DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools
Overview of Title II, Section 504, and the IDEA
Title II of the Americans with Disabilities Act (Title II)
Title II and Section 504 are similar, but not identical in their scope. They both use the same definition of disability; they both protect students with disabilities regardless of their eligibility for special education and related services under the IDEA; and they both apply to every public elementary and secondary school in the country. Nonetheless, because the statutes vary in certain respects, they are each addressed separately.
Title II prohibits disability discrimination against qualified individuals with disabilities by all state and local governments, regardless of whether or not those entities receive Federal funds.8 Title II applies to all programs, activities, and services of public school districts, including all public schools within school districts. This includes all public charter schools and magnet schools. Under the ADA (including Title II), a disability is (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment.9
Public school students with disabilities are covered by Title II regardless of their eligibility for special education and related services under the IDEA. The United States Department of Justice (DOJ) is responsible for implementing interpretive regulations for Title II, which are found in the Code of Federal Regulations (C.F.R.) at 28 C.F.R. pt. 35. These regulations require, among other things, that public schools provide students with disabilities an equal opportunity to participate in all school activities and that public schools ensure, through the provision of auxiliary aids and services, that communication with students with disabilities is as effective as communication with students without disabilities.10 Both DOJ and the Office for Civil Rights (OCR) in the United States Department of Education (ED) have responsibility for enforcing Title II and its regulations in public elementary and secondary education; this includes enforcing the Title II rights of IDEA‐eligible students.
8 Under Title II, “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104.
9 42 U.S.C. § 12102(1). The ADA Amendments Act of 2008 amended the definition of disability for Titles I, II, and III of the ADA as well as Section 504. Pub. L. No. 110‐325, 122 Stat. 3553 (2008). For a discussion of the United States Department of Justice’s (DOJ’s) interpretation of the changes to the definition, please see DOJ’s Notice of Proposed Rulemaking to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839 (January 30, 2014). See also the Equal Employment Opportunity Commission’s final ADA title I rule incorporating the ADA Amendments Act of 2008, 76 Fed. Reg. 16977 (March 25, 2011), 29 C.F.R. pt. 1630.
10 28 C.F.R. §§ 35.130 and 35.160. While Title II’s nondiscrimination mandate goes beyond requiring effective communication, this document only addresses the Title II effective communication requirements for public school students.
Section 504 of the Rehabilitation Act (Section 504)
Section 504 prohibits disability discrimination against qualified individuals with disabilities by recipients of Federal financial assistance.11 Because all school districts receive funds from ED, Section 504 applies to all the operations of all public school districts, including all public schools within those school districts. All public charter schools and magnet schools are subject to Section 504 regardless of whether they are, for example, a school within a school district that receives ED funds or are recipients themselves. Under Section 504, as under Title II, a disability is (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment.12
Public school students with disabilities are covered by Section 504 regardless of their eligibility for special education and related services under the IDEA. OCR is responsible for issuing regulations implementing Section 504 for recipients of financial assistance from ED, which are found at 34 C.F.R. pt. 104. These regulations require, among other things, that public school students with disabilities have an equal opportunity to participate in school and that they receive FAPE consisting of regular or special education and related aids and services designed to meet their individual educational needs as adequately as the needs of nondisabled students are met.13 OCR enforces Section 504 and its regulations in public elementary and secondary schools; this includes enforcing the Section 504 rights of IDEA‐eligible students.
In the remainder of this document, Section 504 is not separately discussed. As a general rule, violations of Section 504 also constitute violations of Title II; therefore, discussing the Section 504 protections separately would not provide additional guidance to public schools, all of which are subject to both laws. Moreover, in determining whether a recipient’s communication with an individual with a disability complies with ED’s Section 504 general nondiscrimination provisions, where applicable, OCR generally would not find a violation if a recipient complied with the requirements embodied in Title II’s effective communication regulation.14
Similarly, the vast majority of students with hearing, vision, or speech disabilities are IDEA‐ eligible, and one way of meeting a school’s Section 504 FAPE requirements is to comply with the IDEA FAPE requirements.15 To address the Section 504 FAPE requirements would therefore not provide additional guidance to public schools in the most common situations.
12 29 U.S.C. § 705(9)(B), (20)(B). The ADA Amendments Act of 2008 amended the definition of disability that applies to Section 504. For a discussion of OCR’s interpretation of the changes to the definition, please see the January 19, 2012, Dear Colleague Letter and Frequently Asked Questions document (FAQ) entitled “Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools,” issued by the United States Department of Education’s (ED’s) Office for Civil Rights, available on ED’s website at http://www2.ed.gov/about/offices/list/ocr/letters/colleague‐201109.html (Dear Colleague Letter) and http://www2.ed.gov/about/offices/list/ocr/docs/dcl‐504faq‐201109.html (FAQ).
13 34 C.F.R. pt. 104, Subparts A and D.
14 34 C.F.R. § 104.4. In situations where the Section 504 general nondiscrimination provisions apply, OCR generally would look to the effective communication standards in the Department’s Section 504 regulation for Federally conducted programs, 34 C.F.R. § 105.40. These standards are similar to those found in the Title II effective communication regulation.
15 34 C.F.R. §§ 104.33(b)(2), 104.35(d), 104.36.
Individuals with Disabilities Education Act (IDEA)
Part B of the IDEA provides Federal funds to State educational agencies and through them local educational agencies (hereinafter school districts), for the purpose of assisting them in providing FAPE to eligible children with disabilities through the provision of special education and related services.16 States receiving IDEA funds must ensure that school districts locate, identify, and evaluate children who are suspected of having disabilities and who need special education and related services. Each eligible child must have a written individualized education program (IEP), developed by an IEP Team, that, among other things, includes a statement of the special education and related services that the school district will provide to the child.17 School districts also must ensure that FAPE is provided in the least restrictive environment to all eligible children with disabilities. These IDEA protections also apply to children with disabilities who attend public charter or magnet schools.18 Among other things, the IEP must address the communication needs of eligible children. The Office of Special Education Programs (OSEP) in ED’s Office of Special Education and Rehabilitative Services (OSERS) administers the IDEA, and OSEP’s implementing regulations for Part B are found at 34 C.F.R. pt. 300.
The IDEA does not restrict or limit the rights, procedures, and remedies available under the U.S. Constitution, the ADA, Section 504, or other laws protecting the rights of elementary and secondary students with disabilities, except that before filing a case in Federal or State court seeking relief that is also available under the IDEA, the child’s parents must generally go through (“exhaust”) the IDEA administrative hearing procedures.19
17 34 C.F.R. § 300.320.
18 34 C.F.R. § 300.209(a).
19 20 U.S.C. § 1415(l). For further discussion on the IDEA exhaustion requirement, please refer to Q&A 18.
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