[nfbmi-talk] American Council on Education Regarding the State of Our Negotiations

Terry D. Eagle terrydeagle at yahoo.com
Sat Dec 12 02:38:25 UTC 2015

A Letter to the American Council on Education Regarding the State of Our
Negotiations and NFB's Plans for Moving Forward


Blog Date: 

Thursday, December 10, 2015

After fourteen months of negotiating with the American Council on Education
(ACE), the time has come to seek alternative avenues to secure equal access
to electronic instructional materials at institutions of higher education.
The following is a letter President Riccobono sent to ACE President, Molly
Corbett Broad, informing her that while we are still open to dialogue, we
will not sit idly on this critical issue to blind and print-disabled
students. We will reengage with Congress to find champions for students with
disabilities in order to ensure that we have equal access in the classroom
and beyond, so that blind and print-disabled students can live the lives
they want.


December 10, 2015

Molly Corbett Broad, President
American Council on Education
One Dupont Circle NW
Washington, DC 20036

Dear President Broad:

On September 9, 2014, I wrote to you inviting the leadership of the American
Council on Education to engage with leaders of the National Federation of
the Blind and representatives from the Association of American Publishers in
order to find common ground that would provide a suitable solution to the
discriminatory barriers faced by blind students in the educational
technologies they encounter in institutions of higher education across the
United States. Although we had spent more than a year attempting to engage
the higher education leadership around our legislative proposals without any
response, I was pleased that on October 8, 2014, we finally sat at the same
table to begin what we hoped would be a fruitful dialogue regarding
legislation that would change the paradigm of accessibility for students who
are blind or otherwise print-disabled. Today, three full academic semesters
later, I regret to say that despite our best efforts we have not come to the
agreement we initially sought.

As you know, Titles II and III of the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act prohibit institutions of higher
education from discriminating against blind and print-disabled students, and
require them to provide blind and print-disabled students an equal
opportunity to participate in their services and benefits.
state-our-negotiations-and-nfbs-plans#Endnote%201> 1 Both the implementing
regulations and guidance from the Departments of Justice and Education make
clear that requiring use of technology in the classroom environment that is
inaccessible to blind or print-disabled students is discrimination under the
ADA and Section 504 unless the institution provides the individuals
accommodations or modifications that permit them to receive all the
educational benefits provided by the technology in an equally effective and
equally integrated manner.
state-our-negotiations-and-nfbs-plans#Endnote%202> 2 Accessible technology
not only expands the circle of participation to include individuals with
disabilities, but also ensures that institutions of higher education meet
their legal obligation to provide it, eliminating the need for ad hoc, often
insufficient aids, benefits, or services. The National Federation of the
Blind entered into negotiations with the American Council on Education
hoping to reach a compromise that would make accessibility a priority for
both institutions of higher education and the developers and manufacturers
who create this technology. By ensuring that accessibility is incorporated
during development, the number of mainstream accessible electronic
instructional materials would increase, giving institutions a variety of
procurement options that would meet their unique pedagogical needs. We
believe higher education needs the framework we seek in order to better meet
its obligation to provide equal access in an educational environment that is
increasingly technology centric.

After fourteen months of negotiating with your Division of Government and
Public Affairs, it is clear to us that blind students will not receive equal
access based on the framework our negotiations have produced. We have
continued to compromise in good faith, however, our compromise is not
matched in kind but rather with an expectation that more should be required
of us or that we are being unreasonable in our requests. For example,
notwithstanding existing legal requirements to provide accessible materials
to students with disabilities, my team sought to incentivize the use of the
voluntary guidelines created by the commission by providing a safe harbor
from litigation for conformant institutions. While federal mandates for
accessibility currently exist, there is no clear path that assures
institutions they are in compliance with federal law. These guidelines would
create that path. However, your community determined that this was not
enough of an incentive, and proposed a bifurcated safe harbor, limiting
legal action to declaratory and injunctive relief, as well as attorney’s
fees for schools that adopted the guidelines, but for whatever reason, still
purchased inaccessible technology. Although this approach has disadvantages,
we agreed to seek a path forward.

In another instance, your team was opposed to the framework we proposed
being housed within the United States Access Board, despite the board being
the federal agency most knowledgeable about accessibility policy, as well as
the agency recommended by the Advisory Commission on Instructional Materials
to “establish guidelines for accessible instructional materials that will be
used by government, in the private sector, and in postsecondary academic
state-our-negotiations-and-nfbs-plans#Endnote%203> 3 Yet, in the spirit of
compromise, we agreed to a purpose-based commission comprised of
representatives from all relevant stakeholder groups. Even after
compromising, we were told that our desire to have some of the most
knowledgeable people with disabilities eligible to serve on this commission
was inappropriate and represented unreasonableness on our part.

Despite our best efforts to create an environment of compromise and
progress, the process has been bogged down by last-minute changes that have
adversely reshaped the legislation originally proposed. Securing accessible
instructional materials in higher education for blind students is our
mandate, and this legislative concept, as it is currently drafted, will not
adequately meet that need. I wanted you to know that the time has come for
us to seek alternatives to the current negotiation. We continue to be
prepared to talk but we recognize that there is a significant gap between
the urgency we hear from blind students every day and the protective posture
that has existed in these negotiations. I hope that we can find a better way
to engage in productive negotiations that reflect the true problem that
exists in higher education institutions today.

I look forward to hearing from you with your ideas of how we might make our
discussions more effective for blind students across the nation. In the
meantime, we will be seeking other avenues to secure the clarity and support
needed to ensure true digital equality at institutions of higher education.


Mark A. Riccobono, President
National Federation of the Blind


cc: Terry W. Hartle, American Council on Education
Allan Adler, Association of American Publishers

1 28 C.F.R. § 35.130(a), (b)(1)(2); 28 C.F.R. § 36.201(a); 28 C.F.R. §
36.202(a)-(c); 34 C.F.R. § 104.4(b)(i)-(ii).
2 28 C.F.R. § 35.130(b)(1)(iv); 28 C.F.R. § 36.202(c); 34 C.F.R. §
104.4(b)(1)(iv) (2009). See also, Dear Colleague Letter from U.S. Department
of Justice, Civil Rights Division, & U.S. Department of Education, Office
for Civil Rights, to College and University Presidents, at 1 (June 29,
2010), available at
3 Advisory Commission on Instructional Materials. Report of the Advisory
Commission on Accessible Instructional Materials in Postsecondary Education
for Students with Disabilities. 2011. Pg. 42. No. 1.




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