Website Accessibility: What Every Educational Institution Needs to Know Presented by Jennifer S. Rusie. 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com
Today s Agenda What is website accessibility? Why does it matter? Brief primer on theories of liability How to define accessibility Recent enforcement activity What institutions should be doing now 2
What Is Website Accessibility? Website accessibility is simply the design of a website to permit users with these disabilities to have equal access to the website Deaf or Hard of Hearing Untranscribed audio elements Blind Users (using screenreading software) Cannot access undescribed images Cannot navigate by mouse 3
What Is Website Accessibility? Low Vision Users Color contrast, non-adjustable font or screen size Users with Limited Manual Dexterity Need speech recognition and/or keyboard alternatives Cannot navigate by mouse Epilepsy No flashing content
Why Does It Matter? Places of public accommodation must be accessible to individuals with disabilities Title III of the ADA (private entities) Title II of the ADA (state and local governmental entities) Section 508 of the Rehabilitation Act of 2003 (federal agencies) Section 504 entities that receive federal funding
Does Website Accessibility Apply to Educational Institutions? Yes Educational Institutions are considered to be places of public accommodation DOJ has developed a number of theories providing that the websites of educational institutions must be accessible
Brief Primer on Theories of Liability 42 U.S.C. 12182(a): No individual should be discriminated against on the basis of disability in the full and equal enjoyment of the good, services, [etc.] of any place of public accommodation.... Nexus theory 28 C.F.R. 36.303(c): A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. DOJ s new pet theory: broader, but obligations more vague 7
How Do You Define Accessibility? 2010 ADA Standards for Accessible Design promulgated by DOJ Design requirements for construction and alteration of places of public accommodation Clear standards for brick and mortar facilities
How Do You Define Accessibility? Web Content Accessibility Guidelines (WCAG) of World Wide Web Consortium (W3C) WCAG 1.0 (1999), WCAG 2.0 (2008) Three priority levels: A, AA, AAA Not official, but widely accepted 9
Regulatory Activity No official regulations DOJ ANPRM in 2010 Title II and Title III Flurry of regulatory activity in 2015/2016
Regulatory Activity DOJ to issue NPRM for Title II in July 2017 Title III NPRM during fiscal year 2018 January 2017 Access Board announces Final Rule Federal agencies and contractors WCAG 2.0 AA Strongly suggests that WCAG 2.0 will be standard
DOJ Enforcement Actions DOJ s 2015 Statements of Interest in Harvard and MIT cases make clear that DOJ finds a current obligation to make websites accessible WCAG 2.0 AA Low damages/penalties, but rigorous enforcement and monitoring
Effect of change in administration Unlikely that regulations will be implemented anytime soon Currently no established standards by which entities may gauge compliance with ADA All that is certain is that websites must comply with ADA not certain exactly what constitutes compliance
Private Enforcement Activity Carlson Lynch (Pittsburgh) & Kamber Law (New York); Newport Trial Group (So. Cal.); C.K. Lee (New York) In wake of DOJ s June 2015 Statements of Interest, private firms have sent hundreds of letters, filed dozens of lawsuits Complainants are advocates, not students Remediation demands may be more flexible than governmental enforcement Monetary payments required (attorneys fees) No educational institution sued as of yet
Office of Civil Rights Aggrieved individuals can file complaints with OCR regarding alleged lack of accessibility of websites Aware of an advocate who has been filing dozens of OCR complaints on a weekly basis Does not appear to be a connection between law firm demand letters and OCR complaints
What Should Educational Institutions Be Doing Now? Establish EIT policy, team and coordinator Immediately assess website If you don t have expertise in-house, retain knowledgeable vendors, consultants Bind them to WCAG 2.0, Level AA Contract for certification of compliance Consider outside counsel role to provide attorneyclient, work product privilege option
What Should Educational Institutions Be Doing Now? (continued) Make and retain record of website Make complete image of website Retain any past images and records of website changes that may otherwise be automatically discarded; this may involve contacting third parties Record all changes going forward Litigation hold memorandum to appropriate staff and possibly third parties
What Should Educational Institutions Be Doing Now? (continued) Develop written remediation plan that you: Can adhere to in terms of timing Can adhere to in terms of scope Always include commitment to make new content accessible Can be Exhibit A in subsequent litigation Adhere to plan
What Should Educational Institutions Be Doing Now? (continued) Weigh benefits of certification of compliance Establish and publicize equally accessible means for alternative access during (and after) remediation Post on website in prominent and logical place and make it screen-readable (e.g., If you are having any difficulty using this website, please contact Disability Services Group at DisabilityServices@myuniversity.com or 888-555-5555. )
What Should Institutions Do When They Get Lawsuit, Demand Letter? Depends in large measure on what they have done on website accessibility, but always. Assess state of compliance of website and develop strategy accordingly Inform insurance provider Retain outside counsel with experience to oversee defense and response and provide privilege protection 20
What Should Institutions Do When They Get Lawsuit, Demand Letter? Weigh risks, costs of litigation defense Weigh settlement options, risk of subsequent claims class certification, court enforcement, private settlement Consider state law damages claims
What Should Institutions Do When They Get Lawsuit, Demand Letter? Weigh risks, costs of litigation defense Weigh settlement options, risk of subsequent claims class certification, court enforcement, private settlement Consider state law damages claims
Defenses to Private Actions Standing under recent Supreme Court case, can argue that complainant/plaintiff did not suffer actual harm Jurisdictional challenges Mootness Best defense is to have a compliant website