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

paul.d.grossman@ed.gov

 

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 Chancellorís 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 Directorís 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 Chancellorís 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 disabilitiesÖTo 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 entityís 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 Chancellorís Office. These regulations require community college districts and the Chancellorís 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 Chancellorís 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 Chancellorís 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.