Transcript The ADA’s Hidden Barrier Removal Mandate:

The ADA’s Hidden Barrier
Removal Mandate:
Access to Information
Jeanne M. Kincaid
Drummond Woodsum
100 International Drive, Suite 340
Portsmouth, NH 03801
603/433-3317
[email protected]
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Three Statutes To Consider
• Rehabilitation Act (colleges/universities that
receive federal financial assistance)
• ADA – Title II (public colleges/universities)
• ADA – Title III (private colleges/universities)
▫ U.S. Department of Education (OCR) has
jurisdiction under the Rehabilitation Act and Title
II of the ADA
▫ U.S. Department of Justice (DOJ) has
enforcement powers under both statutes and Title
III original jurisdiction
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Rehabilitation Act Regulations
• Adopted in 1977, do not address internet or
technology access per se
• In the past, personal assistance to enable access was
acceptable:
▫ Examples:
 OCR permitted a public university to provide personal
assistance to access the internet as independent use was
not feasible
 San Jose State University (OCR 1996)
▫ In a private institution, provision of a reader to a
student accessing a library computer was sufficient
 No specific equipment or devices required
 Notre Dame College (OCR 2000)
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ADA Guidance
• Initially, DOJ took the position that the ADA did
not necessarily require independent access to
the web if a covered entity provided alternative
methods of communication
 Letter to Harkin (DOJ 1996)
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Those Days Appear to be Gone . . .
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E-Reader Litigation
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E-Reader Litigation
• Amazon.com entered into agreements with
certain postsecondary institutions to participate
in pilot program to test student interest in
buying and using the Kindle E-reader in the
classroom with books downloaded onto the
Kindle DX
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E-Reader Legal Challenges
• National Federation of the Blind (NFB) and
American Council of the Blind (ACB) filed
complaints with OCR under the Rehabilitation
Act and the ADA against nine (9) state and
private colleges/universities
• NFB and ACB filed litigation against Arizona
State University
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Most Campuses Agreed
• Not to use E-reading devices as an instructional tool
▫ Not “require, purchase or incorporate in its
curriculum” unless “fully accessible to individuals with
visual impairments” or, alternatively
• Provide an e-reader that allows students to “access
and acquire the same information, engage in the
same interactions, and enjoy the same services . . .
with substantially equivalent ease of use”
 Princeton University Settlement Agreement (DOJ 2010)
▫ http://www.ada.gov/princeton.htm
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Arizona State University Litigation
• Basic premise: that accommodations provided
by the university’s disability services office were
not as effective, accurate or timely
• Settlement agreement with DOJ following
litigation was less onerous than the other
agreements
▫ Only if commercially available, at a reasonable
cost and meets course requirements
 http://www.ada.gov/arizona_state_university.htm
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Permissible?
• Some faculty are developing instructional
programs requiring students to use the iPad
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The Good News Is
• Some are hailing the iPad as being the most
accessible mobile device on the market
▫ http://www.tuaw.com/2010/06/01/the-ipadcould-be-the-best-mobile-accessibility-device-onthe-ma/
• But are your professors considering the
accessibility of the devices at the instructional
design phase?
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Query
• How can an instructor assign textbooks period
under this interpretation of the
ADA/Rehabilitation Act?
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Law School Admissions Council
• NFB has pending litigation against LSAC and
four (4) law schools in California state court and
pending DOJ complaints under the ADA against
nine (9) law schools alleging:
▫ The application process is not fully accessible to
individuals with visual impairments
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Law School Admissions Council
• Uses a centralized internet-based application
process with inaccessible features
▫ Examples:
 Sample tests and practice materials
 Each law school has its own application process
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The Connection
• NFB alleges that the law schools are
discriminating due to LSAC’s discriminatory
practices
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DOJ Settlement Agreements
• In September 2010, McNeese State University
agreed, under Title II of the ADA, to make all its
new and modified web pages accessible within
three months
• To undertake to make accessible all of its
existing web pages
 http://www.ada.gov/mcneese.htm
 The agreement is misleading as it is not clear if DOJ
intended such a broad sweep or to limit the
requirement to emergency planning
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Penn State University
• On November 12, 2010, NFB filed an OCR
complaint alleging violations of the
Rehabilitation Act and Title II of the ADA on
behalf of students/faculty with limited vision or
who are print disabled
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Penn State University
• Examples of alleged inaccessible web design
features:
▫ University web pages
 Including the Office of Disability Services
 On line library catalog
 Lack of department guidelines to instruct faculty on how
to make web pages accessible
 Course descriptions
 Elion – website used to register for courses, access
transcripts, etc.
▫ ANGEL course management software (allowing
interfacing between and among students/instructors)
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Penn State University
• Other alleged inaccessible features:
▫ Touch screen at library’s self check out
▫ Clickers used in the classroom to take attendance
and to engage students
▫ ATMS and bank website
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Penn State University
• Instructors with visual impairments encounter
same barriers plus
▫ “Smart” podium difficulties including inaccessible
touch screen
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The Latest NFB Filing
• NFB ha filed a complaint with the DOJ against
the NYU, and Northwestern University for using
Google Apps Education which the NFB alleges
“contains significant accessibility barriers” for
blind individuals who use screen reading
technology that convert text into speech or
Braille
▫ Again, NFB is focusing on both employees and
students
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And Get Ready
• NFB filed suit against an airline terminal
alleging use of inaccessible kiosks
▫ Many campuses use kiosks
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The Newly Revised ADA Regulations
• Add a provision that requires “independence” in
use of auxiliary aids and services
▫ 2 8 C.F.R. § 35.160(b)
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What’s Coming?
• On July 26, 2010, DOJ issued notice of intent to
publish proposed regulations governing web
access under Titles II and III of the ADA
▫ http://www.ada.gov/anprm2010/web%20anprm
_2010.htm
• DOJ also issued notice of its intent to publish
proposed regulations governing movie
captioning and video description
▫ http://www.ada.gov/anprm2010/movie_captions
_anprm_2010.htm
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The Upshot
• The use of personal assistance as a means of
providing access to information is under serious
challenge
• It appears that the notion of “equivalent” access
is undergoing serious reconsideration
▫ E.g., “similar ease of use”
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