Cybertelecom :: ADA Letters

        I am responding to your letter on behalf of your constituent, XX            , regarding accessibility of "web pages" on the Internet to people with visual disabilities.
        The Americans with Disabilities Act (ADA) requires State and local governments and places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden. 28 C.F.R. S 36.303; 28 C.F.R. S 35.160. Auxiliary aids include taped texts, Brailled materials, large print materials, and other methods of making visually delivered material available to people with visual impairments.
        Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.
        Mr. XX       suggests compatibility with the Lynx browser as a means of assuring accessibility of the Internet. Lynx is, however, only one of many available options. Other examples include providing the web page information in text format, rather than exclusively in graphic format. Such text is accessible to screen reading devices used by people with visual impairments. Instead of providing full accessibility through the Internet directly, covered entities may also offer other alternate accessible formats, such as Braille, large print, and/or audio materials, to communicate the information contained in web pages to people with visual impairments. The availability of such materials should be noted in a text (i.e., screen-readable) format on the web page, along with instructions for obtaining the materials, so that people with disabilities using the Internet will know how to obtain the accessible formats.
The Internet is an excellent source of information and, of course, people with disabilities should have access to it as effectively as people without disabilities. A number of web sites provide information about accessibility of web pages, including information about new developments and guidelines for development of accessible web pages. Examples include:
        http:   //www.gsa.gov/coca/wwwcode.htm
                Center for Information Technology Accommodation
                 General Services Administration
        http:   //www.trace.wisc.edu/text/guidelns
                 Trace Center, University of Wisconsin
        http:   //www.webable.com/index.html
        http:   //www.psc-cfp.gc.ca/dmd/access/welcom1.htm
        These sites may be useful to you or your constituent in exploring the accessibility options on the Internet. In addition, the Department of Justice has established an ADA home page to educate people about their rights and responsibilities under the ADA and about the Department's efforts to implement the ADA. The address of the ADA home page is http://www.us- doj.gov/crt/ada/adahom1.htm.
        I hope this information is helpful to you in responding to your constituent.
                                        Sincerely,

                                     Deval L. Patrick
                                 Assistant Attorney General
                                   Civil Rights Division

01-04338
1996 Department of Education Office of Civil Rights Letter Docket 09-95-2006 & 09-97-2002
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
January 25, 1996
REGION IX
Old Federal Building
90 United Nations Plaza, Room 239
San Francisco, California 94102

Dr. Robert Caret
President
San Jose State University
One Washington Square
San Jose, CA 95192-0001
(In reply, please refer to Docket Number 09-95-2206.)

    On September 5, 1995, the U.S. Department of Education (Department), San Francisco Regional Office for Civil Rights (OCR), received a complaint against San Jose State University (SJSU or the University) alleging a violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). Specifically, the complainant alleged that: 1) the University failed to provide him access to the "Internet", and 2) the University failed to complete the "Self Evaluation Plan" required by Title II.
    OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 C.F.R. Part 104, which prohibits discrimination on the basis of disability in programs and activities receiving Federal financial assistance from the U.S. Department of Education. SJSU receives such financial assistance and, therefore, is subject to the provisions of those statutes and regulations. OCR also has jurisdiction under Title II of the Americans with Disabilities Act of 1990 and its implementing regulation at 28 C.F.R. Part 35 to investigate claims of discrimination on the basis of disability that are filed against certain public entities, such as institutions of higher education. SJSU is a public entity.
    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.
    OCR notes that the "information superhighway" is fast becoming a fundamental tool in post- secondary research. 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 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.)
    OCR has learned from experts in adaptive technology that those with serious visual impairments have encountered a stumblingblock 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 SJSU for the significant efforts its staff have made to remain knowledgeable about recent technological developments.
    At any point in a complaint investigation prior to making a compliance determination, OCR may administratively close that investigation if OCR confirms that the issues have been resolved, or that there is a plan to resolve the matter. By an agreement signed on January 19,1996, SJSU agreed to implement a voluntary resolution plan. A copy of that plan is attached to this letter. The plan addresses the complainant's allegations, and its implementation will be monitored by OCR. OCR is, therefore, closing the above-referenced complaint. If SJSU fails to implement the written agreement in the voluntary resolution plan, OCR may reopen the case for further investigation and findings.
    I want to express my appreciation for the courtesy and cooperation extended by your staff to the OCR team members in working to achieve the voluntary resolution of this case.
    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 that, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.
If you have any questions regarding this matter, please contact Kathleen Schmitt at (415) 556- 6993.

Sincerely,
Patricia G. Shelton, Team Leader Compliance Division II
1997 Department of Education Office for Civil Rights Letter

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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
April 7, 1997
REGION IX
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, California 94102

Dr. James. 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)

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 prohibits 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 Regulations 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. ss 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 lecture, 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 requests of the individual with a disability [28 C.F.R. ss 35.106(b)(2)].

In construing the conditions under which communication is "as effective as" that provided to non disabled 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 premiss 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 forgoing as a foundation OCR provides the following technical assistance on the subject of access to public library (footnote 1) 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]like 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 (footnote 2) 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. Cynthia Avila, Equal Opportunity Specialist, at (415) 437-7790 or Ms. Sarah Hawthorne, Civil Rights Attorney, at (415) 437-7719.

Footnotes:
1. The U.S. Department of Education is the designated agency with responsibility for enforcing Title II as to public libraries, including public college libraries [28 C.F.R. ss 35.190(b)(2)].
2. To the extent offered to other students, the University is to provide blind students access to its computers/computer-based information systems (including access to the Internet and the campus network) in the library and open laboratories (Academic Technology Services Laboratory - ATS labs). Other issues to be addressed include adequate training on adaptive technology for students, provision of computer equipped with adaptive technology in examination rooms, and distribution of a Memorandum clarifying the use of tape recording in classroom as an accommodation.