Barriers to Justice

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1 28 C.F.R. § 35.130(b)(7). 2 28 C.F.R. § 35.160(a)(1). 3 Chief Judge Jonathan Lippman, The State of the Judiciary 2015, Access to Justice: Making the Ideal A Reality (at 1) (Feb. 17, 2015), http://www.nycourts.gov/ctapps/news/SOJ-2015.pdf (opening the speech by stating “Access to justice is the defining principle of our court system.”). 4 New York State Courts Access to Justice Program, Providing New Pathways to Legal Services, Assistance and Information, 2014 Report to the Chief Judge and the Chief Administrative Judge of the State of New York (Jan. 2015), http://www.nycourts.gov/ip/nya2j/pdfs/NYA2J_2014report.pdf. 5 NYS Court Local ADA Liaisons Directory, Accessibility, N.Y. State Unified Court System, http://www.nycourts.gov/accessibility/listbycounty.shtml (last visited June 7, 2016) (“Each court has a key person – an ADA Liaison – who should be contacted when an individual needs an accommodation for a disability.”). 6 Id. 7 MFY provides free legal assistance to residents of New York City on a wide range of civil legal issues. Because MFY works within New York City and focuses on civil issues, this paper does not explore courts outside of New York City or criminal courts. 8 42 U.S.C. §§ 12131-34; Tennessee v. Lane, 541 U.S. 509, 531 (2004) (in upholding the constitutionality of Title II, the Supreme Court held that Title II enforces the constitutional right of “access to the courts”); see also About the Americans with Disabilities Act, Accessibility, N.Y. State Unified Court, System, http://www.nycourts.gov/accessibility/index.shtml (last visited June 7, 2016) (“The New York State Unified Court System is committed to fully complying with the Americans with Disabilities Act by providing services, programs and activities in a way that assures equal and full accessibility for all court users.”). 9 29 U.S.C. § 794; see also New York State Unified Court System Budget Fiscal Year 2014-2015, http://www.nycourts.gov/admin/financialops/BGT14-15/2014-15-Budget.pdf. 10 See Kevin M. Cremin & Gerald Lebovits, Accommodations and Modifications in the New York City Housing Court for Litigants with Disabilities, 38 N.Y. Real Prop. L.J. 30, 31 (2010) (“With regard to requests for reasonable accommodations or modifications, the requirements, defenses, and relief available under the Rehabilitation Act are essentially the same as those under ADA Title II.”). Although there are differences between the two Acts, courts often analyze the laws together, unless one of the differences is relevant; see Brooklyn Ctr. for Independence of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 639 (S.D.N.Y. 2013) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). 11 Frequently Asked Questions, Accessibility, N.Y. State Unified Court System, http://www.nycourts.gov/accessibility/faqs.shtml (last visited June 7, 2016) (“Q. Can the court system provide an accommodation to a spectator of a court proceeding? A. The court, when asked, must provide reasonable accommodations so people with disabilities, including spectators, may take part in our programs, services and activities.”); see also Christopher v. Harbury, 536 U.S. 403, 412-15 (2002) (citing cases recognizing right of access to the courts for litigants despite inability to pay and without interference from state authorities); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (discussing the public’s right of access to criminal prosecutions). 12 42 U.S.C. § 12102(1) (the Rehabilitation Act cross-references the ADA’s definition of “disability”; see 29 U.S.C. § 705(20)(B) (citing 42 U.S.C. § 12102)). 13 42 U.S.C. § 12102(4). 14 See supra note 1 (“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.”). 15 See supra note 2 (“A public entity shall take appropriate steps to ensure that communications with applicants, members of the public, and companions with disabilities are as effective as communications with others.”). 16 42 U.S.C. § 12183 (“[D]iscrimination for purposes of [the ADA] includes . . . a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.”). 16
17 A recent report by New York Lawyers for the Public Interest revealed that New York City courts often are not physically accessible to people with disabilities. See New York Lawyers for the Public Interest, Accessible Justice: Ensuring Equal Access to the Courthouse for People with Disabilities (2015), http://www.nylpi.org/wpcontent/uploads/2015/03/Accessible-Justice-NYLPI-3-23-15.pdf. 18 N.Y. Civ. Rights Law § 47 (Consol. 2015). 19 N.Y. Jud. Law § 390 (Consol. 2015). 20 Access to the Courts for those with Disabilities, Accessibility, N.Y. State Unified Court System, http://www.nycourts.gov/accessibility/accessToTheCourts.shtml (last visited June 7, 2016) (“Each courthouse has an ADA liaison responsible for implementing the Americans with Disabilities Act (ADA).”). 21 NYS Court Local ADA Liaisons Directory, supra note 5 (“Each court has a key person – an ADA liaison–who should be contacted when an individual needs an accommodation for a disability.”). 22 Id. 23 Id. 24 Id. 25 Id. This procedure is in accordance with ADA regulations. See 28 C.F.R. §§ 35.150(a)(3), 35.164 (“The decision that compliance would result in [a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens] must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion.”). 26 NYS Court Local ADA Liaisons Directory, supra note 5. 27 Id. 28 28 C.F.R. § 35.106 (“A public entity shall make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of this part and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.”). 29 Title II Technical Assistance Manual, II-8.4000 (1993), available at http://www.ada.gov/taman2.html (“Methods include the publication of information in handbooks, manuals, and pamphlets that are distributed to the public to describe a public entity's programs and activities; the display of informative posters in service centers and other public places; or the broadcast of information by television or radio.”). 30 Letter from Shawn Kerby, Assistant Deputy Counsel, FOIL Officer, Office of Court Administration, to MFY Legal Services, Inc. (May 7, 2013) (FOIL request response); MFY e-mail to Shawn Kerby, July 20, 2012 2:31 p.m. (FOIL request for “any and all outreach materials provided to the public” for NY county); MFY e-mail to Shawn Kerby, Aug. 16, 2012 1:46 p.m. (FOIL request for “any and all outreach materials provided to the public” for Bronx, Kings, Queens, Richmond counties). OCA also provided an ADA brochure; however, the brochure is entitled “Communicating with People with Disabilities” and is directed at court personnel, not at people with disabilities. 31 New York City Courthouses, N.Y.C. Housing Court, N.Y. State Unified Court System (last visited August 11, 2016), http://www.nycourts.gov/courts/nyc/housing/; see also ADA, Court Services N.Y.C. Housing Court, N.Y. State Unified Court System, http://www.nycourts.gov/COURTS/nyc/housing/services.shtml (last visited June 7, 2016). 32 N.Y.C. Housing Court, N.Y. State Unified Court System, http://www.nycourts.gov/courts/nyc/housing/ (last visited June 7, 2016). 33 Overview, Civil Term, Kings Supreme Court, N.Y. State Unified Court System, http://www.nycourts.gov/COURTS/2jd/KINGS/CIVIL/index.shtml (last visited June 7, 2016). 34 See supra note 29; Title II Technical Assistance Manual, II-8.4000 (1993), available at http://www.ada.gov/taman2.html. 35 Jeanette Zelhof et al., Protecting the Rights of Litigants with Diminished Capacity in New York Housing Court, 3 Cardozo Pub. L. Pol’y & Ethics J. 733, 768-69 (2006). 36 Id. at 769. 37 Id. 38 Id. 39 Photographs are generally prohibited inside New York’s courts, and the Office of Court Administration did not provide reproductions of these posters in response to FOIL requests that sought outreach material. 40 MFY e-mail to Shawn Kerby, July 20, 2012 2:31 p.m. (FOIL request for “any and all requests for reasonable accommodations or modifications made by an individual with at least one actual or purported disability that were submitted to an ADA Liaison or other non-judicial court personnel” for NY county); MFY e-mail to Shawn Kerby, 17
Page 1 and 2: Barriers to Justice An Analysis of
Page 3 and 4: TABLE OF CONTENTS I. Introduction I
Page 5 and 6: Unreasonable denials of requests to
Page 7 and 8: television. 29 Yet, many people who
Page 9 and 10: Logo from the UCS accessibility inf
Page 11 and 12: Court staff - including actual ADA
Page 13 and 14: G. Insufficient Grievance Procedure
Page 15: Courts should provide more guidance
Page 19: http://www.nycourts.gov/ip/nya2j/di

Barriers to Justice

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