The Department of Justice and the Department of Education released new guidance November 12 on the obligations of school districts to ensure effective communication for students with hearing, vision and speech disabilities.
The guidance, which includes an extensive frequently asked questions document and a fact sheet for parents, seeks to clarify the school district’s often overlapping obligations under the Individuals with Disabilities Education Act and the Americans with Disabilities Act.
The decision was sparked by a recent decision from the U.S. Court of Appeals for the 9th Circuit, in a case involving a California school’s obligation to provide a word-for-word transcription service, known as Communication Access Realtime Translation (CART), to deaf or hard-of-hearing students.
The school district argued that since it was not required to provide CART under IDEA, the student could not argue the school was to provide it under the ADA. The 9th Circuit disagreed, adapting the argument made by the Obama Administration in an amicus brief, that the IDEA and ADA claims must be analyzed separately, and that in some cases, the ADA provides more stringent requirements.
The IDEA, enacted in 1975, governs federal special education law. Under the IDEA, school districts must provide students enrolled in special education services an Individualized Education Plan calculated to provide “meaningful educational benefit,” as interpreted by the Supreme Court in its seminal Board of Education v. Rowley decision.
The ADA, enacted in 1990, provides an additional set of requirements for public entities, which includes all public schools. These requirements protect all students with disabilities, not just those receiving special education services.
The ADA’s standard for communication supports is higher than the IDEA’s “meaningful education benefits” standard.
Title II mandates that school districts ensure that communications with persons with disabilities are “as effective as” communications with the rest of the student population, as long as the supports do not result in a “fundamental alteration” to the service, program or activity, or represent an “undue” financial or administrative burden.
The guidance provides a range of examples to distinguish between these two standards, as well as guidance on how to remedy potential disputes.
The DOJ is the agency tasked with implementing regulations for Title II of the ADA, while the DOE is authorized to create regulations for enforcing the IDEA.