OCR Letter: California State University - Hayward

Dr. Norma S. Rees
President
California State University, Hayward
Hayward Campus
25800 Carlos Bee Blvd.
Hayward, California 94542-3000
(In reply, please refer to Docket Number 09-04-2016.)

Dear President Rees:

The U.S. Department of Education, Office for Civil Rights (OCR) has completed its investigation of the above-referenced complaint against California State University, Hayward. The complainant alleged that the University discriminated against on the basis of disability (low vision). The issues OCR investigated were:

Whether the University failed to provide Braille signage, for buildings and classrooms utilized by the complainant, including Meiklejohn Hall. the Music an Business building, the Student Union and the various trailers used on campus for offices and the Student Disability Resource Center (SDRC).
Whether the University failed to make 'its campus shuttle bus service accessible to visually impaired students.

OCR investigated the complaint under the. authority of Section 504 of the Rehabilitation Act of 1973and its implementing regulation. Section 504 prohibits discrimination on the basis of disability in programs and activities operated by recipients of Federal financial assistance. OCR additionally investigated the complaint under its jurisdiction as is a designated agency under Title II of the Americans with Disabilities Act of 1990 and s implementing regulation over complaints alleging discrimination on the basis of disability that are filed against certain public entities. The University receives Department funds. id a public education system, and is subject to the requirements of Section 504 and Title II.

OCR gathered evidence through interviews with the complainant and with members of the University administration and staff. OCR also reviewed documents and records submitted by the University and the complainant and on April 19. 2004. conducted an on-site visit to the University.

Regarding the first issue. OCR concluded that the University failed to provide sufficient Braille signage to allow the' complainant access to educational programs and activities. Regarding the second issue, OCR concluded. that the University has policies and procedures in place to facilitate the use of the shuttle bus by visually impaired students. However, the procedures were not always fully implemented, which impeded the complainants use of the shuttle bus. On April 28, 2004, the University, without admitting to any violation of the law, entered into a Resolution Agreement which, when fully implemented, will resolve the issues raised in this complaint.

Issue1: Whether the University failed to provide Braille signage for buildings an classrooms utilized by the complainant, including Meiklejon Hall, the Music an Business building, the- Student Union .and the various trailers used on campus for offices and the Student Disability Resource Center (SDRC).

The program accessibility requirements of the Section 504 implementing regulations a found at 34 C.F.R. §§104.21-104.23. Comparable sections of the Title II implement regulations are found at 28 C.F.R. §§35.149-35.151. Both 34 C.F.R. §104.21 and 28 C.F.R. §35.149 provide generally that no qualified individual with a disability shall because a university's facilities are inaccessible to or unusable by disabled individuals, be: 1). excluded from participation in, or denied the benefits of services programs or activities; or 2) otherwise be subject to discrimination by the university.

The regulations implementing Section 504 and Title II contain two standards for determining whether a university's programs activities and services are accessible to individuals with disabilities. One standard applies to existing facilities; the other covers new construction and alterations. The applicable standard depends upon the date of construction and/or alteration of the facility.

For existing facilities 34 C.F.R § 104.22 and 28 C.F.R. § 35.150 require a university to operate each service, program or activity so that, when viewed In its entirety, it is readily accessible to and usable by individuals with disabilities. This standard does not necessarily require that a University make each existing facility or every part of an existing facility accessible if alternative methods are effective in providing overall access to the service, program or activity. Under the Section 504 regulations, existing facility are those for which construction began before June 3, 1977; the applicable date under the Title II regulations is January 25. 1992.

Facilities constructed or altered after these dates are considered newly constructed or altered facilities under Section 504 and/or Title II standards! With respect to newly constructed facilities 34 C.F.R. §104.23(a) and 28 C.F.R. § 5,151(a) require that the facility be designed and constructed in such a manner that it is readily accessible to and usable by individuals with disabilities. In addition, for new alterations that affect or could affect facility usability, 34 C.F.R. §104.23(b) and 28 C.F.R. §35.151(b) require that, t the maximum extent feasible, the facility be altered in such a manner that the altered portion is readily accessible to and usable by individuals with disabilities.

The new construction provisions of the Section 504 and Title II regulations. also set forth specific architectural accessibility standards for facilities constructed or altered after the above dates. With respect to Section 504 requirements, facilities constructed or altered after June 3, 1977, but prior to January 18, 1991, must comply with the American National Standards Institute (ANSI) Standards A117.1-1961 (re-issued 1971). Facilltie13 constructed or altered after January 18, 1991, must meet the requirements of the Uniform Federal Accessibility Standards (UFAS)., Under the Title II regulation', universities currently have a choice of adopting either UFAS or the Americans with Disabilities Act Accessibility Guidelines (ADMG) for facilities constructed or altered after January 26, 1992. Both sets of regulations provide that universities may depart from the particular requirements of these architectural standards if equivalent or greater access and usability is provided.

In addition to the physical accessibility requirements outlined above, the regulations implementing Title II, at 28 C.F.R. §35.130(b)(7); require a university to make reasonable modifications in policies, procedures or practices when necessary to avoid discrimination on the basis of disability, unless the modification would fundamentally alter the nature of the service, program or activity.

Our investigation showed the following:

The complainant is a visually impaired student who is registered with the SDRC as a student with a disability. When the complainant first enrolled at the University in 2003, discovered that many of classrooms either did not have Braille signage or the Braille signage consisted of a small piece of Braille tape placed on the doorjamb adjacent to the door handle. The complainant considered the positioning of the Braille signage at this location to be a hazard that could result in injury. The complainant reported this to the University.
According to the University. most of the buildings in question were all constructed in the late 1960's. The temporary trailers were first occupied in July 1999, d are only temporary housing for offices waiting to have their permanent offices renovated or constructed. The University was unable to provide the dates) when the Braille tape was installed, or what standard was followed.
On September 24, 2003, representatives from the University conducted a tour with the complainant of the buildings and classrooms that were a concern. Based on that information, the University ordered room number signs with Guide II Braille according to the list of buildings/rooms/trailers the complainant would be using Spring term. The signs were supposed to be installed by mid-March 2004. When OCR went onsite April 19, 2004, the Director of Equal Employment Opportunity informed us that the signs had just arrived and would be installed immediately. However, some of the complainant's classrooms had changed and the University did not have new signage for those rooms. She also showed us the new compliant properly 1ocated signage presently being installed in the Science building.
Due to medical issues related to disability, the complainant did not attend the University from January 4 through March 4, 2004.
The University is currently using Braille tape, located on the doorjamb adjacent to the door handle, to identify classrooms in buildings that have not been renovated or altered.

Based on the above information, OCR determined that the University, despite attention to the needs of students who are blind or have low vision, did not provide the complainant access to education programs and activities. Other than the placement of Braille tape, the University did not identify to OCR a procedure, practice or modification it was using to ensure that, students and other individuals who are blind or have such low vision as they utilize Braille text, can readily navigate the campus and participate in the educational programs dispersed throughout the campus. Hence, the University's reliance upon Braille tape, to achieve program access needed to be implemented in an effective manner. The Braille tape that is currently located on doorjambs adjacent to door handles is difficult to locate and poses a hazard to individuals who must stand in the swing path of the door while trying to locate the tape. Further, the tape was not always placed in a consistent location or one logical to individuals who are used to signage that complies with the ADAAG and/or UFAS standards for new construction.

To resolve this allegation, the University has agreed to install permanent Braille Signage on classrooms campus-wide, in locations consistent with ADAAG and/or UF S standards. As a matter of technical assistance, we advise the University that it should be appropriate to offer the opportunity to provide other dents who use Braille for campus navigation, the same interim accommodations as it will be providing to the complainant. In addition, the University recognizes its continuing obligation to ensure that, as the University proceeds with renovations, alterations and/or new construction/of buildings on campus, signage is installed in conformance with the current requirements of ADAAG and/or UFAS.

Issue 2: Whether the' University failed to make its campus shuttle bus serve accessible to visually impaired students.

The program accessibility requirements of the section 504 implementing regulations are found at 34 C.F.R. §§104.21-104. 3. Comparable sections of the Title II implementing regulations are found at 28 C.F.R. §§35.149-35,151. Both 34 C,F.R. §104.21 and 2 C.F.R, §35.149 provide generally that no qualified individual with a disability shall because a university's facilities are inaccessible to or unusable by disabled individuals be: 1) excluded from participation in, or denied the benefits of services, programs at activities; or 2) otherwise be subject to discrimination by the university.

In addition. pursuant to 34 C.F.R. §104.43(a), no disabled student shall be denied the benefits of, participation in, or otherwise be subjected to discrimination in postsecondary education aid, benefits, or services, including transportation.

Our investigation showed the following:

In the Summer Quarter 2003, due to a lack of funding, the SDRC's van service was no longer available to disabled students. The SDRC notified all disabled students by mail that this service was no longer available and that all disabled students were being advised to use the On-Campus Shuttle Bus. A schedule for this bus was included.
When a student registers as a student with a disability with the SDRC, they are informed about the shuttle service and it is suggested that they also personally meet with the University Coordinator of the Alternative Transportation Office" OCR learned that no student has taken advantage of this option to meet with Coordinator of the Alternative Transportation Office.
The Coordinator of the Alternative Transportation Office informed OCR that there are two bus drivers. Drivers are provided a cell phone so that a person with disability can contact them if there is a special- circumstance. Each driver has been informed that they must make a complete stop at each scheduled shuttle bus stop if there is an individual standing there and open the doors and announce that this is the on-campus shuttle bus and ask if the individual wishes to ride.
The Coordinator of the Alternative Transportation Office in formed OCR that he has taken a test ride with both drivers and they do stop and open the doors and make the announcement if they see someone standing at the bus stop. He has also informed the SDRC that his office would be willing to take or receive a picture of the disabled students who utilize the shuttle so that the drivers could more readily recognize them.
The complainant informed OCR that initially was having problems this term with the bus not stopping and the driver not making the necessary announcement. Presently, however, noted that the system was working well and was pleased with it also indicated that would meet with the Coordinator of the Alternative Transportation Office and keep him apprised as to schedule needs should they change. ¬
In the University's data response to OCR it was noted that, in the future both the Alternative Transportation office-and the SDRC will be referring students with disabilities to a website that is accessible to students who have visual impairments. This site will contain the shuttle bus schedule and any other pertinent information necessary for successful use of the shuttle bus. OCR learned during the on-site visit that the website referenced in the data response was not currently available on line.

Pursuant to applicable regulations, the University as the duty to make its shuttle bus service available to all students on an equal or equivalent basis. Based on the above information, OCR concluded that the University does have policies and procedures !n place to facilitate the use of the, shuttle bus, by visually impaired students. Part of this procedure is for the shuttle bus drivers to stop and announce themselves at all bus stops where students are present. It appears that there ere some occasions when the b s drivers were not making this announcement and the complainant never knew the shuttle bus had stopped. However, the University alleviated this problem and the drivers are now making the appropriate announcement at each stop. The complainant has confirmed this. In addition to the stop and announce, University procedure indicated that there will soon be an accessible web site where disabled students could obtain information about the shuttle service, including the shuttle's' schedule of operation.

In resolving this matter, the University has affirmed. that it will post the shuttle bus information on an accessible University web site, as set forth in the agreement, and continue to train bus drivers in their responsibilities to make the shuttle bus accessible to all students.

The University has adopted a Resolution Agreement that OCR has determined will resolve the allegations addressed by OCR's investigation of this complaint. A copy of the agreement is enclosed. Based on the University's commitment to implement the provisions set forth in the agreement, OCR is closing the investigative phase of this complaint as of the date of this letter. OCR is notifying the complainant of this resolution by separate letter. OCR will monitor the implementation of the agreement and will take further investigative and/or enforcement action if the University does not implement the agreement in a timely manner.

If you have any questions, please contact Vicki Riordan, the investigator assigned to the complaint at (415) 556-4233.

Robert E. Scott Team Leader Office for Civil Rights

Enclosure
Cc: Dorian West .
Director of Equal Employment Opportunity

California Stale University, Hayward
OCR Docket Number 09-04-2015

Resolution Agreement

California State University, Hayward, without admitting to any violation of law, agrees to resolve the issues raised by the Complainant in the above-referenced complaint filed with the U.S. Department of Education, Office for Civil Rights (OCR). As steps to implement its responsibilities under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, the University will do the following:

1. As the University proceeds with renovations, alterations and/or new construction of buildings on campus, it will ensure that signage is installed in conformance with the current requirements of the American with Disabilities Act Accessibility Guidelines (ADAAG) and/or the Uniform Federal Accessibility Standards (UFAS).

2. For existing facilities:
a. The University will install temporary Braille signage identifying the Student Disabilities Resource Center (SDRC) and the complainant’s current classrooms. This temporary signage will consist of Braille tape mounted on a plaque or board so it is distinguishable from the wall surface, and affixed to the wall pursuant to the height and location requirements of ADAAG and/or UFAS.
b. The University will determine which other classrooms on campus either have no Braille signage or have only Braille tape mounted to the doorjamb on the strike side of the door. For these classrooms, permanent signage will be installed within the nine month time frame stated below.

3. Periodically monitor the temporary Braille signage on campus to ensure that it remains posted and in the current location.

4. Post the information regarding the University shuttle bus service on the SDRC web page. This will include an explanation of the shuttle bus service, how students with disabilities can utilize the shuttle bus, and the shuttle bus schedule. The posting will be in a format accessible to persons who are blind or visually impaired. All shuttle bus drivers at the time of hire, will be trained on their responsibilities to make the shuttle system accessible to persons with disabilities.

5. Reporting Requirements.
a. On or before the University will provide OCR with documentation that item 2(a) of this agreement has been implemented.
b. On or before the University will provide OCR with documentation that item 2 (b) of this agreement has been implemented.
c. On or before the University will provide OCR with documentation that item 4 of this agreement has been implemented.