Self-Advocacy in Higher Education Toolkit

Congratulations on going to college or graduate school! This toolkit is designed for you—blind students seeking to better understand the higher education accommodation request process, mitigate access barriers on campus, and ultimately to succeed at your schools and in your chosen areas of study. By being strong and knowledgeable self-advocates, you can create a firm foundation on which to build collegiate success.

The toolkit’s contents are intended to grow to encompass additional topics, issues, and feedback from students and others. If you have suggested content additions or changes, please complete the self-advocacy in higher education toolkit feedback form or contact Valerie Yingling, legal program coordinator, at 410-659-9314, extension 2440, or [email protected].

Esta información también está disponible en español en Autodefensa en la educación superior Versión 2.0.

Understanding the Legal Rights of Blind College Students

Colleges and universities are obligated by federal law, the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), to provide students with disabilities equal and integrated access to programs, benefits, and services.[1] Specifically, public universities and colleges must adhere to Title II of the ADA, and private schools must adhere to Title III; many must also comply with Section 504 because they receive federal funds.[2] Title III of the ADA, furthermore, includes guidance for private testing entities.[3]

The Effective Communication Requirement

The ADA necessitates that colleges and universities furnish auxiliary aids, when needed, to allow equal participation and communication.[4] The purpose of the effective communication rule is to ensure that the person with a communication disability such as blindness can communicate with, receive information from, and convey information to the covered entity such as a school. Given that almost all of what occurs at an institution of higher learning is the communication of information, most of what a college or university does needs to be done with accessibility in mind. The complexity, context, and duration of auxiliary aids necessary to guarantee effective communication vary depending on the situation and required communication.[5] Examples of auxiliary aids and accommodations include Braille, large print, qualified readers, and accessible electronic and information technology.[6]

Communication involving students with disabilities must be as effective as communication involving students without disabilities.[7] Title II regulations of the ADA provide deference to the requests of the individual with disabilities over what school personnel may recommend. The regulations further stipulate that schools provide accommodations “in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”[8] The Department of Justice (DOJ) interprets timely manner to mean as soon as possible[9] and protecting independence to mean that accommodations should be selected that maximize independence, while adhering to the other requirements for effective communication.[10]

Rights to Alternative Formats under Copyright Law

The Chafee Amendment, now Sec. 121 of the Copyright Act, permits schools, as authorized entities, to reproduce previously published, nondramatic literary material in alternative formats for students with disabilities.[11] The amendment removes a school’s need to first secure permission for reproduction and distribution from copyright owners, and in doing so levels the playing field for blind students who cannot effectively use materials readily available to their sighted peers in libraries and elsewhere on campus. Moreover, as held by the Supreme Court[12] and the U. S. Court of Appeals for the Second Circuit,[13] making an accessible copy of copyrighted material for a person with a print disability is a fair use, that is, a use that does not require the permission of the copyright owner and not requiring that the blind student purchase a copy of the book when that book is freely available to sighted students. 

Right to Equal Access of Emerging Technologies

College campuses are increasingly embracing technology on campus, in classrooms, libraries, student unions, cafeterias, and elsewhere. This must be done in a manner that affords equal access. The Departments of Justice and Education have notified colleges and universities that they cannot implement technology that is not fully accessible for all students. This guidance refers to emerging technology and pilot programs, as well as established technology.[14] “Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities—individuals with visual disabilities—is discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.”[15]

The Departments of Education and Justice have published additional guidance to clarify these federal mandates:

Securing Equal Access on Campus

Requesting Accommodations

Though the ADA and Section 504 require equal access, schools must determine how to structure departments, personnel, and policies to comply with this mandate. In this vein, many schools have established disability support services (DSS), or similar offices with different names, by which students can request accommodations and aids. It is through DSS offices that college students frequently begin their self-advocacy. The following recommended best practices can help students to successfully obtain accommodations:

  • Before receiving accommodations, notify your school (generally through the DSS office) that you have a disability and require accommodations. At most colleges and universities, this will involve meeting with the school’s DSS personnel and providing documentation of your disability;  your school’s student handbook should outline this process.
  • Submit accommodation requests in writing to your school’s DSS office as early as possible and well before a new semester begins. Think through each accommodation you will need and list each accommodation with specificity. It may be helpful to compile a history of the accommodations you have used previously. Be prepared to explain why you need the accommodation(s) requested, for example, why you need all instructional materials in Braille rather than audio or other formats.
  • Request an accessible copy of your accommodation letter or form from the DSS office, and review this letter to ensure accuracy. Note if the document includes the entirety of the accommodations you requested and if any specification is made as to when these accommodations will be provided. If there are discrepancies, note these in writing as an addendum to your accommodation letter and resubmit it to the DSS office.
  • Make sure you maintain any written communications with professors, the DSS office, and anyone else you communicate with about accommodations and accessibility. It may be helpful to send summary emails to individuals with whom you verbally discuss accessibility or accommodations so that there is a written summary of what was said.
  • Research whether your school has a disability discrimination grievance policy or procedure. If so, make sure that you understand your responsibilities under that policy, particularly the timeframe within which you can file a discrimination grievance.

Examples of Accommodations on Campus

Below are some of the more commonly requested accommodations by blind students, though none of these are guaranteed or appropriate in any given situation.

  • Electronic access to information presented in class, including handouts and overhead and Power Point presentations in advance of class
  • Course materials in accessible electronic formats, Braille, and/or tactile graphics
  • Permission to audio record classes
  • Preferred classroom seating
  • Use of a laptop for taking notes
  • Research materials from the library in accessible electronic formats

High-Stakes Testing

The need for high-stakes testing accommodations begins as early as high school entrance exams and continues beyond college graduation to include professional licensure assessments. These tests are extremely important and by law must be accessible to individuals with disabilities. Because testing accommodations may differ from students’ classroom accommodation needs, and because these tests are often designed and administered by private companies, the NFB has developed a separate self-advocacy in high-stakes testing toolkit. 

Internships

Though generally occurring off campus, internships that are required by or connected with your program of study must be equally available to you as a blind student as they are to your sighted classmates. Under titles II and III of the ADA, schools must provide students with disabilities full and equal access to the services, facilities, opportunities, and benefits that their programs’ internships offer. Furthermore, effective communication requirements apply to internships. If you have requested the use of JAWS for your internship at a hospital, for example, then your college must ensure that you have access to JAWS insomuch as you need it to complete your hospital-based internship. Perhaps the hospital provides JAWS to you directly, but the responsibility for its provision lies with your school. Too often, colleges misinterpret this responsibility, to the detriment of blind students. Schools cannot prohibit you from completing an internship, require you to conduct your internship with a sighted peer, or offer you limited placement options, because of your blindness. Communicating your accommodation needs and any placement barriers in writing with your DSS office and internship supervisor, in advance of your internship semester, can help prevent problems during your internship.

Developing a Support System

Understanding State-Specific Resources

Certain states have created additional supports for college students through vocational rehabilitation programs, such as Arizona’s supportive education program for students transitioning from high school to college. Schools’ federal obligations do not change in these instances, but students benefit from specially designed programs that facilitate equal access on campus. Know what resources exist in your state. Your state vocational rehabilitation services coordinator, your DSS office, or your NFB affiliate and state student division may be able to provide you with this information.

All states are federally required to provide Protection and Advocacy (P&A) services and Client Assistance Programs (CAP) for individuals with disabilities. These services are operated through the National Disability Rights Network. By contacting your state’s Disability Rights Network office, you may be able to receive advocacy and/or legal assistance with securing equal access on campus.

Reaching Out to Other Blind or Disabled Students on Campus

One of the best ways to learn how to handle obstacles that come up, whether they are related to accommodations or not, is to connect with other students at your school who are blind or have print disabilities. You can meet these students through the disability support services office, classes, or in the library, cafeteria, or elsewhere on campus. Exchange contact information with these students and engage them in meaningful conversations about accessibility. This will also allow you to organize as a group if there are systemic issues with the school’s policies.

Joining the National Association of Blind Students and Your Local National Federation of the Blind Affiliate

Joining the National Association of Blind Students (NABS) can provide you with information and support. NABS, a division within the NFB, is a valuable networking and crowdsourcing tool for any blind student. NABS’ membership calls, website, student meetings, and informal guidance offer meaningful resources for students. NABS’s listserv allows students to post questions to other blind students or to read questions and answers covering a wide range of topics involving blindness and school.

Similarly, joining your NFB state affiliate can connect you with members who understand how your state, and possibly even higher learning institution, resolves access issues that arise.

Resources for Your Campus Administration

It may be that your school is unfamiliar with widely accepted accessibility guidelines and blindness accommodations. For schools such as these, and for all colleges and universities, the NFB provides guidance on how to create and maintain accessible learning experiences. Please share with your school’s DSS office and administrators the NFB’s Higher Education Accessibility Online Resource Center and resources available through the NFB’s Center for Excellence in Nonvisual Access (CENA), including the NFB’s resource for creating accessible documents.

Strategies to Overcome an Equal-Access Impasse

Once you have tried to resolve an equal-access barrier through the aforementioned formal and informal channels, including your school’s grievance process, you may need to escalate the matter with external support. There are a number of options available for this purpose, each with pros and cons.

Building Coalitions for Change

Oftentimes, equal-access issues can arise on campus due to systemic problems such as inadequate funding, lack of understanding of the law, or poor staff training. These issues may be widespread and may affect a multitude of students with various disabilities. Reach out to these other students and organize a collective demand for equal access.

Organizing on campus can draw greater attention to the systemic issues you are trying to remedy. Using group advocacy may not necessarily solve discrimination matters but can maintain relationships and communication with school administration, whereas filing a federal complaint or pursuing a lawsuit may create animosity.

Inform your NFB state affiliate president about your concerns and organizing efforts. Your NFB state affiliate president is a great resource and can provide information about different options available to you in your state and nationally.

Also, contact Stephanie Flynt, government affairs specialist for the National Federation of the Blind, to inform her about your ongoing coalition building activities. Stephanie can be reached at 410-659-9314, extension 2210.

Filing a Complaint with the Office for Civil Rights in the United States Department of Education

If self and group advocacy fail, there are a number of legal options individuals and groups can take to remedy barriers. One approach is to file a complaint with the Office for Civil Rights (OCR) in the US Department of Education. OCR complaints must be filed within 180 days following the alleged discrimination.

Prior to filing a complaint, you may want to exhaust all avenues within the institution. For example, many schools have appeal or grievance processes. While not a mandatory first step, for the most part, attempting to resolve the issue through the institution is far less adversarial. As part of this step, you should take extra care to maintain any written communications with professors, the DSS office, and anyone else you may communicate with about accommodations and accessibility.

Second, it is probably best to consult an advocacy group such as our organization, the National Federation of the Blind, or some outside legal counsel to determine the best course of action. If things have progressed to the point where an OCR complaint is necessary, it is best to at least consult with experts. 

Nevertheless, anyone can file a complaint at the Office for Civil Rights website. The OCR complaint process is straightforward. Once a complaint letter has been filed, OCR will investigate the claim. If investigators find that the complaint has merit, they will try to accomplish a settlement whereby both parties agree to specific conditions to resolve the issue. If the institution is unwilling to negotiate a settlement, the OCR can cut federal funding to the institution until it comes into compliance and/or refer the matter to the US Department of Justice for litigation.

Filing with OCR is advantageous because the office can compel institutions to come to the bargaining table, if investigators find in your favor. The downside is that if OCR does not rule in your favor, the institution gains some legal cover for its actions. Furthermore, even if OCR finds in your favor, the office may seek remedies that are only a portion of what you initially hoped to obtain. That is why it is best to advocate on your own behalf first, rather than expect OCR to determine an appropriate resolution.

Litigation            

Another legal option is to go to court. Lawsuits are useful because they draw attention to access issues and can provide financial incentive for institutions to change. The drawbacks of litigation are the same in this area as they are in any area. Court battles are expensive, time consuming, and often lead to settlements that could have been achieved earlier if both sides had been willing to negotiate in the first place. Furthermore, this tends to put institutions on the defensive, and thus they look at the student as the adversary. Litigation should be used as a last resort or as a way to draw attention to larger systemic issues. 

Working to Enforce Laws

The long-term solution to unacceptable accommodations is clarification of legal obligations and regulatory updates to reflect advancement in technology, with an end goal being complete accessibility, independence, and human dignity. In this vein, the NFB, in collaboration with other stakeholders, is in the process of drafting and proposing the Accessible Instructional Materials in Higher Education (AIM HIGH) Act, formerly called the Technology, Education, and Accessibility in College and Higher Education (TEACH) Act during the 113th session. Congress has not yet adopted this powerful bill, and the NFB’s ongoing advocacy efforts are critical. Your help is needed to make this bill a reality.

Landmark Decisions

Equal access in higher education continues to be a priority issue for the NFB’s legal advocacy. Landmark decisions and agreements have been reached, nationwide, because of the NFB’s involvement. 

The US Department of Justice, likewise, has engaged in litigation efforts to ensure equal access to college students with disabilities. These enforcement activities are available at ADA Enforcement.

Education Technology Survey

The National Federation of the Blind is gathering information regarding the accessibility of educational technology used in our nation’s schools (kindergarten through graduate level). If you are a student, parent, teacher, or administrator who uses screen access software or other accommodations to participate nonvisually in educational programs or services, or if you are the parent, teacher, or administrator of someone who does, please complete this survey once a semester and contribute to this important research. You can locate the survey at: nfb.org/programs-services/legal-program/education-technology-survey.

Additional Information and Feedback

The toolkit’s contents are intended to grow to encompass additional topics, issues, and feedback from students and others. If you have suggested content additions or changes, please complete the self-advocacy in higher education toolkit feedback form or contact Valerie Yingling, legal program coordinator, at 410-659-9314, extension 2440, or [email protected].

References

[1] 42 U.S.C. § 12132; 45 C.F.R. § 84.4(b)(ii).

[2] 34 C.F.R. § 104.41.

[3] 28 C.F.R. § 36.309(b)(1)(i).

[4] 28 C.F.R. § 35.160(b)(1).

[5] 28 C.F.R. § 35.160(b)(2).

[6] Joint DOJ and DOE Letter titled “Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools” 8 (2014).

[7] 28 C.F.R. 35.130(b)(ii).

[8] Id.

[9] See Joint DOJ and DOE Letter titled “Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools” 11 (2014). (Timely manner is an ambiguous term. However, the DOJ and DOE have said that it means as soon as possible.  For example, in the public secondary and primary school context, “the appropriate aids and services must be provided as soon as possible, even if the IDEA’s evaluation and IEP processes are still pending.”)

[10] See Joint DOJ and DOE Letter titled “Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools” 12 (2014). (“[In a public primary or secondary school] example, if a blind student requested an accessible electronic book (e‐book) reader to complete in‐class reading, instead of using a reading aide, the school district should provide the e‐book reader because it would allow the student to go through the material independently, at his own pace, and with the ability to revisit passages as needed.”)

[11] 17 U.S.C. § 121.

[12] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417(1984).

[13] Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 105 (2d Cir. 2014).

[14] Joint DOJ and DOE Letter titled “Dear Colleague Letter: Electronic Book Readers” 2 (June 29, 2010).

[15] Id.

[16] Recorded during the 2014 National Federation of the Blind Convention. Also available as a convention highlight.