Website Accessibility Considerations for Private Higher Education Institutions | Thompson Coburn LLP
The COVID-19 pandemic has significantly increased the use of the Internet and digital platforms by higher education institutions. While the provision of online content has great potential to improve the way institutions communicate with and educate students, institutions should also be aware of their respective compliance obligations when operating in a digital world.
Thompson Coburn’s higher education group previously detailed the requirements for the new Department of Education Distance education rule in a webinar for institutions looking to educate students online. This blog post focuses on website accessibility considerations and provides a high-level overview of the legal requirements for private higher education institutions.
There are two primary federal laws that govern website accessibility for private higher education institutions: Title III of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Disabilities Act. Rehabilitation Act 1973 (“Section 504”). National and local laws, including anti-discrimination or human rights laws, also govern online accessibility and can vary widely depending on jurisdiction. Although this blog post does not discuss state and local laws, institutions should ensure that they understand and comply with these relevant requirements in addition to federal law.
The Americans with Disabilities Act
Title III of the ADA provides that “[n]o the individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, benefits or accommodations of any public accommodation by anyone who owns… or operates a public accommodation facility”. 42 USC § 12182(a). A private higher education institution is considered a “public institution” in Title III. Identifier. at 12181(7)(J).
Title III does not say whether the websites are “public accommodations”. In the absence of statutory or regulatory language, case law has filled in the gaps. While all cases are fact-specific, the standards for website accessibility under Title III largely depend on the jurisdiction hearing the case.
Some courts have found that online content is subject to Title III of the ADA. See, for example, Nat’l Ass’n of the Deaf v. Harvard Univ., 377 F. Supp. 3d 49 (D. Mass. 2019); Robles vs. Domino’s Pizza, LLC, 913 F.3d 898, 910-11 (9th Cir. 2019). These courts have frequently accepted the Web Content Accessibility Guidelines (“WCAG”) as the industry standard for evaluating website compliance with the ADA. WCAG are guidelines promulgated by the World Wide Web Consortium, an international organization governing accessibility standards. But other courts have interpreted the ADA differently, such as holding that “public accommodations” under the ADA are limited to real, physical locations and do not include websites. See, for example, Martinez v. mylife.com, Inc., 2021 WL 5052745 (EDNY 1 Nov 2021). Given the division between the courts, this may also be an issue that the Supreme Court could eventually consider.
While Congress is unlikely to provide further clarification on this matter in the near future, institutions should be aware of the possibility that new federal rules regarding website accessibility may be issued by the Department of Justice (“DOJ”). In 2010, the Obama administration’s DOJ initiated the process to propose such rules, but that process was halted by the Trump administration in 2017. The Biden administration may revive the effort to publish such rules. However, even in the absence of new rules, the DOJ’s recent settlement agreements with Kroger, Hy Veeand Rite-Aid required compliance with WCAG standards.
Section 504 of the Rehabilitation Act 1973
Section 504 prohibits a qualified person, because of his disability, from being “excluded from participation in,  denied the benefits of, or otherwise  is discriminated against in connection with any program or activity receiving federal financial assistance. 34 CFR §104.4. The Department of Education’s Office of Civil Rights (“OCR”) enforces Section 504 with respect to higher education institutions, public and private, that receive federal financial assistance from the Department of Education.
Although Section 504 also does not contain a website accessibility standard, the OCR has interpreted an institution’s website accessibility obligations under Section 504 in recent resolution agreements between institutions and OCR. In 2020, the resolution agreements contained the following language:
Online content and functionality. The University agrees that it will develop and take substantial action within a reasonable time, and in no event more than 12 months, in implementing a strategy to ensure that people with disabilities have an equal opportunity to participate in University programs and activities offered on the University website by making the content and functionalities accessible online or, if necessary, by providing an equally effective alternative access. To meet this commitment, the University will develop a strategy to identify and address content and features that are inaccessible to people with disabilities. The University’s policy will designate the standard the University will use to determine the accessibility of online content and functionality (eg WCAG 2.0 Level AA or similar standard). (For example Resolution Agreement with Caldwell University, OCR Docket No. 02-09-6906).
Here, the OCR clarified that institutions must designate a particular standard to be used to “determine the accessibility of online content and functionality.” WCAG 2.0 Level AA is noted as an example of such a standard.
Because the courts, DOJ, and OCR have often looked to WCAG standards to meet an institution’s website accessibility obligations, institutions should seriously consider implementing WCAG-compliant websites. to guard against possible disputes or administrative measures of execution. The most recent WCAG standard is 2.1.
Institutions can consider taking the following steps to move towards compliance:
- Create a website accessibility team: Identify the appropriate stakeholders and people to address website accessibility issues. For example, an institution’s disability services office, information technology office, purchasing office, and faculty likely all have an interest and role to play in ensuring compliance.
- Review current website and online products: Understand the reach of your institution’s website, its online footprint and current compliance levels. There are a number of free tools that can be used to check the accessibility of documents (Accessibility Checker and Checklist (cpp.edu)) or websites (WAVE Web Accessibility Assessment Tool (webaim.org)). There are also a number of companies that can provide an accessibility audit for your establishment.
- Ensure that new content published by the institution is accessible: New content posted to websites by staff and faculty must meet applicable accessibility standards. The University of Washington has many Resources this can help give your institution an idea of what is needed.
- Future supplies and web design: In all future purchases of websites or online products, make sure that accessibility is a consideration. Consider specifying the level of compliance required in future contracts – for example, WCAG 2.1 Level AA or a similar standard – so that there is no doubt that your institution’s product is compliance.