Despite Legal Uncertainty, It’s Time to Think about the Accessibility of Your Campus’s Website and other Technology

Campuses everywhere are grappling with the task of making their electronic and informational technology (EIT) accessible to persons with disabilities.  The task may seem colossal when one considers the breadth of any campus’s online content, including websites, learning management systems, and other technology used in classroom instruction or for the day-to-day administration of campus life.
What makes EIT accessible to persons with disabilities?  Some examples of good web design elements include (among other things) descriptive text labeling of images, descriptive text links, captioned videos, appropriate color contrast, and keyboard navigation options.  These design elements improve access to persons with vision or other sensory impairments, learning and cognitive disabilities, and physical disabilities that can make reliance on a computer mouse difficult or impossible.  An excellent source of information is available through the World Wide Web Consortium’s (W3C) website, in particular how to understand the Web Content Accessibility Guidelines (WCAG) considered the gold standard for measuring web accessibility.  Available at: http://www.w3.org/WAI/WCAG20/quickref/
Interestingly, there are no explicit federal statutes or regulations governing web accessibility and online content.  Debate abounds about the reach of the Americans with Disabilities Act and the Rehabilitation Act of 1973 and the degree to which they apply to a campus’s EIT.  Furthermore, there are no published web accessibility standards that are expressly binding on colleges and universities.  Although the U.S. Department of Justice (DOJ) had published notices of intended rulemaking during the Obama administration, the Trump administration has reversed course as part of its overall effort to reduce federal regulations.
Yet the scrutiny from the federal government and others continues, fueled especially by activists and advocacy organizations.  One particular activist has filed hundreds of civil rights complaints against colleges and universities across the country.  One person who is blind sued eight institutions in New York on the basis that he was interested in possibly attending classes but their public-facing websites were not accessible to his screen reader.  Campuses find themselves searching for “best practices” from a range of court settlements and agency agreements between the DOJ or the U.S. Department of Education’s Office for Civil Rights (OCR) and individual institutions that have come under scrutiny.
If your campus is ready to grapple with these accessibility challenges, here are some initial things to consider as you get started:
  • Consider establishing an Accessible Technology Team/Committee.
    • Invite a wide range of members; this is a complex and interconnected area that requires input from nearly every area of campus.  Ideally your team will include individuals with disabilities.
    • Empower the team to make decisions or make recommendations on behalf of the institution and to set priorities for the scope of institutional improvement.
  • Create opportunities to prioritize accessibility improvements moving forward.
    • Plan for a high level of accessibility for “new content,” which is a common expectation arising from settlement agreements with the federal government.  You should find that incorporating accessibility measures proactively is less costly and burdensome than remediating inaccessible content at a later date.
    • Learn about the two primary commonly-accepted web accessibility standards:  WCAG 2.0 and Section 508 of the Rehabilitation Act.  Also determine whether your state mandates or recommends specific web accessibility standards.  It’s important to understand the obligations of each compliance standard and to tailor your efforts accordingly.  For example, campuses might wish to strive to make all “new content” comply with WCAG 2.0 AA level (with the exception of narrative description of video content which is not currently technically feasible).
    • Address accessibility in future purchases of EIT.  Build accessibility expectations into your purchasing and procurement processes, and consider whether your institution has the internal capacity to properly evaluate accessibility of new products and technology before purchase.  In some instances, a campus might wish to require the vendor to conduct the testing and provide results prior to any purchase to permit you to evaluate the level of accessibility.
    • Create a mechanism for users to report barriers to access, and an internal process for remediating “legacy” pages and content when requested.
    • Provide effective training programs for faculty and staff to understand the institution’s obligations and commitments to provide accessible content on the web and in instructional material.
    • Consider how best to integrate accessibility work into your website content management processes.
  • Take an inventory of your EIT to determine your campus’s remediation priorities.
    • Prioritize: Many agreements (and prior governmental proposals) have a two year look-back period for remediation.  Indeed, recent OCR agreements typically permit campuses to prioritize what existing content to remediate, understanding the significant costs and burdens associated with some remediation.
    • Consider enterprise-wide applications, mission-critical systems (i.e., for admissions, or course selection), and third-party applications in addition to your websites.
    • Identify the areas where accessibility improvements could have the largest impact on your campus community.
    • Don’t forget your employees with disabilities who may need accessible products to perform their jobs and enjoy the other opportunities afforded to staff and faculty without disabilities.
Drummond Woodsum continues to work closely with dozens of colleges and universities around the country on EIT accessibility and compliance, including representing many institutions that are responding to civil rights complaints filed with OCR.  This effort is led by Jeanne Kincaid, a nationally-known disability lawyer and Allen Kropp, who formerly served in a range of leadership roles within OCR.  We are available to guide you through the OCR complaint process, as well as to provide proactive and preventative counsel and policy development to institutions to improve accessibility before facing federal scrutiny.  If you have any questions or would like to discuss how we can support your institution’s work, please contact any member of our Higher Education Practice group.