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Legal Updates from KLO

The E-Learning Issue: Compliance with the ADA and Section 504

Posted on August 03, 2020


By: Lily Crespo Esq.

August 3, 2020

The Americans with Disabilities Act (ADA) turned 30 last week. As schools in Montana tackle reopening guidelines, we decided to provide school leaders with a quick refresher on best practices when designing distance learning programs compliant with the ADA and Section 504.

Online learning needs to be accessible to all students. We recommend districts consider the following:

  • Review accommodations and/or assistive technology currently documented in the student’s IEP or 504 plan.
  • Consider how the accommodations or assistive technology supports that are documented in the IEP will be provided through online learning.
  • Communicate with the student and parent/guardian on how to access the accommodation or assistive technology required.
  • Consider if the online learning environment poses additional barriers to student access to the general education curriculum and progress towards IEP goals.

Background: The ADA guarantees equal protection for people with a wide range of disabilities, from mental health issues to physical challenges. It was modeled after the 1964 Civil Rights Act, providing equal access to government services, schools, buildings, private employers and commercial facilities.

Title II of the ADA and Section 504 require educational agencies to provide students with disabilities equal access to educational benefits. That includes benefits afforded by technology, such as e-books, electronic book readers, screen-reader software, and online instructional material. Title II also requires educational agencies to ensure that their public websites are accessible, not just to students, but also to staff members, parents, and visitors.

What legal responsibilities do schools have to provide accessible learning for students with disabilities?

In a fact sheet issued on March 21, 2020, OSERS and OCR explained that the IDEA and Section 504 should not impede the use of virtual or online education during school closures caused by the COVID-19 pandemic.

“School districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically,” the agencies emphasized.

OCR and OSERS noted that when it is not feasible to provide IEP services safely in person during a school closure, online options or other modifications may be available.

“These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing,” the agencies wrote.

OSERS and OCR further noted that when educational materials are not available in an accessible format, educators can provide “equally effective alternate access” to the curriculum. For example, the agencies explained that an educator might read a document to a student with a visual impairment over the phone.

Strategies to ensure continuity of learning

  • Designing for different age groups. Instructional design, course design, and plans for support must be aligned with the skill level of age groups. For example, those serving the elementary and middle school levels might consider creating instructional materials for both students and parents (on how to teach a specific lesson to their children), while high school students are likely more capable independent learners.
  • Supporting system training. Training on the use of continuity of learning systems is necessary for faculty, staff, students, and parents to ensure continuity and accessibility.
  • Ensuring accessibility. Not all students may have access to the internet, phone lines, TV, or radio at the same time, or at all, during a prolonged school closure or student absence. Therefore, it is important to offer a variety of methods of distance learning. You must also consider Section 508 of the Americans with Disabilities Act, which provides accessibility guidelines for individuals with disabilities. Materials must be provided in alternative formats, when necessary.
  • Preparing for short- and long-term school closures. Tools that might be useful during the short term might not work for long-term closures. School emergency management and continuity planning teams must assess which tools work best for their schools and/or districts based on the anticipated length of closure, current resources available, student access, and grade level.
  • State policies on online learning. Many states have established policies regarding online learning. As schools and districts develop continuity of learning and education plans, they should consult their respective state policies to ensure their plans are aligned.

The unprecedented challenges posed by Covid-19 to schools in Montana can be overcome and dealt with one by one. KLO is here reading and parsing through as much guidance as we can to help you through this transition. Remember self-care and do the next right thing. As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily at 406-542-1300 to discuss these issues.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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