COMMUNICATION: Now that I Have Your Attention…

On November 12, 2014, the United States Department of Education, Civil Rights Division (“ED”) and the United States Department of Justice, Office for Civil Rights(“OCR”) jointly issued a letter reminding public school districts of their obligation to provide effective communication for students with hearing, speech and vision disabilities. The impetus for the letter was a 9th Circuit decision, K.M. v. Tustin Unified S.D., 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014).1 The K.M. court held that just because a school district has provided a student with a FAPE under the IDEA does not mean that a parent can’t assert lack of compliance with Section 504 and the ADA. K.M.’s discussion of the distinct rights implicated by the IDEA, Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) was reiterated in the ED/OCR letter.

K.M. contrasts the IDEA objective of promoting a student’s progress in education to Section 504 and the ADA objectives of equalizing the experience of disabled people with that of non-disabled peers. Section 504 and the ADA require students to be provided with communication services and auxiliary aids enabling them to experience communication – receptive and expressive – “as effectively” as their non-disabled peers. The IDEA looks only to whether a service or aid is necessary for a student to make progress, which the court called a “modest” standard.

Significantly, ADA and Section 504 give “primary consideration” to a request for a particular auxiliary aid, unless it can be shown that the accommodation would result in a “fundamental alteration” in the nature of the “service, program or activity” or impose “undue financial or administrative burdens.” 725 F.3d at 1096 This means that the person with a disability can request the service or aid that they believe will be “most effective.”2 Under the IDEA, the parent’s suggestions are considered by the team formulating a student’s IEP, but not necessarily given priority.

The ED and OCR letter referred to a separate document entitled “Frequently Asked Questions” for illustrations of circumstances where communications services or aids were requested and where the obligations under all of the statutes had to be considered. It isn’t clear how the letter’s pronouncements will affect students with dyslexia or auditory processing disorders; none of the scenarios presented in the FAQ document accompanying the ED/OCR letter involve a student with either of those disabilities.

K.M. also contains an important lesson about artful lawyering. The complaining party to a legal proceeding that gets to limit the issues. Here, that was done by crafting an argument that required a standard of proof that was different than the progress standard required by the IDEA. The result was a strong decision that led to a national reminder by the ED and OCR that different statutes contain different requirements. As for K.M., the appellate court sent the case back down to the lower court level for reconsideration in light of the appellate ruling.

1. Remember my last post? K.M.’s parents initiated a Due Process proceeding. That’s administrative. They ultimately appealed to the Federal District court. Article III of the United States Constitution confers the “judicial power” upon the Supreme Court and grants congress the right to establish “inferior” courts. Today’s federal district courts and federal courts of appeal are those “inferior” courts. When you see “cert. denied” in a case citation, that means that a request for Supreme Court review was denied.
2. Frequently asked Questions on Effective communication for Students with Hearing, Vision or Speech Disabilities in Public Elementary and Secondary Schools, p.6-8