The Section 508 Refresh and What It Means for Higher Education

When originally drafted, Section 508 of the Rehabilitation Act of 1973 mandated that "all electronic and information technology used by the federal government be accessible to people with disabilities." Over the course of time, both the scope and the specificity of Section 508 have changed through revisions and court interpretations. On January 18, 2017, the United States Access Board published its most recent final rule updating requirements for information and communication technology (ICT) covered by Section 508. These requirements are set to go into effect on January 18, 2018. Although the original intent of Section 508 was to provide accessibility in the federal sector, it has been widely accepted that colleges and universities are subject to its requirements under Title II because they almost universally receive some form of federal funding. Because of this, accessibility — especially in ICT — is becoming one of the most challenging areas for higher education to recognize and address proactively. The increase in complaints and lawsuits over the past few years, however, indicate that this is an area of concern that will not go away.

What Is Accessibility?

Information and communication technology is considered accessible if it can be used as effectively by people with disabilities as it can by those without. Comparable access to information must be provided, taking the needs of all users and learners into account. True accessibility provides for not just the sightless and the hearing impaired but also the color blind, those prone to seizures, and people with physical limitations that require keyboard navigation rather than the use of a mouse.

A common misconception is that accessibility is covered by the adherence to accommodations requirements. For example, instructors may believe that it isn't their responsibility to provide transcripts or captions to students viewing a video in an online course. Instead, they might direct students to the campus accommodations office to provide the content in a modality that they can use more effectively. However, providing alternative text for videos is an issue of accessibility, not accommodation. Accommodations and accessibility requirements are two different things and need to be considered separately.

The considerations for accessibility are proactive, not to be confused with the mandate to provide legal accommodations as outlined in Section 504. Section 504 includes provisions for individuals with disabilities to participate in programs and services with the use of auxiliary aids, where necessary. These aids are commonly referred to as accommodations. On the other hand, Section 508 requires that persons with disabilities have comparable access to and use of ICT — a subtle but meaningful distinction.

An accommodation is…

• provided based on specific needs of a student with a documented disability
• determined by an accommodations officer on a case-by-case basis
• provided for students whose needs require great intervention, such as live American Sign Language (ASL) interpreters or lecture transcripts for live courses
• for circumstances that are difficult to anticipate and prepare for

Accessibility is…

• the responsibility of all who create or publish digital content
• provided for all students, with no expectation of an explanation of need
• expected for disabilities that are easily anticipated

Accessibility Issues at the Forefront

While colleges and universities typically understand their responsibility to provide accommodations for students with documented disabilities, awareness of the mandate for accessibility is often lacking. Awareness is increasing in recent years due to high-profile complaints and lawsuits across the higher education landscape.

Activists have embraced the cause of ensuring full website accessibility for all academic institutions. One has personally filed 1,800 complaints as of October 2017 aimed at elementary schools through major universities. The target? Public-facing websites. The goal of these complaints is to ensure that people with disabilities can access information online through fully ADA-complaint websites. This movement appears to be gaining traction, with institutions scrambling to bring their public websites up to compliance (and in some cases, taking them down until they can). The message to academic institutions? You're accountable, not just to students but to the public. Accessibility can no longer be an afterthought. It must be included in every step of information and communication technology design, and it starts with all public-facing web content.

ADA lawsuits and complaints are nothing new to higher education, and they are not limited to public-facing web content. The University of Minnesota Duluth has documented a decade of cases on its Higher Ed Accessibility Lawsuits, Complaints, and Settlements page. A review of past cases shows that the U.S. Department of Justice and the Department of Education take the accessibility of student-facing materials in ICT very seriously and are willing to enforce Section 508 on college campuses. As a culmination of years of successful suits and complaints from advocates and advocacy groups such as the National Association of the Deaf (NAD) and National Federation of the Blind (NFB), institutions are now at risk of class-action lawsuits, such as those filed against Fordham University, Manhattan College, Long Island University, and several others in the fall of 2017. Although more than 750 lawsuits have been filed over the issue of accessible websites, only seven of those were filed against academic institutions. Recent filings more than double that count. Higher education should now be on notice: Anyone with an Internet connection can now file a complaint or civil lawsuit, not just students with disabilities. And though Section 508 was previously unclear as to the expectations for accessibility, the updated requirements add specific web standards to adhere to — specifically, the Web Content Accessibility Guidelines (WCAG) 2.0 level AA developed by the World Wide Web Consortium (W3C).

What Is WCAG?

The Web Content Accessibility Guidelines, commonly referred to as WCAG, are a set of standards developed by an international consortium as early as the mid-1990s with a goal of ensuring the long-term growth of the web. The second version, WCAG 2.0, includes three levels of compliance:

• Level A, considered to be the minimum level of conformance
• Level AA, a more comprehensive level of conformance
• Level AAA, which is understood to be full and complete conformance but prohibitive to develop

Although WCAG 2.0 has been around since the early 2000s, it was developed by web content providers as a self-regulating tool to create uniformity for web standards around the globe. It was understood to be best practices but was not enforced by any regulating agency. The Section 508 refresh due in January 2018 changes this, as WCAG 2.0 level AA has been adopted as the standard of expected accessibility. Thus, all organizations subject to Section 508, including colleges and universities, that create and publish digital content — web pages, documents, images, videos, audio — must ensure that they know and understand these standards.

Reflecting on the Section 508 Refresh

While it may seem that the Section 508 refresh poses an additional burden on web designers, instructors, administrators, and instructional designers, it actually provides much needed clarity. For at least the past decade, an increasing barrage of complaints and lawsuits have threatened the day-to-day operations of schools in a technologically advancing world. One of the greatest difficulties in navigating the legal waters has been a lack of a uniform set of standards for accessibility. Rather, a trial-and-error approach has been the norm, with the results tested in sometimes contradictory legal decisions. By adopting the previously developed and established standards of WCAG 2.0, the U.S. Access Board has provided a clear legal baseline for acceptable accessibility standards. This not only empowers those with disabilities by providing them the same avenues for learning and communication, but it also sets a measurable bar for higher education to follow in its production of ICT to its students, employees, and the public. According to the U.S. Access Board [https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/overview-of-the-proposed-rule], the adoption of WCAG 2.0

• addresses new technologies and recognizes how these technologies have converged over time;
• uses voluntary consensus standards rather than government-issued standards;
• promotes international harmonization; and
• accelerates the spread of accessibility and promotes uniformity.

WCAG 2.0 should not be viewed as an intimidating new set of standards for ICT that prohibit the development of interactive technology experiences. Rather, it should be understood as a clear stating of standards that have been unofficially adopted and enforced inconsistently in the courts. Furthermore, the Section 508 refresh protects institutions by offering a "Safe Harbor" clause for legacy ICT, meaning that digital content that meets the previous standards does not have to be upgraded to meet the refreshed standards unless it is altered.

Reacting to the Section 508 Refresh

In a few months, the revised Section 508 standards become enforceable law. As stated, this should not be considered a threat or burden but rather an opportunity for institutions to check their present level of commitment and adherence to accessibility. In order to prepare for the update in standards, a number of proactive steps can easily be taken:

• Contract a third-party expert partner to review institutional accessibility policies and practices and craft a long-term plan to ensure compliance.
• Review all public-facing websites and electronic documents to ensure compliance with WCAG 2.0 Level AA standards.
• Develop and publish a policy to state the level of commitment and adherence to Section 508 and WCAG 2.0 Level AA.
• Create an accessibility training plan for all individuals responsible for creating and publishing electronic content.
• Ensure all ICT contracts, ROIs, and purchases include provisions for accessibility.
• Inform students of their rights related to accessibility, as well as where to address concerns internally. Then support the students with timely resolutions.

As always, remember that the pursuit of accessibility demonstrates a spirit of inclusiveness that benefits everyone. Embracing the challenge to meet the needs of all students is a noble pursuit, but it's not just an adoption of policy. It's a creation of awareness, an awareness that fosters a healthy shift in culture. When this is the approach, the motivation to support all students drives every conversation, and the fear of legal repercussions becomes secondary. This should be the goal of every institution of learning.

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Martin LaGrow is Academic Services Senior Systems Consultant at Ellucian.