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Online Prevention Programs Must Be Accessible
Posted by On Wednesday, February 4, 2015

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.

In its May 26, 2011 “Frequently Asked Questions About the June 29, 2010 Dear Colleague Letter,” the OCR addressed accessibility issues in emerging technology:

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.

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California Mandates Campus Sexual Assault Reporting to Police
Posted by On Monday, October 27, 2014

Nearly a year ago, a California bill proposing to mandate campuses to report sexual assault and other crimes to the police garnered national attention. Now, that bill (designated AB 1433) has become law. AB 1433 requires most colleges, as a condition of receiving state Cal Grant funds, to immediately – or as soon as practically possible – report specified crimes against students to local law enforcement agencies without disclosing the student’s identity (unless the student consents). The reporting law takes effect immediately. However, schools have until July 1, 2015 to additionally adopt and implement policies and procedures to ensure that crimes are reported to local law enforcement.

What has changed

On September 29, 2014, AB 1433 became law, requiring California colleges and universities to immediately (or as soon as practically possible) alert the campus police or local law enforcement when a student or employee reports a violent crime:

  • willful homicide, forcible rape, robbery, or aggravated assault (“Part 1 violent crimes”), as defined in the Uniform Crime Reporting Handbook of the Federal Bureau of Investigation
  • sexual assault (e.g., rape or rape with an object, forced sodomy or oral copulation, sexual battery, or the threat of any of these)
  • any hate crime committed because of another person’s disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with any of these characteristics

This new law makes reporting a condition of receiving Cal Grants that help qualifying students pay for college. And, no later than July 1, 2015, institutions of higher learning must “adopt and implement written policies and procedures to ensure” that crimes are immediately reported to law enforcement.

To protect victim’s privacy, the law requires that no identifying information about the alleged victim can be included in the report unless the victim consents. According to Newsweek, this provision was added after victims’ advocates objected that the initial draft of the bill, by making reporting mandatory without the alleged victim’s consent, would pressure sexual assault survivors to work with the police against their wishes.

Sexual assault survivor and UC Berkeley student Sofie Karasek, whom AB 1433 author Assemblyman Mike Gatto consulted in drafting the bill, put it this way:

“I figured it would be much easier and less stressful to report to the school as opposed to trying to go to trial, especially since I was an out-of-state freshman . . . I wasn’t interested in going through a long, ardorous [sic] process with police, who I thought probably wouldn’t believe what I was saying and wouldn’t put their full effort into my case.”

Karasek, according to Newsweek, joined other UC Berkeley students in a 2013 federal lawsuit against the University for failing to provide a timely and proper response to sexual assault allegations. AB 1433 was inspired by federal complaints against Occidental college involving more than 50 student and faculty members for violating federal law, by allegedly failing to disclose assault claims and discouraging women from reporting.

Agreements with police

In California, many colleges have established campus police forces with the primary authority for providing police, security, or investigative services on their campuses. Existing law requires written agreements with the city or county law enforcement agency responsible for policing the community where the campus is located.

AB 1433 does not change this, but it does require that local police be kept “in the loop” as soon as campus police receive crime reports. Reporting directly to the police will increase transparency and public accountability, according to Gatto as cited in the Assembly Floor Analysis of AB 1433:

“The bill’s author [Gatto] indicates that law enforcement agencies have expressed concern that they are not completely aware of crime trends in their jurisdictions because some university agreements do not require campus security to pass information along to local law enforcement . . . The author believes this bill is necessary to ensure that local law enforcement agencies are aware of crime trends, by ensuring campuses pass along reports.”

Gatto also “contends this bill could result in a closer working relationship between campuses and local police and sheriffs’ departments, which will result in more thorough investigations, better outcomes for victims, and safer communities.”

Note: Similar bills are pending in New Jersey. However, lawmakers and advocates for greater victim privacy oppose the proposed laws as written. We will keep you posted on further developments.

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