ADA Obligations of Private Schools, Classes, or Programs

This memorandum addresses the obligations of businesses, schools, organizations, recreational organizations, daycare centers, museums, and institutions to provide auxiliary aids and services to deaf or hard of hearing students who are attending classes, seminars, workshops, training, and other educational, cultural or recreational activities.

Title III of the Americans with Disabilities Act (ADA), P.L. 101-336, 42 U.S.C. § 12181 et seq., provides people with disabilities the right to equal access to public accommodations.  ADA Title III covers a wide range of places, including private for-profit businesses and non-profit organizations offering training classes, training institutions, and private schools at every level of education.  These places of public accommodation are required to provide auxiliary aids and services to ensure effective communication with deaf and hard of hearing people.  The ADA also requires the removal of structural communication barriers that are in existing facilities, by the installation of flashing alarm systems, permanent signage, and adequate sound buffers. Public accommodations are required to provide auxiliary aids and services when they are necessary to enable a person with a disability to benefit from their services:

A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

28 C.F.R. § 36.303(c).

This requirement applies to all activities and services of the educational entity.  For example, if a student is enrolled in a private school, all of its activities including extracurricular activities and activities involving parents need be accessible to a parent or a child who is deaf or hard of hearing.

The appropriate type of auxiliary aid or service will depend on the type of activity and the needs of the individual.  A list of auxiliary aids and services required by the ADA is set forth in this regulation, and includes, for deaf and hard of hearing individuals:

[q]ualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons [TTYs], videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

28 C.F.R. § 36.303(b)(1).

Deaf or hard of hearing individuals who use sign language may use the services of a qualified sign language interpreter.  Deaf or hard of hearing individuals who do not use sign language may use the services of an oral interpreter or real-time computer transcription (also called CART).  The appropriate auxiliary aid or service depends on the needs of the individual and the type of training or education.  The Analysis to this regulation states that Congress, as well as the Department of Justice, “expects that public accommodations will consult with the individual with a disability before providing a particular auxiliary aid or service.”  56 Fed.Reg. at 35567.

The term qualified interpreter is defined by the regulation as:

. . . an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.

28 C.F.R. § 36.104.

The costs for providing auxiliary aids and services may not be imposed upon the individual with a disability.  28 C.F.R. § 36.301(c).  The cost of providing an auxiliary aid or service should be considered part of the organization’s overhead expenses.  While places of public accommodation are not required to provide auxiliary aids or services if it would be an undue burden (significant difficulty or expense), it is clear that the fact that a student’s fee or tuition is less than the cost of an auxiliary aid or service will not suffice to show undue burden.  Some classes are available to the public without any charge.  Nevertheless, accommodations must be provided if it would not be an undue burden on the public accommodation.  The whole institution’s financial status will be reviewed for a determination of whether or not an accommodation would be an undue burden.

Businesses may be entitled to income tax credits for the provision of auxiliary aids or services and for alterations made to facilities to be accessible to persons with disabilities.