Schools need to look to the requirements of two federal statutes鈥攖he Individuals with Disabilities Education Act and Title II of the Americans with Disabilities Act鈥攚hen devising ways to support students with vision, hearing or speech impairments, according to a released today by the Departments of Education and Justice. (A list of and a accompanied the letter.)
The IDEA guarantees students with disabilities a 鈥渇ree, appropriate public education.鈥� The Americans with Disabilities Act spells a different requirement, according to the guidance: schools, without charge, must 鈥渆nsure that communication with students with disabilities is as effective as communication with students without disabilities, giving primary consideration to students and parents in determining which auxiliary aids and services are necessary to provide such effective communication.鈥�
In many cases, meeting a student鈥檚 needs under the IDEA will satisfy the requirements of the ADA鈥攂ut not always, the guidance notes. In such cases, schools are required to provide what parents request, unless they can show that a different aid or device is just as effective, or that providing that aid or device would represent a fundamental alteration of the school鈥檚 program or an undue financial burden. (The school would still be required to take steps to ensure effective communication.)
Parents can go to court under Title II to challenge a school鈥檚 decision, but if the student is eligible for services under the IDEA, parents must exhaust all those remedies first before filing a lawsuit.
The Department鈥檚 guidance spins out from In the cases, two students with hearing impairments in separate school districts asked for Communication Access Realtime Translation, or CART. Also known as 鈥渞eal-time captioning,鈥� the service requires a stenographer in the classroom whose transcriptions appear on a computer screen.
The districts said the students were making good academic progress without the service, and administrative law judges and the lower courts concurred.
But, in a reversal that covered both cases, the U.S. Court of Appeals for the 9th Circuit in San Francisco said that the ADA creates additional requirements for school districts in addition to those imposed by the IDEA. (In a friend-of-the-court brief, the Department of Justice .) In March, the U.S. Supreme Court declined without comment to hear an appeal from the school districts.
The FAQ included with the guidance notes that these decisions must be made on a case-by-case basis, and they may evolve over time as students advance through the grades. The guidance also says that if the school provides aids or services to students that are not written into that student鈥檚 individualized education program, the school cannot use federal special education dollars to pay for those services.