IV. Auxiliary Aids
Section 504's regulation concerning the provision of auxiliary aids created the most controversy during the promulgation process. It provides:
A recipient . . . shall take such steps as are necessary to insure that no handicapped student is denied the benefits of, excluded from participation, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual or speaking skills.
A number colleges and universities objected to this regulation when first proposed because the regulations also state that disabled students have a right to program access with no fee charges greater than charged regular students. Despite HEW's conclusion that the auxiliary aid requirement would not impose substantial costs on federal assistance recipients,several universities and colleges asserted that the financial burden of providing auxiliary aids should be borne only by state vocational rehabilitation agencies, the Veterans Administration and private charities. Others proposed that universities and colleges be required only to provide permanent equipment that could be used by groups of students, but that readers and interpreters considered personal in nature should not be provided by the institution. Several others suggested that recipients provide a referral service to refer students to existing financial sources for auxiliary aids and maintain lists of qualified readers, interpreters and attendants.
In response to these comments HEW modified the auxiliary aids regulation so that universities can meet the requirements of § 504 by referring students to state vocational rehabilitation agencies and private charities as a first step in obtaining auxiliary aids. The regulation nevertheless maintains the requirement that "[w]here no such existing resources supply auxiliary aids, the proposed regulation obligates the recipient to provide the needed auxiliary aid." HEW predicted that the bulk of the cost of auxiliary aids would be paid by state or private agencies, and stated that the regulation allowed universities significant flexibility in choosing the methods by which they would provide aids when students were unable to obtain them elsewhere.
The regulations withstood a challenge regarding whether they were a reasonable interpretation of the statute in U.S. v. Board of Trustees for the Univ. of Alabama. The court there noted that the Supreme Court stated in Davis that the "line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons will not always be clear. . . . Identification of those instances where refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW."It also noted HEW reported on the rulemaking process and the final regulations to a Congressional oversight committee soon after they became final. And, in 1978 Congress amended the Rehabilitation Act of 1973 to require state vocational rehabilitation centers to provide technical assistance, including interpreters, to universities to assist them in complying with the Rehabilitation Act, and "particularly the requirements of" § 504.
After reviewing this history the court in University of Alabama held:
In light of Congress' awareness of HEW's decision that universities should be required to provide interpreters and other auxiliary aids for students, the 1978 amendment requiring state vocational rehabilitation centers to assist universities in meeting this requirement signals congressional approval of the policy choice made by HEW. We find, therefore, the legislative history of section 504, along with the Supreme Court interpretations of section 504 in Davis and Alexander, indicate that HEW's auxiliary aids regulation is based on a permissible construction of the statute.
There have not been any formal challenges to the validity of the § 504 regulations since the University of Alabama ruling, and OCR's administrative rulings show that -- as promised when the regulations were promulgated -- schools have been given some flexibility in how auxiliary aids are provided so long as students can access materials in some manner. OCR has also held that because of the costs involved in providing auxiliary aids, students have a responsibility to follow university established procedures for obtaining them and to comply with attendance policies in order to continue receiving services.
A. Requirement of Multiple Mediums of Text
OCR requires that schools be prepared to deliver printed materials used in their educational programs in a reasonable and timely manner in all of the following mediums: auditory, tactile (Braille), and enlarged print. Although there may be circumstances when a student's preferred medium is not, on balance, the medium selected by the school to provide the student appropriate aids and services, the institution may not categorically refuse to provide accommodation through a particular medium (e.g., Braille). Rather, the school must be prepared to timely offer access to its printed materials in all three mediums, with the particular medium used for a student's request dependent on a case-by-case analysis. If a student with a visual impairment prefers -- and the school is willing to provide -- access through "E-Text" (electronic text in a digital format read by a computer), that method may be used in lieu of access through another medium.
In determining whether to honor a student's preferred medium, the importance and consequences of student comprehension is a critical factor. Thus, for example, there is a strong presumption that examinations will be provided in accordance with a student's request, but more latitude will be given with regard to a student events/activities calendar.
Auditory access may be accomplished through a variety of methods such as tapes, personal readers, or synthesized speech so long as the method is timely and effective (e.g., voice quality, correct pronunciation, convenience, etc.). At least one court has held that no § 504 violation occurs where a student experiencing delays in receiving taped texts has other options available. In Finger, the student alleged that he was forced to withdraw from school because of delays in the provision of recorded texts.
The court, however, found that the school had satisfied its duty to provide him with auxiliary aids. It noted that the school completed taping in an average of four to six weeks -- although occasionally the delays were longer -- after Finger brought the reading materials to the disabled student services office. Finger also had the option to pick up tapes in installments so that he did not need to wait for each book to be recorded in full, or he could have arranged for taped texts from either Recordings for the Blind or the Milwaukee Public Library. Finally, a library on campus housed a Kurzweil reading machine which Finger had been trained to use. The court found that in these ways the school had made text available for Finger's use in his courses.
With the increased use of computers text need not take a printed form, and OCR has held that schools are also responsible for assuring that students with disabilities have the same access to computer capabilities available to other students. In that case, a student with a visual impairment alleged that the university had wrongfully failed to enable him to use the library's computers and CD- ROM system. The student requested that the university library upgrade its CD-ROM system so that he could independently access the information from its Readers Guide program, but it refused. OCR found that the student and other visually impaired students at the university could access the Readers Guide system by utilizing reference librarians as readers. It held that this policy was sufficient to ensure access to the system and was in compliance with § 504 and 34 C.F.R. § 104.44(d).
OCR also found, however, that the university had violated § 504 when it refused the student's request to upgrade the memory of two Macintosh computers in the library so that students with visual impairments could use them utilizing a screen reading program called Outspoken. Macintoshes in the university's computer centers were equipped with the Outspoken program, but university policy limited access to these computers to students enrolled in computer classes who had reserved time in the computer lab. Macintoshes located in the library and student union for general use by the university community were not equipped with Outspoken, and the student was unable to access them independently because of his visual impairment. OCR held that because the student was denied access to computer capabilities available to other students, the school had denied him the benefit of its Macintosh computers on the basis of handicap and, therefore, had failed to comply with 34 C.F.R. §§ 104.4(a) and (b)(1), 104.43(a) and 104.44(d)(1).
These decisions recognize that the written word is at the heart of much of higher education, and require colleges and universities to provide all students with access to it. They also recognize, however, that providing that access can be done in many ways, and that schools cannot always furnish the text in the precise medium requested by the student. As long as a school supplies the student with the text in some accessible format it should be in compliance with § 504 and the ADA.
The spoken word is, of course, also a vital element of higher education, and OCR has issued frequent rulings regarding the provision of interpreter services. In those rulings, it has made clear that schools are required to provide interpreters at no cost to the student. It has also held, however, that they need not do so where -- because of difficulties in recruiting interpreters -- alternative means such as note-takers and extra assistance from a professor are provided, or where a student fails to comply with an attendance policy.
1. Requirement to Provide Interpreters
The requirement for the provision of interpreters extends to class-related activities which take place off campus and even to study abroad programs, and it is the school's obligation to provide such interpreters at no cost to the student if they are not available from outside sources. In Naropa Inst. (CO) OCR found that a school violated § 504 when it required a student to sign a document stating that the provision of an interpreter for 12 credits of course work was a financial hardship to the school and that "unless we can find other sources of income . . . the [school] will not be able to continue this level of service." The school later sent a letter to the student stating that it would provide interpretive services for a full load of classes (12 credits), but only two of the classes could be three-hour classes. This limitation was imposed because interpreters were unwilling to sign for more than two hours, and, thus, two interpreters were required for three-hour classes. The letter went on to state:
Without other sources of funding we will not be able to extend the same level of services next year. However, we will need your cooperation in applying for grants and in working with Voc Rehab to accomplish this.
OCR found that the school's position violated § 504 because students with disabilities may not be required to bear the cost of such auxiliary aids as are necessary to allow them to participate in a federal funds recipient's educational programs or activities.
OCR also found that Naropa had violated § 504 when it refused to provide the student with an interpreter for a field trip for her Native American seminar. The field trip was a voluntary activity, but teaching staff had told students that the trip was closely related to the subject matter of the seminar and would be educationally useful. OCR found that despite a clear request for an interpreter, the student did not receive a clear response from the school regarding whether it would provide one. There were conflicting statements as to whether the dean explicitly denied an interpreter or simply stated that she was "not sure" whether an interpreter could be provided. In any event, at no time did the school either agree to provide an interpreter or suggest some alternative auxiliary aid. Instead, the dean and the student discussed the possibility of the student's paying part of the cost for her field trip interpreter. The field trip was eventually canceled due to inclement weather, but in a meeting held after the cancellation the dean advised the student that if the field trip occurred later she and the student would "see if we could work out some sort of compromise regarding the cost." OCR found that the failure to provide an interpreter without cost to the student violated § 504.
In College of St. Scholastica (MN)OCR held that the need to provide an interpreter applied even to study abroad programs. In St. Scholastica, a student, who had been receiving interpreter service from the time of her enrollment at the college in the fall of 1988, applied to the school's Ireland Study Abroad Program (ISAP) for the 1992 spring quarter. The director of the ISAP met with the student and informed her that the college could not provide interpreter services for the program due to the cost of the services. The director informed the student, however, that she would seek out external sources that could possibly provide funds to subsidize interpreter services.
At the same meeting, the student indicated that she would speak with the director of the college's academic support services program about portable FM amplification devices to see whether they could be used effectively as an auxiliary aid. The student told OCR that she did not insist on receiving interpreter services from the college out of fear that her ISAP application would be rejected.
After her ISAP application was accepted, the student and the college continued to examine whether the FM system would work and whether outside funding sources for interpreter services could be located. The student eventually told the college that the FM system was not workable because she could only hear the miked speaker when it was used in a classroom setting, and similar problems would occur during mandatory ISAP activities such as attendance at plays and field trips. In addition, the student -- who relied heavily on lip reading -- told the college that the dialects and accents of the Irish would make it difficult for her to read lips. Although the college admitted that lip reading would be difficult for the student, it did not take any steps to determine whether the FM system would compensate for the student's inability to read the lips of the native speakers or consider whether other auxiliary aids could be provided to allow her to participate effectively. Instead, the college, after conducting a careful analysis, informed the student that it would not provide interpreter services due to the high cost.
The evidence gathered by OCR showed that the college had determined that the state vocational rehabilitation agency would provide $2,000 toward the interpreter services, but made little effort to find additional outside funding. Specifically, the college never explored whether it could allocate funds for interpreter services from a scholarship fund that was earmarked for students with disabilities; an associate vice-president for institutional advancement (who had been asked to help find funds for the student's interpreter services) made no inquiries with outside sources to ascertain whether such funding could be obtained; and university officials either failed to contact or never submitted funding applications to three private charitable clubs which had been identified to them as potential funding sources. Officials at the college told OCR that their estimates of the cost for providing interpreter services had varied from $3,705 to approximately $6,000 - $7,000. They further stated that, even if they would have determined that the FM system was an inadequate auxiliary aid, the college would not have provided interpreter services due to the cost. The student withdrew from the ISAP after she learned of the school's failure to obtain outside funding, and was told that it would not provide the requested interpreter services.
OCR found that the college had impermissibly considered the cost of requested interpreter services in determining which auxiliary aids were available for the student's participation in ISAP. It determined that the college had violated 34 C.F.R. § 104.44(b)(1) and (2) by failing to take the necessary steps to insure that the student was not denied the benefits or excluded from participation in ISAP due to the absence of effective educational auxiliary aids and by making the provision of interpreter services conditional upon the availability of funding.
The Naropa and St. Scholastica decisions illustrate how seriously OCR takes the requirement to provide interpreters. They also show, however, that schools must be imaginative in finding the money necessary to fulfill this obligation. Both schools at some point identified grant money as a possible funding source, but neither followed through with actual requests. If they had, they may have ended up with satisfied students, and without the headache of an OCR complaint investigation.
2. Use of Other Accommodations When Interpreters Unavailable
Even in such investigations, OCR has shown some flexibility on the interpreter requirement where schools have made a good faith effort to provide one. For example, in Wentworth Inst. of Technology (MA) OCR held that a school had not violated § 504 even though no interpreter was provided due to unsuccessful recruitment efforts. OCR found that the school had made efforts to recruit interpreters through other colleges and universities and the Massachusetts Commission for the Deaf and Hard of Hearing. When these were not successful, the school arranged for two classmates to be volunteer note-takers and for a professor to provide extra assistance. OCR found that these efforts insured effective class participation and were sufficient to meet § 504's requirements.
A similar decision was reached in University of California, Davis. Due to a shortage of sign language interpreters, the school had developed alternatives to interpretation for the hearing impaired which included real-time stenocaptioning; taped lectures and transcription by a stenocaptioner at a later date; taped lectures and interpretation at a later date; use of an oral interpreter; or two note-takers in addition to the use of a Communication Assistant -- a trained note- taker not enrolled in the class. Because the school had legitimate nondiscriminatory reasons for its failure to hire adequate sign language interpreters to cover all the classroom needs of hearing- impaired students and offered an array of "second-best" alternatives when signers were unavailable, OCR found that it was not in violation of § 504.
3. Student's Responsibility to Comply With Attendance Policy
OCR also found in University of California, Davis that the school was not in violation of § 504 when it adopted policies that resulted in the suspension of interpreter services for all classes where a hearing-impaired student had two no-shows or late cancellations. OCR's investigation showed that the school had to pay for interpreters when a student either failed to show up at class or to provide 48 hours advance notice of a cancellation. According to OCR, the suspension of services until the student met with a counselor was a reasonable administrative approach for reducing unnecessary interpreter costs. OCR did, however, find that there must be an exception for "good cause" situations when the student could not reasonably be expected to know in advance that he or she would be missing class so as to provide timely notice of a cancellation. OCR also held that while the school's policy of suspending interpreter services when a student missed a mandatory meeting at the beginning of each quarter was valid there must be an alternative (e.g., make-up meeting) for "good cause", such as where students timely inform the school that they will miss the mandatory meeting.
The Davis and Wentworth decisions indicate OCR s awareness of the difficulty of finding interpreters and the expense to the school when a student fails to utilize one that has been provided. Communicating these same problems to students who desire those services, and developing policies like those approved by OCR in these cases may save schools both money and the headache of dealing with frustrated students.
C. Schools May Not Place the Burden of Identifying Auxiliary Aids on Students
Just as schools may not place the burden of paying for interpreter services on students, OCR has repeatedly held that they also may not place the burden of locating particular auxiliary aids on the student. For example, in Jefferson Community College (KY) OCR held that the school had discriminated against a deaf student where it required that he find notetakers for his classes. The student, who was an inmate in a Kentucky prison, requested an aid in the form of a typist to take class notes on a word processor. The college's prison coordinator responded in a letter stating that the college would provide him with "note-taking aids" if he could find a student who would take class notes for him. The "note-taking aids" consisted of a special notebook in which a hearing student writes classroom notes, and carbon copies are automatically made for a hearing-impaired student. The prison coordinator also advised the student in the letter that "until you learn to sign or read lips, I'm afraid you have very few options."
OCR found that while § 504 does not require a college to provide a specific auxiliary aid requested by a student,
[requiring [the student] to locate students to take notes for him transfers the responsibility for providing auxiliary aids from the recipient [of federal funds] to the [student]. Accordingly, offering to provide [the student] with notetakers does not constitute compliance with the Section 504 regulation; providing notepaper is not an effective method of making orally provided information available to [the student] therefore, the college is in noncompliance with the Section 504 regulation at 34 C.F.R. § 104.44(d).
A similar decision was reached in a more traditional college setting in Highline Community College (WA). The student there had been diagnosed as having a learning disability, and requested notetaking services. OCR found that once the need for auxiliary aids had been documented, the college required students to complete two forms. The first, entitled "Student Responsibilities for Special Accommodations", outlined what the student must do to receive auxiliary aids. OCR found that this form made handicapped students responsible for taking their own class notes and/or identifying a notetaker within the class. The other form, entitled "To the Class Instructor" outlined what auxiliary aids the student was entitled to receive. The college's procedures called for the student to arrange with each instructor the specifics regarding the auxiliary aids to be provided and to seek the assistance of the disabled student services coordinator if problems arose in receiving services.
Because the College's procedures regarding notetaking services placed the burden of identifying notetakers on students, rather than on instructors, and because problems have arisen due to instructors not knowing what to do when they receive a student request for auxiliary aids, OCR concludes that the College is failing to insure that handicapped students are not denied the benefits of the College's education program due to the absence of necessary auxiliary aids. Such failure violated 34 C.F.R. 104.44(d)(1) and has the effect of discriminating against students, on the basis of handicap, in violation of 34 C.F.R. 104.4(b)(4)(i).
Given these decisions, it would be wise for colleges and universities to establish programs for providing auxiliary aids such as notetakers. This can be done by advertising for volunteers or by hiring students to fill this role. They can then be matched with students requesting the service.
D. Schools May Require Students to Follow Procedures to Obtain Auxiliary Aids
Once such a program is in place, schools can require that students follow established procedures set up for the provision of auxiliary aids. For example, in New York Univ. OCR found that the school had not violated § 504 where it notified a student how to obtain auxiliary aids and he had failed to use the proper procedures to obtain them.
The coordinator of the university's center for students with disabilities met with the student and informed him of the university's procedures to obtain extended test time, taped texts and notetakers. The student followed the procedures for gaining extended test time, but failed to do so with regard to taped texts and notetakers. OCR found that the center's coordinator had explained to the student that taped texts were obtained from Reading for the Blind ("RFB") and that the student would have to complete an RFB application on which he would identify the taped texts he required. Despite repeated reminders from the coordinator, the student did not submit the RFB application.
The university provided several methods for students to obtain a notetaker. Students could ask classmates to take notes for them, ask the professor to make an announcement in class for a notetaker, or if students were incapable in doing so themselves, the coordinator would make the request. In the event a notetaker was unavailable, a student could photocopy a classmate's notes. If a notetaker's absence became a chronic problem, the coordinator would intervene if requested.
When the student subsequently had problems with a notetaker who no longer wished to perform the service and was unable to find a replacement notetaker, he informed the coordinator of the problem. The coordinator suggested he speak to the course professor. The course professor was also unable to obtain a notetaker, but the student never indicated this to the coordinator.
OCR found that there was no violation of § 504 because "academic adjustments and auxiliary aids were provided to the student when requested. The services that the student believed were necessary, but did not receive, resulted from his failure to follow the procedures to obtain these services, and [was] not due to the university's failure to provide the services."
E. Fees for Auxiliary Aids
When services are provided, schools may not charge a fee for them unless they are special services not offered to non-disabled students. The bar on charging fees for auxiliary aids extends to students with learning disabilities as well as those handicapped by a physical, sensory, or communicative disorders, and schools may not charge learning disabled students for aids offered to other disabled students for free. Where a school provides special a special program for learning disabled students that is outside the regular curriculum offered to other students, however, it may charge a special fee.
In Arizona, OCR found that the school had violated § 504 because it treated students with learning disabilities differently than those with other handicapping conditions. Students with learning disabilities could only obtain academic support services through the Strategic Alternative Learning Techniques ("SALT") Program, a fee-for-service program. Students with physical, sensory, or communicative disorders, however, received free academic support through the university's Center for Disability Related Resources ("CeDRR"). Learning disabled students were not allowed to receive academic support services from CeDRR. In addition, OCR found that learning disabled students were required to submit current diagnostic test results, which could be costly to obtain, as a prerequisite for receiving academic support services through the SALT program. Students with other disabilities were subjected to less stringent documentation requirements to use the CeDRR. OCR concluded that the university's practices of charging a fee for SALT Program services and of requiring potentially costly current diagnostic testing as a prerequisite for providing services subjected learning disabled students to disparate treatment on the basis of handicap in violation of 34 C.F.R. § 104.43(a).
In Halasz, however, the court held that the university's charges for its First Year Option program ("FYO") for learning disabled students who did not have the academic credentials necessary for admission to degree programs did not violate § 504. It noted that the FYO program was open to only handicapped students like the plaintiff.
Clearly, since the benefits of the FYO program are available only to handicapped individuals, Plaintiff is not being excluded from participation in them or being denied them solely because of his handicap. Moreover, once the university decides to offer a program, like the FYO, which is not a reasonable accommodation to the handicapped, but a separate program for disabled individuals, section 504 cannot reasonably be read to require that the university cannot charge for this program.
Given the Arizona and Halasz decisions, schools which provide services to one set of disabled students without cost must be careful to do the same for all other students with disabilities. A college or university may charge fees, however, where it provides a special program that is only available to handicapped students
F. Tutors and Specialists
The requirement that schools provide auxiliary aids to students with disabilities does not extend to personal services such as tutors, counselors, and learning disabilities specialists. OCR has held, however, that a university may not discriminate against students on the basis of disability in the provision of any such services, including tutoring services.