Deaf Students Appeal to 9th for Better Tech

     PASADENA, Calif. (CN) - A deaf teenager who wanted her Los Angeles-area school to use a real-time captioning service asked the 9th Circuit to revive her discrimination suit.
     Computer-assisted real-time captioning, or CART, uses a captionist to transcribe text into words that appear verbatim on a computer screen.
     The Tustin Unified School District opted, however, to use the FM Technology system, which uses a microphone to deliver voice signals, during class discussions and video presentations.
     K.M., a 15-year-old deaf student in Tustin, claimed that the system transmitted background noise and gave her headaches. In a 2010 complaint, she claimed that the lack of access to CART constituted a violation of the Individuals with Disabilities Education Act.
     An administrative law judge found that IDEA did not force this requirement on Tustin, and U.S. District Judge David Carter affirmed last year.
     The court also granted the district's motion for summary judgment on claims that it violated the American with Disabilities Act, the Rehabilitation Act and Unruh Civil Rights Act.
     On Monday, a three-judge panel heard arguments to revive the claims, which it consolidated with a similar case, D.H. v. Poway School District.
     David Grey, of Grey & Grey, told the court that, "at its heart," the case concerned communication access to which individuals are entitled under the American with Disabilities Act (ADA).
     He said the judges should distinguish it from the Individuals with Disabilities Education Act.
     "The ADA question was never addressed by either of the District Court judges," Grey said. "Instead both the District Court judges looked solely at IDEA."
     Jack Clarke, a Best Best & Krieger attorney representing Tustin, countered that IDEA compliance prevented the "discrimination which the ADA sought to prohibit."
     "The ADA communication requirement is reflected in the IDEA requirement that you consider the communication needs of the student," Clarke told the panel.
     Arguing for Poway schools, attorney Marlon Wadlington echoed the idea that "the ADA is in harmony with the IDEA."
     "The slippery slope that we're going down here and is my concern, is that the next counsel will come in and use an analysis from this court that says that there's a higher burden pursuant to the ADA, to then come in and extend that to every student who has a disability, which would effectively obliterate the IDEA," said Wadlington, of Atkinson, Andelson, Loya, Ruud & Romo.
     The students received amicus support from Justice Department attorney Jennifer Levin Eichhorn.Judges Marsha Berzon, Richard Clifton and Sandra Ikuta sat on the panel Monday.