Justice Dept. Guidance for Schools of “auxiliary aids and services” for students with disabilities

New Justice Department Guidance Provides Useful Roadmap for Public and Private Schools on Their Effective Communication Obligations

Published by Seyfarth Shaw LLP |December 10th, 2014article by Eden Anderson

Last month, the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) issued a joint guidance Under Title II of ADA (the “Guidance”) explaining the obligation of public schools to provide “auxiliary aids and services” to ensure effective communication with students with hearing, vision, or speech disabilities. Although this Guidance applies to state and local government entities under Title II of the ADA, private schools have very similar obligations under Title III of the ADA. Thus, the Guidance is useful for all educators and administrators of both public and private schools.  Below are some highlights from the Guidance.    

• Effective communication must be provided to any member of the public who seeks out the school’s services, programs, or activities (e.g., for parent-teacher conferences, open houses, performances).  In addition, the effective communication obligation is not limited to the classroom, but extends to all of a student’s school related communications, including school sponsored extracurricular activities. 
• A case-by-case analysis must be made in determining an appropriate auxiliary aid or service.  Schools must consider “the communication used by the student, the nature, length, and complexity of the communication, and the context in which the communication is taking place.” 
• Any interpreter must be “qualified,” meaning able to interpret both receptively and expressively.  Schools cannot rely on staff who are not “qualified” interpreters, nor on students to provide their own interpreter (unless the student makes such a request or in specified emergency situations). 
• Schools must give “primary consideration” to the student’s requested auxiliary aid or service, and are “strongly advised” to make clear in discussions with the student/parent that the school will bear the complete cost.  “Primary consideration” means that the school must honor the student’s request, unless the school can “prove that an alternative auxiliary aid provides communication as effective as that provided to students without disabilities.”  This is one instance where the rules for public vs. private schools are different.  Under the ADA Title III regulations that apply to private schools, the school is only required to consult with the individual requesting the service about his or her preferred method of communication but “the ultimate decision as to what measures to take rests with the public accommodation.”
• To the extent a school believes that the provision of a particular auxiliary aid or service would “fundamentally alter the nature of the service, program, or activity” or result in “undue financial and administrative burden,” it is the school’s burden to establish such defenses.  The school must explain its reasoning in writing to the student and must still provide an alternative auxiliary aid or service that ensures effective communication to the maximum extent possible.  The Guidance expressly cautions that “[c]ompliance  . . . would, in most cases, not result in undue financial and administrative burdens.” 
• Auxiliary aids and services must be provided in “accessible formats, in a timely manner (“as soon as possible”), and in such a way to protect the privacy and independence of the student.”  Schools are “strongly advise[d]” to keep students/parents informed of the status of any request or delay in compliance. 

Edited by Minh N. Vu and Kristina Launey

http://www.adatitleiii.com/