Standing Up for Your Rights
By Peter Wacht
NCRA receives approximately two to three calls a month from students or parents of students who are trying to obtain communication access realtime translation (CART). The students want to participate fully and effectively in their educational experience, whether at the high school or college level. The school system or university doesn't want to pay the cost of CART or simply doesn't understand what CART can do for someone who is deaf or hard-of-hearing.
For example, one college student and her family fought with her university's administration for more than a year before she was able to receive CART in her classes. And this is just one example of the struggle that people who are deaf or hard-of-hearing often face when trying to obtain the services that will allow them to participate fully not only in the classroom, but in society as a whole.
Why is this still an issue even though CART comes under the "reasonable accommodation" aspect of the Americans with Disabilities Act?
Why Does This Happen?
The ADA mandates the elimination of discrimination against people with disabilities. Since its enactment in 1990, it has offered a great deal of assistance in this regard, ensuring that people with disabilities obtain access to those aspects of society they previously had been unable to participate in; for example, serving as a juror because of a hearing impairment. Nevertheless, as with any piece of legislation, the established guidelines still allow for a great deal of interpretation.
This can best be seen when looking at the requirement of "reasonable accommodation." The ADA states that:
The term 'reasonable accommodation' may include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
However, the determination of what constitutes a reasonable accommodation is not left to the person in need of the service. Rather, the organization or school that must provide the reasonable accommodation has the final say. In fact, the organization or school can cite "undue hardship," meaning "an action requiring significant difficulty or expense," if it chooses not to provide the requested service, though such a claim must strictly follow the definitions listed in the ADA.
The ADA does define auxiliary aids and services. With particular relevance for people who are deaf and hard-of-hearing, it includes "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments." The Massachusetts Commission for the Deaf and Hard of Hearing provides an example on its Web site (www.magnet.state.ma.us/mcdhh/):
Under Title III, public accommodations must provide auxiliary aids and services to ensure effective communication access. This includes ASL and oral interpreters, assistive listening devices, CART services, closed-caption decoders or TVs with caption capability, TDDs and amplified telephones, among others. It is important to keep in mind that the law recognizes that the Deaf/learning disabled/hard-of-hearing person has the choice of which accommodation best fits his/her communication needs; an equally effective substitute may be provided if the original request is unreasonable, unfillable, or fundamentally alters the nature of the program or service provided. For example, while providing a dialogue script to a hard-of-hearing person on a factory tour would be considered reasonable and effective, doing the same for a Deaf ASL-user who has given advance notification of attendance would not be acceptable because it fails to provide effective access. However, the same Deaf person showing up unannounced and expecting to be provided with an ASL interpreter cannot argue that accommodation was denied, since it would be unreasonable to expect the factory to hire a full-time ASL interpreter in case a Deaf person shows up.
This demonstrates how certain aspects of the ADA are concrete, while others are left to the interpretation of those who must implement ADA policies.
Support for the Consumer's Needs
The Department of Education's Office of Civil Rights is tasked with enforcing federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability and age in programs and activities that receive federal financial assistance. For our purposes, this means the OCR handles complaints or can perform compliance reviews regarding the auxiliary aids provided by federally funded schools and universities to students who are deaf or hard-of-hearing. OCR offers some guidance in its document entitled "Auxiliary Aids and Services for Postsecondary Students With Disabilities."
The college or university does have a choice in what auxiliary services it will provide, but the Office of Civil Rights says quite clearly: "Colleges are not required to provide the most sophisticated auxiliary aids available; however, the aids provided must effectively meet the needs of a student with a disability. An institution has flexibility in choosing the specific aid or service it provides to the student, as long as the aid or service selected is effective. These aids should be selected after consultation with the student who will use them." Almost 20 aids are listed, including interpreters, note takers, assistive listening devices, closed-caption decoders, and open and closed captioning.
Support for this stance comes from two pieces of disability legislation. Title II of the ADA, which prohibits state and local governments from discriminating on the basis of disability, reads in part: "A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity conducted by a public entity."
Section 504 of the 1973 Rehabilitation Act prohibits discrimination on the basis of physical or mental disability, stating: "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. ..." This regulation applies to all recipients of this funding, including colleges, universities, and postsecondary vocational education and adult education programs.
Further, with respect to auxiliary aids, "A recipient ... 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."
The Office of Civil Rights not only enforces Section 504, but also Title II in public colleges, universities, and graduate and professional schools. And, "The requirements regarding the provision of auxiliary aids and services in higher education institutions described in the Section 504 regulation are generally included in the general nondiscrimination provisions of the Title II regulation."
These sections state that the school not only must provide auxiliary aids and services in a timely manner, but they must ensure that students with disabilities can participate effectively. And the definition for effectiveness? "No aid or service will be useful unless it is successful in equalizing the opportunity for a particular student with a disability to participate in the education program or activity."
CART consumer Andy Nelson provides an example. He began his college career at the University of Washington with CART: "In my two years at UW, for the first time, I felt on equal footing with my fellow classmates, and I have never had that opportunity. Realtime captioning allowed me to get everything the professor says in class, word for word, as well as comments or questions students have during the lecture. This enabled me to actively participate in discussions and lectures, something I had never ever been able to do before." Upon transferring to Washington State University to pursue his major, he learned that he would have to accept notetaking as an auxiliary aid until arrangements could be made for remote CART. "The difference is night and day," said Andy. "Not a day goes by that I wish I had realtime captioning at that moment, working in the classroom, because the amount of information that I miss is absolutely phenomenal."
The primary reason cited for not wanting to provide CART is cost. And the Office of Civil Rights does note that a college or university does not have to provide a requested auxiliary aid if it imposes an undue burden as defined by the ADA. Nevertheless, "An institution may not limit what it spends for auxiliary aids or services or refuse to provide auxiliary aids because it believes that other providers of these services exist, or condition its provision of auxiliary aids on availability of funds." Based on this statement, it appears that funding is a less than acceptable excuse for failing to provide CART or other requested services. Instead, "College officials also should be aware that in determining what types of auxiliary aids and services are necessary under Title II of the ADA, the institution must give primary consideration to the requests of individuals with disabilities."
What Can We Do?
Unfortunately, obtaining CART in certain situations will most likely remain a struggle, often because of a lack of knowledge regarding the applicable laws and a lack of understanding as to the needs of those people requesting auxiliary aids. In addition to the information provided here, there are several other sources of assistance.
- Testimonials. NCRA has posted to its Web site almost 20 testimonials submitted by CART consumers as to the benefits of CART. You can find these testimonials at http://cart.NCRAonline.org/CARTtestimonialsMainPage/, and the authors have given permission for their use.
- Protection and Advocacy Agency. These agencies fall under the jurisdiction of the Administration on Developmental Disabilities of the Department of Health and Human Services, and they have local offices in each state. For a list of state agencies, visit www.acf.dhhs.gov/programs/add/states/p&a.htm.
- Legal action. To the best of NCRA's knowledge, a handful of cases have come up focused on providing CART in an educational environment. (Most of the ADA compliance litigation has to do with employment.) In almost all of these instances, the cases settled, and the students who brought the litigation are now receiving the CART services they requested. The interpretive nature of the ADA as to reasonable accommodation with respect to providing CART or other services to students who are deaf or hard-of-hearing may not be confirmed until a case makes its way through the courts and can then be used as a precedent.
In fact, the Alexander Graham Bell Association for the Deaf and Hard of Hearing has launched an educational advocacy initiative, in which the association will provide legal assistance to a limited number of families. Their aim is to select "impact" cases that will not only help individual children but will also have the potential to influence case law in this area and educational administrators' decision-making broadly. For more information, contact Children's Rights Advocate John Flanders at JFlanders@agbell.org.
Until then, the most important thing to keep in mind is that people who are deaf or hard-of-hearing should receive the services they require to participate fully and effectively in the classroom. Whether CART or some other method is most effective is their decision to make; it should not be made for them.
About the Author:
Peter Wacht is NCRA's former Senior Director For Communications and Public Relations