Welcome to the Americans With Disabilities Act section of our webpage.
This front page will reflect our most current information on federal disabilities law affecting educational institutions.
Final Rule Implementing the ADA Amendment Act of 2008 81 Fed. Reg. 53204, August 11, 2016, effective Oct. 11, 2016. Regulations address both Title II and Title III entities. For guidance providing a section-by- section analysis of the revisions to 28 CFR parts 35 and 36 published on August 11, 2016, see Appendix C of 28 CFR part 35 .or a section by section analysis. The Justice Department also issued a short press release.
Student with PTSD and ADHD suffered a mental health crisis and was placed on mandatory leave. The Complainant alleged that UTHSC failed to make reasonable modifications to its policies, practices, and procedures when it placed her on a mandatory medical leave of absence from UTHSC because of her mental health condition without first considering options for her continued enrollment. UTHSC has agreed to change its leave of absence policy so that the University will conduct individual assessments of students and determine if any accommodations can be made before barring students from campus. School ordered to change policies and pay $45,000 to student. In part the agreement provides as follows:
Nothing in this Agreement shall be construed to prevent UTHSC from engaging in a process to identify and assess whether a student poses a threat to the health or safety of themselves or others, although UTHSC must reasonably modify policies, practices, and procedures where necessary to avoid discrimination against students with disabilities. Absent exigent circumstances, UTHSC shall explain its threat assessment process and appeal rights in detail to any student with a disability in a mode of communication accessible to the student before obtaining any information about the student from his or her heath care provider otherwise authorized by law and/or making any referrals or recommendations concerning the student.
Statement Regarding Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities (note: This affects Title II entities, private universities are Title III entities, but no updated guidance has yet been posted for Title III entities.)
April 29, 2016 Supplemental Advance Notice of Proposed Rulemaking: Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities: Published by the Department of Justice, and withdrawing the July 2014 Notice of Proposed Rulemaking on the same topic. Note that the document being summarized below is just current thinking of the DOJ on the topic and is not yet binding. For a better overview of case law and settlement agreements on the topic, applicable to both public and private entities, see the ADA resources page as well as the ADA Fedlaw page.
The Department of Justice’s 2016 Supplemental advance notice of proposed rulemaking (SANPRM) on Accessibility of web content is designed to solicit public comment on proposed regulations for title II of the Americans with Disabilities Act, which applies to all state and local government websites. These newly proposed technical requirements are taken from the Web Content Accessibility Guidelines (WCAG) 2.0 standards, first published in 2008.
These proposed regulations apply to most web content created by a state or local government entity. Web content is anything displayed on a website, including the code used to construct it. Web content does not include the computer or mobile device on which the website is accessed or the web browser, such as Internet Explorer or Mozilla Firefox, that is used.
The WCAG standards have three levels: A, AA and AAA, with level AAA being the most stringent. The Department proposes using level AA of the WCAG, as the criteria, which include all of the Level A requirements, are relatively comprehensive and are widely used internationally. WCAG 2.0 contains specific technical standards for website accessibility that are more detailed than broader performance standards, but still allow for a degree of flexibility in implementation.
In the previous ANPRM the Department asked for comments on the timeframe in which public entities would be required to comply with new regulations. The Department has proposed adopting a two-year time limit with certain exceptions. All public entities would be required to have their websites conform to WCAG 2.0 Level AA standards within two years of publication of the new regulations. The primary exception is if doing so within the time limit would fundamentally alter a service or place undue financial burden on the entity. WCAG Guideline 1.2.4, concerning live audio content, is excluded from this timeline. Instead, it may be proposed that public entities will be required to provide captioning for all live audio or synchronized media within three years of the publication of the regulations. The term “synchronized media” is audio or video displayed at the same time as other web based content that is required for understanding the complete presentation.
The Department also recognizes that an entity may need to use alternative designs for ensuring accessibility of its services, and is considering providing an equivalent facilitation provision, which the ADA also contains for accessibility more generally. Because smaller public entities who serve a population of 50,000 or less do not always have a dedicated web staff, ensuring their websites meet the technical standards of WCAG 2.0 may be more burdensome. Thus the Department would also make an exception for smaller public entities, giving them three years rather than two to comply with the regulations. The Department is also considering whether to require small public entities and special district governments (any government entity that provides a single service and has a population not calculated through the Census Bureau) to comply only with Level A rather than Level AA standards for accessibility.
Exceptions to Timing and Standards
1. Archived Web Content: Public entities would not be required to make archived web content accessible on anything other than a case-by-case basis. Archived web content is material that is kept exclusively for reference or research, is not altered after the date of archiving, and is placed in a designated area clearly marked as archival.
2. Preexisting Conventional Electronic Documents: Any conventional electronic documents created before the date of the regulations will not be required to be accessible unless those documents are required to apply for or gain access to the public entity’s services. Conventional electronic documents are any files in PDF, spreadsheet, word processor, presentation or database formats. Only one set of the conventional documents would be required to be accessible; for example, a website would not be required to have accessible PDF and Word documents with the same information.
3. Third Party Web Content: Material on third-party websites can be excepted from the above regulations if:
- The third-party content is linked from the entity’s website and is not required to gain access to the public entity’s services;
- Web content posted on the public entity’s website is not required to comply with Level AA standards, because the public entity may not have control over what or how much is posted from third-party sites and would not have the practical ability to ensure accessibility of all of the documents. Third-party posted content must comply with the standards if it is essential to civic participation or if it is posted directly by the public entity to its website.
- Third-party Filings and Judicial or Quasi-Judicial Administrative Proceedings, but the documents would need to be made accessible on a case-by-case basis.
- Third-party social media platforms: The regulations will defer on the question of hosted third-party social media until Title III regulations for public accommodations are drafted or implemented.
4. Password-Protected Content: The department is considering exempting password-protected classroom or course materials made available to a discrete population from these rules. While learning management systems will be required to be accessible, individual materials behind a password would only be required to be made accessible after a disabled student has enrolled in a course. This rule also encompasses parents with disabilities at the K-12 level. This exception does not apply to password-protected content that is nonetheless made available to the general public.
Conforming Alternate Content
Conforming alternate content is an alternative page or website that contains the same information as an inaccessible webpage, is up-to-date and in an accessible format. Conforming alternate content provides the same information and functionality to people with disabilities as to people without disabilities. Because the use of conforming alternate pages, however, has the potential to prevent people with disabilities from gaining equal access to information, the department is considering allowing public entity’s to use conforming alternate versions under two circumstances. Conforming alternate versions are permissible when “it is not possible to make web content directly accessible due to technical or legal limitations”; or when used to provide access to conventional electronic documents.
Summary of WCAG 2.0 Principles (Level AAA omitted)
Four Principles, Twelve Guidelines
Principles: Perceivable, Operable, Understandable, Robust.
Each guideline contains individual success criteria and technical suggestions for ensuring the success criteria. Only the guidelines and the basic success criteria are summarized below.
1.1 Provide text alternative for any non-text content.
- Description or name of control/input.
- Description/alternative of time-based media (for example, clicking on one item then clicking on another item within ten seconds.)
- Testing/sensory content must have descriptions or alternate text content.
- Captcha to prevent access by an automated system must be described or have an audio alternative.
- Decorative content should be implemented so that it can be ignored by assistive technology.
1.2 Provide alternatives for time-based media.
-Alternatives to audio-only (text or some equivalent) and video-only (text or audio).
- Captions are provided for all pre-recorded audio or synchronized media (level A) or all synchronized and live media (level AA).
- Audio description is provided for all time-based or synchronized media (level A) or all pre-recorded and synchronized media (level AA).
1.3 Create content that can be presented in different ways.
- Information, structure or relationships conveyed by presentation can also be obtained through text.
- Programmatically determinable sequence of information, if the sequence of information affects meaning.
- Instructions for operation do not rely entirely on sensory characteristics such as shape, size, appearance or sound.
1.4 Make it easy for users to see and hear content on a page.
- Color is not used as an exclusive way to convey information.
- A mechanism for pausing or controlling audio is available on the webpage if audio automatically plays for more than three seconds.
- Text contrast ratio is at least 4.5-1.
- Text can be resized to at least 200% without assistive technology.
- Text rather than images is used to convey information or an alternative to the image is provided.
2.1 Make all information and interfaces accessible from a keyboard.
- All functionality is usable without required specific timed input of keystrokes unless the underlying function requires movement rather than an endpoint.
- Do not prohibit the keyboard from being used to move focus away from an element that can be focused on with the keyboard.
2.2 Provide users enough time to read and use content.
- Time is able to be turned off or adjusted unless the timing is essential to the function or is longer than twenty hours.
2.3 Do not design content in such a way that it will cause seizures.
2.4 Provide users ways of easily navigating a page and finding where they are.
- Repeated blocks of text that occur over multiple pages can be bypassed.
- Webpages have titles.
- Focusable components are shown in an order that preserves functionality.
- The purpose of a link can be determined by its text or immediate context.
- More than one way is available to locate a webpage in a set of webpages except where that webpage is part of a process.
- Headings and labels describe topic or purpose.
- Keyboard interface has a visible keyboard focus.
3.1 Make text content readable and understandable.
- Default language of each page and each part of a page can be programmatically determined.
3.2 Make webpages appear and operate in predictable ways.
- Focusing on a component does not change the context.
- Changing of an input setting does not change the context unless the user is advised beforehand.
- Navigation that is repeated on multiple pages of a site remains consistent unless altered by the user.
- Same functional components on a series of pages are identified consistently.
3.3 Help users recognize and create mistakes.
- If an input error is identified the error is described to the user in text.
- Labels and instructions for user input are required.
- If an error is detected suggestions for correcting in are provided to the user.
- Where inputs cause potential legal commitments, financial transactions or data modification submissions are reversible, checked for input errors or able to be reviewed and confirmed.
4.1 Maximize compatibility with assistive technologies. (This guideline contains relevant technical and coding requirements that have been excluded.)
For a website to conform to WCAG 2.0 it must satisfy all of the requirements for both Level A and AA guidelines. (Level AA guidelines contain both Levels A and AA criteria.) The criteria must apply to full webpages and the page will not conform if part of the page is excluded. All webpages in a series that is a process must conform to the guidelines. The ways of providing accessibility must rely on accessibility-supported technologies such as assistive technology. If technology is used in a non-accessible way, it must not interfere with the rest of the page which must still satisfy the guidelines. Summary by Kelby S Carlson.
The Wave of Website and other ADA Accessibility Claims: What you Should Know, posted Feb. 22, 2016 by Littler Mendelson, P.C.
National Association for the Deaf v. Harvard, Case No. 3:15-cv-30023-MGM, (U.S. D.Ct. Massachusetts), Feb. 9, 2016. In this case, four plaintiffs and the National Association for the Deaf brought suit against Harvard for failing to provide equal access to the deaf and hard of hearing individuals for much of the audio and audiovisual content that Harvard makes available online to the general public for free. The content is not captioned for those who are deaf. The case seeks to require Harvard to provide timely, accurate captioning of the content. On Feb. 9th, the court dismissed Harvard's motion for summary judgment, making the following statements in reviewing the case:
On 504 Standard
Section 504 provides as its general rule that “[n]o 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….” 29 U.S.C. § 794(a). A “program or activity” includes “all of the operations of – … a college, university, or other postsecondary institution.” 29 U.S.C. § 794(b)(2)(A). One of the explicit policies underlying the enactment of Section 504 was to ensure that “all programs, projects, and activities receiving assistance … [are] carried out in a manner consistent with the principles of … respect for the privacy, rights, and equal access (including the use of accessible formats), of … individuals [with disabilities].” 29 U.S.C. §701(c)(2).
On ADA Standard
This case concerns Title III, which provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns … or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Private schools, including undergraduate and postgraduate institutions, and other places of education, are public accommodations. Id. § 12181(7)(J).
Title III prohibits public accommodations from discriminating against the disabled by, “directly, or through contractual, licensing, or other arrangements,” denying individuals on the basis of disability the opportunity “to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity,” or providing them with an “opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” Id. § 12182(b)(1)(A)(i)-(ii). See also 28 C.F.R. § 36.202(a)-(b).
The regulations further provide that “[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). ***The regulations define the term “auxiliary aids and services” to include, among other things, “open and closed captioning, including real-time captioning; … or other effective
methods of making aurally delivered information available to individuals who are deaf or hard of
hearing.” Id. § 36.303(b).
On Motion to Dismiss
...striking the appropriate balance between accommodating the rights of Plaintiffs and
not unduly burdening Harvard requires a fact intensive inquiry that is not suitable for resolution
on a motion to dismiss. ***
Harvard argues that Plaintiffs cannot base their claim on the general prohibitions against
discrimination contained in 34 C.F.R. § 104.4 of DOE’s regulations.Contrary to Harvard’s assertion, the general provisions of DOE’s regulations also support Plaintiffs’ theory of discrimination. Section 104.4 prohibits federal fund recipients from denying qualified handicapped persons the opportunity to participate in or benefit from provided aids, benefits, andservices; affording qualified handicapped persons an unequal opportunity to participate in or benefit from provided aids, benefits, or services; and providing qualified handicapped persons with aids, benefits, or services that are not as effective as those provided to others. 34 C.F.R. § 104.4(b)(1)(i)-(iii). For aids, benefits, and services to be “equally effective,” they “must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement.” Id. at § 104.4(b)(2). In other words, these regulations are consistent with the requirement of “meaningful access,” and, as set forth above, Plaintiffs have adequately pleaded a lack of meaningful access. ***
The court declines to draw any inference from the fact that § 104.4 does not explicitly
address the responsibilities of federal fund recipients vis-á-vis website accessibility. Online
content may not be specifically mentioned in the regulation, but neither is it specifically
Press Release on Settlement Agreement Between Department of Justice and Kent State University on Therapy Animals, January 4, 2016. See also the Consent Decree.