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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.
a. The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other
Federal entities, and members of the public.
1. 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.
i. In determining what type of auxiliary aid is necessary, the agency
shall give primary consideration to the requests of the
handicapped person.
ii. 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
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