Department of Justice and Department of Education Issue New Guidance

The U.S. Department of Justice's Civil Rights Division, together with the U.S. Department of Education's Office for Civil Rights and Office of Special Education and Rehabilitative Services, recently issued joint guidance about the rights of public elementary and secondary students with hearing, vision or speech disabilities under Section 504 and Title II of the Americans with Disabilities Act.

The November 12, 2014 Dear Colleague letter is short, but firmly set forth that public schools may not apply only the IDEA analysis, but also the Title II effective communication analysis in determining how to meet the communication needs of  Section 504 and/or  IDEA-eligible students with a hearing, vision, or speech disability.  Speaking of these additional rights, the letter states that "in order to comply with Title II, a school may have to provide the student with auxiliary aids or services that are not required under the IDEA."

The letter's attached "Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools" (FAQs) explains more fully the responsibility of public schools to ensure that communication with students with hearing, visions, or speech disabilities is as effective as communication with all other students.

The guidance represents another layer of the organized movement over the recent year, since the U.S. Government's filing of an amicus (friend of the court) brief in the case of K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), where the federal government, at least through the executive branch, has broadened the concept of "residual rights" under Section 504 and Title II, and moved away from their previous guidance that the IDEA covers the "whole child."

The effective communication standard is spelled out in the first question and answer: "Title II and its implementing regulations require public school districts to ensure that communication with students with hearing, vision, or speech disabilities is as effective as communication with students without disabilities."  (Emphasis added).  The FAQs describe the appropriate process that schools should undertake in considering communication interventions and devices.  And then, after complying with these processes, only if a public school district can prove that providing a particular auxiliary aid or service would be a fundamental alteration in the nature of a service, program, or activity, or be an undue financial and administrative burden, does the school does not need to provide that auxiliary aid or service.

In addition to making you aware that this guidance is out there, and encouraging you to review the FAQs at  http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pdf -- we encourage District administrators to review their Section 504 and Title II policies and procedures, and have a conversation with the coordinators of these programs and special education programs to be sure that appropriate and reasonable practices are being carried out.  These areas are easy targets for formal complaints and lawsuits by parents, but Districts that are knowledgeable of the procedures and reasonable in developing relationships with parents and families of students with disabilities can frequently avoid these expenses and usually prevail if the issue reaches this point.