January 15, 1992
Reverend Thomas P. O'Malley, S.J. President Loyola Marymount Universtty (LMU) Loyola Boulevard at West 80th Street Los Angeles, California 90045
(In reply, please refer to Docket Number 09-91-2157.)
Dear Reverend O'Malley:
The Office for Civil Rights (OCR), U.S. Department of Education (Departm ent), has completed its investigation of the complaint Mr. (complainant ) filed against Loyola Marymount University (LMU) on behalf of his daughte r, on September 3, 1991. He alleges that LMU refuses to purchase equipment or provide requisite services to academically assist his daughter, who is totally visually impaired.
OCR reviewed documents submitted by both the complainant and LMU. OCR interviewed: 1) the complainant and his daughter; 2) the LMU Disabled St udent Services Coordinator and the Director, Learning Resource Center; and 3) the District Administrator, California Department of Rehabilitation. After assessing the information obtained, OCR concludes that the preponderance of the evidence shows that LMU was in violation of 34 C.F.R. section 104.44 (d). However, LMU has provided OCR with commitments which, when fully impleme nted, will bring it into compliance, as explained more fully later in this let ter.
This Letter of Findings (LOF) represents a summary of the facts consider ed and the compliance determination(s) made regarding the allegation filed with OCR by the complainant.
This investigation was conducted under the jurisdiction of Section 504 o f the Rehabilitation Act of 1973 and the Department implementing Regulation fo und at 34 C.F.R. Part 104. Section 504 and the Regulation prohibit discrimin ation against handicapped persons in programs and activities operated by recip ients of federal financial assistance through the Department. LMU is such a recipient. The Regulation, at section 1 04.43(c) states: "A recipient to which this subpart applies may not, on the basis of handicap, exclude an y qualified handicapped student from any course, course of study, or other part of its education program or activity." Section 104.44(d)(1) states: "A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits o f, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient becaus e of the absence of educational auxiliary aids for students with impaired sen sory, manual, or speaking skills."
Under section 104.3a)(1), a handicapped person is one who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having su ch an impairment. With respect to postsecondary education, a qualified handica pped person is defined at section 1 04.3(k) (3), as a handicapped person "who meets the academic and technical standards requisite to admission or participation in the recipient's program or activity."
SUMMARY OF FINDINGS AND CONCLUSIONS
Records established that the complainant's daughter is totally visually impaired. OCR concluded that she is a handicapped person under section 1 04.3a) (1). Also, she met the requirements for admission to LMU; therefo re, she meets the definition of a qualified handicapped person under the Regulation.
The complainant's daughter (hereinafter referred to as M) is an 18 year old freshman at LMU. Prior to her enrollment, she requested LMU to provide h er with: 1) several types of equipment to assist her in her classes; 2) additional time to take the examinations; and 3) note taking services. T he Disabled Student Services Coordinator sent a form to her professors to n otify them of her request. LMU did not purchase any equipment for her; therefo re, her father purchased the following equipment: 1) Braille and Speak "lapt op" computer; 2) personal computer with speech synthesizer; and 3) braille scanner and printer.
On Ju!y 10, 1991, M wrote a letter to the Director, Learning Resource Ce nter (LRC) to request the following accommodations:
1. Double the number of tutor hours that are available to nonhandicapped students.
2. Accommodations in testing to include providing test materials in a me dium which permits self-checking of answers and double the time given to nonhandicapped students.
3. Permission to tape record lectures to assist in note taking.
In a meeting with the complainant and M on July 17, 1991, the LRC Direct or and the Disabled Student Services Coordinator told M: 1) to ask a classm ate for assistance in transcribing the notes to Braille, and 2) to utilize t he campus tutorial services.
On July 17, 1991, M went to the campus bookstore to purchase textbooks b ut they were not in Braille. She then called "Recordings for the Blind" to inquire about having the textbooks transcribed on tapes. The receptionis t told her that it would take one month to record 80 pages of material on tape. She needed twelve books on tape (ten textbooks, two study guides) for al l her classes; she was able to purchase one of the textbooks on tape.
By letter of July 19, 1991, the complainant asked LMU's President to rev iew the complainant's request for the purchase of the equipment that would a ssist his daughter in her studies. By letter of July 22, 1991, the LRC Directo r responded to the complainant's letter, stating that he would send a lett er to the Academic Vice President indicating the accommodations that LMU can provide her during the fall semester.
M was concerned with essentially three aspects of college classroom educ ation accessibility: note-taking, test-taking, and textbooks.
The Coordinator of the Disabled Student Services Office sent a notice to M's professors at the beginning of the semester to inform them that: 1) she would be in their classes; 2) she is totally visually impaired; and 3) she wou ld need assistance in two ways: a) a fellow classmate to provide her with n otes taken in class, and b) additional time for test taking. LMU also gave h er permission to tape record class lectures and discussions; however, it wo uld not supply the casseKe tapes or tape-recording machine. LMU did not have a systematic method for informing M during lectures about information on t he blackboard or other visual aids.
M uses her own equipment (Braille and Speak 'laptop' computer) to take n otes in class. However, she needs assistance in note-taking with respect to information written on the blackboard during lectures. Her primary compl aint is that the information on the blackboard is not provided in Braille, bu t given to her in written form by the notetaker. She does not have any id ea what is on the blackboard until after class when the reader reads the no tes to her. This means that much of the substantive content of the lecture m ay be out of context, and difficult to reconstruct later
OCR finds that LMU has not met its responsibility under Section 504 to o ffer M at least one of the many alternate auxiliary aids adequate for note-ta king purposes. LMU's willingness to provide her written notes that are not in a directly usable form to her, but which require her to schedule an appoin tment with a reader each time she wishes to review the notes, does not meet LM U's obligations under Section 504, as set out in 34 C.F.R. 104.44(d).
LMU is required to provide notes of class lectures and discussions by providing: 1) equipment with which she can take her own notes, or (2) no tes taken by a classmate and provided to her in a directly usable form, Brai lle (or if more appropriate, Neimtz Code Braille or other specialized tactil e language for the visually impaired). Solely providing an audio-cassette recording of lectures will not meet LMU's responsibilities under Section 504 with regards to notetaking because the primary purpose of notetaking is to reduce the time required for review of information. It should be noted t hat regardless of which, auxiliary aids LMU makes available to its visually impaired students, it may not prohibit a handicapped student from using his or her own auxiliary aid provided that such aid does not entail a fundam ental deviation from the classroom or course content.
Finally, LMU must insure that M is provided access to information writte n on the blackboard during class lectures. This access may, at a minimum, be accomplished by having her professors briefly describe the information t hey are writing on the blackboard and providing her with a copy of the writt en information on the blackboard in a readable form, Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile language t o the visually impaired).
LMU provided M additional time as needed during examinations. She takes two types of tests. When the test consists of a small number of essay questi ons, the professor reads them to her and she is permitted to return to her ro om to use her personal computer to compose her answers. She returns to read he r answers to the professor. When the test requires a series of brief answ ers, the professor reads the questions to her, and she responds verbally. The professor writes down her answers. Sometimes, the professor provides her with a written copy of the questions and her answers; however, she has never received a copy of the examination questions, or her answers, that she c an read (Braille).
By letter dated September 13, 1991, LMU informed M that arrangements wou ld be made with the LRC to tape record the examination questions and her answe rs. However, this arrangement was not made.
OCR has determined that, when there are alternative methods for administ ering examinations to visually impaired students, requiring the visually impai red student to verbally respond in a one-on-one setting directly to the prof essor who will be grading the examination does not meet Section 504 standards. In addition to the stress inherent in this setting, such a method of examin ation does not offer the visually impaired student the same opportunity availa ble to nonhandicapped students for self rsview of answers prior to submissio n and for selecting the order in which questions wili be answered
In this case, LMU must provide M a copy of the examination on tape or in Braille (or if more appropriate, Neimtz Code Braille or other specialize d tactile language for the visually impaired) that will enable her to take her examination under conditions that provide an equivalent opportunity to demonstrate her mastery of the subject as is given to nonhandicapped students. With regard to her answers, the presumption is that LMU will provide her with the auxiliary aids she needs to respond in Braille (or if more appropriate, Neimtz Code Braille or other specialized tactile langu age for the visually impaired). LMU must also provide her with a record of t he examination and her answers to the same degree provided to nonhandicappe d students.
At the time of the OCR investigation, none of the computers that LMU mad e available to nonhandicapped students had been equipped to be accessible to a visually impaired student. LMU has a responsibility under Section 504, a s set out in 34 C.F.R. 104.44(d) to make its computer services accessible to t he visually impaired student upon request. Due to the relatively small siz e of student enrollment at LMU and the present number of its visually impaire d student population (only the visually impaired student), modifying one computer with equipment that provides an audio-translation is sufficient , provided that the modified computer is available the same hours and unde r the same conditions as the computers used by nonhandicapped students.
Course Materials (Textbooks. Handouts)
In June, 1991, M registered for classes and determined that Recordings f or the Blind had only one of the ten textbooks she needed on audiotape cass ette (and none were available in Braille). Because of this: 1) she dropped Ma th 111 (Analysis 1)* in favor of Communications 100, which used a textbook that was available from Recordings for the Blind); and 2) she transferred in History 101, Western Traditions, from one class to another (same course, different professor using a different textbook). As a result of the chan ges to her original schedule of classes, she was able to obtain on audio-cas sette a total of three textbooks instead of one.
* It should be noted that Math is the type of subject matter that lends itself strongly to presentation in a tactile medium rather than an auditory medium, so that even if Recordings for the Blind had an audio-cassette of her desired math textbook, it is not clear that an audio-cassette would meet the standards of accessibility required by Section 504.
With respect to the textbooks for her other classes, including an Econom ics and an English class, she used her own braille scanner and printer to pr ovide braille translations of the relevant portions of the books. She relied o n the readers for the two textbooks she used in Theology 115.
Handouts used in lectures by M's professors in some instances senve as a basis for class discussion; however, she was unable to follow or partici pate in class discussion because the handouts are not in a readable form for her (Braille).
LMU has not met its responsibility to make its textbooks and handouts accessible to the visually impaired student. Although readers may supple ment audio-cassette and/or Braille versions of textbooks, because accessibiii ty through readers is much more time consuming and provides significant les s flexibility to the student, it does not meet the purposes of 34 C.F.R. 1 04.43 and 104.44 for LMU to rely exclusively on readers to make accessible a f ull semester's worth of textbooks (in this case ten textbooks and two guides ). To date, she has kept up in her classes only because she has purchased a br aille scanner and printer, which provide translations from written materials t o Braille.
LMU is required to provide, on a timely basis, a system for obtaining translation of written materials that the visually impaired student is required to read for her courses. LMU may employ whatever system it find s most effective and economical for providing course materials (such as textbooks and handouts) either on audio-cassette or in Braille (or if appropriate, Neimtz Code Braille or other specialized tactile language f or the visually impaired), provided that these materials are made available to her on a timely basis. The presumption is that "on a timely basis" means that actual portions of the reading in the text assigned to the class will be made accessible to her, and that handouts will be made accessible to her when they are distributed to her classmates.
Since the courses taken by M at LMU have not yet required that informati on be communicated via a specialized language for the blind, such as Neimtz Co de Braille, OCR will not be making an explicit finding in this case as to whether LMU has met its responsibilities under Section 504 with regard t o making its mathematics courses accessible. However, OCR notes that 34 C. F.R 104.43(c) provides that "A recipient to which this subpart applies may n ot, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activ ity." Appendix A to Part 104 of the Department Regulation implementing Section 504 specifically states that 34 C.F.R 104.43(c) "prohibits a recipient from excluding qualified handicapped students from any course, course of stud y, or other part of its education program or activity." The preceding paragrap h is designed to eliminate the practice of excluding handicapped persons from specific courses and from areas of concentration because of factors pertaining to the handicap of an otherwise qualified student.
Failure to translate specialized material, such as mathematical symbols and equations, into a language specifically created to communicate such mate rial to the visually impaired, has the result of strongly deterring visually impaired students from taking courses, or concentrating in areas, that involve higher mathematics. In this case, M is already fluent in Neimtz Code Braille and has demonstrated ability and interest in pursuing a specific major that has a significant portion of required subjects that are only meaningful if translated into Neimtz Code Braille. OCR notes that transl ation into Neimtz Code Braille will not always be the most appropriate method, nor required under Section 504, to make a specialized subject accessible to the visually impaired student in every situation.
Through negotiation with OCR, LMU has agreed to the following commitment s which, when fully implemented, will b:ing it into compliance:
With respect to course materials, applicable texts will be made accessib le to M at the start of the semester; at a minimum, relevant portions of the t ext will be made accessible in either Braille or on tape at the time the rea ding assignment is made to the class or, if the assignment is due more than o ne month after the date the semester commences, then at least one month bef ore the due date of the assignment. Handouts will be made accessible to the visually impaired student when distributed to other classmates. With res pect to note-taking, upon request, LMU will supply a slate and stylus as well as note- takers, tape recorders and cassettes. Notes taken during class wil l be provided on tape upon request.
With respect to examinations, they will be provided to M either in Brail le or on tape, depending on the preference of the student. Upon request by the student, LMU will provide a means of responding to the examination quest ions either in Braille or on tape, depending on the preference of the student . With respect to computer accessibility, LMU has equipped a computer with a voice synthesizer and a screen reading program for use by visually impai red students. This computer is available essentially the same hours as compu ters for nonhandicapped students.
LMU has assured OCR that it recognizes that to be effectively communicat ed, some subjects,(i.e. calculus, physics, etcetera) must be translated into a specialized language (such as Neimtz Code Braille) and/or into a specifi c medium (such as tactile rather than verbal). With respect to such subjec ts, LMU will take all reasonable steps necessary to provide course materials and examinations in the appropriate language and medium. Finally, LMU has committed to meet with the complainant and M as soon as possible to disc uss the necessary implementation of the foregoing assurances as to M specifically. This discussion will address, in particular, any subjects that may require translations into a specialized language or specific medium.
This LOF represents closure of this complaint. It only addresses the iss ues discussed above and should not be interpreted to cover any other civil r ights laws or regulations enforced by OCR. OCR accords a complainant, against whom an adverse finding has been made, the right to request reconsideration b y OCR. Reconsideration may affect the findings made by OCR. Should the complainant in this case file a timely request, there is a possibility t hat OCR, in responding to the request, may need to contact you for further information.
OCR is prepared to provide technical assistance in response to questions that may arise in the future regarding this complaint or any of the regulatio ns enforced by this office.
We thank you and your staff for the cooperation and assistance provided to OCR during this investigation.
Under the Freedom of Information Act, it may be necessary to release thi s document and related records on request. If OCR receives such a request, it will seek to protect, to the extent provided by law, personal informatio n which, if released, could reasonably be expected to constitute an unwarr anted invasion of privacy.
If you have any questions, please contact Herman Bossano at (415) 556 70 91.
John E. Palomino Regional Civil Rights Director
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