U.S. Department of Justice Finds Lincoln Public Schools Discriminates Against Deaf and Hard of Hearing Students
February 14, 2024, the U.S. Department of Justice (DOJ) announced that "Lincoln Public Schools (LPS) in Lincoln, Nebraska, violated the Americans with Disabilities Act (ADA) by denying some deaf and hard of hearing students an equal opportunity to attend their neighborhood schools."
DOJ's investigation found that LPS requires students it believes need American Sign Language (ASL) interpretation to attend a "cluster school" serving deaf and hard of hearing students.
According to DOJ, this "blanket policy" violates Title II of the ADA in the following ways:
"First, the blanket policy discriminates against qualified individuals with disabilities by denying them an equal opportunity to access a benefit of LPS’ educational program—the opportunity to attend their neighborhood elementary and middle schools and choose their high school. See 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1)(i)-(ii). While sometimes such students may attend electives at non-cluster schools, such limited access comes with costly transportation burdens and does not amount to the equal access enjoyed by students without disabilities. LPS’ policy denied Student A the educational opportunity provided to her nondisabled classmates to attend their neighborhood school close to home and with their siblings and neighborhood friends, and subjected her to new burdens, including 90 minutes per day of additional commute time. LPS’ proposed placement of Student B in a cluster school would have denied her effective communication and the socio-emotional benefit of attending senior year of high school with her friends and peers she had gone to school with since ninth grade. Student B successfully appealed the proposed placement but missed the first three weeks of school while her parents contested LPS’ proposed placement. And the policy denied Student C the opportunity to attend a high school that offered courses in his chosen career field, requiring him instead to spend time and money to commute to a non-cluster school program for his desired elective courses.
"Further, LPS’ school placement policy is unnecessary to ensure that LPS’ services are as effective as those provided to others. See 28 C.F.R. § 35.130(b)(iv). There is no valid reason why students cannot have their ASL interpreter needs met at their neighborhood schools. Students who need ASL interpreters are low incident – approximately one student or so per grade at LPS. Thus, LPS generally provides ASL interpreters to students on a one-on-one basis because students in different grades generally attend different classes. Such one-on-one interpreting services could be offered in neighborhood schools as readily as in the cluster school. Therefore, other than cases in which students need the additional intensive, specialized deaf or hard of hearing services only provided by a cluster school, there is no educational justification to require attendance at a cluster school and LPS should provide the students ASL interpreting at their neighborhood school.
"Second, LPS’ practices also violate their effective communication obligation to “take appropriate steps to ensure that communications with … participants … are as effective as communications with others,” 28 C.F.R. § 35.160(a)(1), and to provide “appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, an equal opportunity to participate in, and enjoy the benefits of [its] services, programs, or activit[ies],” 28 C.F.R. § 35.160(b)(1).
"LPS failed to provide Student A effective communication during kindergarten while she attended her neighborhood school. Despite recognizing Student A’s need for an ASL interpreter, LPS did not provide her with one when she attended her neighborhood school during homeroom and electives classes. During this period, Student A experienced discomfort and fatigue and was unable to effectively learn and communicate with her peers. LPS eventually concluded that Student A needed more ASL interpretation, observing that she was not able to fully participate in class without it. There is no evidence that LPS considered whether it could provide ASL to Student A in all her classes at her neighborhood school and no evidence suggests that LPS determined it met an affirmative defense under the ADA to justify its refusal to hire an ASL interpreter for all of Student A’s courses at her neighborhood school. Thus, Student A was denied effective communication under the ADA during the time she attended her neighborhood school.
"Similarly, LPS failed to provide Student B effective communication by proposing an auxiliary aid or service, ASL, that Student B did not understand. LPS proposed placing Student B at a cluster school during her senior year with an ASL Interpreter, where Student B would have lacked access to her curriculum each day, because she did not understand or use ASL. Prior to LPS applying its policy to Student B, LPS had been providing effective communication through a combination of Communication Access Real-time Translation (CART)-like services. These services included closed-captioning, exchanging electronic notes, talk to text technology, and a modified Communication Access Real-time Translation (CART) system (a paraprofessional who typed what was being said on a projector). Thus, LPS’ proposal to require Student B to learn and use ASL, denied her effective communication under the ADA because she could not understand ASL. Given that both ASL and CART-like services require a high degree of real-time visual focus, the proposed cluster school placement could not provide Student B with both the full extent of her CART-like services while also communicating with her in ASL through an interpreter. For the first three weeks of the school year, Student B’s parents removed her from school while they challenged her new placement, rather than send her to a new school with an ASL interpreter, an inadequate and ineffective auxiliary aid and service that she could not use for communication.
"LPS also harmed Student C, who is hard of hearing and needs an ASL interpreter. By requiring him to attend a cluster school, he could only participate in the high school choice program by driving another forty minutes a week for two years to attend a different high school that offered Student C’s desired electives. Because LPS refused to provide ASL services for all courses at the school offering Student C’s desired electives, he had to attend a cluster school and incurred the logistical and financial burden of driving to his elective course twice a week.
"Third, an independent claim for association discrimination is recognized under the ADA in the regulation at 28 C.F.R § 35.130(g) which makes it discriminatory for a public entity to “exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.” Student A’s parents experienced discrimination because of their relationship with Student A. Because LPS refused to provide ASL services at Student A’s neighborhood school, her parents incurred a separate violation of additional logistical, social, and financial burden of taking their child to a school that takes up to thirty minutes to drive to when the neighborhood school is within walking distance. They also incurred the burden of taking their children to two schools and were denied the benefit of having their children attend the same school together and bond with their neighbors at school. Such harms, which other families with multiple children at Student A’s neighborhood school did not face, are distinct enough from the harms to Student A. Similarly, Student B’s parent missed work and lost income during meetings with the school and her attorneys to contest Student B’s placement."
To remedy the violations, DOJ states that LPS must, at a minimum, implement the following:
"Withdraw its blanket policy requiring all deaf or hard of hearing students believed to need ASL interpretation services to attend a cluster school. Instead, LPS will provide individualized assessments that only place students in cluster schools if the student requires the services provided by the cluster school and those services cannot be provided at a student’s neighborhood school or if the student’s parents request placement at the cluster school.
"Adopt and implement a written non-discrimination policy (ADA/Non-Discrimination Policy) that documents the requirements of Title II and its implementing regulation including the obligation to provide an equal opportunity to students with disabilities as well as the obligation to provide effective communication to students who are deaf or hard of hearing.
"Train and educate all employees, contractors, and others providing services to LPS’ students on the ADA/Non-Discrimination Policy (ADA Training).
"Designate an employee to coordinate all LPS’ efforts to comply with and carry out LPS’ responsibilities under the ADA. These duties will include involvement in regular reporting regarding ADA compliance to the Department.
"Pay compensatory damages to aggrieved persons for injuries caused by LPS’ failure to comply with Title II."