The National Center = on=20 Accessible Information Technology in Education

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

Does the information on public websites, intranets, and distance = learning=20 courses at postsecondary institutions (colleges, universities, and = vocational=20 technical schools) have to be accessible to individuals with = disabilities?

The short answer to this is yes. The Americans with Disabilities Act = (ADA)=20 and Section 504 of the Rehabilitation Act of 1973 (=A7504) prohibit = postsecondary=20 institutions from discriminating against individuals with disabilities. = The=20 Office for Civil Rights (OCR) in the U.S. Department of Education has = indicated=20 through complaint resolution agreements and other documents that = institutions=20 covered by the ADA and =A7504 that use the Internet for communication = regarding=20 their programs, goods, or services, must make that information = accessible. In an=20 OCR settlement agreement, the federal agency stated that whether the=20 communication is via media, print, or the Internet, postsecondary = institutions=20 must "effectively communicate" with individuals with disabilities = including=20 students, faculty, staff and the wider community. (OCR=20 09-95-2206.RES)

The Civil Rights Division, Disability Rights Section, in the = Department of=20 Justice (DOJ) has just recently issued a document entitled Accessibility of = State and=20 Local Government Websites to People with Disabilities . In this = document, DOJ states that state and local governments are required under = the ADA=20 and =A7504 to provide "equal access to their programs, services, or = activities=20 unless doing so would fundamentally alter the nature" of these programs, = services or activities or "would impose an undue burden." This equal = access=20 obligation covers access to the information on governmental=97that is, = public=20 postsecondary institutional=97websites.

What does it mean to "effectively communicate" website content to=20 individuals with disabilities as required by Section 504 and the = ADA?

The "effectively communicate" standard was used by the Office for = Civil=20 Rights (OCR) in complaint resolution agreements with postsecondary = institutions=20 to determine whether the means of communication (meaning the transfer of = information, whether via media, print or the Internet) of the = postsecondary=20 institution satisfied the legal obligations under =A7504 and the ADA. =

According to OCR, the three basic components of effectiveness are (1) = the=20 timeliness of delivery, (2) the accuracy of the translation, and (3) = provision=20 in a manner and medium appropriate to the significance of the message = and the=20 abilities of the individual with the disability. (OCR=20 09-97-2002.RES) For example, if a university website is inaccessible = to a=20 visually impaired student, the university is still required under = federal law to=20 "effectively communicate" the information on the website to the student. = If the=20 website is available 24 hours a day, seven days a week for other users, = the=20 information must be available that way for the visually impaired = student. There=20 are several ways this communication could be accomplished, but none is = likely to=20 be as practical or meet the effectiveness standard as well as if the = website=20 were accessible in the first place.

In the recent DOJ document, Accessibility of State and Local = Government=20 Websites to People with Disabilities, DOJ does not discuss the = effectively=20 communicate standard. However, the document does state that one way to = ensure=20 that governmental websites are accessible to individuals with = disabilities is to=20 provide "accessible features." Although DOJ acknowledges that there may = be ways=20 other than "accessible features" on the websites to provide access to = the=20 information such as a "staffed telephone information line," the document = states=20 that:

These alternatives, however, are unlikely to provide an = equal=20 degree of access in terms of hours of operation and the range of = options and=20 programs available. For example, job announcements and application = forms, if=20 posted on an accessible website, would be available to people with=20 disabilities 24 hours a day, 7 days a week.

Has the Office for Civil Rights (OCR) provided guidance in addition = to the=20 "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=20 least one resolution letter, favorably cited a judicial decision = (Tyler v.=20 City of Manhattan, 857 F.Supp. 800 (D.Kan.1994)) in which the court = ruled=20 that a postsecondary institution violated its obligations under the ADA = when it=20 only responded on a case-by-case or ad hoc basis to individual requests = for=20 accommodation. The Tyler decision also stated that a public = entity has=20 an affirmative duty to develop a comprehensive policy in advance of any = request.=20 (OCR=20 09-97-2002.RES) It is important to point out that a favorable = citation in a=20 resolution letter does not mean that OCR has a regulation requiring=20 postsecondary institutions to develop an institutional policy concerning = accommodation requests. However, it does provide guidance to = postsecondary=20 institutions on how OCR might consider the lack of an institutional = policy on=20 accommodation in another situation.

In another resolution letter, North Carolina State University agreed = to=20 develop a plan with input from appropriate groups, on and off campus, to = devise=20 and implement campus-wide accessibility standards for electronic and = information=20 technology. The plan was submitted to OCR for review and the agency = indicated=20 that the school must include a "process by which the University will = ensure=20 comparable access for students with disabilities to official University=20 websites." (OCR=20 11-98-2046.LLA)

OCR released a comprehensive PowerPoint presentation Web = Access=20 Considerations under Section 504 and Title II that represents = the most=20 current OCR guidelines on web accessibility considerations under =A7504 = and ADA.=20

Are there any court cases on web accessibility and the obligations = of=20 postsecondary institutions under Section 504 or ADA?

Not yet, but it is only a matter of time. Although it is always hard = to know=20 with certainty what the results might be in a particular court case, it = is well=20 established that when a court is asked to decide a new issue, for = example,=20 obligations to provide accessible websites, it will look to earlier = cases that=20 have raised similar issues. In the case of web accessibility, a court = will look=20 to the legal standards established and defenses allowed under =A7504 and = the ADA=20 for similar postsecondary obligations, such as the duty to provide = auxiliary=20 aids (for example, sign language interpreters, readers, or hardware or = software=20 needed by people with disabilities to access information technology) or=20 modifications to a particular course. The legal obligation in the case = of=20 websites is to provide equal access to the information contained on the = websites=20 and to "effectively communicate" that information to the user. However, = like=20 other duties under =A7504 and ADA, the postsecondary institution does = not need to=20 meet this obligation if doing so results in a fundamental alteration to = the=20 nature of the program and/or creates an "undue burden."

"Undue burden" has been interpreted in many court decisions as = actions that=20 require substantial effort or cost. Therefore, it would seem likely that = a court=20 would not require a postsecondary institution to provide web access if = the=20 institution could successfully argue that to do so created an "undue = burden." As=20 mentioned, there are no court cases yet interpreting postsecondary = institutions=20 obligations concerning web accessibility, but OCR has stated in a = complaint=20 resolution letter that when a postsecondary institution selects software = programs and/or hardware equipment that are not accessible to people = with=20 disabilities, "the subsequent substantial expense of providing access is = not=20 generally regarded as an 'undue burden' when such cost could have been=20 significantly reduced by considering the issue of accessibility at the = time of=20 the initial selection." (OCR=20 09-97-2002.RES) Although we must acknowledge the limitations of = drawing=20 conclusions or making predictions based on resolution agreements, in the = absence=20 of judicial precedent, it is arguable that a court would adapt this = reasoning=20 and dismiss the "undue burden" defense proffered by a postsecondary=20 institution.

Institutions found to be discriminating against individuals with = disabilities=20 because the information contained on their websites was inaccessible = under the=20 ADA could be required to pay for redesigning websites as well as = incurring the=20 costs of "effectively communicating" website content to individuals. It = is much=20 less expensive to design and implement an accessible website from the = beginning=20 than to retool it later. Designing accessible websites can be thought of = as an=20 insurance policy that protects against future costs incurred by not = adequately=20 meeting the needs of students, employees and the community.

Does the website developed by a professor for a particular course at = a=20 university or college have to meet accessibility standards?

The answer to this question is complicated by some unique academic = rights=20 enjoyed by faculty under the general concept of academic freedom. = Academic=20 freedom is generally considered to mean the right of faculty to speak = freely on=20 political and ideological issues without fear of reprisal. However, it = commonly=20 is thought to also encompass the right of faculty members to teach in = the manner=20 and style of their choosing. So, for example, a faculty member may state = that he=20 or she is under no obligation to design a website using accessibility = guidelines=20 any more than he or she would be required to teach using a particular=20 methodology or give a certain type of examination.

Although there has not been a court decision or OCR ruling on this = issue,=20 using academic freedom as a justification for maintaining an = inaccessible=20 website would probably not be considered a sufficient defense. It is = clear that=20 if the website is available to students and a student enrolls who cannot = access=20 the website, the information on the website must be available (that is, = the=20 information must be "effectively communicated").

Does a postsecondary institution have to provide specific hardware = or=20 software (known as assistive technology) that an individual with a = disability=20 requests so that he or she can access information technology?

Title II of the ADA (which covers public postsecondary institutions) = requires=20 that public institutions must give "primary consideration" to the = requests of=20 the individual with a disability when determining what type of auxiliary = aid and=20 service is necessary (28 C.F.R. =A735.160(b)(2)). For example, a student = might=20 request that the institution purchase a specific kind of assistive = technology,=20 such as screen enlargement software, as an individual accommodation so = the=20 student could access the web for educational activities. While the = postsecondary=20 institution may be required to provide an accommodation, it does not = necessarily=20 need to provide the individual's requested aid or service if an = alternative is=20 generally regarded by knowledgeable experts as effective in the context = in which=20 it will be used. (OCR=20 09-97-2002.RES)

Do postsecondary institutions have to provide assistive technology = (for=20 example, screen enlargement or voice recognition software) to students = with=20 disabilities who enroll in distance learning courses?

There has not been a court decision that can answer this question=20 definitively, or any reason for OCR to administratively rule on it. = Generally,=20 =A7504 and the ADA require that a school provide reasonable = accommodation to=20 individuals with disabilities. The Department of Education regulations = suggest=20 three types of accommodations that may be made, one of which is the = provision of=20 auxiliary aids. The school is required to provide "auxiliary aids and = services=20 necessary to afford an individual with a disability an equal opportunity = to=20 participate in the school's program." Auxiliary aids and services are = those that=20 ensure "effective communication." The Title II ADA regulations list such = things=20 as qualified interpreters, Brailled materials, assistive listening = devices, and=20 videotext displays as examples but the list is not exhaustive. The = services and=20 devices listed are illustrative only and others can be considered = auxiliary aids=20 and services. (28 C.F.R. =A735.104)

Whether assistive technology is an auxiliary aid in a distance = learning=20 course is debatable, particularly when a prerequisite for enrolling in a = distance learning course is that all students (with or without = disabilities) are=20 required to have access to all the hardware and software necessary to=20 participate in the course (that is, students who sign up for a distance = learning=20 course are required to have the compatible computer and Internet = access). Under=20 these conditions, a postsecondary institution is not required to provide = students with the hardware or software necessary to take the = distance-learning=20 course. Therefore, a student who requires assistive technology to access = the=20 distance learning course would be responsible for whatever hardware and = software=20 is necessary to allow him/her to be ready to participate. However, even = if it is=20 not the legal obligation of the postsecondary institution to provide the = assistive technology, it is the responsibility of the distance learning = course=20 provider to make sure that users with disabilities who use assistive = technology=20 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 (=A7508) = requires=20 that:

[w]hen Federal agencies develop, procure, maintain, or use=20 electronic and information technology, Federal employees with = disabilities=20 have access to and use of information and data that is comparable to = the=20 access and use by Federal employees who are not individuals with = disabilities,=20 unless an undue burden would be imposed on the agency. Section 508 = also=20 requires that individuals with disabilities, who are members of the = public=20 seeking information or services from a Federal agency, have access to = and use=20 of information and data that is comparable to that provided to the = public who=20 are not individuals with disabilities, unless an undue burden would be = imposed=20 on the agency. (36 C.F.R. =A71194.1)

Section 508 also requires federal agencies to ensure that all = electronic and=20 information technology they procure, develop, maintain, or use complies = with the=20 accessibility standards developed by the Architectural and Transportation = Barriers=20 Compliance Board (Access Board). The Access Board issued these = standards on=20 December 21, 2000.

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

Section 508 addresses the obligations of Federal agencies. However, = state=20 governments or individual institutions of higher education may have = adopted some=20 or all of the =A7508 standards or other standards such as those = published by the=20 World Wide Web Consortium . To = determine=20 whether your specific institution must comply with =A7508 or other = accessibility=20 standards, we suggest that individuals check to see if there is a policy = statement/letter from your higher education administration or your state = board=20 of education, and/or ask your attorney

When deciding a =A7504 or ADA complaint regarding information access, = courts=20 are not required to use a particular set of standards such as those set = forth in=20 =A7508 to decide whether an institution has met its legal obligations. = On the=20 other hand, adopting a web accessibility policy that includes, for = example,=20 implementation of =A7508 standards, provides a clear and measurable = yardstick for=20 evaluating web accessibility. Another option for postsecondary = institutions is=20 to adopt guidelines published by the World Wide Web Consortium.

What Federal civil rights laws cover the obligations of = postsecondary=20 institutions to develop and maintain accessible websites?

In most cases of discrimination on the basis of disability in a = postsecondary=20 institution, and certainly in web accessibility cases, Section 504 of = the=20 Rehabilitation Act of 1973 (=A7504) and the Americans with Disabilities = Act (ADA)=20 will be appropriate avenues for bringing a complaint. The Office for Civil Rights (OCR) = has=20 responsibility for enforcing both these federal laws in public = educational=20 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=20 University dated 1/25/96 from Patricia Shelton, Compliance = Division II,=20 Office for Civil Rights (OCR).	http://uwct= ds.washington.edu/policy/09952206.RES.htm=20
Accessibility of State and Local Government = Websites to=20 People with Disabilities	The Civil Rights Division, Disability Rights = Section, in=20 the Department of Justice	http://www.usdoj.gov/= crt/ada/websites2.htm=20
OCR 09-97-2002.RES	Letter to Dr. James M. Rosser, President, = California State=20 University=96LA dated 4/7/97 from Adriana Cardenas, Team Leader, = Office for=20 Civil Rights (OCR)	http://uwct= ds.washington.edu/policy/09972002.RES.htm=20
OCR 11-98-2046.LLA	Agreement to Resolve Office for Civil Rights (OCR)=20 Complaint Numbers 11-98-2046, 11-99-2005 & 11-99-2142 dated = 6/29/2000=20	http://uwct= ds.washington.edu/policy/09972002.RES.htm=20
Web Access Considerations under Section 504 and = Title=20 II	Office for Civil Rights (OCR)	http://uwctds.= washington.edu/ocr_slides/index.htm=20
28 C.F.R. =A735.160(b)(2)	Code of Federal Regulations	http://frwebgate.access.gp= o.gov/cgi-bin/get-cfr.cgi?TITLE=3D28&PART=3D35&SECTION=3D160&= TYPE=3DTEXT=20
28 C.F.R. =A735.104	Code of Federal Regulations	http://frwebgate.access.gp= o.gov/cgi-bin/get-cfr.cgi?TITLE=3D28&PART=3D35&SECTION=3D104&= TYPE=3DTEXT=20
36 C.F.R. =A71194.1	Code of Federal Regulations	http://frwebgate.access.gp= o.gov/cgi-bin/get-cfr.cgi?TITLE=3D36&PART=3D1194&SECTION=3D1&= TYPE=3DTEXT=20
Architectural and Transportation Barriers = Compliance Board=20 (Access Board)	Access Board	http://www.access-board.gov/=20
World Wide Web Consortium		http://www.w3.org/
The Office for Civil Rights (OCR)		http://www.hhs.gov/ocr/=20

Copyright =A9 2002 - 2008 by University of=20 Washington. Permission is granted to copy these materials for = educational,=20 noncommercial purposes provided the source is acknowledged. For more = information=20 see the larger AccessIT = Copyright=20 Statement. AccessIT was funded by the National Institute on = Disability and=20 Rehabilitation Research of the U.S. Department of Education (grant = #H133D010306)=20 through September 30, 2006; it is now maintained with funding from the = National=20 Science Foundation (grant #CNS-054061S). The contents do not necessarily = represent the policies of the U.S. federal government, and you should = not assume=20 their=20 endorsement.