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Gati and Lewis Appellate Decisions

March 25, 2019 by William Goren 1 Comment

Baseball season is about to get up and running. Good luck on your team for this year. In my case: the Chicago Cubs are expected to be good; the Chicago White Sox not so good; and the Atlanta Braves, anybody’s guess. Also, hope everyone is having fun if not success with the NCAA tournament. Currently, in a bragging rights pool run by my brother, I find myself in last place just behind my daughter, who watches absolutely zero basketball, though she did just finish a season of organized basketball in our local recreation league.

Today’s blog entry are appellate updates on two cases I have blogged upon previously. In the first, Lewis v. City of Union City, Georgia, the 11^th Circuit came down with a published decision on March 21, 2019. In the second, Gati v. Western Kentucky University, decided January 29, 2019, the Sixth Circuit came down with an unpublished decision.

As usual, the blog entry is divided into categories and they are: Lewis v. City of Union City, Georgia; Gati v. Western Kentucky University; and Gati takeaways. The reader is free to focus on any or all of the categories.

Lewis v. City of Union City, Georgia

Previously, I blogged on this case here. My blog entry focused on the ADA piece of the case. That part of the case still remains at the lower court level. What was appealed was the civil rights (title VII), part of the case. The question on appeal was just when has the plaintiff put forth appropriate comparators. The 11^th Circuit concluded that a plaintiff put forth an appropriate comparator when the comparators are similarly situated in all material respects. In determining whether a comparator is similarly situated in all material respects, the 11^th Circuit suggested some factors to consider with respect to any comparator: 1) he or she will have engaged in the same basic conduct or misconduct as the plaintiff; 2) he or she will been subject to the same employment policy, guideline, or rule as the plaintiff; 3) he or she will ordinarily, although not invariably, have been under the jurisdiction of the same supervisor as the plaintiff; and 4) he or she will share the plaintiff’s employment or disciplinary history. The list does not appear to be exclusive because the court uses the phrase, “ordinarily, for instance, a similarly situated comparator-.” Finally, a valid comparison will not turn upon formal labels, but rather on how substantively alike the situations are. That is, the plaintiff and his or her comparators must be sufficiently similar, in an objective sense. That is, plaintiff and his or her comparators cannot reasonably be distinguished.

With respect to the ADA, I don’t see this case having much of an impact. Due to the nature of how the ADA works, you don’t often see comparators an issue in ADA cases. As mentioned previously, the ADA portion of the case is still in the District Court. Also, there is now a Circuit court split on the comparator issue. So, expect to see that question go to the United States Supreme Court at some point.

Gati v. Western Kentucky University

I previously blogged on this case here. Here are the key aspects of the Sixth Circuit’s reasoning affirming the District Court.

A prima facie case for title II discrimination involves showing: 1) plaintiff has a disability; 2) plaintiff was otherwise qualified; and 3) plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of her disability.
A person with a disability is otherwise qualified if he or she can meet a program’s necessary requirements with reasonable accommodations.
The ADA does not require an educational institution to lower or substantially modify its standards when making modifications. Rather, only reasonable not fundamental adjustments are required.
The federal judiciary is ill-equipped to evaluate the proper emphasis and content of a school’s curriculum and should afford a university’s judgment and discretion great respect. That is, in assessing the importance of academic requirements and healthcare programs especially, where the conferral of a degree places the college or university’s signature upon the student as qualified to practice, the judiciary ought only to reluctantly intervene.
Plaintiff bears the initial burden of proposing an accommodation and proving that it is reasonable.
Western Kentucky’s faculty did not find the plaintiff’s proposed accommodations reasonable.
Looking to title I cases, an employee cannot force his or her employer to provide a specific accommodation if the employer offers another reasonable accommodation.
Again, looking to title I cases, if an employee rejects a reasonable accommodation, then he or she is no longer a qualified individual as a matter of law.
With respect to the interactive process, even if an interactive process is required in an academic setting, that process is a means to find a person with the disability reasonable accommodations and is not an end in and of itself. Here, negotiations broke down when the plaintiff refused to consider the University’s proposed accommodations and transferred to another school.
A failure to engage in the interactive process only becomes an independent violation of the ADA when the plaintiff establishes a prima facie showing that he or she proposed a reasonable accommodation, which was not the case here.

III

Gati Takeaways

With respect to academic deference and disability discrimination, courts are not always going to be so nice to the University, such as discussed here. From the University perspective, it really helps if the faculty has done its homework with respect to what are the essential eligibility requirements of the program. We discussed that process here.
The court says that the plaintiff bears the initial burden of proposing the accommodation and proving that it is reasonable. I always have trouble with this formulation because undue burden and fundamental alteration are affirmative defenses. Also, what is reasonable under the ADA is whatever does not constitute an undue burden or a fundamental alteration. So, does this formulation of the court’s mean that undue burden and fundamental alteration are not affirmative defenses and is something the plaintiff has to prove?
The University did have its faculty consider whether they could make the proposed accommodation work without fundamentally altering the program, and the faculty decided that it could not.
As we have mentioned previously, such as here, failure to engage in the interactive process is not always a separate cause of action depending upon the jurisdiction. In the Sixth Circuit, it appears that failure to engage in the interactive process can be an independent violation of the ADA where the plaintiff proposes a reasonable accommodation.
The person who blows up the interactive process bears the responsibility, which is the same rule in title I cases.
U.S. Department of Education’s Office of Civil Rights has said for years that failure to engage in the interactive process is an independent violation of the ADA. There is also this case holding that colleges and universities have an obligation to engage in the interactive process with respect to their students. That said, interactive process is a title I construct. Even so, I do not understand how reasonable modifications under title II and under title III are even possible to determine without engaging in an interactive process first. If you subscribe to the publication Disability Compliance for Higher Education put out by Wiley, Professor Masinter of Nova Southeastern Shepard Broad School of Law in its April 2019 issue has an excellent article on OCR’s insistence, which may or may not be problematic, on the interactive process and why it is a good idea to use it even if it is a title I construct.
“Because,” is not the standard for causation in title II matters. Rather, the standard for causation is “by reason of,” which is different from the Rehabilitation Act, “solely by reason of” standard. We just discussed that here.
Otherwise qualified is not the term found in title II of the ADA as amended. Rather, that term is found in the Rehabilitation Act. The term in title II of the ADA is, “qualified.” Even so, the meaning of “otherwise qualified,” and, “qualified,” are identical.
Universities and colleges have a lot of programs where they signify a student is qualified to practice upon completion. You see this all the time with associate degrees and certificate programs (paralegals-an area I taught full-time in for 12 years, including running an ABA approved program for four years). So, any university or college doing our two-step process first should be in good shape if after they have completed our two-step process, it denies certain accommodation request on the grounds the program will be fundamentally altered.

Just When Does The Statute of Limitations Begin to Run in a Failure to Accommodate Claim and Other Issues

September 19, 2016 by William Goren 2 Comments

As everyone knows, my blog entries usually go up on Monday of a given week. Obviously, I missed last week. Last week my daughter was on break and my wife also took the week off. So, lots of family things going on. We also have out-of-town company in for an extended weekend, but I am getting a moment to myself. So, here goes. Today’s case discusses the issue of whether the failure to repeatedly provide reasonable accommodations to a student is a continuing violation or a series of discrete acts for purposes of the statute of limitations beginning to run with respect to the ADA and the Rehabilitation Act.

The case of the day is Keith-Foust v. North Carolina Central University, a decision from the U.S District Court of the Middle District of North Carolina that came down on August 11, 2016. As is usual, my blog entry is divided into categories: facts; court’s reasoning with respect to the statute of limitations involving claims against the law school; court’s reasoning regarding the Masters of Public Administration program; court’s reasoning regarding retaliation; court’s reasoning with respect to suits against individuals in their individual and official capacities; and (a huge amount of), takeaways. The reader is free to focus on any or all of the categories.

Facts

Keith-Foust, the plaintiff, is visually impaired, legally blind, as a result of glaucoma that she had while she was in her early 20s. Even so, she obtained two undergraduate degrees, business administration and also double majors in psychology and political science, from North Carolina Central University. In the spring of 2013, she applied for admission to North Carolina Central University’s School of Law. Despite her accomplishments and grade point average of 3.70, the school did not offer her unconditional admission even though it offered unconditional admission to non-disabled students with comparable credentials. Instead, they admitted her into its performance-based admission program, a program set up for those who show promise of success in law school but do not qualify for unconditional admission. That program is a two week program during which students attend class and then are evaluated for admission into the law school based upon their academic performance and professionalism during the program. Since 2008, the plaintiff had always required and utilized reasonable accommodation during her enrollment at North Carolina Central University and had met with the Office of Disability Services prior to the start of each semester. So, she did the same thing prior to starting the performance-based admission program. When meeting with the Office of Disability Services, she requested several different accommodations including: special seating in the front of the classroom; access to a table for her equipment; recorded lectures (for which she would provide the device); use of her personal laptop equipment; absences for medical appointments; electronic copies of handouts/class materials via email sent before class; an oral description of video shown in class as needed; a personal assistant in class to provide reader services; extended time on exams/tests (double time); separate setting for all exams/tests; use of the laptop to access assistive technology on tests; and extended time on assignments as needed (two additional days). North Carolina Central University did not object to any of the accommodations and orally agreed that the plaintiff was entitled to these accommodations during the performance-based admission program. North Carolina Central University determined that these accommodations were reasonable to afford the plaintiff equal access during the performance-based admission program and included the accommodations in an accommodation plan. The Director of Student Disability Services told the plaintiff that the accommodation plan was the official plan that would be used during her enrollment in the program and that she would be provided all of the accommodations under the plan. Further, although not among her requested accommodation, the Director Of Student Disability Services also told her that she would be provided a CCTV, but then took that away due to administrative issues and it was not included in the plan. Both the Director of Student Disability Services, on May 29, 2013, and the plaintiff, on May 31, 2013, signed the accommodations plan.

On May 30, 2013, the Associate Dean for Academic Affairs at the School of Law emailed the plaintiff a memorandum in which he explained how some but not all of her accommodations would be implemented. He did not mention the accommodations for providing for an oral description of video shown in class, access to a table for equipment, or providing for extended time on assignments. Further, unbeknownst to the plaintiff at the time, he responded to an email from one of her instructors stating that he purposely omitted from his memorandum the accommodation of extended time on assignments because he considered that to be an impractical request. He stated that it would be better to discourage her from the idea of receiving extended time on assignments so that it would not be an expectation later. He went on to say that if the plaintiff insisted on being provided the extended time on assignments, he would be forced to tell the plaintiff that he did not believe she was being realistic about what would be expected of her and that law school was not the route for her. It wasn’t until one year later that the plaintiff first learned of this email.

Once enrolled in the program, North Carolina Central University failed to accommodate her as it had agreed. More specifically: they did not provide her with special seating in the front of the class thereby requiring her to arrive earlier than other students in order to get preferential seating. She also had to ask classmates on occasion to relocate; the class was held in the moot court courtroom, which only had stadium seating, and the school failed to make available to her access to a table substantial enough in size to hold her equipment; professor did not consistently email her class materials before class, instead sometimes providing the material by a flash drive almost immediately before the start of class leaving little to no time to upload the materials and sometimes not even providing class material beforehand at all; during mandatory tutoring sessions, her tutor told her that they were not aware they needed to accommodate a blind student and conducted the sessions using class materials in an inaccessible format; she was required to complete a final oral argument during which she, like other students, was allowed to use notes. However, to do that, she required access to her personal equipment but the school failed to provide access to a table to hold her equipment, access to an electrical outlet in front of the classroom during her argument, and extended time to complete her oral argument; although she used a laptop for her exams as required under the plan, performance-based admission faculty transcribed the exams via handwriting so as to protect anonymity because other participants handwrote their exams. However, the staff members carelessly and inaccurately transcribed their answers and made costly grammatical errors not present in her typed exam answers.

Frustrated that the school did not provide her required accommodation during the program despite her diligent efforts, she met with the Chancellor of the School on or about Jun 20, 2013 to discuss her accommodation. She said that she needed access to a CCTV but the Office of Student Disability Services failed to provide it. About a week later, she received a letter from the Assistant Dean of Admissions at the School of Law informing her that she had been denied admission to the school of law based on the valuation from the performance-based submission program. That same day, the plaintiff emailed the associate Dean for Academic Affairs at the School of Law and the Chancellor of the school and requested a hearing and copy of her evaluation. The Associate Dean for Academic Affairs at the School of Law replied that there was not a formal appeal process or hearing from the decision not to admit her to the School of Law after her participation in the program and copied in the Chancellor, and the Dean of the School of Law, and the Assistant Dean of Admissions of the School of Law on that correspondence.

She then enrolled in the fall program of the school’s Masters of Public Administration. The school determined that she required various accommodation, including being provided electronic copies of class materials on a jump drive before the start of each class. Nevertheless, the school failed to provide the class materials until the plaintiff notified it on four separate occasions that she was not being provided the accommodation. Further, despite assurances to the contrary, a CCTV was not provided until months into the fall semester. Things didn’t get better when after taking leave during the fall of 2013, she reenrolled for the fall of 2014. She was supposed to receive several different accommodations, but was not provided with those accommodations as required until three weeks after the start of classes. She then took a medical leave on October 8, 2014, and did not return to the Masters of Public Administration program. She brought suit alleging violations of the ADA, §504 the Rehabilitation Act, retaliation, tortious interference with contract; fraud, negligence, negligent misrepresentation, and unfair and deceptive trade practices. The court wound up dismissing all of the claims except for the ADA and §504 claims.

Court’s Reasoning: Statute of Limitations Law School

The most applicable statute of limitations for the ADA in North Carolina is the Person with Disability Protection Act. That act provides a two-year statute of limitation for non-employment claims.
A civil rights claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.
In the Fourth Circuit, a defendant’s failure to accommodate constitutes a discrete act rather than an ongoing omission for purposes of the statute of limitations.
It would have been readily apparent to the plaintiff that North Carolina Central University was discriminating against her each time it failed to accommodate her. Therefore, each discrete act starts a new time period for that act.
The parties did not argue whether a failure to accommodate occurred each day during the performance-based omission program that North Carolina Central University failed to provide various accommodations in the accommodation plan or whether a failure to accommodate occurred only when the plaintiff renewed her request for an accommodation that was not being provided and the school subsequently failed to provide the accommodation. That is, for the action to accrue must the plaintiff have renewed her request for an accommodation in order to trigger a possible failure to accommodate?
The parties also did not argue that if the plaintiff was required to renew her request for accommodation and, if so, to whom much she had made that request to so that North Carolina Central University would be responsible for subsequent failure to accommodate.
Parties also did not argue that if a renewed request was required, whether both renewed request and the subsequent failure to provide the accommodation must occur on or after June 11, 2013 or whether it was sufficient that the subsequent failure to provide the accommodation occurred on or after June 11, 2013.
The memorandum from the Assistant Dean of the law school did not purport to change the accommodation plan and in any event, the plaintiff did not know until after she began the program what if any accommodation were not being provided, which of course turned out to be more than just the three accommodations missing from the memorandum. Further, the plaintiff did not allegedly learn of the email to her writing instructor until one year later. Accordingly, the intentional discriminatory act allegations stemming from the letter of the Assistant Dean was timely.

III

Court’s Reasoning MPA Program

Proving a case of discrimination under title II of the ADA or the Rehabilitation Act (assuming federal funds, which is the case here), involves showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified to receive the benefits of a public service, program, or activity; and 3) plaintiff was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.
With respect to the third prong, the Fourth Circuit has recognized three distinct grounds for relief and they are: disparate treatment; disparate impact; and failure to make reasonable accommodations.
More than enough facts were alleged to show that the school may be subject to a failure to accommodate claim. In particular, receiving materials immediately prior to class inhibited her ability to participate meaningfully in the class; she was unable to view course materials written on the board without the assistance of a CCTV, and since she was not provided with appropriate magnification equipment she suffered unnecessary strain on arise thereby requiring her to take leave from school during the fall of 2013. The failure at the start of both the fall 2013 and fall 2014 semester to provide electronic copies of course materials before class created an intolerable environment for the plaintiff and resulted in a medical leave from the program. The school’s failure to provide a CCTV until months into the fall 2013 semester prevented the plaintiff from doing much of the course material during that time and caused additional unnecessary strain on her eyes that caused her to take leave in the fall 2013.

Court’s Reasoning Retaliation

The court held that the facts as alleged did not rise to the level of retaliation because such conduct was not of the level that would deter a reasonable student from asserting her rights.

Court’s Reasoning regarding Suits against Defendants in Their Individual or Official Capacities

The ADA and the Rehabilitation Act do not provide causes of action against individual defendants in their individual capacities.
The plaintiff was not seeking injunctive relief from individuals in their official capacity, and therefore, the official capacity claims must fail.

Takeaways:

I am a big believer in utilizing the Office of Civil Rights of the Department Of Education whenever possible. The thing to keep in mind with OCR is that they have a six-month statute of limitations. There are many advantages to utilizing the Office of Civil Rights process. First, it isn’t litigation but much more administrative in focus. Second, it gives you an excellent chance to assess the strengths and weaknesses of your case as well as the strengths and weaknesses of the other side all for little cost. Third, it is essentially free discovery. Fourth, schools take Office of Civil Rights investigations very seriously. Finally, if the Office of Civil Rights does get involved it completely changes the dynamic of the case as now the federal government is involved rather than just a plaintiff with a disability whose resources are often not substantial. It seems to me, that a filing with the Office of Civil Rights would have been in order right after she was formally dismissed from the performance-based admission program. Same could be said for when she had to leave the Masters of Public Administration program.
The allegations, if proven, are fairly egregious and so one wonders whether the plaintiff does not have a good shot at proving deliberate indifference so as to be able to get damages (see this blog entry).
The plaintiff was very upfront about her disability and tried to get on top of it from the get go; a strategy that I highly recommend for students with disabilities. It isn’t a bad idea if such a person is running into obstacles to get legal counsel involved sooner than later.
It is a State-By-State situation as to what is the most applicable statute of limitations with respect to ADA/Rehabilitation Act claims. The statute of limitations can be all over the place, 1 to 3 years is not unusual. Most often times it seems to be two. In any event, legal research is needed every time the situation arises.
Continuing violation doctrine exists in theory but it is almost impossible to convince a court that such a violation exists. In the Fourth Circuit anyway, failure to accommodate claims are a discrete act.
In this case, the court held that the allegation did not rise to the level of retaliation. That said, one wonders why an interference claim was not alleged since that is a much lower standard than retaliation.
The overwhelming line of authority is that the ADA and the Rehabilitation Act do not provide a cause of action against individual defendants in their individual capacity.
Disability services need to take the lead. In particular, should a school of the University or faculty have a problem with the accommodation that disability services comes up with, they need to interface with disability services in order to straighten it out. Also, the programs of the particular school of the University would be wise to have its essential eligibility requirements in order as seen in this blog entry.
Whether a reasonable accommodation request is impractical is not the standard, rather the question is whether an undue burden or a fundamental alteration is involved.
I don’t understand the need for the exams to be handwritten in law school.
Never forget about the Job Accommodation Network.
An ADA compliance audit, which might cost you a decent sum of money up front, may save you a bunch of money later.
Make sure you have a §504/ADA coordinator as well as a §504/ADA grievance procedure.
The court said that it was readily apparent that the plaintiff was being discriminated against each time a reasonable accommodation request was denied. As someone who has represented persons with disabilities in graduate schools, I can say that to the student it isn’t necessarily so readily apparent. Oftentimes, to the student it appears that it is all part of a continuing process rather than separate items with their own cause of action. For example, see this unpublished case, Pollowitz v. University of Medicine and Dentistry, 2007 N.J. Super. Unpub. LEXIS 1269 (N.J. App. July 27, 2007), holding that depending upon what discovery revealed, a constructive discharge of a student by a university was a possible cause of action and that the actions leading up to that could be a continuing violation.
Considering the open questions, it may make sense if you are representing a plaintiff and the school has not been forthcoming with its reasonable accommodations, to make the renewal request. Once that happens, it may make sense to confirm after a period of time, that they have no intention of following through on the accommodations. That way, it is pretty clear as to when the statute of limitations starts to run.
The fact pattern of this case is such that one wonders how the burden of proof will work. See this blog entry .
The prima facie case for title II of the ADA and for §504 the Rehabilitation Act cannot, despite the court’s assertion to the contrary, be the same as causation is different. That is, causation under title II of the ADA is “by reason of,” and causation under §504 the Rehabilitation Act is, “solely by reason of.” The term used by the court “on the basis of,” is actually not a title II or §504 of the Rehabilitation Act concept at all. Rather, it is found in title I and in title III of the ADA.

Why can’t more guidances be like this one?

November 17, 2014 by William Goren 5 Comments

I’m not a big fan of guidances for several reasons: I find that lawyers rely on them as a crutch unnecessarily in many cases; the guidances oftentimes push an agenda and are not based on case law or regulations; as guidances they are not regulations and so therefore are subject to being ignored by the courts; and are frequently unnecessary, though not always so. However, none of these statements apply to the recent joint guidance from the US Department of Justice and the US Department of Education on effective communication. I find that the guidance is extremely easy to read, is a fair interpretation of the law, extremely practical, and contains a lot of useful information. This particular blog entry will go over that guidance.

I have previously discussed the effective communication regulation, including here here and here.

The Guidance

1. The guidance does a nice job of explaining that k-12 school need to worry about three different laws: IDEA, ADA, and § 504 of the Rehabilitation Act, and notes that the requirements of each are not the same necessarily.

2. The guidance does say that as a general rule violations of § 504 the Rehabilitation Act also constitute violations of title II and therefore, it didn’t make any sense to discuss § 504 protection separately as it would not provide additional guidance to public schools, all of which are subject to both laws. That is absolutely true. However, it should be pointed out that a violation of the ADA is not necessarily a violation of § 504 the Rehabilitation Act because the causation standard is different between the two laws.

3. Title II of the ADA and its implementing regulations require that a public school ensure that communication with students with hearing, vision, or speech disability is as effective as communication with students without disabilities. That means schools must provide appropriate auxiliary aids and services (what is an auxiliary aid and service can be found at 42 U.S.C. § 12103(1) as well is in the implementing regulations), where necessary in order to provide effective communication.

4. The effective communication regulation requires that public schools give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student because it is the person with a disability, or his or her appropriate family member, who is most familiar with his or her disability and can provide the best information about which aids or services are most effective. Further, the school has to honor the choice unless the school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.

5. If providing the particular auxiliary aid or service constitutes a fundamental alteration in the nature of the service, program, or activity or is an undue financial or administrative burden, the school did not have to provide that of auxiliary aid or service, but they still have to provide, to the maximum extent possible, an effective auxiliary aid or service.

6. Interpreters for the deaf must be qualified and any such communication must be conveyed effectively, accurately, and impartially, using any appropriate specialized vocabulary.

7. It is very interesting that when the guidance talks about how a person who is deaf or hard of hearing may or may not use ASL, that hearing aids aren’t even mentioned. Rather, cochlear implants are mentioned. Cochlear implants are not a substitute for hearing aids. They are used in different situations. Nevertheless, it shows just how prevalent cochlear implants have become.

8. Auxiliary aids or services have to be decided on a case-by-case basis. That is, don’t put people with the same kind of disability in the same box as they may go about their world completely differently.

9. The effective communication regulations of title II apply to all of a student’s school -related communications and not just to those of teachers or school personnel.

10. For a deaf or hard of hearing student, a sign language interpreter or computer-assisted real-time (CART) may be appropriate where student comments and discussions are part of the class experience for all students. This is going to come down to a matter of choice by the particular student. ASL interpreters and CART do different things. ASL is a language just like French is a language. CART, which I had the privilege of using at a recent American Bar Association convention, essentially acts as a real-time transcript of what is going on. If the class is one where people are constantly talking and oftentimes at once, CART could be extremely helpful in addition to or in lieu of an ASL interpreter. An ASL interpreter is simply not going to be able to keep up with the different conversations but CART can. Thus, in this situation, the school is going to have to assess with the particular student whether one or the other or both should be employed.

11. Any auxiliary aids and services necessary to ensure effective communication have to meet several requirements. They have to be provided in an accessible format, in a timely manner, and in such a way as to protect the privacy and independence of a student with a disability.

A. With respect to accessible format, just because a student is blind does not mean that they know how to read braille (you would be surprised how many blind students do not read braille). Therefore, supplying materials in braille would be no good for that student.

B. With respect to timely manner, once the student indicates the need for an auxiliary aid or service or requested a particular auxiliary aid or service, the public school must provide it as soon as possible.

C. The auxiliary aid or service has to be provided in a way that protects the privacy and independence of the student with a disability. The example used in the guidance is a bit unfortunate. The example used is someone who is deaf and uses ASL should have their conversation containing sensitive information conducted privately where other people in the environment understand ASL. Here is the problem with that. Of the kids who are deaf, it is frequently reported that 90% of them have hearing parents. Also, it is frequently reported that 90% of deaf parents have hearing kids. Thus, it is entirely possible that there may be a hearing person in the classroom that knows ASL and that fact may or may not be known to the school. The auxiliary aid or service must also be provided in a way that the tax the independence of the student. For example, an e-book might foster more independence than a reading aide.

12. Should a school district try to defend on the ground that the auxiliary aid or service is a fundamental alteration or constitute an undue financial or administrative burden after considering all resources available for use by the school district in the funding and operation of the service, program, or activity, the head of the school district or his or her designee must make that determination (you can find the certification requirement discussed here. With respect to whether the school district had could delegate the decision regarding the undue burden certification to a designee, that designee would have to be a person with the authority to make budgetary and spending decisions and must have the knowledge necessary to consider all resources available to the school district for use in the funding and operation of the service, program, or activity.

13. The effective communication obligations are not limited just to students. Rather, schools have the obligation to provide effective communication to all individuals seeking to participate in or benefit from the school district’s services, program, or activities.

14. Title II of the ADA regulations expressly prohibit a public school from requiring an individual with a disability to bring another person to interpret for him or her except in the case of an emergency involving an imminent threat to the safety or welfare of the individual or to the public where there is no interpreter available or where the person with a hearing, vision, or speak disability specifically make the request that an accompanying adult may interpret or facilitate communication providing the accompanying adult voluntarily agrees to provide the assistance and providing the school’s reliance on the accompanying adult is appropriate under the circumstances. Regarding the second exception, careful consideration to both elements is called for. The school wants to make sure that the consent of the adult it truly voluntary. Second, the school wants to make sure that relying on the accompanying adult is appropriate under the circumstances. It may not always be. For example, it would not be appropriate to rely on the adult if the situation was a due process hearing, § 504 planning meeting, meeting of the IEP team, etc. Some may be close calls. For example, certain information may be so critical so that it is essential that any errors be minimized, such as a medical emergency.

15. Unlike the Americans with Disabilities Act, IDEA does not require a district to ensure that the effectiveness of communication for student with a disability matches the effectiveness of communication for students without disabilities.

16. The provision of a free appropriate public education under IDEA does not limit a student’s right to effective communications under the ADA. Also, to be protected under title II and to utilize the effective communication regulations of that title, does not require eligibility under IDEA.

17. A best practice is for a district to proactively notify parents and students about the effective communication regulations under title II and let the students and parent know just whom that official is. As pointed out in the guidance, it makes sense that the responsibility could, though it doesn’t have to be, given to the § 504 or ADA coordinator.

18. Parents do not have to make a specific request for different or additional auxiliary aids. Rather, the school district has the affirmative obligation to provide effective communication regardless of whether the parent request specific auxiliary aids and services.

19. School districts have a continuing obligation to assess auxiliary aids and services that it is providing the students in need of those services in order to ensure that those students are receiving effective communication.

20. If a student is IDEA eligible, a school district can also decide that a parent’s request under title II will be addressed by the IEP team. However, while that may be the case, the IEP team would not be making the determination based upon whether the auxiliary aids and services were reasonably calculated to enable the child to receive meaningful educational benefit. Instead, they would have to make the decision based upon the effective communication regulations under title II, an entirely different question since it demands that communications be as effective as those for without disabilities. This means that the IEP team has to receive training on the effective communication regulations.

21. A school district cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services.

22. Guidance points out that if a person has an IEP, they must exhaust that process first before proceeding to a lawsuit alleging violations of the ADA or § 504. You can find more of that discussion here.

23. IDEA funds may be used only for auxiliary aids and services under title II where those auxiliary aids and services are also required to be provided under IDEA. If auxiliary aids and services under title II are not included in the IEP, then IDEA funds may not be used to pay for those services. Here is my concern with that. Since money drives everything, the concern is that school districts will push students with disabilities into the IDEA system. That decision has significant legal and day-to-day implications and should not be done lightly.

In summary, for those familiar with the effective communication regulations, there isn’t anything that is surprising here. What it does do is reiterate that school systems need to be aware that their universe is more than just IDEA but also includes ADA and § 504. Whether the regulation create the incentive of pushing people into the special education system when that is not necessary is something that should be followed.