Technology
and the Law, Collaborating for Success
Paul G. Grossman
United States Department of Education Office for Civil Rights, San Francisco
6041 Ascot Drive
Oakland, Ca. 94611
Day Phone: 415.556.4281
Fax: 415.437.7783
Laurie Vasquez
Assisitve Technology
Specialist
Santa Barbara City College
Santa Barbara, CA. 93109
805.965-0581 x 2529 (Voice)
805.962.4084 (TTY)
805-884-4966 (Fax)
vasquez@sbcc.net
In March 1996, the
U.S. Department of Education, Office of Civil Rights notified Chancellor Thomas
J. Nussbaum that it was about to begin a statewide compliance review under
Title II of the Americans with Disabilities Act of 1990. The compliance review
would focus on the status of community colleges in meeting their obligation
under Title II and Section 504 to provide students with visual impairments
access to print and computer-based information. The review was to examine
whether students with visual impairments, particularly blind students, were
accorded an equal educational opportunity by California Community Colleges or
whether they were being discriminated against on the basis of their disability.
Specifically, OCR
wished to consider whether the Chancellor’s Office employed "methods of
administration" which substantially impaired accomplishment of the
objectives of the California Community College educational programs with
respect to students with visual impairments.
As an outcome of this
review, OCR offered nine suggestions for addressing areas of concern identified
by the review.
Among the
suggestions/concerned voiced by OCR was the need for development of system-wide
access guidelines for distance learning and campus Web pages. In a January 22,
1998 letter to Chancellor Nussbaum, Stefan Rosenzweig, Regional Director of OCR
stated:
"California Community
Colleges, individually and collectively as part of the California Virtual
University, are rapidly developing their capacity to deliver educational
programs to offsite students through technology. Little attention is being
given to ensure that these distance learning programs are accessible to
students with disabilities, especially students with visual impairments."
He further added:
"The need for guidelines
regarding distance learning has been recognized by several different entities
in the California Community College system, including the Academic Senate which
in Fall 1997, adopted "Guidelines for Good Practice: Technology Mediated
Instruction." It is OCRs understanding that four regional distance
learning centers to assist in development of program and course materials will
be set-up in 1998-99. The concept of accessibility should be firmly integrated
into such development."
In responding to the
Regional Director’s suggestions regarding development of system-wide access
guidelines for distance learning and campus Web pages, in a letter dated March
13, 1998, Chancellor Nussbaum replied:
"We concur with the
strategies related to this issue. I will immediately direct that the Chancellor’s
Office Task Forces related to distance learning as well as California Virtual
University have persons on them to specifically address access issues for
persons with disabilities…To assure that the necessary guidance to colleges is
available, I will specifically ask Vice Chancellor of Educational Services and
Economic Development, Rita Cepeda, whose staff oversees the distance learning
issues, to develop in cooperation with the DSP&S Unit and the High Tech
Center Training Unit (HTCTU), guidelines for distance learning to assure it is
accessible to and usable by persons with disabilities."
Legal Requirements
Both state and
federal law require community colleges to operate all programs and activities
in a manner which is accessible to students with disabilities. Accordingly, as
the system develops its capacity for creation of technology based instructional
resources and the delivery of distance learning; it must proceed with the needs
of all students in mind, including the unique needs of students with
disabilities.
At the federal level,
requirements for access for persons with disabilities were first imposed on
recipients of federal funding by Section 504 of the Rehabilitation Act of 1973,
as amended (29 U.S.C. 794) and its accompanying regulations set forth at 34
C.F.R. 104. Similar requirements were later imposed on all public entities,
regardless of whether or not they receive federal funding, by the Americans
with Disabilities Act (42 U.S.C. Sec. 12100 et seq) and the regulations
implementing Title II of the ADA which appear at 28 C.F.R. 35.
In particular, the
Section 504 regulations and the regulations implementing Title II of the ADA
contain nearly identical provisions stating that recipients of federal funds
and public 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. (See 34 C.F.R. 104.4 (b)(1) (iii)
and 28 C.F.R. 35.130(b) (1) (iii)). Title II recognizes the special importance
of communication, which includes access to information, in its implementing
regulation at 28 C.F.R. 35.160 (a). The regulation requires that a public
entity, such as a community college, take appropriate steps to ensure that communications
with persons with disabilities are as effective as communications with others.
The United States
Department of Education, Office for Civil Rights (OCR) is responsible for
ensuring that all educational institutions comply with the requirements of all
federal civil rights laws, including Section 504 and Title II of the ADA. As a
result, the opinions of OCR are generally accorded considerable weight by the
courts in interpreting the requirements of these laws. OCR has had occasion to
issue several opinions applying the requirements of the Section 504 and ADA
regulations to situations involving access to distance education and/or
computer-based instruction.
In responding to a
complaint by a student with a disability alleging that a university had not provided
access to the Internet, OCR noted that:
[T]he 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 [of
the Americans with Disabilities Act of 1990] 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 Docket No.
09-95-2206, January 25, 1996)
Adding additional
clarity to the meaning of "effective communication," OCR has held
that the three basic components of effective communication 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."
(OCR Docket No.
09-97-2145, January 9, 1998)
OCR also points out
that the courts have held that a public entity violates its obligations under
the ADA when it only responds on an ad-hoc basis to individual requests for
accommodation. There is an affirmative duty to develop a comprehensive policy
in advance of any request for auxiliary aids or services.
Finally, in
considering the magnitude and responsibility of this task, OCR states:
[T]he 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 non-disabled 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.
(OCR Docket No.
09-97-2002, April 7, 1997)
There are also state
laws and regulations which require community colleges to make their distance
education offerings accessible to students with disabilities.
Government Code
Section 11135 et seq. prohibits discrimination on various grounds, including
mental or physical disability, by entities receiving funding from the State of
California. The Board of Governors has adopted regulations at Title 5,
California Code of Regulations, Section 59300 et seq. to implement these
requirements with respect to funds received by community college districts from
the Board of Governors or Chancellor’s Office. These regulations require
community college districts and the Chancellor’s Office to investigate and
attempt to resolve discrimination complaints filed by students or employees.
In addition, the Board of Governors has adopted Title 5 regulations setting forth the general requirements applicable to all independent study (Sections 55300 et seq.) and those requirements specific to distance education courses (Sections 55370 et seq.). Section 55370 expressly states that the requirements of the Americans with Disabilities Act are applicable to distance education courses.
The remainder of this
document sets forth guidelines developed by the Chancellor’s Office to address
specific issues community college districts will face in meeting their legal
obligation to make distance education courses accessible to students with
disabilities. These guidelines are not legally binding on districts, but the
Chancellor’s Office will apply these guidelines in determining whether a
district has met its obligations under Title 5, Section 55370 and 59300 et seq.
Districts which follow these guidelines will generally be regarded as having
met those obligations. Districts which do not follow these guidelines will bear
the burden of demonstrating that they have achieved compliance with their legal
obligation to provide access to distance education for students with
disabilities by other means.