Summary of Federal Laws
Non-Discrimination with Respect to Students
Americans with Disabilities Act of 1990 (ADA) as amended by the ADA Amendments Act of 2008
See Public Law 110-325 for ADAAA
Title III of the ADA prohibits discrimination on the basis of disability in access to private colleges and universities and contains many of the same provisions as the Rehabilitation Act of 1973 (Section 504). Requires reasonable accommodations (e.g., a modification or adjustment to the status quo inherent in the program or activity) to allow a qualified person with a disability to participate fully in the programs and activities of the university. Participation must be in the most integrated setting possible. See 42 U.S.C. § 12,181. See also Disabled Students in Higher Education: Administrative and Judicial Enforcement of Disability Law, 22 J.C. & U.L. 989 (1996). See 36 C.F.R. § 1191.1 et seq., 56 Fed. Reg. 35,408 (July 26, 1991) for Accessibility Guidelines for Buildings and Facilities and 42 U.S.C. § 225 and § 611 for Title IV of the ADA which covers telecommunications. See also the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3601 et seq., which prohibits discrimination in housing on basis of disability.
Title III of the ADA requires, among other things, that IHEs remove barriers to access in existing facilities where it is readily achievable to do so, i.e. “easily accomplishable and able to be carried out without much difficulty or expense” (42 U.S.C. § 12182(b)(2)(A)(iv), 28 C.F.R. § 36.304), and that it construct or alter any buildings or facilities in such a manner that those buildings or facilities meet the requirements of title III of the ADA, including the Standards. 42 U.S.C. § 12183, 28 C.F.R. § 36.401-402. In addition, title III of the ADA requires that IHEs continue to ensure that no individual with a disability is discriminated against on the basis of a disability in the full and equal enjoyment of the IHE's services and facilities. 42 U.S.C. §§ 12182, 28 C.F.R. 36.201.
See also Americans with Disabilities Act for a summary description of Title I of the ADA, which mandates non-discrimination on the basis of disability in employment.
Law School Admission Council Consent Decree (May 2014)
LSAC will pay over $7 million in penalties and damages to compensate those who applied for testing accommodations while taking the LSAT over the last five years but were denied accommodations or had their scores flagged as taken under non-standard conditions. See Chronicle article by Katherine Mangan titled Law School Admission Council Agrees to Changes for Disabled Test Takers.
Argenyi v. Creighton University, Case No.8:09CV341, (U.S. Dist. Court, Nebraska) Filed May 18, 2014
Plaintiff Michael Creighton, a medical student with a hearing disability, was granted attorney's fees and expert witness fees in the amount of $478,000 to cover his five years of legal expenses in litigating his right to an accommodation.
Law School Admissions Council v. State of California; (Jan. 2014) (3rd App. District)
In case over whether law allows LSAC to flag test scores of those who received accommodations, appelate court reversed grant of preliminary injunction for LSAC. No equal protection violation in not allowing LSAT to flag scores, as no one else is similarly situated.
Argenyi v. Creighton University, Case No. 8:09CV341, U.S. Dist. Court, District of Nebraska, decided 12/19/13 In this case, a medical student with a hearing disability brought suit under Title III of the ADA and Section 504 of the Rehabilitation Act. The plaintiff does not know sign language, but does read lips and uses cued speech. He also relies on Communication Access Real Time Transcription, or CART services. His physician recommended CART services along with other accommodations. Argenyi paid for certain CART services and interpreters on his own for the first two years of med school when the school refused to provide the accommodations. He took a leave when the University would not allow interpreters in some of the clinical settings. While the court denied his request for the University to reimburse him for the money he expended on accommodations in years 1 and 2, the court granted his motion for injunctive relief for years 3 and 4 of medical school and ordered as follows:
Beginning in the fall semester of 2014, and continuing until his graduation or the discontinuation of his enrollment as a medical student, Creighton University will provide Michael Argenyi with auxiliary aids and services for his effective communication, including Communication Access Real-time transcription (CART) in didactic settings and sign-supported oral interpreters in small group and clinical settings.
Proposed Rule, Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839, Jan. 30, 2014.
See the ACE comments to the proposed rules, which focus on the potential impact on higher education.
ADA Amendments Act of 2008 (ADAAA)(Effective January 1, 2009)
In 2008, on Sept. 25, 2008 President Bush signed into law the ADA Amendments Act of 2008. The focus of this law is to clarify the definition of disability for purposes of employment, public entities and public accommodations. This law expressly overturns two Supreme Court decisions on the ADA: Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The criticism of those two cases was that they had unduly narrowed the "broad scope of protection" provided by the ADA in defining the term disability.
In addition, the current EEOC regulations defining the term substantially limits (as significantly restricted) were found to be inconsistent with Congressional intent, and the EEOC was ordered to draft new regulations with a less demanding standard for an individual trying to establish a substantially limiting mental or physical impairment.
The ADAAA clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Under the amended law, employers may not consider mitigating measures when determining whether an individual is disabled, with the exception of glasses and contact lenses. An employer may be found to have discriminated against an individual if the individual can prove discrimination because of an actual or perceived impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. This last sentence does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. Employers are not required to provide reasonable accommodations to employees who are solely regarded as disabled and are not actually disabled. An impairment only needs to substantially limit one major life activity to qualify as a disability, and not just those activities that are of primary importance. Under the ADAAA the following are major life activities:
For tips on what steps to take to be ready for the ADAAA see the Jackson Lewis Sept. 25, 2008 newsletter titled: President Bush Signs Landmark Amendments to the Americans with Disabilities Act. See also the Comparison chart on the ADA as construed by the Courts and as passed by the Senate. See also the AHEAD discussion on the amendments and a link to the Congressional Record.
DOJ Statement of Interest dated June 27, 2012 in support of a class action (US Dist. Court for Northern Div. California) against the Law School Admissions Council (LSAC) . DOJ statement is in support of plantiff applicants and takes the position that testing entities are routinely making common errors in reviewing requests for accommodations. Discusses 28 CFR 36.309 and also the new 2010 regulation that was meant to clarify the law in this area. The DOJ statement also states the Dept. opposition to flagging of test scores by the LSAC, stating as follows:
Flagging test scores also raises issues of stigma, privacy, and discrimination against test takers with disabilities that implicate core tenets of the ADA. Flagging a test score because of testing accommodations received necessarily identifies the test taker as a person with a disability,and does so without his or her consent. Accordingly, flagging may raise justifiable concerns for
some individuals about being stigmatized, discriminated against, or prevented from competing
on an equal basis in the highly competitive law school application process. The American Bar
Association (ABA) recently noted that the practice of flagging “raises unfair questions about the
Proposed and Final Rules
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.
Final Rule, Nondiscrimination on the basis of Disability by Public Accommodations and in Commercial Facilities, Swimming Pools, 77 Fed. Reg. 16163, March 20, 2012.
This rules extends the compliance date from March 15, 2012 to May 21, 2012. In addition, DOJ has also issued a Notice of Proposed Rulemaking seeking comments on a possible additional extension of the compliance deadline to September 17, 2012. Comments on the proposed rule are due by April 4. The extension follows issuance by DOJ of a January 31 memorandum entitled “Accessible Pools—Means of Entry and Exit”. The memorandum indicated that for existing pools at public accommodations covered by Title III, installation of a fixed lift or other accessible means of entry would be required to the extent readily achievable, and that the lifts must be available and in working condition at poolside during all open hours. If use of a fixed lift were not deemed readily achievable, only then could use of a portable pool lift be utilized.
Notice of Interpretation, 77 Fed. Reg. 14972, March 14, 2012, Discrimination on the Basis of Disablity in Federally Assisted Programs and Activities. This notice contains DOE's interpretation of 34 CFR 104.23 as it relates to new construction and alteration on or after Sept. 15, 2010. For new construction and alteration after that date, the DOE will interpret the 504 regs to permit use of standards consistent with DOJ's Title II regulations until the 504 regulations are revised The entity may also use the current Uniform Federal Accessibilty Standards currently in the 504 regulations. See the DOJ web page on Title II and Title III regulations and dates for compliance. Use of the 2010 Title II ADA Standards will not be required as means of compliance with Sec. 504 until the Department revises its Sec. 504 regulations to formally adopt the 2010 Title II ADA Standards in lieu of UFAS. For institutions subject to Title II of the ADA as well as Sec. 504, OCR states that for new construction and alterations commenced on or after March 15, 2012, the 2010 Title II ADA Standards will be used by OCR in its enforcement of Title II regulations.
NonDiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, Final Rule, 75 Fed. Reg. 56236, Sept. 15, 2010. This final rule was finally published a few months after it was posted online by the Justice Department on July 23rd. This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991.
See the Pillsbury Client Alert on this issue, from August 2, 2010, titled New ADA Regulations Update Standards and Broaden Requirements for Public Accommodations. Also helpful is the summary of the new 2010 ADA Standards for Accessible Design.
Revised ADA Regulations Implementing Title II and III, DOJ Friday July 23, 2010
These final rules revise the rules governing physical access to facilities. Changes include adoption of new standards for accessible design, The changes are 122 pages long when commentary is included. The DOJ has published a Fact Sheet on the Final Rule to Amend the DOJ regulation Implementing Title III of the ADA. Also, the DOJ has published the final rule in a format that highlights the new text in bold.
Proposed Rules on Nondiscrimination on the basis of Disability by State and Local Governments and Places of Public Accommodations; Equipment and Furniture, 75 Fed. Reg. 43452, July 26, 2010. Comments due by Jan. 24, 2011. DOJ seeks public comment on 24 specific inquiries to assist it in formulating revised rules, including inquiries relating to medical equipment and furniture, exercise equipment and furniture, beds in guest rooms and sleeping rooms, electronic information technology and other types of equipment and furniture.
Press Release on Settlement Agreement Between Department of Justice and Kent State University on Therapy Animals, January 4, 2016. See also the Consent Decree.
Consent Order on Emotional Support Animals, University of Nebraska at Kearney (UNK)
Press Release of Sept. 3, 2015 announcing a proposed settlement agreement to be approved by the U.S. District Court for the District of Nebraska in Lincoln. Under the order, UNK will
pay $140,000 to two former students who sought and were denied reasonable accommodations to keep assistance animals in their university apartments; and
change its housing policy to allow persons with psychological disabilities to keep animals with them in university housing where such animals provide necessary therapeutic benefits to such students.
Settlement Agreement between National Federation of the Blind and U.S. Department of Education (10-8-2014) This settlement resulted from a complaint filed in 2011 by a blind student who had a loan servicer who denied his request for a copy of his loan statement in Braille, and assistance over the phone for filling out a change of payment form. The Department failed to make systematic changes, and the NFB brought suit. The settlement ensures that all student loan information provided by the U.S. Department of Education and loan collection companies witll be accessible to blind students.
This agreement concerned exclusion of a blind student from course offerings by use of an online learning product, MyOMLab, which violated Title II of the ADA. Within 120 days of the Agreement, the University has to revise its policies and reference the deployment of accessible technology and course content as set forth in Exhibit I, among other corrective measures, which includes Training, Reporting, and a payment to the complainant of $23, 543. See also the DOJ Press Release.
Settlement Agreement between Regents of the University of California on behalf of the Berkeley campus and Disability Rights Advocates. **This May 2013 agreement involved improved access to textbooks, course readers and library materials for students with print related disabilities. Appendix A contains the Alternative Media Guidelines that will be adopted by UC Berkeley. New staff and new equipment will be available to implement the settlement. See the May 8, 2013 Chronicle article titled "In Settlement with Disabilities Group, Berkeley will Improve Access to Course Materials. "
The U.S. Department of Education's Office for Civil Rights (OCR) entered into an agreement with the South Carolina Technical College System (SCTCS), the state's largest higher education system, that will ensure that the websites of SCTCS and its 16-member colleges are accessible to persons who are blind, have low vision, or other print related disabilities.
University of Medicine and Dentistry of New Jersey settlement Agreement Under the ADA, March 5, 2013. The DOJ found School has discriminated against applicants upon rescinding their admissions after learning they had Hepatitis B. See also Press Release on case.
Mills College Settlement Agreement, DJ# 202-11-192, signed 12-19-12
This agreement resolves an investigation and compliance reivew of physical accessiblity for individuals with disabilities at Mills College under Title III of the ADA, and the DOJ regulations, including the ADA Standard for Accessible Design. The DOJ issued a press release on this case.
Lesley University Settlement Agreement: DJ 202-36-231 12-20-12
This agreement dealt with making the University meal plan accessible to students with celiac disease and other food allergies. Lesley University has agreed to the following as part of the terms of the agreement with the Justice Department:
· Continually provide ready-made hot and cold gluten- and allergen-free food options in its dining hall food lines;
· Develop individualized meal plans for students with food allergies, and allow those students to pre-order allergen free meals, that can be made available at the university’s dining halls in Cambridge and Boston;
· Provide a dedicated space in its main dining hall to store and prepare gluten-free and allergen-free foods and to avoid cross-contamination;
· Enable students to request food made without allergens, and ensure that a supply of allergen-free food is available;
· Work to retain vendors that accept students’ prepaid meal cards that offer food without allergens;
· Display notices concerning food allergies and identify foods containing specific allergens;
· Train food service and University staff about food allergy related issues; and
· Pay $50,000 in compensatory damages to previously identified students who have celiac disease or other food allergies.
In this agreement LSAC agrees, in response to litigation by NFB to make the LSAC web site fully accessible as follows:
LSAC shall provide "Full and Equal Access" to the lsac.org website as provided herein no later than September 1, 2011 ("Completion Date") and continuing thereafter for the term of this Agreement. "Full and Equal Access" means that www.lsac.org meets the nonvisual requirements of WCAG 2.0, level AA and that blind guests using screen-reader software may acquire the same information and engage in the same transactions as are available to sighted guests with substantially equivalent ease of use. These accessibility requirements extend to all parts of the lsac.org website on which services or products are made available to prospective law school applicants or to LSAT and Credential Assembly Service registrants, including, but not limited to, the process of applying to law schools through lsac.org, including both the common information input fields and the input fields specific to each participating law school; and the documents and practice tests LSAC makes available online.
For more information see the April 26, 2011 Press Release issued by the US Department of Justice. This settlement will end the litigation between NFB and the law schools that were sued.
Copies of settlement agreements are below. In addition, Arizona State settled a lawsuit brought by organizations representing the blind.
Helpful review in paragraph 7 of what standards are applicable to a private university governed by Title III.
Consent Decree re University of Michigan Stadium (March 10, 2008)
This consent decree address steps the University will take to make the University football stadium more accessible for wheelchairs. The agreement was between plaintiff Michigan Paralyzed Veterans of America, plaintiff-intervenor U.S. Department of Justice, and defendant University of Michigan, and entered by the U.S. District Court for the E.D. Michigan.
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
Department of Justice, Education and Health and Human Services letter dated June 12, 2013 Issued to Health Related Schools Regarding Hepatitis B Discrimination: The letter cites to CDC 2012 guidance titled Updated CDC Recommendations for Management of Hepatitis B Virus-Infected Health Care Providers and Students. These updated recommendations reaffirm the 1991 CDC recommendation that HBV infection alone should not disqualify infected persons from the practice or study of surgery, dentistry, medicine, or allied health fields.
Report of the ARL Joint Task Force on Services to Patrons with Print Disabilities, Nov. 2, 2012.
This summary also includes an overview of the Hathi Trust decision, status of rulemaking on web page accessibility, and recommendations for libraries on how to ensure compliance with disability law.
AHEAD (Association on Higher Learning and Disablity) Guidance April 2012 Supporting Accommodation Requests: Guidance on Documentation Practices: This document is somewhat of a holistic approach that veers away from relying quite so heavilty on documenting disabilities prior to providing an accommodation, and instead placing more emphasis on student self reporting.
Comments from Emily Lucio, Director of Disability Support Services at CUA, on the report:
From my understanding, most of the recommendations are to the publishers and other distributors of test materials. Currently each school does its own e-text conversion, even when the publisher sends us an electronic file, there is still a lot of editing required. If the recommendations by the Commission are adopted, then the goal would be to allow students with disabilities the same access to their texts as other students. Right now, students with disabilities have to purchase a completely inaccessible textbook and then have it converted. If it were possible for them to buy an accessible copy from the bookstore itself them we would not need to do what we are doing. Currently, CUA converts over 60 books a semester into alternative format.
See the Dec. 6, 2011 Chronicle of Higher Education article by Alexandra Rice titled Education Dept. Report Calls for Greater Accessibility to Learning Materials for Visually Impaired Students.
NACUA Notes Title II Regulations Regarding Direct Threat (November 11, 2011)
Dear Colleague Letter, May 26, 2011 on the Application of Federal Accessibility Standards for Emerging Technologies. See also the accompanying FAQ which is in essence the new guidance, and the EDUCAUSE resource page on the Federal Accessible Instructional Materials Commission and also a write up on the DCL.
NACUA Notes Service Animals on Campus (April 14,2011)
ADA Checklist for Existing Facilities (for compliance with 1991 regulations)
Useful Web Sites:
NACUA ADA/FMLA Resources and Links (password protected)
ADA Q and A page
U.S. Department of Education Office for Civil Rights (OCR), "Auxiliary Aids and Services for Postsecondary Students with Disabilities: Higher Education's Obligations Under Section 504 and Title II of the ADA.
CCR updated CFR links 5/15/15
updated 6-15-16 added SANPR for Title II