One compliance issue that deserves more attention is the accessibility of educational programs and activities — including sexual violence prevention programs — to students and employees with disabilities, including visual impairments. Not only is accessibility the subject of multiple higher education lawsuits, it is also the subject of federal agencies’ compliance reviews.
The Department of Education’s Office for Civil Rights enforces Title II of the Americans with Disabilities Act, which covers public colleges and universities (except schools of medicine, dentistry, nursing, and other health-related schools). OCR also enforces Section 504 of the Rehabilitation Act, which covers public and private colleges and universities that receive federal financial assistance.
6. Does the DCL apply beyond electronic book readers to other forms of emerging technology?
A: Yes. The core principles underlying the DCL — equal opportunity, equal treatment, and the obligation to make modifications to avoid disability-based discrimination — are part of the general nondiscrimination requirements of Section 504 and the ADA. Therefore, all school programs or activities — whether in a “brick and mortar,” online, or other “virtual” context — must be operated in a manner that complies with Federal disability discrimination laws.
Since issuing this guidance, OCR Resolution Agreements have required colleges and universities to meet accessibility standards so persons with qualified disabilities can participate fully in educational programs and activities.
In 2013, OCR reached settlement agreements with South Carolina Technical College System and The Pennsylvania State University. In March of 2014, OCR entered into a Resolution Agreement with the University of Montana to resolve a complaint that the university discriminated against students with disabilities by using inaccessible electronic and information technology (EIT). The UM agreed to:
- Adopt policies and procedures to demonstrate its commitment to implement EIT accessibility across all disciplines
- Train faculty and staff on UM’s accessibility policies and procedures
- Establish grievance procedures for addressing complaints about accessibility barriers
- Institute procurement procedures to acquire accessible EITs whenever technically feasible
- Conduct student surveys and accessibility audits to ensure accessibility needs are being met
In December 2014, the OCR entered into agreements to address accessibility issues with Youngstown State University (OCR letter and agreement) and the University of Cincinnati (OCR letter and agreement). In both the Youngstown and UC agreements, OCR defined “accessible” as follows:
“Accessible” means a person with a disability is afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as a person without a disability in an equally effective and equally integrated manner, with substantially equivalent ease of use. A person with a disability must be able to obtain the information as fully, equally, and independently as a person without a disability.
The Youngstown and UC agreements require an EIT Accessibility Policy:
[T]o ensure information provided through the University’s website(s), online learning (or “e-learning”) environment, and course management systems (e.g. Blackboard) (collectively, “electronic and information technologies” or “EIT”), are accessible to students, prospective students, employees, guests, and visitors with disabilities, particularly those with visual, hearing, or manual impairments or who otherwise require the use of assistive technology to access information provided through its EIT . . ..
Under these agreements, once the EIT policies are adopted OCR will conduct regular audits to make sure the universities and third parties continue to meet the agreed-upon standards.
Accessibility for prevention programs is not specifically addressed by the final regulations implementing the Violence Against Women Reauthorization Act of 2013, including the Campus Elimination of Sexual Violence Act (Campus SaVE Act). However, while the Department’s comments are primarily focused on content they do address how the required information will be delivered, stating:
[T]he Department does not have the authority to mandate or prohibit the specific content of mode of delivery for these [prevention] programs or to endorse certain methods of delivery (such as computer based programs) as long as the program’s content meets the definition of “programs to prevent dating violence, domestic violence, sexual assault, and stalking.”
Accessibility standards are evolving to keep pace with emerging technologies, and the Web Content Accessibility Guidelines (WCAG) 2.0, developed through the World Wide Web Consortium (W3C), are currently the favored standard.
So, in addition to checking a prevention program’s content, make sure it also meets the “accessible” standard.