LAWS AROUND ACCESSIBILITY YOUR LEGAL QUESTIONS ANSWERED Office

LAWS AROUND ACCESSIBILITY: YOUR LEGAL QUESTIONS ANSWERED Office of the General Counsel October, 2017 1

The Law and its Application • What laws address technology accessibility? • The Department of Justice (“DOJ”), Department of Education (“DOE”) and the Office of Civil Rights (“OCR”) rely on Title II of the ADA and Section 504 and their regulations, and DOJ/OCR technical guidance to address technology accessibility. Specifically, the language in Title II which states that “communications” with persons with disabilities must be “as effective as communications with others” has been interpreted to apply to web content and emerging technologies. • In Massachusetts, the executive agencies of the Commonwealth are required to comply with the Commonwealth’s “Enterprise IT Accessibility Standards” and “Enterprise Web accessibility standards. ” • Who enforces the law? • The DOJ in conjunction with OCR enforces Titles II of the ADA, and Section 504 of the Rehabilitation Act of 1973. • Chapter 151 B of Massachusetts is enforced by the Massachusetts Attorney General and administrative agencies like the Massachusetts Commission Against Discrimination. 2

The Law and its Application: The ADA and Title II • The Americans with Disabilities Act of 1990 (ADA) is a federal law prohibiting discrimination on the basis of disability. Title II of the ADA applies only to public institutions. The ADA states that: • “(1)(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity; ” • Under the ADA, the University may NOT: • “(b)(1)(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; • (b)(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; • (b)(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others; ” 3

The Law and its Application: The ADA and Title II continued • In addition, Title II requires public entities to take steps to ensure that “communications” “with applicants, participants, members of the public and companions” are “as effective as communications with others. ” And, to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. ” • To be “effective” the auxiliary aids and services must be provided “in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. ” • OCR has interpreted “effective communication” to be comprised of three components: (1) the timeliness of delivery, (2) the accuracy of the translation, and (3) provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability. 4

The Law and its Application: Section 504, DCL • Section 504 of the Rehabilitation Act of 1973 (“Section 504”), is a federal law, applicable to entities that receive Federal financial assistance and provides that: • “No otherwise qualified individual with a disability. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity. . ” • DOE through the DOJ and OCR has issued “technical guidance” in the form of “Dear Colleague Letters” (“DCL”). DCLs “express the position” of the DOJ and OCR. • The June 29, 2010 DCL states: “the general requirements of Section 504 and the ADA reach equipment and technological devices when they are used by public entities or places of public accommodation as part of their programs, services, activities, goods, advantages, privileges, or accommodations. ” 5

The Law and its Application: DCL • The June 2010 DCL was issued at the time the Kindle Readers were made available to students in the classroom. DOJ and OCR found that the Kindle Readers were not accessible to the blind or individuals with low vision. The DCL stated that: • “It is unacceptable for universities to use emerging technology without insisting that this technology be accessible to all students. ” students with disabilities must be “provided an equally effective accommodation or reasonable modification that allows those students to receive all the educational benefits of the technology. ” 6

The Law and its Application: 1997 OCR Resolution Letter • In the 1997 OCR Resolution Letter with California State University, OCR explained that “effective” communications are relevant when making purchases and designing resources. OCR stated: • “when making purchases and when designing its resources, a public entity is expected to take into account its legal obligation to provide communication to persons with disabilities that is "as effective as" communication provided to nondisabled persons. At a minimum, a public entity has a duty to solve barriers to information access that the public entity's purchasing choices create, particularly with regard to materials that with minimal thought and cost may be acquired in a manner facilitating provision in alternative formats. When a public institution selects software programs and/or hardware equipment that are not adaptable for access by persons with disabilities, the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection. ” 7

The Law and its Application: Dear Colleague Letter • The DOE also issued the May 26, 2011, “Frequently Asked Questions About the June 29, 2010 Dear Colleague Letter. ” In this document the DOE stated: The principles of Federal disability discrimination law is “the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment. The purpose of the DCL is to remind everyone that equal access for students with disabilities is the law and must be considered as new technology is integrated into the educational environment. ” 8

The Law and its Application: Section 508 • Section 508 of the Rehabilitation Act expressly applies to federal agencies’ electronic and information technologies, and its regulations require federal agencies to “develop, procure, maintain, or use” only accessible electronic and information technologies. Although Section 508 is not applicable to state entities, OCR points to Section 508 web accessibility standards in providing guidance for ADA compliance with regard to state and local government websites. The Commonwealth’s Enterprise IT Accessibility Standards and Enterprise Web Accessibility standards were both developed to ensure that all Massachusetts agency web pages are accessible for all users, are “generally” based upon Section 508 and web content accessibility guidelines developed by the World Wide Web Consortium. 9

The Law and its Application: State Law State law. • The Commonwealth has established standards which specify the “minimum” accessibility standards that must be implemented and maintained with respect to an “information technology solution. ” The “Enterprise IT Accessibility Standards” and “Enterprise Web accessibility standards” are based upon Section 508. “Information technology solutions” includes computer-based information systems, but not: • • Peripheral devices (e. g. fax machines, printers or photocopiers); Systems software that manages and controls computer hardware; Firmware; or Any software or hardware associated with a system’s back-end and inaccessible to end users (e. g. servers, operating system software). 10

The Law and its Application: State Law continued State law. • The Enterprise IT Accessibility Standards” and “Enterprise Web accessibility standards” apply to executive department agencies and their contractors. The University is not an agency within the executive department, and therefore, the standards are not applicable to the University. Notwithstanding, the Commonwealth “strongly” encourages all public entities to address accessibility issues. • Massachusetts General Laws chapter 151 B prohibits an employer from discriminating against qualified individuals with a disability in employment. An employer must provide a reasonable accommodation to an employee with a disability to ensure equal opportunity for an individual with a disability to (1) apply for and test for a job, (2) perform essential job functions, and (3) receive the same benefits and privileges as other employees. 11

The Law and its Application: Equal Access • Public entities are not required to take any action that would result in a “fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. ” If an action would result in such an alteration or burden, the public entity is required to “take any other action” that would “ensure that individuals with disabilities receive the benefits or services provided by the public entity. ” • However, ALL college and university “programs or activities—whether they be ‘brick and mortar’, ‘on-line, ’ or other ‘virtual’ context, ” must comply with applicable federal disability discrimination laws. • The consistent obligation throughout the regulations and technical guidance is: “EQUAL ACCESS” AND “EQUALLY EFFECTIVE” 12

The Law and its Application: Web DOJ Regulations • Where are the DOJ regulations outlining the technical requirements for web accessibility? • The DOJ issued an Advance Notice of Proposed Rulemaking to revise Title II of the ADA in order to establish technical requirements for the accessibility of services, programs, or activities of offered by State and local governments to the public via the Web. The Trump administration has moved the DOJ’s Title II regulations on web accessibility for state and local governments and public accommodations to the “inactive” list. 13

Case Law – National Association of the Deaf and Harvard/MIT Massachusetts Institute of Technology and Harvard University, Title III, Section 504. • National Association of the Deaf (NAD) filed complaints against MIT and Harvard alleging violations of Section 504 and Title III of the ADA for not providing equal access to audio and audiovisual content, such as lectures, podcasts and open online courses by not providing captioning or unintelligible captioning, thereby making the online content inaccessible for individuals who are deaf or hard of hearing. This case is still pending. Both Harvard and MIT filed motions to dismiss which were denied. The crux of the motion to discuss by Harvard and MIT is that the allegations of the complaint do not allege a claim under Section 504 or Title III. • Specifically, the allegation that Section 504 applies to a university’s online video content to the public. • Harvard argued that the plaintiffs cannot base their complaint on the general prohibitions against discrimination contained in the DOE regulations. The court reasoned that “online content may not be specifically mentioned in the regulation, but neither is it specifically excluded. ” Further, the “DOE’s interpretation of its regulation supports the requirements of meaningful access with respect to aids, benefits, and services offered online. Thus, while not directly on point, the DCL and the FAQ nevertheless affirm ’key principles of federal disability discrimination law: the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment, ’ in the context of the use of emerging technologies. ” 14

Case Law – National Association of the Deaf and Harvard/MIT continued Massachusetts Institute of Technology and Harvard University, Title III, Section 504 – CONTINUED • The Court denied Harvard’s motion to dismiss, finding: • “Plaintiff’s allegations that much of Harvard’s online video content is inaccessible to millions of deaf and hard of hearing individuals, and their identification of captioning as a reasonable accommodation that would afford them the meaningful access millions of non-hearing impaired individuals already enjoy, are sufficient to state a claim under section 504. ” • This means that the plaintiff’s complaint will go forward on this issue [and the other issues raised in the complaint. ] 15

OCR Consent Decree: UC Berkeley University of California, Berkeley, Title II of the ADA • A complaint was filed with OCR alleging that the University’s “free, publically available online content” was “inaccessible to individuals who are deaf or hard of hearing. ” OCR investigated the accessibility of the University’s free audio and video content available to the public on the university’s You. Tube channel, i. Tunes. U platform, and open online courses (MOOCs), collectively the University’s “on-line content. ” The DOJ found that “approximately half the [UC Berkeley You. Tube] videos did not provide audio description or any other alternative format for the visual information (graphs, charts, animations, or items on the chalkboard) contained in the videos. ” • The University was found in violation of Title II and required to do the following: • Develop a system to monitor compliance with the technical standards adopted in the University of California’s Information Technology Accessibility Policy, WCAG 2. 0 AA. • Develop and implement procedures to ensure that courses on UC Berkeley. X conform to the WCAG 2. 0 AA technical standards to the extent necessary so that individuals with vision, hearing and manual disabilities can acquire the same information, engage in the same interactions, and enjoy the same services as individuals without disabilities with substantially equivalent ease of use. 16

OCR Consent Decree: UC Berkeley, continued University of California, Berkeley, Title II of the ADA • Develop and implement procedures to ensure that UC Berkeley content on the UC Berkeley You. Tube channel and i. Tunes. U platform conforms to the WCAG 2. 0 AA technical standards to the extent necessary so that individuals with vision, hearing, and manual disabilities can acquire the same information, engage in the same interactions, and enjoy the same services as individuals without disabilities with substantially equivalent ease of use. • Develop mechanisms and implement procedures for UC Berkeley to solicit, receive and respond to feedback regarding any barriers to access to the online content on UC Berkeley. X, UC Berkeley’s You. Tube channels or i. Tunes. U platform, as well as feedback on how to improve the accessibility of that content. • Pay compensatory damages to aggrieved individuals for injuries caused by UC Berkeley’s failure to comply with Title II. 17

Case Law – Comparing Title III cases and private businesses Title III of the ADA and how it applies to private businesses: • Winn Dixie – blind customer who regularly shopped at Winn-Dixie grocery stores. He tried to visit their website and found it inaccessible, federal court in Florida agreed that such inaccessibility violated the customer’s rights under the ADA. A business with a commercial website must provide an accessible website to all customers, especially where the website is integrated with their physical stores (coupons, prescription refills, etc. ). • Five Guys – NY court held that websites are subject to the ADA, regardless if whether the goods and services are offered online and/or in physical locations; and courts do not need agency regulations to set a standard for website accessibility in order to make a determination as to whether a website violates the ADA. (Harvard and MIT cases made this point as well when they refused to stay the proceedings pending federal regulations). • Blick Art Supplies – NY court held that a blind plaintiff had the right to access Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations and privileges that Blick’s website provides to the general public. 18

Discussion: Your Questions, Answered • • • Will audio descriptions be required on all public facing media after the ICT refresh? Are there regulations in place that require faculty to provide their text information in advance of the course? How about syllabus? Media? Is there a time limit for how long it takes to implement “reasonable accommodations” for course materials behind a password wall? With the section 508 refresh, what are the requirements related to audio descriptions for video in courses behind a password wall? How liable are we as a university system when we’re using third party apps, that are outward facing that we do not host, but we have links going to their sites from our website? • • • For third party groups that we as a university system already have long standing relationships with, what do we have as a means of pushing for them to become compliant if they’re found to not be. Don’t know if this is appropriate for this session, but we need to understand what the university’s stance is on to what level an application/tool/function needs to be compliant prior to go live? Is it 100%? Is it 80% with a plan to complete the work needed within _____ timeframe? For the items covered, it would be helpful to differentiate between what we must do vs. should do. What qualifies for “reasonable”? 19

Other Questions? Contact us: Dawna Mc. Intyre dmcintyre@umassp. edu Karen Laisne klaisne@umassp. edu (774) 455 -7300 20

References and Resources • NACUA, 57 TH ANNUAL CONFERENCE, ACCESSIBILITY AND YOUR CAMPUS: CHALLENGES AND SOLUTIONS FOR A DIGITAL AGE, NACUANOTES, “BUILDING AN ACCESSIBLE DIGITAL WORLD: THE OBLIGATIONS TO MAKE ELECTRONIC RESOURCES ACCESSIBLE, BYL UCY FRANCE, UNIVERSITY OF MONTANA AND HANNAH ROSS, PRINCETON UNIVERSITY • NACUA, LEGAL AND REGULATORY DEVELOPMENTS IN DIGITAL ACCESSIBILITY, (INCLUDING THEP OWERPOINT PRESENTATION) BY TERESA L. JAKUBOWSKI, BARNES & THORNBURTG, LLP, JUNE 26 -27, 2016 • US DEPARTMENT OF JUSTICE/US DEPARTMENT OF EDUCATION, OFFICE OF CIVIL RIGHTS, JUNE 29, 2010, DEAR COLLEAGUE LETTER • ELECTRONIC BOOK READER DEAR COLLEAGUE LETTER: QUESTIONS AND ANSWERS ABOUT THE LAW, THE TECHNOLOGY, AND THE POPULATION AFFECTED • US DEPARTMENT OF EDUCATION, OFFICE FOR CIVIL RIGHTS, FREQUENTLY ASKED QUESTIONS ABOUT THE JUNE 29, 2010 DEAR COLLEAGUE LETTER, MAY 26, 2011 • US DEPARTMENT OF JUSTICE, US DEPARTMENT FOR CIVIL RIGHTS, NOVEMBER 12, 2014, DCL AND ATTACHMENT, “ FREQUENTLY ASKED QUESTIONS ON EFFECTIVE COMMUNICATION FOR STUDENTS WITH HEARING, VISION, OR SPEECH DISABILITIES IN PUBLIC ELEMENTARY AND SECONDARY SCHOOLS” • K. M. v. Tustin Unified School District, 725 F. 3 d 1088 (9 th Cir. 2013), cert. denied, 134, S. Ct. 1493 (2014) • US Department of Justice, Civil Rights Division, “Effective Communication, ” January, 2014, • California State University, Los Angeles, OCR Resolution Letter, Case No. OCR-09 -97 -2002 • Higher Ed Accessibility Lawsuits, Complaints, and Settlements, University of Minnesota, Information Technology Systems and Services • Web Accessibility in Higher Education, November 12, 2012 by Jonathan, NCDAE 21