By Susan Goodman, Esq.
The procurement process by which school districts identify and purchase goods and services including educational technology, has been identified as a major challenge to broadening access to technology for students with disabilities. Decision making at the initial stages of procurement often determines whether the accessibility needs of persons with disabilities will be easily met or whether access will be a long, difficult process, if it can be achieved at all. It is a timely issue now because so much money is being spent at the federal and state level on school technology and "wiring the school" initiatives. This technology includes computers, Internet access, multimedia software, and other similar items. Despite advocacy efforts around school technology, procurement is seldom mentioned. For most advocates, it remains a mysterious process.
Procurement has several meanings. In education, procurement means obtaining a particular device, such as a computer, desk, audio/visual equipment, or other instructional devices and equipment, or supplies used in the school. It can also mean the purchase of whole systems like databases, word processing or other technology systems. For students with disabilities, the issues surrounding procurement include ensuring that programs and services offered by the school will be accessible to them. This means that any piece of equipment bought by the school system needs to be accessible. It also means educating the "regular education" technology decision makers about meeting the needs of students with disabilities.
In this paper, we will give an example of how procurement works; discuss the effect of federal laws on the process of procurement; identify barriers to procurement of accessible technology; examine a system in which these barriers are being overcome; and, recommend actions that will influence decision making at this important level.
The technology acquisition process varies greatly from state to state. The purchase of technology may be the function of the local school, the school district, a group of schools in cooperating school districts, or area education agencies. Decisions about technology may be made by staff in individual departments, a department representative, or by a technology director. Items may be acquired by purchase orders. If items are needed which require bids from vendors, a Request for Proposal (RFP) or other invitation to bid is developed by a designated individual. The RFP is then published in the local newspaper, or otherwise disseminated to the potential bidder community. After bids are received by the school district, a decision is made about whom the vendor will be. The item is then purchased.
The critical point of decision-making about what to purchase, of course is made at the initial stages of the process. This is the point at which the needs of individuals with disabilities must be
considered. Unfortunately, the decision makers are often not aware of, and therefore have not considered, the accessibility issues for persons with disabilities. Equipment is seldom purchased
with these needs in mind, although schools are required by law to ensure equal opportunity for students with disabilities.
Federal and state educational technology initiatives make it critical that these issues are considered. Because a large amount of federal and state funds are allocated for the purchase of
technology, advocacy by the disability community is greatly needed during the decision-making process. School districts are required by law to make services and programs (which includes
equipment) accessible to students with disabilities. This does not mean that every computer must be accessible or able to be accessed. It means that the student must have the same opportunities to use a computer as students without disabilities. However, often a great deal of money is spent on technology that is not accessible. Inaccessible technology is often, at great expense, "retrofitted" (if it can be at all) to meet the varying needs of students with disabilities. This requires yet another
expenditure of funds. It also results in frustration for those who must "retrofit" the technology for the individuals that might have been avoided with some forethought. Considering the needs of
individuals with disabilities at the outset benefits everyone involved and is often more cost efficient.
To help advocates become involved in the procurement process, understanding what barriers exist is helpful and what laws are relevant.
SETTING THE CONTEXT
LAWS AND REGULATIONS RELATED TO ACCESSIBILITY OF INFORMATION TECHNOLOGY
Several federal laws ensure access to information technology for individuals with disabilities. Some laws specifically address the rights of individuals with disabilities to access to information
technology and telecommunications devices. Most of these laws apply to both schools and educational services.
The Rehabilitation Act of 1973 (29 U.S.C. '794)
The Rehabilitation Act is well known in the disability community because Title I of the Act, (34 C.F.R. Part 361) provides grants to states to furnish employment-related vocational rehabilitation (VR)
services to eligible individuals with disabilities. However, there are two other important sections of this law that have a great impact on the issues of equal access and opportunity for individuals with
disabilities. These sections are:
- Section 504 which prohibits discrimination against persons with disabilities by recipients of federal funds; and
- Section 508 which requires federal agencies to purchase equipment (including hardware or software) that is or can be made fully accessible.
Section 504 provides, in relevant part, that "no otherwise qualified individual with a disability in the United States...shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance...". Regulations implementing Section 504 prohibit recipients of federal financial assistance from affording a "qualified individual with a disability" with an opportunity to
participate in or benefit from an aid, benefit or service to that is not equal to that afforded others, or to provide a student with a disability with an aid, benefit or service that is not equal to that afforded to others. 34 C.F.R. ' 104.4(b)(ii)-(iii).
This requirement applies to schools because they are recipients of federal funds. Therefore, a student with a disability must have the same opportunity to benefit from a program or service as a student without disabilities. Access barriers to telecommunications and information technology must be removed to give students with disabilities these opportunities. For example, if students in a school can access the Internet through computers that are available to them for one hour per day, a student with a disability must have the same access. If a computer needs an adaptation to make it accessible, it must be provided.
Section 504 provides an enforcement process for individuals who believe they have been discriminated against because of their disability. When an individual believes that discrimination has occurred, they may file a complaint with the U.S. Department of Education, Office for Civil Rights (OCR) in their region. The OCR has 11 regional offices located throughout the country. The OCR will investigate complaints and make findings about acts of discrimination. An attorney is not needed to file a complaint with the OCR. If the complainant is dissatisfied with the OCR findings or
wishes to pursue action further, s/he may sue the school in court.
Section 504 also requires that schools provide a free appropriate public education (FAPE) for individuals with disabilities. 34 C.F.R. '104.33 et seq. Access to the basic technology infrastructure system may be required to provide FAPE, but will also go far towards avoiding a discrimination claim and the need for retrofitting (causing more expense) after the purchase is made.
Section 508 (29 U.S.C. '794d)
This section of The Rehabilitation Act requires that federal agencies and contractors (because they act on behalf of the federal agency) purchase and use electronic equipment and information technology that is or can be made fully accessible to individuals with disabilities. It also mandates that guidelines be developed for federal agencies' purchase of accessible technology Individuals with disabilities.
In other words, Federal agencies are required by law to ensure that equipment (including software) and technology purchased by them is accessible to and usable by individuals with disabilities. The General Services Administration in conjunction with the NIDRR, Interagency Council on Accessibility and the electronic and information technology industry are required under the law to develop and establish guidelines for federal agencies for electronic and information technology accessibility designed to:
"Ensure, regardless of the type of medium, that individuals with disabilities can produce information and data, and have access to information and data, comparable to the information and data and access, respectively, of individuals who are not individuals with disabilities. Such guidelines shall be revised as necessary, to reflect technological advances or changes." (Sec. 508 (a)).
Key language in the legislative history says that:
"...the reference to electronic and information technology means any equipment, software, interface systems, operating systems, or interconnected system or subsystem of equipment used in the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. Comparable access means that regardless of the type of interface between the user and information processing resources being used, that individuals with
disabilities can produce and have access to the same or equivalent information processing resources, with or without special peripherals, as individuals without disabilities." (Senate Report 102-357)
The logic behind these provisions appears to be that if federal agencies were required to purchase accessible equipment wherever possible, potential vendors would have a strong economic incentive to make sure that their products were accessible. Since the federal government uses a great deal of electronic equipment, major technology vendors would design all their products with accessibility in mind. This would eliminate a need to design and build accessible devices for one major customer and non-accessible devices for other customers.
In spite of this common sense logic, it is questionable whether this goal has yet been achieved. However, the discussion as to why this goal has not been met is beyond the scope of this paper.
Since Section 508 applies to federal agencies, what relevance does it have to the states or local public schools? The answer to this can be found in the discussion about the Technology-Related
Assistance for Individuals with Disabilities Act (Tech Act).
The Technology-Related Assistance for Individuals with Disabilities Act (Tech Act) 29 U.S.C. ' 2201 et seq.
This law, originally passed in 1988 and amended in 1994, makes Section 508 applicable to the states. Under the Tech Act, states became eligible to receive grants for the provision of comprehensive, consumer-responsive, statewide systems of technology assistance. They are eligible for five-year grants: however, as a condition for participation in the fourth through tenth years, states are required to comply with the guidelines established under Section 508.
Whether this requirement extends to local public schools depends whether they are sub-recipients under the state Tech Act grant. As for advocacy, Section 508 is more of an educational tool than a mandate. Even if Section 508 was applicable to schools, it contains no enforcement procedures in cases where agencies fail to comply. Still, the guidelines developed by the federal government can provide valuable assistance to those school districts trying to make technology accessible.
The Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. '1213
Title II of the Americans with Disabilities Act prohibits discrimination against individuals with disabilities in public entities. Public entities include any state or local governments and any of their departments, agencies, or other instrumentalities. There are sections in the law which address issues of equal access to programs and services which should include the accessibility of
electronic information technology. Title II regulations at 28 C.F.R. Part 35 include provisions that require entities to insure that no individual on the basis of his or her disability is excluded from
participation in, denied the benefits of the services, programs, or activities of a public entity...'35.130 (a). Public entities must also furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equally opportunity to participate in, and enjoy the benefits of, a service, program or activity conducted by a public entity. '35.160 (b) (1).
"...operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities... and, furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue
burden or fundamental alteration in the program would exist."
Therefore, Title II requires that programs and services be equally available and barriers that deny access to electronic information technology be removed. It states that individuals with disabilities must be afforded the opportunity for effective communication. If technology is central to the education process, failure to make that technology accessible is a denial of equal access to education.
State human rights laws
Many states have laws which require governmental activities to be carried out in a non-discriminatory way. State education agencies may have provisions in their regulations that require equality of opportunity for all students. These laws are unlikely to be enforced without complaints from individuals whose rights have been violated.
Clearly, students with disabilities are entitled to access to electronic information technology under several federal and state laws. While laws offer legal remedies for denial of access, proactive strategies to ensure accessibility are necessary if the vision of equal access is going to be accomplished in this area. Such strategies will often make good fiscal sense as well. There are several reasons for this which include:
- Education and electronic information technology are one of the highest priorities of the current Administration. As a result, more funds will likely be directed to these initiatives beyond
funding from other federal initiatives in this area (e.g., Goals 2000).
- State legislatures are appropriating funds for educational technology.
- Making electronic information technology accessible is much less expensive and more practical while the infrastructure is being developed and funds are being expended. This will avoid costly adaptations and large expenditures of time trying to make the technology accessible after the systems are in place.
- School districts are legally obligated to make programs and services accessible. Therefore, making the appropriate technology available at the outset when its cheaper to install and less time consuming is preferable. Costly lawsuits may also be avoided.
BARRIERS TO ACCESSIBILITY IN PROCUREMENT
- Lack of knowledge
Individuals purchasing technology equipment (e.g., computer hardware and software) for schools are usually knowledgeable about what types of systems are needed for the general education population. As stated earlier however, they are usually not knowledgeable about purchasing equipment that is or can be made accessible to students with disabilities. If accessible technology is considered at all by technology purchasers, it is mistakenly thought of as not available, too costly, too time- consuming to find or as the responsibility of "special education."
- Resistance to dealing with disability-related issues.
The advocacy movement for individuals with disabilities has its roots in the civil rights movement of the 1960s. Advocacy efforts drove the movement through passage of laws such as Individuals with Disabilities Education Act (IDEA), Section 504, and the ADA. These laws were based on the notion of right to equal services and equal access under the law. However, separate systems for addressing the needs of individuals with disabilities have developed
and persisted in many areas of society.
In a sense, the resistance to making technology available to students with disabilities reflects the attitudes of many educators who believe that "special education" (meeting the individual needs of students with disabilities) is a not an obligation of those who deal with the general education population or expend general education funds. Special education is incorrectly thought of as a place by both the general and special education community. It is not thought of as services, in spite of a great deal of language in the IDEA to support this conceptual framework. Meeting the needs of students with disabilities becomes the obligation of "someone else." Procurement officials perceive requests for accessibility as inappropriately attempting to meet individual needs in advance.
- "Unusual requests"
Systems are not developed to meet the needs of individuals. Entrances to the supermarket or other retail stores were designed to meet the needs of average individuals who can walk. Before the ADA, individuals in wheelchairs, scooters or other mobility devices could not enter many public establishments. Consideration was not given to needs other than those of the majority.
However, in 1990, about 25 years after the beginning of the advocacy movement for individuals with disabilities, the ADA was passed. This law required that most public and private establishments be physically accessible. This was, in part, due to the simplicity of accessibility in architecture and strong and persistent advocacy by individuals with disabilities and their advocates.
...Just as construction of a new building is expected to result in one that is fully accessible, development of an educational technology infrastructure is expected to result in a system that is
While this quotation may not be particularly visionary to most advocates, it reflects a position by a state department of education that is rarely, if ever, considered or openly stated. It was the result of strong advocacy efforts by the staff of the Missouri Technology Assistance Project (MATP), the state Tech Act project.
These efforts began when the project became aware of a $21 million dollar appropriation being made by the Missouri legislature to the school districts for the purchase of educational technology.
The time in which efforts were needed that would help schools in making this technology accessible was short. The application packet for these funds would be disseminated to the 500+ local school districts within three months.
The director of MATP contacted the state director of special education. However, the special education division would not have jurisdiction over these funds; the funds would be distributed
through the education technology division. Contact was made to the relevant people and through these contacts agreement was reached that a technical assistance packet for districts to assist
them in obtaining accessible technology would be developed. This information would be disseminated to the local districts with a memo from the State Department of Education.
This memo was attached to a valuable technical assistance packet developed by MATP and the Missouri Technology Center for Special Education which included a Quick List and accompanying Reference Notes that comprehensively define Access Considerations for school districts purchasing educational technology. The Quick List included issues related to Basic Systems Access, Input Access and Output Access.
This information was disseminated through the Department's web site, the State's Internet contractor, through the Superintendent of Schools monthly mailing to district superintendents, districts' technology coordinators, and the district's special education director or other contact person. Included in the mailing was the number to which a call could be made for assistance. Because of the information that was disseminated to the school districts by MATP, 20 -25 calls were received related to accessible technology.
All of this was accomplished in a short time period. The MATP director felt that regional meetings to brief the districts on the application packet and accessibility issues would have been very
beneficial. In addition, it was felt that much effort should be placed in training, information and technical assistance for educational technology personnel who are generally part of the regular education infrastructure.
The Missouri experience should give guidance and encouragement to advocates facing similar challenges in their states. Below is a list of steps that could be taken to build the road to accessible technology.
- Identify the key decision maker(s) in your local education system who make general procurement and information technology decisions. Make sure that they are aware of their legal obligations and your desire to help them meet these obligations.
- Identify the key decision maker(s) in your local educational agency who makes AT decisions for students with disabilities.
- Get them at the same table with well-informed disability community members to discuss building in access for individuals with disabilities from the start, before purchasing decisions are made.
- Offer to help the schools develop accessibility guidelines that will ensure accessibility in newly purchased hardware and software as well.
- Utilize existing accessibility packages developed by states.
- Utilize Department of Education's Requirements for Accessible Software Design.
- Be aware that lobbying/marketing by vendors can occur very high in the state education infrastructure or even within the Governor's office and toward the state legislators. Develop a targeted action plan that identifies the individuals and companies involved to educate them.
- Identify the key decision maker(s) and individuals involved in the educational technology issues. Enlist their assistance in influencing local policy.
- Advocates can attempt to secure the passage of state legislation embodying accessibility requirements, or seek to have accessibility requirements adopted administratively by procurement agencies.
- Make sure that disability experts and advocates are involved at all phases.
Public education remains a local matter in this country. As information technology becomes a more integral part of public education, both regular and special education, it is essential that the procurement decisions made reflect concern for purchasing accessible technology for individuals with disabilities. The challenge for advocates in this area of educational technology is to translate
national technology priorities into local decisions and actions that include all children in a time frame that becomes even shorter as more technology is purchased.
*Thanks to Bill Newroe, Director, Consumer Technology Transfer Network (CATN) for conducting the research for this paper and Steve Mendelsohn, Senior Policy Specialist, ATFSCP for his invaluable assistance throughout the development of this paper.