The U.S. Department of Education Office for Civil Rights issued a determination in August concerning disability accommodations for an advocate at a Committee on Special Education annual IEP review meeting. In Smithtown, N.Y. Central School District, 117 LRP 46371 (OCR Aug. 10, 2017) the office resolved a complaint by a professional advocate that the school district discriminated against her on the basis of disability by denying her request for a notetaker at the meeting, by failing to engage in an interactive process to discuss any alternative accommodations, and by failing to provide the accommodation it did offer, having the chair of the meeting summarize the meeting at its end. The advocate said that before the meeting she requested the accommodations of a quiet room and a notetaker. Although she was promised a quiet room, the district denied the request for a notetaker and said that instead, it would provide a written summary of the meeting and have the chair summarize the meeting’s outcome before it ended. Eight people attended the one-and-a-half-hour session. Although the advocate was an active participant, she said she missed some of what the resource room teacher said, and the parent reported that the advocate appeared frustrated when some meeting participants spoke at the same time. The chair did not summarize the meeting before it was over. The meeting was recorded, but the recording could not be transcribed, and although a recording on CD was sent to the parent, no recording was sent to the advocate.
OCR cited a Section 504 regulation, 34 C.F.R. § 104.4, which forbids exclusion from participation in any program or activity of a recipient of federal funding, and it pointed out that the Americans with Disabilities Act regulations governing state and local government activities require that “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity,” 28 C.F.R. § 35.130(b)(7), and “A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” Under the regulations, primary consideration must be given to the request of the individual with a disability in determining what types of auxiliary aids and services are provided, id. at .160(b)(2), and the covered entity must ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others,” id. at .160(a)(1).
OCR found that the school district violated the Section 504 and ADA regulations by denying the advocate’s request for a notetaker at the meeting, by failing to engage in an interactive process to discuss alternative accommodations, and by failing to provide the accommodation it offered. Smithtown agreed to a resolution agreement requiring a change in the district’s policies, plus updating of external and internal communications and provision of training to responsible employees.
The ruling in Smithtown provides a cautionary tale for impartial hearing officers and others involved in the administration of the procedural protections afforded under the IDEA. It is well recognized, and required by the IDEA regulations, that school districts must take whatever action is needed to ensure that parents understand the proceedings at IEP meetings, 34 C.F.R. § 300.322(e). It may be less well understood that under Section 504 and the ADA similar obligations would apply with regard to advocates, and extend to due process hearings. The hearing process is an activity of state and local government and is part of an enterprise that receives federal financial support, so Section 504 and ADA obligations cannot be ignored.