UDL On Campus: Legal Obligations for Accessibility

What

What is this resource about? This resource
discusses the legal obligations of
postsecondary institutions with respect to the accessibility of
digital learning materials and provides Policy Guidance for trying to ensure that
digital content, online delivery systems, and technologies are
accessible for students with disabilities.

Why

Why is this important for higher education? Educators
and institutions alike have a legal responsibility to provide
accessible platforms and materials. Additionally, accessible
materials provide opportunities to ensure that all students are able
to participate in and benefit from learning opportunities.

Background Information

In recent years, the number of students with disabilities
enrolled in institutions of higher education has been growing. Among
postsecondary students with disabilities, more than 50% are enrolled
in community colleges.1
During this time, postsecondary institutions have increasingly begun
to embrace the flexibility of online learning and digital learning
materials (such as textbooks, notes, slides, and graphs) in
electronic format. This shift toward increased digitization holds
great promise for students who may struggle with traditional,
print-based materials. This shift, however, also brings challenges
as digital materials and technologies are not always designed to be
accessible from the start.2

Download a short overview about accessibility in
higher education.

Relevance

Given the potential barriers to accessibility, postsecondary
institutions need to be careful in selecting the digital learning
materials and technologies they use. Over the past several years,
there have been increased numbers of complaints filed with the
Office for Civil Rights (OCR) of the U.S. Department of Education
and the Civil Rights Division (CRD) of the U.S. Department of
Justice regarding the accessibility of digital content, online
delivery systems, and technologies. It is therefore important for
postsecondary institutions to be aware of their legal obligations in
order to ensure that all of their students are able to participate
in and benefit from these new learning opportunities.

Core Information

Legal Obligations Under Section 504 and the ADA

Overview of Disability Civil Rights Laws

Two disability-related civil rights laws govern the
obligations of postsecondary institutions with respect to the
accessibility of digital learning materials and online
courses—Section 504 of the Rehabilitation Act of 1973 (Section
504) and the Americans with Disabilities Act (ADA). Section 504
prohibits discrimination on the basis of disability in all
postsecondary institutions that receive federal funding,
including schools that accept federal financial aid.3 Title II of the ADA applies to
all public colleges and universities, regardless of whether they
receive federal funding;4 Title III of the ADA applies to
private colleges and universities.5

Disability-Related Civil Rights Laws

Section 504

Prohibits discrimination on the basis of
disability in programs and activities that receive
federal funding.

29 U.S.C § 794(a)

Title II of the ADA

Prohibits discrimination on the basis of
disability in all public entities, including public
colleges and universities, regardless of whether
they receive federal funding.

42 U.S.C. § 12132

Title III of the ADA

Prohibits discrimination on the basis of
disability in places of public accommodation,
including private postsecondary institutions.

42 U.S.C. §§ 12181(7)(J), 12182(a)

Protected Students

In order to be protected under Section 504, students must be
considered “qualified”—i.e., they must be able to meet all
academic and/or technical standards for admission or
participation in the educational program or activity.6 In addition, they must have a
“disability,” which means that they—

have a physical or mental impairment that substantially
limits one or more major life activities,
have a record of such an impairment, or
are regarded as having such an impairment.7

“Major life activities” include seeing, hearing, learning,
reading, concentrating, and thinking.8

Legal Obligations

Prohibited Actions

Section 504 regulations prohibit postsecondary institutions
from engaging in certain discriminatory actions that interfere
with the provision of comparable aids, benefits, and
services.9 Aids,
benefits, and services must be “equally
effective”—i.e., they must provide students with
disabilities “an equal opportunity
to obtain the same result, gain the same benefit, or reach the
same level of achievement.”10 In addition, the regulations
prohibit postsecondary institutions from using discriminatory
“criteria and methods of administration”11—i.e., discriminatory
“written or formal policies” and “actual practices and
procedures.”12

Provision of “Accommodations”

Under Section 504 regulations, postsecondary institutions
are also required to provide “academic adjustments” (e.g.,
changes in length of time for degree completion or
substitution or adaption of courses)13 and “auxiliary aids” (e.g.,
taped texts) to qualified students with disabilities in order
to afford these students an equal opportunity to participate
in the school’s program(s).14 Regulations for Title II of
the ADA further state that “auxiliary aids and services” must
be provided in accessible formats in
a timely manner.15
Auxiliary aids and services include supports for individuals
who are deaf or hard of hearing such as real-time
computer-aided transcription services; assistive listening
devices; open and closed captioning, including real-time
captioning; accessible electronic and information technology;
as well as supports for individuals who are blind or have low
vision such as Braille materials and displays; screen reader
software; magnification software; optical readers; and large
print materials.16

In order to receive an academic adjustment or auxiliary aid
and service—commonly referred to as accommodations—a student
must self-identify that he/she has a disability. Postsecondary
institutions are not required to provide an accommodation that
would change essential academic requirements;17 would fundamentally alter
the nature of a service, program or activity; or would result
in an undue financial or administrative burden.18

Under ADA’s Title II regulations, institutions are also
required to take appropriate steps to ensure that
communications with individuals with disabilities are
as effective as communications with
others.19 The term
“communications” refers to the transfer of information,
including the verbal presentation of a lecture, printed text
of a book, and resources of the Internet.20 In evaluating the meaning of
“as effective as,” OCR has focused on three components of
effectiveness:

Timeliness of delivery,
Accuracy of translation, and
Provision in a manner and medium appropriate to the
significance of the message and the abilities of the
individual.21

ADA’s Title II requirements concerning auxiliary aids and
services and effective communications have been the focus of a
number of OCR administrative decisions pertaining to accessible
instructional materials at the higher education level.22

must have content

Transcript

[White text appears on magenta background:
“UDL On Campus.” The colors are inverted and a wave of orange
slides over the “UDL On Campus” magenta text. Grey text
appears below: “Universal Design for Learning in Higher
Education.”]

FEMALE VOICE: UDL On Campus: Universal
Design for Learning in Higher Education.

[The title appears on screen.]

FEMALE VOICE: The Importance of Accessibility: A
Faculty’s Perspective

[A man is
seated for an interview. His name appears on screen: Dr.
Richard Jackson: Professor, Boston College; Research
Scientist, CAST.]

DR. JACKSON: My name is Richard
Jackson. I’ve been a professor at Boston College since 1979,
so that’s over 30 years.

[The
screen cuts to a montage of scenes from a college campus such
as students walking out of a Student Union building and
through a book store.]

DR. JACKSON: It’s very important
for universities to have a basic understanding of
accessibility.

[Dr. Jackson appears
on screen again briefly. The screen then cuts to various shots
of college student life: a student works at a desk with a
faculty member, a mathematics instructor lectures in front of
a chalkboard, a basketball team and cheerleaders at practice,
a performing arts production, students socializing between
classes, and students at work in the library.]

DR.
JACKSON: When a student is admitted to a university, it is
important for a university to make all resources available to
students on an equal basis. This, of course, includes all
academic resources, but it also includes whatever the
university advertises as a value-added reason for people to
come to campus and enjoy the benefits of a high quality
education.

[The screen transitions
to a panning view of a city street, then cuts to a female
student utilizing portable assistive technology.]

DR.
JACKSON: Well I think today that professors need to think much
more flexibly about how to get the very best work from their
students, particularly students with disabilities.

[Dr. Jackson appears on screen. Next, an
animation shows a stream of text flowing from a Braille book,
to headphones labeled “Audio Formats,” to a book labeled
“Large Print,” to a computer labeled “Digital Formats.” The
frame cuts to a montage of people’s fingers reading Braille in
books and on math worksheets.]

DR. JACKSON: Initially,
it’s very important that professors submit their course
materials when the course is announced for registration. This
gives plenty of time for students who need alternatives to
textbooks or accessible instructional materials to be able to
obtain these materials. It’s very important that students have
access to instructional materials at the same time that
non-disabled students have that level of access.

[A white background appears with the
following credits:

A Production by
CAST

Interviewer Rhianon Gutierrez

Editing Ge Vue

Special Thanks
Richard Jackson
Joanne Karger
Valerie Hendricks
National Center on
Accessible Instructional Materials at CAST, Inc.

Developed as part of the Open
Professionals Educational Network (Logos for OPEN, CAST, and
Creative Commons)

This video
features additional media from:
Bristol Community College

Source: http://www.youtube.com/
Creative Commons Attribution (reuse allowed)
Highline
Community College
Source: http://www.youtube.com/
Creative Commons Attribution (reuse allowed)
“Juna Gjata
Video Series,”
Source: aem.cast.org Used with
permission from NCAIM at CAST, Inc.

(Logos for Creative Commons CC, BY, and
SA) This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0) license:
http://creativecommons.org/licenses/by-sa/4.0.

UDL On Campus: Universal Design for
Learning in Higher Education]

Policy Guidance by the Departments of Justice and
Education

In 2010, in response to a complaint filed by the National
Federation of the Blind (NFB), the Department of Justice, CRD,
entered into a settlement with colleges and universities that had
been using the Kindle DX e-reader as part of a pilot study with
Amazon. The Kindle DX was inaccessible to blind students because
the menu and control features of the device did not include
text-to-speech functionality.23

A subsequent “Dear Colleague Letter” (DCL) to college and
university presidents, issued jointly by CRD and OCR, stated that
requiring the use of emerging technology that is inaccessible to
students with disabilities constitutes discrimination under
Section 504 and the ADA, unless these students are provided
accommodations or modifications that enable them to receive all
the educational benefits afforded by the technology in an
equally effective and equally integrated
manner.24

The following year, OCR issued a Frequently Asked Questions
(FAQ) document that provided a “functional definition of
accessibility.” According to this definition, students with
disabilities must be provided the opportunity to—

acquire the same information
engage in the same interactions, and
enjoy the same services as students without
disabilities
with “substantially equivalent ease of use.”25

Graphic of the OCR Functional Definition of Accessibility

The FAQ also clarified that the legal principles outlined in
the DCL apply to all faculty and staff of an institution.
Moreover, these principles are applicable in the context of online
programs that are provided directly by the school or through
contractual or other arrangements.

Standards for Accessibility

WCAG 2.0

Postsecondary institutions can find guidelines for web
accessibility in the Web Content Accessibility Guidelines
(WCAG) developed by the Web Accessibility Initiative (WAI) of
the World Wide Web Consortium (W3C). These voluntary
international guidelines, the most recent version of which is
titled “WCAG 2.0,” consist of
12 broad guidelines categorized under four principles of
accessibility:

WCAG 2.0 Principles and Examples of Guidelines

Perceivable

Information and user interface components must be
presentable to users in ways they can perceive.

Provide text alternatives for any non-text
content
Make it easier for users to see and hear content
including separating foreground from
background.

Operable

User interface components and navigation must be
operable.

Make all functionality available via a
keyboard.
Provide ways to help users navigate, find
content, and determine where they are within
content.

Understandable

Information and the operation of user interface
must be understandable.

Make text content readable and
understandable.
Make web pages appear and operate in predictable
ways.

Robust

Content is robust enough that it can be
interpreted reliably by a wide variety of user
agents, including assistive technologies.

Maximize compatibility with current and future
user agents, including assistive technologies.

The WAI has also developed “success criteria” to evaluate
conformance to each guideline, with three levels of
conformance:

Level A provides for basic accessibility,
Level AA provides for a more comprehensive level of
accessibility, and
Level AAA provides for maximum accessibility.26

While the WCAG 2.0 applies specifically to web content, the
WAI has released guidance on applying
WCAG 2.0 standards to non-web-based information and
communication technology—specifically to non-web-based
documents and software.

Section 508 Standards

Section 508 requires federal departments and agencies to
ensure accessibility of their “electronic and information
technology” to individuals with disabilities unless to do so
would result in an undue burden.27 The U.S. Access Board
creates the technical standards found under Section 508. As of
Spring 2014, the current Section 508 standards are in the
process of being “refreshed” to harmonize with WCAG 2.0.
Although Section 508 applies to federal departments and
agencies, many states have adopted the Section 508 standards
at the state level.

Recent Developments Pertaining to Accessibility

Agreements with Colleges and Universities Regarding
Accessibility

Over the past several years, an increasing number of
complaints have been filed with OCR at the Department of
Education and CRD at the Department of Justice regarding the
accessibility of technology including web sites on college and
university campuses. Many have resulted in voluntary
agreements with the university in question to take actions to
improve their institutional accessibility policies. Additional
resolutions and settlements have occurred as a result of OCR’s
pro-active compliance review process as well as efforts by
disability advocates.

Agreements Involving Postsecondary Institutions

EdX

In April 2015, EdX signed a settlement
agreement to resolve a suit filed by the US
Department of Justice. In the agreement EdX agreed
to:

Ensure all their mobile applications and LMS
comply with WCAG 2.0 AA Accessibility
Guidelines;
Ensure that the CMS enables the creation and
presentation of content that conforms with WCAG 2.0
AA;
Ensure that their mobile application or
platforms do not block or interfere with any
accessibility features in Course Content provided by
Content Providers, including any content published
in accessible formats.

Louisiana Tech
University

In 2013, Louisiana Tech
University entered into an agreement
with the Department of Justice regarding the
accessibility of its technology and instructional
materials. The University agreed to engage in such
actions as the following:

Adopting an accessibility policy;
Providing training for instructors and
administrators on ADA requirements; and
Conducting a review of the accessibility of its
technology including web sites, instructional
materials, and online courses, and other electronic
and information technology for use by students or
prospective students.

The University further agreed, as part of
its accessibility policy, that it would only purchase,
develop, or use technology and instructional materials
that are accessible and that it would generate
procedures for providing equally effective alternate
access for any acquisition of technology that was not
accessible.

Miami University
in Ohio

In April 2014, The U.S.
Department of Justice is sought to join a blind
student’s lawsuit against Miami University in Ohio,
saying “the institution’s website and licensed
software from vendors such as from Turnitin and
Pearson are inaccessible to students with
disabilities”. For more information go to the Inside
Higher Ed article.

Penn State
University

In 2011, Penn State University
and the NFB voluntarily entered into an agreement
to resolve a complaint that the NFB had filed with
OCR. In the agreement, Penn State agreed to such
actions as—

Completing an accessibility audit of its
electronic and information technology and developing
a corrective action strategy based on the audit’s
findings;
Developing an accessibility policy statement and
implementing procedures and conducting accessibility
training;
Developing and instituting improved procurement
procedures; and
Ensuring the accessibility of its library
resources, university web sites, course management
systems, classroom technology, clickers, and bank
ATMs and web sites.

South Carolina
Technical College System

In 2013, the South Carolina
Technical College System entered into a resolution
agreement with OCR regarding the accessibility of
the web sites of the 16 colleges that comprise the
system. The system voluntarily agreed to such actions
as the following:

Send a directive to each college regarding its
responsibility to ensure that students with
disabilities are able to access the information on
its web site with substantially equivalent ease of
use as students without disabilities;
Require annual reporting from each college
regarding its web site accessibility; and
Develop a resource guide with information about
accessibility for each college to make available to
those offering and designing online courses and
those designing and maintaining the colleges’ web
sites.

University of
California, Berkeley Campus

In 2013, the University of
California, Berkeley Campus, entered into a settlement
agreement with Disability Rights
Advocates in which the University agreed to
institute improved policies and procedures regarding
accessible instructional materials, including
procedures for

Providing alternate media in a reasonable and
equitable timeframe,
Posting reading material by faculty and staff in
a space that is accessible to students requiring
alternative accessible media in a reasonable and
equitable timeframe,
Making assistive technology available to
students in computer labs, and
Providing library materials in accessible
alternative formats.

The agreement also included, as an
appendix, guidelines designed to assist the Disabled
Students Program in providing timely and effective
alternative media services.

University of
Montana

In 2013, the University of
Montana entered into a resolution
agreement with OCR based on a complaint alleging
the inaccessibility of the University’s electronic and
information technology, including the following:

Inaccessible class assignments, materials, live
chat, and discussion board functions in the
University’s LMS system (Moodle);
Inaccessible scanned images on web pages and web
sites;
Inaccessible videos in Flash format without
captioning;
Inaccessible library database materials;
and
Inaccessible classroom clickers.

As part of the agreement, the University
agreed to take actions such as developing an
accessibility policy and procedures, developing and
instituting improved procurement procedures,
conducting accessibility training, issuing a
confidential student survey, and completing an
accessibility audit.

Postsecondary Accessible Instructional Materials
Commission

In December 2011, the Advisory Commission on Accessible
Instructional Materials in Postsecondary Education for
Students with Disabilities report, which was convened under
the Higher Education Opportunity Act of 2008, makes
recommendations for addressing some of the challenges
associated with the provision of accessible instructional
materials (AIM) to students with print disabilities at the
postsecondary level. One of the Commission’s recommendations
urged Congress to authorize the Access Board, the entity that
has set the standards for accessibility under Section 508, to
establish uniform accessibility guidelines for accessible
instructional materials.

TEACH Act

Following the recommendations of the AIM Commission, in
2013 Congress introduced the “Technology,
Equality, and Accessibility in College and Higher Education
(TEACH) Act” which would require the Access Board to
develop national guidelines for accessibility of electronic
instructional materials and related information technologies
for blind and other individuals with disabilities.

Recommendations for Postsecondary Institutions to Help
Ensure Accessibility

Given the requirements of postsecondary institutions
regarding accessibility as well as recent policy developments in
this area, there are a few practical steps that can be taken to
help ensure that digital content, online delivery systems, and
technologies are accessible for students with disabilities:

Conduct an internal accessibility review of electronic and
information technology, including web sites, digital content,
online delivery and learning management systems, classroom
technology, and library databases and resources. Involve
students, faculty, and staff in usability testing. Develop a
pro-active plan to fix any problems.
Make accessibility considerations a priority from the
start and incorporate them into the acquisition and
procurement process. Require vendors to submit a product Voluntary Product Accessibility
Template (VPAT) and be adamant about the need for VPAT
accuracy.
Ensure the college or university in question has plans for
providing alternate access for technology that must be
purchased that is inaccessible. Consider developing an Equally Effective Alternate Access
Plan (EEAAP) form.
Provide training for faculty, staff, and students about
accessibility issues. Include information from the UDL On
Campus resource Media &
Materials.
In making decisions about the purchase of new technology
and materials, ask the following questions (developed by OCR):
- What educational opportunities and benefits does the
  school provide through the use of the technology?
- How will the technology provide these opportunities
  and benefits?
- Does the technology exist in a format that is
  accessible to individuals with disabilities?
- If the technology is not accessible, can it be
  modified, or is there a different technological device
  available, so that students with disabilities can obtain
  the educational opportunities and benefits afforded by it
  in a timely, equally effective, and equally integrated
  manner?28

Review

Postsecondary institutions have specific obligations with respect
to the accessibility of their digital learning materials and
technologies for students with disabilities. Recent policy
developments underscore that these accessibility considerations need
to be made a priority. Consequently, as postsecondary institutions
increasingly move toward the digitization of instructional
programming, it is important for practitioners to understand the
underlying legal and policy parameters in order to ensure that all
of their students are able to participate in an equally effective
manner.

Notes

1. See Karger, J. & Lazar, J. (2014). Ensuring that
students with text-related disabilities have access to digital
learning materials: A policy perspective. Perspectives on
Language and Literacy, 40, 33-38.

2. See Van Noy, M., Heidkamp, M., & Kaltz, C.
(2013). How are community colleges serving the needs of older
students with disabilities? Issue Brief of the NTAR
Leadership Center. New Brunswick, NJ: NTAR Leadership Center.
Retrieved from http://www.dol.gov/odep/pdf/CommunityCollegesOlderStudents.pdf.

3. 29 U.S.C § 794(a).

4. 42 U.S.C. § 12132.

5. 42 U.S.C. §§ 12181(7)(J), 12182(a).

6. 34 C.F.R. § 104.3(i)(3).

7. 42 U.S.C. § 12102(1).

8. 42 U.S.C. § 12102(2)(a).

9. 34 C.F.R. § 104.4(b)(1).

10. 34 C.F.R. § 104.4(b)(2) (emphasis added).

11. 34 C.F.R. § 104.4(b)(4).

12. See Illinois State Bd. of Educ., 20 IDELR 687, at
**4-5 (OCR IL 1993).

13. 34 C.F.R. § 104.44(a).

14. 34 C.F.R. § 104.44(d).

15. 28 C.F.R. § 35.160(b)(2).

16. 28 U.S.C. § 35.104.

17. 34 C.F.R. § 104.44(a).

18. 28 C.F.R. § 35.164.

19. 28 C.F.R. § 35.160(a)(1).

20. Letter to: California State Univ., 108 LRP 20251,
at *2 (OCR CA 2003).

21. Letter to: California State Univ., 108 LRP 20251,
at *2 (OCR CA 2003).

22. See, e.g., Univ. of New Mexico, 32 NDLR 50 (OCR NM
2005); Central Missouri State Univ., 29 NDLR 209 (OCR MO
2004); Valdosta State Univ., 16 NDLR 61 (OCR GA 1999);
City College of San Francisco, OCR Case Docket No.
09-97-2145 (January 9, 1998); Los Rios Community College
Dist., 5 NDLR 423 (OCR CA 1994).

23. United States Department of Justice, Civil Rights Division
[CRD] and Department of Education, Office for Civil Rights [OCR].
(2010). Joint “Dear Colleague” Letter: Electronic book
readers. Washington, DC: Author. Retrieved from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html.

24. Id.

25. United States Department of Education, Office for Civil
Rights [OCR]. (2011). Frequently Asked Questions about the
June 29, 2010 Dear Colleague Letter. Washington, DC: Author.
Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html.

26. World Wide Web Consortium, Understanding Conformance.
Retrieved from http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-levels-head.

27. 29 U.S.C. § 794d(1).

28. See OCR (2011), supra note 25.