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OCT 18 1993

The Honorable Howard L. Berman Member, U.S. House of Representatives 14600 Roscoe Boulevard, Suite 506 Panorama City, California 91402 Dear Congressman Berman: This letter is in response to your inquiry on behalf of your constituent, Mr. David Bidna, Director of the Summer Academic Enrichment Program ("SAEP"), who wants to know the extent to which the Americans with Disabilities Act ("ADA") requires a private school to provide sign language interpreters to deaf students. The ADA authorizes the Department to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to the question raised by your constituent. This technical assistance, however, does not constitute a determination by the Department of Justice of your constituent's rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Private schools are places of public accommodation subject to the provisions of the ADA. As such, they are required to provide auxiliary aids and services that will ensure that individuals with disabilities are not excluded, denied services, segregated or otherwise treated differently from other individuals. A private school will only be excused from providing these auxiliary aids and services if doing so would either fundamentally alter the nature of the services it provides, or would result in an undue burden in terms of difficulty or cost. cc: Records; Chrono; Wodatch; McDowney; Magagna; Kuczynski; FOIA, MAF. X udd\kuccynsk\magagna\congress\berman.let

01-02656 -2The Justice Department's implementing regulations detail this requirement of non-discrimination, 28 C.F.R. 36.303(a), and define auxiliary aids and services as including qualified sign language interpreters. 28 C.F.R. ​ 36.303(b)(1). Therefore, SAEP would be required to provide a deaf student with an interpreter, if necessary for effective communication, and if doing so would not be too difficult or too costly. The regulations set out some guidelines for determining whether the provision of an auxiliary aid or service would result in an undue burden. They include: the nature and cost of the aid or service needed; the overall financial resources of the public accommodation; the effect on expenses and resources of providing a certain auxiliary aid or service; the size, financial resources, and type of operation of any parent corporation that might exist; and the fiscal and administrative relationship of the accommodation in question to a parent corporation. 28 C.F.R. ​ 36.104. It is important to bear in mind, however, that determining what is necessary for effective communication and what constitutes an undue burden requires a highly fact-specific inquiry. The ADA might require that a place of public accommodation, like SAEP, provide sign language interpreters for two students, but might not require a different interpreter for each of fifty students. However, the fact that this particular accommodation might constitute an undue burden would not alone justify denying admission to deaf applicants. The program would need to investigate less expensive means of providing effective communication. For example, although the program might not be able to provide each student with an interpreter, perhaps several deaf students in a classroom could benefit from the use of a single interpreter. Forms of effective communication other than interpreters might also be available, such as transcripts or

notes of class materials. Some alternatives might involve the modification of program policies, practices, and procedures. The ADA requires places of public accommodation to make such modifications where necessary to afford persons with disabilities the opportunity to participate in their goods, services, facilities, privileges, advantages, and accommodations. You should, therefore, advise your constituent that the inability to provide interpreters for each deaf student in his program does not relieve the program of the obligation to find less burdensome means of providing effective communication. Nor are auxiliary aids and services and the modifications mentioned in this letter necessarily the only alternatives available or the most appropriate ones for every circumstance. The information concerning auxiliary aids found in the enclosed copies of the Justice Department's title III implementing regulation and the 01-02657 -3Title III Technical Assistance Manual may help your constituent formulate a plan for effective communication with students with hearing impairments that will satisfy SAEP's obligations under the ADA. I hope this information will be helpful to you in responding to your constituent. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures