Online courses that don’t meet the needs of learners with disabilities have come under fire at colleges and universities. Institutions can find themselves at a crossroads if found in violation of the Americans with Disabilities Act: Compliance. Or avoidance. If a college or university wants to enable higher education ADA compliance, what might that attempt look like?

This article adapted from the March 2017 issue of Mealey’s™ Litigation Report: Cyber Tech & E-Commerce. Mealey’s is a subscription-based information provider and a division of LexisNexis. Copyright © 2017 by Kevin Gumienny. Any commentary or opinions do not reflect the opinions of Microassist or LexisNexis, Mealey’s.

How Institutions of Higher Ed Can Demonstrate a Commitment to Accessibility in Online Course Offerings

Higher Education ADA Compliance

On Wednesday, March 1, 2017, the University of California at Berkeley announced that, in response to a Department of Justice demand to make its publicly available courses fully accessible to individuals with hearing, visual, or manual disabilities, it would pull the courses from the internet.

Late last year, the Department of Justice (DOJ) had found that the University of California at Berkeley (UC Berkeley) was in violation of the American with Disabilities Act (ADA) because “significant portions of its online content” were not accessible. In addition, “UC Berkeley’s administrative methods have not ensured that individuals with disabilities have an equal opportunity to use UC Berkeley’s online content.” Specifically, the Department of Justice was concerned with the courses that were publicly available on Berkeley’s edX channel, YouTube channel, and iTunes U platform. (DOJ’s investigation did not look at how Berkeley serves its own students, only whether its public courses were accessible. )

In its initial public comment, UC Berkeley hinted that it might pull and close down the public courses. With its note on March 1, UC Berkeley announced that it intended to do just that.

UC Berkeley is not alone in seeking alternatives to making its online educational experience accessible to those with disabilities. When the National Association for the Deaf sued Harvard University and Massachusetts Institute of Technology (MIT) for failing to provide accurate captions for their online course videos, the universities chose to fight the lawsuit. Early last year, the lawsuit survived a motion to dismiss.

Enabling Accessibility

Faced with similar demands from the DOJ, other educational institutions agreed to revise their internal processes and revamp their material so that their content became accessible to those with disabilities. The University of Cincinnati and Youngstown State University reached a resolution agreement with the US Department of Education Office for Civil Rights (OCR) and the DOJ in 2014. In 2013, Louisiana Tech University, South Carolina Technical College System, and Pennsylvania State University also reached resolution agreements.

Recently, Miami University in Ohio signed a consent decree with the Justice Department that modified the approach the university takes toward the accessibility of information and communication technology, including videos, documents, and other course materials.

Challenge or Provide?

When UC Berkeley, MIT, and Harvard decline to make portions of their online material available to people with disabilities, they seem to be outliers on uncertain legal ground; other universities choose to seek resolution.

If a university should seek to comply with the ADA, what might that attempt look like?

Components of ADA Compliance

In 2013, Pennsylvania State University (Penn State) and the National Federation of the Blind entered into a voluntary resolution agreement as part of the Office of Civil Rights Early Complaint Resolution process. At the March 2017 CSUN Assistive Technology Conference in San Diego, California, Christian Vinten-Johansen and Michelle McManus of Penn State University identified seven essential components for higher education ADA compliance, based on their experience with the resolution agreement and the recent consent decree signed by Miami University.

The seven components are as follows:

Create a policy for electronic and information technology (EIT) accessibility

Appoint an accessibility coordinator

Include accessibility criteria in EIT purchases

Include a link to an accessibility statement and resources and provide a feedback mechanism

Complete a prioritized audit of EIT

Remediate inaccessible EIT

Provide role-based training for faculty, staff, and administrators

Policy

One of the essential components of compliance is the establishment of a formal EIT policy. EIT policies outline roles and responsibilities, timelines, remediation policies, and standards (such as a requirement for websites and online documents to meet Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA criteria). Policies can also, though rarely do, include enforcement mechanisms for non-compliance.

Coordinator

An accessibility coordinator should be appointed. Three essential points should be considered by institutions of higher education when considering an accessibility coordinator. Fundamentally, accessibility must be an institutional commitment that is championed at the highest level. A point made again and again, by both institutions of higher education and other organizations, is that accessibility succeeds at an institution when it is fully supported at the top level of an organization.

Second, always train a primary and backup coordinator. It’s not uncommon for a primary to be reassigned once trained—accessibility coordinators are often in high demand.

Third, ensure that the coordinator is trained not only in accessibility, but also in leadership. Even with a high level of support, it’s often the case that coordinators are given the responsibility to implement accessibility without the formal authority to enforce it. Training in leadership helps the coordinator leverage the personal power needed to accomplish their goals when they lack positional power.

Procurement

In terms of accessibility and procurement, Vinten-Johansen and McManus recommend doing in-house testing prior to signing any contract. While vendors will file a Voluntary Product Accessibility Template (VPAT) that evaluates how well a product complies with accessibility requirements, the VPAT should be verified. Attempts can be made to require vendors to include an indemnification clause, but, according to Vinten-Johansen, this strategy is not often successful.

Testing can be either automated or manual. Automated testing is useful, but only catches between 20% and 40% of issues. Manual testing is more effective, but more time-consuming. It may be possible to convince the vendor to perform compliance testing; the vendor can use the results to support future efforts when making their product available to other institutions.

Feedback

For communication and feedback, it’s essential to provide a simple, accessible feedback process. Lori Kressin, Barbara Zunder, and Catherine Spear of the University of Virginia, for example, developed a process that is easily available to students, faculty, staff, and the public, and provides a simple, actionable, and trackable report.

While such a form by itself might be seen as a merely reactive approach to accessibility, when incorporated as part of an overall compliance effort, the feedback process becomes an essential proactive element.

Audit

Vinten-Johansen and McManus’s fifth component, an EIT audit, should identify risks. In accordance with recent letters and consent decrees, the audit should assess (among other items) web content accessibility for administration, learning management system accessibility, textbook and course material accessibility, and the accessibility of institution-related websites, including those maintained by student organizations. As seen with MIT and Harvard, course materials include video. As noted in DOJ’s letter to UC Berkeley, public-facing material needs to be considered, as well as student-specific resources.

Remediation

The sixth component is perhaps the most intense: the remediation of inaccessible EIT. Penn State implemented a structured approach, first fixing what it identified as “blockers” (such as issues with image alternative text tags, complex images, page or document titles, headings, link text, tables, and forms). Other items, such as contrast, color, foreign languages, and legibility, they classified as “beyond the blockers.” Faculty staff tools were addressed after the other items.

The precise order can be determined on an institution-by-institution basis. While there is often differentiation between legacy content and new content (with all new content being made accessible from that point forward, and legacy content being made accessible according to a schedule), all content must be remediated (unless an exception is granted, following a formal process).

Training

The final component is training. Accessibility is a lively and changing field, as new technical solutions are developed, new assistive technologies are invented, and new procedures and regulations are implemented.

To remain in compliance, an institution needs to provide ongoing training so that people are able to establish and maintain their skills, and training will be most effective when incorporated at the individual role level. Instead of resting responsibility for accessible EIT in a single quality assurance department, an institution should expect web developers, visual designers, content authors, instructional designers, and faculty members to produce accessible material (and should provide support that enables them to do so).

Visual designers can determine that all images and text meet the proper color contrast ratios. Instructional designers can ensure that course design, structure, and the language level meet the needs for cognitive accessibility. Administrative staff can ensure that the Word documents and PDFs they produce meet WCAG 2.0 AA criteria. Faculty members can ensure that video they use, record, and share is properly captioned and equipped with audio description.

Once faculty and staff are aware of the requirements needed for content to be accessible (in the same way they might be aware of the proper use of the university logo or the correct format for source citation), they can implement accessibility on a foundational level. IT accessibility coordinators and staff can focus on verifying that the material meets the standards, rather than remediation.

Note that the accessibility of material created by course-based tools such as learning management systems, exam delivery systems, and platforms for delivering MOOCs (massive open online courses) also needs to be considered, especially when relying on non-technical staff to develop material. Many accessible solutions are fragile—adding the right component in the wrong place makes the content inaccessible to assistive technology like a screen reader. Course-based tools should be robust, designed to publish accessible material even if the creator lacks a high level of technical skill.

Support

Two additional points enable these seven components to be successful. To ensure effective compliance, university policy must identify what each of these areas needs to succeed, and make sure that support is available.

Second, all solutions should be tracked and socialized. If this is not done, then a situation solved for one instance may be forgotten and not available the next time the incident occurs. There will be no progress for the next student—nor will there be progress for the institution.

Higher Education Accessibility Going Forward

In light of UC Berkeley’s decision to remove its publicly available material rather than remediate it (and MIT and Harvard’s continued resistance to captioning their course videos), it might be tempting to assume that an institution of higher education no longer needs to bring its online presence into compliance with ADA regulations.

Indeed, Lainey Feingold and Linda Dardarian, in their recent digital accessibility legal update at the March 2017 CSUN Assistive Technology conference, noted that the federal approach to regulation, after several years of consistency, has become much more uncertain in the past few months. However, they point out, existing laws and standards have not changed, and “digital accessibility is here to stay.”

Feingold and Dardarian maintain that accessibility remains a civil right, and the best defense against related lawsuits at institutions of higher education (as well as others) is a demonstrated commitment to accessibility.

More on Accessible Elearning

Kevin was featured on the ELearning Council’s Leaders in Learning Podcast, and spoke on creating accessible elearning. You can find that podcast here:

Accessibility, Higher Education, and Elearning

Microassist Accessibility Services

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