I should be clear that these are JUST the basics. I’ve written an article on accessibility in higher education online learning environments, and I wanted to share some of what I’ve learned. I also have this more functional page on accessibility with some other low-hanging fruit info and examples. Please keep in mind that I’m not a lawyer – however this article is based on the available information about recent court cases and consent decrees.
So here’s a snippet from the article:
Many colleges and universities throughout the United States are struggling with how to comply with the laws associated with equal access for students with disabilities (U.S. Department of Justice, 2013; Office of Civil Rights 2010; Office of Civil Rights, 2014). The Office of Civil Rights has recently begun stepping up their enforcement of these laws. The results of these investigations have principally been consent decrees with the colleges and universities, committing them to often comprehensive and expensive changes in their compliance processes (U.S. Department of Justice, 2013; Office of Civil Rights 2010; Office of Civil Rights, 2014). Multiple laws impact accessibility in online learning environments, causing confusion and necessitating additional “Dear Colleague” letters and FAQs by the U.S. Department of Education (U.S. Department of Education, 2010; U.S. Department of Education, 2011; U.S. Department of Education, 2012).
The primary laws that are involved in compliance for online accessibility are sections 504 and 508 of the Rehabilitation Act of 1973 (RA), and titles II and III of the Americans with Disabilities Act (ADA). One of the main differences between the requirements for elementary and secondary educational institutions and those obligations of post-secondary institutions is that the Individuals with Disabilities in Education Act (IDEA) does not apply to post-secondary institutions. IDEA has requirements that go far beyond those of ADA and Sections 504 and 508 and notably there is no relief in K-12 environments due to the “undue hardship” clause, which applies in higher education (Thomas, 2002; U.S. Department of Education, 2011; U.S. Department of Justice, 2014). Additionally, K-12 schools need to test and identify students with disabilities, whereas in higher education institutions, students must self-identify and qualify to be eligible for services (Thomas, 2002; Waddell, 2007).
Are Educational Materials “Communication”?
Recent consent decrees have been far more explicit about expectations for online, blended/hybrid, and web-supplemental courses. Chief among these has been the interpretation that online course materials and even Learning Management Systems are subject to the expectations of the communication standards from Title II and Title III. Functionally, this means that learning materials have been determined to be “communication” and therefore must be accessible previous to any requests for accommodation (Office of Civil Rights Compliance Review, 2014).
This was made explicit as far back as 1996 in a letter to Dr. James Rosser, President of California State University, Los Angeles. In a response letter, the Office for Civil Rights clarifies that “OCR has repeatedly held that the term “communication” in this context means the transfer of information, including (but not limited to) the verbal presentation of a lecture, the printed text of a book, and the resources of the Internet” (Office of Civil Rights, 1998, para. 3). This was further clarified in a response letter to an inquiry from Senator Tom Harkin by Assistant Attorney General Deval Patrick in a widely cited missive that colleges and universities are “required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet” (1996, para. 3).
Additionally, in a recent settlement between Pennsylvania State University and the National Federation for the Blind in 2011, online educational materials were explicitly noted as part of EIT. EIT “electronic and information technology” includes “internet and intranet websites, electronic books and electronic book reading systems… course management systems, classroom technology and multimedia” (Office of Civil Rights, n.d., para. 8). In 2013, an agreement was reached between the U.S. DOE and Louisiana Tech University for violations of Title II of the ADA regarding an online practice and testing product created by Pearson Publishers that was inaccessible to a blind student (U.S. Department of Justice, 2013).
The result of a recent compliance review in 2014 with the University of Cincinnati binds that university to creating and implementing a procedure to “ensure that EIT and information obtained through EIT provided or developed by third parties is accessible” (Office of Civil Rights Compliance Review, 2014, p. 3). It goes on to state that all future EIT purchases or use of “third-party websites, services, or products will provide equal opportunity to the educational benefits and opportunities afforded by the technology and equal treatment in the use of such technology” (Office of Civil Rights Compliance Review, 2014, p. 3). This requires higher education institutions to not only ensure that the technology and online learning systems that they use are accessible, but that future technology purchases are accessible, and any publisher content or use of third-party resources are also accessible.
This is just a snippet from the article. Find the citations for the full article below:
CAST (2011). Universal Design for Learning Guidelines version 2.0. Wakefield, MA: Author.
Cummings, J. (n.d.). ADA web accessibility regs likely just a matter of time. Retrieved from http://www.educause.edu/blogs/jcummings/ada-web-accessibility-regs-likely-just-matter-time
Infotech.news. (2013, October 23). Higher ed accessibility lawsuits. Retrieved from http://blog.lib.umn.edu/itsshelp/news/2013/10/higher-ed-accessibility-lawsuits.html
Lewin, T. L. (2015, February 12). Harvard and M.I.T. are sued over lack of closed captions. The New York Times, pp. 1–4. New York City. Retrieved from http://nyti.ms/1Mg1qhP
Office of Civil Rights. (1998). California State University, Los Angeles 09-97-2002. Retrieved from http://www.icdri.org/legal/csula.htm
Office of Civil Rights. (2013). Resolution Agreement South Carolina Technical College System 11-11-6002. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11116002-b.pdf
Office of Civil Rights. (2014). Resolution Agreement 10-12-2118. Retrieved from http://www.umt.edu/accessibility/docs/AgreementResolution_March_7_2014.pdf
Office of Civil Rights. (2010). Settlement between Penn State University and National Federation of the Blind 03-11-2020. Retrieved fromhttp://accessibility.psu.edu/nfbpsusettlement/
Office of Civil Rights. (2014). University of Cincinnati Resolution Agreement 15-13-6001. Retrieved from http://www2.ed.gov/documents/press-releases/university-cincinnati-agreement.pdf
65 C.F.R. § 68050
Opening Doors to IT. (n.d.). Section 508 laws. Retrieved from http://www.section508.gov/section508-laws
Patrick, D. L. (1996, September 9). The Honorable Tom Harkin United States Senate. Retrieved from http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal712.txt
Szpaller, K. (2012, September 18). Disabled UM students file complaint over inaccessible online courses. Retrieved from http://missoulian.com/news/local/disabled-um-students-file-complaint-over-inaccessible-online-courses/article_d02c27ac-0145-11e2-bc26-001a4bcf887a.html
Thomas, S. B. (2002). Students, colleges, and disability law. Dayton, OH: Education Law Association.
UDL on campus: Legal obligations for accessibility. (n.d.). Retrieved from http://udloncampus.cast.org/page/policy_legal#.VLs5XEY8KJJ
University System of Georgia. (2014, February 14). Higher education, the Americans with disabilities act and Section 508. Retrieved from http://www.usg.edu/siteinfo/higher_education_the_americans_with_disabilities_act_and_section_508
U.S. Department of Education. (2013, December 19). Protecting students with disabilities. Retrieved from http://www2.ed.gov/about/offices/list/ocr/504faq.html
U.S. Department of Education Office of Civil Rights; U.S. Department of Justice Civil Rights Division. (n.d.). Frequently asked questions on effective communication for students with hearing, vision, or speech disabilities in public elementary and secondary schools. Retrieved from http://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.htm
U.S. Department of Education. (2011). Frequently asked questions about the June 29, 2010, Dear Colleague letter. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.pdf
U.S. Department of Justice. (2010, September 14). Nondiscrimination on the basis of disability in state and local government. Retrieved from http://www.ada.gov/reg2.html
U.S. Department of Justice. (2013). Settlement agreement between the United States of America, Louisiana Tech University, and the Board of Supervisors for the University of Louisiana System under the Americans with Disabilities Act 204-33-116. Retrieved from http://www.ada.gov/louisiana-tech.htm
U.S. Department of Justice, Civil Rights Division. (n.d.). State and local governments: Title II. Retrieved from http://www.ada.gov/ada_title_II.htm
U.S. Department of Justice, Civil Rights Division. (2014, January 31). Revised ADA requirements: effective communication. Retrieved from http://www.ada.gov/effective-comm.htm
Waddell, C. D. (2007). Accessible electronic & information technology: Legal obligations of higher education and section 508. Access Technology Higher Education Network E-Journal, (2). Retrieved from http://www.athenpro.org/node/39
WICHE Cooperative for Educational Technologies. (2014). Accessibility of online course materials.