UNITED STATES OF AMERICA
THE SCHOOL DISTRICT OF THE CITY OF DETROIT
- The parties to this Settlement Agreement are the United States of America (“United States”) and the School District of the City of Detroit (“DPS” or “School District”).
- The United States Department of Justice, of which the United States Attorney’s Office for the Eastern District of Michigan is a component, is the federal agency responsible for administering and enforcing Title II of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12131-12134.
- The School District is a public entity within the meaning of title II of the ADA, 42 U.S.C. § 12131, and therefore is subject to the requirements of title II, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. Part 35.
Investigation and Findings
- This matter was initiated by a complaint filed with the United States against the Detroit Public Schools, alleging violations of title II of the ADA, 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R. Part 35. The Complainant, who is deaf, is the parent of a child who was a student at the School District's Early Childhood Intervention Program during the 2011-2013 school years. This program provides family-centered early intervention services for infants and toddlers with developmental delays. Parental involvement is a key component of the program. The Complainant alleged that the School District denied her effective communication by refusing to provide her with a sign language interpreter at either the home or center-based teaching sessions, so that she could actively participate in the education of her child.
- Complainant is deaf and relies upon American Sign Language as her primary means of communication. Complainant is a qualified individual with a disability within the meaning of the ADA. 42 U.S.C. §12131; 28 C.F.R. §35.104.
- The United States is authorized, under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine the School District's compliance with Title II of the ADA and the Title II implementing regulation at 28 C.F.R. pt. 35. The United States is also authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the United States is authorized, under 42 U.S.C. § 12133, to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance pursuant to Subpart F.
- Pursuant to 28 C.F.R. § 35.190(e), the Department of Justice has exercised its discretion to retain this complaint for investigation under title II of the ADA. This Agreement does not address rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, or any other laws.
- Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132; 28 C.F.R. §35.130(a). Title II further requires that a public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of any offered program or service. 28 C.F.R. §35.160(b).
- In 2008, the State of Michigan determined that a serious financial problem existed in the School District and following subsequent review determined that a financial emergency existed warranting the appointment of an Emergency Financial Manager pursuant to Local Government Fiscal Responsibility Act 72. The School District remains under Emergency Management pursuant to the Local Financial Stability and Choice Act, Public Act 436 of 2013.
- The School District has cooperated fully in the United States' investigation and has maintained that it is committed to compliance with the ADA.
- The Parties agree that it is in the parties' interests, and the United States believes that it is in the public interest, to resolve this matter expeditiously and without protracted litigation. Accordingly, the School District, without admitting liability or wrong-doing, and the United States, without requiring such an admission or conceding that its claims are not well-founded, have agreed to resolve this matter as set forth below.
ACTIONS TO BE TAKEN BY THE SCHOOL DISTRICT
- The term “auxiliary aids and services” includes qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 35.104.
- The terms “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 35.104.
- The term “Parent” shall be broadly construed to include any individual with a disability, including someone who is deaf or hard of hearing, and who is a family member, either biological or adopted, or guardian, either legal or acting, of any student enrolled in any program offered by the School District, who in relation to such student, is an appropriate person with whom the School District should communicate. 28 C.F.R. §35.160.
- The School District shall not engage in any act or practice that has the purpose or effect of discriminating against an individual with a disability in accordance with title II of the ADA. 28 C.F.R. §35.130.
- The School District shall modify its policies, practices, and procedures as necessary to ensure that communication with Parents with disabilities are as effective as communications with others to include but not be limited by the requirements set forth in this Settlement Agreement. 28 C.F.R. §§35.130(b)(7); 35.160(a).
- Immediately as of the Effective Date of this Settlement Agreement, the School District will ensure that appropriate auxiliary aids and services, including qualified interpreters, are made available to Parents who are deaf or hard of hearing, free of charge, when such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from the School District's services, programs, or activities on an equal basis with others. 28 C.F.R. §35.160(b). The School District shall not require a Parent to bring another individual to interpret for him or her. Id., §35.160(c).
- In determining what type of auxiliary aid or service is necessary to comply with the ADA, the School District agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. 28 C.F.R. §35.160(b)(2). “Primary consideration” means that the School District will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the School District can demonstrate that another equally effective means of communication is available.
- The determination of appropriate auxiliary aids and services, and the timing, duration, and frequency with which they will be provided, should be made at the time the student is enrolled in a school program, or upon request by the Parent, or when the District determines services are needed, whichever is earlier. The School District shall promptly notify the requestor if additional information, consistent with that permitted under title II of the ADA, is needed to evaluate the request and shall specify in writing what information is needed.
- If the Parent's participation with the student in a school program is ongoing, the School District will continue to provide the appropriate auxiliary aids or services to the Parent without requiring a new request for such auxiliary aids or services for each session or event.
- If a Parent does not request auxiliary aids or services, but the School District has reason to believe that such person would benefit from auxiliary aids or services, the School District will specifically inform the Parent that auxiliary aids and services are available free of charge.
- The School District shall establish and maintain a list of qualified interpreters or interpreter agencies that employ or arrange the services of qualified interpreters, to ensure that qualified interpreter services are available upon reasonable notice.
- The School District shall maintain a log of each request made by a Parent for an auxiliary aid or service. The log will record the time and date of the request, the name of the individual who made the request, the name of the individual from whom the auxiliary aid or services is being requested (if different from the requestor), the specific auxiliary aid or service requested, the determination regarding the request and who participated in the decision-making, the time and date the auxiliary aid or service was provided, the type of auxiliary aid or service provided if different from what was requested, and, if applicable, a statement that the requested auxiliary aid or service was not provided. The School District also shall maintain all documents created by the School District or that come into its possession, custody, or control relating to such requests. The School District shall provide a copy of the log(s) to the United States six months from the date that the School District adopts the amended policies, practices and procedures pursuant to paragraph 27, and once every six months thereafter for the duration of this Settlement Agreement. The School District shall provide any supporting documentation upon request.
- The School District shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under title II of the ADA and this Settlement Agreement, including any investigation of any complaint communicated to it alleging its noncompliance with, or alleging any actions that would be prohibited by, title II of the ADA. 28 C.F.R. § 35.107(a).
- The School District shall adopt grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by title II of the ADA. 28 C.F.R. § 35.107(b).
- The School District shall not retaliate in violation of 42 U.S.C. § 12203 against the Complainant, her child, or any person based on their cooperation with the Department's investigation of this matter, nor on the basis of any person's involvement in the administration of this Settlement Agreement. 28 C.F.R. §35.134.
- Within sixty (60) days of the effective date of this Settlement Agreement, the School District shall submit to the United States, for review and approval, the amended policies, practices, and procedures required by paragraphs 16 and 25. The School District will adopt the amended policies, practices, and procedures within thirty (30) days following the United States' approval.
- Within fifteen (15) days after adoption of the policies, practices, and procedures required by paragraphs 16, 25, and 27 of this Settlement Agreement, the School District shall publish an announcement and description of its ADA effective communication policy(ies) on its website's homepage, and any other relevant subpage. Within thirty (30) days, the School District shall post and maintain signs of conspicuous size and print in each school office or waiting area, and administrative buildings waiting areas, a statement to the following effect:
In compliance with state and federal law, DPS will provide, at no cost, accommodations and services for individuals with disabilities, including auxiliary aids and services, such as qualified sign language interpreters, video remote interpreting, text telephones, videotext displays and note takers for the deaf and hard of hearing; braille and readers for the blind; and access to elevators, lifts, and ramps.
These signs will include the international symbols for "interpreters."
- The School District will include in all future printings of its Student Handbook (or equivalent) and all similar publications, a statement to the following effect:
To ensure effective communication with our students' families or guardians who are disabled, including those who are deaf or hard of hearing, or blind, we provide appropriate auxiliary aids and services free of charge, such as qualified sign language and oral interpreters, audio recordings, readers, and braille.
- Within sixty (60) days after the adoption of policies, practices, and procedures required by paragraph 27 of this Agreement, the School District shall provide training to the following School District staff members on the School District's obligations to individuals with disabilities under title II of the ADA, including obligations with respect to effective communication with Parents: all Principals, Assistant Principals, School Secretaries, School Psychologists or Social Workers, Teachers, and any other staff members that might interact with Parents. The School District shall provide such training for new staff as soon as practicable upon hire, and on an annual basis for existing staff for the term of this Settlement Agreement. Within thirty (30) days of these trainings, the School District shall provide a certification to the United States that the trainings were completed.
- During the term of this Settlement Agreement, the School District will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that the School District failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing via first class and electronic mail within fifteen (15) days of the day when the School District has received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and a copy of the lawsuit, written complaint, charge, or grievance. The United States reserves the right to request the underlying documentation possessed by the School District or any of its agents or representative relevant to the allegations.
- The School District shall pay compensatory damages in the total amount of five thousand dollars ($5,000.00) to Complainant. Payment shall be made within thirty (30) days through a check made out to the Complainant, and sent by Federal Express or certified mail, return receipt requested, to:
U.S. Attorney's Office
211 W. Fort Street, Ste. 2001
Detroit, MI 48226
Attn: Civil Rights Unit, Chief
- Within twenty (20) days of receiving the check for the Complainant, the United States will deliver to counsel for the School District, a release of all claims arising out of allegations encompassed within DJ # 204-37-342, signed by Complainant.
IMPLEMENTATION AND ENFORCEMENT
- With reasonable notice, the United States may review the School District's compliance with this Settlement Agreement or title II of the ADA at any time. If the United States believes that this Settlement Agreement or any portion of it has been violated, the United States will raise its concerns with the School District and will attempt to resolve its concerns with the School District in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the School District, the United States may institute a civil action in the appropriate United States District Court to enforce this Agreement.
- For purposes of the immediately preceding paragraph, it is a violation of this Settlement Agreement for the School District to fail to comply in a timely manner with any of the requirements in this Settlement Agreement without obtaining sufficient advance written agreement with the United States for an extension of the relevant time frame imposed by the Agreement.
- Failure by the United States to enforce any provisions or deadlines of this Agreement shall not be construed as a waiver of the United States' right to enforce other deadlines or provisions of this Agreement.
- A signatory to this document in a representative capacity for the School District represents that he or she is authorized to bind the School District to this Agreement.
- If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and the School District shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
- This Agreement constitutes the entire agreement between the United States and the School District on the matters raised herein and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable. This Agreement can only be modified or amended by mutual written agreement of the parties.
- This Agreement does not affect the School District's continuing responsibility to comply with all aspects of the ADA.
- The Effective Date of this Agreement is the date of the last signature below.
- The duration of this Agreement will be three (3) years from the Effective Date.
AGREED AND CONSENTED TO BY:
SCHOOL DISTRICT OF THE
CITY OF DETROIT
/s/ Darnell Earley
3011 W. Grand Blvd., 14th floor
Detroit, MI 48202
UNITED STATES OF AMERICA
BARBARA L. McQUADE
United States Attorney
/s/ Susan K. DeClercq
SUSAN K. DeCLERCQ
Assistant U.S. Attorney
211 W. Fort Street, Ste. 2001
Detroit, MI 48226