Changes in legal requirements for IT accessibility have prompted some to pursue self-serving legal actions. To increase access to users of all abilities, colleges and universities should articulate their commitment to accessibility and focus on changing institutional culture.
On February 11, 2015, the National Association of the Deaf (NAD) filed federal class action lawsuits against MIT and Harvard University on behalf of four deaf and hard of hearing students. The complaints focused on the lack of accurate captioning for thousands of videos and audio tracks that the institutions had made publicly available for free. With these lawsuits, the NAD was advocating for more than just the four students initially named in the action—it was effectively representing 10,000,000 hard of hearing and 1,000,000 functionally deaf people in the United States who were excluded by the inaccessibility of the content.
Although the case was not broadly reported at the time, it contributed to a ripple effect of accessibility lawsuits, some of which appear to benefit those who file the lawsuits rather than the general population of users with disabilities. That ripple has turned into a tidal wave of accessibility lawsuits in higher education and beyond, and thousands of businesses and institutions of higher education have found themselves swept up in the tide. As the suits play out in court, what do they mean for the future of online education delivery—and how can colleges address the plaintiffs' concerns without getting caught in legal battles of their own?
The 2018 Section 508 Refresh and Its Consequences
The wave of lawsuits has been fueled by a 2018 change in Section 508, the federal statute that governs the accessibility of information technologies. The change was designed to provide clarity around what online accessibility should look like, and the revamping of the law included the adoption of the Web Content Accessibility Guidelines (WCAG) 2.0 as a legal standard. Previously, online accessibility had been a vague requirement, subject to interpretation by the courts. The adoption of WCAG 2.0 brought greater clarity around the expectations for accessible online content.
The change to Section 508, however, has also proved to be a double-edged sword for colleges and universities. On the one hand, they now have a clear set of standards to guide their accessible online content development. On the other hand, the existence of a legal standard invites legal challenges when those standards are not met. This is evidenced by the dramatic increase in ADA Title III website lawsuits. The implementation of the new standards in 2018 ushered in an increase of 177 percent over the number of similar lawsuits in 2017.1
Providing an equivalent experience for people with disabilities is not without its challenges. Institutions of higher education and businesses alike must change not only their way of thinking about technology but also how they procure technology and create online experiences. And yet, even as there is an increasing understanding and acceptance of the responsibility to create accessible digital media, the change is not coming quickly enough for some. The increase in the number of lawsuits would seem to indicate that both industry and higher education have been slow to comply with the new standards. That is not the only reason, however. The spike in lawsuits is also the result of bulk filings. In December of 2018, for example, Jason Comacho, who is blind, sued 50 colleges and universities over the accessibility of their public-facing websites.2 Comacho's lawsuit represents a greater trend driven by advocacy for the disabled. Whereas the NAD suit against Harvard and MIT sought to rectify specific student grievances encountered by hearing impaired students, the law has emboldened some individuals to sue large numbers of institutions for the benefit of relatively few people, rather than using the courts to target a few violations for the benefit of large numbers of users.
One must also look at Florida to understand the huge increase in lawsuits related to the Americans with Disabilities Act (ADA). Florida is second only to New York in the number of such suits, no doubt partly because Florida allows private individuals to win monetary awards for noncompliance. In January 2019, for example, a Fort Lauderdale woman and her attorney reached settlements with at least 20 hotels and motels in Florida over accessibility concerns, including the use of their online reservation systems. Some observers have characterized such lawsuits as an abuse of the ADA by individuals more interested in payouts from settlements than in genuine concern about IT accessibility. In a separate case, a Florida judge went so far as to sanction a serial complaint filer and his attorney for "lining their pockets" with frivolous ADA lawsuit claims.
The massive increase in lawsuits in 2018 partly reflects a shift in legal action that may drown out the voices of the truly disadvantaged. Lawsuits prior to the articulation of ADA requirements centered on righting wrongs as they were encountered by the disabled. The new wave of lawsuits is not driven as much by disabled students encountering specific concerns as it is by activists seeking out violations to champion their cause, as well as others looking to capitalize financially on accessibility shortcomings.
The glut of frivolous suits and excessive copy-and-paste complaints has overwhelmed the Department of Education's capacity for investigation, leading to a 2018 decision to summarily dismiss bulk complaints filed by activists. However, that decision was rescinded last November in the face of increased pressure, leaving all institutions vulnerable to complaints—not just from their students and customers but from anyone who can find an accessibility shortcoming in their public-facing digital content.3 When the spirit behind advocacy for the disabled is to provide an equitable experience for all, there should be little resistance. A cooperative spirit of creating awareness and inclusive policies can inspire the removal of barriers for the disabled. However, the act of seeking violations solely for the purpose of filing a complaint or lawsuit creates the risk of undermining the collaborative spirit and can even impede the progress of improving circumstances where the disabled can truly benefit from positive action.
Challenging ADA Requirements
Most businesses and higher education institutions seem to have concluded that it's prudent to accept responsibility for providing fully accessible digital content, whether as a result of a lawsuit or complaint, fear of the same, a genuine desire to provide the best experience for students and/or customers, or some combination thereof. Domino's Pizza, however, chose a different path, fighting the ADA requirements head-on in response to a lawsuit by a blind plaintiff whose personal experience led him to allege that the Domino's website and mobile app were inaccessible.4 Rather than invest in the redevelopment of its online interfaces, Domino's elected to ask the Supreme Court to consider the assertion that the internet doesn't fall under the ADA—an argument that has been attempted unsuccessfully in the past, most prominently by Netflix. Ultimately, the Supreme Court declined to hear the Domino's case, a win for advocates who believe that refusing to maintain accessible sites shuts disabled people out of substantial portions of the economy.
According to attorney Minh Vu of Seyfarth Shaw, the company's attempt to challenge ADA requirements wasn't about an unwillingness to serve the disabled but rather about clarity of the law. "People like to demonize Domino's for trying to take this case to the Supreme Court," Vu said, "but the point of the case really is that businesses are entitled to know what their obligations are."5
Institutions of higher education today find themselves at the same crossroads. Culturally speaking, colleges and universities are generally willing to adjust their policies and practices to provide an equitable experience for the disabled. However, they feel there's a lack of clarity around their legal requirements, despite the adoption of WCAG 2.0, and they now operate in fear of provoking litigious-minded advocates. So, in light of the constant risk of lawsuits and complaints—both frivolous and appropriate—how should higher education respond?
Start with a Cultural Shift
History has taught us that changing laws does not shift culture. Waiting for a clearly written standard or the outcome of a related lawsuit can inform best practices, but it should not delay a proactive commitment to tackling the hard questions about accessibility head-on. The question should not be "What are we required to do to meet our students' needs?" but "What should we be doing to meet our students' needs?"
How do you facilitate this cultural shift?
Focus on your MVO. The discussion around a commitment to accessibility should begin not with the outcome of a court case or a student complaint but with a look at the institutional mission, vision, and objectives (MVO). Either directly or indirectly, what does your institutional MVO say about accessibility? Are words like "equitable," "inclusive," and "diverse" included in your public profession of mission? If so, those words speak directly to a culture of inclusivity that does not discount those with disabilities.
Align and publish policy. Many colleges and universities address accessibility accommodations with a publicly available policy that is prominently located in syllabi, catalogs, and policy manuals, but institutions are often less forthcoming about their commitment to accessibility. A policy does not have to be a vast legal document encompassing every step your institution will take to create accessible content; it can simply be a stated commitment to principles of accessibility that align with your institutional MVO. A clear, forthright statement of commitment puts you on track toward a culture of inclusivity—and then you can promote it within your community and to the public at large, addressing questions such as what is the institution's expected level of adherence, what is the plan for addressing noncompliant content, and to whom should accessibility questions be addressed? Transparency and a cooperative spirit are key to fostering the cultural shift.
Assign responsibility. Once your commitment is clearly defined, responsibility for all areas of accessibility must be established. Who manages public-facing web content? Who manages accessible content in online courses? Is there a shared responsibility between faculty members and instructional designers? What about the procurement of software and hardware? A cultural shift touches all positions and offices; it is not "owned" by one position within an institution.
Stay abreast of the law. It took almost twenty years for a change in Section 508 to catch up with technology, but as this article demonstrates, the dialogue is lively and continuous. New court cases and rulings pop up weekly. Many of these cases shed additional light on legal expectations and best practices. Staying abreast of these rulings and interpretations puts your institution in the best position to protect itself from legal action while helping you proactively provide the best service for your learning community.
Wrestle with your "hard" questions. WCAG 2.0 was not initially written to serve as an explicit set of legal standards; it was written to provide recommended guidelines for best practices. As such, the language of WCAG 2.0 is often descriptive rather than prescriptive. For example, WCAG 2.0 standard 1.2.2 requires captions for prerecorded audio content in synchronized media. But what level of accuracy is acceptable to represent an equivalent learning experience? That is left undefined by the standard and thus must be grappled with institutionally.
How will your institution foster dialogue and resolution for the hard questions you face—the gray areas that may not be clearly defined but still require an answer? This may include questions such as:
- How do you address courses using simulations, such as augmented reality?
- Is it acceptable to use a built-in LMS audio feedback tool that doesn't offer transcriptions?
- How do you remediate courses based on classical texts that do not yet have accessible alternatives?
- What's the approach when courses use equation editors or other such tools that lack accessible alternatives?
- What is your approach to courses that by their nature seem to exclude students with certain disabilities (e.g., music appreciation)?
Every institution encounters questions such as these that seem to have no easy solution. The push for accessibility should not be a reason to refrain from innovating with technology or limiting programmatic options. Rather, it should drive the conversation, embracing technology as a solution to provide a greater breadth of experiences that enhance rather than limit accessibility.
Share the load. Know that every college and university is facing the same challenges, and all are working to find creative ways to address their own difficult questions. Conferences, events, webinars, and trainings are all very practical ways to keep the conversation alive and inspire creative solutions for the issues you're facing. Web consulting firm AKEA offers a helpful list of conferences [https://www.akeaweb.com/learn-about-web-accessibility/resources/web-accessibility-conferences/]; there are many such lists available with a quick web search.
No Time to Wait
The refusal of the Supreme Court to hear Domino's Pizza's case is a win for disability advocates, reinforcing the government's commitment to holding industry to the standard of full digital accessibility for the disabled. The February 2015 lawsuits against MIT and Harvard were still active as of April 2019, as a federal district court ruled against a motion to dismiss. And, as noted above, the Department of Education was forced to withdraw its effort to restrict the flurry of cut-and-paste lawsuits by those not experiencing personal injustice but rather seeking violations to penalize. All signs point to a continued path toward the requirements of Section 508 as revised in 2018, but truly the desire to best serve students, including the disabled, should dictate your commitment to accessibility.6
A culture of inclusivity has at its heart a desire to provide an equitable experience to all learners. On many campuses, accessibility often begins with a grassroots campaign led by those who work with students on a day-to-day basis. Their efforts are amplified when supported by an institutional approach to accessibility from the top down and the creation of policies consistent with institutional MVO.
When focusing too narrowly on the letter of the law, you lose sight of its purpose. Place the focus on your mission and the needs of your students. Then, adherence to the law becomes a byproduct of your culture, not the driving force of it.
Notes
- Minh N. Vu, Kristina M. Launey, and Susan Ryan, "Number of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 In 2018," ADA Title III, News & Insights (blog), January 31, 2019. ↩
- Lindsay McKenzie, "50 Colleges Hit With ADA Lawsuits," InsideHigherEd, December 10, 2018. ↩
- C.P. Hoffman, "Web Accessibility Complaints Dismissed after Rules Change by DOE Office of Civil Rights," Level Access (blog), March 30, 2018; and C.P. Hoffman, "DOE Rescinds 'Mass Filer' Rule, Reopening Door for Web Accessibility Complaints," Level Access (blog), n.d., accessed October 23, 2019. ↩
- Abrar Al-Heeti, "Why the Fate of Online Accessibility May Rest with a Domino's Pizza Lawsuit," CNET, October 7, 2019. ↩
- Ibid. ↩
- Lindsay McKenzie, "Legal Battle Over Captioning Continues," InsideHigherEd, April 8, 2019; and Hoffman, "DOE Rescinds 'Mass Filer' Rule." ↩
Martin LaGrow is a Senior Learning Experience Designer at Ellucian.
© 2019 Martin LaGrow. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.