Complaint filed against Reed College

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June 25, 2009

VIA E-MAIL AND FIRST CLASS MAIL
Ms. Noel Nightingale
Seattle Office
Office for Civil Rights
U.S. Department of Education
915 Second Avenue
Room 3310,
Seattle, WA 98174-1099
OCR.Seattle@ed.gov

Mr. John Wodatch
Chief
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
John.L.Wodatch@usdoj.gov

Re: ADA Title III and Section 504 of the Rehabilitation Act:
Reed College/Kindle DX

Dear Ms. Nightingale and Mr. Wodatch:

We represent the National Federation of the Blind (NFB), the American Council of the Blind (ACB), and those members who are current and prospective college students who are blind or have low vision. Reed College has contracted with Amazon.com, Inc. to provide the Kindle DX electronic book reader and web browser to its students in the fall of 2009.
See http://www.reed.edu/news_center/press_releases/2008-2009/050609_Kindle.html. Because the Kindle DX is inaccessible to blind students, the Kindle DX program at Reed violates Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).

Reed will provide the Kindle DX to students in a two-semester pilot program beginning this fall. The Kindle DX will be offered to Reed students in three upper-division courses.

The NFB is a national nonprofit membership organization of over 50,000 members. The ultimate purpose of the National Federation of the Blind is the complete integration of the blind into society on a basis of equality. The NFB engages in advocacy, education, research, technology, and programs encouraging the independence and self-confidence of people who are blind or have low-vision. The NFB has affiliates in all fifty states plus Washington D.C. and Puerto Rico, and over seven hundred local chapters. A major focus area of the NFB is education for blind youth. NFB education programs include scholarships for blind students, Braille literacy programs, a clearinghouse of information on science subjects and careers, and a collection of literature on education for blind students. See www.nfb.org for more information. Contact information for NFB is below:

Marc Maurer
President
National Federation of the Blind
1800 Johnson Street
Baltimore, MD 21230
Phone: 410-659-9314
Fax: 410-685-5653

The ACB is a national nonprofit membership organization with 51 state and regional affiliates and 20 national special interest and professional affiliates. ACB’s membership numbers in the tens of thousands, the vast majority of whom are blind persons. ACB’s mission is to improve the well-being of all blind and visually impaired people by: serving as a representative national organization of blind people; elevating the social, economic and cultural levels of blind people; improving educational and rehabilitation facilities and opportunities; cooperating with the public and private institutions and organizations concerned with blind services; encouraging and assisting all blind persons to develop their abilities and conducting a public education program to promote greater understanding of blindness and the capabilities of blind people. Education is a major focus area of ACB, including scholarships for blind students and advocacy for improved education and rehabilitation programs for blind people. See http://www.acb.org/profile.html for more information. Contact information for ACB is below:

Melanie Brunson, Executive Director
Mitch Pomerantz, President
American Council of the Blind
1155 15th St. NW, Suite 1004
Washington, DC 20005
Phone: (202) 467-5081
Fax: (703) 465-5085

The Kindle DX allows students to carry over 3,500 books in a single mechanism. In addition, the Kindle DX offers a free web browser. Students using the Kindle DX will have access to a variety of functions not available in print textbooks, including a search function, an option to access the dictionary definition or Wikipedia information for any word the student highlights, and the ability to receive documents created by their professors electronically.

The Kindle DX has a text-to-speech feature that blind and print-disabled students can use to hear the text. However, the Kindle DX’s menus are not accessible to blind students. The menus (for selecting a book, activating features, setting device settings, etc.) are on-screen only, with no audio option. Nor are the Kindle and its e-books accessible through external screen readers. Therefore, if a student cannot see the screen, she cannot know which book she has selected, what the device settings are or how to change them, or how to navigate the on-screen menu. Ironically, without the ability to see the appropriate menu, she will not be able to activate the text-to-speech feature. Similarly, without audible screen navigation, the Kindle DX web browser, Kindle Store, and other features will simply not work for blind students. See the Kindle DX QuickStart Guide, which describes some of the onscreen menu features, http://s3.amazonaws.com/kindle/KindleDX_Quick_Start_Guide.pdf. See also the Kindle DX User’s Guide, http://s3.amazonaws.com/kindle/KindleDX_Users_Guide.pdf.

This lack of accessibility is not due to any technological challenge. Menus are routinely rendered audibly in a host of handheld devices, including computers, Apple’s iPod Nano and iPhone 3GS, ATMs, talking microwaves, calculators and thermometers, and could be implemented for the Kindle DX.
Because of this lack of access, beginning in the fall of 2009, blind students in several classes at Reed will be denied equal access and effective communication in violation of Title III of the ADA and Section 504.

Reed is a private university subject to Title III of the ADA. http://www.princetonreview.com/ReedCollege.aspx. In addition, Reed receives federal financial assistance (results of search at http://wdcrobcolp01.ed.gov/CFAPPS/grantaward/start.cfm) and is, therefore, subject to Section 504. Contact information for Reed is below:

Mr. Colin Diver
President
Reed College
3203 E Woodstock Blvd.
Portland, OR 97202
503/777-7500
Fax 503/777-7701

Blind students and prospective students are qualified individuals with disabilities within the meaning of the ADA and Section 504. 28 C.F.R. § 36.104; 34 C.F.R. § 104.3. Therefore, Reed may not provide them unequal or separate access to the benefits of its programs, services and activities. 28 C.F.R. § 36.201-202; 34 C.F.R §104.4. Reed must also ensure that its communications with students with disabilities are as effective as its communications with students without disabilities. 28 C.F.R. § 36.303; 34 C.F.R. § 104.4.

Separate or different services for individuals with disabilities are only permitted under Title III and Section 504 when they are necessary to achieve equal access. 28 C.F.R. § 36.202(c); 34 C.F.R. § 104.4(b)(1). In the past, when colleges and universities had to rely on print textbooks, they had to rely on separate auxiliary aids and services, such as alternative format textbooks (Braille, taped texts, or electronic formats). This was necessary because print textbooks could not be made accessible any other way. Reed’s program of offering the Kindle DX to students can technologically be made fully accessible without the need for alternative formats. As such, Reed should not be permitted to rely on unequal and separate alternative formats as a solution. Much as website technology has advanced to the point where public entities cannot rely on mailing alternative formats to blind individuals instead of making their websites accessible, electronic textbook technology has similarly advanced to the point where it can be made equally accessible to blind people. Therefore, universities that offer electronic textbook programs can no longer rely on separate alternative formats, but must provide an integrated program. See U.S. Department of Justice, “Accessibility of State and Local Government Websites to People with Disabilities,” http://www.ada.gov/websites2_scrn.pdf (“An agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line. These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available.”)

Both the ADA and Section 504 recognize that methods for ensuring effective communication must evolve as technology evolves. Thus, for example, because communication technology for deaf people has advanced beyond the TTY, covered entities must make their telephone communications accessible to those new technologies, and may not continue to assume deaf people will use TTYs. See U.S. Department of Justice, “ADA Best Practices Tool Kit for State and Local Governments”, Chapter 4: 9-1-1 and Emergency Communication Services, Section D,” http://www.ada.gov/pcatoolkit/chap4toolkit.htm.

Reed should not be permitted to avoid providing access because of its, and its licensee’s, own choices: “[W]hen making purchases and when designing its resources, a public entity is expected to take into account its legal obligation to provide communication to persons with disabilities that is “as effective as” communication provided to nondisabled persons. At a minimum, a public entity has a duty to solve barriers to information access that the public entity's purchasing choices create, particularly with regard to materials that with minimal thought and cost may be acquired in a manner facilitating provision in alternative formats. When a public institution selects software programs and/or hardware equipment that are not adaptable for access by persons with disabilities, the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection.” Letter of Findings, Department of Education Office for Civil Rights Docket No. 09-97-2002.RES, April 7, 1997, http://uwctds.washington.edu/policy/09972002.RES.htm.

In addition, even if Reed were permitted to rely on separate auxiliary aids and services to provide effective communication, equality of access and effective communication cannot be achieved by providing alternative formats, such as Braille textbooks, taped texts, or electronic files, for several reasons:

 Timeliness:

•  Kindle DX textbooks are available for download within 60 seconds, 24 hours a day.
• Alternative format textbooks often take weeks or months to receive and must be ordered specially through Disabled Student Services offices, often far in advance of a class. This forces students with disabilities to commit to course selection far earlier than non-disabled students and locks them into course selections, even though non-disabled students can add or drop courses even after the classes have started.

Content:

•  Kindle DX textbooks include structural data, including chapter headings, page numbers and footnotes that make for easy navigation.
• Electronic files generated by Disabled Student Services offices are generally “text dumps” without the structural data that ensure proper reading order of pages with columns and sidebars and that enable navigation.

Features:

•  Kindle DX offers features, such as free instant access to dictionary definitions for any word that is highlighted by the reader and the ability to highlight and annotate text.
• Electronic files, taped texts, and Braille textbooks do not offer instant free dictionary access or the ability to highlight or annotate text.

Cost:

•  According to Amazon’s promotional materials (see, e.g., Video Demonstration at http://www.amazon.com/Kindle-DX-Amazons-Wireless-Generation/dp/B0015TCML0), “Kindle books and periodicals are much less expensive than their print versions.”
• Blind students are generally required to pay the higher price for a print book as a condition of receiving the content in an electronic file.

Web Browser:

•  Kindle DX includes a free web browser that is not contingent on the availability of Internet access through cable, broadband, or WiFi. Instead, it relies on cell phone networks and is available nearly anywhere.
• Students with disabilities must obtain separate Internet access, often at substantial expense, and that Internet access requires a physical or wireless Internet connection. Students with disabilities, therefore, face additional costs and limitations on location that nondisabled students do not experience. 

For the above reasons, Reed’s Disability Support Services (DSS) program is unable to provide equal access to textbooks for blind students. DSS services are not equal to print textbooks and, as a result, blind students are behind their nondisabled peers. If DSS services are compared to the instant, mobile, 24-hour access and additional features of Kindle DX, it is clear that blind students will be even further behind and will face serious discrimination in Reed’s Kindle DX program. The Kindle DX has the potential to place blind students on an equal footing, for the first time in their lives. But because of Reed’s, and Amazon’s, choice not to provide accessible menus, they will be put even further behind.

For these reasons, we request that the Department of Justice, Civil Rights Division and/or the Department of Education Office for Civil Rights investigate the Kindle DX program at Reed College under Title III of the ADA, Section 504, and any other applicable laws. We request that the Department require that Reed ensure that the Kindle DXs provided to students are accessible or delay the Kindle DX program until the devices are accessible. Copies of our correspondence with Reed are enclosed.

Please feel free to contact us with any questions or concerns.

Very truly yours,


Daniel F. Goldstein
Mehgan Sidhu
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202
(410) 962-1030
Fax: (410) 385-0869
ms@browngold.com

Eve L. Hill
1667 K St. NW, Suite 640
Washington, DC 20006
(202) 296-2044
Fax: (202) 296-2047
ehill@law.syr.edu

Amy Robertson
FOX & ROBERTSON, P.C.
104 Broadway, Suite 400
Denver, CO 80203
TTY: (877) 595-9706
(303) 595-9700
Fax: (303) 595-9705
arob@foxrob.com

Kathy Wilde
Legal Director
DISABILITY RIGHTS OREGON
620 SW Fifth Avenue – 5th Floor
Portland, OR 97204
(503) 243-2081 ext. 215
kwilde@disabilityrightsoregon.org

cc: Ms. Russlynn Ali (via e-mail and first class mail)
Assistant Secretary for Civil Rights
Office of Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, D.C. 20202-1100
ocr@ed.gov

Terrance Pancoast, Esq. (via e-mail and first class mail)
Stoel Rives LLP
900 SW Fifth Avenue
Portland, OR 97204
trpancoast@stoel.com

DOE OCR Complaint - Reed w Ltrhead final.doc

May 7, 2009

VIA E-MAIL AND FIRST CLASS MAIL
Colin Diver (presidentsoffice@reed.edu)
President
Reed College
3203 SE Woodstock Blvd.
Portland, Oregon 97202

Dear President Diver:

I write on behalf of the Reading Rights Coalition, a cross-disability group of thirty-two organizations that are committed to ensuring that e-books are accessible to and usable by anyone wishing to read them.

It has been brought to our attention that Reed College has entered into an agreement with Amazon to provide mobile access to e-textbooks and course materials through the Kindle DX. The controls and navigation features of the Kindle are inaccessible to blind and visually impaired students and faculty who will not be able to independently navigate Kindle’s menus, change settings, locate books or documents, or be able to identify critical information, such as device settings. We encourage you not to move forward with your agreement, as doing so would violate numerous federal and state laws barring disability discrimination by colleges and universities, including Section 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, and Oregon’s Unlawful Discrimination Against Persons with Disabilities statute.

As elsewhere, separate is inherently unequal and texts that are produced by your Disabled Student Services Office for your blind students lack the navigation, structural information and features to be found on the Kindle and in its contents and cannot constitute meaningful participation in this program.

Because e-books, as zeros and ones, are not inherently visual, aural or tactile, they offer individuals the opportunity to access content through whatever method(s) are accessible to them. Accessible e-book readers create the opportunity for the first time for blind and visually-impaired students to have access to the same content, in the same manner, with the same features and at the same time as sighted students. This means that a blind student’s achievement could, finally, be primarily determined by her intellectual and creative abilities and work ethic, rather than impinged upon by unnecessary barriers relating to lack of sight. Thus, not only do we have no objection to the Kindle once its controls are accessible, but we would eagerly embrace it.

Members of our Reading Rights Coalition will be addressing this issue aggressively and, where possible, in cooperation with, rather than as adversaries to, the educational institutions. Recently, Amazon announced on its blog a vague and indeterminate promise to work on making the Kindle controls accessible, bereft of timeline or details. It is our understanding that whatever plans may exist, they do not include having accessible controls for the Kindle DX in time for its introduction on your campus in the fall. This is powerful technology, and the distribution of an inaccessible e-book technology that aggravates a gratuitous competitive inequality is completely unacceptable.

The inaccessibility of the Kindle does not result from the absence of existing technology to make the Kindle accessible. The inaccessibility of the Kindle is entirely the product of Amazon’s well-documented lack of interest in providing e-books that are accessible to people who are blind and visually-impaired. We encouraged Amazon to make the Kindle controls accessible, beginning with a meeting more than 15 months ago with the Kindle product manager and other officials at Amazon.

Since that time, counsel for one of our Reading Rights Coalition members has repeatedly warned Amazon that if it entered the textbook market without accessible controls it would be exposing its institutional customers to substantial liability. We did not and do not understand a market plan that involves exposing one’s customers to lawsuits. Nonetheless, Amazon plunged ahead to develop the Kindle 2 and now the Kindle DX before starting a serious effort to make the device accessible.

When educational institutions insist on accessibility, accessibility happens. When iTunes U was inaccessible and the Massachusetts Attorney General and the undersigned demanded that Apple make that service accessible, it resulted in an accessible iTunes and an accessible iPod, within three months after the under- signed wrote Apple’s 257 university partners to apprise them of the accessibility issue. You now have a similar opportunity to effect this even more momentous positive change.

We recognize that the cost of print textbooks and environmental sustainability, among other reasons, make e-textbooks extraordinarily desirable for your students. If you hold the line on accessibility, competitive market forces will come into

play that will enable you to provide all of your student’s equal access to e-books under the law. But unless you insist on accessibility, no vendor will bother to provide it.

Attached are guidelines we will soon be distributing to colleges, universities and college bookstores to encourage them to demand accessibility from e-book vendors. I have also attached a resolution recently passed by the National Council of State Agencies for the Blind, which includes the state agency for Oregon, urging institutions of higher education to insist that the e-book readers and e-books they offer are accessible and noting the legal reasons for doing so.

Because the announcement of this pilot project comes less than four months before the commencement of the fall semester, any meeting to discuss a possible resolution of this matter, with or without Amazon, must be scheduled as soon as possible. The blindness and cross-disability groups in this Reading Rights Coalition are not willing to compromise their options by delay. Accordingly, if you wish to discuss this further, please contact the undersigned on or before the close of business on May 15. I will be traveling to and on the West Coast May 14 or 15, so on those two days, a message to my e-mail, dfg@browngold.com or a call to my cell phone, 410-218-8537, might be best.

Very truly yours,

Daniel F. Goldstein on behalf of
The Reading Rights Coalition

DFG/tt
Enclosures
cc: Terrance Pancoast, Esq. (trpancoast@stoel.com)
David Zapolsky, Esq. (zapolsky@amazon.com)

To Reed 5-7-09s.doc

From: Pancoast, Terry
Sent: Thursday, May 21, 2009 4:21 PM
To: Daniel F. Goldstein
Cc: ed.mcfarlane@reed.edu
Subject: RE: Inaccessibility of Kindle DX to blind students

Dear Mr. Goldstein,

This is in response to your voicemail message this morning. As you know, I am one of the attorneys for Reed College.

Reed College does not believe it is in violation of either the letter or the spirit of any state or federal laws barring disability discrimination. Reed College does not intend to otherwise respond to your May 7, 2009 letter and does not wish to discuss this matter further with you.

Terry Pancoast

Terrence R. Pancoast
STOEL RIVES LLP | 900 SW Fifth Ave, Suite 2600 | Portland, OR 97204-1268 Direct: (503) 294-9526 | Mobile: (503) 320-1724 | Fax: (503)
220-2480
www.stoel.com

From: Daniel F. Goldstein
Sent: Thursday, May 07, 2009 11:54 AM
To: presidentsoffice@reed.edu
Cc: Pancoast, Terry; Zapolsky, David
Subject: Inaccessibility of Kindle DX to blind students

Dear President Diver:

Please find enclosed correspondence and attachments from the Reading Rights Coalition.

Very truly yours,

Daniel F. Goldstein
Brown, Goldstein & Levy, LLP
120 E. Baltimore St., Suite 1700

From Reed 5-21-09s.doc