Monday, August 7, 2017 at 4:52PM
David H.K. Nguyen

In a short period of time the internet has proliferated nearly every aspect of our lives, from shopping, to socializing, to education.  The growth of online education has had an especially profound impact on higher education; this can be seen through the development of Massive Open Online Course (MOOCs), lecture capture technology, and learning management systems. 

Given the increasing number of students participating and faculty teaching in online education, continual assessment of the online learning environment is essential to its prolonged expansion and success.  Amidst the rapid adoption of educational technology, the accessibility of online courses and other digital content for individuals with disabilities has been neglected.  Disability accommodations and accessibility play an important role in the academic and professional success of college students, faculty, staff, and other stakeholders

Given the increase in the numbers of students taking online courses and those with disabilities, it is important for higher education administrators to be aware of their legal obligations and vulnerabilities regarding the accessibility of their institution’s online and digital content.  Two federal anti-discrimination/civil rights laws mandate equal access to higher education for students with disabilities: Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.  Both of these laws came into being before the internet. 

Section 504 (Subpart E: Postsecondary Education) prohibits discrimination against otherwise qualified individuals with disabilities in any program operated by recipients of federal funds.  In order to be protected under Section 504, students must (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of such an impairment, and (3) be regarded as having such an impairment.  Students with disabilities must also be “otherwise qualified” meaning they are able to meet all academic and technical standards of the educational program or activity. 

The Americans with Disabilities Act (ADA)/ADA as Amended (ADAAA) expanded the protections of Section 504.  Title II of the ADA prohibits discrimination based on disability in all public entities, including public colleges and universities, regardless of federal funding. Title III prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation" (such as private higher education institutions). 

One of the first higher education related legal challenges regarding the digital accessibility of educational technology occurred in 2009 when The National Federation of the Blind and the American Council of the Blind sued Arizona State University for using the Amazon Kindle to distribute e-textbooks, arguing that the e-readers could not be used by students who are blind as the device’s menus do not offer a way for all students to purchase or select a book or even to activate the text-to-speech feature, violating section 504 and the ADA.  Following this case, in 2010, the U.S. Departments of Education and Justice released a joint Dear Colleague Letter addressing issues related to the use of e-readers for visually impaired students attending postsecondary institutions.  In 2011 the Departments released a follow-up letter expanding to all kinds of disabilities and “emerging technologies” including online education. 

Since the release of the joint Dear Colleague Letter in 2010 there have been a number of complaints filed with the U.S. Department of Education Office for Civil Rights (OCR) and the Civil Rights Division (CRD) of the U.S. Department of Justice regarding the use of inaccessible online content and technologies by higher education institutions; this is not surprising given the consistently low percentage of accessibility compliant higher education websites.  Some institutions recently involved in federal complaints include:

Accessible websites need to be navigable by those who can’t use a mouse (take the no mouse challenge), compatible with screen reader software, and include captioning.  The World Wide Web Consortium (W3C) is an industry group seeking to establish an international standard for web content accessibility, Web Content Accessibility Guidelines 2.0 (WCAG 2.0). The WCAG 2.0 is based on four principles: perceivable, operable, understandable, and robust.

On June 12, 2017, there was a ruling in what is believed to be the first full trial in federal court disputing whether or not the ADA governs website accessibility for private companies. In his verdict U.S. District Judge Robert N. Scola, Jr. ruled in favor of Gil, finding that Winn-Dixie violated Title III of the ADA by not providing an accessible website, ordering Winn-Dixie to adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria and require any third party vendors who participate on its website to also conform with the WCAG 2.0 criteria.  The judge also ordered Winn-Dixie to provide annual mandatory web accessibility (WCAG 2.0 criteria) training to all employees who develop content or code for its website.  The court also noted that Winn-Dixie,

“presented no evidence to establish that it would be unduly burdensome to make its website accessible to visually impaired individuals. To the contrary its corporate representative unequivocally testified that modifying the website to make it accessible to the visual impaired was feasible.”

Then just days later, on June 15, 2017, Judge John F. Walter of the Central District of California denied a motion to dismiss another website accessibility claim in Gorecki v. Hobby Lobby Stores, Inc.

Given the increasing number of disability access rights related federal investigations and lawsuits the National Association of College and University Attorneys offers some practical advice for higher education administrators on ensuring the accessibility of information technology through policies, training, and assessment (all three of which were ordered in Carlos Gil vs. Winn-Dixie).  Other notable resources: for teaching and learning: Universal Design for Learning; for quality assurance of online content Quality Matters Higher Education Course Design Rubric.   

This post was co-authored by Ms. Sarah Owens and Dr. David Nguyen. Ms. Owens specializes in institutional research and a doctoral student in the UND Higher Education program.

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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