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Accessible Technology

Resolution agreements and lawsuits

Many higher education institutions have received formal legal complaints related to the inaccessibility of their information technology (IT). The U.S. Department of Education Office for Civil Rights (OCR) and the U.S. Department of Justice (DOJ) share enforcement responsibility for academic and public accommodations under the Americans with Disabilities Act (ADA) and its 2008 Amendments and Section 504 of the Rehabilitation Act. These agencies have the authority to conduct a compliance audit or to initiate an investigation in response to a complaint, which can be filed by anyone. Often, these agencies will seek to enter into a resolution agreement with the subject institution in lieu of conducting an investigation and, possibly seeking sanctions or bringing a lawsuit. Generally, the implementation of the resolution agreement includes monitoring by the investigating agency.

Legal resolutions and settlements related to the inaccessibility of information technology (IT) can serve to inform higher education institutions as to best practices and strategies for providing accessible IT in accordance with federal legislation. The following promising practices are among those suggested by resolution agreements and settlements:

  • Conduct an audit of the accessibility of IT, and develop a corrective action strategy to address problems identified in the audit.
  • Set institutional standards relating to accessible technology and create a method to monitor compliance.
  • Provide training and education about accessibility to anyone on campus who is responsible for creating or procuring IT, as well as those responsible for creating content.
  • Institute procedures for addressing accessibility as a requirement within the procurement process.
  • Provide and publicize a mechanism by which students, faculty, staff, and members of the public can report access barriers.

The following sections describe in further detail key issues that have surfaced in legal resolutions and settlements involving higher education institutions and technology accessibility. For each issue, a few example cases are identified in which that issue is addressed. Resources related to each case are provided at the bottom of this page.

Definition of “accessible”

OCR resolutions with the South Carolina Technical College System, University of Cincinnati and Youngstown State, and others define “accessible” as follows:

“Accessible” means a person with a disability is afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as a person without a disability in an equally effective and equally integrated manner, with substantially equivalent ease of use. The person with a disability must be able to obtain the information as fully, equally and independently as a person without a disability.

Accessibility audit and corrective action strategy

In several resolutions, OCR has required higher education institutions to complete an audit of the accessibility of their IT and implement a corrective action strategy based on the audit findings. Both the Penn State University and University of Montana resolutions include extensive requirements related to the audit and corrective action strategy. The resolutions have stated that the audit must include university websites, online documents, application processes, library services, learning management systems, classroom podiums and display devices, course registration software, videos, personal response systems (“clickers”), and third-party banking services including website and ATM access. The corrective action strategy based on the audit findings must include priorities and a schedule with dates by which corrective action will be completed. It must also be disseminated among all colleges and campuses and posted on a University website dedicated to accessibility.

Policy

Nearly all legal resolutions and settlements have resulted in requirements that institutions develop IT accessibility policies and accompanying procedures, and disseminate the policy and procedures widely throughout the institution, including senior academic leadership (deans and chancellors), department heads, faculty and staff.

Examples:

Training and education

Nearly all legal resolutions and settlements have resulted in requirements that institutions provide accessibility training to faculty and staff who develop or post content on any university website, and to others who select or create IT. They also include a requirement to create and maintain a website focused on IT accessibility, including tools and resources.

Examples:

Procurement

Several legal resolutions and settlements require institutions to institute procedures to address accessibility within the procurement process. Those resolutions that do so include specific accessibility requirements that must be included in Requests For Proposals (RFPs): e.g., bidders must meet the accessibility standards set forth in the Web Content Accessibility Guidelines (WCAG) 2.0 at Level AA for web-based technology, and Section 508 of the Rehabilitation Act for other IT.

Further, resolutions encourage institutions to include language within contracts that requires vendors to warrant the accessibility of their products. The Penn State University and University of Montana resolutions both include this provision, and the language within the Louisiana Tech University resolution is especially strong, “requiring contractors to warrant their compliance with WCAG 2.0 AA, to provide accessibility testing results and written documentation verifying accessibility, to promptly respond to and resolve accessibility complaints, and to indemnify and hold the University harmless in the event of claims arising from inaccessibility.”

All resolutions and settlements that include accessibility requirements for procurement also include exceptions for procuring non-compliant products where accessibility is not technically feasible or would fundamentally alter a program. In these cases, the procurement procedures require the University to be prepared to provide accessible alternatives for specific students.

Websites

Several of the legal cases against higher education institutions have specifically focused on web accessibility. All resolutions require web pages and applications to comply with WCAG 2.0 at Level AA and include specific dates by which covered web content must be compliant. They all distinguish between new pages and pre-existing or legacy pages, but differ in the specific requirements for each. Typically, all new pages must be made compliant after a specified target date, while pages existing prior to the resolution must provide a mechanism by which individuals can request accessible versions or equally effective alternatives. The University of Montana resolution requires compliance only of web pages that provide essential student functions. All others must have a clear statement (or a link to a statement) describing the University’s commitment to web accessibility and a method to report barriers and/or to receive an alternative equally effective accessible format.

The resolution with the South Carolina Technical College System requires that each college conduct an annual website accessibility review and submit an annual report documenting when the college conducted its website review, summarizing the findings, and identifying the steps that will be taken to correct any identified problems. The System Office will designate one person to review all of the annual reports and to monitor steps taken to correct any problems. For the first three years following the resolution, an annual summary report must be submitted to OCR.

Examples:

Learning management systems

Some complaints specifically singled out learning management systems (LMS), and consequently, their resolutions did the same. The Penn State University resolution provided a deadline by which the university was to replace ANGEL with an accessible LMS and required that pilots include blind students and faculty. The University of Montana resolution included a deadline by which the university was to address the accessibility of two specific features within its LMS (Moodle), chat and forums, since these features had been specifically identified as problems in the complaint.

Classroom technologies (podiums, fisplay equipment, and “clickers”)

Both the Penn State University and the University of Montana resolutions include specific requirements for implementing system changes that will allow blind faculty members to control the classroom podium and display equipment without the assistance of another individual, as well as requirements that any “clicker” utilized by the university shall include an accessible option that is available to blind students at the same price and at the same time as the clicker that is available to sighted students.

Banks and ATMs

Both the Penn State University and University of Montana resolutions require the universities to address accessibility of banking systems, including websites and automated teller machines (ATMs), that are offered to students, faculty, and staff through a contractual relationship with the institution.

Grievance procedure

Several resolutions require institutions to have in place a grievance procedure whereby a student, faculty, staff, or member of the public may file a complaint to a designated office regarding an IT accessibility barrier. The resolutions include specific requirements as to where the grievance procedure should be posted (disability services office, equal opportunity and/or affirmative action offices, and the website dedicated to accessibility).

The grievance procedure must include a mechanism whereby a high-ranking responsible party or his or her designee shall investigate the complaint and respond to the complainant within a reasonable time (which in some resolutions is specifically defined).

Examples:

Captioning

Captioning of recorded video is required by WCAG 2.0 at Level A and captioning of live events is required by WCAG 2.0 at Level AA, so captioning is indirectly required within all resolutions that require WCAG 2.0 compliance. In addition, the National Association of the Deaf (NAD) has filed a series of lawsuits against universities that have all resulted in settlements in which institutions agreed to provide captions in their football stadiums (see Ohio State University and University of Kentucky).

Ownership of accessibility

Several resolutions require the university to hire or designate a staff member with responsibility and commensurate authority to coordinate the university’s IT accessibility policy and procedures.

Examples:

Select resolution agreements and settlements

OCR/DOJ resolution agreements

Each of the following resolution agreements applies only to the institution that has entered into it. They do, however, reveal issues that OCR and DOJ have prioritized relating to accessible technology.

University of Cincinnati and Youngstown State University

  • Complaints filed with: OCR
  • Resolved: 2014
  • Complaints: Inaccessibility of websites

Summary: These were two separate OCR complaints against universities in Ohio. Both were settled in December 2014, with very similar resolution agreements. In both investigations, OCR found that the universities failed to comply with Section 504 and Title II of the ADA due to their inaccessible websites, as well as their failure to post notices of non-discrimination in relevant documents. In both resolution agreements, the universities agreed to several steps, including developing a Web accessibility policy and accompanying implementation and remediation plan; providing training to staff; reviewing their websites, e-learning platforms, and other information technologies and developing remediation plans; and ensuring comparable access to computer labs, especially regarding provision of assistive technology.

University of Montana

  • Complaint filed with: OCR
  • Resolved: 2014
  • Complaint: Inaccessibility of learning management system (Moodle), documents, videos without captions, library database materials, web-based course registration through Cyber Bear, and inaccessible classroom clickers

Summary: In their resolution agreement, the University agreed to a comprehensive set of steps, each with a specific deadline that was approximately two years after the original complaint was filed. The steps were roughly comparable to those in the Penn State resolution described below.

Louisiana Tech University

  • Complaint filed with: DOJ
  • Resolved: 2013
  • Complaint: Inaccessibility of course materials

Summary: A complaint was filed with DOJ by a University student who is blind. He alleged that he was unable to participate in a course because of the professor’s adoption of an inaccessible internet-based application (MyOMLab) for numerous aspects of coursework. The professor also distributed inaccessible course materials. The settlement requires the University to develop and implement an IT accessibility policy that includes specific deadlines for making all web pages and instructional materials accessible as well as accessibility requirements for IT procurement.

South Carolina Technical College System (SCTCS)

  • Complaint filed with: OCR
  • Resolved: 2013
  • Complaint: Inaccessibility of websites

Summary: In its investigation, OCR found that SCTCS had a web accessibility policy stating that “All colleges and the system office shall follow the standards established under Section 508 of the Rehabilitation Act… as their minimum requirements for Web accessibility.” They note that “while Section 508 standards apply to the federal government, SCTCS — through [its web accessibility policy] — chose to adopt them system-wide as a means to ensure accessibility” and failed to meet that standard. Specific web accessibility problems mentioned in the OCR’s Findings of Fact included:

  • Inaccessible PDFs
  • Videos with no captions, delivered in inaccessible media players (controls without labels, not operable by keyboard)
  • Insufficient alt text on images
  • Form fields with no labels
  • Inaccessible drop down menus
  • Accessibility features missing from the content within course management systems
  • Campus calendars not accessible to screen readers

Summary: In the resolution the SCTCS agreed to “develop a resource guide that provides information about web accessibility requirements, standards, and links to reference materials, and to review and monitor the colleges’ websites.”

Penn State University

  • Complaint filed with: OCR
  • Resolved: 2013
  • Complaint: Inaccessibility of websites and course materials

Summary: A complaint was filed by National Federation of the Blind (NFB) because a variety of computer and technology-based websites were inaccessible to blind students and faculty. In the agreement, the University agreed to complete a technology accessibility audit; develop a corrective action strategy based on the audit findings; develop a policy and accompanying procedures; institute procurement procedures and include a requirement in its RFP process that bidders must meet WCAG 2.0 Level AA for web-based technology and Section 508 standards for other technology; bring all university websites up to WCAG 2.0 Level AA compliance, specifically including the Library website; replace their learning management system (ANGEL) with one that meets Section 508 guidelines; implement accessibility solutions for classroom technologies including podiums and displays, as well as clickers; and request accessibility of websites and ATMs of banks that have a contractual relationship with the university.

Lawsuits

The following sections summarize cases in which individuals brought a private cause of action under the Americans with Disabilities Act and/or Section 504 of the Rehabilitation Act.

University of California at Berkeley

  • Filed by: Disability Rights Advocates (DRA), on behalf of three UC-Berkeley students
  • Settled: 2013

Summary: DRA represented three Berkeley students in negotiations with Berkeley to improve access to textbooks, course readers, and library materials for students with print-related disabilities.

The resolution included:

  • Creating new policies to improve provision of services and accommodations;
  • Implementing a new library print conversion system to enable students to request that a book or journal be converted to accessible digital format;
  • Encouraging instructors to identify course readings well before the start of classes;
  • Improving the system for providing personal readers when accessible version is not available;
  • Implementing scanning machines to allow students to self-scan materials into digital formats; and
  • Remedying barriers in its on-line library catalog system.
  • DRA UC Berkeley Press Release
  • Settlement UC Berkeley Agreement (in PDF)
  • UC Berkeley Fact Sheet (in PDF)

Maricopa Community College District (MCCD)

  • Filed by: National Federation of the Blind (NFB)
  • Settled: 2014

Summary: The NFB and a blind student who recently graduated from Mesa Community College filed a lawsuit alleging discrimination against the student and other blind students. The lawsuit alleges that third-party websites and software applications used for coursework did not work with screen reading software and that clickers were used that are not accessible to blind students. In the settlement, MCCD agreed to take a series of steps that will result in the procurement and deployment of electronic and information technology that is accessible to all students, including those who are blind. Specific technologies covered by the settlement are consistent with those covered in OCR resolutions, including Penn State University and University of Montana (both are profiled above).

Florida State University

  • Filed by: National Federation of the Blind (NFB)
  • Settled: 2012

Summary: With the assistance of NFB, two blind students filed a lawsuit against Florida State University alleging that the Department of Mathematics discriminated against them by failing to provide them with appropriate accommodations. The suit alleged that various inaccessible technologies were used for course instruction, including a web-based application and clickers, and that textbooks were not provided in Braille. Additionally, the students alleged they were retaliated against when they complained.

The parties reached a settlement of the case, which included:

Ohio State University, University of Kentucky

  • Filed by: National Association of the Deaf (NAD)
  • Settled: 2010, 2012 respectively

Summary: In this case, NAD filed a law suit against The Ohio State University on behalf of a deaf football fan for lack of access to public service announcements, play-by-play commentary and other audio content at university football games. A year later, they filed a similar law suit against University of Kentucky on behalf of a season ticket holder. As a result of these settlements, both universities agreed to display captions of public address announcements, including play-by-play and player introductions, on the scoreboard and ribbon boards, as well as televisions in the concourse areas. A third law suit, against the University of Maryland, was filed in 2013.

 Other resources on legal cases