Laws, Student Civil Rights, & Copyright
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Both state and federal law require community colleges to operate all programs and activities in a manner which is accessible to students with disabilities.
Federal Laws & Student Civil Rights
At the federal level, requirements for access for persons with disabilities were first imposed on recipients of federal funding by Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794) and its accompanying regulations set forth at 34 Code of Federal Regulations (C.F.R.), Section 104. Similar requirements were later imposed on all public entities, regardless of whether or not they receive federal funding, by the Americans with Disabilities Act (42 U.S.C. § 12100 et seq.) and the regulations implementing Title II of the ADA which appear at 28 C.F.R. § 35.
In particular, the Section 504 regulations and the regulations implementing Title II of the Americans with Disabilities Act (ADA) contain nearly identical provisions stating that recipients of federal funds and public entities in providing any aid, benefit or service, may not afford a qualified individual with a disability an opportunity to participate that is not as effective as that provided to others. (See 34 C.F.R. § 104.4 (b)(1)(iii) and 28 C.F.R. § 35.130(b)(1)(iii)). Title II recognizes the special importance of communication, which includes access to information, in its implementing regulation at 28 C.F.R. § 35.160(a). The regulation requires that a public entity, such as a community college, take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others.
The United States Department of Education, Office for Civil Rights (OCR) is responsible for ensuring that all educational institutions comply with the requirements of all federal civil rights laws, including Section 504 and Title II of the ADA. As a result, the opinions of the OCR are generally accorded considerable weight by the courts in interpreting the requirements of these laws. The OCR has had occasion to issue several opinions applying the requirements of the Section 504 and ADA regulations to situations involving access to instructional materials.
Office for Civil Rights
The OCR has held that the three basic components of effective communication include: "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." (OCR Docket No. 09-97-2145, January 9, 1998.)
In applying this test to a case involving access to materials in a college library, the OCR commented that:
"When looking at exactly which of its resources a library is obligated to provide in an accessible medium, the short answer is any resources the library makes available to nondisabled patrons must be made accessible to blind patrons. This includes the library catalogue, the archived microfiche, daily newspapers, and the internet (if that is a service provided to sighted patrons). A categorical decision by a public library not to even consider a request by a patron for a particular alternative format is in most instances a violation of Title II. However, when determining what alternative format is most appropriate, a library may take into account how frequently the material is used by patrons and the longevity of the material's usefulness. For instance, more serious consideration should be given to translating into braille frequently used reference materials which have a long (sic)‘shelf-life’ than would be true for daily newspapers." (OCR Docket No. 09-97-2002, April 7, 1997.)
In another case, OCR required a college to provide a textbook in braille because
"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." (OCR Docket No. 09-97-2145, January 9, 1998.)
The OCR also points out that the courts have held that a public entity violates its obligations under the ADA when it only responds on an ad hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services.
There are also state laws and regulations which require community colleges to make printed materials available in accessible formats. California Government Code, Section 11135 et seq. prohibits discrimination on various grounds, including mental or physical disability, by entities receiving funding from the state of California. The Board of Governors has adopted regulations at Title 5, California Code of Regulations, Section 59300 et seq. to implement these requirements with respect to funds received by community college districts from the Board of Governors or Chancellor’s Office. These regulations require community college districts and the Chancellor’s Office to investigate and attempt to resolve discrimination complaints filed by students or employees.
Copyright
The CCC Accessibility Center is not able to provide specific guidance regarding copyright, captioning, and what constitutes copyright infringement. Colleges have the obligation to provide access to individuals with disabilities to the programs, services, and activities of the institution. How access is provided within the context of copyrighted materials and Fair Use is a question that needs to be addressed at the institutional level.
For some guidance, see Legal Opinion M 02-22. Links to an external site. While dated, it does outline a series of options to consider in making a decision about captioning materials that may be under copyright protection.
Regarding Inaccessible Publisher Material
In a Dear Colleague Letter dated June 29, 2010 Links to an external site., the Office for Civil Rights stated:
It is unacceptable for universities to use emerging technology without insisting that this technology be accessible to all students.
This letter also states that any material not made accessible and not possible to accommodate cannot be mandatory in any coursework.
On June 19, 2018, Chancellor Ortiz sent out a letter stating that accessibility is an institutional responsibility Links to an external site..