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January 25, 1996

REGION IX Old Federal Building 90 United Nations Plaza, Room 239 San Francisco, California 94102

Dr. Robert Caret President San Jose State University One Washington Square San Jose, CA 95192-0001

(In reply, please refer to Docket Number 09-95-2206.)

Dear Dr. Caret:

On September 5, 1995, the U.S. Department of Education (Department), San Francisco Regional Office for Civil Rights (OCR), received a complaint against San Jose State University (SJSU or the University) alleging a violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). Specifically, the complainant alleged that: 1) the University failed to provide him access to the "Internet", and 2) the University failed to complete the "Self Evaluation Plan" required by Title II.

OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 C.F.R. Part 104, which prohibits discrimination on the basis of disability in programs and activities receiving Federal financial assistance from the U.S. Department of Education. SJSU receives such financial assistance and, therefore, is subject to the provisions of those statutes and regulations. OCR also has jurisdiction under Title II of the Americans with Disabilities Act of 1990 and its implementing regulation at 28 C.F.R. Part 35 to investigate claims of discrimination on the basis of disability that are filed against certain public entities, such as institutions of higher education. SJSU is a public entity.

Section 504 at 34 C.F.R. SS 104.4 (b)(1)(iii) and Title II at 28 C.F.R. SS 35.130 (b)(1)(iii), state, respectively, that recipients and 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. Title II recognizes the special importance of communication, which includes access information, in its implementing regulation at 28 C.F.R. SS 35.106 (a). The regulation requires a public entity, such as a state university, to take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others. Thus, the issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others. Title II also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities.

OCR notes that the "information superhighway" is fast becoming a fundamental tool in post-secondary research. Rather than implementing adaptive software, some institutions have attempted to utilize personal reader attendants as the exclusive or primary way of making this form of computer information accessible to persons with visual impairments. In most cases, this approach should be reconsidered. One of the most important aims in choosing the appropriate auxiliary aid has been to foster independence and autonomy in the person with a disability. When reasonably priced technology is available that will enable the visually impaired computer user to access the computer, including the World Wide Web, during approximately the same number of hours with the same spontaneous flexibility that is enjoyed by other nondisabled computer users, there are many reasons why the objectives of Title II will most effectively and less expensively be achieved by obtaining the appropriate software programs. (An institution's reliance on adaptive software to provide access includes a responsibility to provide the special training necessary to teach the computer user with the disability how to use such software programs.)

OCR has learned from experts in adaptive technology that those with serious visual impairments have encountered a stumblingblock in the form of the "graphic window." Whereas information stored in text-format (ascii-based) documents is retrievable through speech output devices, graphic images (e.g., those commonly used on the "home page" of the World Wide Web) are not yet subject to meaningful auditory translation by even the most sophisticated software programs (unless the image has been encoded with an ascii-description). Although there may be limited circumstances when a personal reader is needed to bridge the gap in accessibility provided by adaptive software programs, this gap is continually being narrowed and post-secondary institutions are expected to stay apprised of recent advances. OCR commends SJSU for the significant efforts its staff have made to remain knowledgeable about recent technological developments.

At any point in a complaint investigation prior to making a compliance determination, OCR may administratively close that investigation if OCR confirms that the issues have been resolved, or that there is a plan to resolve the matter. By an agreement signed on January 19,1996, SJSU agreed to implement a voluntary resolution plan. A copy of that plan is attached to this letter. The plan addresses the complainant's allegations, and its implementation will be monitored by OCR. OCR is, therefore, closing the above-referenced complaint. If SJSU fails to implement the written agreement in the voluntary resolution plan, OCR may reopen the case for further investigation and findings.

I want to express my appreciation for the courtesy and cooperation extended by your staff to the OCR team members in working to achieve the voluntary resolution of this case.

Under the Freedom of Information Act, it may be necessary to release this document and related records on request. If OCR receives such a request, it will seek to protect, to the extent provided by law, personal information that, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.

If you have any questions regarding this matter, please contact Kathleen Schmitt at (415) 556-6993.


Patricia G. Shelton, Team Leader Compliance Division II



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