How educational institutions can help safeguard themselves against ADA lawsuits
On July 26,1990, President George Bush signed a landmark law in disability history; and he said,
“With today’s signing of the Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.” [source]
Has this prediction come true yet? Maybe. Maybe not. But Americans with disabilities can at least sue a public or private entity for alleged discrimination under this law.
Who needs to comply with ADA?
The Americans with Disabilities Act (ADA) was the world’s first comprehensive declaration of equality for people with disabilities. Public schools are required to comply with Title II of the ADA. Places of public accommodation are required to comply under Title III. This category includes private businesses whose operations affect commerce and 12 other types of businesses, including “a nursery, elementary, secondary, undergraduate, or post-graduate private school, or other place of education.”
Thus, whether a school is public or private, it comes under the purview of ADA. However, although discrimination in the real world is covered under ADA, it is not clear whether the same rules apply in the online world.
Does ADA apply to websites?
When Congress enacted the ADA in 1990, the Internet was not in common use. As a result, the rules did not specifically address website accessibility. The Department of Justice (DoJ) has refrained from issuing specific regulations on accessibility of web information and services, although people with disabilities have been suing private businesses under ADA for inaccessibility of their websites. Application of ADA to websites remains unclear.
In September 2018, the DOJ reaffirmed its longstanding policy that Title III of the ADA applies to websites, but it still refuses to issue regulations that define compliance. The World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0/2.1 Level AA, which is the most popular global standard for website accessibility, is frequently used as a reference. It is a matter of great relief that the recent letter from the DoJ states explicitly that non-compliance with WCAG standards alone does not constitute non-compliance with ADA. It also requires a complaint of discrimination by a person with a disability. Thus, accessibility is still regarded as a user experience issue, which is the right spirit. It remains to be seen what the ultimate rulemaking around website compliance will look like.
Why should schools bother about ADA?
The United Nations declared in 1948 that the right to education is a fundamental human right. Around 13% of students are individuals with disabilities. For them to enjoy this right, it is essential that education (higher education and K-12) be accessible. Digital technologies enable and improve access to education; yet, they could create new barriers if they are not themselves accessible.
Broadly stated, accessibility is the ability of a website or content to match the needs of its users in a given context, for a given goal. Accessibility requirements such as captions for videos can arise due to disabilities that are permanent (such as deafness); temporary (such as ear infection); or situational (such as sitting in a noisy bar). Needless to say, all web-based software must conform to current accessibility standards.
“Alignment with ADA compliance” is one of the requirements many schools include in their educational technology procurement calls. Lack of accessibility of educational resources means lost opportunity for students with disabilities to fully participate in the educational experience. It might also mean loss of federal funding for school districts and institutions, and a private right of action under the ADA.
How can schools align with accessibility standards?
Online education has two components: the learning platform (and tools) and the learning content. Both need to align with standards and be usable by students with disabilities as well as by instructors with disabilities.
Accessibility of platform and tools must be ensured during procurement by obtaining a checklist from the vendors about their conformance with the current accessibility standards and seeking workarounds for areas that are not conforming. Tools and technologies that are developed with accessibility in mind are easier to manage than those that have been patched up. It is also important to establish a process for timely resolution with vendors of any accessibility issues that might come up during use.
Content creation is an ongoing process in schools. Those who create content must have tools to ensure the accessibility of what they create. Some learning management systems and web site development tools include accessible content templates, a robust HTML editor and an accessibility “checker” in their platform. Much like a spell checker, the accessibility checker can scan through content to help identify accessibility issues and also suggest remedies.
Technology should never limit learning opportunities. Alongside careful procurement of educational technologies and content services, schools must also ensure with their students with disabilities that they are having a good learning experience. Any issues must be resolved internally. Blatant disregard of educators for their right to education could hurt students more than accessibility challenges. Empathy is the best insurance against ADA lawsuits.
Learn more about how the Brightspace LMS Accessibility Checker works in this video walkthrough. Then check out the rest of the site for more about the all the tools available in this next generation learning management system.
This information is for informational purposes only and should not be construed as legal advice. Please consult an attorney for legal guidance on ADA compliance.