- By Stacy Haney, Pakapon Phinyowattanachip
- January 1st, 2017
The U.S. Department of
Education’s Office for Civil Rights
(“OCR”) has reportedly opened as
many as 700 recent nationwide complaint investigations
into whether local school districts’
and state departments of education’s websites
are accessible to individuals with disabilities.
Disability advocates are filing complaints with
OCR (and federal courts) alleging that both local
school districts and state departments of education
are discriminating against people with visual
impairments and other disabilities by failing to
take active steps to make websites, cloud-based
applications, videos, documents and printed
materials accessible to people with disabilities.
A recent example of these investigations arises in connection
with an investigation conducted against the Michigan Department
of Education (“MDE”). OCR, asserting jurisdiction under Section
504 of the Rehabilitation Act and Title II of the Americans with
Disabilities Act, found that that the videos and PDFs on MDE’s
websites were not accessible to individuals with vision impairments.
The videos were captioned, but the buttons on the videos were not
properly labeled, rendering the website incompatible with a screen
reader program to assist vision impaired individuals.
Moreover, the PDFs reviewed by OCR would not allow a person
using screen-reading software to identify the document. According
to OCR, screen readers must be able to copy or extract the document’s
text to convert it to speech. OCR also noted that the website did not
provide a way for people to report problems accessing information.
While MDE resolved the complaint by entering into a voluntary
resolution agreement with OCR, that agreement will have timeconsuming,
potentially costly and far-reaching implications. For
example, MDE will have to caption (i.e., text representation of the
audio in the video) up to 800 videos, and either convert up to 8,000
documents or delete them from the agency’s website.
A recently publicized example involving a local school district
arises in connection with an investigation conducted against the
Virginia Beach City Public Schools. OCR received a complaint that
the school district’s webpages were inaccessible for individuals
with visual impairments. According to OCR, school districts must
ensure that individuals with disabilities are afforded an equal opportunit
to participate in online programs, services and activities.
After conducting an assessment of four webpages identified in
the complaint, OCR identified the following compliance concerns:
images were missing alternative text; portions of the website could
not be accessed without a mouse; lack of a sufficient contrast
between text and background; and inability of keyboard users to
pause, stop or otherwise control videos or slideshows.
To resolve these concerns, the district entered into a resolution
agreement with OCR. As part of the resolution agreement, the district
agreed to, among other things, undertake an assessment of its
entire website to identify and correct any accessibility problems,
develop and implement a website accessibility policy, and provide
training to relevant staff.
The most troubling aspect of these cases is that OCR appears to
be conducting investigations without any clear standards. Indeed,
there are no laws or regulations that directly deal with website
accessibility issues. Moreover, OCR itself has never issued any
guidance documents on what exactly school districts must do for
their websites to comply with Section 504 or Title II.
The widely accepted industry standard for website accessibility
is the Web Content Accessibility Guidelines (“WCAG”) developed
by the Web Accessibility Initiative. These guidelines, and in
particular the WCAG version 2.0 (Level AA), help website designers
make webpages accessible to users with disabilities. In many cases,
however, OCR is attempting to hold school districts to a standard
beyond what is required under WCAG 2.0 (Level AA). To address
the issues impacting individuals who have a vision impairment
or have limited mobility, OCR takes the position that webpages, in
addition to meeting the guidelines under WCAG 2.0 (Level AA),
must also meet Web Accessibility Initiative Accessible Rich Internet
Applications Suite (WAI-ARIA) 1.0 techniques for web content. To
address the issues, OCR takes the position that videos posted on
webpages must be closed-captioned.
In light of OCR’s aggressive stance on the issue of website accessibility,
school districts would be well served to, at a minimum, bring
their websites into compliance with WCAG version 2.0 (Level AA).
The free web accessibility evaluation tool, available at wave.webaim.org, is a good starting point to determine whether websites
are in compliance with WCAG version 2.0 (Level AA).
This article originally appeared in the January 2017 issue of School Planning & Management.
Stacy Haney, a partner at Reed Smith LLP, focuses her practice primarily on school law and the representation of public school boards throughout Virginia. She advises school boards and school administrators on a variety of matters including civil rights, personnel and student matters, procurement, board governance and constitutional issues.
Pakapon (Pak) Phinyowattanachip, an associate at Reed Smith LLP, focuses on the representation of educational institutions, both at the K-12 and higher education level. He routinely advises clients on First Amendment issues, Family Educational Rights and Privacy Act (FERPA) compliance, privacy issues, student discipline, and personnel matters as well as compliance with various civil rights laws.