Letter to Loyola Marymount University
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January 15, 1992
Reverend Thomas P. O’Malley, S.J.
Loyola Marymount University (LMU)
Loyola Boulevard at West 80th Street
Los Angeles, California 90045
(In reply, please refer to Docket Number 09-91-2157.)
Dear Reverend O’Malley:
The Office for Civil Rights (OCR), U.S. Department of Education (Department), has completed its investigation of the complaint Mr. XXXXX (complainant) filed against Loyola Marymount University (LMU) on behalf of his daughter, XXXXX on September 3, 1991. He alleges that LMU refuses to purchase equipment or provide requisite services to academically assist his daughter, who is totally visually impaired.
OCR reviewed documents submitted by both the complainant and LMU. OCR interviewed: 1) the complainant and his daughter; 2) the LMU Disabled Student Services Coordinator and the Director, Learning Resource Center; and 3) the District Administrator, California Department of Rehabilitation. After assessing the information obtained, OCR concludes that the preponderance of the evidence shows that LMU was in violation of 34 C.F.R. section 104.44(d). However, LMU has provided OCR with commitments which, when fully implemented, will bring it into compliance, as explained more fully later in this letter.
This Letter of Findings (LOF) represents a summary of the facts considered and the compliance determination(s) made regarding the allegation filed with OCR by the complainant.
This investigation was conducted under the jurisdiction of section 504 of the Rehabilitation Act of 1973 and the Department implementing Regulation found at 34 C.F.R. Part 104. Section 504 and the Regulation prohibit discrimination against handicapped persons in programs and activities operated by recipients of federal financial assistance through the Department. LMU is such a recipient. The Regulation, at section §104.43(c) states: “A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity.” Section § 104.44(d)(1) states: “A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.”
Under section 104.(j)(1), a handicapped person is one who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. With respect to postsecondary education, a qualified handicapped person is defined at section 104.3(k)(3), as a handicapped person “who meets the academic and technical standards requisite to admission or participation in the recipient’s program or activity.”
SUMMARY OF FINDINGS AND CONCLUSIONS
Records established that the complainant’s daughter is totally visually impaired. OCR concluded that she is a handicapped person under section 104.3(j)(1). Also, she met the requirements for admission to LMU; therefore, she meets the definition of a qualified handicapped person under the Regulation.
The complainant’s daughter (hereinafter referred to as M) is an 18 year old freshman at LMU. Prior to her enrollment, she requested LMU to provide her with: 1) several types of equipment to assist her in her classes; 2) additional time to take the examinations; and 3) note taking services. The Disabled Student Services Coordinator sent a form to her professors to notify them of her request. LMU did not purchase any equipment for her; therefore, her father purchased the following equipment: 1) Braille and Speak “laptop” computer; 2) personal computer with speech synthesizer; and 3) braille scanner and printer.
On July 10, 1991, M wrote a letter to the Director, Learning Resource Center (LRC) to request the following accommodations:
1. Double the number of tutor hours that are available to nonhandicapped students.
2. Accommodations in testing to include providing test materials in a medium which permits self-checking of answers and double the time given to nonhandicapped students.
3. Permission to tape record lectures to assist in note taking.
In a meeting with the complainant and M on July 17, 1991, the LRC Director and the Disabled Student Services Coordinator told M: 1) to ask a classmate for assistance in transcribing the notes to Braille, and 2) to utilize the campus tutorial services.
On July 17, 1991, M went to the campus bookstore to purchase textbooks but they were not in Braille. She then called “Recording for the Blind” to inquire about having the textbooks transcribed on tapes. The receptionist told her that it would take one month to record 80 pages of material on tape. She needed twelve books tape (ten textbooks, two study guides) for all her classes; she was able to purchase one of the textbooks on tape.
By letter of July 19, 1991, the complainant asked LMU’s President to review the complainant’s request for the purchase of the equipment that would assist his daughter in her studies. By letter of July 22, 1991, the LRC Director responded to the complainant’s letter, stating that he would send a letter to the Academic Vice President indicating the accommodations that LMU can provide her during the fall semester.
M was concerned with essentially three aspects of college classroom education accessibility: note-taking, test-taking, and textbooks.
The Coordinator of the Disabled Student Services Office sent a notice to M’s professors at the beginning of the semester to inform them that: 1) she would be in their classes; 2) she is totally visually impaired; and 3) she would need assistance in two ways: a) a fellow classmate to provide her with notes taken in class, and b) additional time for test taking. LMU also gave her permission to tape record class lectures and discussions; however, it would not supply the cassette tapes or tape-recording machine. LMU did not have a systematic method for informing M during lectures about information on the blackboard or other visual aids.
M uses her own equipment (Braille and Speak ‘laptop’ computer) to take notes in class. However, she needs assistance in note-taking with respect to information written on the blackboard during lectures. Her primary complaint is that the information on the blackboard is not provided in Braille, but given to her in written form by the notetaker. She does not have any idea what is on the blackboard until after class when the reader reads the notes to her. This means that much of the substantive content of the lecture may be out of context, and difficult to reconstruct later.
OCR finds that LMU has not met its responsibility under Section 504 to offer M at least one of the many alternate auxiliary aids adequate for note-taking purposes. LMU’s willingness to provide her written notes that are not in a directly usable form to her, but which require her to schedule an appointment with a reader each time she wishes to review the notes, does not meet LMU’s obligations under Section 504, as set out in 34 C.F.R. §104.44(d).
LMU is required to provide notes of class lectures and discussions by providing: 1) equipment with which she can take her own notes, or (2) notes taken by a classmate and provided to her in a directly usable form, Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile language for the visually impaired). Solely providing an audio-cassette recording of lectures will not meet LMU’s responsibilities under Section 504 with regards to notetaking because the primary purpose of notetaking is to reduce the time required for review of information. It should be noted that regardless of which auxiliary aids LMU makes available to its visually impaired students, it may not prohibit a handicapped student from using his or her own auxiliary aid provided that such aid does not entail a fundamental deviation from the classroom or course content.
Finally, LMU must insure that M is provided access to information written on the blackboard during class lectures. This access may, at a minimum, be accomplished by having her professors briefly describe the information they are writing on the blackboard and providing her with a copy of the written information on the blackboard in a readable form, Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile language to the visually impaired).
LMU provided M additional time as needed during examinations. She takes two types of tests. When the test consists of a small number of essay questions, the professor reads them to her and she is permitted to return to her room to use her personal computer to compose her answers. She returns to read her answers to the professor. When the test requires a series of brief answers, the professor reads the questions to her, and she responds verbally. The professor writes down her answers. Sometimes, the professor provides her with a written copy of the questions and her answers; however, she has never received a copy of the examination questions, or her answers, that she can read (Braille).
By letter dated September 13, 1991, LMU informed M that arrangements would be made with the LRC to tape record the examination questions and her answers. However, this arrangement was not made.
OCR has determined that, when there are alternative methods for administering examinations to visually impaired students, requiring the visually impaired student to verbally respond in a one-on-one setting directly to the professor who will be grading the examination does not meet Section 504 standards. In addition to the stress inherent in this setting, such a method of examination does not offer the visually impaired student he same opportunity available to nonhandicapped students for self review of answers prior to submission and for selecting the order in which questions will be answered.
In this case, LMU must provide M a copy of the examination on tape or in Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile language for the visually impaired) that will enable her to take her examination under conditions that provide an equivalent opportunity to demonstrate her mastery of the subject as is given to nonhandicapped students. With regard to her answers, the presumption is that LMU will provide her with the auxiliary aids she needs to respond in Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile language for the visually impaired). LMU must also provide her with a record of the examination and her answers to the same degree provided to nonhandicapped students.
At the time of the OCR investigation, none of the computers that LMU made available to nonhandicapped students had been equipped to be accessible to a visually impaired student. LMU has a responsibility under Section 504, as set out in 34 C.F.R. §104.44(d) to make its computer services accessible to the visually impaired student upon request. Due to the relatively small size of student enrollment at LMU and the present number of its visually impaired student population (only the visually impaired student), modifying one computer with equipment that provides an audio-translation is sufficient, provided that the modified computer is available the same hours and under the same conditions as the computers used by nonhandicapped students.
Course Materials (Textbooks, Handouts)
In June, 1991, M registered for classes and determined that Recordings for the Blind had only one of the ten textbooks she needed on audiotape cassette (and none were available in Braille). Because of this: 1) she dropped Math 111 (Analysis I)1 in favor of Communications 100, which used a textbook that was available from Recordings for the Blind); and 2) she transferred in History 101, Western Traditions, from one class to another (same course, different professor using a different textbook). As a result of the changes to her original schedule of classes, she was able to obtain on audio-cassette a total of three textbooks instead of one.
With respect to the textbooks for her other classes, including an Economics and an English class, she used her own braille scanner and printer to provide braille translations of the relevant portions of the books. She relied on the readers for the two textbooks she used in Theology 115.
Handouts used in lectures by M’s professors in some instances serve as a basis for class discussion; however, she was unable to follow or participate in class discussion because the handouts are not in a readable form for her (Braille).
LMU has not met its responsibility to make its textbooks and handouts accessible to the visually impaired student. Although readers may supplement audio-cassette and/or Braille versions of textbooks, because accessibility through readers is much more time consuming and provides significant less flexibility to the student, it does not meet the purposes of 34 C.F.R. §104.43 and 104.44 for LMU to rely exclusively on readers to make accessible a full semester’s worth of textbooks (in this case ten textbooks and two guides). To date, she has kept up in her classes only because she has purchased a braille scanner and printer, which provide translations from written materials to Braille.
LMU is required to provide, on a timely basis, a system for obtaining translation of written materials that the visually impaired student is required to read for her courses. LMU may employ whatever system it finds most effective and economical for providing course materials (such as textbooks and handouts) either on audio-cassette or in Braille (or if appropriate, Neimtz Code Braille or other specialized tactile language for the visually impaired), provided that these materials are made available to her on a timely basis. The presumption is that “on a timely basis” means that actual portions of the reading in the text assigned to the class will be made accessible to her, and that handouts will be made accessible to her when they are distributed to her classmates.
Since the courses taken by M at LMU have not yet required that information be communicated via a specialized language for the blind, such as Neimtz Code Braille, OCR will not be making an explicit finding in this case as to whether LMU has met its responsibilities under Section 504 with regard to making its mathematics courses accessible. However, OCR notes that 34 C.F.R §104.43(c) provides that “A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity.” Appendix A to Part 104 of the Department Regulation implementing Section 504 specifically states that 34 C.F.R § 104.43(c) “prohibits a recipient from excluding qualified handicapped students from any course, course of study or other part of its education program or activity.” The preceding paragraph is designed to eliminate the practice of excluding handicapped persons from specific courses and from areas of concentration because of factors pertaining to the handicap of an otherwise qualified student.
Failure to translate specialized material, such as mathematical symbols and equations, into a language specifically created to communicate such material to the visually impaired, has the result of strongly deterring visually impaired students from taking courses, or concentrating in areas, that involve higher mathematics. In this case, M is already fluent in Neimtz Code Braille and has demonstrated ability and interest in pursuing a specific major that has a significant portion of required subjects that are only meaningful if translated into Neimtz Code Braille. OCR notes that translation into Neimtz Code Braille will not always be the most appropriate method, nor required under Section 504, to make a specialized subject accessible to the visually impaired student in every situation.
Through negotiation with OCR, LMU has agreed to the following commitments which, when fully implemented, will bring it into compliance:
With respect to course materials, applicable texts will be made accessible to M at the start of the semester; at a minimum, relevant portions of the text will be made accessible in either Braille or on tape at the time the reading assignment is made to the class or, if the assignment is due more than one month after the date the semester commences, then at least one month before the due date of the assignment. Handouts will be made accessible to the visually impaired student when distributed to other classmates. With respect to note-taking, upon request, LMU will supply a slate and stylus as well as note-takers, tape recorders and cassettes. Notes taken during class will be provided on tape upon request.
With respect to examinations, they will be provided to M either in Braille or on tape, depending on the preference of the student. Upon request by the student, LMU will provide a means of responding to the examination questions either in Braille or on tape, depending on the preference of the student. With respect to computer accessibility, LMU has equipped a computer with a voice synthesizer and a screen reading program for use by visually impaired students. This computer is available essentially the same hours as computers for nonhandicapped students.
LMU has assured OCR that it recognizes that to be effectively communicated, some subjects, (i.e., calculus, physics, etcetera) must be translated into a specialized language (such as Neimtz Code Braille) and/or into a specific medium (such as tactile rather than verbal). With respect to such subjects, LMU will take all reasonable steps necessary to provide course materials and examinations in the appropriate language and medium. Finally, LMU has committed to meet with the complainant and M as soon as possible to discuss the necessary implementation of the foregoing assurances as to M specifically. This discussion will address, in particular, any subjects that may require translations into a specialized language or specific medium.
This LOF represents closure of this complaint. It only addresses the issues discussed above and should not be interpreted to cover any other civil rights laws or regulations enforced by OCR.
OCR accords a complainant, against whom an adverse finding has been made, the right to request reconsideration by OCR. Reconsideration may affect the findings made by OCR. Should the complainant in this case file a timely request, there is a possibility that OCR, in responding to the request, may need to contact you for further information.
OCR is prepared to provide technical assistance in response to questions that may arise in the future regarding this complaint or any of the regulations enforced by this office.
We thank you and your staff for the cooperation and assistance provided to OCR during this investigation.
Under the Freedom of Information Act, it may be necessary to release this document and related records on request. If OCR receives such a request, it will seek to protect, to the extent provided by law, personal information which, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.
If you have any questions, please contact Herman Bossano at (415) 556-7091.
John E. Palomino
Regional Civil Rights Director
It should be noted that Math is the type of subject matter that lends itself strongly to presentation in a tactile medium rather than an auditory medium, so that even if Recordings for the Blind had an audio-cassette of her desired math textbook, it is not clear that an audio-cassette would meet the standards of accessibility required by Section 504.