Back in 1997, I wrote an article for the Florida bar Journal discussing the relationship between the Individuals with Disabilities in Education Act and the Americans With Disabilities Act. I have had the good fortune to see that article cited numerous times in various law review articles. If I were to update that article today, I would most certainly want to include K.M. v. Tustin Unified School District _F.3d_, 2013 WL 3988677 (9th Cir. August 6, 2013).
This case involved two students, both deaf, who wanted communication access real-time transcription translation services in the classroom so that they could access their educational programming without undue strain and consequent stress. Both students had their requests for such service to be included in their Individual Education Plan (IEP) denied by the school district. Both students exhausted their administrative remedies as required whenever a person subject to the Individuals with Disabilities in Education Act wants to file a § 504 and/or Americans With Disabilities Act claim. The District Court granted summary judgment to the school district saying that a valid IEP satisfied the school district’s § 504 obligations. It also said that § 504 and title II of the ADA were substantially similar statutes. Finally, it said that a valid IEP also satisfied title II of the ADA.
The Ninth Circuit disagreed with the District Court and how it reached its conclusions. Therefore, it reversed the grant of summary judgment and remanded the case back to the District Court for further proceedings. In reversing the District Court, the Ninth Circuit reasoned as follows. First, the Ninth Circuit began by talking about the statutory background of the various laws. With respect to the Individuals with Disabilities in Education Act, that law requires schools to make available to children with disabilities a, “free appropriate public education” tailored to their individual needs. With respect to a child who is deaf or hard of hearing, the team putting together the IEP is required to consider the child’s language and communication needs, opportunities for direct communication with peers and professional personnel in the child’s language and his or her way of communication, academic level, and full range of needs, including opportunity for direct instruction in the child’s language and way of communication. The team putting together the IEP also has to consider whether the child needs assistive technology devices and services. Finally, the Ninth Circuit notes that the Individuals with Disabilities in Education Act is heavy on process but only has a very modest substantive component to it. In other words the IEP that is developed only has to be reasonably calculated to enable the child to receive educational benefits. That is, an IEP is presumptively valid so long as it is reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
Second, the ADA while imposing less elaborate procedure requirements, establishes very different substantive requirements that are obligatory for public entities. The ADA (title II), as we know, prohibits a qualified individual with a disability from being excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or being subjected to discrimination by any such entity by reason of disability. The ADA specifically says that with respect to title II that the Department of Justice has the authority to issue regulations implementing title II of the ADA, and the court said that those regulations control unless they are arbitrary, capricious, or manifestly contrary to the statute.
Third, the Ninth Circuit proceeds to talk about how the Department of Justice in implementing title II, formulated one regulation, the “effective communication regulation,” (28 C.F.R. § 35.160), that spells out the communication-related duties public entities have towards persons with disabilities. Under that regulation, public entities have to take appropriate steps to ensure communication with applicants, participants, and members of the public with disabilities are as effective as communication with others. They also must furnish appropriate auxiliary aids and services when necessary in order to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the public entity. Just what are auxiliary aids and services? The definition of auxiliary aids and services in the regulation includes real-time computer-aided transcription services and it also forces the public entity to give primary consideration to the request of the individual with disabilities. All of which goes far beyond the requirements of the Individuals with Disabilities in Education Act. The court does note that public entity has the defense of undue burden and/or fundamental alteration of the program or activity but those defenses require a fairly high bar to achieve. Finally, the court summarized the relationship between the Individuals with Disabilities in Education Act and the ADA as being one where the Individuals with Disabilities in Education Act sets the floor of access to education for children with communication disabilities while title II of the ADA and its implementing regulation require public entities to take steps to not only make existing services accessible but make those services equally accessible to people with communication disabilities so long as no undue burden or a fundamental alteration of the program occurs.
Fourth, the Ninth Circuit notes that Congress made clear that the Individuals with Disabilities in Education Act does not prevent other additional constitutional federal statutory claims children with disabilities may have so long as, as mentioned above, administrative remedies through the Individuals with Disabilities in Education Act process are exhausted first.
Fifth, the Ninth Circuit said that the District Court got confused with a prior line of cases when it held that compliance with the Individuals with Disabilities in Education Act necessarily meant compliance with § 504 of the Rehabilitation Act. The Ninth Circuit said that its prior case law did no such thing. Rather, the prior case law said that provision of a free appropriate public education under the Individuals with Disabilities in Education Act satisfies the school district’s provision of a free appropriate public education under § 504 of the Rehabilitation Act, but that does not mean that particular line of cases precluded liability where other theories are involved, in this case the effective access communication regulation.
Sixth, the court dealt with causation. This particular discussion may in fact be the part of the decision that will have the biggest impact on title II ADA jurisprudence. It is also one that might be overlooked considering the overall context of the case and it shouldn’t be. More specifically, the Ninth Circuit noted that the Rehabilitation Act and the Americans With Disabilities Act (Title II) were significantly different from each other with respect to causation. In particular, the Rehabilitation Act requires that a person with a disability show the discrimination was solely by reason of their disability. Whereas, title II of the ADA only requires that the person with a disability show the discrimination was by reason of the disability. Therefore, the difference between the two statutes means that title II of the ADA establishes a motivating factor standard for causation for liability whenever two or more possible reasons for a decision exist. We have talked about mixed motive before on several different occasions, and I find this discussion by the Ninth Circuit in this case extremely significant. In particular, this reasoning gives plaintiffs the opportunity to say that even though the remedies for title II of the ADA are keyed into the Rehabilitation Act, that does not mean the causation standard for the two laws are the same even if the remedies are.
Seventh, while it is true that Congress said that the regulations implementing title II of the ADA needs to be consistent with the regulations implementing § 504 of the Rehabilitation Act, that consistency did not extend across the board to all § 504 matters. That is, Congress did not mandate that title II of the ADA regulations had to be consistent with § 504 regulations dealing with free appropriate public education.
Eighth, the Ninth Circuit said that after reviewing the statutory regulatory text dealing with free appropriate public education and the title II of the ADA communication requirements, you wound up in different places in several respects. First, the Ninth Circuit held that schools can be required under the ADA to provide services to deaf or hard of hearing students that are different or in addition to the services required by the Individuals with Disabilities in Education Act. Further, the ADA, unlike the Individuals with Disabilities in Education Act, mandates that a public entity give primary consideration to the request of the individual with disabilities. Second, the providing of additional services to deaf or hard of hearing students under title II of the ADA is mandatory unless it presents an undue burden or a fundamental alteration to the program or activity. Third, the effective communication regulation duly promulgated by the Department of Justice pursuant to their regulatory authority mandates that a person with a disability be given an equal opportunity to participate in and enjoy the benefits of the school’s program, a quite different animal than what is required by the Individuals with Disabilities in Education Act.
For all these reasons, the court held that the failure of an Individual with Disabilities in Education Act claim does not prevent a title II claim grounded on another theory, in this case the effective communication regulation.
Takeaways: We can take several things away from this case. First, beware of the over specialization of lawyers. That is, as lawyers, we are very specialized. However, sometimes that specialization means that other laws that very much impact on the situation may be missed or not taken fully into account. It also means that nonlawyers who are used to dealing with one set of laws may not realize that their other laws out there that they have to deal with as well. Accordingly, K-12 systems and their lawyers need to be aware that the Rehabilitation Act and the Americans With Disabilities Act give students with disabilities and their advocates additional options beyond just those of the Individuals with Disabilities in Education Act. Second, plaintiffs have been given a huge opportunity here to use this case to argue that whenever a claim under title II of the ADA is involved, causation is a motivating factor calculus rather than a but for calculus, especially where more than one cause is involved, which is usually the case.