[nfbmi-talk] goes to mcb itself in all affairs

joe harcz Comcast joeharcz at comcast.net
Sat Apr 2 12:57:23 UTC 2011

Legal Foundations for the Right to Accessible Info  

Legal Foundations of the Right to Accessible Information 


In general, federal governmental agencies, recipients of federal financial 

assistance, and state and local governmental entities are required under federal 


law to provide people with disabilities equal access to printed and other 

information which is made available to employees or members of the public. This 

requirement makes "effective communication" possible with people who have 

sensory disabilities, such as blindness or visual impairment. Fulfilling this 

obligation goes a long way to breaking down the information barriers that 

perpetuate discrimination on the basis of disability. For information to be 

truly accessible, and to make "effective communication" a reality, information 

must be made available to people with disabilities in their preferred reading 

media if at all possible. Additionally, the accessible information must be 

provided timely and under conditions affording people with disabilities the same 


degree of access to information as their non-disabled counterparts. Only when 

the provision of accessible information becomes an "undue burden" may the 

federal government, recipients of federal financial assistance, or entities of 

state or local government make information accessible in a manner that does not 

adhere to the individual's preference or to the requirement of timely delivery 

and equivalent access. 

The Law 

In 1973, Congress enacted the Rehabilitation Act, a comprehensive statute 

establishing a partnership between the federal and state governments to foster 

the provision of vocational rehabilitation services to people with disabilities. 


This program provides training and related services to people with a wide range 

of disabilities primarily to equip them for entry or reentry into the workforce. 


However, Congress also recognized that, in addition to a lack of educational 

opportunities and work experience leading to skills development, people with 

disabilities also face discrimination both by employers and by public agencies. 

To ensure that the federal government would not perpetuate the discrimination 

that the vocational rehabilitation system was designed to mitigate, Congress 

also enacted civil rights protections for people with disabilities. In 

particular, the Rehabilitation Act bars discrimination on the basis of 

disability by recipients of federal financial assistance and by agencies of the 

federal government themselves. This requirement, known as Section 504 (29 U.S.C. 


Sec. 794 (a)) reads in part as follows: 

No otherwise qualified individual with a disability ... shall, solely by 

reason of her or his disability, be excluded from the participation in, be 

denied the benefits of, or be subjected to discrimination under any program 

or activity receiving Federal financial assistance or under any program or 

activity conducted by any Executive agency or by the United States Postal 


In addition, Section 504 allows federal agencies to draft their own individual 

rules to meet the mandates of this statute. Although this provision has largely 

been ignored, a number of agencies have promulgated rules addressing Section 504 


obligations of the federal government generally and of specific agencies. In 

particular, the United States Department of Justice (DOJ) has issued regulations 


implementing the requirements of this section and has applied them specifically 

to the context of access to information. Though specifically drafted to cover 

the programs and activities of DOJ, these regulations were designed as the 

prototype for federal agency rulemaking to implement Section 504. Under 

Executive Order No. 12250, the United States Attorney General has the authority 

to coordinate the implementation and enforcement of a variety of civil rights 

statutes, including Section 504. The DOJ regulations (28 C.F.R. Part 39) read in 


part as follows: 

"Sec. 39.160 Communications. 

The agency shall take appropriate steps to ensure effective communication 

with applicants, participants, personnel of other Federal entities, and 

members of the public. 

The agency shall furnish appropriate auxiliary aids where necessary to 

afford a handicapped person an equal opportunity to participate in, and 

enjoy the benefits of, a program or activity conducted by the agency. 

In determining what type of auxiliary aid is necessary, the agency 

shall give primary consideration to the requests of the handicapped 


The agency need not provide individually prescribed devices, readers 

for personal use or study, or other devices of a personal nature." 

To provide further clarification, the DOJ regulations define "auxiliary aids" at 


28 C.F.R. Sec. 39.103 as follows: 

Auxiliary aids means services or devices that enable persons with impaired 

sensory, manual, or speaking skills to have an equal opportunity to 

participate in, and enjoy the benefits of, programs or activities conducted 

by the agency. For example, auxiliary aids useful for persons with impaired 

vision include readers, Brailled materials, audio recordings, 

telecommunications devices and other similar services and devices. 

So reads the federal government requirement to make printed and other 

information accessible to its employees and members of the public with 

disabilities. However, federal agencies are not without a defense to unlimited 

demands for access that would severely impair their ability to conduct an 

overall program or activity. The regulations at 28 C.F.R. Sec. 39.160 continue 

as follows: 

"d. This section does not require the agency to take any action that it can 

demonstrate would result in a fundamental alteration in the nature of a 

program or activity or in undue financial and administrative burdens. In 

those circumstances where agency personnel believe that the proposed action 

would fundamentally alter the program or activity or would result in undue 

financial and administrative burdens, the agency has the burden of proving 

that compliance with Sec. 39.160 would result in such alteration or burdens. 

The decision that compliance would result in such alteration or burdens must 

be made by the Attorney General or his or her designee after considering all 

agency resources available for use in the funding and operation of the 

conducted program or activity, and must be accompanied by a written 

statement of the reasons for reaching that conclusion. If an action required 

to comply with this section would result in such an alteration or such 

burdens, the agency shall take any other action that would not result in 

such an alteration or such burdens but would nevertheless ensure that, to 

the maximum extent possible, handicapped persons receive the benefits and 

services of the program or activity." 

Note that auxiliary aids encompass a range of options, including the production 

of accessible materials, and that the DOJ regulations are clear that primary 

consideration must be given to the preference of the individual with a 

disability. Note also that this model requirement for all federal agencies 

provides that an undue financial or administrative burden will be evaluated 

based upon the resources available to the entire program or activity in 

question. This is a very high standard and will almost never be met by agencies 

of the federal government. However, even if an undue burden can be identified, 

the entity is only able to avoid the specific requirements of preference and 

equivalent access. The disabled employee or member of the public must ultimately 


be afforded some level of access to the printed information at issue. 

In addition to the obligations placed on federal agencies themselves, Section 

504 also prohibits discrimination against persons with disabilities by any 

program or activity receiving Federal financial assistance. Congress "sought to 

impose Sec. 504 coverage as a form of contractual cost of the recipient's 

agreement to accept the federal funds." United States Dep't of Transp. v. 

Paralyzed Veterans, 477 U.S. 597 (1986). There is neither a requirement that a 

state entity directly receive federal financial assistance, Grove City College 

v. Bell, 465 U.S. 555, 564, (1984), nor that it directly benefit from that 

assistance, Paralyzed Veterans, 477 U.S. at 607 (citing Grove City). Under 

amendments to Section 504 enacted in 1988, the definition of "program or 

activity" was expanded to include not only a state or local entity originally 

receiving such assistance, but also each department or agency to which it 

"extends" that assistance. (29 U.S.C. Sec. 794(b)(1)(B) Similarly, regulations 

promulgated under the Rehabilitation Act define a "recipient" as including "any 

instrumentality of a state . . . to which Federal financial assistance is 

extended directly or through another recipient." 45 C.F.R. Sec. 84.3(f) Neither 

the statute nor the regulations require an instrumentality of a state to which 

the assistance is "extended," to be also in a position to accept or reject Sec. 

504 obligations for the requirements of the Rehabilitation Act to apply. 

Therefore, the scope of Section 504 coverage is extremely broad. 

In 1990, the requirements concerning information access were expanded even 

further with the enactment of the Americans with Disabilities Act (ADA). Title 

II of the ADA applies the ban on discrimination against people with disabilities 


to entities of state and local government whether or not such entities receive 

federal financial assistance. Therefore, under the ADA Title II regulations 

codified at 28 C.F.R. Sec. 35.160 mirroring the Section 504 rule, a public 

university or community college, for example, is required to provide timely 

access to information in a medium preferred by the individual with a disability. 


However, since such institutions more than likely directly or indirectly benefit 


from federal financial assistance, they are also subject to the Section 504 

information access requirements as well. As a practical matter, Section 504 and 

ADA Title II provide comparable protections for people with disabilities seeking 


access to information of all kinds, and complaints of discrimination by such 

entities of state or local government are properly lodged under either law, and 

frequently under both simultaneously. 

The United States Department of Education's Office of Civil Rights (OCR) has 

dealt specifically with the question of accessible materials and the 

requirements to honor the preference of individuals with disabilities and the 

timeliness of delivery. In a series of Letters of Findings (LOFs) articulating 

the information access policy, OCR has unambiguously outlined the right to 

"effective communication." Issued against specific educational institutions, 

these LOFs provide an example of how one class of public entities must comply 

with federal law. 

Two examples will illustrate this point. In OCR's LOF concerning Los Rios 

Community College, a student alleged that a college discriminated on the basis 

of disability by failing to make its computer laboratory, library, employment 

services, and written materials accessible to students with visual impairments. 

During the course of the investigation, the college agreed to a voluntary 

resolution plan which, among other things, provided that the college would 

develop written procedures to respond to requests for auxiliary aids, make 

printed materials and computers accessible by providing auditory, tactile and 

enlarged print materials, and make its library and student employment services 

accessible to students with visual impairments. In describing the scope of the 

information access requirement outlined above, OCR stated: 

Due to the "range of disabilities" and the "primary consideration" accorded 

the individual's preference in the manner accommodation is offered, the 

post-secondary public institution should be prepared to deliver in a 

reasonable and timely manner the printed materials relied upon in its 

educational program in all of the following mediums: auditory, tactile 

(Braille), and enlarged print. Although there may be circumstances when the 

student's preferred medium is not, on balance, the medium selected by the 

post-secondary institution to provide the student appropriate aids and 

services, the institution may not categorically refuse to provide 

accommodation through a particular medium (e.g., Braille). Rather, the 

post-secondary institution must be prepared to timely offer access to its 

printed materials in all three mediums, with the particular medium used for 

the student's request dependent on a case by case analysis. 

Additionally, in OCR's letter concerning California State University at Los 

Angeles, a complaint filed with OCR alleged that the university failed to 

provide access to blind and low vision students with respect to library 

resources, campus publications, and open computer laboratories. The university 

agreed to a voluntary resolution of the issues raised in the complaint and to 

draft language proposed by OCR describing the steps to be taken to comply with 

the law. The letter reads in pertinent part as follows: 

In construing the conditions under which communication is "as effective as" 

that provided to nondisabled 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. 


For some time, the federal government has been required to make information 

accessible to people with disabilities. According to its own regulations, the 

accessible information must be provided in formats (such as braille or audio 

recording) preferred by those requesting such information. Additionally, 

recipients of federal financial assistance are under a similar obligation to 

provide accessible information. Even public entities which do not receive such 

assistance are now required to provide accessible information in compliance with 


the ADA. In no case must any of these entities comply with the individual's 

preference when doing so would result in an undue burden, but such a 

determination is made based upon the resources available to the program or 

activity as a whole. When an undue burden cannot be shown, the accessible 

information must be provided in a timely manner and generally under conditions 

affording equal access to people with disabilities. Finally, public entities 

must be prepared in advance to provide accessible information in a manner that 

complies with these long-standing requirements of federal law. Date: October 12, 





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