New Federal Guidance on Effective Communication with People Who Have Communication Disabilities

March 2014
Number 20

On January 31, 2014, the U.S. Department of Justice (DOJ), Civil Rights Division, issued guidance entitled “Effective Communication” regarding the American with Disabilities Act’s (ADA) requirements for effective communication with people who have communication disabilities (i.e., vision, hearing, or speech impairments), including requirements that went into effect on March 15, 2011. The Effective Communication guidance is available here.

Under the ADA, public entities, such as school districts and state and local governments, including cities, and businesses that serve the public have a mandatory obligation to communicate effectively with people who have communication disabilities. The goal of these requirements is to ensure that communication with people with communication disabilities is equally effective as communication with people without disabilities.

The purpose of the Effective Communication guidance is to make certain that entities subject to the ADA have information regarding what is required to ensure effective communication and compliance with the ADA. The effective communication rules under the ADA serve to ensure that people with communication disabilities can receive information from, and convey information to, the entity.

Specifically, responsible entities must provide auxiliary aids and services, when needed for effective communication, to people with communication disabilities. Auxiliary aids and services are those services or devices that may assist a person with communication disabilities to communicate more effectively. For example, for a person with vision impairment, this may include providing a “qualified” reader, documents in large print or Braille, and/or audio of the information. In the case of a person who has a hearing impairment, auxiliary aids and services may include a sign language interpreter, real-time captioning, and/or written materials. The Effective Communication guidance sets forth several additional examples of auxiliary aids and services that may be provided.

In determining what aid or service is required to provide effective communication, the Effective Communication guidance recommends considering the “nature, length, complexity, and context of the communication as well as the person’s normal method(s) of communication.” For example, in the school setting, this may mean providing a deaf parent with a sign language interpreter to meaningfully participate in a meeting regarding the parent’s child. When determining which aid or service to provide, public entities must give primary consideration to the preference of the person with the communication disability, unless the entity can demonstrate that another equally effective means of communication is available or that the use of the person’s preferred communication aid or service would result in an undue burden or a fundamental alteration. Entities should be cautious, however, when claiming a “fundamental alteration or undue burden,” as the public entity must still provide an alternative aid or service that provides effective communication if available.

The Effective Communication guidance provides additional useful considerations and reminders:

  • Entities must also provide effective communication for companions who have communication disabilities (e.g., parent’s spouse at a school meeting);
  • Interpreters are the entity’s responsibility and an entity cannot require a person with a communication disability to bring his/her own interpreter (exceptions are set forth in the Effective Communication guidance); and
  • For public entities claiming that aids and services would result in an “undue burden” (significant difficulty or expense), the entity must consider “the cost of the particular aid or service in light of all resources available to fund the program, service, or activity and the effect on other expenses or operations.” A decision that a particular aid or service would result in an undue burden must be made by a high level official, no lower than a Department head, and must include a written statement of the reasons for reaching that conclusion.

The best way to ensure compliance with the requirements under the ADA is to establish good policies and train staff accordingly.

If you have any questions regarding this guidance, or accommodations under the ADA, Section 504 or the Individuals with Disabilities Education Act (IDEA) in general, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Anahid Hoonanian
Senior Counsel
Los Angeles Office
ahoonanian@lozanosmith.com

Colleen R. Villarreal
Associate
Sacramento Office
cvillarreal@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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U.S. Supreme Court Declines to Hear Argument On K.M. v. Tustin Unified School District

March 2014
Number 19

School districts must comply with the Individuals with Disabilities Education Act (IDEA) when developing an appropriate IEP for deaf or hard-of-hearing (DHH) students, and must also comply with the Americans with Disabilities Act (ADA) to ensure their needs for effective communication are met. As previously reported by Lozano Smith, in August 2013, the U.S. Ninth Circuit Court of Appeals held in K.M. v. Tustin Unified School District (9th Cir. 2013) 725 F.3d 1088, that two school districts’ compliance with their obligations to DHH students under the IDEA did not conclusively establish compliance with Title II of the ADA, or preclude the students from raising claims under the ADA. The U.S. Supreme Court recently denied review of this decision.

After the Ninth Circuit’s decision, defendants Tustin and Poway Unified School District unsuccessfully sought rehearing and rehearing en banc before the Ninth Circuit. On behalf of the Education Legal Alliance of the California School Boards Association (CSBA), Lozano Smith prepared and filed an amicus curiae brief in support of such efforts. CSBA argued the Ninth Circuit’s opinion in K.M. leads to conflicting responsibilities for school districts. Under K.M., districts will have to meet the IDEA’s requirements of FAPE for DHH students relative to effective communication devices and will also have to satisfy a differing standard and set of requirements for DHH students under the ADA.

Following denial of rehearing by the Ninth Circuit, the school district defendants sought review of the opinion by the United States Supreme Court. Lozano Smith was asked to support this effort and submitted an amicus curiae brief supporting the grant of review on behalf of the CSBA and the National School Boards Association. The Supreme Court, however, denied review on March 3, 2014.

The case will now be remanded to the federal district court to determine whether or not the school districts actually violated the ADA by not providing the DHH students with access to their desired communication devices. While the final outcome of this case remains to be seen, the Ninth Circuit’s ruling that satisfaction of the IDEA’s requirements does not automatically satisfy the ADA’s requirements when it comes to a DHH student’s effective communication devices is controlling.

School districts should keep in mind that Title II of the ADA requires public entities to provide reasonable accommodations to eligible individuals. In doing so, it is prudent to engage in an interactive process to determine the nature and extent of such accommodations. While public entities are not required to provide any accommodations that result in a fundamental alteration in the nature of the services provided, or cause undue financial or administrative hardship, this is a difficult standard to satisfy.

For a complete overview of the Ninth Circuit’s opinion in K.M., please refer to our previous Client News Brief. We will continue to follow the K.M. Case and provide any updates following remand to the district court.

For further detailed information regarding requirements under the IDEA, ADA, and other relevant laws, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Marcy Gutierrez
Senior Counsel
Sacramento Office
mgutierrez@lozanosmith.com

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

U.S. Department of Education Issues Guidance Regarding Maintaining Student Privacy While Using Online Educational Services

March 2014
Number 18

On February 25, 2014, the United States Department of Education’s Privacy Technical Assistance Center (PTAC) published guidance regarding protecting the confidentiality of student information when using online educational services. According to PTAC, the growing use of interactive and online teaching methods brings with it the challenges of ensuring that school districts protect private student information when the internet, technology, and third parties are involved. PTAC’s full release is available here.

PTAC’s guidance addresses the use of software, mobile applications, or web-based tools that are provided by a third party vendor or contractor, and which students or parents use or access as part of a school activity. For example, students might watch videos for class online, log-in to an online program to view their progress and grades, or engage in discussions with classmates and teachers in an online forum.

To use third party provided online educational services, school districts might need to release student information to the provider. PTAC’s guidance highlights how sharing this information raises concerns regarding student privacy and confidentiality. For example, the Family Educational Rights and Privacy Act (FERPA) prohibits school districts from disclosing students’ personally identifiable information, such as name, date and place of birth, social security or student number, or mother’s maiden name, from education records without written consent of the parent or eligible student, with some exceptions. PTAC also advises that the federal Protection of Pupil Rights Amendment (PPRA) might be applicable. The PPRA requires school districts to notify parents of students who are scheduled to participate in activities involving the collection, disclosure or use of personal information collectedfrom students for certain marketing purposes, and give parents the opportunity to opt-out of these activities. Thus, school districts must understand how third party online service providers are using information collected directly from students.

The PTAC guidance provides illustrative examples of scenarios that might arise when using online educational services and best practices that school districts can follow to comply with FERPA and the PPRA. This release serves as an important reminder that school districts need to maintain awareness of the duty to protect student information when using online educational services. In addition to the federal requirements highlighted by PTAC, California school districts should keep in mind that the Education Code includes its own specific provisions regarding the confidentiality of student information and records that must also be considered when using online services.

Components of this guidance will also be addressed by Lozano Smith attorney Harold Freiman at the upcoming CASBO 2014 Annual Conference & California School Business Expo in Sacramento during his presentation “Technology Legal Issues.” The workshop on April 3, 2014 will cover the latest technology and legal issues that school districts face in today’s world, including protecting the security of district data.

For further information on ensuring compliance with both state and federal requirements for protecting student information when using online educational services, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@lozanosmith.com

Karin M. Anderson
Associate
San Diego Office
kanderson@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Local Educational Agencies Must Disseminate New Guidance on How to Recognize and Report Child Abuse

March 2014
Number 17

In an effort to promote student safety, State Superintendent of Public Instruction Tom Torlakson recently issued revised “Child Abuse Reporting Procedures for Parents and Guardians.” These new guidelines educate parents on the types of injuries that should be reported to local authorities as a result of suspected child abuse or neglect. The guidelines also address the types of injuries that are not considered “child abuse” under the law.

Under the new guidelines, parents have the right to file a complaint when the parent suspects that their child was abused at a school site. The guidelines also inform parents that they may file these complaints with an appropriate local law enforcement agency, as well as with the school district or county office of education.

School administrators should be prepared to promptly respond to any such parent complaints filed under these new guidelines, and recognize that such reports may trigger other obligations such as reporting the suspected abuse. Pursuant to the Child Abuse and Neglect Reporting Act (Pen. Code, §§ 11164, et seq.), most school district employees are “mandatory” reporters, meaning they must report suspected child abuse to appropriate authorities. Failure to report constitutes a crime under California law and carries civil liability.

Although the guidelines are directed at parents, local educational agencies are required to disseminate these new guidelines “upon request”. (Ed. Code, § 48987.) The law is unclear on how soon the guidelines must be disseminated, or which format satisfies the notice requirement. Further, the guidelines must be disseminated in the primary language of the parent or guardian, and interpretation services must be provided for oral communications with a parent or guardian regarding a report of abuse or questions about the reporting procedures. School districts may wish to consult with their legal counsel regarding how to approach noticing parents and guardians.

If you have any questions about these new guidelines, or mandated child abuse reporting in general, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Manuel F. Martinez
Associate
Walnut Creek Office
mmartinez@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

April 1 Deadline For Filing Form 700’s

March 2014
Number 16

April 1 is the deadline for those holding “designated positions” under their agency’s Conflict of Interest Code (Code filers), as well as so-called “Section 87200 filers,” to file the annual Statement of Economic Interests. (Form 700) Section 87200 filers include mayors, city council members, city managers, city attorneys, city treasurers, members of planning commissions, members of the board of supervisors, district attorneys, county counsels, county treasurers, county chief administrative officers, other public officials who manage public investments, and candidates for any of these offices at any election. The Political Reform Act (Gov. Code, §§ 81000-91014) requires those public officials and employees to disclose on Form 700 certain investments, interests in businesses and real property, and sources of income, as well as certain gifts that were received in the previous 12-month period which exceed designated dollar amounts. School districts, cities, counties, and other public agencies are required to adopt a conflict of interest code which, at a minimum, includes the terms of Government Code section 87300, and the related regulations.

If a Code filer or Section 87200 filer receives a gift or gifts totaling $50 or more from a single source in the previous calendar year, then the gift or gifts must be disclosed on the Form 700. (Gov. Code, § 87210) The filers may not receive gifts totaling more than $440 (for 2013-2014) in any calendar year from a single source if they would be required by their agency’s Code or Section 87200 to report income or gifts from that source on Form 700. (Gov. Code, § 89503; Cal. Code Regs., tit. 2, § 18940.2)

The Political Reform Act includes a broad definition of a “gift”: anything of value that is received by a public official or employee for free or at a discount and which is not otherwise made available to members of the general public. This could include meals, tickets to concerts or sporting events and some forms of travel. There are some limited exceptions for gifts that are exchanged for holidays, birthdays and similar occasions, gifts received from relatives and informational materials that primarily convey information and are provided to assist the recipient in the performance of his or her official duties. (Cal. Code Regs., tit. 2, §§ 18942, 18942.1) Because the reporting of gifts has drawn particular scrutiny and media attention recently, particular care should be taken to comply with the rules.

If you have any questions regarding the Political Reform Act’s rules on gifts, when reporting is required, or updating your agency’s conflict of interest code, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Jeffrey L. Kuhn
Senior Counsel
Fresno Office
jkuhn@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Affirms School Officials’ Authority to Regulate Student Expression Where Disruption and Student Safety is at Issue, Even if Such Expression is the American Flag

March 2014
Number 15

On February 27, 2014, in Dariano v. Morgan Hill Unified School District (9th Cir. 2014) __ F.3d __ 2014 WL 768797, the U.S. Ninth Circuit Court of Appeals held that a school district administrator did not violate students’ constitutional rights by requiring them to remove American flag clothing on Cinco de Mayo. The court’s opinion primarily hinged upon: (1) the foreseeable threat of violence that day to the students wearing such apparel; and (2) the school’s history of gang and race-related violence at the school, including a similar threat of violence on Cinco de Mayo the prior school year. The opinion generally underscores the sanctity of the standard established in Tinker v. Des Moines Independent Community School District, (1969) 393 U.S. 503, which permits the regulation of student expression to quell actual or foreseeable disruption to the school environment.

On May 5, 2010, a high school sponsored a celebration of Cinco de Mayo. That day, several students chose to wear shirts that displayed the American flag. During a break, students advised the assistant school principal that “there might be some issues [in the quad area]…[and that] there might be a problem.” The administrator interpreted these comments to mean there might be a physical confrontation. Among other facts, the assistant principal was asked why the Caucasian students were able to wear the American flag shirts and the Mexican students were not able to wear clothing displaying the Mexican flag. Ultimately, school administrators directed the students wearing the American flag shirts either to remove the shirts or turn them inside out. When the students refused, they were sent home with excused absences. No student was disciplined for refusing to remove their American flag shirt.

As the Dariano court explained, to pass constitutional muster under Tinker and its progeny, school officials must demonstrate that regulation of student speech is in response to behavior that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others [or might reasonably lead school authorities to forecast such disruption].” Importantly, the school had experienced prior fights between gangs and between Caucasian and Hispanic students. On Cinco de Mayo the year prior, there was an altercation at the school between students of different ethnicities. Based on these facts, the court found the administrators’ actions were lawful under the Tinker standard.

The court also found the school administrators’ actions did not simply result from an “urgent wish to avoid controversy,” as school officials made clear their response hinged upon the need to quell anticipated disruption and violence. The court noted that “school officials have greater constitutional latitude to suppress possible student speech than to punish it,” and the school did not impose discipline on any student due to the failure to remove an American flag shirt. Finally, the court held that school officials did not enforce a general ban on clothing bearing the American flag-indeed, students were permitted to continue to wear shirts that depicted the American flag where such shirts were unlikely to make students targets of violence.

In addition to the claim that school officials’ violated their free speech rights, the students alleged they were treated differently than students who wore the colors of the Mexican flag, in violation of constitutional equal protection rights. Courts have established that schools do not violate equal protection when they “ban certain images…even though such bans might constitute viewpoint discrimination.” The Dariano court rejected the students’ equal protection claim, holding the students offered no evidence that students wearing the colors of the Mexican flag were “targeted for violence.”

The court also addressed the students’ final claim that the District’s dress code policy, which prohibited clothing that “indicate[s] gang affiliation, create[s] a safety hazard, or distrupt[s] school activities,” violated their due process rights as unconstitutionally vague. The court summarily rejected this claim as similar polices had been upheld by other courts around the country, and the policy actually contemplated and incorporated theTinker standard.

Although involving the American flag, this opinion is consistent with prior cases that limited the display of the Confederate flag because of “the potential disruption that the displaying of Confederate symbols would likely create.” The involvement of the American flag in Dariano, however, has caused the case to garner national attention. While an admittedly unique set of facts in terms of the subject matter of the students’ expressive activity, Dariano reiterates the applicable Tinker standard, and centers on school officials’ authority to regulate speech based on the disruption or the potential for disruption that it causes to the school environment, including where student safety is at issue. Such decisions by school officials will be judged on the particular facts present in a given case.

At the time of this news brief’s publication, the students have filed a Petition for Rehearing and Rehearing En Banc with the Ninth Circuit, requesting the court to reconsider its opinion.

If you have any questions regarding this opinion or student free speech rights in general, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Gabriela D. Flowers
Associate
Sacramento Office
gflowers@lozanosmith.com

©2014 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.