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"Americans with Disabilities Act: Responsibilities for Postsecondary Institutions Serving Deaf and Hard of Hearing Students," written by Jeanne M. Kincaid, Esq., and Sharaine J. Rawlinson, MSW, 1998, 2001, with the support of the Midwest Center for Postsecondary Outreach at St. Paul Technical College, discusses the application of the ADA in the college or university setting by tackling specific issues that might come up in a Q&A format. The questions were submitted by university officials. The captioning section from this text is reprinted here with the permission of the authors. Please keep in mind that the responses are not legal opinions, but rather technical assistance based on the facts offered.
Jeanne Kincaid, Esq., responded to the following questions.
A hard-of-hearing student who is a junior asks for realtime captioning for all his/her classes. Previously, the student has used notetakers and/or assistive listening systems. The student is in good academic standing. Must the college provide realtime captioning (obviously, we can if we want to; we want to know the letter and the spirit of the law). Does it matter if (a) the student is failing; or (b) the student is a freshman or recently acquired a hearing loss?
The auxiliary aid of realtime captioning has proven to be an effective accommodation for some students with hearing loss, particularly students whose primary language is English. Computer-assisted transcription devices are among those accommodations specifically mentioned in the ADA.1 Here, whether the college is public or private may have some bearing on the obligation.
A student who is enrolled in a private school is likely to be protected by Section 504 and if the school is not controlled by a religious organization, Title III of the ADA. Under these two provisions, a private school need only provide effective accommodations. Therefore, if a student has been doing relatively well with other forms of accommodation, the college would likely not be required to honor the student's request for captioning.2
On the other hand, if the student is enrolled in a public institution, under Title II of the ADA, institutions must give "primary consideration" to the communication preferences of the individual with a disability.3 The Appendix to the regulations details when such a request may be denied. One reason is that another effective accommodation exists to meet the need.4 Although the courts to date have not had much opportunity to interpret this provision, the Office of Civil Right's Region IX has, in a number of cases, interpreted the provision broadly. In contrast, another region of OCR upheld a university's refusal to provide captioning for extracurricular activities, participation in a grievance and a weekend seminar involving small group discussion.5
The questioner is making the correct inquiries: (1) how well is the student doing with other accommodations; (2) would the provision of captioning enable the student to be more integrated and participatory in the classroom; (3) would other computer-assisted notetaking devices serve the student well; (4) cost; (5) availability; and (6) the appropriateness of the medium given the forum for communication (e.g., small group discussion vs. lecture format).
One final note, should a public institution deny the request for captioning on the basis of undue financial or administrative burden, that decision must be made by the head of the institution or his/her designee, submitted in writing, and set forth the reasons why, after considering the institution's resources.6
I have a question about the advantages and disadvantages or strengths and weaknesses of employing the standards that are described in Section 504 of the Rehabilitation Act as compared to the standards outlined in the Americans with Disabilities Act. From my understanding of Title III of the ADA, it is within the power of the institution and its agents (i.e., coordinators of services for deaf and hard-of-hearing students) to make decisions about what kind of "auxiliary aids" will be provided, perhaps in consultation with other members of their department about the options available and the "best fit" for any given student's needs. However, I was told that Section 504 defines "auxiliary aids" or services as those which are requested by the student, with reasonable consideration by the agents of the university. An example might be a student that is taking a heavy technical class containing extensive specialized vocabulary (that interpreters are not qualified to handle) who requests both CART services and sign language interpreters. Is it within the spirit or letter of the law to provide both auxiliary aids? What about the practice of providing a student with a transcript (on disk) of their class sessions as prepared by the CART reporter? Is this also up to the student to request or can the university decide what auxiliary aids are appropriate?
Also, the same concern regarding notetaking services. Now with the new technologies available in the field of notetaking such as CAN and speech recognition software, is it the spirit of Section 504 that students requesting such services plus interpreters and CART (specifically without access to the transcript on disk) are to have these requests honored? Are the provisions in the ADA in harmony with the provisions in Section 504? Which is stronger and provides more guidance?
Like the preceding question, one must first identify whether the institution is public (ADA Title II) or private (ADA Title III). The inquirer is correct in her assertion that the ADA places more emphasis on engaging in an interactive dialogue with the consumer to determine appropriate accommodations than does Section 504. Moreover, as mentioned above, a public institution should give "primary consideration" to the communication preferences of the individual with the disability. However, this language does not mean that the student controls the selection of auxiliary aids and services; that remains exclusively within the purview of the college. On the other hand, the college carries the ultimate burden of demonstrating that its choice of accommodation is indeed effective.
Accordingly, making a determination as to what is an effective and appropriate accommodation for a particular student must be decided on a case-by-case basis. In some situations, such as those suggested in this question, the specialized vocabulary within a particular field of study may indeed justify honoring a student's request for CART reporting rather than interpreting services. However, I would suspect that the provision of CART reporting and interpreting services would be justified in only the most extraordinary circumstances, whereas, the provision of a notetaker along with an interpreter would seem to be justified in most circumstances. Providers should understand that the ADA is not intended to maximize a student's potential or guarantee a student's success. It is certainly a very exciting time in an era where technological solutions are opening many doors to individuals with disabilities. But, the ADA does not suggest that a student be provided with every possible accommodation that might assist him/her. At some point, the accommodations may create an undue burden for the institution. In summary, I believe that with advances in technology, the range of options for providing accommodations has necessarily expanded. In some ways, this therefore makes it even more critical that the provider have an excellent understanding about the consumer's degree of hearing loss, his/her experience with a range of options and then foster an ongoing evaluation of the effectiveness of those services provided in order to fine-tune accommodations on an individualized basis.
What can be done about videotapes that have been purchased by the school and have been made by other companies? Must the school caption these videos?
When an instructor uses a video in a classroom, s/he needs to be mindful of how to make the video accessible to a person with hearing loss. The ideal situation when purchasing or leasing videos is to order them with captioning. Campus departments that are truly mindful of access can avoid many problems in the future. When a school creates its own videos, it should caption them at the time made which is far less costly. In those instances where the video is not captioned, one should first consult the student to determine what might work for him/her. If the students uses ASL, would interpreting the video be appropriate? Sometimes, video clips do not lend themselves well to ASL. Proper lighting must be considered. Does the publisher of the video have a written transcript which it is willing to provide, which is often the case. Will that suffice? Captioning a pre-existing video is very time consuming and expensive and would not likely be required under the ADA, so I would work with the student and faculty member to come up with alternatives that might work for all parties involved.
What about a hard-of-hearing participant who does not sign, and requests a transcriptionist or realtime captioner as opposed to just a notetaker because he does not sign? We do not have realtime captioning available. This is for a weeklong conference. We are searching for someone more than "just a notetaker," but we don't have anyone trained. We are trying to work with the student; he does not want to work with us.
I understand the concerns of both the student and the college. For a student who is hard of hearing, notetaking is likely to be insufficient to meet his/her needs. Even an excellent lip reader may be expected to miss more than 50 percent of spoken material. If other assistive devices are inadequate, realtime captioning may offer an excellent accommodation, which also allows the student to be more involved in the classroom experience. At a minimum, the college must satisfy itself that what it is providing the student is effective. Interpretive guidance from the U.S. Department of Justice might be helpful:
"Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication."7
From the standpoint of the college, the request may pose an undue burden, which is a defense to a requested accommodation. If there are no qualified captioners in the geographical area, a college may be unable to provide the accommodation even if it wishes to. On the other hand, some captioners advertise that they are capable of offering the service at a distance using modem technology. These are the kinds of things the college should explore. Moreover, as mentioned above, if the college is public and it denies the accommodation, it will need to put its decision in writing in accordance with the requirements listed above.8
Sharaine Rawlinson, MSW, responded to the following questions.
A professor objects to providing verbatim realtime captioning transcripts to deaf/hard-of-hearing students in class because the regular (hearing) students do not receive the same benefits. Additionally, the professor forbids tape recording of their lecture. Does the professor have the right to forbid realtime captioning to deaf/hard-of-hearing students?
The professor does not have the right to refuse the student realtime captions during class. The issue of supplying a transcript of the class lecture is separate from providing captions during class. If the instructor objects to providing the student with a transcript on the basis of discrimination against the hearing students, the transcript could be made available also to hearing students to copy at their expense. In the event that this is not feasible, a notetaker could be provided for the hard-of-hearing student in addition to the realtime captions. Similarly, if a student needs to tape-record lectures as an accommodation (determined by the disability services office), a professor may not deny the student the accommodation unless the professor can demonstrate a compelling rationale.
Can a deaf or hard-of-hearing student demand a realtime captioner? If so, can a computer-assisted notetaker suffice for that or would a paid notetaker using pad and pencil be satisfactory?
Students can request a realtime captioner. The college and student, however, should work together to ascertain if such an accommodation is the best option for the student. For hard-of-hearing and late-deafened students, captioning is often a good accommodation. For students who are prelingually deaf and whose native language is American Sign Language, realtime captioning is likely a less-appropriate accommodation.
In an ideal situation, use of CART (computer assisted realtime transcription, also known as communication access realtime translation) reporters is the best option. When resources such as availability of CART reporters, costs, and so forth make this unrealistic, a typist with a computer screen may constitute appropriate services. Pencil and paper do not serve as a reasonable accommodation in lieu of realtime captioning.
What is the college's responsibility related to use of videotapes that are not captioned? Must they be captioned?
Again, some states now require that all new tapes being purchased must be captioned. In the event that a tape is of an older date and still being used, a sign language interpreter (or oral interpreter) should be used.
If a publicly funded college offers teleconference courses, must the broadcast be interpreted or captioned by the college or by the site that receives the broadcast? Does this only have to be done if the audience will have individuals who are deaf or hard of hearing?
The college must make contingency plans for captioning teleconference courses in the event that a student requests such services. All registration materials for the teleconference courses should include a category for requesting special accommodations such as captions and/or interpreters. Some states now require all of their videotape productions to be captioned. If the teleconference course is going to be kept on file for future use, it behooves the college to have captioned the course, rather than going back and captioning the videotape product.
Regarding closed captioning -- if a video is made on a college campus for a course -- is the college responsible to automatically caption the tape?
The college is required to make the video accessible to students who are deaf or hard of hearing. This can be done via captions or by use of interpreters when the student views the video. In some states, however, any video produced or bought by the state or with state funds must be captioned.
Footnotes
1 - 28 CFR § 35.104 [Title II]; 28 CFR § 36.303 [Title III].
2 - Rochester Institute of Technology, Case No. 02-92-2049 (OCR Region II 1993) (upholding institution's refusal to honor student's request for cued speech transliteration based on student's above average performance using RIT's form of interpretation).
3 - 28 CFR § 35.160 [Title II]. See e.g., Los Rios Community College District (CA), Case Nos. 09-93-2214-I; 09=93-2215-I[ 09-93-2216-I (OCR Region IX 1994).
4 - Commentary to 28 CFR § 35.160 [Title II].
5 - See Ball State University (IN), Case No. 05-96-2191 (OCR Region V 1996).
6 - See 35 CFR § 35.164 [Title II]. In one case, a court faulted a state agency for denying a requested accommodation under this provision without going through this process. See Tugg v. Towey, 864 F. Supp. 1201, 5 NDLR 311 (S.D. Fla. 1994).
7 - Commentary to Title II.
8 - 28 CFR § 35.164 [Title II].
© 2002 National Court Reporters Association, All Rights Reserved
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