ATHEN E-Journal Issue #2 (2007)
Cynthia D. Waddell, J.D.
International Center for Disability Resources on the Internet
Executive Director and Law, Policy and Technology Consultant
Lecturer-in-Law, Santa Clara University School of Law
Both the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), as amended, set forth regulations under a civil rights mandate that prohibit discrimination on the basis of disability in higher education. These regulations require the provision of auxiliary aids and services to qualified students with disabilities attending colleges, universities, postsecondary vocational education and adult education programs.
Today, higher education entities covered under ADA Title II (State and Local Government) and Section 504 have established a process for students to self-identify and to qualify for programs and services so that they can have access to the learning environment. In addition, campuses have established ADA and Section 504 Coordinators to address student complaints and to advise the campus community on compliance requirements, policies and implementation procedures. During this effort, technology has increasingly served an important role in access. Having worn multiple hats - as a former Assistant Director of Disabled Student Resources, as a university ADA Compliance Consultant, and as a law student with a disability - I have experienced first-hand the benefits, costs and challenges of this civil rights mandate.
Since this short article is to be published in the second edition of the ATHEN E-Journal, a publication for Access Technologists in Higher Education, it is appropriate that we take a look at legal issues impacting university websites and programs and services delivered online. We will also take a look at how the Federal Section 508 effort for accessible electronic and information technology has impacted higher education at the State level.
As higher education moves traditional over-the-counter services to web-based applications, it has become even more critical that web content be accessible to individuals with disabilities. Whether the web-based content is course registration, financial aid, library services, online courses or any program or activity of higher education, it is now established in law that entities covered under ADA Title II and/or Section 504 must have accessible web sites.
In Martin v. Metropolitan Atlanta Transportation Authority (MARTA), six plaintiffs filed an ADA Title II complaint in 2001 outlining a long list of ADA violations including the problem that the agency failed to make information accessible to people with disabilities on their web site. Three plaintiffs were blind, one had cerebral palsy and required a wheelchair for mobility and two plaintiffs were quadriplegics who required wheelchairs for mobility. The Federal District Court in Georgia found that the website was not accessible and violated the ADA. This is significant for higher education entities covered under Title II of the ADA because MARTA is the first case to hold that ADA Title II entities must have accessible web sites (read the decision at http://www.gand.uscourts.gov/documents/1001cv3255TWTinj.pdf [PDF]).
We also now have guidance published in 2003 from the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, entitled Accessibility of State and Local Government Websites to People with Disabilities at http://www.usdoj.gov/crt/ada/websites2.htm. The guidance reminds us that entities covered under the ADA and Section 504 are required to "provide qualified individuals with disabilities equal access to their programs, services, or activities unless doing so would fundamentally alter the nature of their programs, services, or activities or would impose an undue burden."
This equal access obligation concerning website content applies to higher education ADA Title II entities and is consistent with a previous policy letter by USDOJ in 1996. In that instance, the USDOJ responded to an inquiry from Senator Harkin about websites on behalf of a web designer and lawyer. See policy letter at http://www.usdoj.gov/crt/foia/tal712.txt.
Even if the higher education entity is not covered under ADA Title II, it is most likely covered under the Section 504 requirements for accessible websites. The U.S. Department of Education, Office for Civil Rights (OCR), enforces regulations implementing Section 504 in addition to its enforcement of ADA Title II in public colleges, universities and graduate and professional schools. The U.S. Department of Education has repeatedly stated through complaint resolution agreements and correspondence that higher education institutions covered by the ADA and Section 504 must make their information accessible on the Internet since communications must be as effective for students with disabilities as that provided to others (see OCR RESOLUTION 09-05-2206 at http://www.icdri.org/legal/sjsu.htm).
One critical issue throughout the development of disability rights law has been the quality of access. When discussing web accessibility, it is important to keep in mind the ADA and Section 504 "effective communication" requirement. In the early 1996 policy letter discussed above, the USDOJ said that effective communication must be provided and that "[c]overed entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well."
OCR Resolution 09-05-2206 states that "the issue is not whether the student with the disability is merely provided with access, but rather the extent to which the communication is actually as effective as that provided to others." OCR was given the opportunity to further clarify the issue in a 1997 case concerning a student complaint that a university failed to provide access to library resources, campus publications, open computer laboratories, training on adaptive computer technology and computer test-taking. In OCR Resolution 09-97-2002, the term "communication" includes the resources of the Internet and "effective communication" is defined by OCR as having three components: "timeliness of delivery, accuracy of the translation and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability." (see OCR RESOLUTION 09-97-2002 at http://www.icdri.org/legal/csula.htm)
It is the first prong of the definition, "timeliness of delivery," that strengthened the legal requirement for accessible web design. Previous practices of posting information on the website to tell people with disabilities that they could get the web content in an accessible format by phoning or e-mailing a request, no longer met the ADA definition of "effective communication." While one person could access the content of a website within seconds, another, with a different disability, might have to make a phone call and have the content snail mailed to them in an accessible format. The "timeliness of delivery" prong of the definition was now going to play an important role in the civil right to equal access to information for students with disabilities.
Accessible Technology Plan and Cost
OCR also points out the obligation for higher education to develop an accessible technology plan. OCR points out that the courts have held that a public entity violates its obligations under the ADA when it only responds on an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services (see Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan.1994) at http://www.law.emory.edu/10circuit/july97/94-3344.wpd.html). Moreover, according to OCR, "[a] recognized good practice in establishing such a comprehensive policy is to consult with the disability community, especially those members most likely to request accommodations." (see OCR RESOLUTION 09-05-2206 at http://www.icdri.org/legal/sjsu.htm)
In another OCR resolution letter, North Carolina State University agreed to develop a technology plan for implementing campus-wide accessibility standards for electronic and information technology. OCR required that it include a "process by which the University will ensure comparable access for students with disabilities to official University websites." (see OCR Resolution 11-98-2046 at http://www.icdri.org/legal/north_carolina_state_university_letter.htm and resulting agreement at http://uwctds.washington.edu/policy/11982046.LLA.htm)
The bottom line, according to OCR, is that effective communication imposes a duty to solve barriers to information access that the entity's purchasing choices create. Whenever existing technology is "upgraded" by a new technology feature, it is important to ensure that the new technology either improves accessibility or is compatible with existing assistive computer technology. Web-authoring software programs and content management systems that erect barriers or "break" accessible websites fall under this scrutiny. In discussing the cost of compliance, OCR has said that when an entity selects software programs and/or hardware equipment not adaptable for people with disabilities-
"[T]he 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." (see OCR RESOLUTION 09-97-2002 at http://www.icdri.org/legal/csula.htm).
Section 508 of the Rehabilitation Act of 1973
Whereas the ADA and Section 504 provide auxiliary aids and services and academic adjustments on a case-by-case basis, Section 508 is not about providing individual accommodations. Broad in scope, it requires user interface functionality in the design of electronic and information technology including hardware, software, operating systems, web-based intranet and Internet information and applications, telephone systems, video and multimedia products and self-contained products such as fax machines, copiers, hand-helds, and kiosks. Effective June 2001, products and services procured by Federal agencies must conform to the U.S. Access Board Electronic and Information Technology Accessibility Standards published in December 2000 (see the standards at http://www.access-board.gov/sec508/standards.htm).
Section 508 is a Federal civil rights procurement law that requires electronic and information technology to be accessible to people with disabilities, including Federal employees and members of the public accessing government information and services. Federal agencies are prohibited, with limited exceptions, from developing, purchasing, using or maintaining electronic and information technology that are inaccessible to people with disabilities.
Since Section 508 addresses the obligations of Federal agencies, what does it have to do with higher education? It is because Section 508 has been adopted by a number of States through State Statute, State Executive Orders/Policies or adopted by higher education institutions. States want to benefit from this accessibility initiative as well. For example, the State of California amended existing Government Code 11135 to incorporate Section 508. The result is that all higher education institutions in the State of California must procure accessible electronic and information technology and services if they receive any State funding.
This means that employees, students and members of the public with disabilities will benefit from the Section 508 adoption effort underway on higher education campuses. Although many campuses have had an accessible web effort underway, the procurement of accessible software, hardware, telecommunications and other products covered under Section 508 requires a systemic implementation plan. However we know that by doing this we will reduce the cost and number of individual case-by-case customizations required under ADA and Section 504. This effort also means that citizens of the State of California will benefit from the accessibility innovations being driven by Section 508. This is good for the technology business sector since businesses developing accessible products and services for Federal agencies also have a market at the State level.
To determine whether or not your institution must address Section 508, I recommend that you consult with your administration, your State Board of Education, or your attorney.
Today every State in the Union has an accessible web law or policy in place that has adopted the World Wide Web Consortium Web Content Accessibility Guidelines 1.0, the Section 508 web standards or some other standard. And many institutions of higher education have also adopted some form of web standard or policy for implementation. When I co-authored Constructing Accessible Web Sites several years ago, there were only a handful of countries worldwide that had adopted accessible web standards. I am happy to report that my latest book, Web Accessibility: Web Standards and Regulatory Compliance due to be released by Apress in July 2006, identifies at least twenty-six countries or jurisdictions that have adopted accessible web as a policy or law.
I believe that this trend is indicative of what lies ahead for accessible electronic and information technology. As States begin taking advantage of the benefits of Section 508, governments overseas will want to do the same. Part of the reason is economic, since businesses overseas want to sell their technology products and services in the United States. Already we see accessible technology initiatives in Australia, Canada, Japan, Latin America and the European Union.
Although the legal obligations for accessibility have been grounded in the civil rights requirement of equal access, the business benefits, technology innovation and flexibility accompanying the accessible technology effort have contributed to the global effort. Institutions of higher education can not only implement accessibility initiatives but also contribute to the global knowledge base and sustainability by educating our future workforce about accessibility. These are exciting times for all of us!