Check that alternative device meets OCR’s ‘equally effective, equally integrated’ standard

When school technology isn’t accessible to a group of students with disabilities, a district may provide an alternative device or other accommodation or modification.

The alternative must allow students “to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner,” according to office for civil rights in its Dear Colleague Letter, 43 NDLR 75 (OCR 2011).

The challenge for districts that provide alternative technology to students with disabilities is finding the option that is as “equally effective” and “equally integrated” as the technology that’s available to other students, said Christopher J. Fernandes, a school attorney with Fagen, Friedman, & Fulfrost LLP in California.

“I think there can always be an argument that if you’re providing something different that it’s not equal,” Fernandes said.

That’s one reason best practice dictates training those involved in your district’s procurement process of the requirements under Title II and Section 504 so they can prioritize accessibility in tech purchases, he said.

“If you’re not involved on the front-end, you may face some significant costs in the long run as far as trying to provide alternative technology or trying to modify the technology you have,” Fernandes said.

Where that planning hasn’t happened or where an emerging technology isn’t accessible, OCR does permit districts to provide a different form of technology or other accommodation to students with disabilities, he said.

Below, Fernandes explains what OCR means by “equally effective” and “equally integrated” and offers tips on how to meet this standard.

Equally effective

· Ask what this new technology allows students without disabilities to do. To determine if an alternative device would be equally effective, staff need to fully understand what the original technology can do, Fernandes said. For example, an electronic book reader is not just a device that displays electronic books, he said. It also allows students to create digital notes, highlight text, and interact with the content in other ways.

“Because potentially a student without a disability will be able to take advantage of everything that that new technology will provide, that may create an advantage in a class if that’s not equally accessible to students with disabilities,” he said.

· Compare benefit, opportunity. Given the opportunities and benefits provided students without disabilities through new technology, staff need to compare whether the alternative technology provides an “equally effective” benefit and opportunity, Fernandes said. Take into consideration whether students are required to use certain features on the original device in class.

“But you also have to look at how, even if it’s not required that students use features on a device, if it’s available and it benefits students without disabilities, that could be an issue if it’s not also available in the alternative device,” he said.

Equally integrated

· Strive to make alternative just as easily available as new technology. An alternative device that’s not provided in an equally integrated manner won’t pass muster with OCR. Make the alternative as available as the other technology is to students without disabilities, Fernandes said. For example, don’t make students with disabilities go to a different room to use the alternative device or accommodation if other students without disabilities aren’t required to, he said. If there are multiple students who need an alternative technology, plan to have a sufficient number available for their use.

· Think about where students will need it. Districts aren’t required to make the alternative technology available universally. It does need to be available where students with disabilities will need it, Fernandes said. For instance, a district that installed screen-reader software on computers in 16 classrooms in an elementary school still ran afoul of Section 504 and Title II because the software hadn’t been installed in six classrooms used by students with visual impairments, according to OCR. Charlotte-Mecklenburg (NC) Schs. 51 IDELR 196 (OCR 2008).

“OCR didn’t say it had to be on all computers in the school, but it had to be on the computers wherever students with visual impairments would be using those computers,” Fernandes said.

How to demonstrate that alternative meets OCR’s standard

“In the end, I think there will always be the potential for disagreements over whether what the district has done is equally effective and equally integrated,” Fernandes said.

However, where districts thoroughly and thoughtfully review the accessibility of emerging technology before adopting it, they are better suited to defend against allegations that an alternative doesn’t meet OCR’s standards, he said. If a district can show that it considered the accessibility limitations of a technology, thought about what the technology does, and had a plan for how to provide an alternative for those individuals who couldn’t access it, that helps demonstrate that you provided an alternative technology that allowed the students to receive all the educational benefits provided in an equally effective and equally integrated manner, Fernandes said.

Christopher Fernandes will present the session ADA Compliance: Ensuring Students With Disabilities Can Access Your Technology and Websites during LRP’s 38th Annual National Institute® on Legal Issues of Educating Students with Disabilities to be held April 23-26 in National Harbor, Md.

Jennifer Herseim covers Section 504, education technology, and Common Core issues related to special education for LRP Publications.

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