Web Accessibility In Post-secondary Education: Legal And Policy Considerations

This work was partially funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education (grant #H133D010306). However, the contents do not necessarily represent the policy of the Department of Education, and you should not assume their endorsement. Some portions of this manuscript have been adapted from web-based publications or presentations by the authors, located at http://www.washington.edu/accessit.

ABSTRACT

The rapidly increasing use of the web by post-secondary educational institutions in distance-learning programs, on-campus classes, and as a mode of communication to students, faculty, staff and the public, can present significant barriers to users with disabilities if those websites are not accessible. Federal civil rights laws mandate that individuals with disabilities have access to the information contained on the websites. A few states have gone further and passed legislation or otherwise made policy commitments that require state entities -- which do not always apply to post-secondary educational institutions --to develop and maintain accessible websites. To date, however, there is no federal legal mandate that private or public institutions of higher education make their websites accessible. Despite the lack of a specific legal requirement higher education administrations are increasingly developing and implementing institutional policy that requires websites to be accessible for individuals with disabilities. In this article, we will review relevant federal laws and federal agency guidance regarding the duties of institutions of higher education in the area of web accessibility. We will also review some state laws that may have an impact on post-secondary institutions, and sample some policy on accessible IT developed at the post-secondary level.

Universities, community colleges and other post-secondary institutions are increasingly using the web as a mode of communication. For example, information concerning school admission policies, campus activities, and community services as well as a wide range of staff and faculty resources are now routinely -- and often times exclusively -- provided via the web. In addition, distance learning course offerings have become more common and on-campus classes have increasingly included web-based modes of instruction. As an example of faculty interest and use of the web in teaching, among 1,879 University of Washington faculty who responded to a survey in 2001, 82% used the web at least weekly to support their instruction (Do you teach with technology? Faculty survey results revealing, n.d.).

The findings from survey research on the use of the Internet by college students in a recently released report by the Pew Internet and American Life Project also documents the importance of the Internet to higher education students (Pew Internet and American Life Project, n.d.). The researchers concluded that, “…it is integrated into their daily communication habits and has become a technology as ordinary as the telephone or television.” Students reported that they use, “…the Internet to communicate with professors and classmates, to do research, and to access library materials. For most college students the Internet is a functional tool, one that has greatly changed the way they interact with others and with information as they go about their studies.”

The Pew survey was completed by 2054 students from 27 2 and 4 year colleges and universities and was intended to be reflective of the “national population of college students.” However, what is striking about this comprehensive report is the fact that students with disabilities are not mentioned. It is not clear whether the experiences of students with disabilities, who make p approximately 15% of the student body (National Center for Educational Statistics, 2002), are reflected in the survey findings. The web is becoming a common mode for instruction and communication in higher education, and while presenting unprecedented opportunities for people with disabilities this technology also presents new accessibility challenges.

Web designers and programmers unaware of accessibility issues often inadvertently create barriers for people with disabilities. A website that is inaccessible to people with disabilities limits the availability of campus information and library resources. When web pages are inaccessible, students, staff and faculty with disabilities may miss out on opportunities for sharing work, communicating with peers and mentors, keeping in touch with the latest campus activities. Students with disabilities may be prevented from taking advantage of experiential learning for which they may already have limited opportunities due to their disabilities. Conversely, when web-based material is fully accessible, students with disabilities may have greatly enhanced and efficient participation (Amtmann & Johnson, 1998).

Despite the lack of a federal legal requirement that private or public institutions of higher education make their websites accessible, higher education administrations are increasingly developing and implementing institutional policy that requires websites be accessible for individuals with disabilities. As we describe in the following section, educational institutions have legal obligations to ensure that all students and employees have access to the information on websites developed by the institutions necessary to participate in program activities. However, most institutions consider accessibility of web pages only when students or employees with disabilities are unable to access information and request accommodations. In many cases, making the required individual accommodation may include providing the appropriate assistive technology to access the web. Retrofitting the website can also be an option, but similar to retrofitting physical environments, it is more costly, more time consuming, and often does not produce satisfactory results. Proactive action, such as up-front planning for web accessibility results in timely and meaningful access for students and employees with disabilities, and can significantly help to reduce the costs associated with retrofitting or providing individual accommodations.

The authors believe that the most effective and equitable method of ensuring that individuals with disabilities have access to the web is through the adoption of policies that provide for the development of accessible information technology (IT), which includes accessible websites. Because web pages at post-secondary institutions are often mounted by a range of units from individual faculty and students to centralized computing, accessibility of web pages is best achieved by adopting a broadly worded written policy that clearly requires procurement of accessible IT including the web, defines what is considered accessible, and the ways in which compliance is monitored and enforced. Institutions across the United States are beginning to develop such polices. A few states have gone further and passed legislation or otherwise made policy commitments that require public institutions to develop and maintain accessible IT broadly or websites specifically. Examples from Texas, Arizona and Minnesota are among those discussed below.

In this article, our intention is to provide higher education administrators with the necessary information to understand both the legal rationale for adopting accessible IT policies and the factors to consider when developing and implementing “effective” IT accessibility policies. We will begin by reviewing the relevant legal issues.

RELEVANT FEDERAL LAW

The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (§504) prohibit post-secondary institutions from discriminating against individuals with disabilities. The Office for Civil Rights (OCR) in the U.S. Department of Education has indicated through complaint resolution agreements and other documents that institutions covered by the ADA and §504 that use the Internet for communication regarding their programs, goods, or services, must make that information accessible. In an OCR settlement agreement, the federal agency stated that whether the communication is via media, print, or the Internet, post-secondary institutions must effectively communicate with individuals with disabilities including students, faculty, staff and the wider community (Office of Civil Rights, 1996).

The Civil Rights Division, Disability Rights Section, in the Department of Justice (DOJ) has recently issued a document entitled “Accessibility of State and Local Government Websites to People with Disabilities,” (Department of Justice, n.d.). In this document, DOJ states that State and local governments are required under the ADA and §504 to provide “equal access to their programs, services, or activities unless doing so would fundamentally alter the nature” of these programs, services or activities or “would impose an undue burden.” This equal access obligation covers access to the information on governmental -- i.e., public post-secondary institutional -- websites. The effectively communicate standard was used by the Office for Civil Rights (OCR) in complaint resolution agreements with post-secondary institutions to determine whether the means of communication (meaning the transfer of information, whether via media, print or the Internet) of the post-secondary institution satisfied the legal obligations under §504 and the ADA.

According to OCR, the three basic components of effectiveness are (1) the timeliness of delivery, (2) the accuracy of the translation, and (3) provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability (Office of Civil Rights, 1997). For example, if a university website is inaccessible to a visually impaired student, the university is still required under federal law to effectively communicate the information on the website to the student. If the website is available 24 hours a day, 7 days a week for other users, the information must be available that way for the visually impaired student. There are several ways this communication could be accomplished, but none is likely to be as practical or meet the effectiveness standard as well as if the website were accessible in the first place.

In the recent DOJ document, “Accessibility of State and Local Government Websites to People with Disabilities,” DOJ does not discuss the effectively communicate standard. However, the document does state that one way to ensure that governmental websites are accessible to individuals with disabilities is to provide “accessible features.” Although DOJ acknowledges that there may be ways other than accessible features on the websites to provide access to the information such as a, “…staffed telephone information line,” the document states that:

These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available. For example, job announcements and application forms, if posted on an accessible website, would be available to people with disabilities 24 hours a day, 7 days a week.

In addition to the effective communication standard, OCR has, in at least one resolution letter, favorably cited a judicial decision (Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan.1994)) in which the court ruled that a post-secondary institution violated its obligations under the ADA when it only responded on a case-by-case or ad hoc basis to individual requests for accommodation. The Tyler decision also stated that a public entity has an affirmative duty to develop a comprehensive policy in advance of any request (Office of Civil rights, 1997). It is important to point out that a favorable citation in a resolution letter does not mean that OCR has a regulation requiring post-secondary institutions to develop an institutional policy concerning accommodation requests. However, it does provide guidance to post-secondary institutions on how OCR might consider the lack of an institutional policy on accommodation in another situation.

In another resolution letter, a university agreed to develop a plan with input from appropriate groups, on and off campus, to devise and implement campus-wide accessibility standards for electronic and information technology. The plan was submitted to OCR for review and the agency indicated that the school must include a, "…process by which the University will ensure comparable access for students with disabilities to official University websites," (Office of Civil Rights, 2000)

To date, there have not been any court decisions on web accessibility and the obligations of post-secondary institutions under either Section 504 of the Rehabilitation Act or Title II of the ADA. Although it is difficult to predict with certainty what the results might be in a future court cases, it is well established that when a court is asked to decide a new issue, for example obligations to provide accessible websites, it will look to earlier cases that have raised similar issues. In the case of web accessibility, a court will look to the legal standards established and defenses allowed under §504 and the ADA for similar post-secondary obligations, such as the duty to provide auxiliary aids (e.g., sign language interpreters, readers, or hardware or software needed by people with disabilities to access information technology) or modifications to a particular course. The legal obligation in the case of websites is to provide equal access to the information contained on the websites and to effectively communicate that information to the user. However, like other duties under §504 and ADA, the post-secondary institution does not need to meet this obligation if doing so results in a fundamental alteration to the nature of the program and/or creates an undue burden.

Undue burden has been interpreted in many court decisions as actions that require substantial effort or cost. Therefore, it would seem likely that a court would not require a post-secondary institution to provide web access if the institution could successfully argue that to do so created an undue burden. As mentioned, there are no court cases yet interpreting post-secondary institutions obligations concerning web accessibility, but OCR has stated in a complaint resolution letter that when a post-secondary institution selects software programs and/or hardware equipment that are not accessible to 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,” (Office of Civil Rights, 1997). Although we must acknowledge the limitations of drawing conclusions or making predictions based on resolution agreements, in the absence of judicial precedent, it is arguable that a court would adapt this reasoning and dismiss the undue burden defense proffered by a post-secondary institution.

Institutions found to be discriminating against individuals with disabilities because the information contained on their websites was inaccessible under the ADA could be required to pay for redesigning websites as well as incurring the costs of effectively communicating website content to individuals. It is much less expensive to design and implement an accessible website from the beginning than to retool it later. Designing accessible websites can be thought of as an insurance policy that protects against future costs incurred by not adequately meeting the needs of students, employees and the community.

ACADEMIC FREEDOM

An interesting question around accessible websites arises in post-secondary academe related to academic freedom. Academic freedom is generally considered to mean the right of faculty to speak freely on political and ideological issues without fear of reprisal. However, it commonly is thought to also encompass the right of faculty members to teach in the manner and style of their choosing. So, for example, a faculty member may state that he or she is under no obligation to design a website using accessibility guidelines any more than he or she would be required to teach using a particular methodology or give a certain type of examination.

Although there has not been a court decision or OCR ruling on this issue, using academic freedom as a justification for maintaining an inaccessible website would probably not be considered a sufficient defense. It is clear that if the website is available to students and a student enrolls who cannot access the website, the information on the website must be available (i.e., the information must be effectively communicated).

AUXILIARY AIDS AND SERVICES

Generally, §504 and the ADA require that a school provide reasonable accommodation to individuals with disabilities. The Department of Education regulations suggest three types of accommodations that may be made, one of which is the provision of auxiliary aids. The school is required to provide "auxiliary aids and services necessary to afford an individual with a disability an equal opportunity to participate in the school's program." Auxiliary aids and services are those that ensure effective communication. The Title II ADA regulations list such things as qualified interpreters, Brailled materials, assistive listening devices, and videotext displays as examples but the list is not exhaustive (28 C.F.R §35.104). If students in general use computers on campus to access the web as part of their education, then the institution would be required to ensure that any assistive technology necessary for a student to access the web was available on campus computers. If the institution provided computers or personal digital assistants or other devices to students for their use at home, then the institution would also be required to ensure that students with disabilities have the assistive technology necessary for them to access the web.

Whether institutions are required to provide assistive technology as an auxiliary aid in a distance learning course is debatable, particularly when a prerequisite for enrolling in a distance learning course is that all students (with or without disabilities) are required to have access to all the hardware and software necessary to participate in the course (i.e., students who sign up for a distance learning course are required to have the compatible computer and Internet access). Under these conditions, a post-secondary institution is not required to provide students with the hardware or software necessary to take the distance-learning course. Therefore, a student who requires assistive technology to access the distance learning course would be responsible for whatever hardware and software is necessary to allow him/her to be ready to participate. However, even if it is not the legal obligation of the post-secondary institution to provide the assistive technology, it is the responsibility of the distance learning course provider to make sure that users with disabilities who use assistive technology have equal access to the web-based information.

SECTION 508

Section 508 was enacted by Congress in 1998 to impose requirements on the federal government with respect to accessible information technology:

[w]hen Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency (36 C.F.R 1194.1).

Section 508 also requires federal agencies to ensure that all electronic and information technology they procure, develop, maintain, or use complies with the accessibility standards developed by the Architectural and Transportation Barriers Compliance Board (Access Board). The Access Board issued these standards on December 21, 2000 (Access Board, 2000) and they went into effect on June 21, 2001.

§508 does not apply to post-secondary institutions but rather addresses the obligations of Federal agencies. However, state governments or individual institutions of higher education may have adopted some or all of the §508 standards or other standards such as those published by the World Wide Web Consortium (W3C, 2003). When deciding a §504 or ADA complaint regarding information access, courts are not required to use a particular set of standards such as those set forth in §508 to decide whether you have met your legal obligations. On the other hand, adopting a web accessibility policy that includes, for example, implementation of §508 standards, provides a clear and measurable yardstick for evaluating web accessibility. Another option for post-secondary institutions is to adopt guidelines published by the World Wide Web Consortium (W3C, 2003).

WEB ACCESSIBILITY POLICY IN HIGHER EDUCATION

Post-secondary institutions may develop policies on web accessibility to meet their obligations under Section 504 and ADA and in response to state or local government policy or laws, administrative leadership, or from any unit within a school that reflect the interests or beliefs of a particular individual or group. Some states have chosen to tackle the issue of accessible IT by adopting the standards such as Section 508 standards, either “as is,” or customized to meet the needs of that state. Depending on how the policy is written, educational entities may or may not be covered. For example, Texas Administrative Code (TAC) 206.2 is state law -- that is, policy -- covering "Accessibility and Usability of State Websites" (State of Texas Department of Information Resources, 2001). This policy requires that state agencies develop web accessibility guidelines, and link to those guidelines from the agency home page. The University of Texas at Austin has complied with both of these requirements (University of Texas, n.d.).

A common question among state-funded educational entities is whether or not they are, by definition, a state agency. This varies from state to state, and depends on how the educational system is organized and what entities are covered is determined by state law. Often smaller state colleges, including community colleges, are considered state agencies, whereas universities have greater autonomy and are not considered state agencies. For example, Arizona’s statewide web accessibility policy applies to, "all budget units," which is clarified within the policy document as including community colleges, but not universities (State of Arizona Government Information Technology Agency, 2001). Similarly, the Minnesota Nonvisual Technology Access Standards (Minnesota Statutes, 2003) defines its scope as, "…agencies, political subdivisions, and the Minnesota state colleges and universities." However, the policy document goes on to say that, "The University of Minnesota is encouraged to consider similar standards." Therefore, although some state universities are covered under the policy, the state’s largest university, The University of Minnesota, is not specifically covered. In contrast, Arkansas Act 1227 applies to, "…state-assisted organizations…," that are defined as, "…a college, nonprofit organization, person, political subdivision, school system, or other entity supported in whole or in part by state funds,"(State of Arkansas, 1999) and presumably the post secondary institutions are all covered.

Whether postsecondary institutions develop web accessibility policies in response to federal or state law, or internal or community pressures, they face significant challenges. For example, the institution must consider whether the web accessibility policy will apply to all websites hosted on its servers, faculty personal pages, student personal pages, and sites developed on funding through the institution but hosted by another organization. The MIT Accessibility Policy stipulates the scope of coverage by stating that it applies to, "…software and Web-based products to be used in administration and services, courses of instruction, departmental programs and Institute sponsored activities," (MIT Accessibility Guidelines, n.d.).

As institutions develop policies on web accessibility, they must decide what standards will be used to measure compliance. Some states and educational entities have adopted WCAG 1.0, but typically only Priority 1 checkpoints, not Priority 2 or 3 (W3C, 2003). Other entities have adopted the Section 508 standards. Many have developed their own set of standards based on existing standards, but typically expanding upon them.

For example, Arizona developed its own standards, based on Section 508 but providing added specificity. The Arizona guidelines include 40 "suggestions," organized into 17 sections (State of Arizona Government Information Technology Agency, 2001). In contrast, Texas simply stated that websites must conform to "generally acceptable standards for Internet accessibility," and provides a supporting document that identifies all the current guidelines and issues, without recommending any particular set of guidelines or compliance level (State of Texas Department of Information Resources).

In Wisconsin, each institution within the University of Wisconsin (UW) system received a directive from the Associate Vice President on behalf of the President (Web Access for Individuals with Disabilities, 2000). This directive asked institutions to adopt web accessibility guidelines, and to incorporate into their IT plans an explanation of how they intend to address web accessibility. The original directive called for campuses to, "…adopt and subscribe minimally to the use of the Web Accessibility Initiative (WAI) W3C guidelines, Priority 1 Standards. Campuses are encouraged to comply with Level 2 and 13.5 of Level 3 in the near future." In response to this, each of the 13 University of Wisconsin universities developed their own web accessibility policies and/or guidelines (Web design policies on UW Campuses: Compliance with Major Standards/Guidelines, 2003). The policy at the University of Wisconsin-Madison uses language that has since been modeled by other postsecondary education entities. This policy states that the university, "…endorses the Guidelines of the World Wide Web Consortium (W3C) as the standard for World Wide Web accessibility and compliance with the Americans with Disabilities Act." However, the policy goes on to state that the university feels that the Section 508 standards are consistent with the W3C guidelines, and therefore, the Section 508 standards are the basis on which university web pages’ compliance is measured (University of Wisconsin Madison Policies, 2003). A comparison of the web accessibility policies across the University of Wisconsin system may be found at

CONCLUSION

Although web accessibility for people with disabilities in post-secondary institutions is not mandated by federal legislation, access to the information is required. By developing comprehensive policies about web accessibility, institutions can ensure that all members of the institution community have access to information on their web sites. Policy may develop in response to advocacy by individuals on campus, administrative leadership, state laws, or in settlements over legal action. When policies are well designed and implemented, they provide flexible guidance and appropriate allocation of resources to allow implementation and maintenance.

REFERENCES

Access Board (2000). Electronic and Information Technology Accessibility Standards. Retrieved on December 13 from http://www.access-board.gov

Americans with Disabilities Act (ADA)(1990). 42 U.S.C. 12101-12213

Amtmann, D., & Johnson, K. (1998). Increasing access to higher education and distance learning through the Internet. Technology and Disability, 8, 133 – 139.

Department of Justice (n.d.), Accessibility of state and local government websites to people with disabilities. Retrieved on December 13, 2003 from http://www.usdoj.gov/crt/ada/websites2.htm

Do you teach with technology? Faculty survey results revealing (n.d.). Retrieved December 13, 2003 from http://www.washington.edu/computing/windows/issue26/survey.html

Minnesota Statutes (2003). 16C.145 Nonvisual technology access standards. Retrieved on December 13, 2003 from http://www.revisor.leg.state.mn.us/stats/16C/145.html

MIT Web Accessibility Guidelines (n.d.). Retrieved on December 13, 2003 from http://web.mit.edu/atic/www/sw/developweb.html#mit

National Center for Educational Statistics (2002). Digest of educational statistics: Chapter 3 – post secondary education. Retrieved on December 13, 2003 from http://nces.ed.gov/pubs2003/digest02/tables/dt211.asp

Office of Civil Rights (1996). OCR docket number 09-95-2206.res. Retrieved on December 13, 2003 from http://uwctds.washington.edu/policy/09952206.RES.htm

Office of Civil Rights (1997). OCR docket number 09-97-2002. Retrieved on December 13, 2003 from http://uwctds.washington.edu/policy/09972002.RES.htm.

Office of Civil Rights (2000). OCR docket number 11982046.lla. Retrieved on December 13, 2003 from http://uwctds.washington.edu/policy/11982046.LLA.htm

Pew Internet and American Life Project (n.d.). College students are early adopters and heavy users of the internet. Retrieved December 13, 2003 from http://www.pewinternet.org/reports/reports.asp?Report=71&Section=ReportLevel1&Field=Level1ID&ID=312

State of Arkansas (1999). Arkansas Act 122. Retrieved on December 13, 2003 from http://128.104.192.129/taproject/policy/initiatives/508/ak1227.html

State of Arizona Government Information Technology Agency (2001). Web Accessibility: State Policy 130. Retrieved on December 13, 2003 from http://gita.state.az.us/policies_standards/html/p130_web_site_accessibility_policy.htm

State of Texas Department of Information Resources (2001). 1 T.A.C. §206 State Web Sites. Retrieved on December 13, 2003 from http://www.dir.state.tx.us/standards/Accessibility

University of Wisconsin Policies (2003). Policy governing world wide web accessibility. Retrieved on December 13, 2003 from http://www.wisc.edu/wiscinfo/policy/wwwap.html

University of Texas (n.d.). Web Guidelines – Accessibility: Information Anytime, Anywhere, for Anyone. Retrieved on December 13, 2003 from http://www.utexas.edu/web/guidelines/accessibility.html

W3C (2003). QA Framework: Specifications and Guidelines. Retrieved on December 13, 2003 from http://www.w3.org/TR/2003/CR-qaframe-spec-20031110/.

Web Access for Individuals with Disabilities (2000). Retrieved on December 13, 2003 from http://www.uwsa.edu/olit/access/edmemo.htm

Web design policies on UW Campuses: Compliance with Major Standards/Guidelines (2003). Retrieved on December 13 from http://library.uwsp.edu/aschmetz/Accessible/UW-Campuses/Survey2003/Policies/UW_policies_bycampus_table_Oct22_2003.htm