PUBLIC SCHOOL OBLIGATIONS TO DEAF AND HARD OF HEARING INDIVIDUALS

There are three federal laws that guarantee access to the activities and programs of public schools by deaf and hard of hearing students, parents, and personnel.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, requires programs which receive federal financial assistance to provide interpreters or other auxiliary aids to individuals with disabilities when necessary to give them equal access to the program. See also Sections 34 C.F.R. 104.4 and 104.21. Public school systems receive substantial federal financial assistance, so this law applies to them. The Americans with Disabilities Act (ADA), 42 U.S.C. Section Section 12101-12213, requires comparable access by all state and local government schools, regardless of whether or not they get federal assistance. This part of the ADA went into effect on January 27, 1992.

A third federal law, the Individuals with Disabilities Education Act (IDEA), also affects children with disabilities. This law requires public school systems to provide a "free, appropriate public education" to such children. It establishes a procedure for developing an individualized curriculum and identifying needed supportive services for individual children. Although this is the principal law which determines the special educational services children will receive from a school system, Section 504 and the ADA provide additional protection, especially in the context of architectural accessibility, extracurricular activities and services for parents, personnel and other adults.

The U.S. Department of Justice (DOJ) has promulgated regulations to implement Title II of the ADA, which applies to activities of public entities such as school systems. 28 C.F.R. Part 35. The Title II regulations specifically address the obligation of a school board or other public entity to remove communication barriers for deaf individuals:

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

(b)(l) A public entity shall 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.

28 C.F.R. Section 3S.160.

The DOJ regulation goes on to define "auxiliary aids and services" to include:

Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments; . . . and . . . other similar services and actions.

28 C.F.R. Section 35.104. A school agency may not assess any additional charge for the provision of an auxiliary aid or service required by the ADA. 28 C.F.R. Section 35.130 (f).

The appropriate auxiliary aid depends on the context of the communication and the needs of the individual with disabilities. For example, in a school auditorium or a school board meeting, some deaf people may need a sign language interpreter to follow the proceedings. Other people with hearing impairments do not use sign language. They may need a computer-assisted transcript or an assistive listening system (e.g., a loop system or an FM or infrared amplification system) in order to understand and participate. If the school has videotapes or films, or if it broadcasts on cable television, captioning may be the most appropriate way to give access to deaf viewers. In order to make sure a deaf individual is alerted to a fire or other emergency, a school system should install visual (flashing) fire alarms. Finally, a telecommunication device for deaf persons (TDD) may be necessary, so that a school and a deaf parent can communicate directly about illnesses, schedules, discipline and other problems of a child.

The primary concern in determining the appropriate auxiliary aid or service is whether or not the aid or service is effective to give the person with impaired hearing an opportunity to participate effectively. When there is a disagreement or uncertainty about the appropriate auxiliary aid, the regulations require the public agency to give "primary consideration to the requests of the individual with disabilities." 28 C.F.R. Section 35.160(b)(2). The Justice Department explains the need to defer to individuals with disabilities in its Analysis to its regulation:

The public entity shall honor the choice [of the deaf individual for a particular auxiliary aid] unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under Section 35.164.

Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication.

56 Fed.Reg. 35711-12 (July 26, 1991).

DOJ's Analysis to its ADA regulations also address the obligations of school systems to provide accessibility to parents with disabilities, regardless of whether the children of those parents have disabilities:

Some commenters asked for clarification about the responsibilities of public school systems under section 504 and the ADA with respect to programs, services and activities that are not covered by the Individuals with Disabilities Education Act (IDEA), including, for example, programs open to parents or to the public, graduation ceremonies, parent-teacher organization meetings, plays and other events open to the public, and adult education classes. Public school systems must comply with the ADA in all of their services, programs, or activities, including those that are open to parents or to the public. For instance public school systems must provide program accessibility to parents and guardians with disabilities to these programs, activities, or services, and appropriate auxiliary aids and services whenever necessary to ensure effective communication, as long as the provision of the auxiliary aid results neither in an undue burden or in a fundamental alteration of the program.

56 Fed. Reg. at 35696.

In addition to the above, a federal court has ruled that school systems must provide interpreters when deaf parents meet with teachers or attend school programs such as orientation programs. Rothschild v. Grottenthaler, 907 F.2d 286 (2nd Cir. 1990). Finally, the Office for Civil Rights of the U.S. Department of Education has made specific determinations that sign language interpreters permit deaf people to participate meaningfully in federally-assisted programs. It has ruled that public school systems must provide effective communication to extracurricular programs and other services when these services are offered to parents as well as to students.

Title II of the ADA also requires school systems and other public entities to conduct a self-evaluation of barriers to accessibility in their services, and to make necessary modifications to remove such barriers. 28 C.F.R. Section 35.105. The public entity must also provide an opportunity for interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation by submitting comments.

School systems must routinely publicize the method that deaf persons can use to request necessary services such as interpreters. 28 C.F.R. Section 35.106. A public entity must have a procedure that a deaf person can use to request service at school system activities, accessible by TDD or through a relay service. TDD-accessible telephone numbers should be clearly identified in telephone directory listings, school system letterhead, and information disseminated about school system services.

Finally, the ADA also requires school buildings that are altered or newly constructed to meet minimum accessibility standards that comply with the ADA Accessibility Guidelines (ADAAG) or the Uniform Federal Accessibility Standards (UFAS), 28 C.F.R. Section 3S.151. The ADAAG standards are published as Appendix A to 28 C.F.R. Part 36. The portions of ADAAG that are most relevant to deaf individuals are:

Emergency warnings and alarms                Section 4.1.3(14),
                                             Section 4.28
         
Public telephones                            Section 4.1.3(17), 
                                             Section 4.1.6(1)(e), 
                                             Section 4.31.5
         
         
Assembly areas (assistive                    Section 4.1.3(19)(b), 
listening systems)                           Section 4.33.6, 
                                             Section 4.33.7
         
         
Elevators                                    Section 4.10.12(2), 
                                             Section 4.10.13, 
                                             Section 4.10.14
         
         
Signage                                      Section 4.30.7
         
         
Visual devices in sleeping rooms             Section 9.3.1, 
                                             Section 9.3.2, A4.28.4

Funded by a Grant from the U.S. Department of Justice