Department of Justice Files Brief Making Clear Compliance with IDEA Does Not Establish Compliance with the ADA

This is a matter on which school districts are often confused, so it's good to see the DOJ (in a brief also signed by the Department of Education's Acting General Counsel) weighing in on it.  The case is K.M. v. Tustin Unified School District, No. 11-56259 (9th Cir., pending).  Here's the relevant portion of the brief's Summary of Argument:

The IDEA’s FAPE obligation to students with a hearing disability, and Title II of the ADA’s effective communication obligation, have different elements, specify different rights, and serve different purposes. Title II of the ADA is a nondiscrimination statute that requires, inter alia, public entities, including schools, to provide individuals with disabilities public services that are equal to those services provided individuals without disabilities. 42 U.S.C. 12131-12132. Under Title II, a public school must provide individuals with a hearing disability communications that are as effective as those provided individuals without a disability. See 28 C.F.R. 35.160(a)(1). Providing effective communications entails a comparative assessment of the services and information provided to individuals with and without disabilities. Ibid.

Under the IDEA, in contrast, a school must develop an educational program that is based on an individual child’s specific and unique needs, including the child’s communication needs. See 20 U.S.C. 1401(9), 1414(d)(1)(A), and 1414(d)(3)(A) and (B). A school is not required to compare an educational program developed for a student with a disability to those provided to students without disabilities, although it may choose to do so as part of its FAPE determination. Under the IDEA, the educational program need provide only a “meaningful” educational benefit. See N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1210, 1213 (9th Cir. 2008). Moreover, the IDEA, unlike the ADA, does not include defenses of fundamental alteration or undue burden. Thus, the district court erroneously concluded that the school’s compliance with the IDEA for this student automatically satisfied the school’s Title II effective communication obligations to this student. It is possible that compliance with the IDEA can, for some students, also satisfy Title II’s effective communication obligation. However, the court’s decision effectively reads Title II’s communication protections out of the elementary and secondary educational setting for all students with hearing disabilities who are eligible for communication services under the IDEA, a result fundamentally at odds not only with the broad remedial purposes of the ADA, but also with the precise text of the IDEA. See 20 U.S.C. 1415(l); 42 U.S.C. 12101(a)(3), (b)(1).