THE LAW AND LIBRARY ACCESS FOR PATRONS WITH DISABILITIES

Sarah Hawthorne
U.S. Department of Education Office for Civil Rights
50 United Nations Plaza, Room 239
San Francisco, CA 94102 (415) 437-7719
Sarah_J._Hawthorne@ed.gov

Jeffrey Senge, Information & Computer Access Program Coordinator
Office of Disabled Student Services
California State University, Fullerton P.O. Box 34080
Fullerton, CA 92634-9408 Phone: (714) 449-5397
jsenge@fullerton.edu

Norman Coombs
EASI: (Equal Access to Software and Information)
PO Box 18928 Rochester NY 14618
nrcgsh@rit.edu

Web Posted on: December 2, 1997

Introduction:

The information age arrived in the last half of the twentieth century. Computers became more than computational devices; they became writing, reading and storage tools. For the formerly print disabled population, this suddenly opened exciting new worlds of information. Where the printing press, four centuries before, had raised barriers to information, the computer with alternate input and alternate output devices brought new freedom and independence. For libraries, this means that there is a new population to be served: patrons with disabilities. These new users do not what to expect when they visit a library, and librarians similarly do not what is possible to provide nor what they are required to provide.

The Architectural Barriers Act mandated physical access to buildings. Now disabled patrons are also insisting on access to the information in those buildings. Educational institutions understood that the 1973 Rehabilitation Act required provision of access to educational materials. This traditionally meant providing either reader services or audio taped materials. Now this must be expanded to mean access to information technology. TheAmericans with Disabilities Act, besides reinforcing the schools' obligation to make information technology accessible with alternate computer technology, makes this same obligation apply to public libraries.

Information is power, and a healthy democracy must guarantee access to this information and power equally for all of its citizens. Many librarians see these new patrons as an exciting challenge rather than a threat or burden. What they are looking for is some concrete help and directions.

Special Challenge to School Libraries

The three predominant areas of concern for most campus libraries are:

• providing information in specific alternative formats;
• making these accommodations in a timely manner;
• and, reconciling issues of responsibility related to reasonable accommodations and readily achievable practices as specified in federal regulations.

As more information is delivered digitally, providing timely access to information in a patrons preferred format becomes more achievable. Regulations set forth under Section 504 and the ADA have been interpreted to require public entities such as college and university libraries to assure communications with individuals with disabilities are as effective as communications with all others. To achieve this objective, both the type of information being communicated and the preference of the patron with the disability must be taken into consideration when determining the most appropriate access accommodation. A library may elect to provide a blind patron with a reader or tape recording of research information but if the nature of the information is detailed and the patron prefers a directly accessible format such as braille or electronic text, the library may be obliged to honor such a request to assure effective communication of that information to that individual. Thus, placing preference ahead of convenience when determining specific formats for alternative communication of information has become a priority that libraries must recognize.

A second emerging priority for postsecondary libraries is providing timely access to information in alternative formats. According to the U.S. Department of Education, Office for Civil Rights this means providing individuals with disabilities access to information at the same time all others have access to the information. For traditional libraries, this creates an enormous challenge; particularly when it involves converting print materials into braille or electronic text. Most libraries have neither the technology nor the trained staff to accomplish this in a timely manner.

In response to this situation, colleges and universities need to support the development of systems and strategies to render print information into alternative formats in a timely manner. One such system currently under study is the Braille Transcription Center project at California State University, Fullerton. This project has been established to study the feasibility of regionalizing braille transcription services for many colleges and universities from a central facility. Through the effective utilization of modern computer-based technologies and telecommunications capabilities, projects such as this could go a long way toward reducing the amount of time needed to render print materials into alternative formats. Finally, the issue of readily achievable must be considered. This provision has been granted to public entities such as libraries under both Section 504 and the ADA. However, a review of its interpretation clearly reveals broader implications for this provision. On the surface it appears that many areas of providing accessibility are not readily achievable and therefore need not be addressed by public entities. Warning, this must be regarded as a provision not a protection. When evaluating whether a reasonable accommodation is readily achievable, be sure to carefully consider how your organization's up-stream planning may affect down-stream accessibility. For example, declaring access to electronic information to be not readily achievable when your organization has control of the document structure, operating systems, and workstation configurations may be unacceptable.

The positive news regarding these three areas of concern is that more information is being archived electronically in digital formats everyday. Properly managed digital information can provide effective access to information in a variety of alternative formats in a timely manner for all library patrons. However, to achieve this level of accessibility for the future, alternative access to electronic information must be established as a priority when designing tomorrow's digital information systems.

What the Law Mandates

The Americans with Disabilities Act of 1990 (ADA) reiterates legal obligations that recipients of federal funds, such as most public libraries, were already obligated to do under Section 504 of the Rehabilitation Act. However, the ADA has had an especially dramatic impact on public libraries.

Conceptually, the enactment of the ADA makes it easier for courts and others, since they are interpreting a different statute, to justify taking a new look at information access issues and to redefine legal standards in a way that takes into account newly available technological solutions for providing persons with disabilities information access. Indeed, many ADA provisions make specific references to the multitude of assistive technology devices now on the market. In contrast the most advanced piece of technology mentioned in Section 504 is the tape recorder!

As an example of the approach taken to libraries under Section 504, Appendix A of the Department of Education's implementing regulations states:

"...As long as no disabled person is excluded from a program because of the lack of an appropriate aid, the recipient need not have all such aids on hand at all times. Thus, readers need not be available in the recipient's library at all times so long as the schedule of times when a reader is available is established, is adhered to, and is sufficient. Of course, recipients are not required to maintain a complete braille library."

Notice that the emphasis under Section 504 is on making sure that the person with the disability is not excluded from access. By contrast, Title II of the ADA requires that: "A public entity [such as a public library] 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... In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities" [28 Code of Federal Regulations (C.F.R.) 35.160].

The U.S. Department of Education, Office for Civil Rights, which has primary responsibility for enforcing the ADA as it applies to public libraries [28 C.F.R. 35.190(b)(2)], has repeatedly held that the term "communication" means the transfer of information, and it includes the right of a person with a disability to equally access the verbal presentation of a lecturer, the printed text of a book, and the vast resources of the Internet. The shift from simply ensuring that the person with the disability is not excluded, to emphasizing access that is "as effective as" that provided to nondisabled persons, is significant. It is particularly dramatic when coupled with the public institution's obligation to give "primary consideration" to the specific type of accommodation requested by the person with the disability.

There are definitely some limits on this obligation. A public library is not required to incur an "undue" financial or administrative burden. When determining what constitutes an undue financial burden, available funds of not only the local site but also the resources of any overarching parent organization, e.g., the city, county, state) will be taken into account.

Since optical character recognition scanners and adaptive computer software programs don't charge an hourly wage to "stand around" the way human readers do, it is not an undue burden to expect most public libraries will have on hand, during all the hours that the library is open to nondisabled users, a method by which a blind user can access the same information provided to nondisabled users. Some administrative responsibilities, not imposed on nondisabled persons, may be assigned to persons with disabilities. For example, a library may be concerned about leaving expensive adaptive technology unguarded in an open area so there may be prerequisites to using the equipment, such as obtaining a key from the librarian.

Note that when a blind user, who is a novice to the adaptive technology, needs training, the blind user may be asked to schedule such training during working hours at a nearby offsite high tech center. On the other hand, there should be a process whereby the trained user, while operating the library's adaptive technology, can get answers to questions that might reasonably arise during the use of the equipment.

With respect to whether a library can rely primarily, or even exclusively, on personal readers, it is highly unlikely that any library organizing its resources through a computer-based information system, can justify not having a scanner with voice output. And both screen and hardcopy print capacity.

Then there is the issue of Internet access. The home pages of many Web sites are not designed to be read by text based scanners. Therefore, readers may be used to assist the blind individual in navigating through information that is not easily decipherable when relying exclusively on adaptive technology.

The movement toward adaptive technology and away from personal assistants such as readers has, in some instances, worked against the preferences of persons with disabilities. Provided the technological method for access is adequate and the public entity offers the necessary training and back up support, in most cases an institution may opt to rely on technology rather than personal readers, even when the person with the disability prefers readers.

One of the unclear issues is the degree to which a library can require the user with the disability to learn new software programs, when the user is already proficient in a different program. My own thoughts on this are that, if the library is employing a program that is generally regarded as providing effective access by persons with that type of disability (e.g., blindness), the person with the disability may be required to learn the program selected by the institution. On the other hand, if the library has installed a program that is generally regarded as providing inferior access for persons with disabilities, the person with the disability can make a strong argument that "primary consideration" should be given to his/her particular software request in order to ensure that s/he is provided communication that is "as effective as" that provided to nondisabled persons.

The U.S. Department of Education, Office for Civil Rights, is currently conducting a statewide ADA compliance review to evaluate the extent to which California Community Colleges provide blind and low vision students access to printed materials and computer-based information systems. This review includes the methods by which the colleges provide access to the campus library. Each of the over one hundred colleges has already completed written self-evaluations, and OCR is planning onsite visits to severalcampuses in the next few months.