[Athen] A Letter to the American Council on Education Regarding the State of Our Negotiations and NFB's Plans for Moving Forward

Sam Joehl sam.joehl at ssbbartgroup.com
Wed Dec 16 07:47:55 PST 2015

Submitted by kkuhnke on Thu, 12/10/2015 - 09:35
Blog Date:
Thursday, December 10, 2015

After fourteen months of negotiating with the American Council on Education (ACE), the time has come to seek alternative avenues to secure equal access to electronic instructional materials at institutions of higher education. The following is a letter President Riccobono sent to ACE President, Molly Corbett Broad, informing her that while we are still open to dialogue, we will not sit idly on this critical issue to blind and print-disabled students. We will reengage with Congress to find champions for students with disabilities in order to ensure that we have equal access in the classroom and beyond, so that blind and print-disabled students can live the lives they want.


December 10, 2015

Molly Corbett Broad, President
American Council on Education
One Dupont Circle NW
Washington, DC 20036

Dear President Broad:

On September 9, 2014, I wrote to you inviting the leadership of the American Council on Education to engage with leaders of the National Federation of the Blind and representatives from the Association of American Publishers in order to find common ground that would provide a suitable solution to the discriminatory barriers faced by blind students in the educational technologies they encounter in institutions of higher education across the United States. Although we had spent more than a year attempting to engage the higher education leadership around our legislative proposals without any response, I was pleased that on October 8, 2014, we finally sat at the same table to begin what we hoped would be a fruitful dialogue regarding legislation that would change the paradigm of accessibility for students who are blind or otherwise print-disabled. Today, three full academic semesters later, I regret to say that despite our best efforts we have not come to the agreement we initially sought.

As you know, Titles II and III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act prohibit institutions of higher education from discriminating against blind and print-disabled students, and require them to provide blind and print-disabled students an equal opportunity to participate in their services and benefits.1<https://nfb.org/blog/vonb-blog/letter-american-council-education-regarding-state-our-negotiations-and-nfbs-plans#Endnote%201> Both the implementing regulations and guidance from the Departments of Justice and Education make clear that requiring use of technology in the classroom environment that is inaccessible to blind or print-disabled students is discrimination under the ADA and Section 504 unless the institution provides the individuals accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.2<https://nfb.org/blog/vonb-blog/letter-american-council-education-regarding-state-our-negotiations-and-nfbs-plans#Endnote%202> Accessible technology not only expands the circle of participation to include individuals with disabilities, but also ensures that institutions of higher education meet their legal obligation to provide it, eliminating the need for ad hoc, often insufficient aids, benefits, or services. The National Federation of the Blind entered into negotiations with the American Council on Education hoping to reach a compromise that would make accessibility a priority for both institutions of higher education and the developers and manufacturers who create this technology. By ensuring that accessibility is incorporated during development, the number of mainstream accessible electronic instructional materials would increase, giving institutions a variety of procurement options that would meet their unique pedagogical needs. We believe higher education needs the framework we seek in order to better meet its obligation to provide equal access in an educational environment that is increasingly technology centric.

After fourteen months of negotiating with your Division of Government and Public Affairs, it is clear to us that blind students will not receive equal access based on the framework our negotiations have produced. We have continued to compromise in good faith, however, our compromise is not matched in kind but rather with an expectation that more should be required of us or that we are being unreasonable in our requests. For example, notwithstanding existing legal requirements to provide accessible materials to students with disabilities, my team sought to incentivize the use of the voluntary guidelines created by the commission by providing a safe harbor from litigation for conformant institutions. While federal mandates for accessibility currently exist, there is no clear path that assures institutions they are in compliance with federal law. These guidelines would create that path. However, your community determined that this was not enough of an incentive, and proposed a bifurcated safe harbor, limiting legal action to declaratory and injunctive relief, as well as attorney's fees for schools that adopted the guidelines, but for whatever reason, still purchased inaccessible technology. Although this approach has disadvantages, we agreed to seek a path forward.

In another instance, your team was opposed to the framework we proposed being housed within the United States Access Board, despite the board being the federal agency most knowledgeable about accessibility policy, as well as the agency recommended by the Advisory Commission on Instructional Materials to "establish guidelines for accessible instructional materials that will be used by government, in the private sector, and in postsecondary academic settings."3<https://nfb.org/blog/vonb-blog/letter-american-council-education-regarding-state-our-negotiations-and-nfbs-plans#Endnote%203> Yet, in the spirit of compromise, we agreed to a purpose-based commission comprised of representatives from all relevant stakeholder groups. Even after compromising, we were told that our desire to have some of the most knowledgeable people with disabilities eligible to serve on this commission was inappropriate and represented unreasonableness on our part.

Despite our best efforts to create an environment of compromise and progress, the process has been bogged down by last-minute changes that have adversely reshaped the legislation originally proposed. Securing accessible instructional materials in higher education for blind students is our mandate, and this legislative concept, as it is currently drafted, will not adequately meet that need. I wanted you to know that the time has come for us to seek alternatives to the current negotiation. We continue to be prepared to talk but we recognize that there is a significant gap between the urgency we hear from blind students every day and the protective posture that has existed in these negotiations. I hope that we can find a better way to engage in productive negotiations that reflect the true problem that exists in higher education institutions today.

I look forward to hearing from you with your ideas of how we might make our discussions more effective for blind students across the nation. In the meantime, we will be seeking other avenues to secure the clarity and support needed to ensure true digital equality at institutions of higher education.


Mark A. Riccobono, President
National Federation of the Blind


cc: Terry W. Hartle, American Council on Education
Allan Adler, Association of American Publishers

1 28 C.F.R. § 35.130(a), (b)(1)(2); 28 C.F.R. § 36.201(a); 28 C.F.R. § 36.202(a)-(c); 34 C.F.R. § 104.4(b)(i)-(ii).
2 28 C.F.R. § 35.130(b)(1)(iv); 28 C.F.R. § 36.202(c); 34 C.F.R. § 104.4(b)(1)(iv) (2009). See also, Dear Colleague Letter from U.S. Department of Justice, Civil Rights Division, & U.S. Department of Education, Office for Civil Rights, to College and University Presidents, at 1 (June 29, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.pdf.
3 Advisory Commission on Instructional Materials. Report of the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities. 2011. Pg. 42. No. 1.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman12.u.washington.edu/pipermail/athen-list/attachments/20151216/8dd15609/attachment.html>

More information about the athen-list mailing list