The Use of Inaccessible Technology by Educational Institutions
As the use of technology is rapidly increasing in education, so is the focus on ensuring that the technology used is accessible to students with disabilities. Today, educators regularly use digital productivity platforms to communicate information to students and distribute materials and assignments electronically. Using productivity software and cloud services in the classroom and in other educational settings appears to be a promising way of allowing a new generation of digitally-savvy students to collaborate with teachers and other students thereby enhancing learning.
Recent litigation and enforcement actions, however, have underscored the importance of ensuring that technology adopted and used in educational settings is capable of reaching all students, including those with disabilities and, in particular, those with visual impairments. Two federal statutes – the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act – set forth educational institutions’ obligations to accommodate disabled students. Specifically:
- Title II of the ADA, which covers public colleges and universities, prohibits covered entities from excluding or denying a qualified individual with a disability from “the benefits of the services, programs, or activities” provided. See 42 U.S.C. § 12132.
- Title III of the ADA, which applies to private colleges and universities, prohibits those institutions from discriminating against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of the institutions. See id. § 12182.
- Section 504 of the Rehabilitation Act, which covers entities that receive federal funding, prohibits covered educational institutions from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services, including the right to participate in and have access to those benefits and services. See 29 U.S.C. § 794.
Private plaintiffs can file suit to enforce their rights under both the ADA and the Rehabilitation Act, and available remedies include injunctions, remedial actions, attorneys’ fees, and compensatory damages. In addition, the Department of Justice (“DOJ”) and the Department of Education (“DOE”) share responsibility for enforcing these statutes in the education context. Three recent actions – one by a private plaintiff, one by the DOJ, and one by the DOE – illustrate how technology accessibility issues are arising in educational settings.
Dudley v. Miami University
Miami of Ohio student Aleeha Dudley, who is visually impaired, filed suit in January 2014 claiming that the University violated the ADA and Rehabilitation Act by failing to adequately accommodate her visual impairment. See Dudley v. Miami University, Case No. 1:14-cv-00038-SJD (S.D. Ohio). Ms. Dudley, like many visually impaired individuals, uses screen reading software to read digital text. In her complaint, she alleged that her course assignments and course texts were regularly created and/or distributed in a variety of software programs that could not be accessed or fully accessed by her screen reading software, and that assignments and the collection of assignments for her courses were often managed through software programs and online portals that were also not accessible with screen reading software. She alleged that this prevented her from receiving notice of assignments at the same time as other students, accessing assignments and readings at the same time as other students (in part, because she would often have to wait for remediated materials to be made available), and fully navigating readings because the texts provided were not created or remediated in a way that permitted her full use of the features of her screen reading software. Moreover, Ms. Dudley alleged that the University’s failure to use accessible technology extended beyond the classroom. She alleged that essential functions of the online student services website portal, the distribution of course catalogs used for course registration, and the degree audit website were not fully accessible to her because she could not navigate them using her screen reading program.
The numerous examples raised by Ms. Dudley in her complaint highlight the myriad of different ways in which technology accessibility issues can arise in educational settings – both with respect to the technology used to create the content as an initial matter, and with respect to the technology used to distribute the content. Ms. Dudley chronicles a long list of software and technological platforms allegedly used by her professors to create or distribute content that she contends were not sufficiently accessible to her, given her visual impairments. In many cases, she also alleges that other, more accessible technologies were readily available. The complaint contains a laundry list of examples, including popular cloud-based productivity applications.
According to the complaint, Ms. Dudley seeks a variety of relief, including an injunction against the University prohibiting it from violating the ADA and Rehabilitation Act, compensatory damages, and attorneys’ fees. Less than a month after filing the complaint, Ms. Dudley’s attorneys alerted the Court that they planned to file a motion for preliminary injunction against the University. Thereafter, the parties initiated discussions of a potential resolution of Ms. Dudley’s claims and are required to report to the Court on the status of those discussions.
University of Colorado at Boulder Department of Justice Investigation
In 2014, the DOJ notified the University of Colorado at Boulder that it was under investigation following complaints by visually impaired students that the University was using inaccessible technology in violation of Title II of the ADA. See Letter from Chancellor. Like the Dudley case, the complaints alleged that the University was using software in the education process that was inaccessible to visually impaired students for email, document processing, spreadsheets, calendar invites, and notices – and that the software was not compatible with screen readers used by visually impaired students. The complaints also alleged delays in providing digitally formatted textbooks; the use of visual, touch screen displays around the university that visually impaired students cannot use; the inaccessibility of the University’s online student portal; and the inaccessibility of websites used by educators to manage homework and course-related content, among other issues.
As part of its investigation, the DOJ has requested detailed information and documents from the University, including all of its policies and procedures relating to accessible technology and information regarding the University’s adoption of certain technologies that are alleged to be inaccessible to visually impaired students.
University of Montana and Department of Education Resolution Agreement
In March 2014, the University of Montana and the DOE entered into a Resolution Agreement regarding the accessibility of educational materials by visually impaired students.
The Resolution Agreement was the culmination of an investigation by the DOE into the University’s alleged use of inaccessible technology, again following complaints from students that the University was using and providing inaccessible materials to visually impaired students; that many of the features of its learning management system, including online chat and discussion board functions, could not be used by visually impaired students; and that its website, library database materials, and online course registration programs were also inaccessible to visually impaired students using screen readers.
The Resolution Agreement requires the University to implement a broad remediation program to make its technology accessible to all students, including those who are visually impaired. Specifically, the University committed in the Resolution Agreement to (1) implement a policy, subject to comment by the DOE, relating to accessibility of electronic information; (2) institute a variety of awareness and training opportunities for faculty and staff to alert them to the electronic information accessibility issues raised in the complaints; (3) establish a grievance procedure relating to electronic information accessibility; (4) establish procedures for the University’s procurement function so that the accessibility of technology is considered before technology is purchased and implemented; and (5) institute feedback loops, such as student surveys and accessibility audits, to ensure that the needs of visually impaired members of its community are being met. The Resolution Agreement also requires reporting to the DOE that extends at least two years out from the effective date of the agreement.
These three actions highlight the recent focus by the federal government and private attorneys on ADA and Rehabilitation Act compliance in the area of technology accessibility. Although these particular actions involve public universities, both public and private educational institutions and educational service providers have legal obligations to make the services they offer accessible to students with disabilities. Failure to do so puts these entities at risk of being subject to governmental investigations, costly litigation, remediation programs overseen by the government, court-ordered injunctions, attorneys’ fees, and compensatory damages.
These risks can be mitigated with effective compliance programs. Educational institutions and educational service providers should review their current technology practices to ensure that they are fully compliant with applicable legal requirements. Given the rapid changes and advances in technology, educational institutions and educational service providers also should review their compliance programs to ensure that any new technology introduced in the classroom or other educational settings in the future meets accessibility requirements, as well. In doing so, it is important to ensure not only that the software used to create content initially is accessible, but also that the content retains its accessibility when it is shared or distributed through or using other technologies. In addition, it is critical to recognize that students with disabilities may bring with them their own preferred technology, such as a particular screen reader. To establish an inclusive productivity environment, educational institutions must select technology platforms with a focus on interoperability. Finally, training and awareness around accessibility issues in the educational community are also key to ensuring that public and private educational institutions and service providers comply with the requirements of the ADA and Rehabilitation Act.
Critically, these cases and enforcement actions also highlight the need for educational institutions to plan ahead in this area. According to the DOE, “the implementation of an emerging technology should always include planning for accessibility,” without regard to whether students in need of accessibility accommodations are currently attending or enrolled in the institution. See Frequently Asked Questions here. This means that when educational institutions procure and implement emerging technology, they need to identify a “means to provide immediate delivery of accessible devices or other technology necessary to ensure accessibility from the outset.” Id. The DOE’s statements recognize that it may be very difficult and costly, if not impossible, to make inaccessible technologies sufficiently accessible down the road, if and when a student requiring accommodation enrolls. Thus, among the measures educational institutions may consider in evaluating ADA and Rehabilitation Act compliance is the extent to which their technology procurement policies and technology-related strategic plans consider and address accessibility.
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