The COVID-19 pandemic has dramatically increased higher education use of the internet and digital platforms. While the delivery of online content has great potential to improve the way institutions communicate with and educate students, institutions also need to be aware of their respective compliance obligations when operating in a digital world.
Thompson Coburn’s Higher Education Group previously detailed the requirements of the new Department of Education distance learning rule in a webinar for institutions that want to educate students online. This blog post focuses on website accessibility considerations and provides a general overview of the legal requirements for private universities.
There are two major federal statutes that govern access to private college websites: Title III of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). State and local laws, including anti-discrimination or human rights laws, also govern online accessibility and can vary widely by jurisdiction. While this blog post does not address state and local laws, institutions should understand and comply with these relevant requirements in addition to federal law.
The Americans with Disabilities Act
Title III of the ADA provides that “[n]o A person is discriminated against on the basis of a disability if he or she possesses, in full and equal measure, the goods, services, facilities, privileges, benefits, or accommodations of public housing from a person who owns or operates a facility of public housing.” 42 USC § 12182 (a). A private college is considered “public housing” for the purposes of Title III. ID. at 12181(7)(J).
Title III is silent on whether websites are “public accommodations”. In the absence of legal or regulatory language, case law has filled in the gaps. While all cases are fact-specific, the standards for Title III website accessibility depend largely on the jurisdiction examining the matter.
Some courts have determined that online content is governed by Title III of the ADA. See e.g. Nat’l Ass’n of the Deaf v. Harvard Univ., 377 F. Supp. 3d 49 (D.Mass. 2019); Robles vs. Domino’s Pizza, LLC, 913 F.3d 898, 910-11 (9th Circle 2019). Such courts have often adopted the Web Content Accessibility Guidelines (“WCAG”) as the industry standard for assessing websites’ compliance with the ADA. The WCAG are guidelines issued by the World Wide Web Consortium, an international organization that governs accessibility standards. However, other courts have interpreted the ADA differently, for example, holding “public dwellings” under the ADA is limited to actual, physical locations and does not include websites. See, for example, Martinez vs. Mylife.com, inc, 2021 WL 5052745 (EDNY 1 Nov 2021). Given the division between the courts, this could also be an issue that the Supreme Court may consider.
While it is unlikely that Congress will provide additional clarity on this issue in the near future, institutions should be aware of the possibility that the Department of Justice (“DOJ”) may issue new federal regulations related to website accessibility. In 2010, the Obama administration’s DOJ initiated the process to propose such rules, but that process was halted by the Trump administration in 2017. The Biden administration could revive efforts to publish these rules. However, even in the absence of new rules, settlement agreements have recently been reached with the DOJ Kroger, Hy Veeand Rite Aid have requested conformance to WCAG standards.
Section 504 of the Rehabilitation Act 1973
Section 504 prohibits a qualifying person, because of their disability, “from participating in  denied the benefits of or otherwise  Be discriminated against in any program or activity that receives federal funding.” 34 CFR §104.4. The Department of Education’s Office for Civil Rights (“OCR”) enforces Section 504 with respect to public and private higher education institutions that receive federal funding from the Department of Education.
Although Section 504 also does not contain a standard for website accessibility, OCR has interpreted an institution’s website accessibility obligations under Section 504 in recent settlement agreements between institutions and OCR. In 2020, settlement agreements contained the following language:
Online Content and Functionality. The University agrees that it will develop a strategy and take significant steps to implement it in order to ensure that persons with disabilities have equal opportunities to participate in the University’s programs and in a reasonable time and in any case no longer than 12 months Activities offered through the University’s website by making the online content and features accessible or, if necessary, providing equally effective alternative access. To meet this commitment, the University will develop a strategy to identify and address inaccessible content and features for people with disabilities. The university’s strategy establishes the standard that the university will use to determine the accessibility of online content and functionality (e.g. WCAG 2.0 Level AA or a similar standard). (e.g Settlement Agreement with Caldwell University, OCR Docket #02-09-6906).
Here, OCR specified that institutions must designate a particular standard that is used to “determine the accessibility of online content and functionality.” WCAG 2.0 Level AA is an example of such a standard.
Because courts, DOJ, and OCR have often referred to WCAG standards to meet an institution’s website accessibility obligations, institutions should strongly consider implementing WCAG-compliant websites to protect themselves from potential litigation or administrative enforcement action protection. The most recent WCAG standard is 2.1.
Institutions can consider the following steps to approach compliance:
- Create a website accessibility team: Identify stakeholders and appropriate individuals to address website accessibility issues. For example, an institution’s Office of Disability Services, Information Technology Office, Procurement Office, and Faculty all likely have a stake and role in ensuring compliance.
- Check the current website and online products: Understand the scope of your institution’s website, online footprint, and current level of compliance. There are a number of free tools that can be used to check the accessibility of documents (Accessibility Checker and Checklist (cpp.edu)) or websites (WAVE Web Accessibility Evaluation Tool (webaim.org)). There are also a number of companies that can provide an accessibility checker for your institution.
- Ensure that new content published by the institution is accessible: New content published by staff and faculty on websites should meet applicable accessibility standards. The University of Washington has great resources This can help your institution get a sense of what is required.
- Future procurements and web design: Make sure that any future purchases for websites or online products take accessibility into account. Consider specifying the level of compliance required in future contracts—for example, WCAG 2.1 Level AA or a similar standard—so that your institution’s product is beyond doubt compliant.