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

Tue Dec 15 17:11:40 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.

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.

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
settings.”

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.

Sincerely,

Mark A. Riccobono, President

National Federation of the Blind

MAR/gc

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

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.pdf.

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.

Joy Breslauer, President

National Federation of the Blind of Montana 

Address: P.O. Box 1325, Great Falls, MT 59403 

Phone: (406) 454-3096

Email: president at nfbofmt.org

Web Site: www.nfbofmt.org

Live the life you want 

The National Federation of the Blind knows that blindness is not the
characteristic that defines you or your future. Every day we raise the
expectations of blind people, because low expectations create obstacles
between blind people and our dreams. You can live the life you want;
blindness is not what holds you back.

It’s TIME to Eliminate Subminimum Wages for People with Disabilities

http://www.nfb.org/TIME

Donate to the National Federation of the Blind of Montana
<http://www.nfbofmt.org/donate.html> 