The backlash against information access for people with
disabilities has arrived. Actually, it has been with us for a
while, but now we have documents to demonstrate the resistance by
industry and government. Last month we saw how the biggest
companies in the technology and telecommunications industries,
with revenues in the billions of dollars, were unwilling to take
few if any steps that would allow for greater access of their
products and services.
Now one of America's biggest public libraries, the Chicago Public
Library, is aggressively asserting its position that equal access
to software and information is a carte blanche imposition of end
user preferences on public entities. This comes in a response
prior to a disability evidentiary conference by the Chicago
Commission on Human Relations. The library is before the
commission because of computer and technology inaccessibility.
The library has refused to fully resolve the discrimination
complaint and it has been set for a hearing in early November.
The Chicago Public Library has more than 82 branches and a 10-
story library center in downtown Chicago that spans a whole city
block. Significant staff resources have been used to fight
information access at the library. The two city attorneys that
the library has used, Barbara Anderson and David Seere, earn
yearly $61,128 and $68,532 respectively. The person in charge of
compliance with the Americans with Disabilities Act, Jim Pletz,
collects $74,928 a year from city taxpayers. The library's
Director of Automation, Joyce Lathan, who is responsible for
implementing access to computers and electronic information,
takes in $76,716 yearly. For each half-day meeting with all the
parties, the cost comes to $586.08 in salary alone, not including
the costs of health insurance benefits or office expenses. It
seems that one of the biggest libraries in the nation rather
would spend money and resources on lawyers and staff strategy
meetings to fight access to technology for people with
disabilities than simply providing such access.
The involvement of the National Federation of the Blind in this
issue should be noted. The former Director of the National
Braille and Technology Center, David Andrews, was named by the
library as its "consultant" in a letter from 1993. Another
library document identified the state president of the National
Federation of the Blind of Illinois, Steve Benson, as the sole
means of obtaining feedback from individuals with disabilities
regarding accessibility. Steve Benson is a 41,448 dollar a year
staff assistant in the Communications Department of the Chicago
Public Library.
Below is my response followed by the reply from the Chicago
Public Library. A row of asterisks separates the two documents.
the words "end of File" appear at the end to determine if you
have received it fully.
kelly
3257 N. Clifton Ave.
Chicago, IL 60657-3318
(773) 472-7206
Internet: [log in to unmask]
Saturday, 26 July 1997
Ms. Kathleen Yannias
DEC Conciliator
174 North Elmwood Avenue
Oak Park, Illinois 60302
Case No. 94-PA-08
Dear Ms. Yannias:
Contrary to the Chicago Public Library's claims that it is in
compliance with existing law, staff of the Chicago Public Library
have refused to provide me and other people with disabilities
auxiliary aids and services that would allow use of the library
on par with non disabled persons. Specific instances of this
behavior in August of 1993 and January of 1994 were cited in the
complaint. CPL's unwillingness to provide even the most basic of
reference assistance required the intervention of State
Representative Ellis Levin in that crisis.
In its responses, CPL indicates that library staff have been
trained and ongoing training is conducted for new employees on
issues of disability accommodation. Unfortunately, CPL refuses
to recognize in its response the right for people with
disabilities to have independent access to information
technology. Further, I will assert that CPL has failed to
consider the needs of people with disabilities in purchasing new
information technology since the filing of the complaint.
Recent decisions by the Office of Civil Rights in the U.S.
Department of Education illustrate the solidification of law and
broad public policy on this issue. OCR is the designated agency
by the U.S. Department of Justice to take action on complaints
filed against local school districts, academic institutions, and
public libraries. The Chicago Public Library and the City of
Chicago are subject to the regulations under Title II of the
Americans with Disabilities Act of 1990 and its implementing
regulation at 28 C.F.R. Part 35. CPL is a unit of the City of
Chicago, which is a public entity as described in the regulation.
Title II at 28 C.F.R. SS 35.130 (b)(1)(iii), states, that
recipients and entities in providing any aid, benefit or service,
may not afford a qualified individual with a disability an
opportunity to participate that is not as effective as that
provided to others. Title II recognizes the special importance
of communication, which includes access to information, in its
implementing regulation at 28 C.F.R. SS 35.160 (a). The
regulation requires a public entity, such as a public library, to
"take appropriate steps to ensure that communications with
applicants, participants, and members of the public with
disabilities are as effective as communications with others."
Thus, the issue is not whether I or any other person with a
disability is merely provided access or an accommodation of some
kind or another, but the issue is rather the extent to which the
communication is actually as effective as that provided to
others. Title II also strongly affirms the important role that
computer technology is expected to play as an auxiliary aid by
which communication is made effective for persons with
disabilities.
OCR has stated in a letter of finding dated January 15, 1992
(Docket Number 09-91-2157) that a state university has a
responsibility under a similar civil rights law, Section 504 of
the Rehabilitation Act, as set out in 34 C.F.R. 104.44(d) to
"make its computer services accessible to the visually impaired
student upon request." This accommodation should include that
access to the software for students to use be available during
the same hours and in the same conditions in an integrated
setting that is available to non-disabled students.
The Rehabilitation Act has a similar provision for auxiliary aids
as the ADA and the underlying issue of access to computer
resources and information technology is the same for libraries
that offer computer access to the public and universities that
do.
OCR emphasized this point again in a letter of finding dated
January 25, 1996 (Docket Number 09-95-2206) noting that "the
'information superhighway' is fast becoming a fundamental tool in
post-secondary research. Rather than implementing adaptive
software, some institutions have attempted to utilize personal
reader attendants as the exclusive or primary way of making this
form of computer information accessible to persons with visual
impairments. In most cases, this approach should be
reconsidered. One of the most important aims in choosing the
appropriate auxiliary aid has been to foster independence and
autonomy in the person with a disability. When reasonably priced
technology is available that will enable the visually impaired
computer user to access the computer, including the World Wide
Web, during approximately the same number of hours with the same
spontaneous flexibility that is enjoyed by other nondisabled
computer users, there are many reasons why the objectives of
Title II will most effectively and less expensively be achieved
by obtaining the appropriate software programs. (An
institution's reliance on adaptive software to provide access
includes a responsibility to provide the special training
necessary to teach the computer user with the disability how to
use such software programs."
CPL failed in its response to answer why it does not provide
independent access to information technology through adaptive
equipment for blind persons. The most common accommodation CPL
lists in its response is that access to information displayed on
computer screens is available through library staff assistance.
The OCR letter of finding strongly questions this approach. The
nature of using a computer is personal and interactive, CPL fails
to explain in its response why it cannot provide such access or
what barriers must be overcome for independent access to be
achieved. Blind persons can manage and gather information as
effectively as nondisabled persons, if given the accommodations
necessary to participate on terms of equality. Thus, the issue
of effective communication is similar to that of mobility-
impaired persons being lifted out of wheelchairs and carried on
the shoulders of bus drivers or train conductors to be placed on
a seat in a vehicle. While this could be considered an
accommodation for wheelchair users traveling on the nation's
interstate bus service and railroads, it is as effective as
sighted persons reading computer screens to a blind computer
user.
Further, the accommodations the library identifies in its letter
were not present or inadequate when I conducted a site visit on
July 11, 1997. I visited the area where the terminal with the
accessible card catalog is located. It took staff 30 to 45
minutes to provide access to the catalog with speech synthesis.
The staff that worked to provide the access to the catalog that
day included Computer Support Specialist Donald Mitke, whom CPL
identified in its response as "knowledgeable about visual aids"
and listed as his sole qualification for expertise that he is
"totally blind." Mr. Mitke said that the results of the catalog
search could not be either printed out or saved to a floppy disk,
as CPL claims in its response. Additionally, there was no
written information, either in braille or on cassette, on how to
use some of the basic features of the screen reader. The
manufacturer of the screen reader, GW Micro of Fort Wayne, Ind.,
produces a braille reference card with basic software commands.
Apparently, CPL has decided not to provide this to its blind
patrons, with Mr. Mitke offering to furnish me with a four-hour
tutorial on the product for a 15 minute catalog search.
Further, access to this so-called accessible terminal for the
blind is limited only when the computer center is open, while
this service is available to non print-impaired users the entire
time the library is open.
I learned also during my site visit that WordPerfect, Lotus 1-2-
3, and other software was not installed or available from any
computer accessible to the blind. Further CPL did not express in
its response that the computer center has switched operating
systems since the complaint was filed as well as upgraded its
software. It now runs Microsoft Office 95 on a Microsoft Windows
NT platform. While gains in access to Windows-based software
need to continue for blind persons, the software can be used now
by blind persons to produce letters, resumes, and other vital
work products. While DOS software such as WordPerfect 5.1 is
largely accessible to the blind, it cannot be the basis for a
practice of electronic segregation to people with disabilities.
I find the practice of separate software but equal results
discriminatory when access to the next generation of software is
available in the commercial marketplace.
I reject claims that the software upgrades or additional
electronic resources are not and cannot be covered by my
complaint. First, the breadth and scope of the complaint
included nearly every electronic resource that CPL had at the
time. The scope of the complaint showed an intent to have access
to not simply a single resource, but to the entirety of
electronic resources. Second if civil rights laws are to be
available as remedies, the processes must account for the
innovation and rapid change ongoing with information technology
currently. Some software is upgraded several times a year.
Organizations add complementary or similar services. It is
unreasonable to invalidate an accessibility compliant when the
specific software and version number have changed. the
Commission should ask if the function of the electronic-based
service is the same as before? Are the foundational issues
raised in the compliant the same or similar? Looking at changes
in technology in this way may clearly better guide the commission
in approaching the subject of access to technology.
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)]. Thus,
CPL had an affirmative obligation to consider the accessibility
of such software and provide for its access when it upgraded.
Further, CPL chose the most unaccessible form of Microsoft
Windows to use in the computer center. Access to Windows NT is
tenuous at best and unusable at worst. Windows 95 is accessible
in many ways, which could have been used as the operating system
and provided access to people with disabilities at the same time.
In a letter of finding dated April 7, 1997 (Docket No.
09-97-2002), OCR reflected on this issue yet again, "the
magnitude of the task public entities now face in developing
systems for becoming accessible to individuals with disabilities,
especially with respect to making printed materials accessible to
persons with visual impairments, is comparable to the task
previously undertaken in developing a process by which buildings
were to be brought up to specific architectural standards for
access. Buildings in existence at the time the new architectural
standards were promulgated are governed by "program access"
standards. However, buildings erected after the enactment of the
new architectural standards are strictly held to the new
standards on the premiss that the builder is on-notice that such
standards apply. One who builds in disregard of those standards
is ordinarily liable for the subsequent high cost of
retrofitting. "Similarly, from the date of the enactment of Title
II onwards, when making purchases and when designing its
resources, a public entity is expected to take into account its
legal obligation to provide communication to persons with
disabilities that is "as effective as" communication provided to
nondisabled persons. At a minimum, a public entity has a duty to
solve barriers to information access that the public entity's
purchasing choices create, particularly with regard to materials
that with minimal thought and cost may be acquired in a manner
facilitating provision in alternative formats. When a public
institution selects software programs and/or hardware equipment
that are not adaptable for access by persons with disabilities,
the subsequent substantial expense of providing access is not
generally regarded as an undue burden when such cost could have
been significantly reduced by considering the issue of
accessibility at the time of the initial selection."
Thus, the library's digital apartheid cannot be justified or
accepted as an accommodation by the commission. This considers
the library's response that DOS software applications are
accessible to people with disabilities, while Windows software is
not. In actuality, no Windows or DOS software was accessible
during the site visit, contrary to CPL's claims. Further,
earlier this year the library made the internet available on
hundreds of terminals throughout the city. Not one of these
terminals is accessible to the blind with speech synthesis. I
enclose an OCR letter of finding that mandates this access for
public entities providing this resource to the public.
The letter of finding of April 7, 1997 offered additional
technical assistance. It went on to say that "when looking at
exactly which of its resources a library is obligated to provide
in an accessible medium, the short answer is any resources the
library makes available to nondisabled patrons must be made
accessible to blind patrons. This includes the library
catalogue, the archived microfiche, daily newspapers, and the
Internet (if that is a service provided to sighted patrons). A
categorical decision by a public library not to even consider a
request by a patron for a particular alternative format is in
most instances a violation of Title II. However, when
determining what alternative format is most appropriate, a
library may take into account how frequently the material is used
by patrons and the longevity of the material's usefulness. For
instance, more serious consideration should be given to
translating into Braille frequently used reference materials
which have a long "shelf-life" than would be true for daily
newspapers.
"Modern adaptive technology has radically affected the degree to
which it is economically feasible to make printed materials and
computer based information systems accessible to blind patrons.
The larger and more financially endowed the library, the higher
the expectation that a greater volume of information will be made
available within a shorter amount of time, particularly when
reasonably priced adaptive technology is available to replace
tasks that previously required personnel. An important indicator
regarding the extent to which a public library is obligated to
utilize adaptive technology is the degree to which it is relying
on technology to serve its nondisabled patrons. The more
technology that has been purchased by a public library to serve
nondisabled patrons, the more reasonable the expectation that it
will employ technology such as scanners to serve its patrons with
disabilities. In other words, a library's decision to purchase
technology of any kind not only creates an expectation that the
newly purchased technology will be accessible, but it suggests
that the library now has the resources and expertise to fully
consider the role of technology with regard to other aspects of
its program. A library that has computerized its catalogue and
has several computer workstations offering the Internet may be
expected to seriously consider such items as an optical character
recognition scanner and/or screen reader with voice output for
inclusion in its technological acquisitions."
Regarding its specialized services at the Illinois Regional
Library for the Blind, CPL has provided me with a serviceable
telephone number to access the catalog of talking and braille
books at IRLBPH. What CPL does not disclose in its response is
that online directions on use of the catalog are scant and CPL
has not provided written directions on how to use the catalog.
These lack of directions have not made it possible for me to
order a book from the catalog, as the directions given onscreen
are not intuitive to the user. Thus, my book orders have not
been received by CPL as the communication is not effective to use
this auxiliary aid. The OCR letters of finding above demonstrate
that training and information on how to use adaptive technology
is required by civil rights laws for people with disabilities and
such information is just as important as the assistive device
itself.
The staff assistance received at IRLBPH has improved
considerably, with the library now providing catalog and
bibliographic reference searches unlike in the past. The library
now provides its newsletter in Braille and CPL's weekly calendar
is available on a voice-mail system.
In sum, the complaint is largely unresolved. Electronic
resources are not independently available to blind patrons, with
CPL providing no explanation as to reasons why. further, the DOS
software listed in the complaint or the Windows-based software
that replaced it are not available at all to the blind in any
way, despite CPL's assertions to the contrary. Finally, the
online talking and braille book catalog while available, is not
usable as CPL has decided not to release any written instructions
on its use.
Respectfully,
Kelly Pierce
***********************************************
September 19, 1997
BY FAX AND BY
FIRST CLASS MAIL
Kathleen Yannias
DEC Conciliator
174 North Elmwood Avenue
Oak Park, Illinois 60302
Re: Pierce v. Chicago Public Library, CCHR No. 94-PA-8
Schuster v. Chicago Public Library, CCHR No. 94-
PA-82
Haug v. Chicago Public Library, CCHR No. 94-PA-84
Dear Ms. Yannias:
We are writing on behalf of the Respondent to provide a sur-
reply to the written response provided by Complainant Kelly
Pierce in the first of the above-referenced cases. As you will
see, this sur-reply is, for the most part, limited to a
discussion of the legal issues and standards raised in Mr.
Pierce's complaint and letters dated January 2, 1997, and July
26, 1997. We believe it is important to address these matters in
advance of and in preparation for the DEC Conference primarily
for two reasons. First, we feel that the letters submitted by
Mr. Pierce in many respects mischaracterize or misstate the
Respondent's legal obligations, as well as the evidentiary
burdens of both the Respondent and the Complainants in these
proceedings. Most notably, Mr. Pierce's arguments are wholly
based on the Americans With Disabilities Act ("ADA"); of course,
the proceedings herein are instead brought pursuant to the City
of Chicago's Human Rights Ordinance. This sur-reply is limited
to Mr. Pierce's arguments, and the ADA requirements may be of
some assistance to the Commission in evaluating his assertions.
Respondent does not concede, however, that ADA requirements are,
or can be, at issue here. Second, we feel that the discussion
that follows will help to clarify the Respondent's actual legal
obligations under the ADA, which, in turn, may provide a better
framework for a discussion of the actions that the Respondent has
taken in the past.
For several reasons, we have attempted in this sur-reply to
avoid discussion of most of the numerous factual allegations that
Mr. Pierce has raised. First, we have already addressed the
factual allegations raised in his actual complaint on file with
the Commission, most recently in our written response dated June
27, 1997. As you know, Respondent has objected to Mr. Pierce's
July 26, 1997, letter and the documents referenced therein on the
grounds that they contain many factual allegations and legal
assertions that go well beyond the scope of his actual complaint,
and Respondent renews that objection here. In a telephone
conversation with the parties on August 4, 1997, you expressed
agreement that the DEC Conference should not concern matters that
were not raised in the complaints. We also have not addressed
most of the new factual allegations Mr. Pierce has raised in this
sur-reply because we believe that the DEC Conference will serve
as a better forum than this document to address all of Mr.
Pierce's new factual allegations. We hope to be prepared at that
time to discuss any or all of the complainants' factual
allegations that you believe merit discussion.
Title II Of The Americans With Disabilities Act
Respondent agrees with Mr. Pierce that, as a public library,
Respondent is a "public entity," subject to the terms and
provisions of subtitle A of Title II of the Americans With
Disabilities Act of 1990, 42 U.S.C. 12131, et seq. (the
"ADA"), as well as the implementing regulations issued by the
Department of Justice, except to the extent that those
regulations may be arbitrary, capricious, or plainly contrary to
the ADA. See 28 C.F.R. Part 35; Heather K. v. City of Mallard,
Iowa, 946 F. Supp. 1373, 1385 n. 15 (N.D. Iowa 1996); Medical
Society v. Jacobs, 3 Am. Disabilities Cas. (BNA) 1278, 2 A.D.
Cas. 1318, 1322 (D. N.J. 1993). The standards of Title V of the
Rehabilitation Act of 1973, 29 U.S.C. 794, apply for purposes
of the ADA to the extent that the ADA has not explicitly adopted
a different standard than Title V. 28 C.F.R. Part 35, Appendix
A, Section 35.103; Cercpac v. Health and Hospitals Corporation,
920 F. Supp. 488, 497 (S.D. N.Y. 1996). Except for ADA 204,
providing for the promulgation of regulations under ADA Title II,
subtitle A, which became effective on July 26, 1990, Title II,
subtitle A, relating to nondiscrimination on the basis of
disability in state and local government services, became
effective on January 26, 1992. Public entities are not liable
under Title II for conduct prior to that date.
To prevail in a claim against a public entity under Title
II, the plaintiff bears the burden of showing that (1) he is a
qualified individual with a disability; (2) he was either
excluded from participation in or denied the benefits of some
public entity's services, programs, or activities, or was
otherwise discriminated against by the public entity; and (3)
such exclusion, denial of benefits, or discrimination was by
reason of the plaintiff's disability. Miller v. City of Johnson
City, Tennessee, 1996 U.S. Dist. LEXIS 7360 *5-6, 19 (E.D. Tenn.
May 29, 1996)(Hull, J.)(citing Concerned Parents to Save Dreher
Park Center v. City of West Palm Beach, 846 F. Supp. 986, 990
(S.D. Fla. 1994)); Tyler v. City of Manhattan, 857 F. Supp. 800,
817 (D. Kansas 1994). It is not enough for a Title II plaintiff
to allege a violation; he must offer specific proof that the
public entity has failed to comply with the ADA. See Miller,
1996 U.S. Dist. LEXIS 7360 at *7-8 (dismissing that portion of
plaintiff's Title II complaint against municipality alleging that
the services, programs, and activities of the municipality's
public library were inaccessible to him, because plaintiff failed
to offer specific proof in regard to the public library's non-
compliance with the ADA).
28 C.F.R. 35.130 sets forth the general prohibitions against
discrimination applicable under the ADA. A public entity may not
exclude a person from participation in, or deny the benefits of,
its services, programs, or activities because of his or her
disability. 28 C.F.R. 35.130(a). Similarly, a public entity
may not, in providing aids, benefits, or services, deny
participation to disabled persons or deny participation on a
basis equal to that given to nondisabled persons. 28 C.F.R.
35.130(b)(1)(i)-(iii). However, disabled individuals are not
entitled to more public services than nondisabled individuals
receive, even if the disabled individuals need them. Cercpac,
920 F. Supp. at 497 (citing Alexander v. Choate, 469 U.S. 287,
301-02 (1985)). A public entity may not provide different or
separate aids, benefits, or services to the disabled "unless such
action is necessary to provide qualified individuals with
disabilities with aids, benefits, or services that are as
effective as those provided to others." 28 C.F.R.
35.130(b)(iv). Services, programs, and activities provided by a
public entity must be administered "in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities." 28 C.F.R. 35.130(d). Policies, practices, and
procedures must be reasonably modified when necessary to avoid
discrimination on the basis of disability, "unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity." 28 C.F.R. 35.130(b)(7). Further, although
equipment for disabled persons must be maintained in "operable
working condition," "isolated or temporary interruptions in
service or access due to maintenance or repairs" is not
prohibited. 28 C.F.R. 35.133.
Public entities are also required generally to make their
facilities accessible to and usable by individuals with
disabilities. 28 C.F.R. 35.149. Specifically, a public
entity must "operate each service, program, or activity so that
the service, program, or activity, when viewed in its entirety,
is readily accessible to and usable by individuals with
disabilities." 28 C.F.R. 35.150(a)(emphasis added); Miller,
1996 U.S. Dist. LEXIS 7360 at *3-4. However, a public entity is
not necessarily required "to make each of its existing facilities
accessible to and usable by individuals with disabilities." 28
C.F.R. 35.150(a)(1); Tyler, 857 F. Supp. at 813. Moreover, a
public entity is not required to take any action that "would
result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative
burdens." 28 C.F.R. 35.150(a)(3); see also House Report No.
101-485(III), p. 51, reprinted in 1990 U.S.C.C.A.N. 474 ("[T]he
undue hardship determination [under Title II] is flexible,
depending on the facts of an individual case."). If it is
determined that such an action would result in such an alteration
or such burdens, a public entity must take alternative action
that would "ensure that individuals with disabilities receive the
benefits or services provided by the public entity." 28 C.F.R.
35.150(a)(3).
Public entities also have certain obligations regarding
communications with and for disabled individuals, as set forth in
28 C.F.R. 35.160:
35.160 General.
(a) A public entity shall take appropriate steps to
ensure that communications with applicants, participants,
and members of the public with disabilities are as effective
as communications with others.
(b)(1) A public entity shall furnish appropriate
auxiliary aids and services where necessary to afford an
individual with a disability an equal opportunity to
participate in, and enjoy the benefits of, a service,
program, or activity conducted by a public entity.
(2) 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.
With respect to persons with visual impairments, "auxiliary
aids and services" include "[q]ualified readers, taped texts,
audio recordings, Brailled materials, large print materials, or
other effective methods of making visually delivered materials
available to individuals with visual impairments; "[a]cquisition
or modification of equipment or devices"; and "[o]ther similar
services and actions." 28 C.F.R. 35.104. A public entity
must ensure that interested persons "can obtain information as to
the existence and location of accessible services, activities,
and facilities." 28 C.F.R. 35.163.
However, like its obligations regarding services, programs,
and activities, a public entity's obligations regarding
communications with and for disabled persons is limited.
Specifically, a public entity is not required to take any action
concerning communications that "would result in a fundamental
alteration in the nature of a service, program, or activity or in
undue financial and administrative burdens." 28 C.F.R.
35.164. If it is determined that such an action would result in
such an alteration or such burdens, a public entity must take
alternative action that would "ensure that, to the maximum extent
possible, individuals with disabilities receive the benefits or
services provided by the public entity." Id. Furthermore, a
public entity is not required to use the newest or most advanced
technology if it is providing effective communication to and for
individuals with visual impairments. See 28 C.F.R. Part 35,
Appendix A ("The Department [of Justice] ... emphasizes that,
although the definition [of `auxiliary aids and services'] would
include `state of the art' devices, public entities are not
required to use the newest or most advanced technologies as long
as the auxiliary aid or service that is selected affords
effective communication. * * * The public entity shall honor the
choice [of the disabled individual] unless it can demonstrate
that another effective means of communication exists or that use
of the means chosen would not be required under 35.164.").
ADA Title II Technical Assistance Manual
The ADA required the Department of Justice ("DOJ") to ensure
the availability and provision of appropriate technical
assistance manuals to individuals or entities with rights or
duties under the ADA. 42 U.S.C. 12206(c)(3). Accordingly,
the DOJ published the "ADA Title II Technical Assistance Manual"
(hereinafter, "ADA Title II Manual"). The purposes of the ADA
Title II Manual are "to assist individuals and entities in
understanding their rights and duties under the Act," "to promote
voluntary compliance with the requirements [of Title II]," and
"to present the ADA's requirements for State and local
governments in a format that will be useful to the widest
possible audience." See ADA Title II Manual, Introduction.
Section II-7.000 of the ADA Title II Manual concerns
communications with and for individuals with disabilities.
Specifically, "[a] public entity must ensure that its
communications with individuals with disabilities are as
effective as communications with others." Id., Section
II-7.1000. "This obligation, however, does not require a public
entity to take any action that it can demonstrate would result in
a fundamental alteration in the nature of its services, programs,
or activities, or in undue financial and administrative burdens."
Id.
In order to ensure equal access, appropriate auxiliary aids
and services must be made available "where necessary to ensure
effective communication." Id. "Auxiliary aids and services
include a wide range of services and devices that promote
effective communication." Id. However, "[t]he type of auxiliary
aid or service necessary to ensure effective communication will
vary in accordance with the length and complexity of the
communication involved." Id. For individuals with vision
impairments, examples of auxiliary aids and services include
"qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, assistance in locating items,"
"other effective methods of making visually delivered materials
available to individuals with visual impairments," and "employees
can provide oral directions or read written instructions." Id.;
28 C.F.R. 35.104. Therefore, contrary to Mr. Pierce's
position, the ADA Title II Manual, like the DOJ's implementing
regulations, contemplates that a public entity may rely upon the
assistance of other persons, such as library employees, in
providing auxiliary aids and services to individuals with vision
impairments.
According to the ADA Title II Manual, written communications
provided by public entities are subject to the requirement for
effective communications. Id. Therefore, "where a public entity
provides information in written form, it must, when requested,
make that information available to individuals with vision
impairments in a form that is usable by them." Id. For
individuals with limited vision, "`[l]arge print' versions of
written documents may be produced on a copier with enlargement
capacities." Id. For others, "[b]railled versions of documents
produced by computers may be produced with a Braille printer, or
audio tapes may be produced for individuals who are unable to
read large print or do not use Braille." Id.
The ADA Title II Manual also addresses, as follows, the ways
in which auxiliary aids and services for individuals with
impaired or no vision are selected:
When an auxiliary aid or service is required, the public
entity must provide an opportunity for individuals with
disabilities to request the auxiliary aids and services of
their choice and must give primary consideration to the
choice expressed by the individual. "Primary consideration"
means that the public entity must honor the choice, unless
it can demonstrate that another equally effective means of
communication is available, or that use of the means chosen would
result in a fundamental alteration in the service, program,
or in undue financial and administrative burdens.
It is important to consult with the individual to determine
the most appropriate auxiliary aid or service, because the
individual with a disability is most familiar with his or
her disability and is in the best position to determine what
type of aid or service will be effective.
* * *
For individuals with vision impairments, appropriate
auxiliary aids include readers, audio recordings, Brailled
materials, and large print materials. Brailled materials,
however, are ineffective for many individuals with vision
impairments who do not read Braille, just as large print
materials would be ineffective for individuals with severely
impaired vision who rely on Braille or on audio communications.
Thus, the requirement for consultation and primary
consideration to the individual's expressed choice applies
to information provided in visual formats as well as to
aurally communicated information.
Advisory Letters From The Office Of The United States
Department of Education Office For Civil Rights
In his January 2, 1997, and July 26, 1997, letters, Mr.
Pierce largely ignores the foregoing standards set forth under
Title II, the implementing regulations, and the ADA Title II
Manual. Instead, to support his assertions regarding the nature
and scope of Respondent's alleged obligations, he relies
primarily on advisory letters sent by one particular regional
office of the United States Department of Education Office for
Civil Rights (the "OCR") to several California colleges and
universities. Mr. Pierce fails to explain, however, why several
advisory letters from one office of the OCR to a college or
university are or should be applicable to his complaint, or for
that matter, should take precedence over the actual requirements
and guidelines set forth under Title II, the implementing
regulations, and the ADA Title II Manual. In fact, there is
authority that they should not. See, e.g., Heather K. v. City of
Mallard, Iowa, 946 F. Supp. 1373, 1385 n. 15 (N.D. Iowa
1996)("The court is not unmindful that Title II directed the DOJ
to promulgate regulations for its implementation, and that such
regulations are entitled to substantial deference, and therefore
must be given controlling weight unless `arbitrary, capricious or
manifestly contrary to the statute.' [citations omitted]
However, no party has asserted that the advisory letter from the
DOJ is such a regulation for implementation of the ADA, or that
the advisory letter is entitled to similar deference.
Furthermore, even if controlling weight should be given to the
interpretation of the meaning of the regulations found in the DOJ
advisory letter, the court concludes that the interpretation
advanced in Defendant's Exhibit E is `manifestly contrary to the
statute,' ... .").
Furthermore, like the DOJ advisory letter in the Heather K.
decision, much of the DOJ letters on which Mr. Pierce relies is
arguably "manifestly contrary" to Title II, its implementing
regulations, and the ADA Title II Manual and thus, must be
disregarded. For example, the OCR letter dated January 25, 1996
(p. 2), discourages the use of "personal reader attendants," even
though "qualified readers" are expressly included as appropriate
"auxiliary aids and services" for individuals with visual
impairments in both the implementing regulations and the ADA
Title II Manual. See 28 C.F.R. 35.104; ADA Title II Manual,
II-7.1000. Moreover, the OCR letters on which Mr. Pierce
relies all pertained to the context of post-secondary research.
See, e.g., OCR letter dated January 25, 1996, p. 2 ("OCR notes
that the `information superhighway' is fast becoming a
fundamental tool in post-secondary research. * * * Although
there may limited circumstances when a personal reader is needed
to bridge the gap in accessibility provided by adaptive software
programs, this gap is continually being narrowed and post-
secondary institutions are expected to stay apprised of recent
advances."). There is no indication in any of the letters that
the OCR -- or for that matter, any court -- would necessarily
apply the same standards to a municipal library that it applies
to a state university or college.
Mr. Pierce seemingly relies most heavily on the OCR advisory
letter dated April 7, 1997. He failed, however, in his letters
to acknowledge or discuss several key sections of that letter.
For example, he disregarded the OCR's statement (p. 2) that "[i]n
construing the conditions under which communication is `as
effective as' that provided to non disabled 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." Mr. Pierce failed to explain in
his submissions how the options now available to him and others
with visual impairments at the Harold Washington Library fail to
satisfy these conditions, or how the alternatives that he prefers
would better satisfy these conditions.
Further, Mr. Pierce ignores the fact that the April 7, 1997,
OCR letter does not give an individual with a visual impairment
carte blanche to impose his computer preferences on public
entities that he chooses to utilize. In fact, the April 7th
letter expressly acknowledges that the disabled person himself
may have to adapt to the computer technology already in place:
With respect to the question of when a public entity can
require the computer user with the disability to learn
unfamiliar adaptive technology software programs, when the
user is already proficient in a different program, it would
seem reasonable to conclude that if the public entity is
employing a widely used program that is generally regarded by
knowledgeable experts as reliable for access by persons with that
type of disability (e.g., blindness), the person with the
disability may well be required to learn the program
selected by the institution. On the other hand, if the
public institution has installed a program that is generally
regarded by knowledgeable experts as providing cumbersome
inferior access to persons with visual impairments, the
person with the disability may rely upon the Title II
provision requiring that `primary consideration' be given to
his/her request for the institution to purchase the software
with which s/he is proficient.
None of Mr. Pierce's written statements demonstrate that the
auxiliary aids and services already in place at the Harold
Washington Library are "generally regarded by knowledgeable
experts as providing cumbersome inferior access to persons with
visual impairments" or that the alternatives he prefers are
"generally regarded by knowledgeable experts" as superior.
We hope that the foregoing analysis will be useful in
providing a framework for discussion at the upcoming DEC
Conference. Please contact us if have any questions regarding
the foregoing or if you would like any further response or
supplementation from the Respondent.
Respectfully submitted,
Brian L. Crowe
Corporation Counsel for the
City of Chicago
By: _________________________
David J. Seery
Barbara L. Anderson
Assistants Corporation Counsel
(312) 744-5118/7472
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