Higher Education, the Americans with Disabilities Act and Section 508
Implications for Higher Education of the Americans with Disabilities Act and Section 508 of the Rehabilitation Act Amendments of 1998
Summary
As entities throughout the University System make increasing amounts of information available through the Internet, the exact state of the law with respect to accessibility of Internet based resources should be reviewed. One relatively recent development, which has caused some confusion in the Higher Ed community, is Section 508 of the Rehabilitation Act. As written, 508 does not automatically apply to institutions of higher education, even if they receive federal funding. However, States that receive funds through the Assistive Technology Act are required to comply with 508. Georgia receives funds under the Assistive Technology Act. Tools for Life has served as Georgia’s AT Act Program since 1991 and operates under the University System BoR, Georgia Institute of Technology, AMAC project. Therefore, institutions under the Board of Regents may be required to ensure that electronic and information technology is accessible to individuals with disabilities in compliance with Section 508 standards. The Electronic and Information Technology Accessibility Standards were released on December 21, 2000, consequently the deadline for 508 compliance was June 21, 2001.
A concern for public and private Higher Education is the Americans with Disabilities Act (ADA). While little binding case law exists, there have been several prominent U.S. Department of Education (DOE) rulings and out of court settlements that indicate the future course that case law will follow. The highest profile cases to date have been the American Federation for the Blind versus America Online and the Sydney Olympic Website cases. In both cases the defendants have moved to make their sites accessible.
With direct application to Higher Education are the DOE resolutions with the California Community Colleges (CCC) and San Jose State University. In both cases the institutions chose to comply with DOE recommendations to improve accessibility. In the case of CCC, a system wide policy for the accessibility of distance education was developed by a committee appointed by the chancellor.
The importance of a planned, coordinated response to the accessibility requirements of the law is stressed if institutions of higher education are to maintain accessibility while minimizing the cost of retrofitting existing resources.
Information on Section 508 of the Rehabilitation Act
The Law: Section 508
In 1998, Congress amended the Rehabilitation Act and strengthened provisions covering access to information in the Federal sector. As amended, section 508 of the Rehabilitation Act requires access to the Federal government’s electronic and information technology. The law covers all types of electronic and information technology in the Federal sector and is not limited to assistive technologies used by people with disabilities. It applies to all Federal agencies when they develop, procure, maintain, or use such technology. Federal agencies must ensure that this technology is accessible to employees and the public to the extent it does not pose an "undue burden." The law directs the Access Board to develop access standards for this technology that will become part of the Federal procurement regulations. The Electronic and Information Technology Accessibility Standards were released on December 21, 2000. The deadline for 508 compliance was June 21, 2001.
The scope of section 508 is limited to the Federal sector. It does not apply to the private sector, nor does section 508 impose requirements on the recipients of Federal funds. However, the Department of Education interprets the Assistive Technology Act (the "AT Act"), 29 U.S.C. 3001, to require that States receiving assistance under the AT State Grants program to comply with section 508, including these standards.
Section 508 in no way replaces or otherwise limits the rights or remedies available under any other existing Federal law that protects the rights of people with disabilities. As part of the Rehabilitation Act, it clarifies and strengthens the Federal government’s existing obligation to ensure that technology is accessible to people with disabilities.
The Americans with Disabilities Act
Courts and regulators are beginning to push for more Web site access for the disabled. The most often cited legislation in this regard, The Americans with Disabilities Act, is being increasingly interpreted to apply to the Internet. In November, the National Federation of the Blind filed a landmark lawsuit against America Online (AOL). The suit claims AOL violated the federal Americans with Disabilities Act by failing to provide access for the disabled to its web based services. As part of the settlement of this case AOL developed an Accessibility Policy.
Department of Education Rulings
While little case law exists in the US, the position of the Department of Education and the Department of Justice are that Americans with Disabilities Act and the Rehabilitation Act of 1973 do apply to web based business, Higher Education institutions, and distance education.
“Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”
California Community Colleges
In March 1996, the U.S. Department of Education, Office of Civil Rights (OCR) began a statewide compliance review under Title II of the Americans with Disabilities Act of 1990.
III. Access Guidelines for Distance Learning and Campus WebPages
California Community Colleges, individually and collectively as part of the California Virtual University, are rapidly developing their capacity to deliver educational programs to off-site students through technology. Little attention is being given to ensure that these distance learning programs are accessible to students with disabilities, especially students with visual impairments. Moreover, colleges are placing more and more information on the Internet and campus LAN, yet the web pages through which this information is to be accessed have not been designed to facilitate access by persons with visual impairments…
If guidelines to ensure access are made available to colleges now, such information on how to structure distance learning programs and campus web pages will not only ensure that colleges meet their legal obligations but will also enable colleges to save significant expense over the later cost of "retrofitting" these programs after substantial investment has been made in inaccessible structures. The Chancellor’s Office may wish to draw on distance education and webpage access guidelines developed by others.
In response to this letter of resolution The Chancellor’s Office of California Community Colleges issued Distance Education Access Guidelines for Students with Disabilities in August 1999. These are believed to be the first set of specific accessibility guidelines issued for distance education in this country by a state.
San Jose State University
On September 5, 1995, the U.S. Department of Education (Department), San Francisco Regional Office for Civil Rights (OCR), received a complaint against San Jose State University (SJSU or the University) alleging a violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). Specifically, the complainant alleged that: 1) the University failed to provide him access to the "Internet", and 2) the University failed to complete the "Self Evaluation Plan" required by Title II.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 C.F.R. Part 104, which prohibits discrimination on the basis of disability in programs and activities receiving Federal financial assistance from the U.S. Department of Education. SJSU receives such financial assistance and, therefore, is subject to the provisions of those statutes and regulations. OCR also has jurisdiction under Title II of the Americans with Disabilities Act of 1990 and its implementing regulation at 28 C.F.R. Part 35 to investigate claims of discrimination on the basis of disability that are filed against certain public entities, such as institutions of higher education. SJSU is a public entity…
Title II recognizes the special importance of communication, which includes access information, in its implementing regulation at 28 C.F.R. SS 35.106 (a). The regulation requires a public entity, such as a state university, to take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others. Thus, the issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others. Title II also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities.
An Overview of the Law and Appropriate Responses
The following are excerpted from a paper written and presented at the request of the American Bar Association for their National Conference "In Pursuit … A Blueprint for Disability Law and Policy" by Cynthia D. Waddell, an internationally recognized authority on accessibility and the web on Applying the ADA to the Internet: A Web Accessibility Standard. The importance of planning for accessibility, particularly when making technology upgrades is stressed. Responding ad hoc to complaints with no overall plan for compliance is not a legally defensible position.
On United States Department of Justice Policy Ruling, 9/9/96: ADA Accessibility Requirements Apply to Internet Web Pages:
"The policy ruling states that ADA Titles II and III require State and local governments and the business sector to provide effective communication whenever they communicate through the Internet. The effective communication rule applies to covered entities using the Internet for communications regarding their programs, goods or services since they must be prepared to offer those communications via an accessible medium…
Therefore, as government and businesses increasingly depend on the convenience of the Internet as a vehicle for programs, goods or services, the more it is important that accessible web design be addressed. Accessible web design enables effective communication and saves government resources since documents can be readily available, requests for ADA Alternate Document Formats can be satisfied, and Internet/Intranet access for employees with disabilities can be provided."
On United States Department of Education, Office of Civil Rights, Settlement Letters: Docket Number 09-95-2206 (1996 Letter) & 09-97-2002 (1997 Letter)
"Not surprisingly, web accessibility issues are now being faced by educational institutions. Library reference services are being transformed by the efficiency of Internet access to information systems and search engines. Professors are teaching long distance learning courses over the Internet and even if a student is physically in class, homework assignments and resources are being posted on class homepages. Yet, even if a library terminal has assistive computer technology installed for students with disabilities, Internet research by students with disabilities is not possible with inaccessible web page design.
OCR also points out that the courts have held that a public entity violates its obligations under the ADA when it only responds on an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services. Moreover, the community of persons with disabilities is required to be consulted in the development of this policy. See Tyler v. City of Manhattan, 857 F. Supp. 800 (D. Kan. 1994).
Of particular interest is the analogy OCR draws between the rationale for bringing an existing building up to code for access and the purchase of new technology for information systems. For example, buildings built prior to access laws are governed by "program access" requirements and remodeling triggers the requirement to install certain accessible architectural features.
Similarly, the effective communication requirement imposes a duty to solve barriers to information access that the entity’s purchasing choices create. Whenever existing technology is "upgraded" by a new technology feature, it is important to ensure that the new technology either improves accessibility or is compatible with existing assistive computer technology. For example, web-authoring software programs that erect barriers in their coding of web pages fall under this scrutiny.
Lastly, OCR states that when an entity selects software programs and/or hardware equipment not adaptable for people with disabilities, "the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection." (Page 2, 1997 Letter) Therefore, all technology improvements must take into account the removal of barriers and ensure that new barriers to access do not occur. Covered entities preparing to retrofit their web sites need to be aware of this issue."
Applying the ADA to the Internet: A Web Accessibility Standard