IDEA, ADA, and Communication in the Classroom:  Lifting the Rowley Weight

Advocates for deaf and hard of hearing children – come to think of it, advocates of all children served by the Individuals with Disabilities Education Act (IDEA) – frequently have been frustrated by its limitations.  When IDEA was passed in 1975 (as the Education for All Handicapped Children Act), millions of children with disabilities had no access to education.  IDEA was designed - successfully - to ensure that all students with disabilities were educated.  IDEA has undergone several reauthorizations since then, bringing the law more in line with general education initiatives.  Among other things, more recent elements of the law hold schools accountable for ensuring that students with disabilities achieve the same academic outcomes as nondisabled students, graduate at the same rates as nondisabled students, and achieve postsecondary outcomes on par with those of nondisabled peers.  IDEA’s goal in 1975 was to open the classroom door to students who had been excluded.  IDEA’s goal in 2013 is to ensure that these children receive a comparable education.

But there is a giant weight hanging around the neck of IDEA.  The name of that weight is Rowley.  Rowley is a Supreme Court case decided in 1982 that established standards for IDEA implementation.  The Supreme Court ruled that requirements of the law are satisfied by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” and “[the Individualized Education Program and personalized instruction] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”  At the time this was considered a low standard.  Today it is a standard completely out of step with current law.  (I blog about this here.)  So, today, even despite the higher IDEA standards, when a student brings a complaint, courts apply the Rowley standard.  If the school has met that low standard it has done its job, end of story.

Although there are several laws addressing access to communication in schools – Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act (ADA), and IDEA – typically courts have looked to whether IDEA has been satisfied, and if it has, courts have decided in favor of the school district.

However, a new development may lessen Rowley’s impact in cases involving deaf and hard of hearing children’s communication access in the classroom.  The United States Court of Appeals for the Ninth Circuit (which covers roughly the western part of the country), recently heard the case of K.M v. Tustin Unified School District and D.H. v. Poway Unified School District.  The Court ruled that when IDEA, the ADA, and the Rehabilitation Act come into play, each law needs to be considered individually, and just because the school meets the requirements of one law, that does not necessarily mean the school has met the requirements of another law.  Here’s what happened.

K.M. and D.H. were deaf students who could hear and understand a lot of what is spoken in the classroom but not everything.  Efforts to try to understand left them exhausted and drained by the end of the school day.  They requested communication access realtime translation (CART) for use in their classrooms.  (Although they attended schools in different school districts the facts of their cases are similar, so the court considered them together.)  Their school districts refused to provide it.  The students filed a due process complaint, which they lost, then a federal law suit, which they also lost.  In each case the district court granted “summary judgment” for the school district.  Summary judgment basically means that even if everything the K.M. and D.H. say is true, they lose because the law does not support their position.  Ouch.  The district court said that IDEA did not require CART to be provided because under IDEA standards the students were receiving a free appropriate public education.  (Remember the low Rowley standard?)  Once it was determined that IDEA standard was met, any claim under the ADA or Section 504 must fail.

“Not so fast!” said K.M. and D.H. (by way of their lawyers and entities filing friend of the court briefs:  the United States Department of Justice, the Alexander Graham Bell Association for the Deaf and Hard of Hearing, and the Council of Parent Attorneys and Advocates).  They did not appeal the judgment about whether IDEA requirements were met.  They argued that IDEA and the ADA have separate requirements and schools must consider each set of requirements separately.  The Court agreed.

First, the factors the school must consider when determining how to provide communication access differ.  Under IDEA, the Individualized Education Program team must consider the student’s language and communication needs and related opportunities.  Under the ADA “effective communication” provisions the school must “furnish appropriate auxiliary aids and services where necessary.”   And while IEP teams must include the parents and, where appropriate, the student, their requests do not carry “primary” weight.  However, under the ADA the school must “give primary consideration to the requests of the individual with disabilities.” 

Second, Title II of the ADA provides defenses or reasons why a school might not be required to provide an accommodation.  For example, if providing the accommodation would constitute an “undue burden” the public entity would not be required to provide it.  Also, ADA requirements are limited to existing programs. School districts are not required to develop new programs to meet the needs of the student.  There are no analogous provisions in IDEA.

Third, Title II requires public schools to communicate “as effective[ly] with disabled students as with other students, and to provide disabled students the “auxiliary aids . . . necessary to afford . . . an equal opportunity to participate in, and enjoy the benefits of,” the school program.  Under Rowley IDEA does not require schools to “provide ‘equal’ educational opportunities.”  (Emphases added by the Court.)

Given these differences the Court was “unable to articulate any unified theory for how [these laws] will interact in particular cases.”  Therefore, it reversed the decision of the lower court and sent the case back to that court for it to reconsider in light of this ruling.[1] 

So, to summarize:

1.  Students requested CART

2.  Schools denied request

3.  Students filed due process and lost

4.  Students filed district court case and lost.  The court said the students received “meaningful educational benefit” as IDEA requires.  The court said once IDEA requirements are met, the ADA claim fails.

5.  Students appealed and won their legal claim.  The court said IDEA and ADA have separate requirements and must be considered separately.  Failure on an IDEA claim does not necessarily doom an ADA claim.  The Court sent the case back to the district court for reconsideration. 

This ruling makes clear that the access to communication in the classroom is not limited to the Rowley standard.  The ADA requirement to effective communication must be considered separately from IDEA requirements.  

That Rowley weight – at least as applied to communication in the classroom – may be lightening up.

Update March 2014:  The school districts appealed this case to the Supreme Court.  The Supreme Court declined to hear it, meaning that the decision of the Ninth Circuit stands. 

 [1] Although this ruling applied to students who requested CART, the same principles would apply to students seeking other types of communication access, such as qualified interpreters.

Copyright 2013.  This does not constitute legal advice.  Do not reproduce without permission.


© Barbara Raimondo 2015