[TRANSCRIPT: This video provides the American Sign Language (ASL) translation of the Advocacy Letter available in PDF. The Advocacy Letter is for you to show whoever has the authority in your situation and help you advocate for yourself. This video is the ASL version of that Advocacy Letter.
To Whom it May Concern: The National Association of the Deaf (“NAD”) seeks to ensure that all state, county, municipal, administrative, and other courts understand their legal obligations with respect to serving deaf and hard of hearing individuals. The Americans with Disabilities Act (“ADA”) has clear mandates requiring state and local courts to provide effective communication to individuals who are deaf and hard of hearing. For state and local courts, the relevant provisions are found in Title II of the ADA and its implementing regulations.
ON-SCREEN TEXT: See Americans with Disabilities Act tit. 2, 42 U.S.C. §§ 12131-12165 (2020); 28 C.F.R. §§ 35.101-35.190 (2016).
These provisions show that: 1) Title II of the ADA applies to all “public entities,” including courts.
ON-SCREEN TEXT: 42 U.S.C. § 12131.
a. Public entities include “any State or local government;” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.”
ON-SCREEN TEXT: 42 U.S.C. § 12131(1)(A), (B).
b. Public entities may have additional obligations under state law not included in this letter.
2) Public entities must furnish (that is, obtain and pay for) any auxiliary aid or service that is necessary to ensure that its communication with deaf and hard of hearing individuals is as effective as its communication with others.
ON-SCREEN TEXT: See 28 C.F.R. § 35.160(a), (b).
a. “The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.”
ON-SCREEN TEXT: 28 C.F.R. § 35.160(b)(2).
b. “In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.”
ON-SCREEN TEXT: 28 C.F.R. § 35.160(b)(2).
c. The public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. The public entity shall honor the choice unless it can demonstrate that another equally effective means of communication exists or that use of the means chosen would constitute an undue burden or fundamental alteration.
ON-SCREEN TEXT: See 28 C.F.R. § 35, app’x. A at 580 (2009).
d. To be effective, an auxiliary aid must ensure that the deaf or hard of hearing individual can both understand aural information and participate in discussions.
e. Auxiliary aids and services must be furnished regardless of the number of individuals who have requested such services.
f. The deaf population varies greatly in its ability to use sign language, and to communicate in spoken or written English. Do not assume that an auxiliary aid or service that is effective for one individual will be effective for another individual.
3) Deaf and hard of hearing individuals have an equal right to auxiliary aids and services, regardless of their role in court proceedings.
ON-SCREEN TEXT: See 28 C.F.R. § 35.160(a)(1), (b)(1).
a. Regulations expressly apply to “applicants, participants, members of the public, and companions with disabilities.”
ON-SCREEN TEXT: 28 C.F.R. § 35.160(a)(1).
b. Federal courts have interpreted this provision to apply to deaf attorneys and deaf spectators, in addition to deaf defendants, jurors, witnesses, and judges.
4) Auxiliary aids and services include but are not limited to qualified sign language interpreters.
ON-SCREEN TEXT: See 28 C.F.R. § 35.104
a. Auxiliary aids and services can also include oral interpreters, cued speech transliterators, tactile interpreters, Certified Deaf Interpreters (“CDIs”), captioning of audio-visual materials, and text-based services such as Communication Access Realtime Transcription (“CART”).
ON-SCREEN TEXT: See 28 C.F.R. § 35.104
b. Any interpreter provided must also be qualified.
i) To be “qualified”, an interpreter must be able to “interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”
ON-SCREEN TEXT: 28 C.F.R. § 35.104.
ii) Individuals who have not had extensive training on how to interpret in legal settings are not qualified to interpret for court proceedings.
iii) The following individuals are not “qualified” interpreters: (1) a court employee who knows basic sign language; (2) family members, adult companions, and minor children of the deaf or hard of hearing individual, except in certain cases of emergency; (3) any interpreter who does not communicate proficiently with the deaf or hard of hearing individual.
iv) It is important to ensure that the interpreter provided is properly licensed as many states require sign language interpreters to obtain state licenses.
c. If a deaf or hard of hearing individual does not communicate effectively through standard American Sign Language, the court may be required to furnish an additional interpreter with expertise in the deaf individual’s particular communication style in order to achieve effective communication.
i) For some deaf and hard of hearing individuals, effective communication can only be achieved with the use of a CDI. CDIs are deaf interpreters who have been trained to interpret for deaf or hard of hearing individuals who have a limited knowledge of ASL, use a mixture of gesture or home signs, or may have psychological or physical challenges preventing them from using ASL fluently. A CDI works in tandem with a hearing ASL interpreter.
d. Realtime transcription services, such as CART, must be provided by trained professionals.
i) It is unlikely that an untrained individual can type quickly enough to ensure effective communication during a presentation or group discussion.
ii) Voice recognition software currently is not accurate enough to ensure effective communication, unless used by a trained professional “voice writer.”
e. Computer-generated automatic captioning generally is inaccurate and unreliable, and, as a result, does not ensure effective communication. Best practice dictates that quality captioning for effective communication should be done by qualified captionists and must be:
i) Accurate, matching the spoken words or lyrics in their original language in the order spoken, providing nonverbal information that is not observable (e.g. identity of speakers, sound effects), and legible with appropriate font size and spacing between words for readability as well as providing appropriate capitalization and punctuation;
ii) Synchronous, coinciding with the corresponding spoken words and sounds to the greatest extent possible;
iii) Complete, running from the beginning to the end of the program to the full extent possible; and
iv) Adequately positioned, viewable, and not blocking other visual content in the courtroom or on the screen (e.g. graphics and credits).
ON-SCREEN TEXT: See 47 C.F.R. § 79.1 (2003); see also Web Content Accessibility Guidelines 2.1 (2018).
f. A PowerPoint presentation, presenter’s notes, or frozen transcript does not satisfy ADA requirements for a live or taped event.
g. Seating arrangements and lighting must ensure that there is a clear line of sight to the interpreter or captioning, the interpreter or captioning is clearly visible by all deaf or hard of hearing participants, and the deaf or hard of hearing participants’ view of the courtroom is unobstructed (e.g. view of the judge is not blocked by objects such as columns or equipment or by the interpreter or captioning).
h. Due to the sensitive nature of court proceedings, it is imperative that courts use highly trained personnel to provide interpreting or captioning services.
5) Public entities may not charge the individual requesting the auxiliary aid or service for the provision of these services or otherwise rely on this individual to provide auxiliary aids and services.
ON-SCREEN TEXT: See 28 C.F.R. §§ 35.160(c).
a. The public entity is responsible for furnishing auxiliary aids and services.
ON-SCREEN TEXT: See 28 C.F.R. § 35.160(a).
b. The public entity may not require the deaf or hard of hearing individual to bring their own interpreter.
ON-SCREEN TEXT: See 28 C.F.R. § 35.160(c)(1).
c. The public entity may not rely on an adult companion or minor child of a deaf or hard of hearing individual for communication except under certain cases of emergency.
ON-SCREEN TEXT: See C.F.R. § 35.160(c)(2), (3).
6) Although the ADA does not require public entities to furnish auxiliary aids and services when doing so would create an undue burden, such a situation is unlikely to arise in the context of a single event or even a series of events, especially if such events are scheduled in advance.
ON-SCREEN TEXT: See 28 C.F.R. § 35.164.
a. The nature of the burden is measured in the context of the entity’s overall resources.
ON-SCREEN TEXT: See 28 C.F.R. § 35.164.
b. A lack of advance notice does not excuse the entity from making best efforts to secure the aid or service.
c. To ensure that certain auxiliary aids and services (e.g., sign language interpreters) can be secured, the aid or service must be procured as soon as the deaf or hard of hearing individual makes their request.
d. Any decision to deny auxiliary aids and services on the basis of undue burden or fundamental alteration must be made in writing by the head of the public agency or their designee.
ON-SCREEN TEXT: See 28 C.F.R. § 35.164.
7) Under some circumstances, multiple entities may have the obligation to provide auxiliary aids and services. When the law does not specify which entity has the sole obligation to provide auxiliary aids and services, any covered entity may be held liable if they are not provided.
Please note that state and local courts may have additional obligations under federal and state law not included in this letter. Thank you for your attention to this important matter. Sincerely, the National Association of the Deaf Law and Advocacy Center.
Attached to the Advocacy Letter includes the relevant sections of Title II of the ADA that are referenced in the Advocacy Letter.]