This agreement ("Agreement") is made and entered into this 8th day of January, 2010 by and between the United States of America ("the Government"); the National Federation of the Blind, Inc. ("NFB"), and the American Council of the Blind ("ACB"), and the Arizona Board of Regents ("ABOR"), for and on behalf of Arizona State University ("ASU").
1. The Kindle DX is a dedicated device for reading electronic books, or e-books. Plaintiffs complain that the Kindle DX is at present inaccessible to blind individuals because the menus and controls are displayed visually only, with no audio option. Although the Kindle DX can render the text of books audibly using text-to-speech ("TTS") technology, blind individuals cannot configure settings, select books, or even turn on the TTS feature because the menus and controls lack TTS.
3. In the fall semester of 2009, ASU, which has over 67,000 students, launched a pilot program whereby it distributed Kindle DX e-book readers to approximately 59 students enrolled in the 2-semester Human Event course offered by ASU's Barrett Honors College and taught by Professor Ted Humphrey ("the Kindle DX Pilot Program").
3. The classroom component of the Kindle DX Pilot Program will terminate at the end of the Spring 2010 semester. ABOR and ASU, however, will fulfillment of those commitments may extend beyond the end of the Spring 2010 semester.
4. The NFB and ACB filed a complaint against ABOR and ASU in the United States District Court, District of Arizona, captioned as National Federation of the Blind, American Council of the Blind, et al. v. The Arizona Board of Regents and Arizona State University, CV09-01359. (the "Action") The complaint alleges that by offering an e-book reader that is inaccessible to blind students, ABOR and ASU were violating section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. ("the Rehabilitation Act") and title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., ("ADA"). The NFB and ACB also requested investigation by the U.S. Department of Justice. ABOR and ASU dispute NFB and ACB's allegations.
5. The Parties agree, however, that unnecessary barriers to access to books and information should be eliminated, and that the emergence of new e-book reading technologies that benefit the sighted also has the potential to benefit blind students and faculty.
6. By agreeing to and voluntarily entering into this Agreement, ABOR and ASU do not admit and expressly deny that they have violated section 504 of the Rehabilitation Act, title II of the Americans with Disabilities Act, or any other federal, state, or local law, regulation, order or rule.
7. ASU remains committed to compliance with the law and affirms its obligation to provide disabled students, including blind students, with equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.
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.
2. The Parties understand and agree that while the classroom component of the Kindle DX Pilot program will terminate at the end of the Spring 2010 semester, ASU and ABOR will fulfill their contractual, research, and data collection obligations and fulfillment of those obligations may extend beyond the Spring 2010 semester.
3. In consideration for this Agreement and ABOR's and ASU's compliance with the terms of this Agreement, the Government agrees that it will forever refrain from investigating or filing a civil action against ABOR and ASU or taking any other action regarding ASU's participation in the Kindle DX Pilot Program, including ASU's participation in collecting data and fulfilling its related contractual obligations.
4. The NFB and ACB agree to dismiss the Action, with prejudice, within three business days of the execution date of this Agreement. The NFB and ACB further agree to completely release and forever discharge ABOR and ASU from any and all claims, rights, demands, actions, obligations, liabilities, and causes of action alleged in the Action or otherwise relating to ASU's participation in the Kindle DX Pilot Program. Each of the parties agrees to bear its own attorneys' fees and costs incurred in connection with the Action.
5. NFB, ACB, ASU and ABOR shall issue the joint press release attached as Exhibit A to this agreement. Any future public statements, including statements to NFB and ACB members, regarding the Action or this settlement shall be consistent with the press release. Specifically, none of the parties to this agreement will portray the settlement as a victory of plaintiffs over defendants or of defendants over plaintiffs and neither the plaintiffs nor the Government shall make any derogatory or disparaging remarks about ABOR or ASU that are in any way related to the claims asserted in the Action.
6. This Agreement shall have effect from the date of execution by the Parties and shall continue in force for a period of two (2) years from the date of execution.
7. This Agreement shall be governed, construed and interpreted in accordance with the laws of the United States of America, and in circumstances where the laws of the United States do not control the matter at issue, the law of the State of Arizona shall govern without regard to the conflicts of laws provisions thereof.
8. This Agreement contains the entire agreement of the Parties concerning the subject matter hereof, and supersedes any other prior agreements, either oral or written. No modification to this Agreement shall be effective unless reduced to writing signed by the duly authorized representatives of the Parties. Each signatory represents that he/she is authorized by their respective Party to enter into this Agreement on such Party's behalf.
9. This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. The Parties agree that an electronic or facsimile transmission of this signed Agreement shall have the same force and effect as a signed original of the Agreement.
ALLISON J. NICHOL,
KATHERINE M. NICHOLSON
JOY LEVIN WELAN
Disability Rights Section
The National Federation of the Blind, Inc.
The American Council of the Blind, Inc.
The Arizona Board of Regents for and on behalf of Arizona State University
ELIZABETH D. CAPALDI
Executive Vice President and Provost
Arizona State University
February 2, 2010