OCR Letter: City College of San Francisco

OCR DOCKET NUMBER: 09-97-2145.RES

LOF ISSUE DATE: 01/09/98

NAME OF SIGNER: ADRIANA CARDENAS

Chancellor/President Del M. Anderson
City College of San Francisco
50 Phelan Ave, E200
San Francisco, CA 94112-1898


(In reply, please refer to Docket Number 09-97-2145.)

Dear Chancellor/President Anderson:

On June 12, 1997, the U.S. Department of Education, Office for Civil Rights (OCR), received a complaint alleging that the City College of San Francisco (College), a California Community College, failed to provide to a blind student (complainant) a Braille translation of a textbook assigned during the Spring 1997 semester.

OCR has jurisdiction over the College under Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), which prohibit discrimination on the basis of disability by recipients of federal funds and public entities, respectively. The College is both a recipient of federal funds and a public entity. At this time, contingent upon the College's implementation of its plan submitted to OCR on December 29, 1997, OCR finds the College in compliance.

Obligation to Provide Textbook in Meaningful Alternative Format

Under Title II, a public college is required "to take appropriate steps to ensure that communications with students 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].

OCR has repeatedly interpreted the term "communication" in this context to mean the transfer of information, including (but not limited to) the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet. In construing the conditions under which communication is "as effective as" that provided to nondisabled persons, on several occasions OCR has regarded the three basic components of effectiveness as 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.

With regard to the "significance of the message" of a textbook, OCR notes that a course-assigned textbook constitutes a core component of the post-secondary academic curriculum. A course-assigned textbook is customarily the primary reference tool upon which the student is expected to rely. Moreover, the content structure of the course is often closely correlated to the textbook such that it is difficult to actively learn and participate in the classroom if the student is unfamiliar with the assigned textbook material. Finally, through examinations the student is ordinarily held accountable for knowing the information in the assigned portions of the textbook.

One of the courses taken by the complainant during Fall 1996 and Spring 1997 was a course specifically designed to assist students in taking the Test of English as a Foreign Language (TOEFL), a standardized test administered nationally by the Educational Testing Service (ETS). The textbook "Longman Preparation Course for the TOEFL" (hereinafter TOEFL textbook) was the primary educational resource used inside and outside the classroom in this course. The complainant requested the Disabled Student Program and Services (DSPS) Office to translate the TOEFL textbook as an accommodation to her disability (blindness).

OCR finds that the College's responsibility to provide the complainant communication "as effective as" that provided to nondisabled students required the College to provide the complainant a meaningful alternative format of the TOEFL textbook.

Determining Appropriate Alternative Format

One of the most difficult tasks facing colleges today is providing textbooks in a timely accurate complete appropriate alternative format to students with print impairments. OCR experience is that, with respect to rendering course-assigned textbooks accessible to blind students, currently most colleges rely almost exclusively on the auditory medium, specifically either personal readers or audio-cassettes from sources such as Recordings for the Blind and Dyslexic.

However, in some situations, the subject matter of the textbook is particularly ill-suited to an auditory translation. For example, mathematics and science textbooks, as well as textbooks to assist in acquiring proficiency in a written (rather than conversational) foreign language, ordinarily rely heavily on unique symbols, equations, charts, grids, subscripts, punctuation, underscores, and accent marks, which are often hard to effectively convey through auditory speech. Unfortunately, the type of subject matter for which auditory speech is least appropriate is often the same type of subject matter that may be the most expensive and time-consuming to translate into electronic/Braille, because the standard optical character recognition scanner is usually not adequate for converting the specialized non-narrative print into a meaningful electronic/Braille format.

Section 504 implementing regulation [34 C.F.R. 104.43(c)] prohibits colleges from excluding students, on the basis of disability, from any "course of study." As OCR has stated in prior opinions [OCR Case Docket No. 09-91-2157 (January 15, 1992)], "Failure to translate specialized material, such as mathematical symbols and equations, into a language [e.g., Braille] specifically created to communicate such material to the visually impaired, has the result of strongly deterring visually impaired students from taking courses, or concentrating in areas, that involve higher mathematics [or other "courses of study" whose printed information is expressed in special symbols or punctuation]."

Besides the problem of translating certain types of subject matter into a meaningful auditory medium, there are additional problems in using a personal reader to make a large volume of printed material, such as an entire textbook, accessible. When a college offers a personal reader as the means for translating a textbook into an alternative format, the student with the print impairment is asked to set aside significant blocks of time which must be coordinated with the schedule of the reader(s) so that both are present at the same time and place on campus. Such coordination may be especially difficult for a blind student whose mobility is ordinarily dependent upon public transportation or other third person drivers. As to the role of the student with the disability in asking fellow classmates to act as a personal reader, some students prefer to secure their own service provider, while other students are highly reluctant or even unwilling. Some students with disabilities state that having to personally approach fellow classmates to request special services (even when offering compensation) undercuts their ability to establish peer relationships.

In addition to the difficulties commonly associated with the use of personal readers (e.g., adequate supply, scheduling conflicts, reliability, acceptable speaking voice), when a student is in the process of learning English as a Second Language (ESL), comprehension of information presented in spoken English is significantly less than would be expected of a native English-speaking blind student, and any foreign accent by a personal reader would be more problematic than usual.

Finally, a personal reader (unless recorded) provides only one time exposure to the information and does not allow the student to independently refer back when studying on his/her own. Even when the personal reader is informally audiotaped, such recordings do not allow the student efficient internal document flexibility to move between topical headings and from page to page. Thus, when later attempting to review materials, the student generally finds it very time consuming to wind and rewind, play and replay, the collected audiotapes in order to locate specific information. Consequently, personal readers are often most effectively used for materials that a student will not be frequently referencing. For a discussion of features to consider when making a textbook accessible in alternative format, see the report "Accessibility of Information in Electronic Textbooks for Students Who Are Blind or Visually Impaired," presented by the Texas Education Agency to the Texas Legislature, at <http://www.tsbvi.edu/textbooks/textbook.htm>.

The facts of this particular case illustrate many of the above problems encountered by colleges when attempting to provide textbooks in an alternative format. During the Spring 1997 semester, the complainant asked the College to translate three course-assigned textbooks: "Focus on Grammar," "In Our Own Words," and the TOEFL textbook.

The College states that "Focus on Grammar" was made accessible to the complainant through an already existing audiotape. The College states that "In Our Own Words" was provided in Grade 2 Braille (229 printed pages or 350-450 Braille pages) through the efforts of a "typist proofreader" who input the text using an Apple scanner, Ramsley converter software, and a Versapoint Braille printer. OCR notes that during the Spring 1997 semester the College also translated approximately 80 printed pages of class handouts into Grade 2 Braille for the complainant, as well as Brailling certain practice examinations, three of which are from the TOEFL textbook. The College estimated that, when translating into Braille, on average 10-15 printed pages per week was "an amount that could be provided without delay." During the Spring 1997 semester, a total of approximately 410 printed pages were converted into Braille for the complainant. (In the College's experience, one typed page converted to about one and a half to two pages of Grade 2 Braille.)

For reasons discussed below, the College relied on personal readers to translate the TOEFL textbook from hard copy print to alternative format.

The TOEFL textbook contains numerous charts and grids that, for sighted students, are more effective than narrative description in presenting information such as verb conjugation and grammatical sequencing. The TOEFL textbook also frequently uses special punctuation, underscoring, subscripts, and accent marks to assist the sighted reader in comprehension and pronunciation. The College stated that its DSPS optical character recognition scanner, used to convert hard copy print into Braille, was not adequate for purposes of translating the TOEFL text, not only because of the type of printed text involved, but also because during Spring 1997 DSPS staff/equipment was already operating at capacity to translate into Braille other course-related materials for the complainant. The DSPS staff contacted the American Printing House for the Blind, who indicated that the process of translating the TOEFL textbook into Braille "could take anywhere from six months to one year. The Braille copy would then be sold to the [College] District for several thousand dollars, depending on length."

In its written Data Response to OCR, the College stated that the DSPS counselor discussed the difficulty of translating the TOEFL textbook into Braille "many times" with the complainant "who acknowledged the problem and agreed that she did not need the Braille and that the reader/assistant could read the TOEFL material to her." In interviews with OCR, the complainant states that she was always clear that what she needed was a Braille translation, but that since the College indicated that translation of the TOEFL textbook into Braille was not a feasible option, she "agreed" to take whatever accommodation could be made available.

The College indicated to OCR that it believed a personal reader was an adequate method for translating the TOEFL textbook for the complainant because the prior semester (Fall 1996) when taking the same TOEFL course the complainant had used one personal reader throughout the semester and, according to the College, this arrangement had been satisfactory to the complainant. (OCR notes that the complainant, after taking the TOEFL course the first time in Fall 1996, did not pass the TOEFL test taken Spring 1997.) The College explained that this personal reader did not merely read the printed TOEFL text aloud, but instead attempted to be highly interactive with the complainant so as to try to make as clear as possible the non-narrative text, with its underscoring, accents, subscripts, etc. In short, the College described the role of this personal reader in many ways as more akin to that of a tutor rather than a reader who merely reads the printed text aloud word for word. The College indicated that the students recruited to provide this audio-interpretation of the TOEFL textbook had no special training in how to teach English as a Second Language or in how to most effectively read aloud specialized text such as underscoring, subscripts, charts, etc.

In Spring 1997, the College offered to provide the complainant a "personal reader/assistant" to meet in the library for up to four hours per week. The College indicated that "Finding students who were available at the same time as [the complainant] was difficult because [she] was unable to be flexible with meeting times... [she] was unable to meet any other time than Wednesday and Friday 11-1]. [She] rejected the first reader/assistant because the reader/assistant was unable to meet at the times specified by [her]. [She] rejected the second reader/assistant because the reader/assistant had an `accent'. The third reader/assistant was only able to meet once a week on Fridays for three hours; this was agreed to by [the complainant]. With three weeks left in the semester, DSPS was informed by [the complainant] that the reader/assistant was no longer showing up. A fourth reader/assistant was provided for the last two weeks of the semester. [The complainant] was not willing/able to assist in finding fellow students on campus who might be able to assist her for pay (using DSPS funds)."

OCR finds the evidence indicates that the personal readers/assistants provided by the College during the Spring 1997 semester did not provide the complainant communication "as effective as" that provided to sighted students who were able to read the printed text in the TOEFL textbook.

Role of Textbook Publishers

As evidence of its good faith efforts to provide the complainant a Braille translation of the TOEFL textbook, the College described to OCR efforts made to obtain an electronic version of the TOEFL textbook. Longman Publication, publisher of the TOEFL textbook, also publishes other textbooks which are used in courses at the College's Institute. More than a year prior to the complainant's enrollment in her first TOEFL course in Fall 1996, the College first contacted Longman Publication requesting its cooperation in making accessible Longman textbooks being used by the complainant. By letter dated November 22, 1995, the College's DSPS counselor wrote to the Executive Editor of Longman Publication stating that "an international student who is visually impaired has enrolled in our ESL program. The texts the class will be using are: Focus on Grammar - High Intermediate... [and] Workbook for High Intermediate... Books on tape does not work in this instance because an auditory presentation of the material does not allow the student to learn spelling. I request a Braille version of the texts or a copy of the texts on computer disk so that I may convert the text to Braille in our high tech department... [I also request] appropriate copyright permission."

Longman Publication responded by telephone that its policy was not to provide either Braille translations or an electronic disk version for any of its textbooks. Moreover, Longman Publication indicated that in any event their own electronic disk version of their textbooks was "protected and would not be readable by any system DSPS might use to convert the text to Braille." When the complainant enrolled in her first TOEFL course in Fall 1996, the College again contacted Longman in an attempt to obtain either a Braille or electronic computer disk version of the TOEFL textbook. Again, Longman was unwilling to provide either.

Publishers benefit when college faculty select the publishers' product as a course-assigned textbook (which all students in the class are then required to purchase). On the other hand, colleges report to OCR that publishers have been almost entirely unwilling to voluntarily alleviate the cost or otherwise participate in the process of making their product accessible to students with print impairments. Recently the disability community has turned to lawmakers for relief.

One barrier to educational institutions attempting to provide a printed text in an alternative format has been copyright issues involved in reproducing the original text. On September 16, 1996, federal Public Law 104-197 became effective, stating that "... it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities... `specialized formats' means braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities" [17 United States Code (U.S.C.) Ch. 1, 121].

Besides eliminating the copyright barriers, steps have been taken to hold publishers responsible for providing their product in an alternative format. For several years states such as Texas have required publishers of elementary and secondary textbooks to deposit the electronic version of their textbooks into a central registry, where the state then translates the text into Braille for elementary and secondary students who are blind. In July 1997, the first state law applicable to publishers of college textbooks was passed. Arizona now mandates the state board of education to require "the publisher of each literary and nonliterary textbook used in the community colleges of this state to furnish computer software in a standardized format when software becomes available for nonliterary textbooks, to the State Board of Directors for community colleges from which Braille versions of the textbook may be produced" [Section 15-1425, Arizona Revised Statutes]. At this time there is no California state law requiring publishers of textbooks used in public educational institutions to provide such textbooks in an electronic/digital format for the purpose of accommodating a student with a disability.

In addition to the role of the publisher, there may also be a role for the campus bookstore to play with regard to the task of providing course-assigned textbooks in alternative format. A survey of California Community Colleges in April 1997 found that the campus bookstore markup on new textbooks is in the range of 20-25%, and that in campus bookstores operated by the college/District (only about one in six campus bookstores is privately operated) the college/District uses revenue generated from textbook sales for a wide variety of purposes (Survey Question Six). OCR notes that at this time apparently no college uses income from textbook revenue to cover costs arising when a student with a print impairment requires translation of a textbook into an alternative format.

Interestingly, the same survey also found that a few community colleges restrict faculty selection of textbooks to those by publishers who have certain business practices, such as book return policies (Survey Question Seven). By contrast, OCR is not aware of any community college campus bookstore that tracks the policy of textbook publishers regarding their willingness to provide the electronic version of their textbooks to assist a college in translating the textbook into an alternative format. If so tracked, faculty would have the option to at least consider this factor when selecting course-assigned textbooks, and textbook publishers (as a result of campus bookstore inquiries) would be put on notice that such assistance is valued by the consumer market.

OCR is pleased that the College actively sought to persuade the publisher of the TOEFL textbook to provide the Braille or electronic version of its product. These efforts demonstrate that the College was willing to explore solutions beyond the resources of the College's DSPS office. With regard to the task of providing textbooks in an alternative format, the issue is usually not whether the DSPS staff has been dedicated and hardworking. Rather, the question is whether the college, as an institution, has explored all resources available. Cost-effective solutions may be found when departments on campus work together cooperatively, and in some cases, when individual colleges collectively approach the task. OCR notes that a centralized Braille Transcription Center, located at California State University, Fullerton, currently serves all California State University (CSU) campuses.

Resolution

On December 29, 1997, the College provided OCR with a plan in which the College, conditioned on the complainant's enrollment in the Spring 1998 semester, commits to (1) provide a Braille translation of the TOEFL textbook, and (2) translate the complainant's textbooks for the Spring 1998 semester into an appropriate medium that will be "as effective as" that provided to sighted students. Finally, in order to further explore possible intercollegiate solutions, the College has promised to discuss this issue at the next DSPS Coordinators meeting in its region, and to bring its need for a timely cost-effective method of obtaining electronic/Braille translations of printed textbooks to the attention of the Chancellor's Office of the California Community Colleges.

OCR appreciates the College's prompt response to issues raised by OCR in this complaint and OCR acknowledges the strong commitment of College staff to providing students with disabilities full access to the educational program. The College is to notify OCR in writing by July 1, 1998, that it implemented the above plan during Spring 1998. For questions regarding this letter, please contact Ms. Sarah Hawthorne, staff attorney, at (415) 437-7719.

Sincerely,

Adriana Cardenas
Team Leader