AG Bell Files Amicus Brief Supporting CART Interpreting for Students who are Deaf and Hard of Hearing

WASHINGTON, DC – February 2, 2012 – The Alexander Graham Bell Association for the Deaf and Hard of Hearing (AG Bell) filed two amicus briefs within days of each other in federal courts of appeal supporting the right of students who are deaf and hard of hearing to receive Communication Access Realtime Translation (CART) interpreting in the classroom under federal disability law.

K.M v. Tustin Unified School District

In K.M. v. Tustin Unified School District (PDF) (No. 11-56259) in the 9th U.S. Court of Appeals, K.M. is a high-school student who is deaf and uses cochlear implants and speechreading to communicate. When she reached high school, she requested that her school district provide her with CART interpreting for her classes. The school refused to do so, noting that K.M. could speechread well and was passing her classes. According to the school district, as long as the student with a disability is passing her classes, no accommodation is necessary under precedent interpreting the Individuals with Disabilities Education Improvement Act (IDEA).

K.M. brought suit against the school district in a federal court in California not only under IDEA, but also under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. While the district court was sympathetic to K.M., the court agreed with the school district that as long as K.M. was passing her classes, no further accommodation was necessary.

K.M. appealed to the 9th Circuit, and AG Bell filed an amicus brief with the Court in her support. AG Bell argued the ADA’s standard is different from that of IDEA, and that CART interpreting is necessary for students who are deaf to receive full and equal access in the classroom. AG Bell also noted that courts have held that captioning is necessary for access for individuals who are deaf or hard of hearing in a variety of contexts, such as for watching movies and participating in courtroom proceedings. AG Bell argued that access for the classroom was no different. The Department of Justice (DOJ) also filed an amicus brief in the case essentially agreeing with AG Bell’s arguments.

The K.M. brief was written and filed by Molly Askin of Baker Botts LLP in Washington D.C. Askin has been previously involved in AG Bell’s amicus efforts in the 9th Circuit with success. AG Bell is grateful to Askin and Baker Botts for their assistance.

Argenyi v. Creighton University

The Argenyi v. Creighton University (PDF) (No. 11-3336) in the 8th Circuit is very similar to the K.M. case, but in the medical school context. Michael Argenyi, who recently received a cochlear implant, has been deaf since infancy and grew up using listening and spoken language. He had used CART interpreting for many years in school and enrolled in Creighton University Medical School.

However, Creighton University rebuffed his request for CART interpreting. Instead, Creighton told Argenyi to sit in the front row of the classroom and speechread professors. Creighton also offered to provide Argenyi with a notetaker and FM assistive listening device, and informed him that its lectures were available on the audio podcast on the school’s website. Argenyi said that these accommodations were not effective given his profound hearing loss, and that he needed CART interpreting to fully understand the lectures. He ended up spending nearly $100,000 of his own money to pay for CART interpreting.

Argenyi brought suit against Creighton in federal court in Nebraska alleging violations of the ADA and Section 504. As was the case with K.M., the district court ruled in the school’s favor, holding that Argenyi had not been denied access to the medical school because he was passing his classes—albeit while paying for his own interpreting. The district court also questioned whether CART interpreting was necessary for Argenyi. Argenyi appealed to the 8th Circuit, and AG Bell filed an amicus brief in his support. AG Bell argued that the ADA clearly requires universities to provide accommodations to ensure that students with disabilities have equal access to classroom materials, and that Creighton seriously overestimated how much Argenyi could understand in the classroom lectures using his cochlear implant and speechreading. The DOJ also filed a brief in this case largely agreeing with AG Bell’s arguments.

The Argenyi brief was written by Steven R. Rech, former A.G. Bell board member, with assistance from Mark Merrell, both of Schwartz, Junell, Greenberg & Oathout LLP in Houston, Texas. AG Bell is grateful for their assistance.

Both cases could have a widespread impact on accessibility for students with hearing loss seeking CART interpreting, said AG Bell President Kathleen Treni. “These cases may set a precedent in recognizing that CART is often necessary for students who are deaf or hard of hearing to have full access to classroom communication,” Treni said. “CART interpreting has become one of the most popular forms of interpreting and these cases may help to bring CART into more widespread use in the classroom.”

Both cases likely will be argued over the summer and may be decided before the end of the year. AG Bell will closely monitor the cases.