October 18, 2013

XXXXX
Interim President
Shelton State Community College
9500 Old Greensboro Road
Tuscaloosa, Alabama 35405

Re: Complaint #04-13-2014

Dear XXXXX:

On October 24, 2012, the U.S. Department of Education, Office for Civil Rights (OCR), received the above-referenced complaint filed by the (Complainant) against Shelton State Community College (College) alleging discrimination on the basis of disability (progressive visual impairment).  Specifically, the Complainant alleged that over the course of his enrollment XXXXX, the College has failed to ensure that teaching staff provide appropriate academic adjustments; has maintained facilities and services which are inaccessible to individuals with visual impairments; and has engaged in conduct which is harassing and retaliatory based on his advocacy for his rights on the basis of his disability.

As a recipient of Federal financial assistance from the Department, the College is subject to the provisions of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability.  As a public educational entity, the College is also subject to the provisions of Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. §§ 12131 et seq., and its implementing regulation, 28 C.F.R. Part 35, which prohibit discrimination based on disability by public entities.  Accordingly, OCR has jurisdiction over this complaint.

OCR opened the following legal issues for investigation:

1. Whether the College failed to provide the Complainant with approved academic adjustments, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.44 and Title II and its implementing regulation at 28 C.F.R. § 35.30(b)(7).


2. Whether the College declined to consider requested academic adjustments, auxiliary aids or adaptive equipment to accommodate the Complainant’s disability,  in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.44 and Title II and its implementing regulation at 28 C.F.R. § 35.30(b)(7).


3. Whether the College denied the Complainant the benefit of or otherwise excluded him from participation in math courses by requiring use of a web-based program, which is inaccessible to visually impaired persons, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.4, 104.21, and 104.44, and Title II and its implementing regulation at 28 C.F.R. § 35.130(a), (b)(7), and 35.149. 


4. Whether the College denied  or otherwise excluded the Complainant, a visually-impaired student, from participation in or use of: a) computer courses by failing to provide screen reading software making the computer lab inaccessible; or b) the library, which does not have computers with screen reading software or a closed circuit television (CCTV) enlarging device, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.4, 104.21, and 104.44 and in noncompliance with Title II and its implementing regulation at 28 C.F.R. § 35.130(a), (b)(7), and 35.149104.43.


5. Whether the College denied the Complainant the benefit of or otherwise excluded  him from participation in courses by failing to provide accessible audio reading materials, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.4, 104.21, and 104.44 and in noncompliance with Title II and its implementing regulation at 28 C.F.R. § 35.130(a), (b)(7), and 35.149


6. Whether the College retaliated against and harassed the Complainant as a result of his need for academic adjustments and advocacy, in noncompliance with the Section 504 implementing regulation at 34 C.F.R. §104.61, which incorporates by reference the Title VI implementing regulation, at 34 C.F.R. §100.7(e).

During the investigation, OCR reviewed documentation submitted by the College and the Complainant, and conducted interviews with the Complainant and College staff.  Prior to the conclusion of the investigation, the College requested to resolve some of the allegations of the complaint.  Pursuant to OCR’s Case Processing Manual (CPM), a complaint may be resolved when, before the conclusion of an investigation, the recipient or public entity expresses an interest in resolving the complaint.  Based on the foregoing, OCR accepted the College’s request and the District entered into the enclosed Resolution Agreement (Agreement), which when fully implemented, will resolve Issues 1, 2(a) and (b), 3, 4(a), 5, and 6.   OCR will monitor the District’s implementation of the Agreement to ensure that it is fully implemented.  If the College fails to fully implement the Agreement, OCR will reopen the case and take appropriate action to ensure compliance with Section 504 and Title II.

OCR found insufficient evidence to support a finding of noncompliance with regard to the remaining allegations of the complaint stated in issue 2(c), 4(b), and part of 5(a) of the complaint.  The factual and legal bases for the insufficient evidence determination are set forth below.

LEGAL STANDARDS

The Section 504 implementing regulation at 34 C.F.R. § 104.4(a) and (b)(1)(i)-(iv) and (vii) states that no qualified disabled person shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.  A recipient, in providing any aid, benefit or service may not, on the basis of disability, deny a qualified disabled person the opportunity to participate in or benefit from an aid, benefit or service; (ii) afford a disabled person an opportunity to participate in or benefit from the aid, benefit or service which are not equal to those afforded to others; (iii) provide a disabled person with an aid, benefit, or service that is not as effective as those provided to others; (iv) provide different or separate aids, benefits, or services to a disabled person or class of disabled persons unless such action is necessary to provide qualified disabled persons with aids, benefits or services that are as effective as those provided to others; (vii) otherwise limit a qualified disabled person in the enjoyment of any right, privilege, advantage,  or opportunity enjoyed by others receiving an aid, benefit, or service.

The Section 504 implementing regulation at 34 C.F.R. § 104.43  states that no qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.  It further 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 and shall operate its program or activity in the most integrated setting appropriate.

The Section 504 implementing regulation at 34 C.F.R. § 104.44(a) requires a recipient to make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of disability against a qualified applicant or student.  The Section 504 regulation at 34 C.F.R. § 104.44(d) requires that a recipient shall take such steps as are necessary to ensure that no student with a disability is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.  Thus, recipients must provide academic adjustments and auxiliary aids that are effective and that are appropriate to the individual needs of the student with a disability.  A postsecondary institution should engage in an interactive process that includes dialogue between the student seeking the adjustment and the officials responsible for ensuring that adjustments are provided.  The Title II regulations are interpreted consistent with these Section 504 regulations.

At the postsecondary level, the burden lies with the student to provide the institution with certain information to support a request for academic adjustments and auxiliary aids and services.  Institutions may establish reasonable procedures for requesting academic adjustments.  If students have received proper notice of an institution’s process for providing adjustments, they are expected to follow the process in seeking an adjustment.  This includes the obligation to inform the school of their disability and need for an academic adjustment or auxiliary aid, provide supporting documentation, and ask the school for assistance related to their disability.

Retaliation is prohibited under the Section 504 implementing regulation at 34 C.F.R. § 104.61, which incorporates by reference the provisions of the regulation implementing Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq., at 34 C.F.R. § 100.7(e).  The Title VI regulation provides that no recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces, or because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation or other matter in connection with a complaint.  The Title II regulation at 28 C.F.R. § 35.134 contains a similar prohibition.

Background

XXXXX. The Complainant is a XXXXX year old student with a disability enrolled in a XXXXX program at the College starting in the summer 2011 to the present.  The Student has profound and progressive vision loss and identified himself to the College's Office of Disability Services (ODS) as a person with a disability upon enrollment.  The College is a two-year college.  XXXXX.

For the summer 2011/fall 2011 semesters, the Complainant was approved for the following accommodations: use of Zoom Text JAWS screen reader for MyMath Lab, audio books on CD when available, note taker for all classes, personal assistance for Math Class (scribe), extended time for tests and quizzes (double time), use of CCTV (located in ODS), use of larger computer monitor, use of a reader for exams and quizzes, use of a recorder in class, provision of larger paper and special markers for scribe’s use, use of a talking calculator.  The accommodation plan also notes that the ODS was working with a staff member on scanning information for the Complainant and that the College would purchase a cart to make the CCTV portable.

FACTUAL FINDINGS & ANALYSIS

As noted above, prior to the conclusion of OCR’s investigation of Issues 1, 2(a) and (b), 3, 4(a), 5, and 6, the College agreed to resolve these issues of the complaint by entering into the enclosed Agreement.  The remaining issues, Issues 2(c), 4(b), and part of 5(a), are discussed below.

Issue Two:      Whether the College declined to consider requested academic adjustments, auxiliary aids or adaptive equipment to accommodate the Complainant’s disability in: a) College Office of Disability Services (ODS) – October 2012-present – Refusal to consider requested changes to approved academic adjustments mid-term; b) Chemistry class – August 2012-present – Failure to consider use of adaptive equipment or teaching methods to allow the Complainant to participate in class examples and problems.  The instructor writes examples on chalk boards in the classroom; and c) Biology lab test – May 2012-August 2012 – Refusal to allow the Complainant to manually touch a dissected bird to complete his test and identify organs of the body.

With respect to the Biology lab test issue (Issue 2c), the Complainant alleged that he took two tests in the lab for BIO-104-01, one of which required review of a dissected bird.  The bird dissection lab required that students look at the dissection and identify parts of the anatomy identified with pins. The Complainant alleged that he asked to be able to touch the bird to identify the portions by touch and the Biology professor refused to allow him to do so.

The Complainant stated that he complained to the ODS office and the professor offered to give the Complainant the test again but stated that, in his opinion, it would not affect the Complainant’s grade (the Complainant received a B).  The Complainant stated that he did not know if retaking the lab would have changed his grade, but objected to being denied the learning opportunity.

When interviewed by OCR, the professor stated that he was aware of the Complainant’s compromised vision and that after discussions with the Complainant he allowed the Complainant to touch exhibits in the lab without gloves because the Complainant stated that it made it easier for him to identify organs of the dissected animals.  The professor stated that in his instructions regarding the exam he cautioned the class not to touch the dissected bird because the pins identifying the organs could easily be dislodged.  The professor stated that he did not intend for this to apply to the Complainant and assumed that the Complainant would touch the pins/organs as necessary.  The professor stated that the Complainant did not ask for clarification regarding his instructions.

When contacted for rebuttal regarding this issue, the Complainant agreed that the professor permitted him to touch the dissected organs without gloves during the course.  When asked if he made his access issues apparent to the professor during the lab test, the Complainant stated that he asked the professor for assistance when he was not able to see something, but that he did not specifically ask if he could touch the organs of the bird.

OCR finds that the evidence shows that the Complainant did not make a request to the ODS office regarding permission to touch the organs of dissected animals in lab as an accommodation.  The evidence shows that the professor and the Complainant worked out a resolution for this access issue in the course, but that miscommunication during the lab final resulted in the Complainant not touching the bird. Although the Complainant did not touch the dissected bird, he passed the class with a grade of B.  Applying the preponderance of the evidence standard, OCR finds that the evidence is insufficient to support a conclusion that the professor’s actions resulted in a denial of access on the part of the Complainant, in noncompliance with Section 504 and Title II as alleged under issue 2(c).

Issue Four: Whether the College denied or otherwise excluded the Complainant, a visually-impaired student, from participation in or use of: a) a computer class, by failing to provide screen reading software, thus, making the computer lab inaccessible; and b) the library, which does not have computers with screen reading software or a closed circuit television (CCTV) enlarging device.

With respect to the accessibility of the Library issue (Issue 4b), the Complainant alleged that the Library was not accessible, that it did not have a CCTV and no computer access.  The Complainant alleged that he was prevented from checking out books held on reserve for his literature course.

When interviewed by OCR, the Library Director stated that the Library did not maintain a CCTV in fall 2011, but put one in place within a week after the Complainant noted its absence.  He stated that it was available to the Complainant while enrolled in his Library Skills course in spring 2012. The Library Director stated that the Complainant was permitted to take reserved books out of the Library.  The Director stated that he had not heard any complaints from the Complainant about the functionality of the CCTV.  The Director stated that to his knowledge the CCTV was operational.

When contacted for rebuttal, the Complainant confirmed that the Library had a CCTV, which did not always work.  He confirmed that he enrolled in the Library Skills course in spring 2012 but he did not have any problems with access in that class.  The Complainant confirmed that the Library has a computer, but that the screen is a standard size and it is therefore difficult to use (the Complainant was able to access the computers in the ODS office).  The Complainant further confirmed that he was permitted to checkout reserved books for use at home.

OCR finds that the evidence shows that the Library put a CCTV in place based on request from the Complainant and permitted him to take books out of the Library, which were held on reserve.  Applying the preponderance of the evidence standard, OCR finds that the evidence is insufficient to support a conclusion that the professor’s actions resulted in a denial of access on the part of the Complainant, as alleged under issue 4(b).  Nonetheless, the College has agreed to implement a system for checking the effectiveness of the library CCTV at the start of each term.

Issue Five:  Whether the College denied the Complainant the benefit of or otherwise excluded him from participation in courses by failing to provide accessible audio reading materials, which he requested and the College approved in the following classes: a) English class, Aug 2011-Dec. 2011; b) Computer class, Aug 2011-Dec. 2011; and c) Biology Lab, January 2012-May 2012.

With respect to the Complainant’s English class, Aug 2011-Dec. 2011 issue (Issue 5a), the Complainant alleged that he had trouble obtaining his books in audio format in English. The course used the 8th Edition of the text, which did not yet come in audio format.  Rather than format the book to audio or change the text used for the class, the College obtained the 7th Edition for the Complainant.  During the negotiations of this issue with the College, the Complainant was without any audio text until the second week of class.  OCR asked the Complainant to explain the differences in the editions, if any, which affected the class.  The Complainant stated that there was one story in the 8th Edition, which was not in his 7th Edition.  The Complainant had his parents read that story to him.  When asked, the Complainant was unable to recall the actual start date to the class.  E-mail correspondence shows that the Complainant received the audio text on August 26, 2011.  The evidence shows that the term started on August 22, 2011 leaving the Complainant without a text for four calendar days after class started. The Complainant did not articulate any harm as a result of not receiving the audio text at the start of the class.

Applying the preponderance of the evidence standard, OCR concludes that lack of his audio text for four calendar days is not sufficient to rise to the level of a denial of access.  In making this conclusion, OCR notes that the Complainant received the text within four days of the start of class. The evidence is insufficient to support of finding of noncompliance with Section 504 and Title as alleged under Issue 5(a).

Nondiscrimination notice and Grievance Procedures

During the investigation of this complaint, OCR noted concerns with the College’s nondiscrimination notice and grievance procedures.  The College has agreed to resolve those concerns by entering into the enclosed Agreement.

This concludes OCR’s investigation of the complaint, which we are closing effective the date of this letter.  This letter sets forth OCR’s determination in an individual OCR case.  This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such.  OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public.  The Complainant may have the right to file a private suit in federal court whether or not OCR finds a violation.

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request.  In the event that OCR receives such a request, we will seek to protect, to the extent provided by law, personally identifiable information that, if released, could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Please be advised that the College may not harass, coerce, intimidate, or discriminate against any individual because he or she has filed a complaint or participated in the complaint resolution process.  If this happens, the Complainant may file another complaint alleging such treatment.

If you have questions or concerns regarding OCR’s determination, please contact Colleen Grogan at (404) 974-9395, or Wendy Gatlin, Compliance Team Leader, at (404) 974-9356.