Legal Bulletin

October 5th, 2001

Welcome to the legal advocacy page of the University of Washington Center for Technology and Disability Studies web site. Bulletins will be posted here every Friday and will cover legal issues relevant to the funding, acquisition or use of adaptive technology. The Bulletins will discuss recent court opinions, legislation, rules, regulations and legal strategies. In addition, the AT Legal News section will intermittently provide shorter news stories and announcements, with related links if you want to find out more about the item. Other resources will be added over the next few months.

This first bulletin details a case brought before the Ninth Circuit Court of Appeals recently.

Christopher Duvall is a person who is completely deaf in one ear and has a severe hearing impairment in the other ear. He cannot sign well enough to use ASL or Signed English to communicate. With his specially adjusted hearing aids, he can have one-on-one conversations effectively, but he finds it very difficult to follow conversations of which he is not a part, because he cannot focus on a single speaker or control the pace of the conversation.

Mr. Duvall was involved in his divorce proceedings in Kitsap County Superior Court. When there was no oral testimony, he could follow and participate in pre-trial hearings. He realized that he would need accommodations, however, when the trail started and made the request with the ADA coordinator for the county. The accommodations originally offered by the county was holding the trial and hearings in the courtroom designated for hearing-impaired individuals, because of its small size, superior acoustics, and assistive-listening device and other equipment. However, the equipment was not compatible with and was inferior to, Mr. Duvall's own hearing aids. Mr. Duvall requested real-time transcription on a videotext display. Upon motion by Mr. Duvall's attorney on the first day of trial, the judge said that the county had "not progressed" to that level of technology, and "that if Mr. Duvall wished to have that service available he [could] provide that service for himself." According to his lawsuit brought under Title II of the ADA and the Washington Law Against Discrimination, Mr. Duvall was prevented from meaningfully participating in the trial.

The primary issue in the lawsuit was whether the county was required to provide the videotext transcription as a reasonable accommodation. In attempting to have the lawsuit dismissed before trial, the county argued that the technology was not a reasonable accommodation because the technology was not available in the county at the time of trial, and that it provided Mr. Duvall with reasonable accommodations. However, there was evidence presented that the real-time videotext transcription technology was available by companies outside of the county, companies that could have provided the service if asked by the county. The majority of the appellate court hearing the lawsuit emphasized that the ADA imposes an obligation to investigate whether a requested accommodations are feasible, reasonable, and necessary for the equal participation of an individual with a disability, and that the county could be held to have not adequately investigate reasonable accommodations in this case. In addition, the accommodations offered by the county might not have provided Mr. Duvall with the opportunity for equal participation in the proceedings. The majority also held that the county could be found to have been "deliberately indifferent" to the reasonable accommodation requests, and therefore punitive damages would be available, if the county lost the upcoming trial.

What lessons does this case have for government and other organization covered under the ADA and other disability anti-discrimination laws?

For the full text of the case, Duvall v. County of Kitsap (9th Cir 2001): see http://caselaw.lp.findlaw.com/data2/circs/9th/9935934p.pdf