Lawsuit over denying access to a student with learning disabilities

We're really proud of the rapid growth of our Bookshare online library for people with print disabilities. We're up to more than 125,000 users, with over 95,000 books available, and our users are now accessing content at a rate of more than million downloads per year!

That's why it's painful to hear about disputes over denying students with very real print disabilities access to these resources. I've recently been corresponding with a mother whose son's school district seems to be suing them to deny access to accessible material. She asked me to comment on a bunch of issues around Bookshare, and we prepared the comments below. I'm really hoping more information will help resolve these kinds of disputes: I'm often surprised at the things I hear from the field.

Statement on Bookshare
January 24, 2011

Response to Request for Information
Benetech, the nonprofit parent of the Bookshare online library for people with print disabilities, is responding to a request to answer specific questions on how Bookshare operates. Rather than discussing private information about our users, we will answer these questions with information on how Bookshare operates and what typical schools and users would see at different times in using Bookshare.

Background Information
Benetech is Silicon Valley’s deliberately nonprofit technology company. We look for social applications of IT that will make a major impact on social sector activities. We’ve already made a huge difference in the area of software for students with disabilities and for human rights and environmental organizations. We have IRS recognition as a 501(c)(3) charitable nonprofit organization. Our largest single funder is the Office of Special Education Programs of the U.S. Department of Education, which contracts with Benetech at the level of $6.5 million per year to provide accessible book services to students with qualifying print disabilities nationwide. Bookshare currently serves more than 120,000 students with disabilities, and has more than 95,000 accessible books. Our social goal is that all students with disabilities which prevent them from effectively using a printed book, have the opportunity to read the same titles as students without disabilities, through the use of assistive technology and Bookshare digital books. The most typical means of accessibility is to use software that reads the digital text aloud in a computer-synthesized voice.

The legal framework for Bookshare is the Section 121 copyright exception in federal copyright law: all Bookshare users must have a disability that qualifies under that section. In addition, students who receive textbooks that originate from the National Instructional Materials Accessibility Center must meet additional requirements, most notably that they have an IEP and are covered by IDEA.

1. What is the school signup process for Bookshare?

Bookshare services are freely available to any school in the U.S. serving students with print disabilities. Organizations need to do the following to begin downloading copyrighted content (public domain content is free for all visitors to the Bookshare website):
• Create an online account with basic information about their school or district, listing a Primary Contact responsible for the account
• Add one or more students who qualify, including name, grade level, disability status, IEP status (yes/no), and names/emails of additional staff authorized to download copyrighted information (we call them sponsors)
• Agree to a plain language organizational agreement that commits the school to following the laws around who qualifies and restricts the provision of copyrighted material to only students that qualify

While almost everything around Bookshare signup and activities is done online, we must receive a signed copy of the organizational agreement (attached to this statement) either by postal mail or by fax. The signup process explains each of these required steps. In addition, the school’s primary contact would be reminded of this information by email as well.

2. What happens when a registered organization attempts to download books or requests books before the organizational agreement is signed?

If an organization has not yet returned the signed organizational agreement, instead of download links on the book page, the staff person for the organization will see this message: “The primary contact of your organization must sign and return the organizational agreement to finish registration. This form is available at the Bookshare Help tab.”

3. If specific NIMAS textbooks are available through the Bookshare catalog, can organizational sponsors (Bookshare’s term for staff people authorized by a school to download content) in New Jersey download them directly from Bookshare, or do they first need to go through the state accessible instructional material coordinator?

Textbooks that have been previously requested by other schools or state education agencies are available for download by any K-12 sponsor for students with IEPs (to meet the legal requirements of the IDEA law that established the NIMAC).
If the specific textbook is in the NIMAC, but not yet in the Bookshare library, an authorized user of the NIMAC must request for that textbook be assigned to Bookshare to be converted into a student-ready file. More than half of U.S. states have designated Bookshare as an authorized user for those states, and so Bookshare can simply take care of all such requests from K-12 staff in those states. New Jersey is not such a state, and thus Bookshare would need to wait to be assigned titles by an authorized user of the NIMAC for the state of New Jersey, typically a responsible person at the state education agency. Perkie Cannon is currently listed as the state’s NIMAS/NIMAC coordinator at the CAST website: generally we would point schools to the person with this responsibility to learn more about that state’s process for assigning NIMAC books to be converted.

4. If a member has trouble opening a Bookshare file, or cannot get the file to function properly, what kind of response or advice might they get from technical support? Would it be unusual for Bookshare technical support staff to advise a member to continue to download the same book multiple times, in the absence of any other directive or suggestions, in an attempt to get it to work?

Bookshare’s response will vary with each situation. Generally, support staff will ask the member or sponsor if they are seeing any error messages and which steps they took that produced the error. If Bookshare staff is unable to reproduce the error internally, we may ask the member to perform the download again and let us know if they continue to experience the problem.

5. What school districts in Mercer and Middlesex County, NJ have a Bookshare membership?
Unfortunately, we can’t share specific school district data as it is confidential. We can share that we have multiple K-12 organizations using Bookshare in those counties, as far as we understand the results of a search for those areas in our organization database. In New Jersey alone:
• 5400 K-12 students are signed up for Bookshare services
• We’re serving roughly 500 K-12 school organizations, which includes both school districts and schools
• The majority of K-12 students that we serve are students with learning disabilities, severe enough to meet the qualifications of Section 121
• All students with (such a) LD classification and an IEP are eligible to have NIMAC-sourced textbooks downloaded for them by their school or LEA

6. What is your typical response time to a school contact? How often, or what percent of the time would you estimate that it takes two weeks to respond to a school contact?

It is Bookshare’s goal to respond to support inquiries within two business days, and we meet or exceed this goal in most cases. In rare cases, some responses may be delayed due to the need for additional information and other factors that change with each situation, but we strive to keep these delays minimal.

7. Are NIMAC-sourced textbooks only for the blind?

The majority of students served by Bookshare, the largest user of the NIMAC, are not blind. Under IDEA 2004, the students that are eligible to receive textbooks obtained through the NIMAC must be doubly qualified: they must have an IEP and a disability that qualifies under the Section 121 copyright exception. Students do not have to be blind to have an IEP: it’s simple to demonstrate that from statistics widely published by the Department of Education (the blind and visually impaired are a very small fraction of students with IEPs). Students do not have to be blind to qualify under the copyright exception. Bookshare and RFB&D, the two largest agencies the serve students exclusively who qualify under Section 121, both have more than 70% of their members as those with learning disabilities. Of course, since the Department of Education is the largest single funder of Bookshare and RFB&D, our policies for how to serve students (and which students qualify under IDEA for NIMAC-sourced content) have received extensive legal review by the Department’s attorneys.

8. Does Bookshare work with the Kurzweil products for students with learning disabilities?

Bookshare works with all developers of access products that support our users with qualifying disabilities. The Kurzweil 3000 product is one of the leading commercial products used by our users with learning disabilities. As a point of fact, the Kurzweil 3000 allows Bookshare users to search for Bookshare books, download them, and read them without ever leaving the Kurzweil 3000 software program.


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