School Appeals Declined on Services for Deaf, Hard-of-Hearing Students

By Mark Walsh — March 03, 2014 2 min read
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The U.S. Supreme Court on Monday declined to hear appeals from two California school districts of lower-court rulings that backed one-on-one classroom-transcription services for two deaf or hard-of-hearing students.

The Tustin and Poway unified school districts each appealed a decision last year by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that a valid individualized education program under federal special education law 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.

The appeals court said this meant “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 districts, backed by the California School Boards Association and the National School Boards Association, said the 9th Circuit’s ruling (which jointly covered both cases) would undermine the interplay between the requirements of the ADA and the Individuals with Disabilities Education Act.

The NSBA and its state affiliate said in their friend-of-the-court brief that the 9th Circuit decision “turns upside down decades of precedent interpreting the key federal statutes governing the education of students with disabilities, specifically students who are deaf or hard of hearing.”

The 9th Circuit decision had involved 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 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.

But the 9th Circuit court reversed, citing a U.S. Department of Justice regulation for Title II of the ADA that requires public agencies to give primary consideration to the requests of individuals with disabilities for such auxiliary aids and services, including CART and “videotext displays.”

The students were backed at the 9th Circuit by the Justice Department, which argued in a brief 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 appeals court sent both cases back to lower courts to determine whether the CART services were required under the ADA.

In the meantime, both districts asked the Supreme Court to review the 9th Circuit’s decision. But the justices on March 3 declined without comment to hear the appeals in Tustin Unified School District v. K.M. (Case No. 13-770) or Poway Unified School District v. D.H. (No. 13-777).

A version of this news article first appeared in The School Law Blog.