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Disabilities, Civil Rights, & the Kindle Letter

By 4 August 2010 One Comment

On June 29, the Civil Rights Division of the U.S. Department of Justice and the Office of Civil Rights of the U.S. Department of Education sent out a general letter addressed to “Dear College or University President” expressing concern that “colleges and universities are using electronic book readers that are not accessible to students who are blind or have low vision,” and noting that this is “discrimination prohibited by the Americans with Disabilities Act.”

The letter notes that DOJ/DOE have entered into settlement agreements with several schools that engaged in an e-reader pilot project with Amazon, and informs the recipient that he/she can “find these settlements on www.ada.gov, [by searching] for ‘Kindle’”.  Indeed, such a search produces not just the settlements (sample here) but 65 references to “Kindle”, one of which includes the brag by the head of the CRD that:

From: My Dark Designs

We know that modern technologies can pose significant challenges, and we must remain vigilant to ensure new technologies don’t leave individuals with disabilities in their wake. We acted swiftly on the complaints we received from the NFB about the use of the Amazon Kindle at universities, and we reached agreements with five major universities: Princeton; the University of Arizona; Pace; Case Western; and Reed College. Those institutions have agreed not to use inaccessible electronic readers, and we will continue to make sure other institutions nationwide are aware of their accessibility obligations.

The letter tells the recipient to:

[T]ake steps to ensure that your college or university refrains from requiring the use of any electronic book reader, or other similar technology, in a teaching or classroom environment as long as the device remains inaccessible to individuals who are blind or have low vision. It is unacceptable for universities to use emerging technology without insisting that this technology be accessible to all students.

It is an interesting letter, for several reasons. One point of interest is that it tells untruths. The settlements simply do not require what the sentence of instruction quoted immediately above says they do. The agreement with Arizona, for example, contains the following paragraphs:

8. Plaintiffs contend that an e-book reading device is not “accessible” to the blind unless blind individuals using an e-book reading device may access and acquire the same information, engage in the same interactions, and enjoy the same services that the e-book reading device offers sighted individuals with substantially equivalent ease of use.

Accordingly, the parties agree:

1.  From the end of the Spring 2010 semester through the Spring semester of 2012, ASU agrees that if it deploys any e-book reading device in a class, it will choose a device that meets the definition of accessibility in Paragraph 8 above, provided that such a device is commercially available, at a reasonable cost, and provided that the e-reader device meets the requirements of the class. [Emphasis added]

The italicized language means that ASU is in fact free to continue its pilot program, which consisted of distributing e-readers to 59 students in a single course (out of ASU’s 67,000 students), since at the moment there is no e-reader that meets the requirements set forth in the settlement.

This is the socially correct result, too. (Also legally correct – the DOJ/DOE letter does not rightly interpret the ADA.) Technology advances in waves, as new devices are developed and tried out by early adopters, then perfected through feedback and eventually made available on a mass basis, and then adapted still further to meet specialized needs.

One can have every sympathy for the disabled – the vision-impaired in this case – without creating a Handicapper General to ensure that nothing is available to anyone that is not available to everyone. (Under the logic of the DOJ/DOE letter, all music should be outlawed because there is no way to make it accessible to the deaf.)

The tech industry has always been socially responsible in addressing the needs of the disabled, and this will surely continue, but it cannot operate according to arbitrary whims of a bureaucracy that is fanatically devoted to a Rawlsian theory of justice, in which all social systems must be bent to serve the needs of the most disadvantaged at every moment.

But you ain’t seen nuthin’ yet, because another large shoe is about to drop. DOJ recently issued a final rule on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. The Notice  says:

Although the language of the ADA does not explicitly mention the Internet, the Department has taken the position that title III covers access to websites of public accommodations. The Department has issued guidance on the ADA as applied to the websites of public entities, which includes the availability of standards for website accessibility. . . .

The Department did not issue proposed regulations as part of its NPRM, and thus is unable to issue specific regulatory language on website accessibility at this time. However, the Department expects to engage in rulemaking relating to website accessibility under the ADA in the near future.

The Handicapper Generals are indeed about to run wild.

Yesterday, I took a 4-wheel-drive vehicle two miles up a logging road to the start of a trail so steep that the hiking guide says that trying to go up it is “foolish.”  There was a parking spot marked as reserved for the handicapped. This being Montana, the sign was full of bullet holes. That may be a bit extreme, but the tech industry better start sighting in its lawyers.

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