On November 12, 2014, the U.S. Department of Education Office for Civil Rights (OCR) and the Department of Justice Civil Rights Division (DOJ) issued a Dear Colleague Letter and “Frequently Asked Questions” (FAQs) on the responsibility of public schools to ensure that communication with students with hearing, vision or speech disabilities is as effective as communication with all other students.
Three federal laws - the Individuals with Disabilities Education Act (IDEA), Title II of the American with Disabilities Act (ADA/Title II) and Section 504 The Rehabilitation Act of 1973 (Section 504) - all address the obligations of public schools to meet the communication needs of students. Each of the laws addresses these obligations in different ways.
IDEA requires that schools make available a free appropriate public education consisting of special education and related services to all eligible children with disabilities, which includes those with disabilities that result in communication needs.
Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aides and services. Compliance with IDEA satisfies Section 504’s requirements, and a violation of Section 504 is a violation of Title II. As a result, the Dear Colleague Letter and the FAQs primarily focused on IDEA and Title II.
The thrust of the Dear Colleague Letter and the FAQs emphasize that public schools must comply with both IDEA and Title II analysis in determining how to meet the communication needs of an IDEA eligible student with a hearing, vision or speech disability. In many situations, an Individualized Education Program under IDEA will also meet the requirements of Title II, however, that is not always the case. To comply with Title II, a school may in some instances be required to provide the student with auxiliary aides or services that are not required under the IDEA. The FAQs issued along with the Dear Colleague Letter provide greater detail and examples of the interplay between these federal laws. Importantly, these FAQs point out that Title II requires schools to give “primary consideration” to the auxiliary aide or service requested by the student with the disability when determining what is appropriate. This means that when determining what accommodation is appropriate for the student, a school must provide an opportunity for the student (or a family member) to request the aide or service that is believed to be necessary to provide effective communication. This is based on the belief that it is the person with the disability, or his or her family member, who is most familiar with the disability and can provide relevant information about which aids or services will be most effective. The public school must honor this choice unless it can prove that an alternative auxiliary aide or service provides communication that is “as effective” as the communication provided to students without disabilities. The determination of which auxiliary aides or services will provide effective communication must be made on a case-by-case basis. A school may deny a particular request only if it can prove that such an aide or service would result in a fundamental alteration in the nature of the service, program or activity, or in undue financial and administrative burden. This is a very heavy burden to meet.
As with other Dear Colleague Letters that have recently been issued by OCR and/or DOJ, schools should be mindful of the direction that is given. In determining services which may be appropriate for students with communication disabilities, it will be necessary to consider and document the fact that Title II’s obligations were also considered and addressed. Schools must also be aware that issues raised in Dear Colleague Letters are more likely to be subjects of OCR investigations and enforcement.
The Dear Colleague Letter and FAQs can be accessed at the website of the Office of Civil Rights.