Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts
Who is required to comply with the disability nondiscrimination laws?
4. What types of child welfare programs and activities are covered by these laws?
All activities of child welfare agencies are covered by Title II and Section 504, including removal proceedings and agencies’ programs and activities must not discriminate on the basis of disability.
Answer: Title II covers all of the programs, services, and activities of state and local governments, their agencies, and departments.54 Similarly, Section 504 applies to all of the activities of agencies that receive Federal financial assistance.55 Therefore, all child welfare-related activities and programs of child welfare agencies and courts are covered, including, but not limited to, investigations, witness interviews, assessments, removal of children from their homes, case planning and service planning, visitation, guardianship, adoption, foster care, reunification services, and family court proceedings. Title II and Section 504 also make child welfare agencies responsible for the programs and activities of private and non-profit agencies that provide services to children and families on behalf of the state or municipality.56
54 See Pa. Dep’t. of Corrs. v. Yeskey, 524 U.S. 206, 209-12 (1998) (discussing the breadth of Title II’s coverage).
55 See 29 U.S.C. § 794(b)(1)(A), (B).
56 See 28 C.F.R. §§ 35.130(b)(1), (3), 42.503(b)(1), (3); 45 C.F.R. § 84.4(b)(1), (4).
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.”
59 See 28 C.F.R. § 35.130; 45 C.F.R. § 84.4; see also 28 C.F.R. § 42.503.
61 28 C.F.R. § 35.130(b)(7); see also Choate, 469 U.S. at 304-06.
62 In addition, advocacy organizations, such as those within the Protection and Advocacy system, may provide assistance to individuals with disabilities when they become involved with the child welfare system.
63 See 28 C.F.R. § 35.130(b)(7), 35.160-.164; see also Choate, 469 U.S. at 300-309.
6. Do Title II and Section 504 apply to private contractors of child welfare agencies and courts?
Answer: Yes. Title II prohibits discrimination in child welfare programs and services when those services are provided by contractors.64 Section 504 prohibits discrimination in child welfare programs receiving federal financial assistance, including programs receiving federal financial assistance operated by private entities under contract with child welfare agencies.65 Accordingly, to the extent that courts and agencies contract with private agencies and providers to conduct child welfare activities, the agencies should ensure that in the performance of their contractual duties contractors comply with the prohibition of discrimination in Title II and Section 504.66
64 See 28 C.F.R. § 35.130(b)(1), (3).
65 29 U.S.C. § 794(a); 45 C.F.R. §§ 84.3(h); 84.4(b)(1), (4).
66 Private entities involved in child welfare activities may also be public accommodations with their own nondiscrimination obligations under Title III of the ADA. See 42 U.S.C. §§ 12181-12189 (Title III of the ADA).
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