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May 26, 2011
Frequently Asked Questions About the June 29, 2010,
Dear Colleague Letter1
General Issues
- Does the June 29, 2010, Dear Colleague Letter (DCL) on access to
electronic book readers impose new legal obligations?
A: No. The DCL discusses long-standing law. Specifically,
it addresses key principles of Federal disability discrimination law: the obligation
to provide an equal opportunity to individuals with disabilities to participate
in, and receive the benefits of, the educational program, and the obligation
to provide accommodations or modifications when necessary to ensure equal treatment.
Under Section 504 of the Rehabilitation Act of 1973 (Section 504), these legal
standards apply to entities that receive Federal financial assistance, including
elementary, secondary, and postsecondary institutions. (In this FAQ, the term
“schools” refers to all these types of institutions.) Under Title II of the
Americans with Disabilities Act (ADA) of 1990 (Title II), these obligations
apply to entities of state and local government, including public schools.2
The DCL outlines concerns on the part of the Department of Justice (DOJ) and
the Department of Education (Department), raised in the context of their resolution
of several cases, regarding compliance with these long-standing requirements.
1 The Department
of Education has determined that this document is a “significant guidance document”
under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance
Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/012507
_good_guidance.pdf.
OCR issues this and other policy guidance to provide recipients with information
to assist them in meeting their obligations and to provide members of the public
with information about their rights under the civil rights laws and implementing
regulations that we enforce. OCR’s legal authority is based on those laws and
regulations. This document does not add requirements to applicable law, but
provides information and examples to inform recipients about how OCR evaluates
whether covered entities are complying with their legal obligations. If you
are interested in commenting on this guidance, please send an e-mail with your
comments to OCR@ed.gov, or write to us at the following address: Office for
Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW, Washington,
DC 20202.
2 The Department
of Justice is responsible for enforcing Title III of the ADA, which prohibits
discrimination on the basis of disability by private schools, among other entities.
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Specifically, some postsecondary institutions were using electronic book readers
that are inaccessible to students who are blind or have low vision. As explained
by the DCL, application of our long-standing nondiscrimination requirements
means that schools must provide an electronic book reader (i.e., the
technology that the school uses to provide educational benefits, services,
or opportunities) that is fully accessible to students who are blind or have
low vision; otherwise schools must provide accommodations or modifications
to ensure that the benefits of their educational program are provided to these
students in an equally effective and equally integrated manner.
For the purposes of assessing whether accommodations or modifications in the
context of emerging technology, and, more specifically, electronic book readers,
meet the compliance requirements, the DCL provides a functional definition
of accessibility for students who are blind or have low vision. Under this
definition, these students must be afforded the opportunity to acquire the
same information, engage in the same interactions, and enjoy the same services
as sighted students. In addition, although this might not result in identical
ease of use compared to that of students without disabilities, it still must
ensure equal access to the educational benefits and opportunities afforded
by the technology and equal treatment in the use of such technology. The DCL
uses the term “substantially equivalent ease of use” to describe this concept.
For more information and for examples that meet this standard, see Questions
11, 12, and 14.
- Does the DCL apply in the context of students with other disabilities
that affect the ability to use printed materials?
A: Yes. Other disabilities, such as specific learning disabilities,
may make it difficult for students to get information from printed sources
(often called “print disabilities”). In its provision of benefits, services,
and opportunities, a school must ensure that these students are not discriminated
against as a result of inaccessible technology.
Example: A student has a learning disability in reading but does
not have impaired vision. The student is currently receiving audiobooks on
cassette tape for her history class because she cannot readily process printed
information. The school is replacing the history textbooks with electronic
book readers as the principal means of conveying curriculum content, including
all homework assignments. In this example, the electronic book readers
provide greater functionality than audiobooks provide, with the result that
an audiobook would not afford the benefits of the educational program in an
equally effective and equally integrated manner. For this reason the school
may not continue to
rely on audiobooks to provide equal access to the curriculum. For more information
on the differences between traditional alternative media, such as audiobooks,
and emerging technology, such as electronic book readers, see Question
12.
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- Does the DCL mean that schools cannot use emerging technology?
A: No. On the contrary, the Department
encourages schools to employ innovative learning tools. Because technology
is evolving, it has the capability to enhance the academic experience for everyone,
especially students with disabilities. Innovation and equal access can go
hand in hand. The purpose of the DCL is to remind everyone that equal access
for students with disabilities is the law and must be considered as new technology
is integrated into the educational environment.
- Does the DCL apply to elementary and secondary schools?
A: Yes. The DCL grew out of complaints
filed with the Department’s Office for Civil Rights (OCR) and DOJ that concerned
postsecondary education. However, the principles underlying the DCL — equal
opportunity, equal treatment, and the obligation to make accommodations or
modifications to avoid disability-based discrimination — also apply to elementary
and secondary schools under the general nondiscrimination provisions in Section
504 and the ADA. The application of these principles to elementary and secondary
schools is also supported by the requirement to provide a free appropriate
public education (FAPE) to students with disabilities. For more information,
see Question
13.
- Does the DCL apply to all school operations and all faculty and
staff?
A: Yes. All school operations are subject
to the nondiscrimination requirements of Section 504 and the ADA. Thus, all
faculty and staff must comply with these requirements.
Section 504 and the ADA require that covered entities designate at least one
person to coordinate their compliance efforts, and that they adopt and publish
grievance procedures to resolve complaints of noncompliance. In addition,
postsecondary schools often designate certain staff or offices (sometimes referred
to as disability student-services offices) to assist students with disabilities.
The law applies to all faculty and staff, not just a Section 504 or ADA coordinator
or staff members designated to assist students with disabilities. All faculty
and staff must comply with the nondiscrimination requirements of Section 504
and the ADA in their professional interactions with students, because these
interactions are part of the operations of the school. So, for example, if
an adjunct faculty member denies a student who is blind an equal opportunity
to participate in a course by assigning inaccessible course content, the school
can be held legally responsible for the faculty member’s actions. Therefore,
schools should provide, and faculty and staff should participate in, professional
development about accessibility and emerging technology, and about the role
of faculty and staff in helping the school to comply with disability discrimination
laws.
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Applying the DCL in Different Contexts
- Does the DCL apply beyond electronic book readers to other forms
of emerging technology?
A: Yes. The core principles underlying
the DCL — equal opportunity, equal treatment, and the obligation to make modifications
to avoid disability-based discrimination — are part of the general nondiscrimination
requirements of Section 504 and the ADA. Therefore, all school programs or
activities — whether in a “brick and mortar,” online, or other “virtual” context
— must be operated in a manner that complies with Federal disability discrimination
laws.
- Does the DCL apply to online courses and other online content,
such as online applications for admission, class assignments, and housing?
A: Yes. The principles in the DCL apply to online programs
that are part of the operations of the school, i.e., provided by the
school directly or through contractual or other arrangements.
- Does the DCL apply to pilot programs or other school programs that
are of short duration?
A: Yes. The complaints discussed in the DCL were based
on pilot programs that were part of the schools’ operations. As noted in Question
5 above, all school programs and activities are subject to the nondiscrimination
requirements of Section 504 and the ADA.
- Does the DCL apply when planning to use an emerging technology
in a class or school where no students with visual impairments are currently
enrolled?
A: Yes. Schools that are covered under Section 504 and
the ADA have a continuing obligation to comply with these laws. Therefore,
the legal obligations described in the DCL always apply. Just as a school
system would not design a new school without addressing physical accessibility,
the implementation of an emerging technology should always include planning
for accessibility. Given that tens of thousands of elementary, secondary,
and postsecondary students have visual impairments and that the composition
of the student body at a given school may change quickly and unexpectedly,
the use of emerging technology at a school without currently enrolled students
with visual impairments should include planning to ensure equal access to the
educational opportunities and benefits afforded by the technology and equal
treatment in the use of such technology. The planning should include identification
of a means to provide immediate delivery of accessible devices or other technology
necessary to ensure accessibility from the outset.
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Putting the DCL’s Principles Into Practice
- What questions should a school ask in determining whether emerging
technology is accessible, or can be made accessible, to students with disabilities?
A: Schools should begin by considering accessibility issues
up front, when they are deciding whether to create or acquire emerging technology
and when they are planning how the technology will be used. To that end, schools
should include accessibility requirements and analyses as part of their acquisition
procedures. Schools should keep in mind their obligation to ensure that students
with disabilities receive the benefits of the educational program in an equally
effective and equally integrated manner. Among the questions a school should
ask are:
- What educational opportunities and benefits does the school
provide through the use of the technology?
- How will the technology provide these opportunities and benefits?
- Does the technology exist in a format that
is accessible to individuals with disabilities?
- If the technology is not accessible, can it be modified (see Question
11 below about additional questions related to modifications), or is
there a different technological device available, so that students with
disabilities can obtain the educational opportunities and benefits in
a timely, equally effective, and equally integrated manner?
Example: A school intends to establish a Web mail system so that students
can: communicate with each other and with faculty and staff; receive important
messages from the school (e.g., a message about a health or safety
concern); and communicate with individuals outside the school. The school
must ensure that the educational benefits, services, and opportunities provided
to students through a Web mail system are provided in an equally effective
and equally integrated manner. Before deciding what system to purchase, the
school should make an initial inquiry into whether the system is accessible
to students who are blind or have low vision, e.g., whether the
system is compatible with screen readers and whether it gives users the
option of using large fonts. If a system is not accessible as designed,
the school must take further action
to determine whether an accessible product is available, or whether the
inaccessible product can be modified so that it is accessible to students
who are blind or have low vision.
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- The DCL states that where accessible technology is not available,
a school can comply with Section 504 and the ADA if it provides students
with disabilities “accommodations or modifications that permit them to
receive all the educational benefits provided by the technology in an equally
effective and equally integrated manner.” From a practical standpoint,
what questions should schools ask to determine if this standard can be
met?
A: In making this determination, the questions a school
should ask include:
- What educational opportunities and benefits does the school provide through
the use of this technology?
- What can the school do to provide students with disabilities equal access
to the educational benefits or opportunities provided through the use of
the technology?
- How will the educational opportunities and benefits provided to students
with disabilities compare to the opportunities and benefits that the technology
provides to students without disabilities? Three relevant questions are:
- Are all the educational opportunities and benefits that are available
through the use of the technology equally available to students with disabilities
through the provision of accommodations or modifications (i.e.,
do students with disabilities have the opportunity to acquire the same
information, engage in the same interactions, and enjoy the same services
as sighted students)?
- Are the educational opportunities and benefits provided to students with
disabilities in as timely a manner as those provided to students without
disabilities (i.e., do the time frames under which opportunities
and benefits are received by students meet the requirement that students
with disabilities be provided benefits and opportunities in an equally
effective and equally integrated manner)?
- Will it be more difficult for students with disabilities to obtain the
educational opportunities and benefits than it is for students without
disabilities (i.e., does ease of use for students with disabilities
meet the requirement that students with disabilities be provided benefits
and opportunities in an equally effective and equally integrated manner)?
Example: A high school teacher creates an online course that includes
instruction, posting of assignments and other course content, and a forum where
students can discuss their course work with the teacher and each other. The
teacher would like to incorporate video clips into the course, but is unable
to obtain the video clips with audio
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descriptions. As a modification, the teacher creates separate audio descriptions
for each video clip that narrate what is taking place in the video, and places
them in a separate section of the online course. The online course includes
links that enable persons who use screen readers to bypass the video clips
completely and instead listen to the audio descriptions. Here, the use of
detailed audio descriptions that are a part of the online course would provide
students with disabilities access to the same opportunities and benefits in
an equally effective and equally integrated manner. Schools should also think
about whether other accommodations may be needed to provide equal access.
For example, a student who uses a screen reader may need extra time to take
an online examination because it may take time for the screen reader to process
information displayed on a screen and provide that information to the student.
- Are there circumstances under which it would be appropriate for
a school to provide traditional alternative media, such as books on tape,
to a student who is blind or has low vision?
A: Yes. Traditional alternative media
can still be used as an accommodation under appropriate circumstances. For
example, if a school provides printed books to students in a class, books on
tape may be an appropriate accommodation for a blind student. The DCL does
not require schools to use emerging technology. If, however, a school chooses
to provide emerging technology and proposes traditional alternative media as
an accommodation or modification to provide equal access to the educational
opportunities and benefits provided to all students, the alternative media
must provide access to the benefits of technology in an equally effective and
equally integrated manner. Some forms of emerging technology may readily offer
students educational opportunities and benefits that traditional alternative
media cannot replicate.
- If a student who is blind or has low vision makes a request for
a particular emerging technology, and that technology currently is not
used for all students, must the school provide it?
A: Not necessarily, because such decisions are individualized.
The DCL does not change the requirements and processes by which elementary
and secondary schools must provide a free appropriate public education, or
FAPE, to students with disabilities; nor does the DCL change the processes
by which postsecondary schools provide academic adjustments and auxiliary aids
to students with disabilities. Rather, the DCL discusses the issue of how
Section 504 and the ADA apply if schools choose to incorporate emerging technology
into their instruction or other programs or activities for all students.
At the elementary and secondary school levels, if parents believe that their
child with a disability requires a particular emerging technology as part of
the child’s right to FAPE, even though that technology currently is not used
for all students, an individualized decision about providing a specific technology
should be made through the processes
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used by the school district to make educational decisions consistent with
Section 504 or the Individuals with Disabilities Education Act as applicable.
At the postsecondary level, a decision about whether to provide a particular
emerging technology as an auxiliary aid or service, even though such technology
currently is not used for all students, is an individualized one that should
be made through any procedure that the school may have established to consider
students’ requests for auxiliary aids or services. Postsecondary institutions’
procedures must comply with Section 504 and the ADA.
- Must a school always provide the same form of emerging technology
to a student who is blind or has low vision as it provides to all other
students?
No: The legal duty imposed by Section 504 and Title
II is to provide equal opportunity — that is, to provide the student
who has a disability with access to the educational benefit at issue
in an equally effective and equally integrated manner. As described more
fully in Question
1, a school must apply this standard in determining whether
the use of a particular technological device for a student with a visual
impairment is appropriate.
Example: A school library plans to make electronic books available
to students by loaning electronic book readers. The school does not, prior
to purchase, make necessary inquiries about whether the book readers are accessible
to students who are blind or have low vision.
The school subsequently determines that the book readers are not accessible.
In an effort to ensure that the educational benefits, i.e., the same
library books, are available in an equally effective and equally integrated
manner to students with visual impairments, the school purchases a few small,
light-weight tablet computers for the library. These tablet computers are
designed to serve as a platform for electronic books, as well as other visual
and audio media. If the tablet computers can access those electronic books
and have accessible text-to-speech3 functions
that allow users to hear the on-screen content read aloud, navigate device
controls, and select menu items with the same ease of use afforded by the electronic
book readers to sighted students, the tablet computers will then provide the same content and functionality to students with visual impairments.4
In this example, the tablet computers have those features. As a result, the
accommodation or modification would meet the standards articulated in the DCL
because it provides the opportunity to acquire the same information, engage
in the same interactions, and enjoy the same services as sighted students,
as well as meet the standards in the DCL for ease of use.
3 A
text-to-speech function is software that provides audio for the printed words,
enabling a person to hear instead of having to see the printed material.
4 The text-to-speech
function of the tablet computers provides, for example: electronic book
text that is accurate and presented in proper reading order; descriptions
of graphical and other non-textual material (e.g., a narrative description
of a photograph); and proper presentation of material contained in tables
(e.g., properly associating row and column headers with their respective
cell data).
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In addition, the school purchases the tablet computers in sufficient numbers
to loan them to students with visual impairments under the same terms and
conditions as it provides the electronic book readers to sighted students. Here, the timely provision of electronic books on accessible tablet computers provides students with visual impairments access to the same educational opportunities and benefits in an equally effective and equally integrated
manner.
An accommodation that would not be appropriate in this example would be simply
providing a student with an aide to read an electronic book to the student. An aide who is available to read the electronic book to the student only at the school during designated times would not be equivalent to the access provided to sighted students using electronic book readers who would be able to read their library books any time and at any location.
Other Federal Guidance
- Is there any other information available from the Federal government
that offers additional guidance about accessibility and emerging technology?
A: Yes. Additional sources of guidance and information
include:
U.S. Department of Education
U.S. Department of Education Grantees
Accessible Media Production and Dissemination