pulis Assistant County Counselor St. Louis County 41 South Central Avenue Clayton, Missouri 63105 Re: Old Complaint Number XX (b)(6) New Complaint Number XX Dear Ms. Pulis: The Coordination and Review Section of the Civil Rights Division (CRS) has completed its investigation of the abovereferenced complaint filed against St. Louis County, Missouri (County), under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. ​ 12131-12134, and the Department of Justice's implementing regulation, 28 C.F.R. pt. 35, Because we have been unable to resolve this complaint informally, this is a noncompliance Letter of Findings as required under 28 C.F.R. ​ 35.172. We will, however, continue our settlement efforts by endeavoring to negotiate a voluntary compliance agreement as required under 28 C.F.R. 35.173. The Coordination and Review Section is responsible for investigation and resolution of administrative complaints alleging violations of title II by certain components of State and local governments, including courts. Title II protects qualified individuals with disabilities from discrimination in the programs, services, and activities of public entities. The

complainant, XX alleges that the St. Louis County Court does not ensure effective communications for individuals who are hard of hearing. Specifically, he alleges that the County does not provide assistive listening systems (ALS's) for individuals who request such assistance in order to observe courtroom proceedings. 01-02359 -2Through letters dated October 19, 1992, and February 4, 1993, and a series of telephone conversations made on October 29, October 30, and December 1, 1992, and March 8, 11, and 16, 1993, we advised you of our receipt of the complaint and sought information about the policies and procedures of the County relating to providing ALS's for courthouse spectators. Based upon our review of the information provided by the complainant and the documents and information the County provided, we have determined that the County is in violation of title II. The basis for our determination is discussed below. 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.​ 35.130(a) (see also 42 U.S.C. 12132). 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.​ 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.​ 35.160(b)) 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.​ 35.164. (b)(6) Before filing his complaint, XX spoke with a representative from the county courthouse and was told that no

auxiliary aids were available for individuals who were hearing. impaired. At a later date, on March 17, 1993, XX again visited the County Courthouse to ask if auxiliary aids were available to those who needed them. Again he was informed that the Courthouse did not have any assistive listening devices. The County claims that no request for auxiliary aids at the Courthouse has been denied since the effective date of the ADA. However, the evidence indicates that XX made two requests and that both requests were denied. In denying XX XX requests, the County did not refute or question his need for an auxiliary aid. The County has submitted a policy statement providing that "any person with business before this court or interested in employment with this court, regardless of disability, whether physical or mental, shall be reasonably accommodated to insure their participation in and/or benefit of all employment opportunities, services and programs conducted by the court." To that end, the County has written an outline of steps to be 01-02360 -3-

followed in securing a sign language interpreter for hearing impaired individuals who have business before the Court or are interested in employment opportunities. This policy, however, does not make provisions for members of the public who do not have specific business before the Court and who are not interested in employment with the Court. Nor does it provide for hearing impaired individuals who cannot understand sign language. When the County was contacted by CRS staff to determine its willingness to provide assistive listening devices in the County Courthouse, the County stated that its policy was to "accommodate individual situations on a case by case basis." The County disagreed with the Department of Justice's interpretation of its regulations, stating that existing courtroom facilities need not "accommodate any and all spectators of judicial proceedings." In fact, the County stated several times that, while it might be willing to provide ALS's in certain circumstances, such as when the hearing impaired relative of one of the parties to a proceeding was a spectator to the proceeding, it would almost certainly not provide an ALS for a spectator who had no other connection to the proceeding. As an instrumentality of the St. Louis County government,

the St. Louis County Court is a public entity as defined in section 35.104 of the title II regulations. The court proceedings are part of the "service, program, or activity" offered by the public entity (see 28 C.F.R.​ 35.130(a)). Complainant XX has a hearing impairment and needs auxiliary aids for effective communication. He is a qualified individual with a disability, as defined in section 35.104. Section 35.160(a) requires effective communication with "members of the public." The complainant is a member of the public who wishes to benefit from the program provided by the Court. As such, he is entitled to auxiliary-aids-necessary for effective communication, unless the County can demonstrate that provision of the aids would result in a fundamental alteration in the nature of the program or undue financial and administrative burdens (see 28 C.F.R.​ 35.164). The County has not demonstrated that the provision of auxiliary aids would fundamentally alter the nature of the program or activity. The County's stated reasons for maintaining its policy regarding auxiliary aids, as provided in its March 16, 1993, letter to the undersigned, are that "[j]udicial proceedings are not a means of governmental entities communicating with members of the public as contemplated by ADA," and "[w]e can find no basis for any requirement that individuals with or without disabilities be accommodated in any manner when their participation in an activity, program or service of any public entity is prohibited and/or the benefit to them is nonexistent as is the case with spectators at judicial proceedings in which they 01-02361 -4-

are not personally or directly involved." While the County does cite expense as one reason for its reluctance to comply with the Department of Justice's regulations, it has not demonstrated that complying with the regulations would result in undue financial and administrative burdens, and, of course, the burden of proving that compliance would result in undue financial and administrative burdens rests with the County. It is clear that the County's failure to comply is based on a legal disagreement about whether compliance is mandated by the ADA, rather than on either the defense of fundamental alteration or that of undue financial and administrative burdens. The County has indicated that it hired a consultant to

determine, among other things, whether the ADA will require that the County's "broadcast systems" be altered by July of 1995, the statutory deadline for making structural changes to government buildings. However, this three year period applies only to structural changes, not to the provision of auxiliary aids. Moreover, no structural changes are required in order to provide portable assistive listening devices. The County's stated policy of not providing assistive listening devices to courtroom spectators, without regard to the needs of the individual with a disability, violates the statutory requirement that it provide an equal opportunity for qualified individuals with disabilities to participate in and benefit from its program or activity (see 28 C.F.R.​ 35.130(a)) and its obligation to provide effective communications (see 28 C.F.R. ​ 35.160). In particular, the policy violates title II of the ADA with regard to complainant XX who requested and was denied the needed auxiliary aid. In order to remedy this violation, the County must change its policy and agree to ensure effective communications, including provision of appropriate auxiliary aids such as assistive listening devices, for participants in and observers of courtroom proceedings. The Department remains open to discussing these issues and exploring any remedies that could lead to a satisfactory resolution. In that regard, Naomi Milton, the attorney assigned to the case, (202) 514-9807, will be in contact with you in the near future to ascertain whether the County is interested in entering into voluntary compliance negotiations. If the County does not wish to negotiate, or if negotiations are unsuccessful, we are required by 28 C.F.R.​ 35.174 to refer this matter to the litigating unit, the Public Access Section, for appropriate action. Of course, this Letter of Findings only addresses the County's policy of not providing ALS's to spectators at the County Courthouse as set forth in the County's letter of March 16, 1993, referenced above. Failure to discuss other policies 01-02362 -5and practices in this letter does not constitute a finding with respect to those policies and practices.

Under the Freedom of Information Act, it may be necessary to release this document and related records on request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.


(Signature) Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division cc: XX (b)(6)