2nd letter to California State University

LOF ISSUE DATE: 04/07/97

Dr. James M. Rosser, President
California State University – Los Angeles
5151 State University Drive
Los Angeles, California 90032

(In reply, please refer to Case Docket No. 09-97-2002)

Dear President Rosser:

On October 8, 1996, the U.S. Department of Education (the Department), Office for Civil Rights (OCR), received a complaint against California State University, Los Angeles (the University) alleging that the University is failing to provide access to blind and low vision students with respect to its library resources, campus publications, and its open computer laboratories located within the various departments. The complaint further alleged that there is insufficient student training on adaptive technology for blind users, and that inadequate provisions are being made with regard to computers for test-taking by blind students.

OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Department implementing Regulation at 34 Code of Federal Regulations (C.F.R.) Part 104, which prohibit recipients of Federal financial assistance from the Department from discriminating on the basis of disability in programs and activities. OCR also has jurisdiction as a designated agency under Title II of the Americans with Disabilities Act of 1990, and the implementing Regulation at 28 C.F.R. Part 35, over complaints alleging discrimination on the basis of disability filed against public educational institutions, including public colleges and universities. Since the University receives Federal financial assistance through the Department and is a public educational institution, it is subject to OCR jurisdiction under both Section 504 and Title II, and the implementing Regulations. Title II of the Americans with Disabilities Act (Title II) requires a public college to take appropriate steps to ensure that communications with persons with disabilities “are as effective as communications with others” [28 C.F.R. 35.160(a)]. OCR has repeatedly held that the term “communication” in this context means the transfer of information, including (but not limited to) the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet. Title II further states that, in determining what type of auxiliary aid and service is necessary, a public college shall give primary consideration to the requests of the individual with a disability [28 C.F.R. 35.160(b)(2)].

In construing the conditions under which communication is “as effective as” that provided to nondisabled persons, on several occasions OCR has held that the three basic components of effectiveness are timeliness of delivery, accuracy of the translation, and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability.

The courts have held that a public entity violates its obligations under the Americans with Disabilities Act when it simply responds to individual requests for accommodation on an ad-hoc basis. A public entity has an affirmative duty to establish a comprehensive policy in compliance with Title II in advance of any request for auxiliary aids or services [see Tyler v. City of Manhattan, 857 F. Supp. 800 (D. Kan. 1994)]. A recognized good practice in establishing such a comprehensive policy is to consult with the disability community, especially those members most likely to request accommodations.

The magnitude of the task public entities now face in developing systems for becoming accessible to individuals with disabilities, especially with respect to making printed materials accessible to persons with visual impairments, is comparable to the task previously undertaken in developing a process by which buildings were to be brought up to specific architectural standards for access. Buildings in existence at the time the new architectural standards were promulgated are governed by “program access” standards. However, buildings erected after the enactment of the new architectural standards are strictly held to the new standards on the premise that the builder is on-notice that such standards apply. One who builds in disregard of those standards is ordinarily liable for the subsequent high cost of retrofitting.

Similarly, from the date of the enactment of Title II onwards, when making purchases and when designing its resources, a public entity is expected to take into account its legal obligation to provide communication to persons with disabilities that is “as effective as” communication provided to nondisabled persons. At a minimum, a public entity has a duty to solve barriers to information access that the public entity’s purchasing choices create, particularly with regard to materials that with minimal thought and cost may be acquired in a manner facilitating provision in alternative formats. When a public institution selects software programs and/or hardware equipment that are not adaptable for access by persons with disabilities, the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection.

With respect to the question of when a public entity can require the computer user with the disability to learn unfamiliar adaptive technology software programs, when the user is already proficient in a different program, it would seem reasonable to conclude that if the public entity is employing a widely used program that is generally regarded by knowledgeable experts as reliable for access by persons with that type of disability (e.g., blindness), the person with the disability may well be required to learn the program selected by the institution. On the other hand, if the public institution has installed a program that is generally regarded by knowledgeable experts as providing cumbersome inferior access to persons with visual impairments, the person with the disability may rely upon the Title II provision requiring that “primary consideration” be given to his/her request for the institution to purchase the software with which s/he is proficient.

With the foregoing as a foundation, OCR provides the following technical assistance on the subject of access to public library resources by visually impaired individuals.

When looking at exactly which of its resources a library is obligated to provide in an accessible medium, the short answer is any resources the library makes available to nondisabled patrons must be made accessible to blind patrons. This includes the library catalogue, the archived microfiche, daily newspapers, and the Internet (if that is a service provided to sighted patrons). A categorical decision by a public library not to even consider a request by a patron for a particular alternative format is in most instances a violation of Title II. However, when determining what alternative format is most appropriate, a library may take into account how frequently the material is used by patrons and the longevity of the material’s usefulness. For instance, more serious consideration should be given to translating into Braille frequently used reference materials which have a long “shelf-life” than would be true for daily newspapers.

Moreover, the basic purpose of the library may be taken into account in shaping the library’s obligations to make its resources available to its patrons, including its patrons with disabilities. “[U]nlike many public libraries which provide total information services to the general public, the primary mission of the University Library is to support and enhance the curricula of the University. Therefore, the University may, in appropriate circumstances, allocate or set priorities in use of resources consistent with the fundamental purpose of the University Library, but may not condition access to services, such as the microfiche collection, upon a showing of academic or course related relevance if those services are available to nondisabled students without such a showing” [OCR Case Docket No. 09-95-2056 (February 7, 1997)].

Modern adaptive technology has radically affected the degree to which it is economically feasible to make printed materials and computer based information systems accessible to blind patrons. The larger and more financially endowed the library, the higher the expectation that a greater volume of information will be made available within a shorter amount of time, particularly when reasonably priced adaptive technology is available to replace tasks that previously required personnel.

An important indicator regarding the extent to which a public library is obligated to utilize adaptive technology is the degree to which it is relying on technology to serve its nondisabled patrons. The more technology that has been purchased by a public library to serve nondisabled patrons, the more reasonable the expectation that it will employ technology such as scanners to serve its patrons with disabilities. In other words, a library’s decision to purchase technology of any kind not only creates an expectation that the newly purchased technology will be accessible, but it suggests that the library now has the resources and expertise to fully consider the role of technology with regard to other aspects of its program. A library that has computerized its catalogue and has several computer workstations offering the Internet may be expected to seriously consider such items as an optical character recognition scanner and/or screen reader with voice output for inclusion in its technological acquisitions.

In most OCR cases, at any point prior to completion of the investigative stage of the case, the college may indicate that it is interested in exploring voluntary resolution of the issues identified in the case. A commitment by the college to voluntarily resolve the issues usually substantially reduces the necessity for further investigation and may eliminate the need for OCR findings of compliance and/or noncompliance.

In this case, the University elected to proceed toward voluntary resolution.

By letter dated February 6, 1997, OCR provided draft language that would be sufficient, upon adoption by the University, to resolve the issues in this case. The University requested that the OCR proposed date for University implementation of all steps necessary for resolution of the issues (April 15, 1997) be extended (to June 30, 1997). In a telephone conference on March 6, 1997, between OCR and the University, the University indicated that it was already in the process of resolving the issues, and that some steps could be completed sooner than June 30, 1997. By letter dated March 14, 1997, the University reiterated that all areas included in OCR proposed resolution dated February 6, 1997, would be addressed by June 30, 1997, and that certain steps would be completed sooner (in fact, the University maintains that some of the steps proposed by OCR are already being implemented, e.g., most campus publications are available through the network connection, as described in the University’s previous letter dated December 13, 1996). OCR accepts the University’s written commitment of March 14, 1997, interpreted in the context of the OCR proposed resolution plan of February 6, 1997, and the telephone conference of March 6, 1997, as resolving the issues in this case. A monitoring report documenting that the University has fully addressed each of the areas set out in the OCR proposed resolution plan is due to OCR by July 15, 1997.

Under the Freedom of Information Act, it may be necessary to release this letter and related correspondence and records upon request. In the event that OCR receives such a request, it will protect, to the extent provided by law, other personal information which, if released, would constitute an unwarranted invasion of privacy.

If you have further questions regarding this letter, please contact Ms. XXXXX.


Adriana Cardenas
Team Leader