Washington, D.C. – August 8, 2013 – The 9th U.S. Circuit Court of Appeals ruled in favor of the plaintiff in K.M. v. Tustin Unified School District (No. 11-56259), providing a victory for students who are deaf and hard of hearing to gain access to Computer-Assisted Realtime Transcription (CART) as an accommodation in mainstream K-12 classrooms. AG Bell filed an amicus brief in the case in support of K.M., a high school student who is deaf and uses cochlear implants and speechreading to communicate.
In the case, the Court of Appeals reversed summary judgment against K.M. and another high school student who sought CART — a service in which a transcriptionist provides live captioning — from their school districts as an accommodation under the Americans with Disabilities Act (ADA). The Court ruled that compliance with the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973, two federal laws that provides special education services and accommodations for students with disabilities, does not mean compliance with the Americans with Disabilities Act (ADA). The requirements of the ADA are broader and more stringent. Under the ADA, public schools must provide students who are deaf and hard of hearing with equal and effective communication.
Paving the Way for Classroom Access
“This groundbreaking case paves the way to ensuring that students who are deaf and hard of hearing receive CART as an academic accommodation so they can gain equal access to information and discussion in the classroom,” said AG Bell President Donald M. Goldberg, Ph.D., CCC-SLP/A, FAAA, LSLS Cert. AVT.
The student in the case, K.M., was diagnosed at 13 months with bilateral severe to profound hearing loss. Her parents chose a listening and spoken language outcome for her, and K.M. received a cochlear implant in her right ear when she was 3 years old and then received a second cochlear implant at age 15.
After her seventh grade teacher noted that K.M. was “lost” during class discussions, the family requested that her school district provide her with CART for her classes. The school denied the accommodation noting that as long as a student with a disability is passing her classes, no accommodation is necessary under precedent interpreting the IDEA. The family filed an unsuccessful due process compliant.
K.M. brought suit against the school district in a federal court in California not only under IDEA, but also under the ADA and Section 504 of the Rehabilitation Act of 1973. While the district court was sympathetic to K.M., the court agreed with the school district that as long as K.M. was passing her classes, no further accommodation was necessary.
K.M. appealed to the 9th U.S. Circuit Court of Appeals, at which time AG Bell filed an amicus brief with the court in her support. AG Bell argued the ADA’s standard is different from that of IDEA, and that CART interpreting is necessary for students who are deaf to receive full and equal access in the classroom. AG Bell also noted that courts have held that captioning is necessary for access for individuals who are deaf and hard of hearing in a variety of contexts, such as for watching movies and participating in courtroom proceedings. AG Bell argued that access for the classroom was no different. The U.S. Department of Justice (DOJ) also filed an amicus brief in the case essentially agreeing with AG Bell’s arguments.
“This case sets a national standard for all public schools requiring them to give requests for CART by students who are deaf and hard of hearing primary consideration as an auxiliary aid when needed to provide equal and effective communication access. Public schools can no longer hide behind the IDEA which only requires a basic floor of opportunity,” said attorney David M. Grey, who represented K.M. and another student in the case.
Victory in Argenyi Case
This case is bolstered by a similar decision in the 8th U.S. Circuit Court of Appeals which ruled in favor of the plaintiff in Argenyi v. Creighton University (No. 11-3336), a similar case involving a medical school student.
Michael Argenyi, who has been deaf since infancy and recently received a cochlear implant, was denied CART by Creighton University Medical School in Omaha, Neb. Argenyi ended up spending nearly $100,000 of his own money to pay for CART. The case was appealed to the circuit court and AG Bell filed an amicus brief. The DOJ also filed a brief in this case, largely agreeing with AG Bell’s arguments.
In an unanimous decision, The 8th Circuit Court agreed with Argenyi, AG Bell and the DOJ that Creighton University had violated the ADA by denying CART. The Court ruled that accommodations are necessary if they ensure that people have full and equal enjoyment of public accommodations, including university classrooms.
“School districts may have an uphill battle trying to prove they’ve complied with federal law when they deny CART to a child with hearing loss, given the DOJ guidance on the issue and the similar Argenyi v. Creighton case,” said Steven Rech, a former AG Bell board member who wrote the Argenyi amicus brief for AG Bell. This brief was written with assistance from Mark Merrell, both of Schwartz, Junell, Greenberg & Oathout LLP in Houston, Texas. AG Bell is grateful for their assistance.
The K.M. brief was written and filed by Molly Askin of Baker Botts LLP in Washington D.C. Askin has been previously involved in AG Bell’s amicus efforts in the 9th Circuit with success. AG Bell is grateful to Askin and Baker Botts for their assistance.
About the AG Bell Association
The Alexander Graham Bell Association for the Deaf and Hard of Hearing (AG Bell) helps families, health care providers and education professionals understand childhood hearing loss and the importance of early diagnosis and intervention. Through advocacy, education and financial aid, AG Bell helps to ensure that every child and adult with hearing loss has the opportunity to listen, talk and thrive. With chapters located in the United States and a network of international affiliates, AG Bell supports its mission: Advocating Independence through Listening and Talking! Visit ListeningandSpokenLanguage.org.
