Department Of Education Office of Civil Rights
Complaint against San Jose 1997
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
February 7, 1997
REGION IX
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, California 94102
Dr. Robert Caret
President
San Jose State University
One Washington Square
San Jose, CA 95192-0001
(In reply, please refer to Docket Number 09-96-2056.)
Dear Dr. Caret:
The U.S. Department of Education (Department), San Francisco
Regional Office for Civil Rights (OCR), has completed its
investigation of the complaint filed against San Jose State
University (University) by XXXXXXXXXXXXX (the complainant) alleging
discrimination on the basis of disability (visual impairment).
Specifically, the complainant alleged that: 1) the University
failed to provide him access to library services that were as
effective as that provided to nondisabled students; 2) the
University failed to provide him access to the "Schedule of
Classes" and other printed material; and 3) the University failed
to promptly resolve his grievance filed with the Director of Equal
Employment Opportunity/Affirmative Action regarding the failure to
provide access to the "Schedule of Classes" and other printed
material.
OCR is responsible for enforcing the provisions of Section 504 of
the Rehabilitation Act of 1973 (Section 504) and the Department
implementing regulations, which prohibit recipients of Federal
financial assistance through the Department from discriminating
against persons participating in their programs and activities,
such as students, employees, and applicants for employment, on the
basis of disability. OCR also has jurisdiction as a designated
agency under Title II of the Americans with Disabilities Act of
1990 (Title II) and its implementing regulation over complaints
alleging discrimination on the basis of disability that are filed
against public institutions of higher education. Since the
University receives Federal funds through the Department and is a
public entity, it is subject to these statutes and regulations.
Therefore, OCR has jurisdiction over the University pursuant to
Section 504 and Title II.
OCR reviewed documents submitted by both the complainant and the
University. OCR also interviewed the complainant and the involved
University staff. OCR found insufficient evidence to support a
violation of Section 504 and/or Title II as to the complainant's
allegations regarding access to certain library service and as to
the "Schedule of Classes." OCR found that the University violated
Section 504 and Title II as to the complainant's allegation
regarding the failure to resolve his grievance. This resolution
letter is a summary of the applicable legal standards, the findings
of fact and the compliance determinations made regarding the
allegations filed with OCR by the complainant.
LEGAL STANDARD
The regulations implementing Section 504 are found at 34 Code of
Federal Regulations (C.F.R.) Part 104. The Title II regulations
are found at 28 C.F.R. Part 35.
34 C.F.R. Sections 104.3(j)(1) and (2) explains disabilities as it
defines a disabled person as one who has a physical or mental
impairment, a history of an impairment, or is regarded as having
such an impairment which substantially limits a major life
function. With respect to postsecondary education, a qualified
disabled person is defined at section 104.3(k)(3) as a disabled
person who meets the academic and technical standards requisite for
admission to or participation in the recipient's program or
activity.
The Title II regulations at 28 C.F.R. 35.104 define disability as
explained in the Section 504 regulations. A qualified individual
with a disability is defined as an individual with a disability
who, with or without reasonable modifications to rules, policies,
or practices, the removal of architectural barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or
participation in programs or activities provided by a public
entity.
34 C.F.R. ss 104.4(b)(1)(ii) requires that recipients provide
qualified disabled persons an equal opportunity to participate in
or benefit from services provided by a recipient. Section
104.4(b)(1)(iii) requires that recipients provide qualified
disabled persons aids, benefits, or services that are as effective
as those provided to others. The Title II regulations at section
35.130 (b)(1)(ii) and (iii) set forth a substantially similar
standard by prohibiting an entity from providing the opportunity to
participate and the provision of any aid, benefit or services, on
the basis of disability, that are not equal to that provided to
others or not as effective in affording equal opportunity to obtain
the same result, to gain the same benefit, or to reach the same
level as that provided to others.
28 C.F.R. 35.160 (a) requires that public entities take appropriate
steps to ensure that communications with persons with disabilities
are as effective as communications with others. Section 35.160 (b)
requires the entity to provide auxiliary aids and services where
necessary and, in the determination of what type of auxiliary aid
and service is necessary, to give primary consideration to the
requests of the individual with a disability.
34 C.F.R. ss 104.7 (b) requires recipients to adopt grievance
procedures that incorporate appropriate due process standards and
provide for the prompt and equitable resolution of complaints based
on disability discrimination. The Title II regulations at section
35.107(b) also provide that a public entity adopt and publish
grievance procedures providing for the prompt and equitable
resolution of complaints alleging any action prohibited by Title
II.
SUMMARY OF FACTS AND ANALYSIS
The complainant has a visual impairment that substantially affects
a major life activity within the meaning of the definitions
contained in the regulations implementing Section 504 and Title II.
The complainant, who is a student at the University, was a student
during the relevant time period, the 1995-96 academic year. He met
the essential eligibility requirements for the receipt of services
and participation in the programs and activities of the University.
Therefore, the complainant is a qualified individual with
disabilities under both regulations.
ACCESS TO LIBRARY SERVICES
In investigating this allegation, OCR sought to determine: 1)
whether the complainant was denied effective access to services
when he was denied an audio-tape of a December 20, 1996 meeting
held to discuss his access to certain library services; and 2)
whether the complainant was denied effective access to the Library
newspaper collection which is stored on microfiche.
A. Audiotape:
The evidence showed that on December 14, 1995, the complainant
requested, by voice-mail, an audio tape of an upcoming meeting
which was being held to discuss his request for access to certain
library services. He was informed both by voice-mail and in a
direct telephone conversation with the Assistant Disability
Resource Center Director (ADRCD) that a notetaker would be provided
and that transcribed notes would be transferred to audio-tape for
him to hear. The complainant indicated to OCR that the purpose of
his request for an audio-tape of the meeting rather than a
notetaker was to enable him to achieve equivalent access to the
meeting discussions in the same way that he accesses the substance
of class discussions.
A notetaker was provided at the December 20 meeting for all
participants and those notes were transcribed to audio-tape. On
December 20, the audio-tape was mailed to the complainant.
OCR determined that the complainant was not denied equivalent
access to the December 20 meeting when he was provided an
audio-tape of transcribed notes rather than an audio-tape of the
meeting. The evidence was not sufficient to establish that the
complainant's opportunity to participate in the meeting discussions
was diminished by the manner in which the substance of the meeting
was recorded. The notetaker's record of the meeting provided
documentation of what was discussed and decided at a meeting in
which the complainant was an active participant. There was no
indication that the complainant's ability to participate in the
discussions or his ability to review the determinations made in the
meeting were denied or limited by the manner in which the record of
that meeting was produced.
B. Access to Microfiche:
During the winter intersession, December 1995 - January 1996, the
complainant requested access to old newspapers, particularly
editions of the New York Times, which are stored on microfiche. He
wanted to search through these daily papers for articles of
interest to him. He expressly did not want all the pages copied
for audio translation because that method would be prohibitively
expensive and time-consuming both for the copier and for him as an
individual with a disability. Accordingly, he requested a reader
to assist him in accessing the microfiche collection.
The complainant alleged that the University conditioned his access
to reader services upon a showing of academic or course related
relevance or that it limited his access by his failure to make such
a showing. In support of his position, he provided to OCR
correspondence from the University. A December 11, 1995 letter
from the Disability Resource Center (DRC) to the complainant
requested clarification of use including academic relevance, if
any, of his request for a reader to access library services.
Certain language in a January 4, 1996 letter from the Library
Liaison to Patrons with Disabilities suggested that the number of
hours allotted to him for his request was limited by the fact that
his request was non-academic.
The complainant also provided to OCR a copy of a December 22, 1995
letter from the University Librarian that strongly suggested the
Library was not obligated to provide reader services to him in
order for him to access the microfiche newspaper collection because
he was not enrolled in classes during the winter intersession.
That position as to who is considered an enrolled student was
contradicted by the Director of Registration and Records whose
office is responsible for determinations of student status.
According to the Director, during the period in question, the
complainant was a student.
The evidence showed that, in practice, academic or course relevance
is a factor in allocating costs or resources, but that nonacademic
requests do not necessarily receive different accommodations. For
example, accommodations for course-related library research are
provided and the cost absorbed by the DRC. In contrast, although
the DRC will assist other departments in providing access, in
general, accommodations for non-course related services are
provided and the cost absorbed by the department from which the
service is requested. In addition, under DRC practice, during the
intersession when the pool of readers is small, requests for
readers for course related services would receive a higher priority
in the assignment of readers because such requests have a higher
degree of time-sensitivity.
Documents provided by the University showed that the primary
mission of the Library is to support and enhance the curricula of
the University by providing modern library, electronic, and media
resources to enrich instruction and provide informational materials
consistent with the present and anticipated needs of the
University's diverse user population.
The Library has no specific policy regarding priority for academic
requests for either disabled or non-disabled patrons, but rather
handles each request on a case-by-case basis depending on the
availability of staff. Reference librarians frequently ask the
purpose of a request in order to direct a patron to the best source
material. For example, a patron might be directed to more
scholarly source materials if a reference question related to an
academic course assignment as opposed to a question unrelated to an
academic course assignment. In general, reference librarians
attempt to focus or narrow a broad request from any patron in order
to provide the appropriate service. The Disability Resource Center
Director (DRCD) and the ADRCD indicated that the question about the
purpose of the complainant's request was designed, initially, to
determine which department would bear the cost of and provide the
requested service. Further, the ADRCD and the Library Liaison
indicated that the complainant's original request was very broad
and that subsequent questions were designed to focus or narrow his
request in order to provide assistance consistent with the mission
and practice of the library.
In this case, after focusing the complainant's request, it was
determined that he would be provided two hours of reader services
over a two week intersession period to browse the advertisements
and front pages in microfiche issues of the New York Times for the
month of January 1930. The Library Liaison indicated she had not
previously received a request like the complainant's. She
indicated further that she made her determination of a reasonable
amount of time to achieve his purpose in light of the comparatively
limited length of that newspaper during the 1930's.
The complainant used the full two hours of reader services allotted
to him during the intersession. During OCR interviews, the
complainant indicated that the two hours of reader services had not
been sufficient to accomplish the agreed upon purpose. However, he
did not pursue the matter further either by notifying the library
liaison or making a second request for reader services.
OCR considers the fundamental purpose or mission of the library in
making determinations regarding access to library services. In
this case, unlike many public libraries which provide total
information services to the general public, the primary mission of
the University Library is to support and enhance the curricula of
the University. Therefore, the University may, in appropriate
circumstances, allocate or set priorities in use of resources
consistent with the fundamental purpose of the University Library,
but may not condition access to services, such as the microfiche
collection, upon a showing of academic or course related relevance
if those services are available to nondisabled students without
such a showing. In short, in providing access, library staff may
establish reasonable requirements for the provision of resources to
provide access to services, such as requiring a student to make
prearranged appointments with a reader. When such requirements are
established, they must be reasonable. For example, prearranged
appointments with a reader could not be limited to only one time of
day or only one day a week but necessarily would be available
during approximately the same hours and days that the library is
available to others.
OCR found that the complainant's access to the microfiche
collection was not conditioned upon or limited by a showing of
academic or course relevance and, thus, he was not denied access to
library services as effective as those provided to nondisabled
students. OCR determined that based on the library's academic
mission, it was reasonable for the University to ask the purpose of
the complainant's request in order to determine the allocation and
priority of resources. OCR determined further that it was
reasonable to focus the complainant's request consistent with the
libraries academic mission and practice with regard to all patrons.
OCR acknowledges that two hours may not have been sufficient to
accomplish the agreed upon purpose and that in some cases there is
a duty on the part of the library to reassess the number of reader
hours needed. OCR also acknowledges that based on his
communications with library staff the complainant personally felt
that further requests would be futile. However, in this case,
because he did not request further time and the evidence is not
sufficient to establish that such a request would have been denied,
the University was not under a duty to reassess its initial
assessment of the number of reader hours needed.
The complainant also indicated to OCR that he agreed to the
narrowed request only because he felt intimidated and coerced by
the questions he was asked about course relevance and clarification
of use.
OCR cautions that questions about academic relevance designed to
deny or limit access when combined with gratuitous and unfounded
statements regarding complainant's student status, if continued,
could form the basis for a claim of retaliation and harassment.
ACCESS TO "SCHEDULE OF CLASSES"
The complainant maintained that the "Schedule of Classes" and all
printed material, including grades and course schedules mailed to
him from the admissions and records office are not provided in
accessible format. The complainant confirmed that he has access to
on-line course registration through the DRC with assistance from
DRC staff, but that his only direct access to the "Schedule of
Classes" is through his academic advisor who provides scheduling
and counseling assistance. The complainant also indicated that his
access to grades and course schedules is provided by the admissions
and records staff who, upon his request, read the information to
him either from his printed materials or from their computers.
The complainant indicated to OCR that initially he requested that
the registrar's staff provide him the "Schedule of Classes" in an
accessible format, i.e., auditory translation. The registrar's
office directed him to the Disabled Resource Center (DRC)'s office
to obtain such an accommodation. The complainant stated that he
never followed up on this instruction to contact the DRC because he
did not believe the DRC office would assist him with any matter
that does not pertain to a course in which he is enrolled.
Because the Schedule of Classes is printed material made available
to nondisabled students to enable them to plan their course
schedules (and as such is a "communication" within the meaning of
Title II), the University is obligated to take appropriate steps to
ensure that it communicates to blind students information contained
in the Schedule of Classes as effectively as it communicates such
information to nondisabled students. Thus, it is not acceptable to
make the Schedule of Classes accessible only via an appointment
with an academic advisor or even a personal reader when nondisabled
students are able to access the information at their convenience
and review its contents for an unlimited amount of time.
In choosing an accessible format, a college enjoys greater
flexibility with respect to campus publications than is true when
choosing the accessible format for an examination. (Because an
examination usually entails communication under tighter time
strictures coupled with more serious academic consequences, there
is therefore a stronger presumption that the accessible format
selected will be in accordance with the student's request.)
Provided that the format selected for access is effective, the
University is not necessarily required to make general campus
information, which may be requested by many students with various
types of disabilities and preferences, accessible in the precise
format requested by each student with a disability. In other words,
a college may elect to create an audiotape of the schedule of
courses and refuse to provide the schedule in Braille. Or it may
ask the student to utilize an optical character recognition
scanner, which translates printed material into synthesized speech.
Based on prior OCR experience with the University, OCR is aware
that the University has various methods for making printed
materials accessible to blind students. It is also OCR's
understanding that the University is in the process of including
the Schedule of Classes on a computer-based information system that
will be available to student users in the near future. Finally,
because the complainant was directed to the DRC office but never
did, in fact, submit to that office his request that the Schedule
of Classes be made available to him in an accessible format, OCR
does not find the evidence establishes the University failed to
comply with Section 504 and/or Title II with respect to the
Schedule of Classes and other printed material identified by the
complainant from the admissions and records office.
GRIEVANCE
The complainant provided a copy of a December 1, 1995 complaint to
the Director of Equal Employment Opportunity/Affirmative Action
(AAO) regarding a denial of access to the Schedule of Classes and
other printed material from the admissions and records office. He
maintains that no action has been taken on his complaint nor has
the requested access been provided.
The University Discrimination and Complaint Procedures for Students
and Applicants for Admission (Presidential Directive 91-03) in
effect when the complaint was lodged provided that a student could
file a complaint by submitting a written statement to the Equal
Employment Opportunity/ Affirmative Action Office. The procedure
provided that a complainant would be notified within ten (10) days
after the receipt of the complaint regarding whether or not the
complaint would be processed. The procedure also provided the AAO
with 30 days to resolve the complaint informally and, if not
resolved, 60 days to conduct a formal investigation.
OCR reviewed the AAO complaint file containing the December 1, 1995
written complaint statement and found no record of any contact with
the complainant and no record of an informal resolution or formal
investigation. The Director of Registration and Records,
identified in the complainant's December 1 letter of complaint,
stated that she had never been contacted by the AAO regarding the
complainant's grievance.
OCR determined that the University failed to handle the
complainant's grievance in a prompt and equitable manner. However,
OCR has reviewed the underlying complaint in this case and
determined that the evidence did not support a finding of unlawful
discrimination. OCR has dealt with the procedural matter in other
recent cases. On November 11, 1996, OCR received from the
University a copy of the finalized version of the its revised
discrimination complaint procedures. OCR did determine that the
procedures, when implemented, are adequate to provide due process
and a prompt and equitable resolution of grievances alleging
discrimination on the basis of disability. In light of the fact
that the University has recently revised its discrimination
complaint procedures, and OCR has completed its investigation, no
further remedy is required of the University. If and when OCR
complaints concerning the University are filed in the future,
during its investigation, OCR will seek to determine whether the
University is currently fully and timely implementing its newly
revised discrimination complaint procedures.
This letter pertains exclusively to the specific issues raised by
this complaint. It is not intended, and should not be interpreted,
to express opinions as to the District's compliance with respect to
any issue not discussed in this letter, and does not prelude OCR
from investigating any future allegation of discrimination.
Under the Freedom of Information Act, it may be necessary to
release this document and related records on request. If OCR
receives such a request, it will seek to protect, to the extent
provided by law, personal information that, if released, could
reasonably be expected to constitute an unwarranted invasion of
privacy.
If you have any questions regarding this matter, please contact
Kathleen Schmitt at (415) 437-7819.
Sincerely,
Pat Shelton, Team Leader
Compliance Division II