April 07, 2022

HED: DOJ Issues New Guidance on Web Accessibility

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The Department of Justice ("DOJ") published, on March 18, 2022, new "Guidance on Web Accessibility and the ADA" (the "Guidance"). For colleges and universities, the Guidance offers some help as to how to best satisfy their obligations under the Americans with Disabilities Act ("ADA") to provide an accessible web presence and try to avoid risk in connection with web accessibility.

What You Need To Know:

  • Colleges and universities should focus on ensuring that all posted content within their web presence complies with the Web Content Accessibility Guidelines and Section 508 Standards.
  • Institutions should take steps to assess the accessibility of products and platforms purchased from, or provided by, outside vendors, including learning management systems ("LMS") and instructional support applications.
  • The development of internal processes for accomplishing these goals, such as integrating accessibility review as part of the procurement or vendor onboarding process, is essential.

In the Guidance, DOJ declares that "web accessibility for people with disabilities is a priority." Implicit in the Guidance is that enforcement actions involving educational institutions are of particular importance. Of the ten "Sample Cases" cited in the Guidance, three involve educational entities: Miami University in OhioLouisiana Tech University, and Teachers Test Prep, Inc. The focus on web accessibility matters involving educational institutions suggests that existing scrutiny on colleges and universities related to web accessibility will continue, and even intensify.

Some of the web accessibility issues addressed in the "Sample Cases" should be familiar to colleges and universities. For example, the Teachers Test Prep case involved a complaint that the subject entity, a test preparation company, hosted online courses featuring videos that were not properly captioned and, as a result, were inaccessible to individuals who are deaf or hard of hearing. Similarly, a student brought an action against Miami University alleging that, among other claims, the university's websites and subdomains contained content that was inaccessible to individuals who are blind or who have low vision because the content lacked text alternatives ("alt text") for images. 

Both of these topics—captioning and alt text—are explicitly listed in the Guidance as examples of what institutions should do to make their websites accessible. While DOJ concedes in the Guidance that it "does not have a regulation setting out detailed standards" applicable to web accessibility—a source of continuing frustration for institutions—the Guidance does observe that "[e]xisting technical standards provide helpful guidance concerning how to ensure accessibility of website features." 

Specifically, the Guidance cites the Web Content Accessibility Guidelines ("WCAG") and Section 508 Standards and notes that "the federal government uses [these] for its own websites." Following the federal government's lead, colleges and universities should ensure that all posted content within the institution's web presence complies with WCAG and the Section 508 Standards.

The WCAG and Section 508 Standards are extensive. But, in its Guidance, DOJ highlights the following "website accessibility barriers" that colleges and universities can use as a starting point for evaluating their own websites:

  • Poor color contrast;
  • Using color alone to convey information (e.g. using different color text in a form to convey which fields are required, without any other indicator to convey that those fields are required);
  • Lack of alt text on images;
  • Videos without captions;
  •  Inaccessible online forms (e.g. not labeling form fields; unclear instructions; not implementing clear error indicators); and
  • Mouse-only navigation (i.e. not enabling navigation with a keyboard or voice commands).

Moreover, it is almost certainly not sufficient for institutions to only take responsibility for the accessibility of content that they themselves post and generate. Rather, institutions must also take steps to assess the accessibility of products and platforms purchased from, or provided by, outside vendors, including learning management systems ("LMS") and instructional support applications.

While the Guidance does not explicitly address this issue, both the Miami University consent decree and the Louisiana Tech settlement agreement address the institutions' adoption of vendor-provided electronic information technology resources. One of the issues identified in the Miami University case was the institution's use of an LMS, Niikha, that was inaccessible to individuals who were blind or had low vision. Similarly, one of the issues identified in the Louisiana Tech case was the university's use of an online learning product, MyOMLab, that was inaccessible to a blind student.

Accordingly, the consent decree with Miami University focused heavily on forward-looking enhancements to the institution's procurement procedures. For example, the institution committed to, as part of its vendor onboarding process, "[e]valuat[ing] any available product accessibility information, such as a Voluntary Product Accessibility Template (‘VPAT'), third-party product accessibility evaluations, publicly-available accessibility evaluations, and automated testing reports" and to "independently test[ing] the LMS or instructional support application through automated, expert, and user testing….[to] assess the claims of the VPAT and any available accessibility evaluation to determine the product's conformance with WCAG 2.0 AA and its ability to be used by students with disabilities."

For institutions that have not already incorporated digital accessibility considerations as part of the procurement process, the Guidance signals that now is the time to do so. Colleges and universities would be well-served by adopting digital accessibility policies that include requirements such as:

  • Requiring all vendors of electronic information technology resources to submit a VPAT as part of the vendor identification and selection process; 
  • Adding accessibility requirements to requests for proposals ("RFPs"), independent contractor agreements, and similar product and service provider agreements; and
  • Incorporating demonstrations and tests of accessibility in vendor demos, rather than relying on the vendor's own representations about a product or service's ability to meet the needs of students, faculty, staff, prospective students and employees, and other site users with disabilities.

Ideally, this last point should include the demonstration of tools that purport to automate accessibility features, such as captioning, which may be unacceptably error-prone, but which have proliferated, often without adequate scrutiny, during the urgency of the COVID-19-prompted shift to online learning. And, the products and services that should be subject to this scrutiny should include those that may have a less-obvious digital component, such as textbooks, which often include supplementary digital applications or content offered by the publisher and which should be accessible. If a college or university is making use of content on the web for its students, that content and the service(s) used to access it must be accessible.

Reaching full digital accessibility can be costly, but the risks of civil suits and enforcement actions are, as the Guidance illustrates, substantial. Vigilance with respect to both changes in technology and web accessibility guidance will continue to be critical for the foreseeable future. 

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