Chronologically, the RA was the first explicit law protecting students with disabilities, prohibiting discrimination on the basis of disability for recipient institutions – those receiving Federal financial assistance. Title II of the ADA explicitly extends this to state and local governments, including all public colleges and universities. Both 504 of the RA and title II of the ADA do not provide any funding support (U.S. Department of Education, 2013). The Office of Civil Rights (OCR) enforces both of these laws (Thomas, 2002). The OCR responds to complaints and can also proactively audit institutions.
The definitions of what individuals qualify as disabled are similar in both laws. Under both RA and ADA, an individual with a disability is defined as having a “physical or mental impairment that substantially limits one or more major life activities (such as learning), has a record of such an impairment, or is regarded as having such an impairment” (Thomas, 2002, p. 30-31). Though section 504 includes the use of the term “otherwise qualified”, this has no substantive difference in how the laws are applied (U.S. Department of Education Office of Civil Rights; U.S. Department of Justice Civil Rights Division, n.d.; Thomas, 2002).
Consent Decrees and What They Teach Us About Legal Accessibility Obligations
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).
In a 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.
Review the information about legal settlements in higher education in resource links below. Keep in mind that as many of these are news articles, some links may be broken.
Next up, let’s look at how we can actually achieve accessibility in online courses.