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DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools

Title II of the Americans with Disabilities Act (Title II)

Title II and Section 504 are similar, but not identical in their scope. They both use the same definition of disability; they both protect students with disabilities regardless of their eligibility for special education and related services under the IDEA; and they both apply to every public elementary and secondary school in the country. Nonetheless, because the statutes vary in certain respects, they are each addressed separately.

Title II prohibits disability discrimination against qualified individuals with disabilities by all state and local governments, regardless of whether or not those entities receive Federal funds.8 Title II applies to all programs, activities, and services of public school districts, including all public schools within school districts. This includes all public charter schools and magnet schools. Under the ADA (including Title II), a disability is (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment.9 

Public school students with disabilities are covered by Title II regardless of their eligibility for special education and related services under the IDEA. The United States Department of Justice (DOJ) is responsible for implementing interpretive regulations for Title II, which are found in the Code of Federal Regulations (C.F.R.) at 28 C.F.R. pt. 35. These regulations require, among other things, that public schools provide students with disabilities an equal opportunity to participate in all school activities and that public schools ensure, through the provision of auxiliary aids and services, that communication with students with disabilities is as effective as communication with students without disabilities.10 Both DOJ and the Office for Civil Rights (OCR) in the United States Department of Education (ED) have responsibility for enforcing Title II and its regulations in public elementary and secondary education; this includes enforcing the Title II rights of IDEA‐eligible students.

Under Title II, “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104.
9 42 U.S.C. § 12102(1). The ADA Amendments Act of 2008 amended the definition of disability for Titles I, II, and III of the ADA as well as Section 504. Pub. L. No. 110‐325, 122 Stat. 3553 (2008). For a discussion of the United States Department of Justice’s (DOJ’s) interpretation of the changes to the definition, please see DOJ’s Notice of Proposed Rulemaking to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839 (January 30, 2014). See also the Equal Employment Opportunity Commission’s final ADA title I rule incorporating the ADA Amendments Act of 2008, 76 Fed. Reg. 16977 (March 25, 2011), 29 C.F.R. pt. 1630.
10 28 C.F.R. §§ 35.130 and 35.160. While Title II’s nondiscrimination mandate goes beyond requiring effective communication, this document only addresses the Title II effective communication requirements for public school students.

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