UDL On Campus: Legal Obligations for Accessibility

What

What is this resource about? This resource discusses the legal obligations of postsecondary institutions with respect to the accessibility of digital learning materials and provides Policy Guidance for trying to ensure that digital content, online delivery systems, and technologies are accessible for students with disabilities.

Why

Why is this important for higher education? Educators and institutions alike have a legal responsibility to provide accessible platforms and materials. Additionally, accessible materials provide opportunities to ensure that all students are able to participate in and benefit from learning opportunities.

Background Information

In recent years, the number of students with disabilities enrolled in institutions of higher education has been growing. Among postsecondary students with disabilities, more than 50% are enrolled in community colleges.¹ During this time, postsecondary institutions have increasingly begun to embrace the flexibility of online learning and digital learning materials (such as textbooks, notes, slides, and graphs) in electronic format. This shift toward increased digitization holds great promise for students who may struggle with traditional, print-based materials. This shift, however, also brings challenges as digital materials and technologies are not always designed to be accessible from the start.²

Download a short overview about accessibility in higher education.

Relevance

Given the potential barriers to accessibility, postsecondary institutions need to be careful in selecting the digital learning materials and technologies they use. Over the past several years, there have been increased numbers of complaints filed with the Office for Civil Rights (OCR) of the U.S. Department of Education and the Civil Rights Division (CRD) of the U.S. Department of Justice regarding the accessibility of digital content, online delivery systems, and technologies. It is therefore important for postsecondary institutions to be aware of their legal obligations in order to ensure that all of their students are able to participate in and benefit from these new learning opportunities.

Core Information

Legal Obligations Under Section 504 and the ADA

Overview of Disability Civil Rights Laws

Two disability-related civil rights laws govern the obligations of postsecondary institutions with respect to the accessibility of digital learning materials and online courses—Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA). Section 504 prohibits discrimination on the basis of disability in all postsecondary institutions that receive federal funding, including schools that accept federal financial aid.³ Title II of the ADA applies to all public colleges and universities, regardless of whether they receive federal funding;⁴ Title III of the ADA applies to private colleges and universities.⁵

Disability-Related Civil Rights Laws

Section 504

Prohibits discrimination on the basis of disability in programs and activities that receive federal funding.

29 U.S.C § 794(a)

Title II of the ADA

Prohibits discrimination on the basis of disability in all public entities, including public colleges and universities, regardless of whether they receive federal funding.

42 U.S.C. § 12132

Title III of the ADA

Prohibits discrimination on the basis of disability in places of public accommodation, including private postsecondary institutions.

42 U.S.C. §§ 12181(7)(J), 12182(a)

Protected Students

In order to be protected under Section 504, students must be considered “qualified”—i.e., they must be able to meet all academic and/or technical standards for admission or participation in the educational program or activity.⁶ In addition, they must have a “disability,” which means that they—

have a physical or mental impairment that substantially limits one or more major life activities,
have a record of such an impairment, or
are regarded as having such an impairment.⁷

“Major life activities” include seeing, hearing, learning, reading, concentrating, and thinking.⁸

Legal Obligations

Prohibited Actions

Section 504 regulations prohibit postsecondary institutions from engaging in certain discriminatory actions that interfere with the provision of comparable aids, benefits, and services.⁹ Aids, benefits, and services must be “equally effective”—i.e., they must provide students with disabilities “an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement."¹⁰ In addition, the regulations prohibit postsecondary institutions from using discriminatory “criteria and methods of administration”¹¹—i.e., discriminatory “written or formal policies” and “actual practices and procedures.”¹²

Provision of “Accommodations”

Under Section 504 regulations, postsecondary institutions are also required to provide “academic adjustments” (e.g., changes in length of time for degree completion or substitution or adaption of courses)¹³ and “auxiliary aids” (e.g., taped texts) to qualified students with disabilities in order to afford these students an equal opportunity to participate in the school’s program(s).¹⁴ Regulations for Title II of the ADA further state that “auxiliary aids and services” must be provided in accessible formats in a timely manner.¹⁵ Auxiliary aids and services include supports for individuals who are deaf or hard of hearing such as real-time computer-aided transcription services; assistive listening devices; open and closed captioning, including real-time captioning; accessible electronic and information technology; as well as supports for individuals who are blind or have low vision such as Braille materials and displays; screen reader software; magnification software; optical readers; and large print materials.¹⁶

In order to receive an academic adjustment or auxiliary aid and service—commonly referred to as accommodations—a student must self-identify that he/she has a disability. Postsecondary institutions are not required to provide an accommodation that would change essential academic requirements;¹⁷ would fundamentally alter the nature of a service, program or activity; or would result in an undue financial or administrative burden.¹⁸

Under ADA’s Title II regulations, institutions are also required to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others.¹⁹ The term “communications” refers to the transfer of information, including the verbal presentation of a lecture, printed text of a book, and resources of the Internet.²⁰ In evaluating the meaning of “as effective as,” OCR has focused on three components of effectiveness:

Timeliness of delivery,
Accuracy of translation, and
Provision in a manner and medium appropriate to the significance of the message and the abilities of the individual.²¹

ADA’s Title II requirements concerning auxiliary aids and services and effective communications have been the focus of a number of OCR administrative decisions pertaining to accessible instructional materials at the higher education level.²²

Transcript

[White text appears on magenta background: “UDL On Campus.” The colors are inverted and a wave of orange slides over the “UDL On Campus” magenta text. Grey text appears below: “Universal Design for Learning in Higher Education.”]

FEMALE VOICE: UDL On Campus: Universal Design for Learning in Higher Education.

[The title appears on screen.]

FEMALE VOICE: The Importance of Accessibility: A Faculty’s Perspective

[A man is seated for an interview. His name appears on screen: Dr. Richard Jackson: Professor, Boston College; Research Scientist, CAST.]

DR. JACKSON: My name is Richard Jackson. I’ve been a professor at Boston College since 1979, so that’s over 30 years.

[The screen cuts to a montage of scenes from a college campus such as students walking out of a Student Union building and through a book store.]

DR. JACKSON: It’s very important for universities to have a basic understanding of accessibility.

[Dr. Jackson appears on screen again briefly. The screen then cuts to various shots of college student life: a student works at a desk with a faculty member, a mathematics instructor lectures in front of a chalkboard, a basketball team and cheerleaders at practice, a performing arts production, students socializing between classes, and students at work in the library.]

DR. JACKSON: When a student is admitted to a university, it is important for a university to make all resources available to students on an equal basis. This, of course, includes all academic resources, but it also includes whatever the university advertises as a value-added reason for people to come to campus and enjoy the benefits of a high quality education.

[The screen transitions to a panning view of a city street, then cuts to a female student utilizing portable assistive technology.]

DR. JACKSON: Well I think today that professors need to think much more flexibly about how to get the very best work from their students, particularly students with disabilities.

[Dr. Jackson appears on screen. Next, an animation shows a stream of text flowing from a Braille book, to headphones labeled “Audio Formats,” to a book labeled “Large Print,” to a computer labeled “Digital Formats.” The frame cuts to a montage of people’s fingers reading Braille in books and on math worksheets.]

DR. JACKSON: Initially, it’s very important that professors submit their course materials when the course is announced for registration. This gives plenty of time for students who need alternatives to textbooks or accessible instructional materials to be able to obtain these materials. It’s very important that students have access to instructional materials at the same time that non-disabled students have that level of access.

[A white background appears with the following credits:

A Production by CAST

Interviewer Rhianon Gutierrez

Editing Ge Vue

Special Thanks
Richard Jackson
Joanne Karger
Valerie Hendricks
National Center on Accessible Instructional Materials at CAST, Inc.

Developed as part of the Open Professionals Educational Network (Logos for OPEN, CAST, and Creative Commons)

This video features additional media from:
Bristol Community College
Source: http://www.youtube.com/ Creative Commons Attribution (reuse allowed)
Highline Community College
Source: http://www.youtube.com/ Creative Commons Attribution (reuse allowed)
“Juna Gjata Video Series,”
Source: aem.cast.org Used with permission from NCAIM at CAST, Inc.

(Logos for Creative Commons CC, BY, and SA) This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International (CC BY-SA 4.0) license: http://creativecommons.org/licenses/by-sa/4.0.

UDL On Campus: Universal Design for Learning in Higher Education]

Policy Guidance by the Departments of Justice and Education

In 2010, in response to a complaint filed by the National Federation of the Blind (NFB), the Department of Justice, CRD, entered into a settlement with colleges and universities that had been using the Kindle DX e-reader as part of a pilot study with Amazon. The Kindle DX was inaccessible to blind students because the menu and control features of the device did not include text-to-speech functionality.²³

A subsequent “Dear Colleague Letter” (DCL) to college and university presidents, issued jointly by CRD and OCR, stated that requiring the use of emerging technology that is inaccessible to students with disabilities constitutes discrimination under Section 504 and the ADA, unless these students are provided accommodations or modifications that enable them to receive all the educational benefits afforded by the technology in an equally effective and equally integrated manner.²⁴

The following year, OCR issued a Frequently Asked Questions (FAQ) document that provided a “functional definition of accessibility.” According to this definition, students with disabilities must be provided the opportunity to—

acquire the same information
engage in the same interactions, and
enjoy the same services as students without disabilities
with “substantially equivalent ease of use.”²⁵

Graphic of the OCR Functional Definition of Accessibility

The FAQ also clarified that the legal principles outlined in the DCL apply to all faculty and staff of an institution. Moreover, these principles are applicable in the context of online programs that are provided directly by the school or through contractual or other arrangements.

Standards for Accessibility

WCAG 2.0

Postsecondary institutions can find guidelines for web accessibility in the Web Content Accessibility Guidelines (WCAG) developed by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). These voluntary international guidelines, the most recent version of which is titled “WCAG 2.0,” consist of 12 broad guidelines categorized under four principles of accessibility:

WCAG 2.0 Principles and Examples of Guidelines

Perceivable

Information and user interface components must be presentable to users in ways they can perceive.

Provide text alternatives for any non-text content
Make it easier for users to see and hear content including separating foreground from background.

Operable

User interface components and navigation must be operable.

Make all functionality available via a keyboard.
Provide ways to help users navigate, find content, and determine where they are within content.

Understandable

Information and the operation of user interface must be understandable.

Make text content readable and understandable.
Make web pages appear and operate in predictable ways.

Robust

Content is robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

Maximize compatibility with current and future user agents, including assistive technologies.

The WAI has also developed “success criteria” to evaluate conformance to each guideline, with three levels of conformance:

Level A provides for basic accessibility,
Level AA provides for a more comprehensive level of accessibility, and
Level AAA provides for maximum accessibility.²⁶

While the WCAG 2.0 applies specifically to web content, the WAI has released guidance on applying WCAG 2.0 standards to non-web-based information and communication technology—specifically to non-web-based documents and software.

Section 508 Standards

Section 508 requires federal departments and agencies to ensure accessibility of their “electronic and information technology” to individuals with disabilities unless to do so would result in an undue burden.²⁷ The U.S. Access Board creates the technical standards found under Section 508. As of Spring 2014, the current Section 508 standards are in the process of being “refreshed” to harmonize with WCAG 2.0. Although Section 508 applies to federal departments and agencies, many states have adopted the Section 508 standards at the state level.

Recent Developments Pertaining to Accessibility

Agreements with Colleges and Universities Regarding Accessibility

Over the past several years, an increasing number of complaints have been filed with OCR at the Department of Education and CRD at the Department of Justice regarding the accessibility of technology including web sites on college and university campuses. Many have resulted in voluntary agreements with the university in question to take actions to improve their institutional accessibility policies. Additional resolutions and settlements have occurred as a result of OCR’s pro-active compliance review process as well as efforts by disability advocates.

Agreements Involving Postsecondary Institutions

EdX

In April 2015, EdX signed a settlement agreement to resolve a suit filed by the US Department of Justice. In the agreement EdX agreed to:

Ensure all their mobile applications and LMS comply with WCAG 2.0 AA Accessibility Guidelines;
Ensure that the CMS enables the creation and presentation of content that conforms with WCAG 2.0 AA;
Ensure that their mobile application or platforms do not block or interfere with any accessibility features in Course Content provided by Content Providers, including any content published in accessible formats.

Louisiana Tech University

In 2013, Louisiana Tech University entered into an agreement with the Department of Justice regarding the accessibility of its technology and instructional materials. The University agreed to engage in such actions as the following:

Adopting an accessibility policy;
Providing training for instructors and administrators on ADA requirements; and
Conducting a review of the accessibility of its technology including web sites, instructional materials, and online courses, and other electronic and information technology for use by students or prospective students.

The University further agreed, as part of its accessibility policy, that it would only purchase, develop, or use technology and instructional materials that are accessible and that it would generate procedures for providing equally effective alternate access for any acquisition of technology that was not accessible.

Miami University in Ohio

In April 2014, The U.S. Department of Justice is sought to join a blind student’s lawsuit against Miami University in Ohio, saying "the institution’s website and licensed software from vendors such as from Turnitin and Pearson are inaccessible to students with disabilities". For more information go to the Inside Higher Ed article.

Penn State University

In 2011, Penn State University and the NFB voluntarily entered into an agreement to resolve a complaint that the NFB had filed with OCR. In the agreement, Penn State agreed to such actions as—

Completing an accessibility audit of its electronic and information technology and developing a corrective action strategy based on the audit’s findings;
Developing an accessibility policy statement and implementing procedures and conducting accessibility training;
Developing and instituting improved procurement procedures; and
Ensuring the accessibility of its library resources, university web sites, course management systems, classroom technology, clickers, and bank ATMs and web sites.

South Carolina Technical College System

In 2013, the South Carolina Technical College System entered into a resolution agreement with OCR regarding the accessibility of the web sites of the 16 colleges that comprise the system. The system voluntarily agreed to such actions as the following:

Send a directive to each college regarding its responsibility to ensure that students with disabilities are able to access the information on its web site with substantially equivalent ease of use as students without disabilities;
Require annual reporting from each college regarding its web site accessibility; and
Develop a resource guide with information about accessibility for each college to make available to those offering and designing online courses and those designing and maintaining the colleges’ web sites.

University of California, Berkeley Campus

In 2013, the University of California, Berkeley Campus, entered into a settlement agreement with Disability Rights Advocates in which the University agreed to institute improved policies and procedures regarding accessible instructional materials, including procedures for

Providing alternate media in a reasonable and equitable timeframe,
Posting reading material by faculty and staff in a space that is accessible to students requiring alternative accessible media in a reasonable and equitable timeframe,
Making assistive technology available to students in computer labs, and
Providing library materials in accessible alternative formats.

The agreement also included, as an appendix, guidelines designed to assist the Disabled Students Program in providing timely and effective alternative media services.

University of Montana

In 2013, the University of Montana entered into resolution agreement with OCR based on a complaint alleging the inaccessibility of the University’s electronic and information technology, including the following:

Inaccessible class assignments, materials, live chat, and discussion board functions in the University’s LMS system (Moodle);
Inaccessible scanned images on web pages and web sites;
Inaccessible videos in Flash format without captioning;
Inaccessible library database materials; and
Inaccessible classroom clickers.

As part of the agreement, the University agreed to take actions such as developing an accessibility policy and procedures, developing and instituting improved procurement procedures, conducting accessibility training, issuing a confidential student survey, and completing an accessibility audit.

Postsecondary Accessible Instructional Materials Commission

In December 2011, the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities report, which was convened under the Higher Education Opportunity Act of 2008, makes recommendations for addressing some of the challenges associated with the provision of accessible instructional materials (AIM) to students with print disabilities at the postsecondary level. One of the Commission’s recommendations urged Congress to authorize the Access Board, the entity that has set the standards for accessibility under Section 508, to establish uniform accessibility guidelines for accessible instructional materials.

TEACH Act

Following the recommendations of the AIM Commission, in 2013 Congress introduced the “Technology, Equality, and Accessibility in College and Higher Education (TEACH) Act” which would require the Access Board to develop national guidelines for accessibility of electronic instructional materials and related information technologies for blind and other individuals with disabilities.

Recommendations for Postsecondary Institutions to Help Ensure Accessibility

Given the requirements of postsecondary institutions regarding accessibility as well as recent policy developments in this area, there are a few practical steps that can be taken to help ensure that digital content, online delivery systems, and technologies are accessible for students with disabilities:

Conduct an internal accessibility review of electronic and information technology, including web sites, digital content, online delivery and learning management systems, classroom technology, and library databases and resources. Involve students, faculty, and staff in usability testing. Develop a pro-active plan to fix any problems.
Make accessibility considerations a priority from the start and incorporate them into the acquisition and procurement process. Require vendors to submit a product Voluntary Product Accessibility Template (VPAT) and be adamant about the need for VPAT accuracy.
Ensure the college or university in question has plans for providing alternate access for technology that must be purchased that is inaccessible. Consider developing an Equally Effective Alternate Access Plan (EEAAP) form.
Provide training for faculty, staff, and students about accessibility issues. Include information from the UDL On Campus resource Media & Materials.
In making decisions about the purchase of new technology and materials, ask the following questions (developed by OCR):
- What educational opportunities and benefits does the school provide through the use of the technology?
- How will the technology provide these opportunities and benefits?
- Does the technology exist in a format that is accessible to individuals with disabilities?
- If the technology is not accessible, can it be modified, or is there a different technological device available, so that students with disabilities can obtain the educational opportunities and benefits afforded by it in a timely, equally effective, and equally integrated manner?²⁸

Review

Postsecondary institutions have specific obligations with respect to the accessibility of their digital learning materials and technologies for students with disabilities. Recent policy developments underscore that these accessibility considerations need to be made a priority. Consequently, as postsecondary institutions increasingly move toward the digitization of instructional programming, it is important for practitioners to understand the underlying legal and policy parameters in order to ensure that all of their students are able to participate in an equally effective manner.

Notes

1. See Karger, J. & Lazar, J. (2014). Ensuring that students with text-related disabilities have access to digital learning materials: A policy perspective. Perspectives on Language and Literacy, 40, 33-38.

2. See Van Noy, M., Heidkamp, M., & Kaltz, C. (2013). How are community colleges serving the needs of older students with disabilities? Issue Brief of the NTAR Leadership Center. New Brunswick, NJ: NTAR Leadership Center. Retrieved from http://www.dol.gov/odep/pdf/CommunityCollegesOlderStudents.pdf.

3. 29 U.S.C § 794(a).

4. 42 U.S.C. § 12132.

5. 42 U.S.C. §§ 12181(7)(J), 12182(a).

6. 34 C.F.R. § 104.3(i)(3).

7. 42 U.S.C. § 12102(1).

8. 42 U.S.C. § 12102(2)(a).

9. 34 C.F.R. § 104.4(b)(1).

10. 34 C.F.R. § 104.4(b)(2) (emphasis added).

11. 34 C.F.R. § 104.4(b)(4).

12. See Illinois State Bd. of Educ., 20 IDELR 687, at **4-5 (OCR IL 1993).

13. 34 C.F.R. § 104.44(a).

14. 34 C.F.R. § 104.44(d).

15. 28 C.F.R. § 35.160(b)(2).

16. 28 U.S.C. § 35.104.

17. 34 C.F.R. § 104.44(a).

18. 28 C.F.R. § 35.164.

19. 28 C.F.R. § 35.160(a)(1).

20. Letter to: California State Univ., 108 LRP 20251, at *2 (OCR CA 2003).

21. Letter to: California State Univ., 108 LRP 20251, at *2 (OCR CA 2003).

22. See, e.g., Univ. of New Mexico, 32 NDLR 50 (OCR NM 2005); Central Missouri State Univ., 29 NDLR 209 (OCR MO 2004); Valdosta State Univ., 16 NDLR 61 (OCR GA 1999); City College of San Francisco, OCR Case Docket No. 09-97-2145 (January 9, 1998); Los Rios Community College Dist., 5 NDLR 423 (OCR CA 1994).

23. United States Department of Justice, Civil Rights Division [CRD] and Department of Education, Office for Civil Rights [OCR]. (2010). Joint “Dear Colleague” Letter: Electronic book readers. Washington, DC: Author. Retrieved from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html.

24. Id.

25. United States Department of Education, Office for Civil Rights [OCR]. (2011). Frequently Asked Questions about the June 29, 2010 Dear Colleague Letter. Washington, DC: Author. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html.

26. World Wide Web Consortium, Understanding Conformance. Retrieved from http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-levels-head.

27. 29 U.S.C. § 794d(1).

28. See OCR (2011), supra note 25.

Legal Obligations for Accessibility