House’s PROSPER Act Includes AIM HIGH, Makes Changes to Copyright Requirements

The House Committee on Education and the Workforce closed out 2017 with a 14-hour markup of the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act; this legislation would reauthorize the Higher Education Act (HEA), which sets forth the primary framework for our nation's postsecondary education policy and has not been updated since 2008. The PROSPER Act, which includes two provisions of interest to EDUCAUSE, was reported out of committee on December 13 by a party-line vote of 23 to 17.

The committee-approved bill includes the Accessible Instructional Materials in Higher Education (AIM HIGH) Act, which was introduced by Congressmen Phil Roe (R-TN) and Joe Courtney (D-CT) in March. Over the past several years, EDUCAUSE has collaborated with the National Federation of the Blind (NFB), the Association of American Publishers (AAP), the Software and Information Industry Association (SIIA), and the American Council on Education (ACE), among other higher education groups, to develop recommendations for improving the accessibility of postsecondary instructional materials. AIM HIGH is the product of those discussions.

If passed, AIM HIGH would establish a commission of stakeholders (including those from the higher education community) to produce voluntary accessibility guidelines for postsecondary instructional materials and related technologies. The commission would also develop an annotated list of general national and international accessibility standards to help clarify their applicability to higher education contexts. Both the guidelines and annotated standards would only be released if they received support from a supermajority of the commission, ensuring that all of the stakeholder communities involved approve of the commission's final products.

To incentivize institutional adoption of the voluntary guidelines, the bill provides a safe harbor for institutions that use materials that fully conform with the commission's recommendations; under the safe harbor, such institutions would be deemed to be in compliance with the requirements of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act as they relate to the materials and/or technologies in question. A limited safe harbor is also provided to institutions when they document their use of the guidelines in their consideration of a digital learning resource or technology but ultimately decide that they must use something that doesn't fully conform. Under the limited safe harbor, an institution would see its financial liability under an adverse ADA or Section 504 ruling related to a given resource or technology limited to the costs of mitigating the mistake and covering the plaintiff's legal fees.

Such a guiding framework is fundamental in supporting higher education institutions and technology providers as they strive to ensure that disabled students have meaningful access to digital materials. The guidelines and annotated list of standards would provide them with a more actionable understanding of what facilitates accessibility in relation to such materials and related technologies.

EDUCAUSE fully supported AIM HIGH when it was first introduced and sent a letter to the cosponsors thanking them for their efforts. It is worthy to note that a Senate version of the bill was introduced by Senators Elizabeth Warren (D-MA) and Orrin Hatch (R-UT), but differences remain between the two chambers' versions.

Also of note in the PROSPER Act is a provision which would better assist colleges and universities in combatting copyright infringement. Under current law, an institution must fulfill a two-part requirement to demonstrate its commitment to countering copyright infractions — it must:

1. Develop "plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents"; and
2. Offer "alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution."

The PROSPER Act simplifies these requirements, only stipulating that an institution must "have a policy prohibiting copyright infringement." This added flexibility will give colleges and universities across the country more latitude in confronting copyright infringement, allowing them to utilize the practices they deem most effective for their particular institution.

The PROSPER Act now awaits action before the full House of Representatives. Many anticipate the Senate Committee on Health, Education, Labor, and Pensions will release its own legislation reauthorizing the Higher Education Act in the spring of 2018, making it likely that the House and Senate will need to reconcile differences between their respective bills. EDUCAUSE will remain engaged in advocating for the inclusion of AIM HIGH as well as the copyright infringement improvements in PROSPER during this process.

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Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.