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Tech Accessibility in Post-Secondary Education Basic Civil Rights Foundation

Tech Accessibility in Post-Secondary Education Basic Civil Rights Foundation. Brendan Guenther (NOT a lawyer).

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Tech Accessibility in Post-Secondary Education Basic Civil Rights Foundation

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  1. Tech Accessibility in Post-Secondary EducationBasic Civil Rights Foundation Brendan Guenther (NOT a lawyer)

  2. “The steady movement to a more fair and just society plays out every day in the classrooms, colleges and universities all across America–and I believe that the only way to achieve equity in society is to achieve equity in the classroom.” —Secretary Arne Duncan, July 14, 2010 http://www2.ed.gov/documents/news/section-504.pdf http://learn.uvm.edu/downloads/legal/Primer_on_Higher_Education_Legal_Issues.pdf

  3. The Statutes • Section 504 of the Rehabilitation Act of 1973, prohibit discrimination based on disability in programs and activities operated by recipients of federal funds. • Titles II and III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. • Title II “Public Services” covers public colleges and universities • “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” § 12132. • Title III “Public Accommodations and Services Operated by Private Entities” covers all colleges and universities, including private and for-profit schools. • No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” § 12182. • “The following private entities are considered public accommodations for purposes of this subchapter ... : a[n] ... undergraduate, or postgraduate private school, or other place of education.” § 12181(7)(J).

  4. What is a disability? • Section 504 and Title II do not contain a specific list of disabilities. Instead, they employ a definition of disability. Under this approach, a person has a disability if he or she: • (1) has a physical or mental impairment that substantially limits one or more major life activities of that person; • (2) has a record of such an impairment; or • (3) is regarded as having such an impairment. • Congress has clarified that “disability” should be understood to allow for broad coverage. • 2008 adjustments to ADA include a provision that errs towards ADA plaintiffs: • The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act. [§12102(4)(a).]

  5. What are “Major Life Activities?” • The Amendments Act adds a definition of this term: • (A) ... [M]ajorlife activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. • (B) ... [A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. • §12102(2) of the ADA, added by Amendments Act §4(a). For the first time, problems with “concentrating,” “thinking,” “communicating” and “working”

  6. General Prohibitions in ADA • Denial of Participation • Participation in Unequal Benefit • Separate Benefit (unless necessary to provide equivalent that is “as effective”) • Integrated Settings (most integrated setting appropriate to needs of individual) • Opportunity to participate (can still participate in regular program) • Association (unlawful to discriminate against disabled or those that advocate for them)

  7. Specific Prohibitions in ADA for PSE • Discrimination in admission and recruitment • Discrimination in provision of academic services • College must provide reasonable accommodations, with no means testing or cost to recipient • Courts have found that the ADA does not allow students to compel college to: • Lower academic standards for course or degree • Redesign courses (e.g. to eliminate use of a textbook) • Eliminate clinical proficiency tests • Discrimination in the provision of extracurricular opportunities

  8. Department of Education (ED) Regulations • Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Federal Financial Assistance — Postsecondary Education,” 34 C.F.R. Part 104, Subpart E • Clarifications on Technology via DCL 2010 (e-books) and Follow-up in 2011 (any tech) • Restated obligations of Section 504 and ADA Title II and III • so that a student can acquire the same information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use • http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201105-pse.html

  9. FAQ on Tech Accessibility 1) June 29, 2010 letter impose new legal obligations? NO 2) Does DCL apply to other disabilities affecting print materials? YES 3) Does this mean we can’t use emerging technology? NO 4) Does DCL apply to elementary and secondary school? YES 5) Does DCL apply to all operations and all faculty and staff? YES 6) Does the DCL apply beyond e-books to other forms of tech? YES 7) Does DCL apply to online courses & content (admission, housing, assignments)? YES 8) Does DCL apply to pilot programs or other school programs of short duration? YES

  10. FAQ on Tech Accessibility p2 9) Does DCL apply when using tech where no disabled students are enrolled? YES 10) What questions should a school ask? “Equally effective and equally integrated?” 11) What about “accommodations or modifications”? • Equally Available: Same information, same interactions, same services? • Equally Timely: Time frames provide equally effective and equally integrated? • Equally Difficult: Ease of use meet equally effective and equally integrated? 12) Are there circumstances appropriate to traditional alternative media? YES 13) If a student requests emerging tech not used for all students? Individualized decision 14) Same tech required for disabled student as for all students? NO

  11. Typical Scenario • University uses a technology, content management system, or course material generated by faculty that fails to meet the needs of a disabled person (often a student). • The disabled student exhausts options for requesting and gaining access to accommodations and alternatives feels they have been left with a discriminatory situation (e.g. not as effective, not as integrated, and/or not as timely) as compared to their peers. • A disability rights organization (or the disabled student independently) files suit. • As the investigation proceeds, it often grows in scope towards campus-wide review. • Most campuses have significant room for improvement, so many other possibly discriminatory practices, technologies, and content are caught in the dragnet. • Ultimately the campus settles the suit, and in doing so commits to a comprehensive campaign of improvement that often includes: a strong policy statement, mandatory training, strict procurement requirements, and a remediation scope and timeline.

  12. Recent PSE Litigation • 2014 UC Berkeley Inaccessible Textbooks DRA Settlement • 2014 University of Montana Online tools: web, library, video ED agreement • 2013 Louisiana Tech Inaccessible Course Materials DOJ Settlement • 2013 South Carolina Tech Colleges Inaccessible Websites ED agreement • 2012 Florida State University Inaccessible E-Learning NFB suit settled • 2011 Northwestern University Inaccessible Google Apps • 2011 New York University Inaccessible Google Apps • 2010 Penn State University Web Site & Course Materials NFB/DOJ Settlement • http://blog.lib.umn.edu/itsshelp/news/2013/10/higher-ed-accessibility-lawsuits.html • http://depts.washington.edu/uwdrs/faculty-resources/why-technology-and-materials-need-to-be-accessible/

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