The NCAA News - News and Features

March 17, 1997

GRAY AREA

Nonstructural part of ADA less specific; leaves room for negotiation or litigation

This is the second article of a two-part series on the ramifications of the federal Americans with Disabilities Act in intercollegiate athletics.

BY SALLY HUGGINS
Staff Writer

Mention the Americans with Disabilities Act, and most people will think of federal legislation that is designed to meet the needs of people who are restricted to wheelchairs.

But the law also covers conditions such as deafness and does so with guidelines that are less specific than those that are provided to accommodate the wheelchair-disabled.

For colleges and universities to determine if they are meeting the needs of those with disabilities such as deafness, they must look to the intent of the ADA, according to representatives of associations for the disabled.

The Texas Civil Rights Project, a watchdog organization, suggests that an institution must make a "good-faith effort" to meet the intent of the ADA.

"ADA language is not very specific, so you need to go with the overall purpose of the ADA -- to accommodate people with disabilities," said James C. Harrington, legal director for the Texas Civil Rights Project. "Ideally, people with disabilities should be integrated into the facility so that they can enjoy it with their family and friends."

Title III of the ADA, which deals with public accommodations, requires that facilities provide effective communication with people with hearing, vision or speech disabilities. Exactly what that means, however, is open to interpretation, which can be the path to litigation.

Indeed, the Texas Civil Rights Project recently sued the San Antonio Spurs of the National Basketball Association, seeking accommodation for deaf people attending Spurs games.

The group wanted the Spurs to provide "live-time captioning" at games. That would have involved a court reporter typing what is announced in the arena, with the words then appearing on the scoreboard.

But the ADA requires a facility to adapt only to the extent that it doesn't become an "undue burden." Harrington said that since the Spurs' scoreboard technology did not allow for captioning, providing an interpreter was the best alternative.

Harrington said the Spurs have agreed to that compromise; the Spurs did not return phone calls.

If the agreement has been reached, does that mean that this policy is now the norm for the NBA? The NBA says no, that the agreement does not extend beyond the Spurs and the litigants.

Can it be inferred that such a solution would be acceptable to all parties in similar cases? A recent case in Florida suggests not.

In a settlement reached recently with the Justice Department under the ADA, Walt Disney World in Orlando, Florida, agreed to provide interpreters for some of its attractions. Limited interpreting services began March 1; captioning for some attractions will begin in 1998.

While the National Association for the Deaf acknowledged the agreement as an initial step, it also noted that details of the agreement are discriminatory. In some situations, a family will be separated so that the deaf patron can be seated near the interpreter.

"If a deaf child and her hearing parents go to Disney, they will have to split up and will not be able to enjoy the event together as a family," said Nancy J. Bloch, executive director of the association. "The terms of this agreement as a whole do not constitute equal access....Disney has much to learn, and the proper way to accomplish this is with relevant input and ongoing involvement of members of the American deaf community."

After the ADA was adopted in 1990, the Architectural and Transportation Barriers Compliance Board (or access board) developed guidelines for accessibility. Those guidelines were adopted in 1991 and have not been changed since.

The present guidelines do not address accommodations such as captioning on scoreboards, said Ola (her complete name), public affairs specialist for the access board. But the guidelines currently are being reviewed with a proposal for revised guidelines to be released in early 1998. Captioning and similar issues could be addressed in the revision, she said.

Ola said regardless of what is in the guidelines, meeting the needs of the disabled can be achieved through consultation with community associations for the disabled.

"These are people who live with the issues daily," she said.

Harrington and another advocate for the deaf agreed.

"I would advise colleges to contact local groups, associations for the deaf, etc. Most states have a public agency (representing the disabled) and there are national agencies," he said. "Talk with a local group.

"Also a good resource often is the college itself, apart from the athletics department, because the college probably has had to deal with these issues in other areas."

Marc P. Charmatz of the National Association for the Deaf Law Center said that he believes that the key to staying out of court is demonstrating a sensitivity to the needs of the disabled.

"It is important not to take it for granted that something is not important to a deaf person," he said. Pregame and postgame interviews that are broadcast over the public-address system are as important to a deaf person as are fouls and announcements during a game, he said.

"The more information you can put on the screen, the better," Charmatz said. "It's better for everyone, but it's crucial for the deaf. The more that is out there for the deaf, the better for everyone. You can get instantaneous captioning now. That helps everyone."

Ola noted that many facilities already provide captioning, using their electronic scoreboards to publish lyrics to songs during concerts or information during sporting events.

Captioning is an issue that is on its way to becoming a universal design -- something that is added for accessibility but benefits everyone, she said. When a crowd is loud, patrons can read what is being announced.

In the Spurs case, Harrington said the ideal solution was the scoreboard because it did not require the deaf to be segregated from the rest of the audience. But because the reasonable solution in that case was an interpreter, the deaf could be accommodated in a separate section where they could see the interpreter.

"The ADA requires a facility to adapt to the extent that it doesn't become an undue burden," he said. "If a scoreboard can be adapted, they should do that. Interpreters are an alternative."

Lawsuits concerning ADA violations often result from a complaint. In such cases, Harrington and John L. Wodatch, chief of disability rights section of the Civil Rights Division of the U.S. Justice Department, said the first objective is to accommodate the disabled. If that can be done through negotiations rather than through litigation, so much the better.

"We are on the lookout for problems, but we also receive complaints," Harrington said. "We will file a lawsuit or work with (the party), depending on who is involved. If a school has worked with us in the past, we will talk to them first to resolve the issue."

Charmatz said his association doesn't search for violations because so many complaints are brought to it. The association's Law Center has as its purpose bringing significant cases in federal courts to establish legal principles of equal access and nondiscrimination. The center filed lawsuits in the Disney case in addition to the complaints brought by the Justice Department.

Complaints of Title III violations may be filed directly with the Justice Department. The department is authorized to bring a lawsuit where there is a pattern or practice of discrimination in violation of Title III, or where an act of discrimination raises an issue of general public importance.

The Justice Department does not file a lawsuit unless it first has tried to settle the issue through negotiation. The department takes legal action only when entities continue to resist complying with the law, the department claims.

Title III also may be enforced through private lawsuits such as that brought by the Texas Civil Rights Project and the Law Center. It is not necessary to file a complaint with the Justice Department before going to court.