Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).

If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.

The Tustin Decision 

In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA.

We typically follow the Section 504 regulations that say that if a school district complies with the IDEA it has also complied with Section 504 and the ADA. But the Ninth Circuit disagreed, finding that the IDEA sets only a floor of access to education for children with communications disabilities. Section 504 and the ADA, however, require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities, insofar as doing so does not pose an undue burden or require a fundamental alteration of their programs.

Notably, the IDEA requires that an IEP team as a whole decide whether a certain assistive technology is needed, considering any specific preference of the student or the parent. But the Ninth Circuit pointed out that the ADA requires a public entity to not only consider the student’s and parents’ preference but to give primary consideration to the requests of the individual when determining what type of auxiliary aide or service is necessary. 

The OCR DCL 

The DCL issued by OCR was issued jointly with the U.S. Department of Justice (DOJ) and the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS). The DCL adopts the Tustin standard that auxiliary aids or services must be provided to a student if necessary to provide equal access to the student despite his communication disability. The only exception is if the school district can prove that the auxiliary aid or service would result in a fundamental alteration in the nature of its program or cause an undue burden. The DCL does not provide any criteria for what circumstances would constitute such a fundamental alteration or undue burden, but suggests that in most cases such a burden or hardship will not exist. Like the Tustin case, the DCL also states that under Section 504 and the ADA school districts must give “primary consideration” to the preferences of the student with a speech, hearing, or vision disability or her parent in determining what auxiliary aids and services to provide. The guidance also says that if a parent or student requests a specific aid or service, it must be provided by the school district in a “timely” manner, which apparently means “immediately.” Under the DCL, it does not matter if the student’s IEP team has considered or agrees that the aids or services are required under the IDEA.

The NSBA Letter 

It’s not news that the NSBA has a problem with the Tustin decision. Last year, the NSBA teamed up with two state school boards associations to ask the Supreme Court to take up and reverse the case. But in its letter, NSBA argues that OCR has made the situation significantly worse by improperly applying the standard adopted by the case to school districts across the country, even though courts outside of the Ninth Circuit have not agreed with the decision. NSBA also argues that the IEP process is essentially being replaced with parental preference, that the decision will lead to ineffective and potentially disruptive aids and services being required for students, and that schools will be administratively and financially burdened because there aren’t clear standards as to what is required. 

Takeaways for School Leaders 

Until OCR changes its stance, its DCL guidance will still govern its investigations of alleged Section 504 violations in school districts, so it’s important for school leaders to take note. In some cases, the services and aides a district provides a student with a communication impairment through an IEP will also satisfy the ADA. But districts should carefully consider their obligations under both Section 504 and the ADA because in some cases the statutes may require different actions.