Web Accessibility and Individuals with Disabilities in Postsecondary Education: The Legal Issues

Does the information on public websites, intranets, and distance learning courses at postsecondary institutions (colleges, universities, and vocational technical schools) have to be accessible to individuals with disabilities?

The short answer to this is yes. The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (§504) prohibit postsecondary institutions from discriminating against individuals with disabilities. The Office for Civil Rights (OCR) in the U.S. Department of Education has indicated through complaint resolution agreements and other documents that institutions covered by the ADA and §504 that use the Internet for communication regarding their programs, goods, or services, must make that information accessible. In an OCR settlement agreement, the federal agency stated that whether the communication is via media, print, or the Internet, postsecondary institutions must "effectively communicate" with individuals with disabilities including students, faculty, staff and the wider community. (OCR 09-95-2206.RES)

The Civil Rights Division, Disability Rights Section, in the Department of Justice (DOJ) has just recently issued a document entitled Accessibility of State and Local Government Websites to People with Disabilities . In this document, DOJ states that state and local governments are required under the ADA and §504 to provide "equal access to their programs, services, or activities unless doing so would fundamentally alter the nature" of these programs, services or activities or "would impose an undue burden." This equal access obligation covers access to the information on governmental—that is, public postsecondary institutional—websites.

What does it mean to "effectively communicate" website content to individuals with disabilities as required by Section 504 and the ADA?

The "effectively communicate" standard was used by the Office for Civil Rights (OCR) in complaint resolution agreements with postsecondary institutions to determine whether the means of communication (meaning the transfer of information, whether via media, print or the Internet) of the postsecondary institution satisfied the legal obligations under §504 and the ADA.

According to OCR, the three basic components of effectiveness are (1) the timeliness of delivery, (2) the accuracy of the translation, and (3) provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability. (OCR 09-97-2002.RES) For example, if a university website is inaccessible to a visually impaired student, the university is still required under federal law to "effectively communicate" the information on the website to the student. If the website is available 24 hours a day, seven days a week for other users, the information must be available that way for the visually impaired student. There are several ways this communication could be accomplished, but none is likely to be as practical or meet the effectiveness standard as well as if the website were accessible in the first place.

In the recent DOJ document, Accessibility of State and Local Government Websites to People with Disabilities, DOJ does not discuss the effectively communicate standard. However, the document does state that one way to ensure that governmental websites are accessible to individuals with disabilities is to provide "accessible features." Although DOJ acknowledges that there may be ways other than "accessible features" on the websites to provide access to the information such as a "staffed telephone information line," the document states that:

These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available. For example, job announcements and application forms, if posted on an accessible website, would be available to people with disabilities 24 hours a day, 7 days a week.

Has the Office for Civil Rights (OCR) provided guidance in addition to the "effective communication" standard that is relevant to the obligation of postsecondary institutions to provide accessible websites?

Yes. In addition to the "effective communication" standard, OCR has, in at least one resolution letter, favorably cited a judicial decision (Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan.1994)) in which the court ruled that a postsecondary institution violated its obligations under the ADA when it only responded on a case-by-case or ad hoc basis to individual requests for accommodation. The Tyler decision also stated that a public entity has an affirmative duty to develop a comprehensive policy in advance of any request. (OCR 09-97-2002.RES) It is important to point out that a favorable citation in a resolution letter does not mean that OCR has a regulation requiring postsecondary institutions to develop an institutional policy concerning accommodation requests. However, it does provide guidance to postsecondary institutions on how OCR might consider the lack of an institutional policy on accommodation in another situation.

In another resolution letter, North Carolina State University agreed to develop a plan with input from appropriate groups, on and off campus, to devise and implement campus-wide accessibility standards for electronic and information technology. The plan was submitted to OCR for review and the agency indicated that the school must include a "process by which the University will ensure comparable access for students with disabilities to official University websites." (OCR 11-98-2046.LLA)

OCR released a comprehensive PowerPoint presentation Web Access Considerations under Section 504 and Title II that represents the most current OCR guidelines on web accessibility considerations under §504 and ADA.

Are there any court cases on web accessibility and the obligations of postsecondary institutions under Section 504 or ADA?

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.

Does the website developed by a professor for a particular course at a university or college have to meet accessibility standards?

The answer to this question is complicated by some unique academic rights enjoyed by faculty under the general concept of academic freedom. Academic freedom is generally considered to mean the right of faculty to speak freely on political and ideological issues without fear of reprisal. However, it commonly is thought to also encompass the right of faculty members to teach in the manner and style of their choosing. So, for example, a faculty member may state that he or she is under no obligation to design a website using accessibility guidelines any more than he or she would be required to teach using a particular methodology or give a certain type of examination.

Although there has not been a court decision or OCR ruling on this issue, using academic freedom as a justification for maintaining an inaccessible website would probably not be considered a sufficient defense. It is clear that if the website is available to students and a student enrolls who cannot access the website, the information on the website must be available (that is, the information must be "effectively communicated").

Does a postsecondary institution have to provide specific hardware or software (known as assistive technology) that an individual with a disability requests so that he or she can access information technology?

Title II of the ADA (which covers public postsecondary institutions) requires that public institutions must give "primary consideration" to the requests of the individual with a disability when determining what type of auxiliary aid and service is necessary (28 C.F.R. §35.160(b)(2)). For example, a student might request that the institution purchase a specific kind of assistive technology, such as screen enlargement software, as an individual accommodation so the student could access the web for educational activities. While the postsecondary institution may be required to provide an accommodation, it does not necessarily need to provide the individual's requested aid or service if an alternative is generally regarded by knowledgeable experts as effective in the context in which it will be used. (OCR 09-97-2002.RES)

Do postsecondary institutions have to provide assistive technology (for example, screen enlargement or voice recognition software) to students with disabilities who enroll in distance learning courses?

There has not been a court decision that can answer this question definitively, or any reason for OCR to administratively rule on it. Generally, §504 and the ADA require that a school provide reasonable accommodation to individuals with disabilities. The Department of Education regulations suggest three types of accommodations that may be made, one of which is the provision of auxiliary aids. The school is required to provide "auxiliary aids and services necessary to afford an individual with a disability an equal opportunity to participate in the school's program." Auxiliary aids and services are those that ensure "effective communication." The Title II ADA regulations list such things as qualified interpreters, Brailled materials, assistive listening devices, and videotext displays as examples but the list is not exhaustive. The services and devices listed are illustrative only and others can be considered auxiliary aids and services. (28 C.F.R. §35.104)

Whether assistive technology is an auxiliary aid in a distance learning course is debatable, particularly when a prerequisite for enrolling in a distance learning course is that all students (with or without disabilities) are required to have access to all the hardware and software necessary to participate in the course (that is, students who sign up for a distance learning course are required to have the compatible computer and Internet access). Under these conditions, a postsecondary institution is not required to provide students with the hardware or software necessary to take the distance-learning course. Therefore, a student who requires assistive technology to access the distance learning course would be responsible for whatever hardware and software is necessary to allow him/her to be ready to participate. However, even if it is not the legal obligation of the postsecondary institution to provide the assistive technology, it is the responsibility of the distance learning course provider to make sure that users with disabilities who use assistive technology have access to the web-based information.

What does Section 508 of the Rehabilitation Act of 1973 require?

Section 508 of the Rehabilitation Act Amendments of 1998 (§508) requires that:

[w]hen Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency. (36 C.F.R. §1194.1)

Section 508 also requires federal agencies to ensure that all electronic and information technology they procure, develop, maintain, or use complies with the accessibility standards developed by the Architectural and Transportation Barriers Compliance Board (Access Board). The Access Board issued these standards on December 21, 2000.

Does Section 508 apply to a state university or community college?

Section 508 addresses the obligations of Federal agencies. However, state governments or individual institutions of higher education may have adopted some or all of the §508 standards or other standards such as those published by the World Wide Web Consortium . To determine whether your specific institution must comply with §508 or other accessibility standards, we suggest that individuals check to see if there is a policy statement/letter from your higher education administration or your state board of education, and/or ask your attorney

When deciding a §504 or ADA complaint regarding information access, courts are not required to use a particular set of standards such as those set forth in §508 to decide whether an institution has met its legal obligations. On the other hand, adopting a web accessibility policy that includes, for example, implementation of §508 standards, provides a clear and measurable yardstick for evaluating web accessibility. Another option for postsecondary institutions is to adopt guidelines published by the World Wide Web Consortium.

What Federal civil rights laws cover the obligations of postsecondary institutions to develop and maintain accessible websites?

In most cases of discrimination on the basis of disability in a postsecondary institution, and certainly in web accessibility cases, Section 504 of the Rehabilitation Act of 1973 (§504) and the Americans with Disabilities Act (ADA) will be appropriate avenues for bringing a complaint. The Office for Civil Rights (OCR) has responsibility for enforcing both these federal laws in public educational settings and would hear a complaint regarding inaccessible websites.

Reference List

Citation Source Website
OCR 09-95-2206.RES Letter to Dr. Robert Caret, President, San Jose State University dated 1/25/96 from Patricia Shelton, Compliance Division II, Office for Civil Rights (OCR). http://uwctds.washington.edu/policy/09952206.RES.htm
Accessibility of State and Local Government Websites to People with Disabilities The Civil Rights Division, Disability Rights Section, in the Department of Justice http://www.usdoj.gov/crt/ada/websites2.htm
OCR 09-97-2002.RES Letter to Dr. James M. Rosser, President, California State University–LA dated 4/7/97 from Adriana Cardenas, Team Leader, Office for Civil Rights (OCR) http://uwctds.washington.edu/policy/09972002.RES.htm
OCR 11-98-2046.LLA Agreement to Resolve Office for Civil Rights (OCR) Complaint Numbers 11-98-2046, 11-99-2005 & 11-99-2142 dated 6/29/2000 http://uwctds.washington.edu/policy/09972002.RES.htm
Web Access Considerations under Section 504 and Title II Office for Civil Rights (OCR) http://uwctds.washington.edu/ocr_slides/index.htm
28 C.F.R. 35.160(b)(2) Code of Federal Regulations http://frwebgate.access.gpo.gov/cgi-bin/ get-cfr.cgi?TITLE=28&PART=35&SECTION=160&TYPE=TEXT
28 C.F.R. 35.104 Code of Federal Regulations http://frwebgate.access.gpo.gov/cgi-bin/ get-cfr.cgi?TITLE=28&PART=35&SECTION=104&TYPE=TEXT
36 C.F.R. 1194.1 Code of Federal Regulations http://frwebgate.access.gpo.gov/cgi-bin/ get-cfr.cgi?TITLE=36&PART=1194&SECTION=1&TYPE=TEXT
Architectural and Transportation Barriers Compliance Board (Access Board) Access Board http://www.access-board.gov
World Wide Web Consortium   http://www.w3.org
The Office for Civil Rights (OCR)   http://www.hhs.gov/ocr/