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Court Revives Suits on Classroom Transcription for Deaf Students

A federal appeals court has revived lawsuits on behalf of two deaf or hard-of-hearing high school students who claim they are entitled under federal disabilities laws to one-on-one transcription services in the classroom.

The unanimous ruling Tuesday by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, does not immediately require that two California school districts provide the transcription services for the two students.

But the court held that a valid individualized education program under the Individuals with Disabilities Education Act does not preclude a claim that schools provide a student who has a hearing impairment with more-extensive services under Title II of the Americans with Disabilities Act of 1990.

"We conclude from our comparison of the relevant statutory and regulatory texts that the IDEA [free, appropriate public education] requirement and the Title II communication requirements are significantly different," the court said in K.M. v. Tustin Unified School District. "The result is that in some situations, but not others, schools may be required under the ADA to provide services to deaf or hard-of-hearing students that are different than the services required by the IDEA."

The decision stems from two consolidated appeals. One involves a student identified as K.M., who with her parents sought to have the Tustin district provide Communication Access Realtime Translation, or CART, a service involving the presence of a stenographer in the classroom whose transcriptions appear on a computer screen for the deaf or hard-of-hearing student. The student's IEP team determined that K.M. did not need transcription to receive a free, appropriate education under the IDEA.

The second case involves D.H., who also sought CART, from the Poway Unified School District. School officials believed the student was making good academic progress without the transcription service.

Both families challenged the denial of CART services under the IDEA and ADA, as well as under Section 504 of the Rehabilitation Act of 1973. In both cases, administrative law judges and federal district judges ruled for the school districts.

The 9th Circuit court reversed, citing a U.S. Department of Justice implementing regulation for Title II of the ADA. The "effective communications regulation" says public agencies must "furnish appropriate auxiliary aids and services where necessary 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 a public entity."

The rules define auxiliary aids and services as including "real-time computer-aided transcription services" and "videotext displays." The rule says the agency should give primary consideration to the requests of the individuals with disabilities in determining which services to provide. On the other hand, the rules say the services should not result in "undue financial and administrative burdens" on the agency.

The court said it found persuasive a friend-of-the-court brief filed on the students' behalf by the Justice Department, which argued that a "school's obligation to provide a student with a disability effective communication is independent of the school's obligation to provide a free appropriate education."

The 9th Circuit court said "the IDEA and Title II differ in both ends and means."

"Substantively, the IDEA sets only a floor of access to education for children with communications disabilities, but requires school districts to provide the individualized services necessary to get a child to that floor, regardless of the costs, administrative burdens, or program alterations required," the court said.

"Title II and its implementing regulations, taken together, require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities, but only insofar as doing so does not pose an undue burden or require a fundamental alteration of their programs," the court added.

The appeals court sent both cases back for their respective district courts to consider whether Title II of the ADA requires the provision of the requested transcription services.

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