DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools
Introduction
Students with disabilities, like all students, must have the opportunity to fully participate in our public schools. A critical aspect of participation is communication with others. Three Federal laws – the Individuals with Disabilities Education Act (IDEA),1 Title II of the Americans with Disabilities Act of 1990 (ADA) (Title II),2 and Section 504 of the Rehabilitation Act of 1973 (Section 504)3 – address the obligations of public schools, including charter schools, to meet the communication needs of students with disabilities, but do so in different ways.4 Public schools must comply with all three laws, and while compliance with one will often result in compliance with all, sometimes it will not.
This document focuses on the different approaches used by the IDEA on the one hand, and Title II on the other, to determine what a school must do for a student with a hearing, vision, or speech disability.5 While the IDEA requires that schools make available a free appropriate public education (FAPE), consisting of special education and related services, to all eligible children with disabilities (including those with communication needs), the Title II regulations have a specific effective communication requirement for individuals with disabilities.6 As a recent Federal court decision highlighted, the Title II requirement for effective communication differs from the IDEA requirements on this point.7
Public schools must apply both the IDEA analysis and the Title II effective communication analysis in determining how to meet the communication needs of an IDEA‐eligible student with a hearing, vision, or speech disability. In some instances, in order to comply with Title II, a district may have to provide the student with services that are not required under the IDEA. In other instances, the communication services provided under the IDEA may meet the requirements of both laws for an individual student. Schools need to be knowledgeable about requirements of both Federal laws in order to meet the communication needs of students with disabilities.
After a brief overview, this document outlines the factors applicable to the IDEA analysis and the Title II effective communication analysis in a series of questions and answers and provides additional information in two appendices. Appendix A contains hypothetical case studies that consider whether a student who is receiving special education and related services under the IDEA also needs different or additional auxiliary aids and services in order to meet the effective communication requirements of Title II. Appendix B provides additional clarification of IDEA terminology and requirements addressing the communication needs of IDEA‐eligible students with disabilities.
Title II and Section 504 also apply to individuals with disabilities who are not students, such as family members and members of the public seeking information from, or access to, the services, programs, and activities of the public school. These individuals also have a right to effective communication. This document briefly addresses those obligations as well.
1 20 U.S.C. §§ 1400‐1482. Throughout this guidance, references to the IDEA are to Part B of the IDEA. 20 U.S.C. §§ 1400‐1419; 34 C.F.R. pt. 300. The term “hearing, vision, or speech disabilities” is used throughout this document to reference disabilities for the purposes of Title II of the Americans with Disabilities Act of 1990 and encompasses eligible disability categories in IDEA (e.g., deafness, hearing impairment, deaf‐blindness, visual impairment including blindness, speech or language impairment). For additional clarification of IDEA terminology and requirements related to addressing the communication needs of students with disabilities, see Appendix B below. For general information regarding IDEA requirements, please refer to http://idea.ed.gov/.
2 42 U.S.C. §§ 12131‐12134; 28 C.F.R. pt. 35. For general information about the ADA, please see www.ada.gov.
3 29 U.S.C. § 794; 34 C.F.R. pt. 104. As noted below, this document focuses on the IDEA and the specific Title II regulatory requirements for effective communication, rather than on Section 504. In general, a violation of Section 504 is a violation of Title II. Additionally, the vast majority of students covered by this guidance will be IDEA‐eligible, and for these students, the Section 504 analysis concerning a free appropriate public education will align with the IDEA.
4 While this document does not specifically address children with disabilities in preschools, the Title II provisions discussed in this document apply equally to children with disabilities attending public preschools. In addition, to the extent consistent with State law or practice, or order of any court, respecting the provision of public education to children of those ages, the IDEA requires school districts to make a free appropriate public education available to eligible children aged three through five, inclusive. 20 U.S.C. § 1412(a)(1); 34 C.F.R. §§ 300.101‐300.102. See also, 20 U.S.C. § 1419 (preschool grants).
5 This includes a student with multiple disabilities who has a hearing, vision, or speech disability.
6 28 C.F.R. § 35.160.
7 The United States Court of Appeals for the Ninth Circuit addressed the IDEA and Title II effective communication obligations in a case entitled K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014), available at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐ 56259%20web%20revised.pdf. The United States government filed an amicus (friend of the court) brief in this case when it was before the Ninth Circuit; that brief can be found on the United States Department of Justice website at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.
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