With the ongoing and enormous attention enforcement agencies are devoting to access to emerging technology, it is easy to assume that facilities access in no longer a significant compliance concern for colleges and universities. However, one need only examine recent OCR rulings and court decisions addressing charges of denial of facility access to discover that postsecondary institutions are still guilty of violating what many would assert are basic and clear compliance mandates. The Department of Justice’s 2010 ADA Standards for Accessible Design (effective March 15, 2012) coupled with the upcoming revision to the Section 504 regulations to formally adopt the 2010 Title II ADA standards in lieu of Uniform Federal Accessibility Standards (UFAS) will likely spark renewed interest in the accessibility and usability of college and university facilities. Therefore, now would be a good time to take a look at the compliance areas that seem to present the greatest challenges for colleges and universities, as reflected in recent agency rulings and judicial decisions. The next several editions of Salome Says will be devoted to facilities access issues beginning with Parking and Accessible Paths of Travel.
The majority of parking issues arise in the following areas: the number and size of accessible spaces; signage; the enforcement of parking restrictions; and the path of travel from the parking area to adjacent facilities. The cases reviewed reflect that institutions consistently fail to ensure that parking areas contain a) the minimum number of accessible spaces required pursuant to ADAAG and/or UFAS standards, as well as b) spaces 96 inches wide that are necessary to accommodate vans (See University of Maryland, No. 03102046 (OCR 06/2010) and University of Mississippi, No. 06102080 (OCR 09/2010); and Gadsden State Community College, No. 07-09-2006 (01/2010)).
The signage cases generally involve the symbols identifying accessible spaces being mounted on the ground rather than at the required height of at least 60 inches or otherwise being obstructed. (Remington College, No. 15-10-2107 (OCR 12/2010) and Clayton State University, No. 04-09-2088 (OCR 09/2009)) Enforcement cases involved institutions failing to take action against those parking in spaces without proper credentials, as well as, maintenance staff that either obstruct access to spaces during snow removal or fail to keep spaces clear during winter weather. (See University of Mississippi, supra and Remington College, supra).
It is important that routes from designated accessible parking spaces be “located closest to the nearest accessible entrance on an accessible route.” (UFAS 4.5.1). The surface of accessible routes must be stable, firm, slip-resistant and not impede the travel of those with physical disabilities. Additionally, accessible entrances to building should be clearly identified and marked with signage directing individuals from non-accessible entrances to the accessible entrance. Generally path of travel cases involve:
(See Remington College, supra; Gadsden State Community College, No. 07-09-2006 (OCR 2010); Clayton State University, supra and Our Lady of the Lake University, No. 06082171 (OCR 2009)). However, the most significant recent cases involving path of travel violations, raise some unique issues.
In Montgomery College (Rockville), et.al, No. DKC 09-2278 (D. Md. 2011), a student who had difficulty getting to her classes because the closest accessible parking was eliminated by construction, was injured walking from her class when the College refused to provide transportation back to her vehicle. The court ruled that the College’s refusal to address the obvious access problems caused by the construction meant that the College was at risk of being found to have “intentionally violated the ADA and the Rehabilitation Act by demonstrating a deliberate indifference when they had notice of the potential risk of their decision… .” The court ruled that the College arguably had a duty to accommodate the student’s known disability, i.e., her difficulty walking, by providing her transportation.
In a second case, Shasta-Tehama-Trinity Joint Community College District, No. 09-09-2068 (OCR 2009), the College moved all accessible spaces following the recommendation of a consultant. As a result, a student with a disability, who previously had easy access to an adjacent walkway leading to her destination, was denied access because the walking distance from the new placement of accessible spaces was doubled and too far for her to walk. OCR ruled that the College’s obligation under the law was not satisfied merely because the new spaces were arguably ADAAG-compliant and additional steps were necessary. OCR specifically ruled that “[I]n any individual case, in order to achieve program access, absent a fundamental alteration or undue burden defense, something more or different from ADAAG compliance may be necessary for a recipient to accommodate a particular disabled person”. In this particular case, OCR suggested that the College either reserve a space near the specific entrance for the student or work out another mutually agreeable alternative with her.
NOTE: For guidance in developing a plan for evaluating facilities access, subscribers to DisabilityDirectResponse.com should consult the Assessment Blueprint in the Compliance Library.
Pursuant to 34 C.F.R. Sec. 104.22(f) colleges and universities are responsible for implementing policies and procedures “to ensure that individuals with disabilities can obtain information regarding the existence and location of services, activities and facilities that are accessible to and usable by them. The term ‘activities’ encompasses all extracurricular offerings and events that take place at [colleges and universities], such as theatrical performances, concerts, lectures, athletic events, student organizational meetings, or any other activity, whether sponsored by a department, an approved student organization, or a residential house.”
Processes and procedures that merely focus on assisting sponsoring entities in fulfilling the responsibility to provide access as events are planned and organized are not sufficient. There also must be processes and procedures directed towards advising students, prospective audience members and participants regarding accessibility of the campus as well as specific events, activities, performances, etc… . Individuals should be provided information concerning accessible locations, activities and facilities. Additionally, notice should be provided concerning the offices and/or individuals who should be contacted regarding accommodation needs.
Procedures should be adopted to a) disseminate and make readily available accessibility information to students, as well as, members of the public seeking to attend events and activities; and b) ensure that sponsoring entities identify a contact person for providing accessibility information and responding to accommodation requests. It is not enough for institutions to publish such procedures. Institutions must actively enforce them to ensure that they are uniformly followed.
The fact that the institution has a ADA or Disability Coordinator who assumes responsibility for being a source for accessibility information and/or arranges for accommodations when an individual makes a specific request does not satisfy the institution’s compliance obligation. OCR has rule that the availability of one person does not satisfy the statutory obligation to put in place “a procedure ensuring that persons with disabilities can obtaining information regarding the existence and location of facilities that are accessible.”
(See Harvard University, No. 01-03-2053 (OCR 2006)).
There is a war being waged over the progression and evolution of technology as an effective means of accommodation for individuals with disabilities. While institutions, agencies and public entities are in love with technology – its ease of use, efficiency, cost saving and marketing reach; those same institutions, agencies and entities are significantly less enamored when the cost and effort of providing access to technology for individuals with disabilities is the subject. Consequently, the degree to which access to technology is being provided to individuals with disabilities does not equal the speed and extent to which technology is being embraced and advanced for the general population.
This conflict is being waged on so many fronts, at this point in time; it is becoming increasingly difficult to keep on top of all of the players and all the issues in controversy. The most recent entry into the fray is Jones v National Conference of Bar Examiners, No: 5:11-cv-174 (DDC Vermont). In Jones, the Department of Justice is continuing in its efforts to firmly solidify the Enyart v. National Conference of Bar Examiners, Inc. 630 F.3d 1153 (9th Cir. 2011), Bonnette v. District of Columbia Court of Appeals, No. 11-1053 (CKK), 2011 WL 2714896 (D.D.C. July 2011) and Elder v. National Conference of Bar Examiners, No. C11-0199 (N.D. Cal. 02/16/2011) rulings in which the courts have stated that the proper standard for determining appropriate accommodations for test takers is not a “reasonable/effective” standard; but rather, a “best ensure” standard.
In Elder, the primary controversy involved the desire of a blind test applicant to take the Multistate Bar Examination using adaptive technology (i.e., JAWS software); rather than, the live reader that the NCBE offered. The pertinent facts of the Elder case were as follows:
The court based its decision on the Department of Justice’s (DOJ) interpretation of the applicable provision of the statute, addressing the obligation of testing entities (42 U.S.C. Sec.12189). DOJ took the position that the obligation of testing entities is to “assure that …[t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability…the examination results accurately reflect the individual’s aptitude or achievement level …, rather than the individual’s impaired sensory, manual or speaking skills …” (28 C.F.R. Sec. 36.309(b)(1). The court ruled, in pertinent part, that the facts established that the use of a live reader “would not make the California bar accessible to [the applicant].”
When faced with a similar set of circumstances in Enyart involving the use of JAWS and Zoom Text, the court’s opinion on the matter is clearly reflected in the following statement: “ [A]ssistive technology is not frozen in time: as technology advances, testing accommodations should advance as well.” Additionally, in Bonnette, the court noted that “The fact that [the applicant] could take the [test] using a human reader does not mean that this accommodation would best ensure that her score reflected her achievement level rather than her visual impairment; [the applicant] is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that might be good enough for her to pass.”
The Jones case concerns an applicant request to use Zoom Text and Kurzweil 3000 and DOJ has submitted a Statement of Interest brief in the case that presses the agency’s interpretation of the statute and the obligation owed to test applicants to best ensure an accurate measure of achievement. Therefore, it appears that DOJ is gaining momentum in its effort to establish a compliance obligation that fully embraces the evolution in technology.
Clearly the question of what satisfies the obligation to provide “effective communications” for test takers has become a high stakes game. The developments described above, pose some interesting questions for postsecondary institutions regarding the extent to which the preferences and experiences of individuals with disabilities should be considered. For example, the recent suit against Florida State University, referenced in New and Noteworthy, involved some of the same access issues concerning the use of human readers. Further, it is important for postsecondary institutions to greatly expand the use of advanced and evolving technology in designing access and accommodation options and strategies.
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