Special Education Update: Title II Requirements for Students with Hearing Impairments

A recent Ninth Circuit decision has made a distinction between a school district's provision of a "basic floor of opportunity" to students with disabilities under IDEA (Individuals with Disabilities Education Act) and the satisfactory requirements of Title II of the ADA (Americans with Disabilities Act).  Title II requires districts to take appropriate steps to ensure that communications with individuals with disabilities are "as effective as communications with others".

The 9th Circuit observed Title II requires districts to provide appropriate auxiliary aids and services, including "real-time computer-aided transcription services," when necessary to provide individuals with disabilities an equal opportunity to participate in district programs and activities.  The court noted that Title II's effective communication requirement differed significantly from the IDEA's free and appropriate public education (FAPE) requirement:  "[t]he result is that in some situations, but not others, [districts] may be required under the ADA to provide services to deaf or hard-of-hearing students that are different than the services required by the IDEA," and thus rejected the notion that the success or failure of an IDEA/FAPE claim in any particular case could not dictate the success of a Title II claim.

In the specific case on which the decision was made, the hearing officer had decided that the student "hears enough of what her teachers and fellow pupils say in class to allow her access to the general education curriculum" and "did not need [specific additional technology services] to gain educational benefit."  The parents appealed that decision to the District Court, which denied the additional services on the ground that "the IDEA does not require States to 'maximize each child's potential . . . .'"  The same court relied on an earlier decision in the companion case to hold that any ADA claims were doomed when a plaintiff could not show a deprivation of FAPE.  The Appellate decision focuses on undoing that narrow question of whether a school district's IDEA compliance automatically establishes compliance with the Title II effective communication obligations.

This Title II "effective communications" regulation has two requirements, first, that public entitles must "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others"; and second, that public entities must "furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service program, or activity conducted by a public entity."  Title II defined "auxiliary aids and services" as including, inter alia, "real time computer-aided transcription services" and "videotext displays"; and states that "[i]n determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities."

The limit on this seemingly broad (and costly) provision requirement is also found in Title II:  Notwithstanding any other requirements in the regulations, a public entity need not, under Title II, "take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens."  The school district bears the burden of proving that a proposed action should be limited under this criteria, with a strict outline of how that is done, including that the decision be made by the head of the public entity or his or her designee, and include a written statement of the reasons for reaching that conclusion.

The Department of Justice is the agency charged with promulgating regulations to  implement Title II, and provided guidance through an amicus brief explaining that the ADA effective communication obligation "is limited to the provision of services for existing programs; the ADA does not require a school to provide new programs or new curricula".

It will become clearer as this case and others proceed under this line of reasoning, exactly what limits will be placed on the requests parents and students can make under Title II and the analogous defenses school districts have in fundamental alteration and undue burden.  As always, maintaining detailed IEP meeting notes of these discussions and considerations will be of invaluable import.  We will continue to update you on this and other important special education considerations, and don't hesitate to contact us with any specific questions regarding effective implementation of IDEA and ADA regulations with students having hearing impairments and disabilities.

* Special thanks to Donna M. Davis, who contributed substantial work to the research and drafting of this article.