Equal Access to Learning (OCR & DOJ)

The Office for Civil Rights of the U.S. Department of Education (ED) and the Civil Rights Division of the U.S. Department of Justice (DOJ) recently released two documents that provide important information regarding the use of emerging technology in educational settings:

  1. On June 29, 2010, ED and DOJ issued a joint Dear Colleague Letter to college and university presidents outlining the legal requirements concerning the use of electronic book readers and other emerging technology in institutions of higher education.
  2. One year later, on May 26, 2011, as a follow-up to this Dear Colleague Letter, ED issued a Frequently Asked Questions document regarding the legal obligations of schools (both elementary/secondary and post-secondary) under Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) in the use of emerging technology.

Together, these two documents provide helpful guidance for schools to consider in ensuring that students with disabilities enjoy equal access to educational benefits and opportunities when information and resources are provided through the use of technology.

June 29, 2010 Joint Dear Colleague Letter (DCL)

The 2010 DCL was written in response to a complaint regarding the use of an electronic book reader (the Kindle DX) that was not accessible to students with visual disabilities. The DCL stated that requiring the use of an emerging technology in the classroom that is inaccessible to students with disabilities constitutes discrimination under the ADA and under Section 504 unless these students are provided with accommodations or modifications that enable them to receive all the educational benefits afforded by the technology in an equally effective and equally integrated manner. According to the DCL, students with disabilities must be able to acquire the same information, engage in the same interactions, and enjoy the same services as students without disabilities with substantially equivalent ease of use.

The June 29, 2010 DCL can be found at the following link:
Opens new windowhttp://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html

A Brief Question & Answer document regarding the 2010 DCL can be found at the following link:
Opens new windowhttp://www2.ed.gov/about/offices/list/ocr/docs/504-qa-20100629.html

May 26, 2011 Frequently Asked Questions (FAQ) Document Regarding the DCL

On May 26, 2011, ED released a follow-up FAQ document, which reiterated the long-standing legal principles articulated in the DCL and explained that the DCL provided a functional definition of accessibility, according to which students with disabilities must be afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as students without disabilities. The FAQ explained that although the opportunity of a student with a disability might not result in identical ease of use compared to that of students without disabilities, it must result in substantially equivalent ease of use—i.e., it must ensure equal access to the educational benefits and opportunities afforded by the technology and equal treatment in the use of such technology.

The FAQ also clarified that the principles articulated in the earlier DCL apply in other contexts as well—namely: (1) to students with print disabilities other than visual impairments, including students with learning disabilities; (2) to elementary and secondary schools, in addition to post-secondary institutions; (3) to all faculty and staff, not merely to the Section 504 or ADA coordinator; and (4) to forms of emerging technology beyond electronic book readers as well as to online programs, including applications for admission, class assignments, and housing, and to pilot programs of short duration.

The FAQ further pointed out that the use of emerging technology in schools should always include planning for accessibility from the outset, even if there are no students with visual impairments at the school. In addition, the FAQ advised schools—in deciding whether to create or acquire emerging technology—to include accessibility analyses as part of their acquisition procedures. Toward this end, the FAQ proposed a series of questions for schools to consider in determining whether emerging technology is accessible and in reviewing the adequacy of particular accommodations or modifications.

Finally, the FAQ noted that traditional alternative media such as books on tape may still be appropriate for students under certain circumstances; however, if the school offers alternative media as an accommodation to an emerging technology, the alternative media must provide access to the same benefits as the technology in an equally effective and equally integrated manner. According to the FAQ, decisions regarding the provision of FAPE to students in elementary and secondary schools and academic adjustments and auxiliary aids to students at the post-secondary level must be individualized.

The May 26, 2011 FAQ document can be found at the following link:
Opens new windowhttp://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html

A brief cover letter to elementary and secondary schools, accompanying the 2011 FAQ document, can be found at the following link:
Opens new windowhttp://www2.ed.gov/about/offices/list/ocr/letters/colleague-201105-ese.pdf

A brief cover letter to institutions of higher education, accompanying the 2011 FAQ document, can be found at the following link:
Opens new windowhttp://www2.ed.gov/about/offices/list/ocr/letters/colleague-201105-pse.pdf

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Last Updated: 10/28/2013

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