US DOE and DOJ Guidance On Communication Misses the Mark
Wednesday, November 12, 2014
K.M. v. Tustin Unified School District victory could help thousands of students yet new guidance doesn’t quite go far enough
Washington, DC – Today in response to U.S. Departments of Justice and Education Dear Colleague letter, Selene Almazan, COPAA legal director made the following statement:
“We agree that communication is a ‘critical part of school’, in fact, communication is recognized by scholars as a key skill to enable a student to self-direct and to be college and career ready and today’s guidance generally supports and upholds what the 9th Circuit Court of Appeals held to be true in 2013 [in K.M. v. Tustin Unified School District]: students with communication needs must be fully addressed by schools and three federal laws work in sync to assure this can happen. The FAQ is helpful because it requires schools to ‘provide the aid or service requested unless the school can prove that a different auxiliary aid or service is as effective in meeting the student’s communication needs.’ Yet, the Administration has not quite gone far enough.
The U.S. Department of Justice 2012 (DOJ) amicus brief and the 2013 federal appeals court decision [on K.M. v. Tustin], emphasize that Section 504 of the Rehabilitation Act of 1973, The Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) have different protections; the school’s obligation to provide a student with a disability effective communication is independent of the schools obligation to provide a free appropriate public education; and, that the IDEA and ADA requirements and defenses are separate.” Ms. Almazan further explains, “As COPAA noted in its amicus brief in this case -- public policy mandates affording children with disabilities the full benefit that all three statutes convey, not just the floor provided by one of them.”
COPAA member David Grey, a Santa Monica CA attorney who represented KM, said, “This is an important issue. When the DOJ filed amicus in the case and made oral argument, KM felt listened to by the government for the first time. She is a wonderful, sweet, and smart young lady, who felt vindicated for herself and others when the appeals decision came down in her favor. She is doing really well now in college, where they have enthusiastically provided an exceptional level of accommodation for academic classes and nonacademic gatherings. Unfortunately, however, I have several other similar [communication] cases pending for other students.”
Ms. Almazan concludes, “We appreciate the U.S. Departments of Justice and Education taking this step and urge them to issue stronger guidance that makes clear that Title II of the ADA imposes effective communication obligations that are independent of, not co-extensive with, schools obligations under the IDEA.”
The guidance, in the form of a letter to educators (available in Spanish) with an attached Frequently Asked Questions document, is intended to help schools understand and comply with federal legal requirements on meeting the communication needs of students with disabilities. They also released a fact sheet on the guidance for parents (available in Spanish).