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School Boards Group Disputes Recent Guidance on Communication Supports

The National School Boards Association says that the U.S. Departments of Education and Justice offered sweeping and confusing guidance to states when they issued a "Dear Colleague" letter back in November that described how schools must meet students' communication needs.

In a March 5 letter, the organization asked that certain elements of the guidance be clarified, and that the federal departments should not use an appeals court decision that the NSBA calls an "outlier" as the foundation for a national standard.

The issue dates back to August 2013, when the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in K.M. v Tustin Unified School District that schools must follow two laws—the Individuals with Disabilities Education Act and the Americans with Disabilities Act—when devising ways to support students with vision, hearing, or speech impairments.

The case came about when two California students with hearing impairments asked their school districts for real-time transcription of class discussions. The districts refused to do so, saying that the students were making good academic progress without the service. The appeals court ruled that just because a district was following the provisions of the IDEA doesn't rule out the possibility that it could be violating the ADA, an anti-discrimination law enacted in 1990. (The Justice Department had filed a friend-of-the-court brief in this case, on the side of the students.)

Under the ADA, entities such as schools must "ensure that communication with students with disabilities is as effective as communication with students without disabilities, giving primary consideration to students and parents in determining which auxiliary aids and services are necessary to provide such effective communication." The department's "Dear Colleague" letter and accompanying documents spell out how schools can navigate the two different requirements. 

Overall, the guidance tells schools that in some cases, the ADA may require a school district to provide a service that the IDEA does not, and that parents and students must be given deference in deciding what those services should be. In contrast, the IDEA requires that parents and school staff decide on services collaboratively, through the creation of an individualized education program. 

Points of Contention

That two-pronged decision-making process may be true for the schools in states served under the 9th Circuit, the NSBA said. (Those states are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.) However, courts in other parts of the country have come to different conclusions, the NSBA says, asking the department to explain the legal justification for expanding this ruling to the whole country. 

Giving students and parents primary say over what communications aids are needed also disrupts the collaborative process intended by the creation of an IEP, the NSBA asserts. 

Plus, requiring districts to conform to two different laws is challenging and could potentially spawn lawsuits, the school board organization states. For example, the November guidance said that complying with the ADA and IDEA "would, in most cases, not result in undue financial and administrative burdens." NSBA asked for the basis of that statement, quoting as an example the price of real-time transcription services at $60 to $200 per hour.

Finally, the letter tweaked the agencies for releasing guidance without getting public comment.  

"The departments risk producing well-meaning, but ill-informed expressions of policy that place unnecessary and onerous burdens on regulated entities, such as school districts, without significantly advancing the underlying goals of the statutes on which they are ostensibly premised," wrote Francisco M. Negron Jr., the NSBA's general counsel.

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