Technical Assistance from the Office of Civil Rights

Citation

Johnson, D. (2000), "Technical Assistance from the Office of Civil Rights", Library Hi Tech News, Vol. 17 No. 3. https://doi.org/10.1108/lhtn.2000.23917cad.001

Technical Assistance from the Office of Civil Rights

Courtney Deines-Jones, Column Editor

Technical Assistance from the Office of Civil Rights

David Johnson

[Ed.: "EASI Access to Library Automation," a regular feature of Library Hi Tech News, examines new technology, information sources and services, and other news of interest to librarians concerned with providing quality services to their patrons with disabilities. EASI (Equal Access to Software and Information), in affiliation with the American Association of Higher Education (AAHE), is concerned with new and emerging technologies for computer users with disabilities.]

Introduction

When a library patron files a complaint under Section 504 of the Rehabilitation Act of 1973 and/or Title II of the Americans with Disabilities Act of 1990 (ADA), the eventual result is generally a letter to the library or its parent institution from the regional Office of Civil Rights (OCR) of the US Department of Education confirming how the library has agreed to resolve the dispute, and providing "technical assistance" related to the issue raised in the patron's complaint. "Technical assistance" consists of the OCR's interpretation of Section 504 and the ADA, and guidelines for acting in accordance with these laws. This article will gather together technical assistance from a number of OCR letters.

I had hoped to include some statistics on how many complaints have been filed with the OCR related to library information access, what the complaints have been about, and how they have been resolved, but the OCR did not have this information readily available. When I called OCR I was told it might be possible to get this information through a special search if I filed a Freedom of Information Act (FOIA) request. The National Center for Education Statistics (part of the Education Department) does not collect statistics on this subject. The Department of Justice (DOJ) Civil Rights Division Office of ADA Compliance publishes a quarterly report on its ADA-related activities, but the DOJ is only one of eight federal agencies responsible for investigating complaints under ADA Title II, and its reports do not contain statistics on complaints involving libraries.

Applicable Laws

Two federal laws are applicable to libraries and require their services to be accessible to persons with disabilities. They are:

• •

  Section 504 of the Rehabilitation Act of 1973, which prohibits recipients of federal financial assistance from discriminating on the basis of disability in programs and activities; and

• •

  Title II of the Americans with Disabilities Act, which requires "program accessibility" for programs, activities, and services of state and local governments

Individuals may file lawsuits under these statutes, or file complaints with designated federal enforcement agencies. For public libraries, including public university libraries, the designated enforcement agency is the US Department of Education Office of Civil Rights.

When Resources Must Be Made Available

An 7 April 1997 OCR letter (Case Docket 09-97-2002) provides technical guidance on making printed materials and other library resources accessible to persons with visual impairments, a task which it notes is similar in magnitude to that of making buildings architecturally accessible. The general rule is that "any resources the library makes available to nondisabled patrons must be made accessible to blind patrons." Priorities and the choice of alternative format, however, may vary depending on a number of factors: how much use the resource gets from patrons; how long its usefulness is expected to last; the role of the resource in relation to the mission of the library; and the economic feasibility of making the resource accessible.

Choice of Formats

As an example of how resource usage and longevity can affect the choice of alternative format, the letter suggests that "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" [1].

In explaining the concept of economic feasibility, the letter suggests that it should be measured not simply by the cost of adaptive technology and the economic resources of the institution, but also by the willingness the institution has already shown to spend for technology:

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.... [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 technology acquisitions[2].

Accessibility Priorities and Library Mission

It would be a mistake to think that the idea that a library's mission should affect its priorities in making its resources accessible means that a university library can treat the necessity of a resource for supporting the curriculum as a criterion for making the resource accessible. This kind of prioritizing is allowed for patrons with disabilities only if services for patrons without disabilities are prioritized in the same way:

[T]he basic purpose of the library may be taken into account in shaping the library's obligation to make its resources available to ... its patrons with disabilities. [T]he 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[3].

Computers

The following technical advisory comes from an OCR letter addressed to a small university that had just one blind student and no computers accessible to her. Notice the OCR's demand that the modified computer be available the same hours and on the same conditions as those used by other students:

At the time of the OCR investigation, none of the computers that [the university] made available to nonhandicapped students had been equipped to be accessible to a visually impaired student. [The university] 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. Owing to the relatively small size of student enrollment at [the university] 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[4].

Giving Weight to Patrons' Preferences

The technical advisory in another OCR letter emphasizes that "primary consideration" should be given to patrons' preferences in deciding what types of accommodation to offer (the cases this letter dealt with were largely concerned with accommodation of blind students in course materials and tests, but library services were also covered):

Under Title II of the Americans with Disabilities Act of 1990 ... [a] public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

The Department of Justice (DOJ) interpretive guidance accompanying section 35.160 states that "Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication." ...

Due to the "range of disabilities" and the "primary consideration" accorded the individual's preference in the manner accommodation is offered, the post-secondary public institution should be prepared to deliver in a reasonable and timely manner the printed materials relied upon in its educational program in all of the following mediums: auditory, tactile (Braille), and enlarged print. Although there may be circumstances when the student's preferred medium is not, on balance, the medium selected by the post-secondary institution to provide the student appropriate aids and services, the institution may not categorically refuse to provide accommodation through an articular medium (e.g. Braille). Rather, the post-secondary institution must be prepared to timely offer access to its printed materials in all three mediums, with the particular medium used for the student's request dependent on a case by case analysis. It should be noted that if the student with the visual impairment prefers, and the public entity is willing to provide, access through "E-text" (electronic text in a digital format read by computer), such methods may be used in lieu of access through another medium.

In most instances, "timely" will mean within a reasonable number of days from the student's request, with materials for which "time is of the essence" being made available sooner, and other more voluminous printed materials (e.g. textbook) taking longer. Materials that the public entity is on notice that the student with the visual impairment will need, such as course handouts/examinations in a class the student is enrolled, are to be provided to the student with the visual impairment on the same day as they are made available to nondisabled students. The importance and consequences of student comprehension is a critical factor in determining whether to honor the student's preferred medium. Thus, for example, there is a strong presumption that examinations will be provided in accordance with the student's request, whereas there is more latitude with regard to a student events/activities calendar. The term "printed materials" includes (but is not limited to) post-secondary publications such as student handbooks, admissions applications, class schedules, financial aid information, as well as publications from other sources relied upon by the post-secondary institution in its educational program, such as textbooks. Provided that under the circumstances the method is timely and effective (e.g. voice quality, correct pronunciation, convenience, etc.), auditory access may be accomplished through a variety of methods such as audio-tapes, personal readers, or synthesized speech[5].

Preference for Accommodations That Allow Independent Access

As OCR interprets the law, technological access is better than personal assistance from staff, because it fosters autonomy and independence. Note the parenthetical comment at the end of this passage concerning the importance of providing training:

Rather than implementing adaptive software, some institutions have attempted to utilize personal reader attendants as the exclusive or primary way of making this form of computer information [the "information superhighway"] accessible to persons with visual impairments. In most cases, this approach should be reconsidered. One of the most important aims in choosing the appropriate auxiliary aid has been to foster independence and autonomy in the person with a disability. When reasonably priced technology is available that will enable the visually impaired computer user to access the computer, including the World Wide Web, during approximately the same number of hours with the same spontaneous flexibility that is enjoyed by other nondisabled computer users, there are many reasons why the objectives of Title II will most effectively and less expensively be achieved by obtaining the appropriate software programs. (An institution's reliance on adaptive software to provide access includes a responsibility to provide the special training necessary to teach the computer user with the disability how to use such software programs[6].)

Effective Participation

Libraries must provide means of access for blind patrons that are "as effective" as those provided patrons without disabilities (this letter was addressed to a university, so the patrons in question were students):

Section 504 at 34 C.F.R. SS 104.4 (b)(1)(iii) and Title II at 28 C.F.R. SS 35.130 (b)(1)(iii), state, respectively, that recipients and entities in providing any aid, benefit or service, may not afford a qualified individual with a disability an opportunity to participate that is not as effective as that provided to others. Title II recognizes the special importance of communication, which includes access information, in its implementing regulation at 28 C.F.R. SS 35.106 (a). The regulation requires a public entity, such as a state university, to take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others. Thus, the issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others. Title II also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities[7].

The Need to Keep up with Advances in Adaptive Technology

Finally, one OCR letter emphasizes that institutions such as libraries need to remain knowledgeable about recent technological developments:

OCR has learned from experts in adaptive technology that those with serious visual impairments have encountered a stumbling block in the form of the "graphic window." Whereas information stored in text-format (ascii-based) documents is retrievable through speech output devices, graphic images (e.g. those commonly used on the "home page" of the World Wide Web) are not yet subject to meaningful auditory translation by even the most sophisticated software programs (unless the image has been encoded with an ASCII-description). Although there may be limited circumstances when a personal reader is needed to bridge the gap in accessibility provided by adaptive software programs, this gap is continually being narrowed and post-secondary institutions are expected to stay apprised of recent advances. OCR commends [the recipient of this letter] for the significant efforts its staff have made to remain knowledgeable about recent technological developments[8].

The letters quoted in this article all came from OCR Region IX, and are available through the Freedom of Information Act (FOIA) by writing to the following address:

Office of Civil Rights, Region IXOld Federal Building50 United Nations PlazaRoom 239San Francisco, CA 94102

Readers with access to other OCR letters containing additional technical assistance are invited to send copies to the column editor.

Notes

1. 1.

   OCR Case Docket 09-97-2002, letter of April 7, 1997, p. 3.

2. 2.

   OCR Case Docket 09-97-2002, letter of April 7, 1997, pp. 3-4.

3. 3.

   Letter of February 7, 1997, OCR Case Docket 09-95-2056, quoted in OCR Case Docket 09-97-2002, letter of April 7, 1997, p. 3.

4. 4.

   Letter of January 15, 1992, Case Docket 09-91-2157.

5. 5.

   Letter of April 21, 1994, Docket Numbers 09-93-2214-I, 09-93-2215-I, and 09-93-2216-I.

6. 6.

   Letter of January 25, 1996, Case Docket Number 09-95-2206.

7. 7.

   Letter of January 25, 1996, Case Docket Number 09-95-2206.

8. 8.

   Letter of January 25, 1996, Case Docket Number 09-95-2206.

David Johnson is an abstractor/ information specialist at the National Rehabilitation Information Center (NARIC). Readers with questions, comments, or suggestions may e-mail him at DJohnson@kra.com