By guest blogger: Lucien “Skip” Capone III, JD
Last November I attended a conference on regulatory compliance in higher education. The conference was held by my professional organization, the National Association of College and University Attorneys (NACUA). One of the sessions focused upon federal regulation of accessibility to online education under the ADA and Section 504 of the Rehabilitation Act of 1973 and accessibility to online course materials and school websites for students with disabilities.
I have been following this topic for several years with growing concern about implications for institutions that operate primarily online. It is important for institutions to fully understand the complexity of the issue. Most of the federal government’s enforcement actions have involved large, state-run institutions and on-line institutions. The evidence of this trend is embodied in a Complaint Resolution Agreement signed by the University of Phoenix with the U.S. Department of Education’s Office for Civil Rights (OCR) last June (2015). OCR’s investigation began after a student complained that the institution’s new online learning platform, “New Classroom,” was inaccessible to students using assistive technology. Highlights of the Resolution Agreement include requirements that the University:
• Create policies and procedures ensuring that new online content will be accessible as measured by the Web Content Accessibility Guidelines (WCAG 2.0).
• Audit accessibility of existing content, websites, portals, financial aid, admissions, and library resources and develop a corrective action plan to address problems within 18 months.
• Verify that content purchased from third-party vendors is accessible.
• Provide training for faculty, administrators and content providers at least annually.
• Put in place an IT Disability Coordinator.
• Have trained staff monitor Webpage; remediation must be accomplished within 24 hours of submission.
• Waive fees and tuition for the student and reimburse her for the cost of courses where she had accessibility issues.
Currently, there are no federal regulations that specifically address online accessibility for public or private institutions. All we have are general statements in the ADA and Section 504 that a school’s programs and offerings must be equally accessible to students with and without disabilities. The U.S. Department of Justice has been promising proposed regulations on this topic for at least 10 years but keeps delaying them (currently they are promised to be published this spring). The only other regulatory source is Section 508 of the Rehabilitation Act governing accessibility of electronic and information technology. However, Section 508, by its terms, only applies to federal agencies. Nevertheless, the OCR appears to use them as the yardstick for measuring compliance with the general accessibility requirement of the ADA and Section 504.
Maintaining in-house expertise capable of implementing the Section 508 as well as WCAG 2.0 standards is an enormous undertaking. However, George Mason University (GMU) has published a very helpful Guide to Creating Accessible Electronic Materials and series of video tutorials. It is very important to review these materials and assess the steps your institution is taking to address digital accessibility.
How long can an institution go without at least starting this process? Not long. As learned from the University of Phoenix case, all it takes is a single complaint to OCR from a student or applicant. Once the complaint is received, OCR has carte blanche to look at an institution’s entire program, not limited in any way to the specifics of the complaint. If OCR finds that an institution is not in compliance, meeting its demands will be very costly (often including financial compensation to disadvantaged students and applicants).
I urge institutions to understand digital accessibility. In late December 2015, nine Democratic senators (Edward J. Markey (D-Mass), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.)) sent a joint letter to the Office of Management and Budget (OMB) requesting that office “complete its review” of the Department of Justice’s (DOJ) “Advanced Notice of Proposed Rulemaking” (ANPRM) for public accommodations websites, online systems, and other information and communication technologies (ICT). Although the regulatory process moves at a glacial pace, it is very important to stay informed.
Skip Capone recently retired after spending 24 years as a campus general counsel in the University of North Carolina system. He has been a speaker on legal issues in higher education at several DEAC conferences and actively participates as a site team member.