Braille Monitor                                                 December 2011

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Equal Access to Information: The Urgency and the Law

by Daniel Goldstein

Dan GoldsteinFrom the Editor: What is the meaning of equal opportunity and equal access? Not very long ago these terms spoke to physical access—being let into the classroom, being allowed to rent an apartment, being allowed to ride at the amusement park. These days access and opportunity have little to do with being physically permitted to go into a classroom or hotel and everything to do with what we can do once we’ve been granted physical access. Physical integration is by no stretch of the imagination equivalent to true integration, and in today’s world it is just the beginning.

On Friday afternoon, July 8, Dan Goldstein, a prominent civil rights attorney who lives in Baltimore, Maryland, addressed the convention about gaining real access for blind people in what is often called the information age. His message leaves no doubt that we have problems aplenty but that together we have the will to turn them into opportunities. Here is what Mr. Goldstein had to say:

Good afternoon, fellow Federationists. In his presidential address Dr. Maurer mentioned that he and I will be the co-recipients of the American Bar Association's Award for Disability Rights. Now I don't want to sound ungracious, but I don't think the ABA is a leader in disability rights, so I wasn't really excited about that. But to be mentioned in the same breath as my teacher, my friend, and my leader, Marc Maurer--that's all the honor I require in a lifetime.

Two years ago we gathered in Detroit, and the fact that you're here means you found your way out of the hotel. While we were there, I stood before you and made a promise. I said that, because of the efforts of the National Federation of the Blind, we would have something we have never had in our history. You remember that--same books, same time, at the same price. And I said I did not know whether it would be a year, two years, or longer, but have it we would, And, when I made that promise, there was not a single book in copyright that we could get at at the same time and at the same price and in the same way as everybody else. Well, ladies and gentlemen, that has changed. [Applause]

In April 2010 Apple introduced the iBook, which was accessible and could be read on the accessible iPad, iPod, and iPhone. That has meant that we have over two hundred thousand books in copyright at the same time and at the same price. How did that happen? If the National Federation of the Blind had not successfully taken on Apple over the inaccessibility of iTunes U in 2008 and gotten them focused on accessibility, you know we would not have that.

By the way, if you go to the FAQ pages for publishers (if you were thinking about having an iBook), you'll see that one of the questions is: "Can an iBook be a PDF?" "No,” says Apple. “It must be ePub." And, as long as NFB member George Kerscher is the president of the International Digital Publisher Forum, which sets the ePub standard, ePub will now and forever after be accessible. [Applause]

At the end of 2010 Amazon introduced the Kindle 3. The menus talked, and the content talked, but I wouldn't spend the money. But in January, the next month, January of this year, Amazon introduced its Kindle app for PCs, and the accessibility is first-rate with great navigability. So in January of this year we got 950,000 more books in copyright at the same time and at the same price. Now how did that happen? If the National Federation of the Blind had not successfully taken on Amazon for the inaccessibility of the Kindle, you know we would not have that.

Earlier this year Blio came out with 300,000 accessible eBooks from Baker and Taylor, the largest distributor of books in the world and more to come. How did that happen? If the National Federation of the Blind had not formed and maintained the partnership with Ray Kurzweil lo these many decades, we would not have the Blio.

So, in the two years since I last spoke to you, we've gotten about 1.5 million books at the same time and at the same price as everyone else. But that's not all. This fall blind college students should be able to go to the CourseSmart website, which will finally be fully accessible, and buy accessible eTextbooks. Those books will live on a shelf in cyberspace, and CourseSmart, as most of you may know, is owned by a consortium of the big six college textbook publishers. CourseSmart offers, not just the book, but the ability to annotate, group highlight, link to assignments in the course-management software, and many other features, all of which are now accessible.

How did that happen? Two years ago the books and the website were completely inaccessible, and CourseSmart was entering into contracts all over the country to supply digital eTextbooks at a discount to colleges and universities. If the National Federation of the Blind had not first confronted the university system of Ohio and told it that the contract with CourseSmart meant that Ohio universities were illegally discriminating against blind Ohio college students, we would not have gotten CourseSmart's undivided attention. But we did, and now a willing and interested friend, CourseSmart, is making its website accessible, and its college textbooks will be accessible at the same time and at the same price.

Adobe Digital Editions is working on making its next version of its eBook platform, Adobe Digital Editions 2.0, accessible. It was supposed to happen in December. I guess it's a long gestation. It's now in beta, and it's not all the way there, but it's coming. And how did that happen? You may have guessed the answer. Adobe sells a lot of eBooks to libraries. The NFB persuaded the American Library Association to adopt a resolution that libraries should not buy inaccessible eBooks, and then, when we had that resolution, the NFB sent a letter to more than thirteen thousand public libraries to tell them that buying inaccessible eBooks for use by their patrons was illegal discrimination. Well, Adobe got the message, so we're getting Adobe 2.0.

Pearson Publishing is here at this convention, and at least one of its book units is working hard with NFB on accessibility. Vital Source, an eTextbook Platform like CourseSmart, isn't there yet, but in the meantime its books are accessible as iBooks at the same time and at the same price.

Elsevier, a major college textbook publisher, is making the content of its catalog accessible at the same time and at the same price. How did all of that happen and in twenty-four months? Because of the National Federation of the Blind. [Applause]

So we have a couple of million of the same books at the same time and the same price. Are we satisfied? [audience response: No!] I'd have been worried if I heard anything else. We will not be satisfied until all information that is available to the sighted is available to the blind at the same time and at the same price.

Many of the scholarship winners that we will applaud tonight are graduate students whose principle reading is in professional online journals. Will we stop before all that they need to read is accessible at the same time and the same price? [audience: No!] Libraries are making digital archives of print books a treasure house far more valuable than gold. Will we stop before that's all accessible? [audience: No!] Not being able to see may be a nuisance, but not having equal access to information is a terrible handicap in education, on the job, and as a citizen. In a technology-driven world, not having access to the technology is also a terrible handicap.

Now Dr. Maurer has said to me that this is a race. Digital information continues to multiply as do new technologies. Digital information has invaded the sinews, ligaments, and even capillaries of our society. We must get ahead of the technological developments and make sure it is all accessible out of the box. Accessibility has to be part of all tech designs and all content building. If we don't, it will be too late to undo, and we will lose the race. And the truth is, while we have been moving fast, we are not yet at the halfway point in this race, much less near the finish line.

So how do we win this race for equal access to digital information? One of the places that technology is first deployed and on a widescale basis is in our educational institutions, where digital content is becoming pandemic. To succeed in the job market and as citizens, we need full access in the schools. If we can get our colleges and universities to insist on accessible technology from its vendors and to make accessible the content that's available to faculty, students, and staff, then we will also change the way all of society presents electronic information, until finally, we can say--if it's technology, we can use it with the rest of the world. If it is electronic content, it is ours for the asking.

What is the NFB doing to make sure we win this race? How will we establish, once and for all, in the name of commonsense and decency, that our participation will not be limited by the irrelevance of sight? Well the first thing we have done is to secure unprecedented cooperation from the federal government in getting the message out to our educational institutions. You heard a little from Dr. Maurer during the presidential report and from Alexa Pozny about the Kindle letter that, in June of 2010, the Departments of Justice and Education jointly sent to every college and university president in the United States. In part the government of the United States said, "Requiring use of an emerging technology in the classroom environment when the technology is inaccessible to an entire population of individuals with disabilities--individuals with visual disabilities--is discrimination prohibited by the ADA and the Rehabilitation Act." Way to tell them, federal government. The letter also said, "Students with visual impairments may not be discriminated against in the full and equal enjoyment of all goods and services of colleges and universities. They must receive an equal opportunity to participate in and benefit from these goods and services, and they must not be provided different or separate goods or services." How did the United States government define access? "When a blind student can acquire the same information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use."

Now I will freely confess before all of you that I can't sing, not a note. If you want that, ask Father Sheehan. But that sure sounds like beautiful music to me. This May the federal government broadcast this message again. In case schools didn't get it, the Department of Education explained that the requirement of accessible technology applies to K-12 as well as colleges; that accessibility is required of all technology that affects students, faculty, and staff; that it applies to content, to online courses, and to applications for admissions. The guidance says it doesn't matter whether there's a blind student in the class at the moment or not, because, as everybody here knows, if you wait to worry about accessibility until the blind student shows up, it's too late. This document--I recommend it to you--it's long. It goes on for about twelve pages, but to me it reads like a collection of Shakespeare's love sonnets. And that guidance was sent to every elementary, middle, and high school and every college and university in the United States.

Even so, not everyone has gotten the message. In the last twelve months forty percent of the colleges and universities have migrated to Google apps for education, as have K-12 schools in five states. That's Gmail, Google calendar, Google Docs, Google sites. Why not? It's terrific and it's free and it's terrific--if you can see. Oh wait a minute--it's not terrific if you can't see--it's something else I can't say from this podium.

So what has the National Federation of the Blind done about that? In March we filed complaints with the Department of Justice against two universities, Northwestern and NYU, and several school districts in Oregon for using Google Apps for Education. Now, as you heard this morning from Mr. Eustace, Google is promising that these services will be accessible by the beginning of the calendar year.

Is that good enough? No. Are there still Google products and services that are inaccessible? Yes. You may not have caught it exactly, but at one point Mr. Eustace said, "You know, I told Dr. Maurer we put things out when they're broken, and then we fix it." There is no moral quality to something being broken. There is a moral quality to discrimination. You don't say something is broken, therefore it's wrong. We have to explain to Mr. Eustace that something that discriminates is wrong. We will not be satisfied until everything Google offers that is available to the sighted is available to the blind on the day that it comes onto the market, not a day later, a month later, a year later.

The most popular eReader in the United States is not the iPad, the Blio, or the Kindle; it's the Barnes and Noble Nook. The Nook is inaccessible. There's also software called the Nook Study; that too is inaccessible. Then there's the Barnes and Noble website that you go to to buy the books; that is inaccessible. If you could get to the actual eBook, it is accessible in a sense. It will read sentence by sentence, although not word by word or line by line.

So what is the NFB doing about that? Dr. Maurer invited Barnes and Noble to come talk to the NFB. He never got an answer. So Dr. Maurer said to my partner, Eve Hill, "Eve, get their attention." I love it when Dr. Maurer says that. So in June, NFB filed complaints with the Department of Education against four K-12 schools that bought Nook devices, some with federal money, for classes, libraries, or book groups, and Texas A&M University for doing a pilot program with a Nook study platform. I guess the Aggies didn't get the Kindle memo.    Barnes and Noble will find that the marketplace will not welcome them until they are ready to make their wonderful devices, software, and books available to everyone.

At too many schools in this country, accessibility is the exception, not the rule. What is NFB doing about that? To demonstrate the breadth and depth of the problem of inaccessibility on campus, as you heard Dr. Maurer say in the presidential report, we have filed a complaint with the Department of Education against Penn State University, where the inaccessible technology includes the learning-management software, the library-search software, the student account information, the website, the clickers, the on-campus ATMs, the technology podiums in the classroom, and this goes on and on and on. Penn State, though, is not unusual. We could have picked many other schools for the same complaint. The complaint has raised the consciousness of many of those other schools, and it has begun to trigger change elsewhere. But we will continue to file complaints like this until the default mode on campus is accessibility.

You heard in the presidential report about Chris Toth and Jamie Principato, two true Federationists who have advocated for themselves ardently and well, and they've done it bravely in the face of hostility, abuse of power, and impenetrable indifference at Florida State University. We have filed a suit on their behalfs seeking damages for the ruinous impact that Florida State has had on their education, their careers, and their finances. We intend that case to be a lesson. After all, we are talking about school. We intend to teach that universities that discriminate will pay a high price for doing so.

But lawsuits and complaints are just some of the tools that the NFB has at its disposal, even if they're the ones that I think are the most fun. So what else is NFB doing to win the race? Thanks to NFB, we have the AIM Commission that Gaeir told you about on Tuesday that will report back to Congress in September. Mark Riccobono and George Kerscher are both commissioners, and the NFB has proposed that the commission recommend to Congress a new law to ensure equal access to postsecondary digital instructional materials, meaning not just content, but the interface, the software--any applications that relate to the display, manipulation, and annotation of content--any instructional software for applications that are used to facilitate instruction. NFB's recommendation includes making technology developers and content publishers and distributors liable for damages when they discriminate against blind students.

What else will NFB do to win the race? Foundations fund software for open use, but too often the foundations forget to ask the developers to make their software accessible, with devastating results. For example, many universities are now using open-source software called Integral, developed with funds from the Gates Foundation. Integral makes it possible for colleges and their students and faculty to use Facebook in a closed, integrated environment, a virtual student union.

Now, as all of you here know, there are some accessibility barriers on Facebook, but Integral makes even that which is accessible on Facebook inaccessible. How will we get the foundations to change their ways when they fund open-source software? It will take the prestige of the NFB and the reputation of Dr. Maurer to get the foundations to pay attention and start requiring accessibility as a condition of funding, but I have no doubt that we will.

We need to change the requirements for accredited degrees in computer science, computer engineering, and IT to include education on accessibility. We will do that. Will we succeed? I have no doubt we will. We need universities, as they develop online classes, to make accessibility part of the development process. We need them to fix their websites, stop buying inaccessible technology, and start fixing or replacing the inaccessible technology that they have. We've been doing this by going to conferences of college CIOs to explain what they must do and why, and we're expanding that to meet with lawyers for colleges and with purchasing officers. Will we get our message across to the schools? Yes, I have no doubt we will.

The technology vendors need to change their ways. How will we do that? Anne Taylor and Tony Olivero have been working with Blackboard and Pearson Publishing, even Google, and others, to help them understand how to be accessible. There is more to be done there. Will the NFB change the way technology developers design their products? I have no doubt we will.

We are not alone in this fight. You will hear this afternoon from two great champions: Peter Siegel and Sam Bagenstos. But we are finding friends we didn't even know. George Mason [University] won't buy any technology until it's satisfied that it's accessible. Who knew? Oregon State University has made its website with more than one-and-a-half million pages accessible and keeps it that way, because it has an accessibility policy with accountability. Last week Ohio State actually made a vendor sign a contract where the vendor guaranteed that what it was selling would be accessible.

So the NFB races on, gaining allies, and we are passing mileposts of change along the route. Will we get there with a little help from our friends? I have no doubt we will. We will win this race. We must, because, until we have the same access as everyone else to all of the technology and content offered by the modern world, we will be denied our right to live in that world as equals. It is a big challenge, but it is not too big for the NFB. This is a race that can be won, and, because we are the NFB, it is a race that we will win. [Applause]

I am so proud to be part of this race, and I plan to be here on the day that Dr. Maurer tells you, as for all technology, we can use it at the same time and at the same price. And as for information, when he can say, we can get at all of it at the same time and at the same price. Thank you.

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