(November 30, 2017) On November 16, Senators Elizabeth Warren (D-MA) and Orrin Hatch (R-UT) introduced S. 2138, the Accessible Instructional Materials in Higher Education Act, or AIM HIGH. While not an exact companion, the bill closely mirrors H.R. 1772 of the same name, which was introduced by Representatives Phil Roe (R-TN) and Joe Courtney (D-CT) earlier this year.
As we've discussed previously (September 2016 and March 2017), AIM HIGH would create a commission of representatives from major stakeholder communities to develop voluntary accessibility guidelines for postsecondary instructional materials and related technologies. The commission would also create a reference list of general IT accessibility standards, annotated to clarify those standards' relevance to higher education IT. A supermajority vote would be required to approve the release of either resource, ensuring that they reflect a broad consensus among the various communities.
The only difference between the Senate and House bills deals with the legal safe harbors provided for use of digital learning resources and related technologies. In the House bill, two safe harbors were provided to incentivize institutional adoption of the guidelines when procuring and deploying instructional materials. A full safe harbor was provided for institutions that use materials that completely conform with the guidelines, under which they would be deemed to be in compliance with the requirements of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act as those requirements relate to the given materials and/or technologies. Additionally, a limited safe harbor was provided to institutions when they document their use of the guidelines in their consideration of a digital learning resource or technology but ultimately decide to use something that doesn't conform. In this instance, the institution would see its financial liability under an adverse ADA or Section 504 ruling related to the given resource or technology limited to the costs of mitigating the mistake and covering the plaintiff's legal fees.
In the Senate bill, however, neither of these safe harbors are provided. Institutions can adopt the guidelines at their discretion, given that they are voluntary, but use of the guidelines does not provide any additional legal protection.
At this time, the House bill has 38 cosponsors (26 Democrats, 12 Republicans), while the Senate bill only has the two sponsors introducing it. Neither bill is expected to move on its own, but either version could be included in efforts by the respective chamber to reauthorize the Higher Education Act.
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.