by John E. Motylinski and Amanda McDonough (Summer 2018)
It is well known that the Americans with Disabilities Act (“ADA”) requires state and local governments to provide accommodations for individuals with disabilities. What is lesser known, however, is that the ADA obligates state and local governments to implement auxiliary aids and services upon request to communicate with individuals who have vision, hearing, or speech impairments. These auxiliary aids and services may include a variety of acceptable forms of communication but commonly include using a sign language interpreter and providing documents in Braille. This is to ensure that disabled individuals can meaningfully communicate with their elected representatives and local governments. If, for instance, a deaf citizen cannot communicate in real time at a local government’s board meeting, the citizen cannot participate in a consequential fashion. Similarly, if a blind individual cannot read a locality’s public meeting agenda, they cannot digest the information presented by the agenda.
The ADA’s mandate poses a number of questions for localities. For one, are units of local government required to provide interpreters for the hearing impaired at their regular meetings? Correspondingly, are local governments obligated to provide agendas and minutes in Braille for those who have impaired vision?
The short answer is: maybe—it depends on all the facts surrounding a given request. Indeed, determining whether a locality is compliant with the ADA’s charges is a fact-specific inquiry that takes into consideration the nature, length, complexity, and context of the information being relayed, the individual’s typical form of communication, and the sophistication of the local government involved.
Furthermore, although state and local government services are obligated to provide effective methods of communication, the ADA is sensitive to the practical limitations on local governments to provide such auxiliary aids. The result is the “undue burden” exception. Under the ADA, if the requested accommodation places an undue burden on State and local government entities, such as significant difficulty or expense, then the entity does not have to provide that specific form of accommodation.
What constitutes an undue burden is also decided on a case-by-case basis. Broadly speaking, though, the undue burden inquiry weighs the nature of the request and the locality’s available resources. If, for instance, an impoverished special district receives a request to simulcast its meetings in sign language, the district may well deny that request as unduly burdensome if obtaining a sign language interpreter is prohibitively expensive. On the other hand, if a bigger, more sophisticated municipality were to receive the same request, providing that auxiliary aid when viewing the totality of the circumstances might not be unduly burdensome. Accordingly, there is no black or white answer as to whether a request for auxiliary aids constitutes an undue burden—the answer exists on a continuum that takes into account the individual’s disability, the requested services, and the cost to provide those services.
Localities must nevertheless be aware that failure to abide by the ADA’s requirements is a serious matter that may result in litigation. For one, the federal or State government may step in and prosecute the matter. By way of example, the United States Department of Education’s Office of Civil Rights (“OCR”) has recently been very critical of the way local governments are maintaining their websites. In fact, some prominent school websites have been found to be inaccessible for those with mild visual or auditory disabilities. Generally, fixing these issues is not very expensive, making the burden on the local governments low. For those reasons, OCR has taken action against non-compliant governments and required website modifications to enhance accessibility.
In addition to action by regulators, aggrieved disabled individuals may also be able to sue local governments for violating the ADA. For instance, in Prakel v. Indiana, 100 F. Supp. 3d 661, 683 (S.D. Ind. 2015), a deaf individual wanted to observe criminal court proceedings. He asked the court system to provide an interpreter. The court system denied the request and did not take any other action to help the individual. Consequently, he filed a lawsuit alleging that the court system violated the ADA. The court hearing that case agreed and found that the defendant court system failed to show that those interpreter services would cost too much or otherwise create an undue burden. Therefore, localities must be aware that the ADA may be enforced by individuals as well.
In the end, there is no “one-size-fits-all” answer as to whether a given local government must provide auxiliary aids in response to a request for those services. Clearly, state and local government services must comply with the ADA and, therefore, must provide effective methods of communication to those with vision, hearing, or speech impairments. However, this demand is counterweighted by the nature of the request and the cost in providing those services. As such, if a request is impossible to fulfil by a given locality, it might not have to comply with the strict requirements of the ADA. But, this needs to be decided on a case-by-case basis. Consequently, it is imperative that localities seek counsel immediately if they receive a request for auxiliary aids or services.