I am resending it again.  I hope it is free of the =20 ascii characters.  
It can be found on the web at http://www.rit.edu/~easi/law.html 

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
<http://www.tsbvi.edu/textbooks/textbook.htm>.

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