Legal Standpoint: Accommodating Individuals with Disabilities in the Digital Age

By Lori E. Fox    //    Volume 24,  Number 4   //    July/August 2016

Federal laws prohibit disability discrimination and entitle people with disabilities to “full and equal enjoyment” of services, facilities, and accommodations. As digital tools and resources have become essential to education, access to electronic information technology (EIT) has become a critical civil rights issue. Ensuring that EIT is accessible is now a key goal and a major compliance worry.

Adaptive technologies have expanded educational access for those with impaired sight, hearing, or manual dexterity. Technology can bring education to those with mobility or cognitive impairments. But technology creates new challenges: Are the materials students need not just accessible but equally accessible? Must every document available to the public be put in an accessible format? How accurate must transcripts of audio or video recordings be?

These questions are being addressed in both regulation and litigation. Federal regulations on digital accessibility have been delayed, but expectations are being set through litigation.

Regulations. Federal protection for those with disabilities is grounded in the Rehabilitation Act and the Americans with Disabilities Act (ADA). These laws are enforced by civil rights offices in the Departments of Justice (DOJ) and Education (ED).

In 2010, DOJ issued an “advance notice” of proposed rules on web accessibility for public and private entities, including higher education. This would normally lead to a notice of proposed rulemaking (NPRM) and final regulations, but DOJ has now withdrawn a 2014 NPRM and issued a “supplemental advance notice” inviting public comment on 123 detailed questions, some specific to educational institutions.

Litigation and Administrative Actions. Litigation demanding digital accessibility predates DOJ’s 2010 notice. In 2009, advocacy groups for the blind sued one institution and filed DOJ complaints against others engaged in a pilot project to distribute electronic textbooks on Kindles. Unable to sue Amazon (which makes Kindle) directly, they charged the institutions with discrimination for choosing technologies not fully accessible to the blind. After the claims settled, DOJ and ED issued a “dear president” letter stating that requiring use of an inaccessible technology was discriminatory unless affected individuals were “provided accommodations or modifications that permit them to receive all the educational benefits … in an equally effective and equally integrated manner.”

Actions by the government, advocacy groups, and individuals have continued, and universities have committed to detailed and expensive remedies. In a 2011 resolution, one university agreed to elaborate remedies that covered EIT, including telephones, websites, search engines, databases, course management systems, clickers, and office equipment. It also agreed to adopt “WCAG 2.0 AA,” a technical standard now endorsed in federal regulatory proposals, and to ensure that EIT was “fully and equally accessible to and independently usable by blind individuals so that [they] are able to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students and faculty, with substantially equivalent ease of use.”

More recently, the National Association for the Deaf (NAD) brought class action complaints against two universities, alleging that they unlawfully failed to provide captioning for content made freely available to the public. DOJ has backed NAD’s claims and initiated a “compliance review” of online platform edX, finding that edX MOOCs violated the ADA because they were not fully accessible to those with vision, hearing, or manual dexterity disabilities. edX did not concede that the ADA applied, but agreed to a settlement requiring additional efforts to enhance accessibility.

While the government and advocacy groups have led the way, a small law firm has now sent demand letters to dozens of colleges and universities seeking to settle claims on conditions that include hiring the firm for compliance assistance. Other firms cannot be far behind.

What Is the Board’s Role? Board members should expect their institutions to adopt policies of compliance with disability laws and appoint responsible people to oversee disability services in general and EIT in particular. No institution is fully accessible; all must be working to improve and expand digital accessibility.

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