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Legal Questions

Is there a legal requirement that University Websites be accessible?

Yes. Title II of the Americans with Disabilities Act ("Title II") and Section 504 of the Rehabilitation Act of 1973 ("Section 504") require that public universities provide qualified individuals with disabilities equal access to their programs, services, and activities unless doing so would fundamentally alter the nature of their programs, services, or activities or would impose an undue burden. As part of that obligation, public universities are required to provide equally effective communication to persons with disabilities, regardless of whether the university generally communicates through print media, audio media, or computerized media such as the Internet. Universities that use the Internet for communication regarding their programs, goods, and services must make that information accessible.

Why can't the University offer accommodations on a case by case basis rather than requiring its Websites to be accessible?

The United States Department of Education, Office for Civil Rights ("OCR") is responsible for enforcing Section 504 with respect to complaints filed against public institutions of higher education. The OCR has opined on several occasions that a public entity violates its obligations under the ADA when it simply responds to individual requests for accommodation on an ad-hoc basis. This is not considered “equally effective” given the advantage of real-time information.  A public entity has an affirmative duty to establish a comprehensive policy in compliance with Title II in advance of any request for auxiliary aids or services.

On a practical level, accessibility experts have determined that it generally takes less time and is less costly to include accessibility as a design parameter from the start, rather than attempting to "retrofit" web sites after a complaint has been filed.

Have there been legal challenges involving Website accessibility at colleges or universities?

Yes.  There have been numerous successful legal challenges involving website and other technology related accessibility at colleges or universities over the past few years.  In particular, Penn State University settled a significant claim by the National Federation for the Blind and the U.S. Department of Education, Office of Civil Rights.  The settlement agreement required Penn State to conduct a full accessibility audit of its complete technology environment in relation to the visually impaired, establish an accessibility policy and statement, adopt WCAG 2.0 AA for all university websites and implement institution-wide training, instruction and support, among many other things, all within a relatively short timeframe.  The agreement can be found at http://accessibility.psu.edu/nfbpsusettlement.  Other colleges and universities have faced similar challenges, and made similar settlements.  Finally, the U.S. Department of Justice has issued an Advance Notice of Proposed Rulemaking which lets us know regulations will likely be in place soon requiring compliance with the WCAG 2.0 AA standards.

Doesn't the law allow a university to meet its obligations by providing an alternative accessible way for individuals with disabilities to access its programs or services rather than mandating Website accessibility?

No. Title II and Section 504 require that public universities take appropriate steps to ensure that communications with persons with disabilities are "as effective" as communications with others. Thus, the issue is the extent to which the communication is actually "as effective" as that provided to others. OCR has repeatedly held that the term "communication" in this context means the transfer of information, including but not limited to, the verbal presentation of a lecture, the printed text of a book, and the resources of the Internet.

In assessing whether communication is effective, OCR has identified three basic components: timeliness of delivery, accuracy of the translation, and the abilities of the individual with the disability. With respect to the timeliness component, OCR has noted that a computer user with a disability may want to access the web during approximately the same number of hours with the same spontaneous flexibility that is enjoyed by nondisabled users. While an institution with an inaccessible website might attempt to meet its legal obligations by offering an alternative method of accessing the institution's programs or services (such as a staffed telephone line), such an opportunity may not be considered "as effective" by regulatory agencies as a web based service because it is not available 24 hours a day, 7 days a week.

Is the University subject to Section 508 of the Rehabilitation Act of 1973? Is that the relevant standard a court would use to measure Website accessibility?

Section 508 is no longer the relevant standard. The U.S. Department of Justice is now holding public and private entities to WCAG 2.0 AA standards.