[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
Summary
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
Service.
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
person.
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.
Conclusion
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,
1999
Return to Governmental Relations Group
Return to AFB Home Page
Please direct your comments and suggestions regarding this web site to the AFB
Information Center at afbinfo at afb.net
More information about the NFBMI-Talk
mailing list