this is the strongest statement yet for the right to receive braille
materials in college. All alternative formats are not equal in
effectiveness. I believe that was the attitude that resulted in the
delay in not obtaining the book in braille in the first place. The Texas
report on textbook preparation and mentioned in the letter of finding was
distributed on this list a couple of months ago.
kelly
City College of San Francisco
January 9, 1998
Chancellor/President Del M. Anderson
City College of San Francisco
50 Phelan Ave, E200
San Francisco, CA 94112-1898
(In reply, please refer to Docket Number 09-97-2145.)
Dear Chancellor/President Anderson:
On June 12, 1997, the U.S. Department of Education, Office for Civil
Rights (OCR), received a complaint alleging that the City College of
San Francisco (College), a California Community College, failed to
provide to a blind student (complainant) a Braille translation of a
textbook assigned during the Spring 1997 semester.
OCR has jurisdiction over the College under Section 504 of the
Rehabilitation Act of 1973 (Section 504) and Title II of the Americans
with Disabilities Act of 1990 (Title II), which prohibit
discrimination on the basis of disability by recipients of federal
funds and public entities, respectively. The College is both a
recipient of federal funds and a public entity. At this time,
contingent upon the College's implementation of its plan submitted to
OCR on December 29, 1997, OCR finds the College in compliance.
Obligation to Provide Textbook in Meaningful Alternative Format
Under Title II, a public college is required "to take appropriate
steps to ensure that communications with students are as effective as
communications with others... In determining what type of auxiliary
aid and service is necessary, a public entity shall give primary
consideration to the requests of the individual with disabilities" [28
Code of Federal Regulations (C.F.R.) § 35.160].
OCR has repeatedly interpreted the term "communication" in this
context to mean the transfer of information, including (but not
limited to) the verbal presentation of a lecturer, the printed text of
a book, and the resources of the Internet. In construing the
conditions under which communication is "as effective as" that
provided to nondisabled persons, on several occasions OCR has regarded
the three basic components of effectiveness as 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.
With regard to the "significance of the message" of a textbook, OCR
notes that a course-assigned textbook constitutes a core component of
the post-secondary academic curriculum. A course-assigned textbook is
customarily the primary reference tool upon which the student is
expected to rely. Moreover, the content structure of the course is
often closely correlated to the textbook such that it is difficult to
actively learn and participate in the classroom if the student is
unfamiliar with the assigned textbook material. Finally, through
examinations the student is ordinarily held accountable for knowing
the information in the assigned portions of the textbook.
One of the courses taken by the complainant during Fall 1996 and
Spring 1997 was a course specifically designed to assist students in
taking the Test of English as a Foreign Language (TOEFL), a
standardized test administered nationally by the Educational Testing
Service (ETS). The textbook "Longman Preparation Course for the TOEFL"
(hereinafter TOEFL textbook) was the primary educational resource used
inside and outside the classroom in this course. The complainant
requested the Disabled Student Program and Services (DSPS) Office to
translate the TOEFL textbook as an accommodation to her disability
(blindness).
OCR finds that the College's responsibility to provide the complainant
communication "as effective as" that provided to nondisabled students
required the College to provide the complainant a meaningful
alternative format of the TOEFL textbook.
Determining Appropriate Alternative Format
One of the most difficult tasks facing colleges today is providing
textbooks in a timely accurate complete appropriate alternative format
to students with print impairments. OCR experience is that, with
respect to rendering course-assigned textbooks accessible to blind
students, currently most colleges rely almost exclusively on the
auditory medium, specifically either personal readers or
audio-cassettes from sources such as Recordings for the Blind and
Dyslexic.
However, in some situations, the subject matter of the textbook is
particularly ill-suited to an auditory translation. For example,
mathematics and science textbooks, as well as textbooks to assist in
acquiring proficiency in a written (rather than conversational)
foreign language, ordinarily rely heavily on unique symbols,
equations, charts, grids, subscripts, punctuation, underscores, and
accent marks, which are often hard to effectively convey through
auditory speech. Unfortunately, the type of subject matter for which
auditory speech is least appropriate is often the same type of subject
matter that may be the most expensive and time-consuming to translate
into electronic/Braille, because the standard optical character
recognition scanner is usually not adequate for converting the
specialized non-narrative print into a meaningful electronic/Braille
format.
Section 504 implementing regulation [34 C.F.R. § 104.43(c)] prohibits
colleges from excluding students, on the basis of disability, from any
"course of study." As OCR has stated in prior opinions [OCR Case
Docket No. 09-91-2157 (January 15, 1992)], "Failure to translate
specialized material, such as mathematical symbols and equations, into
a language [e.g., Braille] specifically created to communicate such
material to the visually impaired, has the result of strongly
deterring visually impaired students from taking courses, or
concentrating in areas, that involve higher mathematics [or other
"courses of study" whose printed information is expressed in special
symbols or punctuation]."
Besides the problem of translating certain types of subject matter
into a meaningful auditory medium, there are additional problems in
using a personal reader to make a large volume of printed material,
such as an entire textbook, accessible. When a college offers a
personal reader as the means for translating a textbook into an
alternative format, the student with the print impairment is asked to
set aside significant blocks of time which must be coordinated with
the schedule of the reader(s) so that both are present at the same
time and place on campus. Such coordination may be especially
difficult for a blind student whose mobility is ordinarily dependent
upon public transportation or other third person drivers. As to the
role of the student with the disability in asking fellow classmates to
act as a personal reader, some students prefer to secure their own
service provider, while other students are highly reluctant or even
unwilling. Some students with disabilities state that having to
personally approach fellow classmates to request special services
(even when offering compensation) undercuts their ability to establish
peer relationships.
In addition to the difficulties commonly associated with the use of
personal readers (e.g., adequate supply, scheduling conflicts,
reliability, acceptable speaking voice), when a student is in the
process of learning English as a Second Language (ESL), comprehension
of information presented in spoken English is significantly less than
would be expected of a native English-speaking blind student, and any
foreign accent by a personal reader would be more problematic than
usual.
Finally, a personal reader (unless recorded) provides only one time
exposure to the information and does not allow the student to
independently refer back when studying on his/her own. Even when the
personal reader is informally audiotaped, such recordings do not allow
the student efficient internal document flexibility to move between
topical headings and from page to page. Thus, when later attempting to
review materials, the student generally finds it very time consuming
to wind and rewind, play and replay, the collected audiotapes in order
to locate specific information. Consequently, personal readers are
often most effectively used for materials that a student will not be
frequently referencing. For a discussion of features to consider when
making a textbook accessible in alternative format, see the report
"Accessibility of Information in Electronic Textbooks for Students Who
Are Blind or Visually Impaired," presented by the Texas Education
Agency to the Texas Legislature, at .
The facts of this particular case illustrate many of the above
problems encountered by colleges when attempting to provide textbooks
in an alternative format. During the Spring 1997 semester, the
complainant asked the College to translate three course-assigned
textbooks: "Focus on Grammar," "In Our Own Words," and the TOEFL
textbook.
The College states that "Focus on Grammar" was made accessible to the
complainant through an already existing audiotape. The College states
that "In Our Own Words" was provided in Grade 2 Braille (229 printed
pages or 350-450 Braille pages) through the efforts of a "typist
proofreader" who input the text using an Apple scanner, Ramsley
converter software, and a Versapoint Braille printer. OCR notes that
during the Spring 1997 semester the College also translated
approximately 80 printed pages of class handouts into Grade 2 Braille
for the complainant, as well as Brailling certain practice
examinations, three of which are from the TOEFL textbook. The College
estimated that, when translating into Braille, on average 10-15
printed pages per week was "an amount that could be provided without
delay." During the Spring 1997 semester, a total of approximately 410
printed pages were converted into Braille for the complainant. (In the
College's experience, one typed page converted to about one and a half
to two pages of Grade 2 Braille.)
For reasons discussed below, the College relied on personal readers to
translate the TOEFL textbook from hard copy print to alternative
format.
The TOEFL textbook contains numerous charts and grids that, for
sighted students, are more effective than narrative description in
presenting information such as verb conjugation and grammatical
sequencing. The TOEFL textbook also frequently uses special
punctuation, underscoring, subscripts, and accent marks to assist the
sighted reader in comprehension and pronunciation. The College stated
that its DSPS optical character recognition scanner, used to convert
hard copy print into Braille, was not adequate for purposes of
translating the TOEFL text, not only because of the type of printed
text involved, but also because during Spring 1997 DSPS
staff/equipment was already operating at capacity to translate into
Braille other course-related materials for the complainant. The DSPS
staff contacted the American Printing House for the Blind, who
indicated that the process of translating the TOEFL textbook into
Braille "could take anywhere from six months to one year. The Braille
copy would then be sold to the [College] District for several thousand
dollars, depending on length."
In its written Data Response to OCR, the College stated that the DSPS
counselor discussed the difficulty of translating the TOEFL textbook
into Braille "many times" with the complainant "who acknowledged the
problem and agreed that she did not need the Braille and that the
reader/assistant could read the TOEFL material to her." In interviews
with OCR, the complainant states that she was always clear that what
she needed was a Braille translation, but that since the College
indicated that translation of the TOEFL textbook into Braille was not
a feasible option, she "agreed" to take whatever accommodation could
be made available.
The College indicated to OCR that it believed a personal reader was an
adequate method for translating the TOEFL textbook for the complainant
because the prior semester (Fall 1996) when taking the same TOEFL
course the complainant had used one personal reader throughout the
semester and, according to the College, this arrangement had been
satisfactory to the complainant. (OCR notes that the complainant,
after taking the TOEFL course the first time in Fall 1996, did not
pass the TOEFL test taken Spring 1997.) The College explained that
this personal reader did not merely read the printed TOEFL text aloud,
but instead attempted to be highly interactive with the complainant so
as to try to make as clear as possible the non-narrative text, with
its underscoring, accents, subscripts, etc. In short, the College
described the role of this personal reader in many ways as more akin
to that of a tutor rather than a reader who merely reads the printed
text aloud word for word. The College indicated that the students
recruited to provide this audio-interpretation of the TOEFL textbook
had no special training in how to teach English as a Second Language
or in how to most effectively read aloud specialized text such as
underscoring, subscripts, charts, etc.
In Spring 1997, the College offered to provide the complainant a
"personal reader/assistant" to meet in the library for up to four
hours per week. The College indicated that "Finding students who were
available at the same time as [the complainant] was difficult because
[she] was unable to be flexible with meeting times... [she] was unable
to meet any other time than Wednesday and Friday 11-1]. [She] rejected
the first reader/assistant because the reader/assistant was unable to
meet at the times specified by [her]. [She] rejected the second
reader/assistant because the reader/assistant had an `accent'. The
third reader/assistant was only able to meet once a week on Fridays
for three hours; this was agreed to by [the complainant]. With three
weeks left in the semester, DSPS was informed by [the complainant]
that the reader/assistant was no longer showing up. A fourth
reader/assistant was provided for the last two weeks of the semester.
[The complainant] was not willing/able to assist in finding fellow
students on campus who might be able to assist her for pay (using DSPS
funds)."
OCR finds the evidence indicates that the personal readers/assistants
provided by the College during the Spring 1997 semester did not
provide the complainant communication "as effective as" that provided
to sighted students who were able to read the printed text in the
TOEFL textbook.
Role of Textbook Publishers
As evidence of its good faith efforts to provide the complainant a
Braille translation of the TOEFL textbook, the College described to
OCR efforts made to obtain an electronic version of the TOEFL
textbook. Longman Publication, publisher of the TOEFL textbook, also
publishes other textbooks which are used in courses at the College's
Institute. More than a year prior to the complainant's enrollment in
her first TOEFL course in Fall 1996, the College first contacted
Longman Publication requesting its cooperation in making accessible
Longman textbooks being used by the complainant. By letter dated
November 22, 1995, the College's DSPS counselor wrote to the Executive
Editor of Longman Publication stating that "an international student
who is visually impaired has enrolled in our ESL program. The texts
the class will be using are: Focus on Grammar - High Intermediate...
[and] Workbook for High Intermediate... Books on tape does not work in
this instance because an auditory presentation of the material does
not allow the student to learn spelling. I request a Braille version
of the texts or a copy of the texts on computer disk so that I may
convert the text to Braille in our high tech department... [I also
request] appropriate copyright permission."
Longman Publication responded by telephone that its policy was not to
provide either Braille translations or an electronic disk version for
any of its textbooks. Moreover, Longman Publication indicated that in
any event their own electronic disk version of their textbooks was
"protected and would not be readable by any system DSPS might use to
convert the text to Braille." When the complainant enrolled in her
first TOEFL course in Fall 1996, the College again contacted Longman
in an attempt to obtain either a Braille or electronic computer disk
version of the TOEFL textbook. Again, Longman was unwilling to provide
either.
Publishers benefit when college faculty select the publishers' product
as a course-assigned textbook (which all students in the class are
then required to purchase). On the other hand, colleges report to OCR
that publishers have been almost entirely unwilling to voluntarily
alleviate the cost or otherwise participate in the process of making
their product accessible to students with print impairments. Recently
the disability community has turned to lawmakers for relief.
One barrier to educational institutions attempting to provide a
printed text in an alternative format has been copyright issues
involved in reproducing the original text. On September 16, 1996,
federal Public Law 104-197 became effective, stating that "... it is
not an infringement of copyright for an authorized entity to reproduce
or to distribute copies or phonorecords of a previously published,
nondramatic literary work if such copies or phonorecords are
reproduced or distributed in specialized formats exclusively for use
by blind or other persons with disabilities... "specialized formats"
means braille, audio, or digital text which is exclusively for use by
blind or other persons with disabilities" [17 United States Code
(U.S.C.) Ch. 1, § 121].
Besides eliminating the copyright barriers, steps have been taken to
hold publishers responsible for providing their product in an
alternative format. For several years states such as Texas have
required publishers of elementary and secondary textbooks to deposit
the electronic version of their textbooks into a central registry,
where the state then translates the text into Braille for elementary
and secondary students who are blind. In July 1997, the first state
law applicable to publishers of college textbooks was passed. Arizona
now mandates the state board of education to require "the publisher of
each literary and nonliterary textbook used in the community colleges
of this state to furnish computer software in a standardized format
when software becomes available for nonliterary textbooks, to the
State Board of Directors for community colleges from which Braille
versions of the textbook may be produced" [Section 15-1425, Arizona
Revised Statutes]. At this time there is no California state law
requiring publishers of textbooks used in public educational
institutions to provide such textbooks in an electronic/digital format
for the purpose of accommodating a student with a disability.
In addition to the role of the publisher, there may also be a role for
the campus bookstore to play with regard to the task of providing
course-assigned textbooks in alternative format. A survey of
California Community Colleges in April 1997 found that the campus
bookstore markup on new textbooks is in the range of 20-25%, and that
in campus bookstores operated by the college/District (only about one
in six campus bookstores is privately operated) the college/District
uses revenue generated from textbook sales for a wide variety of
purposes (Survey Question Six). OCR notes that at this time apparently
no college uses income from textbook revenue to cover costs arising
when a student with a print impairment requires translation of a
textbook into an alternative format.
Interestingly, the same survey also found that a few community
colleges restrict faculty selection of textbooks to those by
publishers who have certain business practices, such as book return
policies (Survey Question Seven). By contrast, OCR is not aware of any
community college campus bookstore that tracks the policy of textbook
publishers regarding their willingness to provide the electronic
version of their textbooks to assist a college in translating the
textbook into an alternative format. If so tracked, faculty would have
the option to at least consider this factor when selecting
course-assigned textbooks, and textbook publishers (as a result of
campus bookstore inquiries) would be put on notice that such
assistance is valued by the consumer market.
OCR is pleased that the College actively sought to persuade the
publisher of the TOEFL textbook to provide the Braille or electronic
version of its product. These efforts demonstrate that the College was
willing to explore solutions beyond the resources of the College's
DSPS office. With regard to the task of providing textbooks in an
alternative format, the issue is usually not whether the DSPS staff
has been dedicated and hardworking. Rather, the question is whether
the college, as an institution, has explored all resources available.
Cost- effective solutions may be found when departments on campus work
together cooperatively, and in some cases, when individual colleges
collectively approach the task. OCR notes that a centralized Braille
Transcription Center, located at California State University,
Fullerton, currently serves all California State University (CSU)
campuses.
Resolution
On December 29, 1997, the College provided OCR with a plan in which
the College, conditioned on the complainant's enrollment in the Spring
1998 semester, commits to (1) provide a Braille translation of the
TOEFL textbook, and (2) translate the complainant's textbooks for the
Spring 1998 semester into an appropriate medium that will be "as
effective as" that provided to sighted students. Finally, in order to
further explore possible intercollegiate solutions, the College has
promised to discuss this issue at the next DSPS Coordinators meeting
in its region, and to bring its need for a timely cost-effective
method of obtaining electronic/Braille translations of printed
textbooks to the attention of the Chancellor's Office of the
California Community Colleges.
OCR appreciates the College's prompt response to issues raised by OCR
in this complaint and OCR acknowledges the strong commitment of
College staff to providing students with disabilities full access to
the educational program. The College is to notify OCR in writing by
July 1, 1998, that it implemented the above plan during Spring 1998.
For questions regarding this letter, please contact Ms. Sarah
Hawthorne, staff attorney, at (415) 437-7719.
Sincerely,
Adriana Cardenas
Team Leader
cc: Ms. Sandra Handler, Dean
Ms. Kathleen Kerr-Schochet, DSPS Coordinator
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