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    August 2019

    Website Accessibility: How Recent Liability Trends May Affect Your Institution

    Under Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA), institutions are legally responsible to ensure that students with disabilities have access to electronic information such as webpages. Colleges have been under increasing pressure, from civil lawsuits and the federal government, to ensure website compliance with these accessibility standards. 

    Beginning in 2015, dozens of higher education institutions received demand letters from law firms alleging that their websites violated the ADA and Section 504. Since then, an increasing number of website accessibility lawsuits have targeted institutions and the Department of Education’s Office for Civil Rights (OCR) has opened hundreds of investigations into institutions that allegedly failed to make their websites accessible. Institutions can use this summary of recent liability trends and United Educators (UE) recommendations to better understand the current legal climate and to improve website accessibility.  

    Litigation and OCR Enforcement Trends

    Harvard and MIT Lawsuits

    In 2015, the National Association of the Deaf filed separate class action suits against Harvard University and the Massachusetts Institute of Technology (MIT) alleging that each institution’s website failed to provide the necessary captioning to make audio material accessible to deaf and hard of hearing consumers — in violation of the ADA and Section 504. Although these landmark cases have lingered in the courts and may not be resolved for years, a key ruling occurred in March 2019: the court concluded that college websites are places of public accommodation under the ADA and subject to accessibility standards. 

    Manhattan Lawsuits

    Law firms filed fewer website accessibility lawsuits targeting higher education institutions in 2017 and 2018 than in 2015 and 2016. However, in November 2018 one firm filed more than 50 lawsuits in New York against in-state and out-of-state institutions that participated in a college fair in Manhattan, alleging their websites violated the ADA, Section 504, and New York accessibility standards. New York is a difficult jurisdiction for defending website accessibility lawsuits due to a string of favorable decisions for plaintiffs. The nearly identical Manhattan complaints claimed the institutions’ websites did not conform with Web Content Accessibility Guidelines (WCAG) 2.0 released by the World Wide Web Consortium in 2008. Those guidelines explain how to make electronic technology more accessible.

    The Manhattan lawsuits are important for two reasons. By suing out-of-state institutions, the law firm is testing whether it can bring suits in a more plaintiff-friendly jurisdiction. In addition, the focus on WCAG 2.0 as the standard is significant because there had been a lull in claims against colleges alleging WCAG 2.0 violations. Institutions should monitor the Manhattan lawsuits to see whether out-of-state institutions with New York dealings should expect similar future litigation.

    Domino’s Lawsuit

    In June 2019, Domino’s Pizza petitioned the U.S. Supreme Court to review a Court of Appeals for the Ninth Circuit ruling that the pizza chain’s website may violate the ADA. The Supreme Court petition asks whether the ADA requires websites offering goods or services to the public to meet accessibility requirements that are not encoded in federal regulations. If the Supreme Court chooses to hear the case, a decision against Domino’s may result in a flood of website accessibility litigation against businesses, such as colleges and universities, that offer goods and services.

    OCR Complaints

    Between November 2016 and early 2018, a well-known disability advocate filed hundreds of OCR complaints alleging disability discrimination against higher education institutions. In early 2018, OCR updated its case processing manual to allow it to dismiss new complaints that used identical information against multiple recipients. OCR voluntarily dismissed hundreds of these complaints. However, in late 2018, OCR revised its case processing manual again to remove the new provision and began reopening previously dismissed complaints. OCR likely will reopen all the complaints dismissed and continue to address new complaints regarding web accessibility. 

    Recommendations to Create Accessible Websites

    Recent litigation and OCR enforcement activity underscore an institution’s duty to make its website accessible. To ensure students, employees, and others with disabilities are not improperly denied access to an institution’s website and to minimize liability risks, UE recommends taking actions to meet the WCAG 2.1 Level AA guidelines. (The World Wide Web Consortium released WCAG 2.1 in June 2018.) Note that conformance with guidelines is broken into three levels: Level A (lowest), AA, and AAA (highest).

    To meet WCAG guidelines, do the following:

    • Form a stakeholder team. A team of stakeholders should be responsible for electronic information technology (EIT) accessibility, including websites. The team should include administrators with technology backgrounds, the head of the disability services team, employees who advise on the institution’s buying practices and relationships with vendors, representatives from a variety of departments, and student leaders.
    • Create an implementation plan. The stakeholder team should evaluate the current website’s accessibility to determine the major actions needed to meet WCAG 2.1 AA standards. The team should prioritize those actions in a rating system and timetable. Determine priorities by considering how many people the changes affect and how long changes will take to implement.
    • Appoint an EIT coordinator. Identify a person responsible for overseeing the day-to-day requirements of creating and maintaining an accessible website. Typically, coordinators are members of the IT or technology accessibility departments, not disability services.
    • Train staff to create accessible website content. The EIT coordinator is responsible for developing website accessibility training. Anyone developing online content should receive the coordinator’s contact information and training on WCAG standards.
    • Draft website accessibility resources. The EIT coordinator should draft step-by-step guidelines for meeting website accessibility requirements that anyone working on the institution’s website can easily find and follow. These guidelines should include common requirements such as incorporating captioning for audio material and making webpages compatible with screen readers. For sample resources, see George Mason University’s web accessibility guidelines and the University of Washington’s IT accessibility checklist.
    • Address accessibility in vendor contracts. Institutions often get website software and content from third-party vendors. Before signing a contract with a website vendor, work with legal counsel to ensure it contains adequate accessibility provisions. For more information, see Addressing Accessibility in Your EIT Vendor Contracts.   
    • Create a technology accessibility policy. These short policies document an institution’s commitment to conforming to the ADA, Section 504, and the WCAG guidelines. Because any policy provisions may create additional duties for the institution, ensure institution practices uphold the tenets of the policy. 
    • Audit the website. With the help of students and faculty, conduct annual accessibility reviews to reveal whether students and faculty with disabilities can successfully use the website. Assign participants specific tasks such as accessing a teacher’s webpage. Have participants report back on their experiences. Institutions also may choose to hire an external auditor to assess the website’s accessibility. The stakeholder group should use the internal and external results to update the accessibility policy and implementation plan and the EIT coordinator can use the results to update the website accessibility resources. 
    • Create a website accessibility reporting webpage. Website users can help the auditing process by reporting inaccessible parts of the website. The EIT coordinator can create and oversee a webpage allowing visitors to submit accessibility issues. For an example, see the University of Washington’s Getting Help with Accessibility webpage.


    Understanding Your Institution’s Duty to Make Technology Accessible

    University of Washington Accessible Technology

    George Mason University Web Accessibility

    By Kristin E. Scaduto, resolutions counsel


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