Not yet, but it is only a matter of time. Although it is always hard to know with certainty what the results might be in a particular court case, it is well established that when a court is asked to decide a new issue, for example, obligations to provide accessible websites, it will look to earlier cases that have raised similar issues. In the case of web accessibility, a court will look to the legal standards established and defenses allowed under §504 and the ADA for similar postsecondary obligations, such as the duty to provide auxiliary aids (for example, sign language interpreters, readers, or hardware or software needed by people with disabilities to access information technology) or modifications to a particular course. The legal obligation in the case of websites is to provide equal access to the information contained on the websites and to "effectively communicate" that information to the user. However, like other duties under §504 and ADA, the postsecondary institution does not need to meet this obligation if doing so results in a fundamental alteration to the nature of the program and/or creates an "undue burden."
"Undue burden" has been interpreted in many court decisions as actions that require substantial effort or cost. Therefore, it would seem likely that a court would not require a postsecondary institution to provide web access if the institution could successfully argue that to do so created an "undue burden." As mentioned, there are no court cases yet interpreting postsecondary institutions obligations concerning web accessibility, but OCR has stated in a complaint resolution letter that when a postsecondary institution selects software programs and/or hardware equipment that are not accessible to people with disabilities, "the subsequent substantial expense of providing access is not generally regarded as an 'undue burden' when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection." (OCR 09-97-2002.RES ) Although we must acknowledge the limitations of drawing conclusions or making predictions based on resolution agreements, in the absence of judicial precedent, it is arguable that a court would adapt this reasoning and dismiss the "undue burden" defense proffered by a postsecondary institution.
Institutions found to be discriminating against individuals with disabilities because the information contained on their websites was inaccessible under the ADA could be required to pay for redesigning websites as well as incurring the costs of "effectively communicating" website content to individuals. It is much less expensive to design and implement an accessible website from the beginning than to retool it later. Designing accessible websites can be thought of as an insurance policy that protects against future costs incurred by not adequately meeting the needs of students, employees and the community.
Note: This article is an excerpt from the larger AccessIT document Web Accessibility and Individuals with Disabilities in Postsecondary Education: The Legal Issues .
-  OCR 09-97-2002.RES
-  Web Accessibility and Individuals with Disabilities in Postsecondary Education: The Legal Issues