Digital Accessibility Law and Regulation: Current Status and What to Do About It

Colleges and universities have often found the legal and regulatory environment for web and IT (or digital) accessibility confusing. Developments in this space—or to some extent, the lack of such developments—over the course of 2018 did little to clarify the situation. With that in mind, the EDUCAUSE Policy Office asked Teresa Jakubowski, a legal expert in the field, to provide an overview of what happened in digital accessibility law and regulation last year, what it means, and what steps institutions should consider as a result. Key takeaways include the following:

• The US Department of Justice (DOJ) essentially reconfirmed its intention to avoid issuing digital accessibility regulations under the Americans with Disabilities Act (ADA).
• DOJ's unwillingness to set regulatory standards for digital accessibility has not changed its long-standing position, however, that the ADA covers digital accessibility.
• In the absence of regulatory standards, various federal courts are responding to digital accessibility lawsuits in different and sometimes contradictory ways. They also continue to leave key questions unanswered—questions that one might expect regulations to cover, such as:
  • Since digital technologies, content, and services are constantly evolving, what is a reasonable benchmark for accessibility compliance in an organization's digital environment at any given time?
  • What alternate ways of achieving accessibility in a particular digital context are acceptable and under what conditions, compared to making a site, resource, or service directly accessible?
  • Is it necessary for an organization to make all digital content accessible, or may it make some types (e.g., archived or legacy documents) accessible on request?
• DOJ's counterpart for accessibility compliance in the education space, the US Department of Education (ED) Office of Civil Rights (OCR), struggled with compliance complaints against institutions related to the ADA and Section 504 of the Rehabilitation Act, which establishes accessibility requirements for any educational institution receiving federal funds.
  • ED OCR at first changed its case-processing manual to eliminate mass complaint filings from a single source on the grounds that they were redundant and unduly burdensome. OCR later reversed itself in the face of a lawsuit and reinstated both the handling of mass filings and the review of the complaints it had previously dismissed.
  • ED OCR still lacks the resources to address mass filings in a timely manner, though, so it remains unclear whether this procedural reversal will have broad, substantive impact.
• The lack of both regulatory standards and a clear legal consensus in some areas continues to hamper compliance, but relative consistency on some points provides helpful markers.
  • Given that most higher education institutions are public entities and/or receive federal funds, they face digital accessibility requirements under the ADA and/or Section 504.
  • Prior legal and regulatory settlements identify compliance with the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as providing a generally acceptable level of web accessibility.
  • There hasn't been enough time since the release of WCAG 2.1 for it to supplant 2.0 as the reference in relevant agreements, but institutions can anticipate that will happen moving forward and should factor it into their planning and decision-making.
  • Agreements and judgments have sometimes included standards for specific areas (e.g., the Web Accessibility Initiative's Accessible Rich Internet Applications Suite for web content), and thus institutions should consider how those might apply to current operations or futures plans in addition to general standards like WCAG.
  • Implementing voluntary standards can establish an effective baseline for compliance, but it doesn't guarantee compliance at all times and in all ways; likewise, conformance to a certain standard or standards may not be necessary in all instances to ensure compliance—context matters, and institutions have to be prepared to assess and address specific issues within a given context to meet legal requirements.

With all of these factors in mind, Jakubowski identified some key steps institutions might take to mitigate risk and set themselves on a path for achieving accessibility success:

• Educate senior leadership with respect to not only the legal issues but also the ongoing process that will be required to achieve and ensure compliance.
• Appoint an accessibility coordinator or, alternatively, designate a responsible individual (or team) to oversee compliance in the digital realm.
• Adopt a written policy regarding the accessibility of the institution's digital environment, including procurement.
• Develop a compliance plan; this involves evaluating the institution's digital environment, setting a prioritized timetable for remediating inaccessible technology or content, and establishing a process for maintaining accessibility over time.
• Communicate to campus stakeholders about the availability of accessibility resources, how they can get assistance with those resources if needed, and how they can offer feedback.
• Provide job-appropriate training to faculty and staff.

EDUCAUSE Library resources on accessibility and web accessibility may serve as effective starting points for pursuing these steps or enhancing efforts already under way. EDUCAUSE also has a vibrant IT Accessibility Community Group that can help identify best practices, effective models, and additional resources. Likewise, members such as the California State University system, the University of Washington, and the University of Illinois provide a wide array of information and resources that other institutions may find helpful in making progress. And making progress on digital accessibility remains a must, given not just the needs of students, faculty, and staff but also the uncertain legal and regulatory environment that institutions face.

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Jarret Cummings is Senior Advisor for Policy and Government Relations at EDUCAUSE.