From: Kelly Pierce 
Subject: Civil Rights and Libraries OCR Letter
              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)
Dear President Rosser:
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.
Sincerely,
Adriana Cardenas
Team Leader
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 accommodations.
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