LEGAL FOUNDATIONS FOR
E & IT ACCESS POLICIES
CIC/Big 10 Plus Web Accessibility Workshop
Columbus Ohio, 6/19/2006
Presented by
L. Scott Lissner ADA Coordinator, The Ohio State University

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POWERPOINT PRESENTATIONS
CAN BE DANGEROUS

NASA's Columbia Accident Investigation Board identified simplistic thinking from an over-reliance on PowerPoint presentations as a contributing factor in the Columbia shuttle disaster.

(New York Times Magazine 12/14/2003

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Section 508
Of The Rehabilitation Act

• Applies only to federal agencies.

• Establishes federal purchasing policy

• Congressional sponsors expected it to influence the market place.

• Provides a standard that can be used as a benchmark.

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Title III Of The ADA

• Prohibits discrimination against people with disabilities in places of public accommodation, includes private colleges.

• The internet may or may not be a places of public accommodation.

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Title III Of The ADA (Cont’d)

• First, Second & Seventh circuit say the internet is a place of public accommodation.

• Third, Sixth say no.

• Access Now v. Southwest Airlines.

  • District court in Florida said no.

  • Eleventh Circuit Appeal dismissed on procedure not substance.

• AOL, Priceline.com and Ramada.com

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FEDERAL CIRCUITS

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Title II of the ADA

• Prohibits discrimination against people with disabilities by public entities including public colleges.

• Overlaps the previously existing Section 504 which generally has more detailed regulations.

• Includes an explicit focus on communication:

“A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.” – 28 CFR 35.160(a)

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Title II Of The ADA (Cont’d)

Recognizes the importance of “customer preferences” regarding methods of communication for people with disabilities:

“In determining what type of auxiliary aid and services is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.” – 28 CFR 35.160(b)(2)

Metropolitan Atlanta Rapid Transit Authority

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Section 504
Of The Rehabilitation Act

• Prohibits discrimination against people with disabilities by recipients of federal financial assistance (Includes nearly all public and private colleges).

• Regulations are generally more specific than Title II, and include requirements specific to colleges and universities – 34 CFR Part 104

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Section 504 (Cont’d)

• Entities providing any aid, benefit or service may not afford a qualified person with a disability an opportunity to participate that is not as effective as the opportunities provided to others.

  • • 34 CFR 104.4(b)(1)

• Qualified students may not be excluded from a program or given different benefits or services in a program on the basis of disability.

  • • 34 CFR 104.4(b)(1)

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Section 504 (Cont’d)

• Schools must make “academic adjustments” necessary to afford people with disabilities access to programs unless it would fundamentally alter an essential element of the program.

  • • 34 CFR 104.44(a)

• Academic adjustments include “auxiliary aids” necessary to provide access by those with sensory impairments.

  • • 34 CFR 104.44(d)

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Section 504 (Cont’d)

• “Methods of administration” of programs and activities may not have the effect of discriminating against people with disabilities

  • • 34 C.F.R. section 104.4(b)

• A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

  • • 34 CFR 104.4(b)(2)

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Higher Education Reconciliation Act of 2005

• exempts “courses offered by telecommunications” from the definition of correspondence courses, thus exempting online schools from the 50 percent rule.

• Effective July 1, 2006, online schools may enroll students supported by federal loans and grants.

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Determining Discrimination
The Courts Examine:

• The extent to which the action or inaction has a disparate impact on particular groups;

• Whether the disparate impact was known or foreseeable;

• Whether the disparate impact was avoidable;

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Determining Discrimination
The Courts Examine:

• Whether the agency had a legal duty to mitigate the impact;

• Whether the agency took action to avoid the impact; and

• Whether the agency had legitimate nondiscriminatory reasons for its actions or inactions.

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Equally Effective

• Timeliness

• Accuracy

• Provided in a manner and medium appropriate to the significance of the message

• Comparable Burden

  • Effort and Cost

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Sources &

Annotated OCR Letters

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• Patricia F. First & Yolanda Y. Hart, Access To Cyberspace: the New Issue In Educational Justice, Journal of Law and Education (2002)

• John Grady and Jane Boyd Ohlin, The Application of Title III of the ADA to
  Sport Web Sites, 14 J. Legal Aspects Sport 145 (2004).

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• Allen S. Hammond, Reflections On The Myth Of Icarus In The Age Of Information, Santa Clara Computer and High Technology Law Journal (2003)

• Richard E. Moberly, The Americans With Disabilities Act In Cyberspace: Applying The “Nexus” Approach To Internet Websites, Mercer Law Review (2004)

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• Leah Poynter, Setting the Standard: Section 508 Could Have an Impact on Private Sector Web Sites Through the Americans with Disabilities Act, 19 Ga. St. U.L. Rev. 1197 (2003).

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Programmatic Access To
Web Based Information

• US Department of Justice Letter to Senator Harkin (1996) http://www.usdoj.gov/crt/foia/cltr204.txt

• Permits readers, Braille, other alternative means when effective AT or design strategies have not been developed.

• Letter pre-dated development of effective AT, accessible browsers, and guidelines for accessible web design

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San Jose State (OCR 1996)

• Access to internet as part of university program

• Equal opportunity is comparative:

“The issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others.”

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San Jose State University (cont’d)

• Two aspects of “effectiveness,” flexibility and autonomy (user-operated software as opposed to reliance on a reader)

• Need to continue to consider advances in AT that improve effectiveness of communication

• As access tools improve there is a need to match available AT to advances in information technology used by institution

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California State LA (OCR 1997)

• Access to libraries and computer services provided to others during semester break.

• Analogous to requirements for accessibility of buildings (existing vs. new construction).

• Ad hoc to approach IT access resulted in denial of access. A University’s method of administration can result in discrimination.

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California State LA (cont’d)

• “Communication” includes the internet resources

• Equally effective communication :

  • Timeliness

  • Accuracy

  • Appropriate to the significance of the communication (e.g. a required text on library reserve versus a newspaper op-ed piece of general interest

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California State LA (cont’d)

• • Selection of inaccessible technology when there is an accessible alternative heightens the obligation to ensure access to the selected alternative.

  • College wasn’t required to supply AT of individual choice if alternative is as effective in the context (e.g. choices among screen readers).

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California Community Colleges Chancellor’s Office (OCR 1998)

• Proactive Audit of system’s technology access conducted by OCR in collaboration with Chancellor’s Office.

• Highlights importance of strategic rather than ad hoc approach to technology access.

• Resulted in both system and institutional level plans.

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California Community College System (Cont’d)

• Adaptive technology was available to overcome barriers but it requires planning and training

• Colleges were rapidly acquiring technology and creating distance learning services and programs was explosive but needs of blind students were not being considered

• Acquisition and development of technology were not responding effectively to the need

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CSU Long Beach (April 1999)

• Issue: Lack of access in Business school’s computer lab and classes, professors’ web sites, and classroom overhead slides.

• Suggests that other than AT training, computer access for people with disabilities should be integrated in classrooms and general computer labs around campus where all students use computers.

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CSU Long Beach (Cont’d)

• Voluntarily resolved through mediation.

• Access will be considered when buying hardware and software.

• Policies assigned responsibility for identifying, installing and maintaining adaptive workstations.

• Train and monitor web designers for adherence to accessible design principles.

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North Carolina State (OCR 2000)

• • Issues: lack of web access in university programs, inaccessible student notices, existing AT not maintained in working order.

  • University agreed to provide notices in accessible format.

  • University developed a college-wide plan for IT access that addressed AT, web design, training and purchasing policies.

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Macomb CC (OCR 2001)

• Issue: lack of access to program and library technology, web site.

• Voluntary agreement through mediation.

• Scanners and voice out put software installed to permit access to program and library.

• Web site redesigned for accessibility

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Southern Illinois (OCR 2001)

• Issue: obsolete AT with no technical support and in accessible web sites

• Voluntary resolution through mediation.

• Upgraded AT.

• Expanded computer support to include AT.

• Self-evaluation and redesign of web sites to ensure accessibility.

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DOJ Technical Assistance Advisory (2003)

• One way to meet 504 and ADA requirements is to ensure that government websites are accessible

• An agency with an inaccessible website may also meet its legal obligations by providing an alternatives (such as a staffed telephone information line or documents on demand) if they provide an equal degree of access in terms of hours of operation and the range of options and programs available.

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L. Scott Lissner
University ADA Coordinator
Office Of The Provost
The Ohio State University
(614) 292-6207(v); (614) 688-8605(tty)
Lissner.2@osu.edu
Http://ada.osu.edu