In general, federal governmental agencies, recipients of federal financial assistance, and state and local governmental entities are required under federal law to provide people with disabilities equal access to printed and other information which is made available to employees or members of the public. This requirement makes "effective communication" possible with people who have sensory disabilities, such as blindness or visual impairment. Fulfilling this obligation goes a long way to breaking down the information barriers that perpetuate discrimination on the basis of disability. For information to be truly accessible, and to make "effective communication" a reality, information must be made available to people with disabilities in their preferred reading media if at all possible. Additionally, the accessible information must be provided timely and under conditions affording people with disabilities the same degree of access to information as their non-disabled counterparts. Only when the provision of accessible information becomes an "undue burden" may the federal government, recipients of federal financial assistance, or entities of state or local government make information accessible in a manner that does not adhere to the individual's preference or to the requirement of timely delivery and equivalent access.
In 1973, Congress enacted the Rehabilitation Act, a comprehensive statute establishing a partnership between the federal and state governments to foster the provision of vocational rehabilitation services to people with disabilities. This program provides training and related services to people with a wide range of disabilities primarily to equip them for entry or reentry into the workforce. However, Congress also recognized that, in addition to a lack of educational opportunities and work experience leading to skills development, people with disabilities also face discrimination both by employers and by public agencies. To ensure that the federal government would not perpetuate the discrimination that the vocational rehabilitation system was designed to mitigate, Congress also enacted civil rights protections for people with disabilities. In particular, the Rehabilitation Act bars discrimination on the basis of disability by recipients of federal financial assistance and by agencies of the federal government themselves. This requirement, known as Section 504 (29 U.S.C. Sec. 794 (a)) reads in part as follows:
No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
In addition, Section 504 allows federal agencies to draft their own individual rules to meet the mandates of this statute. Although this provision has largely been ignored, a number of agencies have promulgated rules addressing Section 504 obligations of the federal government generally and of specific agencies. In particular, the United States Department of Justice (DOJ) has issued regulations implementing the requirements of this section and has applied them specifically to the context of access to information. Though specifically drafted to cover the programs and activities of DOJ, these regulations were designed as the prototype for federal agency rulemaking to implement Section 504. Under Executive Order No. 12250, the United States Attorney General has the authority to coordinate the implementation and enforcement of a variety of civil rights statutes, including Section 504. The DOJ regulations (28 C.F.R. Part 39) read in part as follows:
"Sec. 39.160 Communications.
a. The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature."
To provide further clarification, the DOJ regulations define "auxiliary aids" at 28 C.F.R. Sec. 39.103 as follows:
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, brailled materials, audio recordings, telecommunications devices and other similar services and devices.
So reads the federal government requirement to make printed and other information accessible to its employees and members of the public with disabilities. However, federal agencies are not without a defense to unlimited demands for access that would severely impair their ability to conduct an overall program or activity. The regulations at 28 C.F.R. Sec. 39.160 continue as follows:
"d. This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with Sec. 39.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Attorney General or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity."
Note that auxiliary aids encompass a range of options, including the production of accessible materials, and that the DOJ regulations are clear that primary consideration must be given to the preference of the individual with a disability. Note also that this model requirement for all federal agencies provides that an undue financial or administrative burden will be evaluated based upon the resources available to the entire program or activity in question. This is a very high standard and will almost never be met by agencies of the federal government. However, even if an undue burden can be identified, the entity is only able to avoid the specific requirements of preference and equivalent access. The disabled employee or member of the public must ultimately be afforded some level of access to the printed information at issue.
In addition to the obligations placed on federal agencies themselves, Section 504 also prohibits discrimination against persons with disabilities by any program or activity receiving Federal financial assistance. Congress "sought to impose Sec. 504 coverage as a form of contractual cost of the recipient's agreement to accept the federal funds." United States Dep't of Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986). There is neither a requirement that a state entity directly receive federal financial assistance, Grove City College v. Bell, 465 U.S. 555, 564, (1984), nor that it directly benefit from that assistance, Paralyzed Veterans, 477 U.S. at 607 (citing Grove City). Under amendments to Section 504 enacted in 1988, the definition of "program or activity" was expanded to include not only a state or local entity originally receiving such assistance, but also each department or agency to which it "extends" that assistance. (29 U.S.C. Sec. 794(b)(1)(B) Similarly, regulations promulgated under the Rehabilitation Act define a "recipient" as including "any instrumentality of a state . . . to which Federal financial assistance is extended directly or through another recipient." 45 C.F.R. Sec. 84.3(f) Neither the statute nor the regulations require an instrumentality of a state to which the assistance is "extended," to be also in a position to accept or reject Sec. 504 obligations for the requirements of the Rehabilitation Act to apply. Therefore, the scope of Section 504 coverage is extremely broad.
In 1990, the requirements concerning information access were expanded even further with the enactment of the Americans with Disabilities Act (ADA). Title II of the ADA applies the ban on discrimination against people with disabilities to entities of state and local government whether or not such entities receive federal financial assistance. Therefore, under the ADA Title II regulations codified at 28 C.F.R. Sec. 35.160 mirroring the Section 504 rule, a public university or community college, for example, is required to provide timely access to information in a medium preferred by the individual with a disability. However, since such institutions more than likely directly or indirectly benefit from federal financial assistance, they are also subject to the Section 504 information access requirements as well. As a practical matter, Section 504 and ADA Title II provide comparable protections for people with disabilities seeking access to information of all kinds, and complaints of discrimination by such entities of state or local government are properly lodged under either law, and frequently under both simultaneously.
The United States Department of Education's Office of Civil Rights (OCR) has dealt specifically with the question of accessible materials and the requirements to honor the preference of individuals with disabilities and the timeliness of delivery. In a series of Letters of Findings (LOFs) articulating the information access policy, OCR has unambiguously outlined the right to "effective communication." Issued against specific educational institutions, these LOFs provide an example of how one class of public entities must comply with federal law.
Two examples will illustrate this point. In OCR's LOF concerning Los Rios Community College, a student alleged that a college discriminated on the basis of disability by failing to make its computer laboratory, library, employment services, and written materials accessible to students with visual impairments. During the course of the investigation, the college agreed to a voluntary resolution plan which, among other things, provided that the college would develop written procedures to respond to requests for auxiliary aids, make printed materials and computers accessible by providing auditory, tactile and enlarged print materials, and make its library and student employment services accessible to students with visual impairments. In describing the scope of the information access requirement outlined above, OCR stated:
Due to the "range of disabilities" and the "primary consideration" accorded the individual's preference in the manner accommodation is offered, the post-secondary public institution should be prepared to deliver in a reasonable and timely manner the printed materials relied upon in its educational program in all of the following mediums: auditory, tactile (braille), and enlarged print. Although there may be circumstances when the student's preferred medium is not, on balance, the medium selected by the post-secondary institution to provide the student appropriate aids and services, the institution may not categorically refuse to provide accommodation through a particular medium (e.g., braille). Rather, the post-secondary institution must be prepared to timely offer access to its printed materials in all three mediums, with the particular medium used for the student's request dependent on a case by case analysis.
Additionally, in OCR's letter concerning California State University at Los Angeles, a complaint filed with OCR alleged that the university failed to provide access to blind and low vision students with respect to library resources, campus publications, and open computer laboratories. The university agreed to a voluntary resolution of the issues raised in the complaint and to draft language proposed by OCR describing the steps to be taken to comply with the law. The letter reads in pertinent part as follows:
In 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. 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)]. A recognized good practice in establishing such a comprehensive policy is to consult with the disability community, especially those members most likely to request accommodations.
For some time, the federal government has been required to make information accessible to people with disabilities. According to its own regulations, the accessible information must be provided in formats (such as braille or audio recording) preferred by those requesting such information. Additionally, recipients of federal financial assistance are under a similar obligation to provide accessible information. Even public entities which do not receive such assistance are now required to provide accessible information in compliance with the ADA. In no case must any of these entities comply with the individual's preference when doing so would result in an undue burden, but such a determination is made based upon the resources available to the program or activity as a whole. When an undue burden cannot be shown, the accessible information must be provided in a timely manner and generally under conditions affording equal access to people with disabilities. Finally, public entities must be prepared in advance to provide accessible information in a manner that complies with these long-standing requirements of federal law.
Date: October 12, 1999.