In November, 2014, the U.S. Department of Justice (“DOJ”) and the U.S. Department of Education, Office for Civil Rights (“OCR”) issued a FAQ guidance related to effective communication for students with hearing, vision, or speech disabilities in the public school setting. This guidance, which can be found at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pdf, provides valuable information for school districts and charter schools struggling with the extent of their obligations related to students with these uniquely challenging disabilities. Because of legal obligations to educate children with disabilities with their non-disabled peers to the greatest extent possible, school district administrators and teachers work with greater numbers of children with hearing, vision, and significant speech impairments than ever before. The DOJ and OCR have issued this document to provide guidance on the intersection of three major disability laws that create affirmative obligations on the part of school districts to provide auxiliary aids and services to accommodate children with disabilities: the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and the Rehabilitation Act of 1973 (“Section 504”).
Each of these laws create particular obligations on the part of public schools in educating children with disabilities. (For more information on these three laws, see my previous blog). Students with hearing, vision, and speech impairments often need accommodations that will enable them to communicate effectively so that they can participate fully in the school experience, which includes instruction, field trips, extracurricular activities offered by the school, and interaction with their peers. As the joint DOJ/OCR guidance points out, there will be times when the effective communication analysis under Title II of the ADA/Section 504 and the IDEA will differ and compliance under the IDEA will not necessarily mean compliance under the ADA. In fact, in 2013, the Ninth Circuit Court of Appeals held in K.M. v. Tustin Unified School District, 725 F. 3d 1088 (9th Cir, 2013), that though the District had met its obligations under the IDEA, it had not met its obligations under Title II of the ADA.
Title II of the ADA and Section 504 require that schools provide disabled students auxiliary aids and services for effective communication if necessary to ensure that students have an equal opportunity to participate in all school activities. Auxiliary aids or services include things such as qualified interpreters on-site or through video remote interpreting, real-time computer aided transcription services (known as CART), assisted listening devices, readers, audio recordings of written materials, written versions of orally transmitted information, and large print materials. (See 28 C.F.R. § 35.104). A district may be required to provide these types of items, if necessary for effective communication with students with hearing, vision, or speech impairments, under the ADA even where the IDEA would not require that they be provided.
For instance, in the area of “qualified interpreters,” the two laws may diverge and schools should be aware that they will be held accountable for meeting the more onerous obligations of Title II. Title II requires that where interpreters are necessary for effective communication, those interpreters must be “qualified.” Interpretation is a complex method of communication and demands that the interpreter be receptively and expressively fluent in the languages of both the individual with the disability and the non-disabled speaker. Many, but not all, individuals who are deaf in the United States speak American Sign Language (“ASL”). ASL is a unique language with its own syntax and structure; it is NOT a visual form of English. Therefore, for many students whose first language is ASL, an “interpreter” who simply fingerspell English words into ASL will not be considered, under a Title II analysis, a qualified interpreter. The Arizona Administrative Code, R7-2-622, sets out the requirements for an Educational Interpreter. Schools should be aware that where an IEP may call for a teacher or aide to do certain things to facilitate communication, those actions may not meet the Title II requirements for effective communication.
The ADA and IDEA also impose different requirements in determining what type of accommodation the student will receive. The IDEA empowers the IEP team to make decisions about how a student will access his/her free appropriate public education and the IEP team is made up of school personnel and the student’s parents and/or student. At times, what parents/students want will be overridden by the IEP team as a whole. Title II of the ADA, however, expressly requires that a public school give “primary consideration” to the particular auxiliary aid or service requested by the person with the disability. Therefore, a school district should consider consulting legal counsel before denying a student’s request for a particular type of auxiliary aid or service.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Education Law Attorney, Cathleen M. Dooley at 480.461.5331, log on to udallshumway.com, or contact an attorney in your area.
 Because law and regulation tells us that Section 504 must be interpreted and implemented in accordance with the ADA, this article will conflate the discussion of these two laws.