OFFICE FOR CIVIL RIGHTS
February 7, 1997
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, California 94102
Dr. Robert Caret
San Jose State University
One Washington Square
San Jose, CA 95192-0001
(In reply, please refer to Docket Number 09-96-2056.)
Dear Dr. Caret:
The U.S. Department of Education (Department), San Francisco Regional Office for Civil Rights (OCR), has completed its investigation of the complaint filed against San Jose State University (University) by XXXXXXXXXXXXX (the complainant) alleging discrimination on the basis of disability (visual impairment). Specifically, the complainant alleged that: 1) the University failed to provide him access to library services that were as effective as that provided to nondisabled students; 2) the University failed to provide him access to the "Schedule of Classes" and other printed material; and 3) the University failed to promptly resolve his grievance filed with the Director of Equal Employment Opportunity/Affirmative Action regarding the failure to provide access to the "Schedule of Classes" and other printed material.
OCR is responsible for enforcing the provisions of Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Department implementing regulations, which prohibit recipients of Federal financial assistance through the Department from discriminating against persons participating in their programs and activities, such as students, employees, and applicants for employment, on the basis of disability. OCR also has jurisdiction as a designated agency under Title II of the Americans with Disabilities Act of 1990 (Title II) and its implementing regulation over complaints alleging discrimination on the basis of disability that are filed against public institutions of higher education. Since the University receives Federal funds through the Department and is a public entity, it is subject to these statutes and regulations. Therefore, OCR has jurisdiction over the University pursuant to Section 504 and Title II.
OCR reviewed documents submitted by both the complainant and the University. OCR also interviewed the complainant and the involved University staff. OCR found insufficient evidence to support a violation of Section 504 and/or Title II as to the complainant's allegations regarding access to certain library service and as to the "Schedule of Classes." OCR found that the University violated Section 504 and Title II as to the complainant's allegation regarding the failure to resolve his grievance. This resolution letter is a summary of the applicable legal standards, the findings of fact and the compliance determinations made regarding the allegations filed with OCR by the complainant.
34 C.F.R. Sections 104.3(j)(1) and (2) explains disabilities as it defines a disabled person as one who has a physical or mental impairment, a history of an impairment, or is regarded as having such an impairment which substantially limits a major life function. With respect to postsecondary education, a qualified disabled person is defined at section 104.3(k)(3) as a disabled person who meets the academic and technical standards requisite for admission to or participation in the recipient's program or activity.
The Title II regulations at 28 C.F.R. 35.104 define disability as explained in the Section 504 regulations. A qualified individual with a disability is defined as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or participation in programs or activities provided by a public entity.
34 C.F.R. ss 104.4(b)(1)(ii) requires that recipients provide qualified disabled persons an equal opportunity to participate in or benefit from services provided by a recipient. Section 104.4(b)(1)(iii) requires that recipients provide qualified disabled persons aids, benefits, or services that are as effective as those provided to others. The Title II regulations at section 35.130 (b)(1)(ii) and (iii) set forth a substantially similar standard by prohibiting an entity from providing the opportunity to participate and the provision of any aid, benefit or services, on the basis of disability, that are not equal to that provided to others or not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level as that provided to others.
28 C.F.R. 35.160 (a) requires that public entities take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others. Section 35.160 (b) requires the entity to provide auxiliary aids and services where necessary and, in the determination of what type of auxiliary aid and service is necessary, to give primary consideration to the requests of the individual with a disability.
34 C.F.R. ss 104.7 (b) requires recipients to adopt grievance procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints based on disability discrimination. The Title II regulations at section 35.107(b) also provide that a public entity adopt and publish grievance procedures providing for the prompt and equitable resolution of complaints alleging any action prohibited by Title II.
A notetaker was provided at the December 20 meeting for all participants and those notes were transcribed to audio-tape. On December 20, the audio-tape was mailed to the complainant.
OCR determined that the complainant was not denied equivalent access to the December 20 meeting when he was provided an audio-tape of transcribed notes rather than an audio-tape of the meeting. The evidence was not sufficient to establish that the complainant's opportunity to participate in the meeting discussions was diminished by the manner in which the substance of the meeting was recorded. The notetaker's record of the meeting provided documentation of what was discussed and decided at a meeting in which the complainant was an active participant. There was no indication that the complainant's ability to participate in the discussions or his ability to review the determinations made in the meeting were denied or limited by the manner in which the record of that meeting was produced.
The complainant alleged that the University conditioned his access to reader services upon a showing of academic or course related relevance or that it limited his access by his failure to make such a showing. In support of his position, he provided to OCR correspondence from the University. A December 11, 1995 letter from the Disability Resource Center (DRC) to the complainant requested clarification of use including academic relevance, if any, of his request for a reader to access library services. Certain language in a January 4, 1996 letter from the Library Liaison to Patrons with Disabilities suggested that the number of hours allotted to him for his request was limited by the fact that his request was non-academic.
The complainant also provided to OCR a copy of a December 22, 1995 letter from the University Librarian that strongly suggested the Library was not obligated to provide reader services to him in order for him to access the microfiche newspaper collection because he was not enrolled in classes during the winter intersession. That position as to who is considered an enrolled student was contradicted by the Director of Registration and Records whose office is responsible for determinations of student status. According to the Director, during the period in question, the complainant was a student.
The evidence showed that, in practice, academic or course relevance is a factor in allocating costs or resources, but that nonacademic requests do not necessarily receive different accommodations. For example, accommodations for course-related library research are provided and the cost absorbed by the DRC. In contrast, although the DRC will assist other departments in providing access, in general, accommodations for non-course related services are provided and the cost absorbed by the department from which the service is requested. In addition, under DRC practice, during the intersession when the pool of readers is small, requests for readers for course related services would receive a higher priority in the assignment of readers because such requests have a higher degree of time-sensitivity.
Documents provided by the University showed that the primary mission of the Library is to support and enhance the curricula of the University by providing modern library, electronic, and media resources to enrich instruction and provide informational materials consistent with the present and anticipated needs of the University's diverse user population.
The Library has no specific policy regarding priority for academic requests for either disabled or non-disabled patrons, but rather handles each request on a case-by-case basis depending on the availability of staff. Reference librarians frequently ask the purpose of a request in order to direct a patron to the best source material. For example, a patron might be directed to more scholarly source materials if a reference question related to an academic course assignment as opposed to a question unrelated to an academic course assignment. In general, reference librarians attempt to focus or narrow a broad request from any patron in order to provide the appropriate service. The Disability Resource Center Director (DRCD) and the ADRCD indicated that the question about the purpose of the complainant's request was designed, initially, to determine which department would bear the cost of and provide the requested service. Further, the ADRCD and the Library Liaison indicated that the complainant's original request was very broad and that subsequent questions were designed to focus or narrow his request in order to provide assistance consistent with the mission and practice of the library.
In this case, after focusing the complainant's request, it was determined that he would be provided two hours of reader services over a two week intersession period to browse the advertisements and front pages in microfiche issues of the New York Times for the month of January 1930. The Library Liaison indicated she had not previously received a request like the complainant's. She indicated further that she made her determination of a reasonable amount of time to achieve his purpose in light of the comparatively limited length of that newspaper during the 1930's.
The complainant used the full two hours of reader services allotted to him during the intersession. During OCR interviews, the complainant indicated that the two hours of reader services had not been sufficient to accomplish the agreed upon purpose. However, he did not pursue the matter further either by notifying the library liaison or making a second request for reader services.
OCR considers the fundamental purpose or mission of the library in making determinations regarding access to library services. In this case, unlike 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. In short, in providing access, library staff may establish reasonable requirements for the provision of resources to provide access to services, such as requiring a student to make prearranged appointments with a reader. When such requirements are established, they must be reasonable. For example, prearranged appointments with a reader could not be limited to only one time of day or only one day a week but necessarily would be available during approximately the same hours and days that the library is available to others.
OCR found that the complainant's access to the microfiche collection was not conditioned upon or limited by a showing of academic or course relevance and, thus, he was not denied access to library services as effective as those provided to nondisabled students. OCR determined that based on the library's academic mission, it was reasonable for the University to ask the purpose of the complainant's request in order to determine the allocation and priority of resources. OCR determined further that it was reasonable to focus the complainant's request consistent with the libraries academic mission and practice with regard to all patrons.
OCR acknowledges that two hours may not have been sufficient to accomplish the agreed upon purpose and that in some cases there is a duty on the part of the library to reassess the number of reader hours needed. OCR also acknowledges that based on his communications with library staff the complainant personally felt that further requests would be futile. However, in this case, because he did not request further time and the evidence is not sufficient to establish that such a request would have been denied, the University was not under a duty to reassess its initial assessment of the number of reader hours needed.
The complainant also indicated to OCR that he agreed to the narrowed request only because he felt intimidated and coerced by the questions he was asked about course relevance and clarification of use.
OCR cautions that questions about academic relevance designed to deny or limit access when combined with gratuitous and unfounded statements regarding complainant's student status, if continued, could form the basis for a claim of retaliation and harassment.
The complainant indicated to OCR that initially he requested that the registrar's staff provide him the "Schedule of Classes" in an accessible format, i.e., auditory translation. The registrar's office directed him to the Disabled Resource Center (DRC)'s office to obtain such an accommodation. The complainant stated that he never followed up on this instruction to contact the DRC because he did not believe the DRC office would assist him with any matter that does not pertain to a course in which he is enrolled.
Because the Schedule of Classes is printed material made available to nondisabled students to enable them to plan their course schedules (and as such is a "communication" within the meaning of Title II), the University is obligated to take appropriate steps to ensure that it communicates to blind students information contained in the Schedule of Classes as effectively as it communicates such information to nondisabled students. Thus, it is not acceptable to make the Schedule of Classes accessible only via an appointment with an academic advisor or even a personal reader when nondisabled students are able to access the information at their convenience and review its contents for an unlimited amount of time.
In choosing an accessible format, a college enjoys greater flexibility with respect to campus publications than is true when choosing the accessible format for an examination. (Because an examination usually entails communication under tighter time strictures coupled with more serious academic consequences, there is therefore a stronger presumption that the accessible format selected will be in accordance with the student's request.) Provided that the format selected for access is effective, the University is not necessarily required to make general campus information, which may be requested by many students with various types of disabilities and preferences, accessible in the precise format requested by each student with a disability. In other words, a college may elect to create an audiotape of the schedule of courses and refuse to provide the schedule in Braille. Or it may ask the student to utilize an optical character recognition scanner, which translates printed material into synthesized speech.
Based on prior OCR experience with the University, OCR is aware that the University has various methods for making printed materials accessible to blind students. It is also OCR's understanding that the University is in the process of including the Schedule of Classes on a computer-based information system that will be available to student users in the near future. Finally, because the complainant was directed to the DRC office but never did, in fact, submit to that office his request that the Schedule of Classes be made available to him in an accessible format, OCR does not find the evidence establishes the University failed to comply with Section 504 and/or Title II with respect to the Schedule of Classes and other printed material identified by the complainant from the admissions and records office.
The University Discrimination and Complaint Procedures for Students and Applicants for Admission (Presidential Directive 91-03) in effect when the complaint was lodged provided that a student could file a complaint by submitting a written statement to the Equal Employment Opportunity/ Affirmative Action Office. The procedure provided that a complainant would be notified within ten (10) days after the receipt of the complaint regarding whether or not the complaint would be processed. The procedure also provided the AAO with 30 days to resolve the complaint informally and, if not resolved, 60 days to conduct a formal investigation.
OCR reviewed the AAO complaint file containing the December 1, 1995 written complaint statement and found no record of any contact with the complainant and no record of an informal resolution or formal investigation. The Director of Registration and Records, identified in the complainant's December 1 letter of complaint, stated that she had never been contacted by the AAO regarding the complainant's grievance.
OCR determined that the University failed to handle the complainant's grievance in a prompt and equitable manner. However, OCR has reviewed the underlying complaint in this case and determined that the evidence did not support a finding of unlawful discrimination. OCR has dealt with the procedural matter in other recent cases. On November 11, 1996, OCR received from the University a copy of the finalized version of the its revised discrimination complaint procedures. OCR did determine that the procedures, when implemented, are adequate to provide due process and a prompt and equitable resolution of grievances alleging discrimination on the basis of disability. In light of the fact that the University has recently revised its discrimination complaint procedures, and OCR has completed its investigation, no further remedy is required of the University. If and when OCR complaints concerning the University are filed in the future, during its investigation, OCR will seek to determine whether the University is currently fully and timely implementing its newly revised discrimination complaint procedures.
This letter pertains exclusively to the specific issues raised by this complaint. It is not intended, and should not be interpreted, to express opinions as to the District's compliance with respect to any issue not discussed in this letter, and does not prelude OCR from investigating any future allegation of discrimination.
Under the Freedom of Information Act, it may be necessary to release this document and related records on request. If OCR receives such a request, it will seek to protect, to the extent provided by law, personal information that, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.
If you have any questions regarding this matter, please contact Kathleen Schmitt at (415) 437-7819.
Pat Shelton, Team Leader
Compliance Division II
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