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Disability Accommodations for the

Public

Instructor:

Mary Minow, J.D., A.M.L.S.

LibraryLaw.commm@librarylaw.com

Infopeople Webcast Series 2: Third Thursday

Thursday, March 20, 200212:00 noon to 1:00 p.m

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AGENDA

• Informal Questions• Overview of Laws • Physical Barrier Cases• Access to Information Cases

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Legal Disclaimer

• Legal information

•Not legal advice!

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Technical HousekeepingHandouts and archiveat Infopeople.org

Content comments and questionschat at bottom of screen

Technical questions“HELP” at bottom of screen

help@horizonlive.com event ID: infopeople (212) 651-8060

Evaluation sent to you

http://www.infopeople.org/training/webcasts/

.

INFORMAL QUESTIONS

• Letters to Department of Justice (DOJ) from libraries, Senators

• Not legal precedent, but may be persuasive

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Public Libraries: Books on Upper Floors

…if a public library's open stacks are located on upper floors having no elevator, as an alternative to making the upper floors accessible, library staff may retrieve books for patrons who use wheelchairs as long as the aides are available during the operating hours of the library.

John L. Wodatch, Dept. of Justice 1995 http://www.usdoj.gov/crt/foia/tal660.txt

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Bookmobiles Wheelchair Lifts?

Library may install wheelchair lift or give program access by using aides to locate and retrieve books.

John L. Wodatch, Dept. of Justice 1993http://www.usdoj.gov/crt/foia/tal434.txt

State Library of Ohio

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Public TTY Phone?

Response: Standards require provision of a public TTY only when the facility provides four or more public pay telephones.

Deval Patrick, Dept. of Justice 1995http://www.usdoj.gov/crt/foia/tal663.txt

Richardson Public Library (TX) patron requestedTTY pay phone

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Public TTY Phone? ASCLA Guidelines

3.2.2 A text telephone (TTY) should be available at each main service point, for example each reference desk, in each library. TTYs must be provided for use by deaf staff members and at least one TTY should be available in each library for public use.

American Library Association. Association of Specialized and Cooperative Library Agencies. Guidelines for Library and Information Services for the American Deaf Community (2002)http://www.ala.org/ascla/lssps/guidelinesweb.html

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Unlicensed Service Dog?

No licenses required for service animals - ADA II and III

Local licensing laws do not apply

Stanford Free Library (NY)patron needed service dog

Bill Lann Lee, Dept. of Justice 1998http://www.usdoj.gov/crt/foia/tal748.txt

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Service Dog FAQ

Service animal?Trained to help person with disability

Where can it go? Anywhere patron can go

Is library responsible? No responsibility to take care of dog

What if dog is dangerous? May exclude animal if direct threat to health or safety based on that particular animal

DOJ Service Animals FAQ at:http://www.usdoj.gov/crt/ada/qasrvc.htm

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Overview of Federal Laws

Architectural Barriers Act (1968) Buildings using federal funds must comply with federal accessibility standards 42 U.S.C. Sects. 4151 et seq.

Rehabilitation Act Sect. 504 (1973)Prohibits discrimination in programs receiving federal funds; Regulations are specific than Title II, and include requirements for colleges and universities 29 U.S.C. Sect. 794

Americans with Disabilities Act (1990)42 U.S.C. Sects. 12101 et seq.

Telecommunications Act of 1996Requires public and private to provide communications in accessible formats 47 U.S.C. Sect. 255, 251(a)(2)

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ADA Applies to State Library Agencies… For Now

TREND TOWARDS STATE IMMUNITY FROM FEDERAL CIVIL RIGHTS LAWS

Age Discrimination Employment Act (ADEA) -state government immune

Kimel v. Florida Bd. of Regents (2000)

ADA Employment–state government immune from $ damages

Univ. of Alabama v. Garrett (2001)

ADA Title II – case scheduled before Supreme Court March 2003 –disability advocates persuaded California to withdraw its appeal at last minute

Medical Board of California v. Hason

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ADA applies to California State Library Agencies

AB 677 (2001)

Amended California Govt Code Requires the state to comply with the same nondiscriminatory obligations that apply to its political subdivisions, contractors and other recipients of state financial assistance.

Cal. Gov. Code §11135; response to University of Alabama v. Garrett, 531 U.S. 356 (2001).

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California LawUnruh Civil Rights Act

Cal. Civ. Code, Sect. 51Blind and Other Physically Disabled Persons

Act Cal. Civ. Code Sect. 54

Unfair Competition LawCal. Bus. Prof. Code Sect. 17203

FacilitiesPublic funds

Cal. Gov. Code, Sect. 4450 et seq.

Private funds (facilities open to the public)Cal. Health & Safety Code, Sect. 19955 et seq.

http://www.dsa.dgs.ca.gov/UniversalDesign/

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Sect. 508: Electronic Access

Rehabilitation Act Sect. 508

require that electronic and information technology purchased or used by federal agencies must be accessible for use by persons with disabilities (1998)

applicable to the states though

Assistive Technology Act of 1998

29 U.S.C. § 3002

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Americans with Disabilities ActPublic vs. Private Libraries

Title IIState and Local Govt

(public ownership)

Title III Public accommodations (Private ownership)

public libraries, public schools, public universities

Most private libraries, private schools, private universities

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ADA StandardsPublic vs. Private Libraries

Title IIState and Local Govt

Title III Public accommodations

Dual standard based on date of facility: Facility access orProgram access

Remove barriers when “readily achievable”easily accomplishable and able to be carried out without much difficulty or expense.

ADAAG or UFAS standard ADAAG standard (see handout)

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Must Branches be Accessible?

Three branches inaccessible – all built before 1992

Branches offered “very limited services” (books, magazines, children's programs) 20 hrs/wk

Main library “full service”

Patron lost: All programs “accessible” at Main library

Orangeburg County Library (South Carolina), 6 NDLR (LRP) 233 (1994)

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Title II and III Complaints

• Must be filed with Dept. of Justice within 180 days of discriminationwww.usdoj.gov/crt/ada/adahom1.hom

– OR

• May also be enforced through private lawsuits in federal court

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Physical Barrier Cases

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ADA: Public Buildings

On or after January 26, 1992Facilities must be accessible

Before January 26, 1992 Programs and services must be accessible Alternate methods such as bookmobiles, home delivery, staff aides

28 C.F.R. § 35.151(a), (b)

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Rehabilitation Act: Recipients of Federal Funding

On or after June 3, 1977 Facilities must be accessible

Before June 3, 1977Programs must be accessible

34 C.F.R. § § 104.22 and 104.23

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California Facilities Must Be Accessible SINCE OVER THIRTY YEARS

AGO!

1968+ Public funds

Facilities must be accessibleCal. Gov. Code, Sect. 4450

et seq.

July 1 1970+ Private funds

Facilities open to the public must be accessible

Cal. Health & Safety Code, Sect. 19955 et seq.

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Santa Cruz Library Re-cementing was an Alteration - 1978 Calif. Atty Gen Op.Branch library built 1930s

Early 1977 City poured new concrete over cracked steps, porch, walkway; replaced handrails $2,337.00

Triggered accessibility requirement

– some flexibility to meet requirements

61 Op. Atty Gen. Cal. 555Opinion No. CV 78-35 (December 22, 1978), Citing Calif. Govt Code Sect. 4456, 4451

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Under ADA Patron Must Show: QID

Need not show library had intent to discriminate

Qualified Individual

with Disability?

Patron Denied Services, Programs

Discrimination because of disability

42 USCA § 12132

Physical or mental impairment

Substantially limits major life activity

A record of such an impairment, or

“Regarded as having such an impairment.”

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Under ADA Patron Must Show: Denied Program

Qualified Individual

with Disability?

Patron Denied Services, Programs

Discrimination because of disability

42 USCA § 12132

Title IIState and Local Govt

Title III Public accommodations

Facility access or

Program access

Remove barriers when “readily achievable”

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Libraries: Affirmative Defense-Fundamental Alteration

See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164

FundamentalAlteration

e.g. put lights on during scary Halloween program

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Libraries: Affirmative Defense -Undue Burden

See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164

FundamentalAlteration

Undue Burden

Burden on agency

All resources available considered

Written statement by agency head

or designee

Action to ensure maximum benefits to people with disabilities

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Case: Patrons Sue Carlsbad over Library Restrooms, Elevator, Drinking Fountain (and other city facilities)

Carlsbad: not qualified because they didn’t formally request services before filing lawsuit

Court: Patrons do not need to request services before filing suit

Qualified Individual

with Disability?

Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).

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Under ADA Patron Must Show:

Qualified Individual

with Disability?

Patron Denied Services, Programs

Discrimination because of disability

Title IIState and Local Govt

Facility access or

Program access

Remodeled 1995

Court: remodeled areas ADA compliant

Drinking fountain non-ADA despite manufacturer’s representation

Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).

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Common ADA Errors in New Construction and Alterations

www.usdoj.gov/crt/ada/errors.pdf

Don’t rely solely onarchitect

Common errors listedon handout

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Undue Burden to Fix Restroom Right Now

FundamentalAlteration

Undue Burden

Restrooms remodeled

Men’s restroom clearances technically correct due to existing physical restraints.

City showed that upcoming remodel would fix this

Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).

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Ramp Installation

Settlement agreement to resolve access problems at library. The city took lead responsibility for installing a ramp to make the entrance accessible.

Dept. of Justice 1998 Status Reporthttp://www.usdoj.gov/crt/ada/aprjun98.htm

Natchez, Mississippi

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Library’s essential programs

Doors

Parking Accessible route Restrooms Alarms Drinking fountains Entrances Signage

Public Library Program Found Accessible

Town of Seekonk (MA) 3 NDLR (LRP) 87 (1992)

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Public Library Program Found Accessible

Town of Seekonk (MA) 3 NDLR (LRP) 87 (1992)

Additional programs

Technical services Reference services Children's roomStacksReference materials Computer cataloging system, Computer employment search systemComputer magazine search system

were accessible.

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Public Library Program Access: Failed

Program Access: Book lendingLunching With BooksSummer reading

program for childrenNational Library Week

AILEDno parkingno accessible routesidewalk curbs no restrooms

Tombigbee Regional Library (MS) 2 NDLR (LRP) 16 (1991)

Built before 1977

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Public Library Program Access: Failed

AILED Steep stairs to basement that had

children's area, meeting room and non-fiction books

Inaccessible restroomAdded disabled parking after

complaint filed

Seaford Public Library (NY) 1 NDLR (LRP) 227 (1990)

Built before 1977

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Library in Temporary Location Must be Accessible

ailed to notify

patrons that library will retrieve items for patrons

DoorsParkingAccessible routeRestroomsAlarmsDrinking fountainsEntrancesSignage

Wheelchair height circ deskNo public meeting room

and no adult programs are being but children's crafts programs and storytimes

Attleboro Public Library (MA), 4 NDLR (LRP) 106 (1993)

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Orangeburg Library Failed in These ADA Requirements:

disseminate information to patrons about ADA protections

28 C.F.R. Section 35.106

designate ADA Coordinator 28 C.F.R. Section 35.107(a)

adopt grievance procedures for ADA complaints

28 C.F.R. Section 35.107(b)

Orangeburg County Library (South Carolina), 6 NDLR (LRP) 233 (1994)

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Access to Information Cases

Both Title II and Title III libraries

must ensure effective communication to patrons, providing auxiliary aids and services.

Both must provide reasonable modifications for patrons unless it would create an undue burden or a fundamental alteration.

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Case: Student Wanted to Use Library’s Special Collections In Another Location

Student with bronchial asthma requested materials in room with open window without carpeting

OCR-student was not “handicapped person” under Sect. 504; stable

University not obligated to alter special collection rules

Kent State University, 1 NDLR (LRP) 33 (1990)

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Case: Student Wanted to Use Library’s Special Collections In Another Location

Student with bronchial asthma requested materials in room with open window without carpeting

OCR-student was not “handicapped person” under Sect. 504; stable

University not obligated to alter special collection rules

Kent State University, 1 NDLR (LRP) 33 (1990)

Qualified Individual

with Disability?

NO

Case by case –next person with asthma MIGHT meet this hurdle

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Patron with Mental Impairment Limited to One ILL per Week

Sec 504 claimPatron made 1-20 requests

per dayLibrary board limited him

to one per week Office for Civil Rights:

burdensome effect on other services

Library won

Caldwell Public Library (OH), 4 NDLR (LRP) 162 (1991)

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Patron with Mental Impairment Limited to One ILL per Week

Sec 504 claimPatron made 1-20 requests

per dayLibrary board limited him

to one per week Office for Civil Rights:

burdensome effect on other services

Library won

Caldwell Public Library (OH), 4 NDLR (LRP) 162 (1991)

Undue Burden

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“Digital Accessibility”

• User doesn’t rely on sole sense to receive information

• Prime directive: Separate CONTENT from FORM

• If presented visually, present it in audible or tactile format

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Does the ADA apply to digital resources online databases

and web sites?

Yes. The ADA applies to the information and services in libraries, just as it applies to the physical buildings.

Section 508 sets electronic information technology guidelines, both in creating and purchasing electronic information.

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Sect. 508: Electronic Access

Rehabilitation Act Sect. 508

require that electronic and information technology purchased or used by federal agencies must be accessible for use by persons with disabilities (1998)

applicable to the states though

Assistive Technology Act of 1998

29 U.S.C. § 3002

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Web Content Advisory Guidelines

Examples• Priority One - use ALT tag for images(otherwise its "[IMAGE]" to screenreader)

• Priority Two – identify target for links

• Priority Three – keyboard shortcuts

http://www.w3.org/TR/WAI-WEBCONTENT

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OCR Letter: Cal State LA(April 1997)

– Blind students claimed library services provided to others during semester break inaccessible

– Analogy: existing construction vs. new construction and renovations

– Ad hoc to approach IT access resulted in denial of access – the University’s method of administration resulted in discrimination

California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)

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Are Public Universities and Colleges Held to the Same Standards

as Public Libraries?

OCR – university library purpose is to enhance curricula

May not condition access to microfiche based on academic need if nondisabled students have access

California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)

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Purchasing Choices

At a minimum, a public entity has a duty to solve barriers to information access that the public entity's purchasing choices create

California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)

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Library Hi Tech February 1, 2002

• 28 articles on electronic resources and accessibility – from websites to databases to screen readers

»Available through Ebscohost

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California Community Colleges Chancellor’s Office

Suggests vendor contract language:

"Vendor hereby warrants that the products or services to be provided under this agreement comply with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194. Vendor agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services which is brought to its attention. Vendor further agrees to indemnify and hold harmless the __________ Community College District, the Chancellor's Office of the California Community Colleges, and any California community college using the vendor's products or services from any claim arising out of its failure to comply with the aforesaid requirements. Failure to comply with these requirements shall constitute a breach and be grounds for termination of this agreement."

CA Community Colleges Chancellor's Office, Legal Opinion M 01-17http://www.icdri.org/legal/Ccommunity.htm

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Public Libraries and Patron Preferences

“In determining what type of auxiliary aid and services is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.”

– 28 CFR 35.160(b)(2)

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Public Libraries and Patron Preferences: Analysis

Preferences need not be honored if the library can demonstrate that:

another effective means of communication exists;

the preference would result in a fundamental alteration of the program;

or

the preference would result in undue financial and administrative burdens

-- Analysis, 28 CFR 35.160(b)(2)

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Title III (Private) and Websites

Despite overwhelming arguments to the contrary, first court case on issue says website is not a concrete place of accommodation

So ADA doesn’t apply

Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (SD Fla. 2002)

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ACCESS CHECKERS

Bobbyhttp://www.cast.org/bobby/

TIdyhttp://www.w3.org/People/Raggett/tidy

Tomhttp://lunch.ncsa.uiuc.edu/tom/

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Summary

Both Title II and Title III libraries

must ensure effective communication to patrons, providing auxiliary aids and services.

Both must provide reasonable modifications for patrons unless it would create an undue burden or a fundamental alteration.

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What You Should Know About Public Employee

Liability and Immunity

Instructor:

Mary Minow, J.D., A.M.L.S.

LibraryLaw.commm@librarylaw.com

Infopeople Webcast Series 2: Third Thursday

Thursday, April 17, 200212:00 noon to 1:00 p.m

.

Technical HousekeepingHandouts and archiveat Infopeople.org

Content comments and questionschat at bottom of screen

Technical questions“HELP” at bottom of screen

help@horizonlive.com event ID: infopeople (212) 651-8060

Evaluation sent to you

http://www.infopeople.org/training/webcasts/