Technology Access and the Law

"It is possible to envision situations where an insistence on past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities...qualify them [individuals with disabilites]...to enable the attainment of these goals [equal opportunity and non-discrimination]..." U.S Supreme Court decision; 442 U.S. 406 (1979)

LEGAL ISSUES

Three trends provide the context for this article: first, the increasing role of electronic information, telecommunications and computing technology in the academic infrastructure; second, the changing demographics of the college population; and third, the evolution of the legal principles and requirements concerning access to equal opportunities for individuals with disabilities. After establishing a context, this article will provide an overview of federal legislation, and recommend a pro-active approach to increasing access to technology on college campuses.

THE CONTEXT

In the twenty-two years since Section 504 of the Rehabilitation Act was signed into law, computers and related technology have evolved from huge machines dedicated to a few technical disciplines into a common tool used by most students and faculty. Applications software, from word processing to statistical packages, have become integral to many courses. Card catalogs are rapidly becoming quaint relics as they are replaced by library databases and CD ROMs. The Internet is becoming an increasingly important source of information (the Association of Academic Research Libraries has cataloged over a thousand electronic journals and lists). Increasingly, success in college means access to the tools and products of information technology as well as access to the traditional learning environments such as libraries, laboratories and classrooms.

There has also been a steady increase in the number of students with disabilities participating in higher education. The American Council on Education (ACE) has surveyed the national cohort of first-time full-time entering students annually since 1966. The survey indicates that the number of students with disabilities beginning college as full-time students has increased by more than 300%. In 1978 (when ACE began collecting information on students with disabilities) 2.6% of the respondents indicated that they had a disability; by 1991, that figure had climbed to 8.8% (Henderson, 1992). Based on the data available, at both the secondary and post-secondary levels, the number of students with disabilities on campus can be expected to continue to grow until this population represents 10% to 15% of the students on any given campus.

The Rehabilitation Act of 1973

Title V of the Rehabilitation Act of 1973 is considered the first federal civil rights legislation for persons with disabilities. Title V addresses non-discriminatory hiring practices in federal agencies (Section 501); established the Architectural and Transportation Barriers Compliance Board (Section 502); requires affirmative action clauses for employment of qualified individuals with disabilities in contracts with primary federal contractors (Section 503); requires non-discrimination in employment and the provision of services by all programs receiving federal funding (Section 504); establishes remedies for discrimination and assigns regulatory responsibilities for enforcement (Sections 505-507).

The 1986 amendments to the Act mandated the development of accessibility guidelines (FIRMR) for electronic office equipment purchased by federal agencies (Section 508). This landmark legislation is still in force and served as a foundation for the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act (ADA)

The Americans With Disabilities Act is divided into five Titles. Title I covers non-discrimination in private sector employment. Title II requires that both public transportation and the facilities, programs, and services of state and local governments be made accessible to individuals with disabilities. Title III requires that public accommodations, e.g., shopping malls, restaurants and theaters, be made accessible to persons with disabilities. Title IV requires that telecommunication services be made accessible to persons with hearing and speech disabilities. Title V contains miscellaneous provisions relating to the previous four Titles (e.g., exemptions for historic sites), remedies, and regulatory jurisdiction.

A principle difference between the ADA and its predecessor is coverage. The Rehabilitation Act covers the recipients of federal funds. The ADA extends coverage to private entities as well as state and local governments in addition to recipients of federal funding. In addition to extending civil rights protection for individuals with disabilities into the private sector, the enactment of the ADA has raised both public awareness and the awareness of individuals with disabilities of their rights.

State and Municipal Laws:

WHAT DOES IT MEAN TO MY CAMPUS?

The outline above provides a sense of the coverage and impact of the federal legislation but what does it mean in terms of access and campus computing? With the exception of telecommunications and the purchase of equipment by federal agencies, the federal legislation and regulations do not specifically address the issue of technological access on the college campus. However, the general mandates for access to educational programs and services form a foundation for developing a practical set of guidelines.

A review of the legislation, the regulations, and the case law under the Rehabilitation Act and the ADA was used to produce this summary. This summary can be used to establish access policies and procedures for campus computing.

The Rehabilitation Act covers all programs at institutions that receive any federal funds. This includes direct funding as well as financial aid funds for students. All institutions are covered by the ADA. Since both laws require the same level of educational access, the Department of Justice (DOJ) will refer complaints concerning postsecondary education to the Department of Education's Office of Civil Rights under the Rehabilitation Act. This DOJ policy allows for both the most efficient use of enforcement manpower and the use of the case law developed under the Rehabilitation Act.

The regulations developed under Section 504 of the Rehabilitation Act state that the activities that must be operated in a non-discriminatory/accessible manner include but are not limited to recruitment, admission, academic programs, support services, housing, financial aid, student employment, athletics, recreation, transportation, and extra-curricular programs (34 Code of Federal Regulations 104).

The courts have found that if the location, delivery system, instructional methodology, or evaluation method limit the participation, access, or ability to benefit of students with disabilities then reasonable modifications are required to provide access. The courts have further indicated that individuals with disabilities are entitled to an equal opportunity to participate in and benefit from the academic community. Access to the academic community has been interpreted to include meaningful access to libraries, laboratories, campus services, recreation facilities, housing, and non-credit workshops or courses in the most integrated setting possible (United States of America v. The University of Alabama, 908 F.2d. 740, 1990; Southeastern Community College v. Davis, 442 U.S. 406, 1979). Specific adaptations that have been upheld include the provision of sign language interpreters, adaptive technology in the classroom, adapted laboratory equipment, test format modifications, adaptive telecommunications devices, and the provision of information in alternative formats (Braille, tape, etc.).

There are only three limits to the types of accommodations or modifications that are considered reasonable. First, accommodations of a personal nature, e.g., prescription devices or personal attendants. Second, modifications that fundamentally alter the nature of the program or service being provided. Third, modifications that pose an undue financial or administrative burden on the institution. Most of the case law involves disputes over whether or not a particular modification represents a fundamental alteration in an academic context. To date, there are no cases where the defense of undue financial burden has been successfully argued.

WHAT DOES IT MEAN TO CAMPUS COMPUTING?

Since computing and information technology have become an integral part of the academic experience, it is clear that it must be accessible to all students, faculty, and staff. Meaningful access begins with notice and includes access to the facilities, equipment (input), the results (output), documentation, and technical support.

Notice

Willingness to embrace the spirit of the law is meaningless if students are unaware of their right to request reasonable accommodations. Information materials should include a notice on whom to contact to request such accommodations. The campus disabilitiy services officer can provide advice on methods of identifying students, providing notice and evaluating requests. If your campus does not have an Office of Disabilities Services, it should have a Compliance Officer/ADA Coordinator (the federal regulations require that every institution assign someone these responsibilities). As you work on notice you will want to establish procedures for requesting accommodations, evaluating requests, and arranging or purchasing requested aids and services. Depending on institutional policy, requests may be handled directly or through the Office of Disabilities Services. Utilizing the expertise of Disability Services or the Compliance Officer is probably the best way to have requests evaluated for need.

Developing these procedures with other service providers on campus will provide an opportunity to conduct an analysis of the adaptive computing needs of current students, faculty and staff. A needs analysis is important in developing priorities for designing a fully accessible service. A committee to develop a computing transition plan for this purpose is recommended. This planning committee should include representatives from Computing Services, Library Services and Disability Services as well as individuals with disabilities, and faculty. In the short-run this committee will develop a structured plan to meet current adaptive computing needs. In the long-run, planning committees typically establish permanent campus adaptive computing support units.

Facilities

Facilities access includes access to the building as well as furniture and equipment, e.g., adjustable or wheelchair height tables. For guidance on physical access issues, refer to the Computer Users Survey in the appendix and the UFAS of ADAAG guidelines (see under "Publications," below). The guidelines mentioned are the federal building codes for access; your campus director of buildings and grounds should have a copy. The distribution and location of computing technology on campuses takes many configurations. In developing an access plan, keep in mind that the Rehabilitation Act requires "programmatic access." Programmatic access means that not every location needs to be accessible but that all services, software, etc. must be made available in some accessible locations that provide comparable access. The regulations emphasize the need to provide this access in the most integrated setting possible (after all, separate but equal is an outdated concept). It is reasonable to provide a baseline level of accessibility (physical access, Access DOS or similar software, etc.) at every major facility (library, labs, etc.) and have separate or limited areas that house highly specialized equipment (voice input/output, Braille output, etc.).

Input/Output Devices

Addressing the range of adaptive devices is beyond the scope of this survey. For a discussion of available devices and their use the reader should contact EASI [Equal Access to Software and Information (see resource list)]. The Functional Performance Specifications for Technology Accessibility published in the Federal Information Resource Management Regulations also provides useful guidance in selecting accessible technology.

From a legal point of view, requests for adaptive devices that allow a comparable level of use of the available technology are reasonable requests. Where there are multiple options for accomplishing access, the institution can choose considering the needs of other users, compatibility, cost, etc. The individual making the request should be involved to ensure the end results provide meaningful access.

Technical Support

In general, technical support and training make the use of technology possible on our campuses. Without these vital services, students, faculty and staff would not know what is available, what can be supported by the institution's technology infrastructure, how to integrate applications with current technology, and how to use what has been purchased. Technical support and training allow members of the campus community to become increasingly sophisticated users of the available technology. As a vital service, technical support must also be accessible to individuals with disabilities. Access to technological support can be thought of as a continuum with three major reference points: standard services, consulting, and dissemination.

Standard technological support services offered to the campus community as a whole must be accessible to individuals with disabilities. General training sessions (computer lab orientations, use of applications software, library technology, etc.) should be in accessible locations. Sign language interpreters and accessible workstations at training sites must be provided when requested. Additionally, assistance with ordering, installing, and maintaining adaptive technology should be available at the same level as any other hardware/software on campus. Moving up the continuum, Computing Services consults with individuals to identify adaptive solutions and provides the needed training to ensure that adaptive software/hardware is usable. At the end of the continuum, Computing Services plays an active role in disseminating information about adaptive technology by providing demonstrations, consulting with departments, computer labs, businesses, local school systems, etc. on developing accessible sites. The letter of the law clearly requires that standard services be accessible. The spirit of the law suggests that consulting services should be provided. A pro-active stance would include dissemination.

Documentation

Accessible documentation (electronic text, audio tape, Braille, etc.) is necessary for the meaningful use of technology. Documentation includes both user manuals for hardware/software and any training materials, simplified directions, or other in- house materials. All of these materials must be available in "alternative formats" that are accessible to users. The choice of format is determined by the user. For example, a faculty member who is blind might use materials on tape, in braille, or on disk with a screen reader. Depending on the professor's background and the type of material under consideration, these three formats do not provide equivalent access. Audio tape is a linear/sequential format and technical materials often require recursive reading. In such a case, a request for Braille over tape is not a preference but a requirement for meaningful access.

As a rule, having the materials on disk is the most flexible. Screen readers are fairly equivalent to tape and conversion to Braille is possible through the use of adaptive technology. If your institution does not own this equipment, there are services, including State Rehabilitation Services as well as private companies, which can convert electronic materials into Braille.

A Word About Costs

Costs should be considered second. The first question should always be "is the request reasonable and what solutions are available that would provide access?" Next, according to the U.S Dept. of Labor and the Jobs Accommodation Network, most accommodations (approximately 81%) cost less than $1000.

These realities to the side, cost can be a difficult issue. Experiences with the mandate for physical access in the Rehabilitation Act demonstrate the advantages of being proactive rather than reactive. Retrofitting facilities piecemeal based on each request is both inefficient and expensive. It is recommended that infrastructure accessibility expenses be included in the annual budget cycle. You will also want to discuss budget issues with Disability Services. Classroom accommodations are often funded from a central budget and physical access renovations are often funded from reserve maintenance budgets. Can computing services tap these sources? You may be able to obtain funding from private sources and individuals on campus who are clients of the Department of Rehabilitation Services may have access to funds to assist in meeting their needs.

DISCUSSION QUESTIONS

Who on campus is responsible for nondiscrimination policy administration?

How can we work together to develop a proactive campus- wide policy for technology access?

How can we best establish the current and future needs for technology access?

How are various types of access projects and accommodations currently being funded?

Disability Services to Campus Computing:

What adaptive technology is already on campus?

What programs and departments have most heavily integrated computing as part of students' academic experience?

What are the most widely utilized aspects of Campus Computing (word processing, library databases, etc.)?

How can we work together to develop a proactive campus- wide policy on technology access?

FIRST STEPS

1) Meet with representatives from the campus Disability Services Office. Review established policies and procedures in the context of technological access and identify any missing elements. Review the current level of technology access in the context of current and anticipated needs.

2) Host an informal meeting with the Offices of Disability Services, Affirmative Action, Legal Counsel, Business Affairs/Budget and Campus Computing. Discuss the results of your review and the need for developing a work group with Disability Services.

3) Establish a working group to develop policies on technological access and devise an access plan to be implemented over time.

RESOURCES

PUBLICATIONS

REFERENCES