Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts

5. Do Title II and Section 504 apply to the programs, services, and activities of family courts?

Answer:  Yes.  State court proceedings, such as termination of parental rights proceedings, are state activities and services for purposes of Title II.⁵⁷  Section 504 also applies to state court proceedings to the extent that court systems receive Federal financial assistance.⁵⁸

Title II and Section 504 require court proceedings to be accessible to persons with disabilities, and persons with disabilities must have an equal opportunity to participate in proceedings.⁵⁹  For example, if a conference or hearing is scheduled in a location that is inaccessible to wheelchair users, it should be moved to an accessible location in order to ensure a wheelchair user can participate fully in the conference or hearing.

Courts are required to provide auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.⁶⁰  For example, courts should provide appropriate auxiliary aids and services to a parent who is deaf so that he or she can access court proceedings as fully and effectively as those who are not deaf.

Like child welfare agencies, courts must also make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination on the basis of disability.⁶¹  For example, it may be necessary to adjust hearing schedules to accommodate the needs of persons with disabilities, if the need for the adjustment is related to the individual’s disability.  Or it may be necessary to provide an aide or other assistive services in order for a person with a disability to participate fully in a court event.⁶²  Such assistance should be provided unless doing so would result in a fundamental alteration.⁶³

⁵⁷ See Yeskey, 524 U.S. at 209-12 (discussing the breadth of Title II’s coverage); cf. Shelley v. Kraemer, 334 U.S. 1 (1948) (finding judicial enforcement of racially discriminatory restrictive covenants state action in violation of the Fourteenth Amendment).  See also 28 C.F.R. § 35.190(b)(6) (designating to the DOJ responsibility for investigation of complaints and compliance reviews of “[a]ll programs, services, and regulatory activities relating to . . . the administration of justice, including courts.”).

⁵⁸ 29 U.S.C. § 794; see U.S. Dep’t of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 600 n.4 (1986).  We also remind judges and court personnel of their obligations under the American Bar Association, Model Code of Judicial Conduct, Rule 2.3 (b) that states: “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, . . . and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”