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 cross-
examination 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.

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LEGAL 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-by-
case 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.

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ANALYSIS

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
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