by Mitch Pomerantz

In last July's national convention report, I informed the membership that on June 25th, the American Council of the Blind had joined with the National Federation of the Blind in filing suit in United States District Court against the Arizona Board of Regents (ABOR) and Arizona State University (ASU). ASU had decided to use Amazon's Kindle DX E-Book Reader in a two-semester honors course beginning in the fall. Along with Arizona State, several other universities around the country were seriously considering use of the Kindle on a trial basis in one or more of their course offerings.

As discussed in my June 2009 president's column, while the Kindle has a text-to-speech (TTS) feature which permits the user to hear as well as see what's on the screen, menus and controls are only displayed visually, making it wholly inaccessible to blind people. Hence, blind people cannot configure settings, select books, or even turn on the TTS feature because those menus and controls lack access. (Some partially sighted individuals have sufficient vision to read the menu choices and operate the controls with varying degrees of difficulty.)

The suit sought an injunction to prohibit Arizona State from using the new Kindle DX E-Book Reader in the aforementioned honors course because of its inaccessibility to blind students. The suit was brought on behalf of blind students who would be prevented from independently accessing their own textbooks on the Kindle DX, and alleged that use of the Kindle was a violation of both Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). The suit also requested that an investigation be undertaken by the U.S. Department of Justice (DOJ).

Though we were unaware of a particular blind student actually taking the course in question, both organizations were concerned that should the university administration be satisfied with the Kindle's performance, it would expand its use to other courses where blind students were enrolled. Initially, Darrell Shandrow, an ACB member who attends ASU, was the named plaintiff; however, the judge ruled that Mr. Shandrow had no standing in the case since he was not a student in the designated course.

We were assisted in the suit by some outstanding attorneys, foremost among them Daniel Goldstein of Brown, Goldstein and Levy, LLP, and Eve Hill of the Burton Blatt Institute (a personal friend of many years). Eve is one of the nation's leading authorities on disability-rights law and was the expert to whom I turned for advice after initially being contacted about ACB joining the litigation.

What follows are excerpts from the press release outlining why a settlement was reached in this litigation. The release was issued jointly by ABOR, ASU, NFB and ACB on January 11, 2010.

"The settlement agreement among the parties was reached in light of several factors, including: (1) ASU's commitment to providing access to all programs and facilities for students with disabilities, including students who are blind or have low vision; (2) the fact that the pilot program will end in the spring of 2010; (3) Amazon and others are making improvements to and progress in the accessibility of e-book readers; and (4) the University's agreement that should ASU deploy e-book readers in future classes over the next two years, it will strive to use devices that are accessible to the blind.

"The United States Department of Justice is also a party to the agreement, which does not involve the payment of any damages or attorney's fees or costs.

"Mitch Pomerantz, President of the American Council of the Blind, expressed support by commenting: 'I believe this settlement between Arizona State University and the two major national consumer-advocacy organizations of blind and visually impaired persons will encourage the industry to develop fully accessible e-book readers in the near future.' "

I titled this month's column "A First Step ..." for a very good reason. Shortly after signing the ASU agreement (January 13th), DOJ issued a press release announcing that it had entered into agreements with three additional educational institutions against which similar complaints had been filed. The release begins: "The Justice Department today announced separate agreements under the Americans with Disabilities Act (ADA) with Case Western Reserve University in Cleveland, Pace University in New York City and Reed College in Portland, Ore., regarding the use in a classroom setting of the electronic book reader, the Kindle DX ..."

Since first announcing this agreement, a couple of individuals have questioned whether the suit was worth the effort. I absolutely believe it was, and here's why. As is often the case in such matters, this settlement isn't perfect. However, in Dan Goldstein and Eve Hill's opinion, it represents the best possible resolution given the judge's original ruling regarding Mr. Shandrow, as well as DOJ's involvement. Justice's subsequent agreements with Case Western, Pace and Reed, signed under color of the ADA, further validates this belief and the propriety of our participation. The ASU settlement will, in conjunction with those three agreements, have a chilling effect upon other universities considering the purchase of inaccessible e-book readers. I feel strongly that a settlement with the Authors Guild and publishers is much closer than it was prior to attaining this agreement.

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