UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
January 15, 1992
Reverend Thomas P. O'Malley, S.J.
Loyola Marymount Universtty (LMU)
Loyola Boulevard at West 80th Street
Los Angeles, California 90045
(In reply, please refer to Docket Number 09-91-2157.)
Dear Reverend O'Malley:
The Office for Civil Rights (OCR), U.S. Department of Education (Department),
has completed its investigation of the complaint Mr. (complainant)
filed against Loyola Marymount University (LMU) on behalf of his daughter, on
September 3, 1991. He alleges that LMU refuses to purchase equipment or
provide requisite services to academically assist his daughter, who is
totally visually impaired.
OCR reviewed documents submitted by both the complainant and LMU. OCR
interviewed: 1) the complainant and his daughter; 2) the LMU Disabled Student
Services Coordinator and the Director, Learning Resource Center; and 3) the
District Administrator, California Department of Rehabilitation. After
assessing the information obtained, OCR concludes that the preponderance of
the evidence shows that LMU was in violation of 34 C.F.R. section 104.44(d).
However, LMU has provided OCR with commitments which, when fully implemented,
will bring it into compliance, as explained more fully later in this letter.
This Letter of Findings (LOF) represents a summary of the facts considered
and the compliance determination(s) made regarding the allegation filed with
OCR by the complainant.
This investigation was conducted under the jurisdiction of Section 504 of the
Rehabilitation Act of 1973 and the Department implementing Regulation found
at 34 C.F.R. Part 104. Section 504 and the Regulation prohibit discrimination
against handicapped persons in programs and activities operated by recipients
of federal financial assistance through the Department. LMU is such a
recipient. The Regulation, at section 1 04.43(c) states: "A recipient to
which this subpart applies may not, on the basis of handicap, exclude any
qualified handicapped student from any course, course of study, or other part
of its education program or activity." Section 104.44(d)(1) states: "A
recipient to which this subpart applies shall take such steps as are
necessary to ensure that no handicapped student is denied the benefits of,
excluded from participation in, 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."
Under section 104.3a)(1), a handicapped person is one who has a physical or
mental impairment which substantially limits one or more major life
activities, has a record of such impairment, or is regarded as having such an
impairment. With respect to postsecondary education, a qualified handicapped
person is defined at section 1 04.3(k) (3), as a handicapped person "who
meets the academic and technical standards requisite to admission or
participation in the recipient's program or activity."
SUMMARY OF FINDINGS AND CONCLUSIONS
Records established that the complainant's daughter is totally visually
impaired. OCR concluded that she is a handicapped person under section 1
04.3a) (1). Also, she met the requirements for admission to LMU; therefore,
she meets the definition of a qualified handicapped person under the
The complainant's daughter (hereinafter referred to as M) is an 18 year old
freshman at LMU. Prior to her enrollment, she requested LMU to provide her
with: 1) several types of equipment to assist her in her classes; 2)
additional time to take the examinations; and 3) note taking services. The
Disabled Student Services Coordinator sent a form to her professors to notify
them of her request. LMU did not purchase any equipment for her; therefore,
her father purchased the following equipment: 1) Braille and Speak "laptop"
computer; 2) personal computer with speech synthesizer; and 3) braille
scanner and printer.
On Ju!y 10, 1991, M wrote a letter to the Director, Learning Resource Center
(LRC) to request the following accommodations:
1. Double the number of tutor hours that are available to nonhandicapped
2. Accommodations in testing to include providing test materials in a medium
which permits self-checking of answers and double the time given to
3. Permission to tape record lectures to assist in note taking.
In a meeting with the complainant and M on July 17, 1991, the LRC Director
and the Disabled Student Services Coordinator told M: 1) to ask a classmate
for assistance in transcribing the notes to Braille, and 2) to utilize the
campus tutorial services.
On July 17, 1991, M went to the campus bookstore to purchase textbooks but
they were not in Braille. She then called "Recordings for the Blind" to
inquire about having the textbooks transcribed on tapes. The receptionist
told her that it would take one month to record 80 pages of material on tape.
She needed twelve books on tape (ten textbooks, two study guides) for all her
classes; she was able to purchase one of the textbooks on tape.
By letter of July 19, 1991, the complainant asked LMU's President to review
the complainant's request for the purchase of the equipment that would assist
his daughter in her studies. By letter of July 22, 1991, the LRC Director
responded to the complainant's letter, stating that he would send a letter to
the Academic Vice President indicating the accommodations that LMU can
provide her during the fall semester.
M was concerned with essentially three aspects of college classroom education
accessibility: note-taking, test-taking, and textbooks.
The Coordinator of the Disabled Student Services Office sent a notice to M's
professors at the beginning of the semester to inform them that: 1) she would
be in their classes; 2) she is totally visually impaired; and 3) she would
need assistance in two ways: a) a fellow classmate to provide her with notes
taken in class, and b) additional time for test taking. LMU also gave her
permission to tape record class lectures and discussions; however, it would
not supply the casseKe tapes or tape-recording machine. LMU did not have a
systematic method for informing M during lectures about information on the
blackboard or other visual aids.
M uses her own equipment (Braille and Speak 'laptop' computer) to take notes
in class. However, she needs assistance in note-taking with respect to
information written on the blackboard during lectures. Her primary complaint
is that the information on the blackboard is not provided in Braille, but
given to her in written form by the notetaker. She does not have any idea
what is on the blackboard until after class when the reader reads the notes
to her. This means that much of the substantive content of the lecture may be
out of context, and difficult to reconstruct later
OCR finds that LMU has not met its responsibility under Section 504 to offer
M at least one of the many alternate auxiliary aids adequate for note-taking
purposes. LMU's willingness to provide her written notes that are not in a
directly usable form to her, but which require her to schedule an appointment
with a reader each time she wishes to review the notes, does not meet LMU's
obligations under Section 504, as set out in 34 C.F.R. 104.44(d).
LMU is required to provide notes of class lectures and discussions by
providing: 1) equipment with which she can take her own notes, or (2) notes
taken by a classmate and provided to her in a directly usable form, Braille
(or if more appropriate, Neimtz Code Braille or other specialized tactile
language for the visually impaired). Solely providing an audio-cassette
recording of lectures will not meet LMU's responsibilities under Section 504
with regards to notetaking because the primary purpose of notetaking is to
reduce the time required for review of information. It should be noted that
regardless of which, auxiliary aids LMU makes available to its visually
impaired students, it may not prohibit a handicapped student from using his
or her own auxiliary aid provided that such aid does not entail a fundamental
deviation from the classroom or course content.
Finally, LMU must insure that M is provided access to information written on
the blackboard during class lectures. This access may, at a minimum, be
accomplished by having her professors briefly describe the information they
are writing on the blackboard and providing her with a copy of the written
information on the blackboard in a readable form, Braille (or if more
appropriate, Neimtz Code Braille or other specialized tactile language to the
LMU provided M additional time as needed during examinations. She takes two
types of tests. When the test consists of a small number of essay questions,
the professor reads them to her and she is permitted to return to her room to
use her personal computer to compose her answers. She returns to read her
answers to the professor. When the test requires a series of brief answers,
the professor reads the questions to her, and she responds verbally. The
professor writes down her answers. Sometimes, the professor provides her with
a written copy of the questions and her answers; however, she has never
received a copy of the examination questions, or her answers, that she can
By letter dated September 13, 1991, LMU informed M that arrangements would be
made with the LRC to tape record the examination questions and her answers.
However, this arrangement was not made.
OCR has determined that, when there are alternative methods for administering
examinations to visually impaired students, requiring the visually impaired
student to verbally respond in a one-on-one setting directly to the professor
who will be grading the examination does not meet Section 504 standards. In
addition to the stress inherent in this setting, such a method of examination
does not offer the visually impaired student the same opportunity available
to nonhandicapped students for self rsview of answers prior to submission and
for selecting the order in which questions wili be answered
In this case, LMU must provide M a copy of the examination on tape or in
Braille (or if more appropriate, Neimtz Code Braille or other specialized
tactile language for the visually impaired) that will enable her to take her
examination under conditions that provide an equivalent opportunity to
demonstrate her mastery of the subject as is given to nonhandicapped
students. With regard to her answers, the presumption is that LMU will
provide her with the auxiliary aids she needs to respond in Braille (or if
more appropriate, Neimtz Code Braille or other specialized tactile language
for the visually impaired). LMU must also provide her with a record of the
examination and her answers to the same degree provided to nonhandicapped
At the time of the OCR investigation, none of the computers that LMU made
available to nonhandicapped students had been equipped to be accessible to a
visually impaired student. LMU has a responsibility under Section 504, as set
out in 34 C.F.R. 104.44(d) to make its computer services accessible to the
visually impaired student upon request. Due to the relatively small size of
student enrollment at LMU and the present number of its visually impaired
student population (only the visually impaired student), modifying one
computer with equipment that provides an audio-translation is sufficient,
provided that the modified computer is available the same hours and under the
same conditions as the computers used by nonhandicapped students.
Course Materials (Textbooks. Handouts)
In June, 1991, M registered for classes and determined that Recordings for
the Blind had only one of the ten textbooks she needed on audiotape cassette
(and none were available in Braille). Because of this: 1) she dropped Math
111 (Analysis 1)* in favor of Communications 100, which used a textbook that
was available from Recordings for the Blind); and 2) she transferred in
History 101, Western Traditions, from one class to another (same course,
different professor using a different textbook). As a result of the changes
to her original schedule of classes, she was able to obtain on audio-cassette
a total of three textbooks instead of one.
* It should be noted that Math is the type of subject matter
that lends itself strongly to presentation in a tactile
medium rather than an auditory medium, so that even if
Recordings for the Blind had an audio-cassette of her
desired math textbook, it is not clear that an
audio-cassette would meet the standards of accessibility
required by Section 504.
With respect to the textbooks for her other classes, including an Economics
and an English class, she used her own braille scanner and printer to provide
braille translations of the relevant portions of the books. She relied on the
readers for the two textbooks she used in Theology 115.
Handouts used in lectures by M's professors in some instances senve as a
basis for class discussion; however, she was unable to follow or participate
in class discussion because the handouts are not in a readable form for her
LMU has not met its responsibility to make its textbooks and handouts
accessible to the visually impaired student. Although readers may supplement
audio-cassette and/or Braille versions of textbooks, because accessibiiity
through readers is much more time consuming and provides significant less
flexibility to the student, it does not meet the purposes of 34 C.F.R. 104.43
and 104.44 for LMU to rely exclusively on readers to make accessible a full
semester's worth of textbooks (in this case ten textbooks and two guides). To
date, she has kept up in her classes only because she has purchased a braille
scanner and printer, which provide translations from written materials to
LMU is required to provide, on a timely basis, a system for obtaining
translation of written materials that the visually impaired student is
required to read for her courses. LMU may employ whatever system it finds
most effective and economical for providing course materials (such as
textbooks and handouts) either on audio-cassette or in Braille (or if
appropriate, Neimtz Code Braille or other specialized tactile language for
the visually impaired), provided that these materials are made available to
her on a timely basis. The presumption is that "on a timely basis" means that
actual portions of the reading in the text assigned to the class will be made
accessible to her, and that handouts will be made accessible to her when they
are distributed to her classmates.
Since the courses taken by M at LMU have not yet required that information be
communicated via a specialized language for the blind, such as Neimtz Code
Braille, OCR will not be making an explicit finding in this case as to
whether LMU has met its responsibilities under Section 504 with regard to
making its mathematics courses accessible. However, OCR notes that 34 C.F.R
104.43(c) provides that "A recipient to which this subpart applies may not,
on the basis of handicap, exclude any qualified handicapped student from any
course, course of study, or other part of its education program or activity."
Appendix A to Part 104 of the Department Regulation implementing Section 504
specifically states that 34 C.F.R 104.43(c) "prohibits a recipient from
excluding qualified handicapped students from any course, course of study, or
other part of its education program or activity." The preceding paragraph is
designed to eliminate the practice of excluding handicapped persons from
specific courses and from areas of concentration because of factors
pertaining to the handicap of an otherwise qualified student.
Failure to translate specialized material, such as mathematical symbols and
equations, into a language specifically created to communicate such material
to the visually impaired, has the result of strongly deterring visually
impaired students from taking courses, or concentrating in areas, that
involve higher mathematics. In this case, M is already fluent in Neimtz Code
Braille and has demonstrated ability and interest in pursuing a specific
major that has a significant portion of required subjects that are only
meaningful if translated into Neimtz Code Braille. OCR notes that translation
into Neimtz Code Braille will not always be the most appropriate method, nor
required under Section 504, to make a specialized subject accessible to the
visually impaired student in every situation.
Through negotiation with OCR, LMU has agreed to the following commitments
which, when fully implemented, will b:ing it into compliance:
With respect to course materials, applicable texts will be made accessible to
M at the start of the semester; at a minimum, relevant portions of the text
will be made accessible in either Braille or on tape at the time the reading
assignment is made to the class or, if the assignment is due more than one
month after the date the semester commences, then at least one month before
the due date of the assignment. Handouts will be made accessible to the
visually impaired student when distributed to other classmates. With respect
to note-taking, upon request, LMU will supply a slate and stylus as well as
note- takers, tape recorders and cassettes. Notes taken during class will be
provided on tape upon request.
With respect to examinations, they will be provided to M either in Braille or
on tape, depending on the preference of the student. Upon request by the
student, LMU will provide a means of responding to the examination questions
either in Braille or on tape, depending on the preference of the student.
With respect to computer accessibility, LMU has equipped a computer with a
voice synthesizer and a screen reading program for use by visually impaired
students. This computer is available essentially the same hours as computers
for nonhandicapped students.
LMU has assured OCR that it recognizes that to be effectively communicated,
some subjects,(i.e. calculus, physics, etcetera) must be translated into a
specialized language (such as Neimtz Code Braille) and/or into a specific
medium (such as tactile rather than verbal). With respect to such subjects,
LMU will take all reasonable steps necessary to provide course materials and
examinations in the appropriate language and medium. Finally, LMU has
committed to meet with the complainant and M as soon as possible to discuss
the necessary implementation of the foregoing assurances as to M
specifically. This discussion will address, in particular, any subjects that
may require translations into a specialized language or specific medium.
This LOF represents closure of this complaint. It only addresses the issues
discussed above and should not be interpreted to cover any other civil rights
laws or regulations enforced by OCR. OCR accords a complainant, against whom
an adverse finding has been made, the right to request reconsideration by
OCR. Reconsideration may affect the findings made by OCR. Should the
complainant in this case file a timely request, there is a possibility that
OCR, in responding to the request, may need to contact you for further
OCR is prepared to provide technical assistance in response to questions that
may arise in the future regarding this complaint or any of the regulations
enforced by this office.
We thank you and your staff for the cooperation and assistance provided to
OCR during this investigation.
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
which, if released, could reasonably be expected to constitute an unwarranted
invasion of privacy.
If you have any questions, please contact Herman Bossano at (415) 556 7091.
John E. Palomino
Regional Civil Rights Director