In an age where the internet is the gateway to information and services, ensuring web accessibility is no longer just a matter of convenience. It is now an essential legal imperative to acknowledge.
The U.S. Department of Justice, Civil Rights Division (DOJ), and the U.S. Department of Education, Office of Civil Rights (OCR) jointly issued a letter on May 19, 2023.
The critical role of online accessibility in today’s internet world prompted the release of the Letter. Especially with today’s colleges, universities, and other postsecondary institutions dependent on online platforms and social media for multiple reasons.
The letter reverberates through the halls of higher education, underscoring the need for rigorous online accessibility standards. Some include providing services, programs, and other activities to students and the public.
The letter informs colleges and universities of all the recent enforcement actions the two bodies had adopted against postsecondary institutions and online accessibility.
The most crucial part highlighted in the letter was the DOJ and OCR’s commitment to ensuring online accessibility to everyone.
This blog post delves into the implications of the joint letter, the legal framework, recent enforcement actions, and practical guidance for institutions of higher learning.
Legal Framework: ADA and Section 504
Two pivotal federal laws primarily govern web accessibility in higher education: the Americans with Disabilities Act or the ADA and Section 504 of the Rehabilitation Act of 1973 (Section 504).
Americans with Disabilities Act
This section mandates that publicly funded institutions, including state universities, cannot deny qualified individuals with disabilities the opportunity to participate in or benefit from their programs, services, or activities.
Title II also emphasizes the importance of effective communication with individuals with disabilities. This includes providing appropriate auxiliary aids and services and making reasonable policy, practice, and procedure modifications.
While primarily applying to places of public accommodation, Title III extends to private institutions of higher education, subjecting them to ADA compliance requirements.
The rule classifies all private institutions of higher education as “public accommodations” under Title III.
In addition to this, the letter requires that public and private institutions “make reasonable modifications in policies, practices, and procedures where necessary to avoid discriminating based on disability, and where necessary to afford their goods and services to individuals with disabilities.”
Section 504 is a federal law protecting the rights of individuals with disabilities concerning the programs and activities receiving Federal financial assistance from the U.S. Department of Education.
Like the ADA, to comply with the rule, all affected institutions must “provide appropriate auxiliary aids to ensure students with disabilities can avail the benefits of the recipients’ programs or activities.”
Both the laws, the ADA and Section 504, apply to physical public properties and online services, programs, and activities offered to the public.
The DOJ and the ED are equally responsible for enforcing these accessibility laws. According to Title II of the ADA, both boards have the authority to enforce authority.
DOJ is mainly responsible for enforcing and implementing Title III of the ADA.
ED is responsible for enforcing Section 504 concerning public and private colleges, universities, and other postsecondary institutions receiving financial assistance from the Department of Education.
State and Local Laws:
In addition to these laws, other state and local laws like anti-discrimination and human rights laws govern online accessibility. The amount of authority, however, varies mainly based on the individual laws’ jurisdiction.
The Letter does not explicitly address any state and local laws. However, all institutions must understand and abide by all relevant state-specific requirements and federal law.
Recent Enforcement Actions: The UC Berkeley Case and Beyond
The Letter mentions explicitly all the efforts the DOJ and OCR have invested into enforcing the federal laws.
With the laws specifically referring to online accessibility, the Letter has a special mention of a December 2022 consent decree that was entered into between the United States and the Univerity of California at Berkeley (“UC Berkeley”).
According to the consent decree, UC Berkeley has to ensure all its public online website content, including websites and other online platforms, is publicly available to everyone and accessible to individuals with disabilities.
The letter also underscores OCR’s proactive stance. In May 2022, OCR initiated 100 compliance reviews to address online accessibility issues. These actions signal that web accessibility enforcement will be a priority for the Biden Administration.
It also directs that UC Berkeley take the necessary measures to ensure ongoing compliance of content with online accessibility laws. The compliance measures suggested to enforce include:
- Revising policies for web compliance
- Training relevant personnel to check and update website compliance
- Having a web accessibility coordinator onboard
- Regular testing of online content for accessibility
- Hiring independent auditors to evaluate content accessibility
The Letter notes explicitly all the web accessibility enforcement actions the OCR had previously undertaken. It also explains that the OCR had, in May 2022, proactively launched 100 compliance reviews. The reviews were issued to address all and any issues about online accessibility.
The section clearly defining the enforcement actions in the Letter strongly suggests that enforcing website accessibly laws will take top priority in Biden’s Administration through the DOJ and OCR. And that it will not hesitate to take any enforcement actions if necessary.
Valuable Resources and Guidance for Institutions
The joint Letter also provides postsecondary institutions with the following guidance and resources:
The DOJ issued clear and comprehensive guidelines in March 2022 on how state and local governments and businesses can ensure website accessibility to people with disabilities as per the ADA.
The guidance identifies common website accessibility barriers, educates readers on when the ADA requires web content to be accessible, and provides clear and actionable steps to achieve accessibility.
In March 2022, the OCR released a 20-part video series based on online accessibility guidance. The series starts with a basic introduction to online accessibility and then addresses multiple topics relative to the experiences of individuals with disabilities using online resources, federal laws, and the remediation barriers to use for online accessibility.
Colleges, universities, students with disabilities, and other stakeholders can contact OCR for technical assistance by contacting [email protected].
Practical Measures for Institutions to Implement
The courts, DOJ, and OCR generally refer to the Web Content Accessibility Guidelines (“WCAG”) standards to assess an institution’s website accessibility obligations.
This is why, given the evolving landscape of web accessibility enforcement, institutions of higher learning are advised to proactively take measures to protect against possible litigation or administrative enforcement actions.
The most current WCAG standard to follow and comply with is 2.1. And following these steps will help ensure institutions move toward compliance:
Creating and having a website accessibility team
The Letter suggests identifying stakeholders within the organization to tackle website accessibility issues. For example, an institution’s disability services office, information technology office, procurement office, and faculty all likely have a stake and role in ensuring compliance.
This collaborative effort is instrumental in comprehensively addressing accessibility challenges.
Reviewing the existing website and online products
Institutions should understand their website’s scope, online footprint, and present compliance levels. This can be done with the help of automated technologies, however they can not detect all failures of the WCAG guidelines and can not replace human auditing.
In addition to these tools and websites, various companies and service providers offer accessibility audits for institutions.
Ensuring the accessibility of all new content posted by the institution
The Letter recommends instituting a policy mandating staff and faculty posting all new content on websites to adhere to the applicable web accessibility standards.
This proactive approach will help mitigate potential accessibility issues from arising. Institutions can refer to the University of Washington for the necessary guidance and help to know what is required.
Consider Future Procurements and Web Design
Accessibility should be considered concerning all future procurements related to websites and online products. It is even better to consider and specify the required compliance level in all future contracts.
For example, ensuring WCAG 2.1 Level AA or similar standard compliance guarantees accessibility.
The joint letter from the DOJ and OCR serves as a clarion call for higher education institutions to embrace web accessibility as an imperative rather than an option.
It underscores that web accessibility is a legal obligation and a commitment to providing equal access to education and resources for all students and the broader public.
By understanding the legal framework, learning from recent enforcement actions, and proactively addressing web accessibility, institutions can navigate this evolving landscape with confidence and integrity, ensuring that the digital world remains inclusive.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.