Department of Education OCR Guidance for K-12 Provides Clues on Web Accessibility Compliance for Higher Ed

As the COVID-19 pandemic drove educational institutions around the country to close their doors earlier this month and begin transitioning to emergency remote instruction, the US Department of Education Office for Civil Rights (OCR) posted a video and a fact sheet concerning online education and web accessibility. In the video, senior leaders of ED OCR stress the need for institutions to continue complying with major civil rights laws governing accessibility for persons with disabilities, such as Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, even as institutions rushed to move face-to-face classes online.¹

The guidance from the OCR left many K-12 and higher education institutions concerned. Some institutions interpreted the reminder as a warning that they might face discrimination complaints and compliance investigations due to mistakes or oversights made while struggling to convert courses and programs to remote delivery at light speed. Reports began to circulate that some school districts might suspend instruction for all students out of concern that the school districts could not legally teach any students via remote delivery if they could not guarantee full web accessibility for all students with disabilities via emergency modes of instruction.

The department recently attempted to quell this concern by issuing supplemental guidance (see the March 21 press release and fact sheet) for K-12 schools. The supplemental guidance provided the following clarifications:

• "In this unique and ever-changing environment, OCR and OSERS [Office of Special Education and Rehabilitative Services] recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible."
• "It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE [free and appropriate public education] is to be provided may need to be different in this time of unprecedented national emergency."
• "Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students."²

While the department directed this latest round of information to elementary and secondary schools, it provides a reasonable indication of the approach that the OCR might take in relation to similar issues in higher education. The guidance acknowledges the unprecedented challenges posed by the rapid transition of classroom instruction to remote, online instruction, and therefore emphasizes that "the US Department of Education (Department) does not want to stand in the way of good faith efforts to educate students on-line."³

Like our K-12 colleagues, colleges and universities can definitely use a regulatory enforcement process that recognizes good-faith compliance efforts during the ongoing crisis response. Hopefully, the department will provide a version of this guidance focused on higher education, but unless and until it does, colleges and universities should reference the department's March 21 statement when reaching out to OCR for specific responses to their web accessibility concerns.

Notes

1. US Department of Education Office for Civil Rights, Online Education and Website Accessibility, March 17, 2020. ↩
2. "Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," Offices for Civil Rights and Special Education and Rehabilitative Services, US Department of Education, March 21, 2020. ↩
3. Ibid. ↩

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