Dear Colleague Letter
OFFICE OF THE ASSISTANT SECRETARY
May 26, 2011
Dear Colleague:
I write to share with you the attached “Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter” (FAQ), developed by the U.S. Department of Education’s Office for Civil Rights (OCR). This FAQ is a follow-up to the Dear Colleague Letter (DCL) that we sent to college and university presidents on June 29, 2010, regarding the use of electronic book readers and other emerging technologies in educational settings.
As you may recall, the June 2010 DCL outlines concerns of the U.S. Department of Education and the U.S. Department of Justice that arose in the context of reviewing several complaints regarding compliance with long-standing requirements of civil rights law. In those cases, postsecondary educational institutions were using electronic book readers that were inaccessible to students who are blind or have low vision. The DCL explains that under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, educational institutions cannot require the use of electronic book readers in a classroom setting if the readers are not fully accessible to individuals with disabilities, including individuals who are blind or have low vision, unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.
The June 2010 DCL generated interest from educational institutions, students, parents, advocacy organizations, and others. OCR is releasing this FAQ in order to provide more information about the obligations of schools (both elementary and secondary schools and postsecondary institutions) that provide benefits to students by means of electronic book readers or other emerging technologies. Please share this FAQ with your administrators, faculty, and staff.
For more information, the June 2010 DCL is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html, and the FAQ is available at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html.
Sincerely,
/s/
Russlynn Ali
Assistant Secretary for Civil Right
May 26, 2011
Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter1
General Issues
1. Does the June 29, 2010, Dear Colleague Letter (DCL) on access to electronic book readers impose new legal obligations?
A: No. The DCL discusses long-standing law. Specifically, it addresses key principles of Federal disability discrimination law: the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment. Under Section 504 of the Rehabilitation Act of 1973 (Section 504), these legal standards apply to entities that receive Federal financial assistance, including elementary, secondary, and postsecondary institutions. (In this FAQ, the term “schools” refers to all these types of institutions.) Under Title II of the Americans with Disabilities Act (ADA) of 1990 (Title II), these obligations apply to entities of state and local government, including public schools.2
The DCL outlines concerns on the part of the Department of Justice (DOJ) and the Department of Education (Department), raised in the context of their resolution of several cases, regarding compliance with these long-standing requirements.
1 The Department of Education has determined that this document is a “significant guidance document” under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/012507
_good_guidance.pdf. OCR issues this and other policy guidance to provide recipients with information to assist them in meeting their obligations and to provide members of the public with information about their rights under the civil rights laws and implementing regulations that we enforce. OCR’s legal authority is based on those laws and regulations. This document does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations. If you are interested in commenting on this guidance, please send an e-mail with your comments to OCR@ed.gov, or write to us at the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW, Washington, DC 20202.
2 The Department of Justice is responsible for enforcing Title III of the ADA, which prohibits discrimination on the basis of disability by private schools, among other entities.
Specifically, some postsecondary institutions were using electronic book readers that are inaccessible to students who are blind or have low vision. As explained by the DCL, application of our long-standing nondiscrimination requirements means that schools must provide an electronic book reader (i.e., the technology that the school uses to provide educational benefits, services, or opportunities) that is fully accessible to students who are blind or have low vision; otherwise schools must provide accommodations or modifications to ensure that the benefits of their educational program are provided to these students in an equally effective and equally integrated manner.
For the purposes of assessing whether accommodations or modifications in the context of emerging technology, and, more specifically, electronic book readers, meet the compliance requirements, the DCL provides a functional definition of accessibility for students who are blind or have low vision. Under this definition, these students must be afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students. In addition, although this might not result in identical ease of use compared to that of students without disabilities, it still must ensure equal access to the educational benefits and opportunities afforded by the technology and equal treatment in the use of such technology. The DCL uses the term “substantially equivalent ease of use” to describe this concept. For more information and for examples that meet this standard, see Questions 11, 12, and 14.
2. Does the DCL apply in the context of students with other disabilities that affect the ability to use printed materials?
A: Yes. Other disabilities, such as specific learning disabilities, may make it difficult for students to get information from printed sources (often called “print disabilities”). In its provision of benefits, services, and opportunities, a school must ensure that these students are not discriminated against as a result of inaccessible technology.
Example: A student has a learning disability in reading but does not have impaired vision. The student is currently receiving audiobooks on cassette tape for her history class because she cannot readily process printed information. The school is replacing the history textbooks with electronic book readers as the principal means of conveying curriculum content, including all homework assignments. In this example, the electronic book readers provide greater functionality than audiobooks provide, with the result that an audiobook would not afford the benefits of the educational program in an equally effective and equally integrated manner. For this reason the school may not continue to rely on audiobooks to provide equal access to the curriculum....
3. Does the DCL mean that schools cannot use emerging technology?
A: No. On the contrary, the Department encourages schools to employ innovative learning tools. Because technology is evolving, it has the capability to enhance the academic experience for everyone, especially students with disabilities. Innovation and equal access can go hand in hand. The purpose of the DCL is to remind everyone that equal access for students with disabilities is the law and must be considered as new technology is integrated into the educational environment.
4. Does the DCL apply to elementary and secondary schools?
A: Yes. The DCL grew out of complaints filed with the Department’s Office for Civil Rights (OCR) and DOJ that concerned postsecondary education. However, the principles underlying the DCL — equal opportunity, equal treatment, and the obligation to make accommodations or modifications to avoid disability-based discrimination — also apply to elementary and secondary schools under the general nondiscrimination provisions in Section 504 and the ADA. The application of these principles to elementary and secondary schools is also supported by the requirement to provide a free appropriate public education (FAPE) to students with disabilities. For more information, see Question 13.
5. Does the DCL apply to all school operations and all faculty and staff?
A: Yes. All school operations are subject to the nondiscrimination requirements of Section 504 and the ADA. Thus, all faculty and staff must comply with these requirements.
Section 504 and the ADA require that covered entities designate at least one person to coordinate their compliance efforts, and that they adopt and publish grievance procedures to resolve complaints of noncompliance. In addition, postsecondary schools often designate certain staff or offices (sometimes referred to as disability student-services offices) to assist students with disabilities.
The law applies to all faculty and staff, not just a Section 504 or ADA coordinator or staff members designated to assist students with disabilities. All faculty and staff must comply with the nondiscrimination requirements of Section 504 and the ADA in their professional interactions with students, because these interactions are part of the operations of the school. So, for example, if an adjunct faculty member denies a student who is blind an equal opportunity to participate in a course by assigning inaccessible course content, the school can be held legally responsible for the faculty member’s actions. Therefore, schools should provide, and faculty and staff should participate in, professional development about accessibility and emerging technology, and about the role of faculty and staff in helping the school to comply with disability discrimination laws.
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