The web is fundamentally meant to work for all users and visitors, regardless of their language, software, hardware, location, or ability. By prioritizing education sector accessibility, institutions can ensure inclusive learning environments and break down barriers.
It is when the web meets this goal that it is considered to be accessible to practically everyone. This includes even those with impairments like diverse hearing, movement, vision, and cognitive disabilities.
Accessibility is now thus crucial for organizations and developers. They have to create high-quality and accessible websites and tools that do not hinder disabled users from accessing their products and services.
All local, state, and federal government agencies and all businesses relying on the general public must have ADA-compliant websites. Even privately run companies comprising fifteen or more employees must comply.
And now, as on May 19, 2023, the Justice Department and the Department of Education have jointly issued a Dear Colleague Letter. The letter serves as a reminder to all colleges, universities, and postsecondary institutions to ensure people with disabilities are provided with access to their online services, programs, and activities.
Universities, colleges, and institutions today have multiple online assets
Today most colleges, universities, and postsecondary institutions primarily rely on the Internet to provide services, programs, and activities to the public.
And they do this through their websites and third-party online platforms. These platforms include courses on learning platforms, podcasts and videos on social media, and third-party platforms like YouTube, Apple Podcasts, and Spotify.
The basis of the letter
The joint letter is structured based on the Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. It states that colleges, universities, and all postsecondary institutions must provide people with disabilities equal opportunities. This means users with disabilities should be able to access all the operations on the institution’s websites and third-party platforms.
The letter also mentions the ongoing efforts of the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights.
The two Departments are working to address and resolve all barriers preventing users with disabilities from participating in online programs, services, and activities the colleges, universities, and postsecondary institutions arrange.
Multiple online accessibility challenges
This was the need of the hour because of the multiple online accessibility challenges users with disabilities face today. An increasing number of colleges, universities, and postsecondary institutions today rely more on their websites and third-party online platforms for relaying programs, activities, and services to members of the public.
When talking about third-party platforms, it includes:
- All courses that are available on learning platforms like edX, Coursera, and Kadenze
- All podcasts and videos featuring lectures, sporting events, admissions information, conferences, graduation ceremonies, and other events are available on social media and third-party platforms like Apple Podcasts, YouTube, and Spotify.
Colleges, universities, and postsecondary institutions must make this online content accessible to everyone. This is essential because the content constitutes part of their service, program, or activities.
And unfortunately, most of this content is today inaccessible to visitors with disabilities.
Types of disabilities
There are various types of disabilities users may have. For example, some of them may:
- Have vision or hearing disabilities
- Require auxiliary aids and services to access any online content.
- Have a vision or reading disabilities and rely on assistive technologies like screen readers to access online content. Screen readers are generally devices that read out the text on the screen aloud. This makes it easier for the users to understand the text.
- Be deaf or hard of hearing and will thus have to depend on captions to access and understand the information relayed through videos with sound.
- Have disabilities in their ability to grasp and use a mouse or touchpad. In this case, these individuals will depend on voice recognition software to control their computers and other devices with the help of verbal commands. They may alternatively use keyboard commands to navigate and access online content.
Legal accessibility frameworks involved
Two Federal laws require colleges, universities, and other postsecondary institutions to provide equal access to people with disabilities in all operations.
These laws are the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Both emphasize and state providing equal opportunities for users with disabilities to participate in and benefit from online programs, activities, and services.
The Title II of the ADA prohibits public colleges, universities, and other postsecondary institutions from discriminating and denying qualified participants with disabilities from participating in or benefiting from their aids, services, or benefits. This includes online programming and services and prohibiting the provision of an unequal opportunity to benefit.
According to the Title III of the ADA, private undergraduates, postgraduates, and other places of education are prohibited from denying individuals with disabilities from many things. This includes prohibiting an unequal opportunity to benefit and the opportunity to participate or benefit from the organizations’ goods, privileges, services, or advantages.
So accordingly, now public and private colleges, universities, and other postsecondary institutions must adopt the appropriate steps to ensure similar communication with individuals with disabilities and others.
This includes providing appropriate auxiliary aids and services if required. While speaking about auxiliary aids and services, it includes offering methods like having open and closed captioning, qualified interpreters on hand, and accessible electronic and information technology.
Make required policy modifications
In addition to all this, the letter also mentions that public and private colleges, postsecondary institutions, and universities must modify policies, procedures, and practices to avoid discrimination because of disability. They should also, where necessary, afford their goods and services to individuals with disabilities.
Similarly, Section 504 stipulates that qualified individuals with disabilities cannot be excluded from participation only because of their disability. They also cannot be excluded from the benefits of or be subjected to discrimination in any program or activities that receives Federal financial assistance.
Recipients of financial assistance
The Department of Justice and Department of Education also reiterate that most public and private colleges, postsecondary institutions, and universities receive financial assistance from the Department of Education.
And because of this financial assistance, Section 504.7 covers all their online programs, activities, and operations.
And as they receive financial assistance, all the educational institutions must provide appropriate auxiliary aids to ensure students with disabilities are not denied the opportunity to reap the benefits of various recipients’ programs or activities.
The Departments also state that the ADA and Section 504 do not just apply to the services, programs, and activities the postsecondary institutions provide students. But it also applies to the services, programs, and cavities offered to the general public.
This is based on the fact that once colleges, universities, and other postsecondary institutions offer online programming to the general public, everyone from the general public is qualified to avail and access these online programs and services.
Enforcement Actions taken
The Departments of Justice and Education use their enforcement authority to address inaccessible online services, programs, and activities by colleges, universities, and other postsecondary institutions.
And accordingly, the Departments of Justice and Education share equal responsibility for enforcing the laws. Both departments have enforced authority under the Title II of the ADA.
According to the Title II of the ADA, the Department of Justice is responsible for enforcing and implementing Title III of the ADA. The Department of Education enforces Section 504 to public and private colleges, universities, and other postsecondary institutions receiving financial assistance from the Department of Education.
The December 2022 consent decree
For example, a Federal district court approved a consent decree on December 2, 2022. The decree was between the Justice Department and the Regents of the University of California.
It required that the University of California at Berkeley (UC Berkeley) make all their online content on their websites and other online platforms accessible to people with disabilities.
This included all BerkeleyX courses, university websites, videos, and podcasts on YouTube, Apple Podcasts, and other similar third-party platforms.
As per the decree, UC Berkeley was required to:
- Revise its policies
- Train relevant personnel in accessibility
- Designate a web accessibility coordinator
- Conduct an accessibility testing of all its online content
- Hire independent auditors to evaluate its content accessibility.
The Department of Education’s Office for Civil Rights (OCR)
The Departments of Justice and Education also mention that in the midst of all this, the OCR has also used its enforcement authority to address inaccessibility.
The OCR has addressed the inaccessibility issues of online services, programs, and activities of colleges, universities, and other postsecondary institutions.
The resolution agreements that OCR secured after investigations provide clear steps to remedy inaccessibility. It works at resolving digital barriers by ensuring recipients have policies and training to proactively ensure accessible online programs complying with Title II and Section 504.
The letter mentions that the OCR has resolved and monitored over 1,000 cases over the past years. These cases were all related to digital accessibility and were raised and triggered by the complaints of discrimination placed by members of the public.
These agreements address access of:
- Public-facing websites
- Password-protected student-facing content
- Learning management systems
- Mass email blasts by colleges, universities, and other postsecondary instructions.
The OCR also proactively launched 100 compliance reviews about digital accessibility in May 2022. These reviews were made based on the digital accessibility in public and student-facing websites and educational platforms public and private colleges, universities, and postsecondary institutions maintain.
They were also made on the State education departments, school districts, public libraries, and chapter schools. With their proactive attitude, the OCR resolved more than 50 of these compliance reviews in less than a year.
Guidance and Regulations
The two departments also mention that the Justice Department has published resources and information about web accessibility. This was made to fulfill the congressional charge of providing technical assistance to the public.
It was in March 2022 that the Justice Department issued its guidance involving providing web access to individuals with disabilities. The guidance clearly describes how State and local governments and businesses can ensure people with disabilities can access their ADA-compliant websites.
The guidance thus identifies all common website accessibility barriers to educate readers about when the ADA requires accessible web content.
It also explains how websites can achieve accessibility. And most importantly, the guidance also provides a list of valuable resources for readers to read.
The announcement by the Justice Department
On a different note, the letter also mentions the Justice Department’s announcement. The announcement was that it intended to publish a Notice of Proposed Rulemaking to amend its Title II ADA regulation.
This was to provide technical standards to assist public entities to comply with their existing obligations and thus make their websites accessible to individuals with disabilities.
The OCR has also provided substantial technical assistance to ensure online services, programs, and activities of colleges, universities, and other postsecondary institutions are ADA-compliant.
Release of 20-part video series
OCR released a 20-part video series that covers multiple topics in March 2022. The series was created and released to provide a basic introduction to various digital accessibility concepts like manual testing techniques, logical reading order, meaningful video captions, and the proper use of color.
Some of the topics it covers include:
- How people with disabilities use technology
- A rundown on the applicable Federal laws
- Videos showing how to identify and remediate various technological barriers that may prevent parents and students with disabilities from participating in modern American education.
The letter also mentions that the Department of Education intended to publish an NPRM. The NPRM would amend its Section 50 regulation to strengthen and protect all rights of students with disabilities.
Where to turn to for help
The Departments of Justice and Education also mention where colleges, instructions, and postsecondary organizations could turn to help to ensure ADA compliance.
It mentions that the Justice of Department operates a toll-free ADA Information Line. And that the line has specialists available to answer all questions related to Federal laws that protect the rights of individuals with disabilities.
The letter concludes with a reminder that ensuring online access to people with disabilities should be a priority, not an afterthought. And that the Justice of Department and Department of Education will use the ADA and Section 504 as necessary tools to ensure all members of the disability community can fully participate in all educational programs.
A small note of appreciation is also made to the colleagues for their attention to this essential educational and civil rights issue. The letter ends with the Department of Justice and Department of Education promises to work with colleagues to ensure all the nation’s colleges and universities are made fully accessible to everyone, including individuals with disabilities.
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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.