Government

III. PROTECTING THE CONSTITUTIONALITY OF THE ADA

The Department has been actively engaged in defending the constitutionality of the ADA. The Department intervenes in private suits across the country to defend the constitutionality of the statute against challenges by state defendants.  In early 2001, the Supreme Court limited the reach of the ADA by holding in Board of Trustees of the University of Alabama v. Garrett¹⁴¹ that a private individual may not, consistent with the Constitution, sue a State or state agency to enforce the employment discrimination protections in Title I of the ADA. The Court held that States are protected from such suits by sovereign immunity under the Eleventh Amendment.  Following earlier decisions holding that Con-gress may remove States’ immunity only when acting pursuant to its powers under the Four-teenth Amendment, the Court in Garrett held that Title I’s prohibition of discrimination on the basis of disability went beyond Congress’s authority under the Fourteenth Amendment.  Thus plaintiffs may not sue a State directly to enforce Title I.

The Garrett opinion, however, does not bar all ADA actions challenging state and local government policies or practices. The Court made clear that the federal government may continue to sue States for injunctive relief and money damages under Title I, and that private individuals may sue state officials in their official capacities as long as the plaintiffs do not seek money damages. Also, the Garrett decision only prohibited Title I suits against state governments, not cities or counties, because sovereign immunity as embodied in the Eleventh Amendment does not apply to local governments. Moreover, the Court left open the question whether private individuals may sue States under Title II, as opposed to Title I.

Following the decision in Garrett, numerous lawsuits were brought against state and local governments under Title II of the ADA. The Department has intervened in scores of cases at all levels of the federal court system throughout the country to defend the constitutionality of Title II  in these private suits. The cases involve a wide range of claims regarding courts, prisons, public transit, voting, public education, parking placards, licensing, and institutionalization. In defending the constitutionality of Title II of the ADA, the Department has argued that Congress had the authority to remove States’ immunity because the ADA is an appropriate and constitutional means of remedying the history of pervasive discrimination against people with disabilities.

Since Garrett, the Supreme Court has addres-sed the application of Title II in two instances. In 2004, the Supreme Court issued a decision in Tennessee v. Lane,¹⁴² holding that individuals may sue States directly to require States to make their courts and judicial services accessible under the ADA. The plaintiffs alleged that the State of Tennessee and 25 of its counties violated the ADA by having inaccessible courthouses. They asked the federal court to order that the courts be made accessible and to award compensatory damages. One plaintiff, a wheelchair user who was charged with two misdemeanor offenses, alleged that he had to crawl up two flights of stairs to make a required court appearance. The other, a court reporter who is also a wheelchair user, alleged that many of Tennessee’s courthouses and courtrooms had barriers that made it difficult for her to practice her profession. The Court held that Title II is an appropriate response by Congress to prevent denial of the right of access to state courts in light of the history of unconstitutional treatment by States of people with disabilities. The Lane decision left open the question of the constitutionality of Title II suits challenging state practices or policy in other areas of activity.

Following Lane, the Supreme Court in 2006 ruled unanimously in United States v. Georgia¹⁴³ that a prisoner could proceed with his Title II claims for damages against the State of Georgia to the extent that his claims alleged independent violations of the Constitution. The Court’s opinion did not address the extent to which individuals may enforce Title II against States to secure ADA rights in prison that are more expansive than those that are provided by the Constitution.  The plaintiff, a prisoner who has paraplegia and uses a wheelchair, alleged that his cell was too small for him to maneuver his wheelchair, making it impossible for him to gain access to his bed, toilet, and shower without assistance, which was often denied. He also claimed that architectural barriers in the prison prevented him from using the library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs. The Court remanded the case to the district court to determine which of his Title II claims would also allege constitutional violations.

As a result of the decision in United States v. Georgia, many Title II cases pending in appellate courts are being sent back to district courts to determine whether they can be upheld because they seek to enforce Title II rights that do not go further than those protected by the Constitution. The Department of Justice is continuing its nationwide effort to intervene in such cases and others to defend the constitutionality of Title II of the ADA.

With these words uttered just a few days into his new administration, President George W. Bush announced his New Freedom Initiative, which laid out a comprehensive set of goals and plan of action to eliminate the remaining barriers to full participation by people with disabilities in American life.

The Department of Justice has enthusiastically embraced the clarion call of the New Freedom Initiative, continuing its commitment to the full integration of people with disabilities into the mainstream of American life and to equal opportunity for people with disabilities to contribute to and benefit from our free market economy.

The New Freedom Initiative is grounded on the recognition that Americans with disabilities face very real hurdles to enjoying the same educational, economic, and social opportunities as other Americans with no disabilities. Consider the following Census Bureau statistics drawn from the 2002 Survey of Income and Program Participation, some of the most recent government figures available:¹

Americans with disabilities, on average, continue to attain a lower level of education than those without disabilities. For example, almost 27 percent of adults ages 25 to 64 with a severe disability did not graduate from high school. By comparison, 14.6 percent of individuals with a non-severe disability and 10.4 percent of individuals with no disability failed to graduate from high school. Out of people ages 25-64, 43.1 percent of those without a disability graduated from college, compared with 32.5 percent of individuals with a non-severe disability and just 21.9 percent of those with a severe disability.

In addition, American adults with disabilities, on average, are poorer and are far more likely to be unemployed than those adults without disabilities. For example, median earnings for people with no reported disability were $25,000, compared with $22,000 for people with a non-severe disability and $12,800 for those with a severe disability. In addition, more than one-fourth (25.7 percent) of individuals with no disability had household incomes of $80,000 or more, in comparison with 18.1 percent of people with a non-severe disability and 9.2 percent of individuals with a severe disability. Approximately 56 percent of adults ages 21-64 who had a disability were employed at some point in the one-year period prior to participating in the survey. People with severe disability status reported the lowest employment rate (42 percent), compared with the employment rates of people with non-severe disabilities (82 percent) and those with no disability (88 percent). Almost 27 percent of adults ages 25-64 with a severe disability live in poverty. By contrast, 11.2 percent of individuals with a non-severe disability and 7.7 percent of individuals with no disability live in poverty. Out of adults 65 years of age and older, 15 percent with a severe disability live in poverty, while 8.2 percent of individuals with a non-severe disability and 5.9 percent of individuals with no disability live in poverty. Finally, many Americans with disabilities live outside the economic and social mainstream of American life. Adults with disabilities have a lower likelihood of living with family than adults without disabilities. People with disabilities were more likely than people without disabilities to live alone or with non-relatives: among people 25 to 64 years old, 18.9 percent without disabilities lived alone or with non-relatives, compared with 23 percent with a non-severe disability and 27.8 percent with a severe disability. People 25 to 64 years old with a severe or non-severe disability were more likely to be the householder in a male- or female-headed household (12.7 percent) than people without a disability (8.8 percent). Of those ages 15 to 64, 36 percent with a severe disability used a computer, and 29 percent used the Internet at home. By contrast, individuals with a non-severe disability or with no disability had substantially better computer access with 60.7 percent using a computer and 50.9 percent using the Internet at home.

In addition to these figures, the data from a 2004 Survey conducted by the National Organization on Disability in conjunction with the Harris polling organization provides further insight into hurdles faced by persons with disabilities in enjoying community opportunities. According to the survey, persons with disabilities are twice as likely as those without to have inadequate transportation (31 percent compared to 13 percent), have a higher likelihood of going without medical care (18 percent compared to 7 percent), and are less likely to socialize, eat out, or attend religious services. In addition, a full one-third of individuals with disabilities using assistive technology say they would lose their independence without it, illustrating its fundamental importance in promoting independent living.

These problems were entrenched due to a long history of shameful hostility to and fear of people with disabilities. Such hostility and fear produced outright discrimination and exclusion, and in some cases, forced sterilization and unnecessary institutionalization. Moreover, even some well-intentioned social policies had the effect of promoting dependency and isolation rather than independence and involvement in the community.

Clearly there was much work to do. President Bush, through the New Freedom Initiative, has committed his Administration to getting the job done.

---

“My New Freedom Initiative will help Americans with disabilities by increasing access to assistive technologies, expanding educational opportunities, increasing the ability of Americans with disabilities to integrate into the workforce, and promoting increased access into daily community life.”

- President George W. Bush,
February 1, 2001

---

At the core of the New Freedom Initiative is a call for strong enforcement of the Americans with Disabilities Act (ADA), a comprehensive civil rights law that provides a national mandate for the elimination of discrimination on the basis of disability in employment, state and local government programs and services, public accommodations, commercial facilities, transportation, and telecommunications. The New Freedom Initiative also calls for outreach to business to promote voluntary ADA compliance and vigorous steps to promote full access to community life. The Civil Rights Division of the Department of Justice is deeply engaged in this battle on all of these fronts.

The goal of the ADA is simple – to open up all aspects of American life to people with disabilities. For too long, people with disabilities were held back by old modes of thinking and old methods of building. Prevailing attitudes made it hard for people with disabilities to get an education or to get a job. Barriers in society prevented people with disabilities from getting where they needed to go to build a better life.

The ADA prohibits discrimination on the basis of disability in employment, state and local government activities, public accommodations, commercial facilities, transportation, and telecommunications. The Department of Justice enforces the provisions that apply to more than  seven million places of public accommodation, including all hotels, restaurants, retail stores, theaters, health care facilities, convention centers, parks, and places of recreation (Title III), in all activities of state and local governments (Title II), and in all employment practices of state and local government employers with 15 or more employees (Title I).

The ADA also establishes architectural accessibility requirements for new construction and alterations of buildings and facilities covered under Title II and Title III, which generally include all nonresidential buildings and facilities.

ADA enforcement and technical assistance activities cover more than seven million businesses and nonprofit agencies, more than 80,000 units of state and local government, and more than 100 federal agencies and commissions in the Executive Branch, touching over 50 million people with disabilities as well as their families and friends.

The Civil Rights Division has pioneered a multitrack approach to protecting the rights of individuals with disabilities – promoting expanded opportunities through cooperative compliance assistance, providing technical assistance, and backing these efforts with a robust enforcement program. Since the beginning of the New Freedom Initiative, the Department of Justice has secured positive results for people with disabilities in over 2000 actions including lawsuits, settlement agreements, and successful mediations.

The success of this multitrack approach is evident. Attitudes are changing and barriers are coming down all across America. The message of the ADA is being heard far and wide because the message of the ADA is freedom – freedom to contribute to society and freedom to enjoy the incredible opportunities our country provides.

The ADA is bringing about significant changes in our hometowns and communities.  Thanks to the ADA, people with disabilities are participating in unprecedented numbers in civic life and are gaining equal access to the benefits and services that local government provides. All across America, towns and communities are taking steps to make their programs and services accessible. Town halls and courthouses across America are installing ramps and providing accessible parking and restrooms. The use of sign language interpreters and assistive listening devices is increasing at public meetings and in court proceedings, allowing full participation by people who are deaf or hard of hearing. Our police are improving communication with deaf citizens in the arrest process, and public safety officials are saving lives by making 9-1-1 systems directly accessible to those who use TTY’s (teletypewriters) to communicate over the phone system. Communities are reshaping recreation and social service programs to allow full access by people with disabilities.

The ADA facilitates access by people with disabilities to all aspects of the free market system. The ADA’s reach extends to recreational activities, shopping, business and leisure travel, and health care. Travel opportunities have expanded. Rental car companies increasingly provide cars with hand controls, and hotels across the country provide a widening array of accessible hotel rooms. Other barriers to transportation across the country have fallen as well.  Most public buses now have lifts, and private transit – from airport shuttle vans to over-the-road buses – are becoming accessible in increasing numbers. Medical care is more accessible due to the proliferation of sign-language interpreter services, accessible rooms, and accessible examination tables.

Most Americans take for granted their ability to attend a civic meeting, use public sidewalks, call 9-1-1 in an emergency, or show up at the polls to vote for candidates of their choice. For too many people with disabilities, however, these seemingly routine aspects of American life have poseddaunting challenges and, in some cases, been altogether unavailable.

When a municipal courthouse is not accessible, people who use wheelchairs cannot serve on juries, attend hearings, or appear in court as witnesses.When a town hall is not accessible, persons with disabilities cannot participate in town meetings or other civic programs. When sidewalks do not have curb ramps, people with mobility disabilities are unable to move around freely to get to city hall, the department of motor vehicles, or the local public elementary school. When a city does not provide sign language interpreters at a zoning hearing or other program, persons with hearingimpairments may not be able to participate. And if government websites are not designed to work with assistive technologies – like screen readersand voice recognition software – blind individuals and persons who cannot use a mouse may not be able to renew their drivers’ licenses, file their tax returns, or apply for government jobs and programs online.

Access to civic life is a fundamental goal of the ADA. To ensure that this goal is met, Title II of the ADA requires state and local governments to make their programs and services accessible to persons with disabilities. Federal regulations require state and local governments to make reasonable modifications to policies, practices, and procedures whenever necessary to avoid discrimination, unless such modifications would fundamentally alter the government program or service. Under federal regulations, state and local governments also must take appropriate steps to ensure that they can communicate effectively with people with disabilities, using auxiliary aids and services where necessary.

Initially, the Department of Justice focused its enforcement efforts for cities, counties, and other forms of local government on resolving discrete problems brought to its attention through citizen complaints. The Department created Project Civic Access in order to marshal its investigative and technical assistance capabilities in a more comprehensive approach to solving accessibility issues on a community-wide basis.

A key step in Project Civic Access is the Department’s bottom-up review of a city’s or county’s public spaces and services. Some Project Civic Access reviews follow complaints received by the Department, but many are initiated by the Department. The Department endeavors to conduct reviews in every state, across locations with a range of population sizes, and in communities that are demographically diverse.

When President Bush took office in 2001, he made Project Civic Access one of his top ADA priorities through the New Freedom Initiative. In August 2004, the Department commemorated the 100th Agreement signed under Project Civic Access. As of the printing of this Report, the Department has reached 150 agreements with 141 state and local governments to bring them into compliance with the ADA. Several of these agree-ments are available at www.ada.gov/civicac.htm.

On a Project Civic Access review, Department attorneys, investigators, and architects survey a range of programs and activities, including those conducted in the city and town halls; courthouses; police, fire, and sheriff’s departments; centers for health care, childcare, teen, and senior activities; libraries; convention centers; stadiums; emergency shelters; polling places; and parks and recreational facilities. Typical issues ad-dressed during a Project Civic Access compliance review include:

• whether physical modification of facilities or relocation of services is required to provide accessibility;
• whether and how inaccessible activities, such as town meetings and county court proceedings, may be relocated to accessible locations upon request;
• whether there are viable alternate means of making particular services accessible, such as the availability of absentee balloting;
• whether and how to meet accessibility standards with respect to facilities and sidewalks;
• whether assistive listening systems are provided in assembly areas (e.g., legislative chambers, courtrooms, and municipal auditoriums);
• whether 9-1-1 emergency response services are accessible to citizens with hearing or speech disabilities;
• whether telephone communications in other governmental functions are accessible;
• whether government websites are usable by citizens with vision impairments;
• whether the community provides adequate procedures and time frames for citizens requesting and securing auxiliary aids, such as sign language interpreters, when needed for effective communication;
• whether there is permanent and conspicuous notice to the members of the community of their ADA rights and the local government’s ADA obligations; and
• whether government offices employing more than 50 persons provide an ADA grievance procedure.
  
  

The Department has published two guides specifically designed to assist local officials, which are available on its www.ada.gov website.  These booklets, entitled “The ADA Guide for Small Towns”² and “The ADA and City Governments: Common Problems,”³ review the ADA’s requirements and offer practical ways of meeting those requirements in cities and small towns.

Project Civic Access is much more than an inspection program. In fact, the inspection is just the beginning of a truly cooperative venture among the Department, the local jurisdiction, and its citizens. Local government officials have responded favorably and cooperated fully in the Department’s reviews. They have provided requested records and documents in a timely fashion, have made themselves available to answer questions during on-site visits, and have escorted investigators throughout their communities in order to assist in the quick and efficient completion of facilities surveys. Sometimes these site reviews result in on-the-spot changes to improve access. Most important, these officials have indicated a willingness to undertake changes in order to make their programs and services accessible to persons with disabilities.

Former Assistant Attorney General R. Alexander Acosta signing PCA Agreement Between DOJ and Juneau, Alaska, at August 2004 DOJ ceremony with Deputy Assistant Attorney General Loretta King, and Building Inspector Sara Boesser and Assemblyman Marc Wheeler of Juneau, Alaska, looking on.

Local officials like Sara Boesser, a building inspector in Juneau, Alaska, usually accompany the Department’s staff on their reviews. “It was a wonderful experience to go around watching someone else do all those measurements, but also just to be able to learn from the experts from the Department of Justice and learn some of the things we didn’t know,” said Ms. Boesser. “The most unexpected pleasure from all of it is the help that DOJ has given us with plan review questions ever since. The more of that service you can offer building departments around the world, the more they’re going to give you good service from their end.”⁴

After conducting a location review, investigators discuss their findings with local officials and draft settlement agreements to resolve any outstanding issues. Through Project Civic Access, the Department has learned that the vast majority of communities are aware of their ADA obligations and are making progress toward meeting those obligations. Local officials in Allen County, Indiana,were pleasantly surprised by their experience with Project Civic Access. When the county commissionlearned that the Department intended to review the local government’s ADA compliance, “I think we were very apprehensive,” said Marla Irving, a county commissioner who worked with Department officials on their inspection. “We knew that we had some issues . . . . [B]eing ADA compliant isnot always the easiest endeavor to do.” But DOJ officials worked closely with local officials toreach an agreement.  “It was just a great learning experience foreveryone involved. It was not adversarial,” said Brian Dumford, the county’s human resources director and ADA coordinator.In fact, county maintenance crews began making changes before the Department finishedits investigation.⁵

The results of Project Civic Access are encouraging. In Davenport, Iowa, for example, Project Civic Access will make a real difference for people like John Sparks, who became disabled in a motorcycle accident. Mr. Sparks has a daughter who loves to dance and sing. Her mother took her to classes at Davenport’s Junior Theater because Mr. Sparks could not access the theater in his wheelchair. In a 2004 Project Civic Access settlement agreement,⁶ the city agreed to remedy several elements at the Junior Theater, including widening the main entrance to make it accessible, fixing the exterior ramp, and adding wheelchair seating in the auditorium. After the agreement is fully implemented, Mr. Sparks will be able to take his daughter to classes and enjoy her performances as well.

---

“I just want to take this time to thank the city of Davenport, the ADA, Project Civic Access, and the Department of Justice as a whole… With all the
changes the city … has made or plans to make, I will be able to do more activities with my family.”

– John Sparks, resident of Davenport, Iowa, at August 5, 2004, Department of Justice roundtable, Washington, D.C.

---

On August 5, 2004, citizens from across the nation came to the Justice Department to celebrate the signing of the 100th Project Civic Access settlement agreement. Events included a roundtable discussion where local government officials, community advocates, and individuals with disabilities from seven communities shared their experiences with Project Civic Access and the positive impact it has had.7

Former Assistant Attorney General R. Alexander Acosta signing PCA Agreement between DOJ and Taos County, New Mexico, at August 2004 DOJ ceremony with Deputy Assistant Attorney General Loretta King and James Dennis, Human Resources Director and ADA Coordinator for Taos County, New Mexico, looking on.

The Department has recently launched the second phase of Project Civic Access, which involves reviewing additional communities in all 50 states and focuses on an expanded range of issues, including accessible curb cuts, voting technology, disaster response planning, domestic violence shelters, and government websites.By increasing the scope of our reviews, the Department will improve access in new communities and ensurethat people with disabilities can fully participate in the fundamental aspects of contemporary American life.Their increased participation benefits their entire community and all Americans.

On September 12, 2006, the Attorney General recognized a team of dedicated attorneys in the Disability Rights Section (DRS) of the Justice Department’s Civil Rights Division for their accomplishments under Project Civic Access by bestowing upon them the John Marshall Award for Alternative Dispute Resolution. These attorneys—who include both current DRS lawyers and alumni—are: Elizabeth Bacon Josh Mendelsohn Naomi Milton Mellie Nelson Beth Esposito Dov Lutzker Mary Lou Mobley Sharon Pietrafesa Hilary Martinson Jeanine Worden

2. Equal Access to Public Safety and Emergency Response Services

In light of September 11, 2001 and Hurricane Katrina, the Civil Rights Division has made it a priority to work with localities to ensure that they meet the needsof persons with disabilities during emergencies because they can be among the most vulnerable members of our communities during times of crisis.

Many traditional emergency notification methods are not accessible to or usable by people with disabilities. People who are deaf or hard of hearing cannot hearradio,television, sirens, or other audible alerts. Those who are blind or who have low vision may not be aware of visual cues, such as flashing lights.

In addition, individuals with disabilities often must overcome an array of obstacles in order to evacuate from dangerous areas. A person with a mobility disability may need assistance leaving a building without a working elevator. Individuals who are blind or who have limited vision may no longer be able to independently use traditional orientation and navigation methods. An individual who is deaf may be trapped somewhere unable to communicate with anyone because the onlycommunication device relies on voice. The movement of people during an evacuation is critical, but many people with disabilities cannot use
traditional forms oftransportation if they are inaccessible to people with disabilities.

After evacuating dangerous areas, people are often provided safe refuge in temporary shelters. Some may be located in schools, office buildings, tents, or other areas. Historically, great attention has been paid to ensuring that those shelters are well stocked with basic necessities such as food, water, and blankets, but many of these shelters have not been accessible to people with disabilities. Even when individuals using a wheelchair or scooter are able to get to a shelter, they often findthe facility lacks an accessible entrance, accessible toilet, or accessible shelter area.  Shelter staff and volunteers are often trained in first aid or other areas criticalto the delivery of emergency services, but many have little, if any, familiarity with the needs of people with disabilities. In some instances, people with disabilitieshave been turned away from shelters because of volunteers’ lack of confidence regarding the shelters’ ability to meet their needs.

Additionally, many shelters have a “no pets” policy, which some mistakenly apply to exclude service animals such as guide dogs for people who are blind, hearing dogs for people who are deaf, or dogs that pull wheelchairs or retrieve dropped objects for persons with mobility impairments. When people with disabilities who useservice animals are told that their animals cannot enter the shelter, they are forced to choose between foregoing the safety of the shelter and foregoing the necessaryassistance their animals provide in order to enable them to live independently.

Individuals whose disabilities require medications, such as certain types of insulin that require constant refrigeration, may find that many shelters do not provide refrigerators or ice-packed coolers. Individuals who use life support systems and other devices rely on electricity to function and stay alive, but in many cases may not have access to a generator or other source of electricity within a shelter.

People who are deaf or hard of hearing may not have access to audible information routinely made available to people in temporary shelters. Individuals who are blind or who have low vision will not be able to use printed notices, advisories, or other written information disseminated at a shelter.

To address these issues, the Department routinely reviews city and county emergency operations plans as part of our Project Civic Access initiative. To date, the Department has entered into formal agreements with 28 communities to ensure that local governments include the interests of persons with disabilities in theiremergency planning activities. Communities including Newark, New Jersey;⁸ Memphis, Tennessee;⁹ Arlington¹⁰ and Loudoun Counties,¹¹ Virginia; and Maui, Hawaii¹² have begun efforts to include the needs of persons with disabilities in their emergency preparations. Communities typically agree to take specific steps,such as:

• removing architectural barriers to access in emergency shelter parking, pathways, entrances, and toilet and bathing facilities;

• soliciting input for its emergency operations plan from people with disabilities;
  ensuring that the community’s evacuation plans adequately provide for the evacuation of persons who are deaf or hard of hearing;
  
• identifying shelters with back-up generators and refrigeration to provide adequate shelter for persons who use mobility aids and medical devices
  that require electricity and for those who use prescription medication that requires refrigeration;

• adopting and implementing policies that prohibit emergency shelter personnel from separating persons with disabilities from their service
  animals, even if pets are normally prohibited in shelters; and

• ensuring that there are adequate opportunities for accessible temporary housing for persons with disabilities if such housing is provided to others.
  

In addition to addressing disaster preparedness for people with disabilities through Project Civic Access, the Department of Justice has worked jointly with the Department of Housing and Urban Development (HUD) to provide technical assistance to the Federal Emergency Management Agency (FEMA) on its transitional housing program. FEMA uses three types of emergency transportable housing to provide transitional homes to people displaced by disasters: travel trailers,one- and two-bedroom recreational vehicles, and three-bedroom manufactured homes. After Hurricanes Katrina, Rita, and Wilma in 2005, the Department dispatched an architect with expertise in disability and accessibility issues to review FEMA’s group trailer sites situated near Baton Rouge, to meet with FEMA staff responsible for providing transitional housing to disaster victims in that region, and to inspect the emergency transportable housing being used to house people with mobility disabilities.

The Department’s architect met with FEMA officials and contractors to discuss strategies for improving accessible housing options for people with mobility disabilities. Department employees advised the FEMA contractor responsible for constructing group trailer sites about how to build ramps for the units that would house individuals with mobility disabilities. Working jointly with HUD, the Department then prepared guidelines and a model floor plan for an accessiblethree-bedroom manufactured home, which enabled FEMA to quickly procure accessible units for the disaster area. To ensure that people with mobility disabilitieshoused at FEMA’s group trailer sites would have access to common areas, such as food distribution areas, mail facilities, recreation areas, and laundry facilities, theDepartment also prepared guidelines FEMA could use to ensure that its group trailer and mobile home sites were designed to be fully accessible. After this initial workwas completed, the Department continued to provide technical assistance to officials in Louisiana and Mississippi.

Providing accessible temporary housing ensures that people with disabilities will have safe housing following disasters.

In the spring of 2006, to increase the transitional housing options available for people withmobility disabilities displaced by future disasters, the Department, in conjunction with HUD and the Access Board, developed specifications and sample floor plans for fully accessibletravel trailers and accessible one- and two-bedroom recreational vehicles. The Departmentalso provided a one-day training program on disability issues to all of FEMA’s equal rights officers who will be deployed to address access issues for people with disabilities following future disasters.

To help ensure that newly constructed and altered facilities in the Gulf area will comply withthe accessibility requirements of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Fair Housing Act, the Department of Justice partnered with HUDto provide accessibility training for architects, engineers, contractors, and members of the disability communities in Gulfport, Mississippi; Baton Rouge, Louisiana; and Tampa, Florida.The training in Tampa, which also focused on the ADA requirements applicable to emergency shelters and emergency management, was presented in a live webcast available throughout the nation.

The Civil Rights Division recently issued a revised and expanded publication intended to assist local governments in meeting the emergency accessibility needs of individuals with disabilitiesbefore emergencies occur. “An ADA Guide for Local Governments: Making Community EmergencyPreparedness and Response Programs Accessible to People with Disabilities”¹³ is intended tohelp local government planners, first responders, and emergency staff prepare for and meet the unique needs of people with disabilities during natural and civil emergencies. The guide identifies potential problems in notifying, evacuating, transporting, sheltering, and providing informationto people with disabilities during emergencies and offers common-sense solutions for preventing or minimizing those problems.

In this publication, the Department recommends a series of proactive steps that local governments should take in order to meet the needs of people with disabilitiesin emergencies:

• Solicit and incorporate input from people with different types of disabilities (e.g. mobility, vision, hearing, cognitive, and other disabilities) regarding all phases of the locality’s emergency management plan, including preparation, notification, response, and clean up.

• Ensure that, where sirens or other audible alerts are used as emergency warning systems, there is an alternative method of alerting people who
  are deaf or hard of hearing of an impending disaster.

• Adopt policies to ensure that community evacuation plans allow people with disabilities to safely self-evacuate or to be evacuated by others. Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification.  Where a locality adopts or maintains such a registry, ensure that procedures are in place to guarantee that it is voluntary and confidential. Also, consider how best to publicize the registry’s availability and develop a process to update it on a regular basis.

• Prepare several alternate forms of emergency communication for use when the electric power supply is affected. These might include the use of telephone calls, auto-dialed TTY messages, text messaging, e-mails, and even direct door-to-door contact with pre-registered individuals.

• Consider using open-captioning on local TV stations as well as using lower-tech options such as dispatching qualified sign language interpreters to assist in broadcasting emergency information provided to the media.

• Identify accessible modes of transportation that may be available to help evacuate people with disabilities during an emergency, whether or not a registry is used. For instance, during floods some communities have used lift-equipped school or transit buses to evacuate people who use wheelchairs.

• Survey the community’s shelters for barriers to access for persons with disabilities. For instance, if a locality is considering incorporating a particular high school gymnasium into its sheltering plan, early in the process it should examine its parking, the path to the gymnasium, and the toilets serving the gymnasium to make sure they are accessible to people with disabilities. If barriers to access are found, work with the facility’s owner to try to get the barriers removed. If that does not work, consider using another nearby facility for the community’s sheltering needs.

• Invite representatives of group homes and other people with disabilities to meet with the locality as part of its routine shelter planning. Discuss with them which shelters they would be more likely to use in the event of an emergency and what, if any, disability-related concerns they may have while being sheltered. Develop site-specific instructions for volunteers and staff to address these concerns.

• Until all emergency shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area, identify and widely publicize to the public, including persons with disabilities and the organizations that serve them, the locations of the most accessible emergency shelters.

• Adopt procedures to ensure that people with disabilities who use service animals are not separated from their service animals when being sheltered during an emergency, even if pets are normally prohibited in shelters.  While localities cannot unnecessarily segregate persons who use service animals from others, they may consider the potential presence of persons who, for safety or health reasons, should not be with certain types of animals.

• Ensure that a reasonable number of emergency shelters have back-up generators and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice). These shelters should be made available on a priority basis to people whose disabilities require access to electricity and refrigeration: for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration. The public should be routinely notified about the location of these shelters. In addition, if a locality chooses to maintain a confidential registry of individuals needing transportation assistance, this registry could also record those who need particular medications. This will facilitate planning priorities.

• Adopt procedures to provide accessible communication for people who are deaf or hard of hearing and for people with severe speech disabilities. Train staff on the basic procedures for providing accessible communication, including exchanging notes or posting written announcements. Train staff to read printed information, upon request, to persons who are blind or who have low vision.

• Identify temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) that may be used if people with disabilities cannot immediately return home after a disaster. Many times, necessary accessible features such as ramps or electrical systems have been damaged and are not yet repaired by the time evacuees are able to return home.

• Make sure that contracts for emergency services require providers to follow the steps outlined above. Review the terms of these contracts on a regular basis to ensure that they continue to meet the accessibility needs of people with disabilities. Provide training to contractors so that they understand how best to coordinate their activities with the locality’s overall accessibility plan for emergency services.

In addition to natural and civil emergencies, the Department has focused on providing access to emergency care in more localized emergencies.  For example, the Department routinely examines 9-1-1 systems to ensure that they are accessible to people who use TTY’s. Improvements to
9-1-1 systems are regularly mandated as part of the Department’s Project Civic Access agreements.

3. Access To And Fair Treatment In The Legal System

Interacting with law enforcement officials, participating in court proceedings, and being incarcerated are some of the most stressful encounters that citizens can have with government. Imagine how much greater the stress is for people who, simply because of their disabilities, cannot hear what a police officer is saying to them, cannot climb the steps to the courthouse door, or cannot participate in the counseling and rehabilitative services available to other inmates.  Judges, attorneys, court staff, and potential jurors with disabilities also face daunting challenges when attempting to fulfill their roles in the legal process.

The Department is working with state and local governments around the country to eliminate these inequities. Through Project Civic Access, the Department has worked closely with numerous counties and towns to ensure that courthouses and courtrooms are accessible.  Settlement agreements have required modifications to jury seating and deliberation areas, judges’ benches, spectator seating, and routes of travel so that they are accessible to people with mobility disabilities.

Example of accessible jury box. Example of accessible route and ramp to witness stand.

The Department also uses litigation when necessary to ensure access by the disabled to the judicial system. For example, in 2004 the Department brought and settled a lawsuit against the Commonwealth of Massachusetts and Bristol County, Massachusetts, alleging that they failed to make the services, programs, and activities of the county’s trial courts and registries of deeds accessible to people with mobility disabilities. The lack of physical accessibility – courtrooms and registry offices were located up flights of stairs in buildings without ramps or elevators – allegedly prevented two lawyers with disabilities who were named as plaintiffs in the lawsuit and other lawyers, parties, witnesses, jurors, spectators, and citizens with disabilities from gaining access to the services of five courthouses and three registries of deeds offices. Massachusetts agreed to make structural changes at each courthouse by constructing an elevator or ramp, along with accessible restrooms. The agreement also called for modifications of procedures to ensure that any services or programs located in inaccessible areas in a courthouse would be provided to lawyers, parties, witnesses, jurors, and spectators in an accessible area. In addition, Bristol County agreed to construct a ramp or elevator and accessible restrooms at its registries of deeds offices to ensure physical access to the registries and their services. Until these structural changes are completed, each registry will serve people with mobility disabilities via mail, internet, facsimile, and curbside service.¹⁴

In addition to physical accessibility issues, Project Civic Access agreements have required counties and towns to ensure that people who are deaf or hard of hearing receive appropriate auxiliary aids and services during court proceedings. For example, in November 2003, the State of Connecticut Judicial Branch, Superior Court Operations Division in Hartford, Connecticut, entered into an agreement with the Department resolving a complaint alleging that the state had failed to provide a sign language interpreter for a man who is deaf at three judicial proceedings. Under the agreement, the state will furnish appropriate auxiliary aids and services, including qualified sign language and oral interpreters, where necessary in the future to ensure effective communication with individuals with disabilities.¹⁵

The most frequent ADA complaint the Department receives against law enforcement agencies and officers is that they do not provide effective communication with people who are deaf or hard of hearing. For example, a complainant who is deaf alleged that the Phoenix Police Department discriminated against him on the basis of his hearing disability by failing to provide him with a qualified sign language interpreter at the time of his arrest. In an April 2003 agreement, Phoenix agreed to integrate a policy on effective communication into the police department’s operations manual. Employees were trained in the requirements of the policy, a notice was published in the local newspaper regarding the new policy, and mandatory ADA training sessions were held for all sworn personnel in order to instruct them to comply with the provisions of the agreement.¹⁶

Similarly, the Michigan Department of Human Services entered into an April 2006 agreement resolving two complaints filed by deaf parents who alleged that the state had refused to provide them with interpreters when they were interviewed by case workers during child abuse and neglect investigations involving their children. Michigan agreed to (1) adopt a new effective communication policy; (2) require case workers to indicate on a revised intake form if a parent has a disability and requires an interpreter for effective communication; (3) issue a public notice regarding the ADA’s applicability to the agency; (4) update its hotline numbers, its website, and other pertinent literature to include a TTY number and the Michigan relay number;¹⁷ and (5) train its 150 managers and 9000 employees annually on the ADA and its requirement to provide interpreters when necessary for effective communication.¹⁸

---

“This disability rights initiative demonstrates the Department’s continuing commitment to help state and local governments – including law
enforcement – understand and comply with the ADA,”

- Civil Rights Division Assistant Attorney General Wan J. Kim, announcing the Law Enforcement Outreach initiative on
May 2, 2006.

---

To help state and local law enforcement agencies understand their responsibilities under the ADA, on April 28, 2006, the Department finished sending a mailing to 25,000 police departments, sheriff’s offices, highway patrols, and other state and local law enforcement agencies throughout the country, offering a variety of free ADA publications and videotapes developed specifically for law enforcement audiences. The mailing included two new compliance assistance publications – a brochure for officers¹⁹ and a model policy²⁰ – on how to communicate effectively with people who are deaf or hard of hearing. The agencies also received information on how to order the videotape “Police Response to People with Disabilities.” Intended for roll-call training, the video is divided into eight different five- to ten-minute segments that address law enforcement situations involving
people who have mobility, speech, hearing, or vision disabilities, mental illness,
mental retardation, or epilepsy or other seizure disorders. A fully accessible streaming version of the video is also available for viewing on the ADA website (www.ada.gov),²¹ enabling officers whose vehicles are equipped with internet access to quickly review the relevant segment for guidance when interacting with a person with a disability as a witness, suspect, victim, or person in need of assistance.22

At the end of 2004, nearly seven million people were on probation, in jail or prison,
or on parole – 3.2 percent of all U.S. adult residents or 1 in every 31 adults. States held 1,244,311 prisoners in custody and local jails held 713,990. An additional 70,548 persons under jail supervision were serving their sentences in the community.²³ This population includes an increasing number of people with a wide variety of disabilities. For example, the Department’s Bureau of Justice Statistics reported that at midyear 2000, 16 percent of state prisoners were identified as mentally ill. Of the mentally ill, almost 79 percent received therapy or counseling; about 60 percent received psychotropic medications, including anti-depressants, stimulants, sedatives, tranquilizers or other anti-psychotic drugs.²⁴ There are prisoners with mobility disabilities, including paraplegia and quadriplegia. Others are deaf, hard of hearing, or blind. Still others have medical conditions such as cardiac disease, diabetes, HIV infection, hypertension, and seizure disorders. And, with thousands of prisoners serving long sentences without eligibility for parole, prisoners are aging and the population of the elderly and infirm is growing.

In many ways, correctional facilities face the same obligations and challenges to provide access to people with disabilities as other public facilities. But because prisoners are confined to correctional facilities 24 hours a day, often for years at a time, barriers to access, like an inaccessible toilet or shower, or the failure to provide effective communication to prisoners with hearing or vision impairments, impose especially severe burdens on inmates with disabilities.

In response to these trends and to the increasing number of complaints filed by prisoners, the Civil Rights Division and the Office of Justice Programs (OJP), which provides federal grants and assistance to state and local law enforcement agencies, are collaborating to improve the accessibility of the nation’s correctional facilities. Together, they have developed outreach, technical assistance, and investigative strategies to educate correctional officials about their obligations and to highlight effective measures for making programs and facilities accessible to inmates, employees, and visitors. This collaboration, which is known as the Justice Project, has resulted in prompt and meaningful relief that has improved the quality of life for numerous inmates with disabilities by providing, for example:

• proper shoes for a diabetic inmate,

• a prosthetic leg for an inmate that allowed him to live in the general population instead of the prison infirmary and to participate
  more fully in the programs and activities available for prisoners,

• a sign language interpreter for a deaf inmate so he could participate in educational programs,

• appropriate housing and treatment for a mentally ill inmate,

• an electric wheelchair for an inmate with mobility impairments after the prison lost the wheelchair he had when he arrived,

• repair and return of an inmate’s prosthetic hand,

• appropriate aids and services for an inmate with a hearing disability to participate in programming required for release,

• consideration of an inmate with a disability for a trusty job on the same terms and conditions as other inmates are considered, and

• a shower chair for an elderly, frail inmate.
  
  

Cameo Hoey, a secretary in the Civil Rights Division’s Disability Rights Section, received the Excellence in Administration Support award from the Attorney General on September 12, 2006, for her outstanding administrative work in support of the Justice Project.

As part of this joint effort, the Department recently issued its “ADA/Section 504 Design Guide: Accessible Cells in Correctional Facilities,” a clear and comprehensive explanation of the accessibility features required in designing new prisons, jails, and holding cells.²⁵ This publication targets the wide range of persons and entities involved in the design of correctional facilities, including law enforcement organizations, wardens and correctional officers, sheriffs, parole and probation officers, architecture firms, construction companies, and plumbing and fixture manufacturers that specialize in the design of justice-related facilities.

In February 2006, representatives from the Civil Rights Division and OJP joined a panel of experts in a half-day discussion on the ADA and corrections facilities sponsored by the National Institute of Corrections of the Bureau of Prisons in Spokane, Washington. The panel discussion was broadcast by internet and satellite to 12,000 employees and officials at corrections facilities nationwide.

The Department has also investigated and resolved complaints from individual prisoners, obtaining relief that significantly affects the quality of an inmate’s life while incarcerated. One of the most widespread complaints is the failure to provide effective communication to inmates with disabilities. This failure often prevents inmates who are deaf or hard of hearing from participating in an array of medical, social, and educational programs offered at a facility. They miss medical appointments, pill calls, and meals because they cannot hear announcements. Blind prisoners and prisoners with low vision complain that they cannot get books on tape or in large print.

In 2004, the Department entered into a settlement agreement resolving a complaint by a Maryland juvenile who was deaf and used American Sign Language. The young man served 18 months in two juvenile detention facilities, where he was required to participate in rehabilitative, educational, and recreational programs.  However, because the facilities allegedly failed to provide him with adequate sign language interpreter services, he was usually unable to participate in or benefit from these programs. As a result of the Department’s investigation, Youth Services International, a private corporation that operates juvenile justice facilities in eight states, and the State of Maryland Department of Juvenile Services entered into a settlement agreement with the Department.They agreed to provide qualified sign language interpreters or other appropriate auxiliary aids for youths who are deaf or hard of hearing in all of their juvenile facilities and programs, including intake and orientation, medical and psychological evaluations, treatment meetings, educational classes, therapy or group sessions, one-on-one meetings, school or assemblies, group living time, and exit interviews. Maryland will also provide these services for probation meetings and aftercare programs.  In addition, each facility will provide visual alarms, hearing aid-compatible and volume-controlled telephones, TTYs, and closed captioning equipment for youth who are deaf or hard of hearing, and will train staff on the requirements of the ADA.²⁶

Inmates in Anne Arundel County, Maryland and Hennepin County, Minnesota will benefit from similar relief as a result of Department investigations. In 2005, Anne Arundel’s Department of Detention Facilities entered into a settlement agreement to improve services provided to people who are deaf or hard of hearing at its two detention centers.²⁷ The County agreed to appoint an ADA coordinator at each facility; develop and implement a training program for staff; conduct a hearing assessment of all persons within 24 hours of their admittance; provide qualified sign language interpreters or other auxiliary aids during orientation, disciplinary hearings, reclassification hearings, classification appeals, status reviews, program meetings, meetings with program specialists, and rehabilitative or educational programs; and provide TTYs, closed captioning equipment, and visual alarms at each facility. Hennepin County entered into a similar agreement to resolve a complaint from an adult inmate who is deaf alleging that the county failed to provide an interpreter for chemical dependency treatment and other programs.²⁸

In another case, two inmates who are deaf in the District of Columbia challenged the denial of their request for auxiliary aids necessary for effective communication during their stay in a halfway house. In 2003, the D.C. Department of Corrections agreed to establish policies for providing appropriate auxiliary aids and services, including qualified interpreters, hearing aid batteries, telephones with amplified handsets, closed captioning for televisions, and visual and tactile alarms. The D.C. Department of Corrections also agreed to provide notice to inmates of the availability of these services, to train staff in carrying out the auxiliary aids policy, and to terminate contracts with entities that violate the policy in providing services to inmates.²⁹

Another common complaint is that correctional facilities are not accessible to inmates and visitors with mobility impairments. In 2004, the City of New Hope, Alabama signed an agreement resolving a complaint that neither its jail nor its city hall were accessible.³⁰ The city agreed to book and house prisoners with mobility impairments in accessible facilities in a neighboring county jail. The city also agreed to provide accessible door hardware throughout its facility, a TTY, van-accessible parking, and an accessible drinking fountain.

Similar obstacles to persons with disabilities were alleged to have occurred at the Cheatham County Jail in Tennessee. In 2003, the County Jail signed an agreement requiring it to provide accessible parking, handrails for the entrance ramp, accessible public toilet rooms, an accessible drinking fountain, a designated accessible inmate cell and shower, inmate telephones mounted at an accessible height, and audible emergency warning systems in holding cells or areas. The settlement also requires Cheatham County to provide a text telephone for inmates who are deaf or hard of hearing or who have a speech impairment.³¹

As the inmate population continues to age, it will be increasingly important that correctional facilities understand and comply with the accessibility requirements of the ADA. Inmates with disabilities will not be able to fully participate in and benefit from the variety of educational, rehabilitational, and substance abuse treatments at the heart of corrections programs unless these institutions and thoseprograms are accessible. Ensuring this access and the potential rehabilitation of inmates with disabilities is vital both for those inmates and for the communities to which they will return when they complete their sentences.

4. Ensuring Nondiscriminatory Zoning and Commercial Leasing Policies

Some of the damaging consequences of disability discrimination are the isolation and segregation of persons with disabilities. In passing the ADA, Congress recognized that such forms of discrimination result in social, vocational, economic, and educational disadvantages to individuals with disabilities, and that such practices run counter to the Nation’s goals of assuring equality of opportunity and full participation in society.³² Especially where a disability is based on a mental disorder or mental illness, negative stereotypes and unfounded fears can be formidable obstacles to achieving the type of integration and participation envisioned by the ADA.

One of the ways in which the Department furthers the goal of full participation is through enforcement of the Act’s prohibitions against discriminatory zoning and commercial leasing practices.

---

“I was very happy when I heard that Easter Seals-Michigan and the Department of Justice were willing to stand up for people with psychiatric disabilities… It proved that we matter just like every other citizen
and that we have the right to live and be within the community wherever we choose. I knew in my heart from the beginning that the discrimination I had witnessed just wasn’t right.”

- E-mail from Phyllis Patterson, Member of Dreams Unlimited Clubhouse, July 31, 2006

---

The Department has resolved several Title II and Title III complaints alleging discriminatory zoning and commercial leasing practices. For example, in 2005 the Department intervened in a lawsuit brought by Easter Seals of Michigan against the City of Royal Oak, Michigan, to challenge the city’s denial of a land-use permit for a day program for adults with mental illness. For over fifteen years Easter Seals had operated the Dreams Unlimited Clubhouse in a neighboring town, providing vocational training, skill building, volunteer service programs, and a social network for participants. When Easter Seals sought to relocate to a larger facility inRoyal Oak, the organization took what it anticipated would be routine steps to obtain the necessary permits to operate the Clubhouse.However, in a series of public hearings before the city’s zoning boards, community members protested against the Clubhouse location. Commenters expressed their belief that the presence of the Clubhouse would lower property values and fear that the neighborhood wouldno longer be safe for children. And an official on the city’s planning commission signed petitions opposing the Clubhouse before chairinga hearing on the permit issue.

The land-use permit was denied, and Easter Seals filed suit, seeking the right to operate the Clubhouse in Royal Oak. After investigation, the Department concluded that the city had discriminated against Easter Seals and its members by impermissibly basing its decision to deny the land-use permit on the fact that the users of the facility would be persons with mental illness.  The Department intervened in the lawsuit and worked with the parties to resolve the matter.  Under the November 2005 consent decree, Easter Seals was granted the land-use permit to operate the Clubhouse at the desired location and the city paid money damages to the private plaintiffs.³³ In addition, city officials participated in mandatory training on the ADA, which was conducted by Civil Rights Division staff.

In another zoning matter, in July 2003 the Department resolved a complaint that the City of Jackson, Mississippi, allegedly refused a zoning change that would have allowed the construction of a mental health crisis intervention center. In public hearings related to the zoning request, members of the public as well as council members allegedly made comments reflecting negative stereotypes about people with mental illness and voiced opposition to the center. Following these meetings, the city council, acting in its capacity as the zoning board, voted to deny the developers’ petition. Pursuant to the settlement agreement with the United States, the city held a new vote based on appropriate and lawful criteria, and granted the petition.³⁴ The city paid the developers $40,000 in compensatory damages and provided ADA training to all city council and planning board members on the requirements of the ADA. The city also agreed that in the future it would use appropriate, nondiscriminatory criteria when evaluating zoning petitions involving people with disabilities.

---

“This was a particularly difficult time for Sinergia…After searching over 50 sites in Manhattan we finally decided on a site only to be leveled with discrimination against our consumers with developmental disabilities. It was a bleak time as winter approached and we struggled to find an affordable alternative…Please accept our profoundest gratitude on behalf of individuals with disabilities and our entire organization. Be assured that this was a unique and wonderful opportunity for our consumers to practice self-empowerment and to witness firsthand justice at work.”

- Letter from Myrta Cuadra-Lash, Executive Director, Sinergia, (March 30, 2006)

---

Discrimination against people with disabilities also occurs in commercial leasing. Under Title III, the Department resolved a complaint filed by Sinergia, a small, nonprofit social service organization that operates a day habilitation program for adults with mental retardation and developmental disabilities. For over twenty years, Sinergia has offered educational, vocational, and social services primarily to low-income, minority communities traditionally underserved by other service providers. When Sinergia sought a new location for its day program in Manhattan, Kaufman Realty Corporation refused to lease to Sinergia because other tenants in the commercial building objected to the fact that Sinergia’s clientele would be adults with mental retardation. After investigation of the complaint, the Depart-ment notified Kaufman Realty that it was in violation of Title III and the parties agreed to resolve the matter with a consent decree. Under the consent decree, Kaufman Realty agreed to conduct all commercial leasing practices in a nondiscriminatory manner and to pay $175,000 to Sinergia as compensation for monetary damages.³⁵