June 12 2002web accessibility in education1 web accessibility in education: sen and disability act 2001 martin sloan LLB (hons) post-graduate student glasgow

June 12 2002 web accessibility in education 1

web accessibility in education:

sen and disability act 2001martin sloan LLB (hons)post-graduate studentglasgow graduate school of law

email: [email protected]


web accessibility in education

what is Web accessibility?why and how might the Disability Discrimination Act (DDA) apply to web accessibility in education?what about the Special Educational Needs and Disability Act (SENDA)?summary and final thoughts


what is web accessibility?the Internet was originally designed as a platform independent, universal system of sharing information, irrespective of disabilitythe use of proprietary technologies and failure to properly implement World Wide Web Consortium (W3C) standards has led to these principles being undermined


disability on the netW3C has introduced its Web Accessibility Initiative (WAI) and associated guidelines for content, browsers and authoring toolsbut awareness has remained low and these are rarely followed in practicearguable that the DDA and SENDA can provide the necessary impetus to increase awareness and compliance


why consider accessibility?

potential legal obligationscommercial benefits users with older equipment Personal Digital Assistants, wireless

devices disabled community has a spending power

of £33bn* in the UK alone and would perhaps benefit most from new technology

* Source: Fairclough, Nick ‘Disability Discrimination: the October Revolution’SJ 1999 143(36) 878


isn’t education exempt from the DDA?

excluded by virtue of s.19(5)(a) grounds of cost to the tax payer

however the Act still applies to ancillary services for example: student unions, catering i.e. the ‘public’ aspects logical to assume this includes

institution Web sites


does the act apply to the web?

The Act and its ObligationsAre Web site owners ‘Service Providers?’Definition of DiscriminationDuties under the Act


the act and its obligations

Disability Discrimination Act 1995:‘a universal, all embracing right of

non-discrimination against disabled people…applicable to all providers of goods, facilities and services to the general public’

Minister for Social Security and Disabled People, Hansard, H.C. standing Committee E col. 290


the act and its obligations

part III introduced on October 1 1999accompanied by a Code of Practice ‘fleshes out the Act’ provides guidance to both service

providers and disabled people aims to avoid legal action not an authoritative statement of the

law but does now mention Web Accessibility


who is a service provider?

‘service provider’ is not defined in either the Act or the Codenon-exhaustive examples are given includes ‘access to and use of

information services’ (s.19(3)(c)) reflects drafting in a pre-Internet era


what if the site is free?

irrelevant if the service is free or paid for (s.19(2) and the Code at para 2.12)potentially includes marketing or promotional Web sitesthe service is ‘provision of information’


discrimination defined

s.20 - A provider of services discriminates

against a disabled person if(a) for a reason which relates to the

disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified


duties under the act

s.19(1) -(a) not to refuse to provide or

deliberately not provide any service which he provides or is prepared to provide to the public

(b) to comply with any s.21 duty to make ‘reasonable adjustments’


1. refusal to provide a service

would apply where a service provider has deliberately chosen not to make his site accessible for whatever reasonrequires knowledgevery few sites cannot be made accessiblesums up ‘The Gap’ approach


2. duty to make ‘reasonable adjustments’

s.21 - (1) Where a provider of services has a

practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service... it is his duty to take such steps as it is reasonable…to have to take in order to change that practice, policy or procedure so that it no longer has that effect.


what is a reasonable adjustment?

is it a reasonable adjustment to rectify an inaccessible Web site?main opposition is cost and work involvedquestion has been considered by the Australian Human Rights and Equal Opportunities Commission (HREOC)


maguire v socog

involved a visually impaired person and the Sydney Organising Committee for the Olympic Games (SOCOG)brought under the Commonwealth Disability Discrimination Act 1992 (Cth DDA)alleged that the official Sydney Olympics Web site was inaccessible


maguire v socog - the issues

site was alleged to be inaccessible for three reasons - no ALT attributes on images and

image maps necessary for navigating index of sports pages were

inaccessible from the schedule page tables used for the results were in an

inaccessible form


maguire v socog - the findings

The commission found that - SOCOG was indeed intending to offer a

service to the public by creating a Web site

expecting a user to type in the full Uniform Resource Locator (URL) for each page expected prior knowledge and goes against the way the Web works

SOCOG’s claims of unjustifiable hardship were unfounded


unjustifiable hardship

SOCOG argued that it would take 368 working days and Au$2m to rectifycommission favoured Maguire’s expert witnesses who stated that it would take a small team about four weeksreference made to W3C WAI guidelines and the continuing duty that SOCOG were under to comply with these


relevance of maguire v socog

first time the WAI guidelines have been discussed in a court of lawhave now effectively become quasi-law in Australiasets a standard for interpreting accessibilitydemonstrates that undue hardship will be strictly interpreted


what might the uk courts say?

common for the UK courts to consider practice in other jurisdictions when dealing with ‘new technology’ problemsMaguire is likely to be held as persuasive authority by the UK courtscontinuing obligation to review duties under the Code (para 4.9) will heighten WAI guidelines importance


what does this mean for eduation?

for the public elements of their online content universities will be considered as ‘service providers’e.g. the ‘front page’, commercial

operations, information, prospectus etc

will have duties under Part III of the Actweb site should follow the WAI Web Content Accessibility Guidelines


sen and disability act 2001

likely to come into force late 2002amends the 1995 Act by inserting a new Part IV dealing with Educationwill effectively confer similar rights upon disabled students as those available against service providers


what does the SENDA say?

not to treat disabled students less favourably without justification; andto make reasonable adjustments so that students are not at a substantial disadvantage compared to those who are not disabled


duties under the SENDA

not to discriminate in the arrangements for determining admissionnot to discriminate in the ‘student services’ it provides or offers to providenot to discriminate against a disabled student by excluding them from the institution either permanently or temporarily


what is a student service?Includes: Teaching (classes, lectures, seminars,

practical sessions) Curriculum design Examinations and assessments Informal/optional study skills sessions Distance learning E-learning Learning equipment (handouts, lab

equipment) Libraries, IT facilities and their resources


web pages

if they provide information for students in relation to education they will be a student servicee.g. faculty homepage with course information

if they do not then they will generally be ancillary services and covered by Part III of the Act (Goods and Services)e.g. careers page or student union homepage


web pages – what is required?

interpretation of duties is likely to follow that in Part IIIwill need to be provided in an accessible formW3C guidelines Experience suggests Level 1 will be

the minimum legal requirement

include ALT attributes on images, refrain from using frames etc


e-learning environments (1)

e-learning and distance learning are specifically mentioned as student servicessimilar principles apply to e-learning as to Web sitesneed to ensure that materials and resources are provided in an accessible form


e-learning environments (2)

what does this mean? Provide class handouts online in an

accessible form (i.e. html) Use accessible versions of ‘off the shelf’

products like Blackboard and WebCT Provide online resources in an accessible

forme.g. captioned video/transcripts,

documents in different formats Use plain text in email


do these duties always apply?

generally, yeshowever there are some justifications for discriminating Adjustments must be ‘reasonable’ Necessary to maintain academic

standards Other reasons as prescribed (none as

of yet)


reasonable adjustments (1)

term ‘reasonable’ is undefinedhowever, inference is likely to be drawn from the interpretation under Part III of the Act and/or Maguire v SOCOGbut providing course information in html on Web is likely to be a more reasonable adjustment than providing the information in Braille


reasonable adjustments (2)

other factors in determining ‘reasonableness’: is it reasonable for that course to

make it accessible? is it reasonable and important to

expect a particular element to be accessible?

is it reasonable to expect students to be accessing material outside a controlled environment?


academic standards

unlikely to be relevant – difficult to justify not making web pages and/or e-learning accessible under this groundmight be used where an external body sets the standards for a coursee.g. the General Medical Council, Law

Society of Scotland etc


implications of the sen and disability act

will be likely to mean that educational institutions will have to provide accessible web sites and teaching resources online projects and materials will have to be presented/made available in an accessible formwill also have to provide suitable ICT


summaryduty to make reasonable adjustments comes into effect from September 2002ultimate responsibility lies with the governing body of the institution but individuals may be indemnifying the

institution in the case of legal action

duties are anticipatory – should not wait until the issue arises before implementing accessibility


final thoughtsvery strong case for arguing that an inaccessible Web site breaches a service provider’s duty under the DDAlikely that a test case will be brought in the near future as public awareness increasessuccessful defence unlikelywill set the standard for interpretation of the new Education provisions


further information (1)Sloan, Martin ‘Web Accessibility and the DDA’ 2001(2) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-2/sloan.html

Sloan, Martin ‘Institutional Web sites and accessibility by the disabled’ TechDIS Website http://www.techdis.ac.uk/resources/msloan01.html and 2002 Communications Law 7(2) 49Sloan, Martin ‘E-Learning and Accessibility’ TechDIS Website http://www.techdis.ac.uk/resources/msloan02/html


Further information (2)TechDIS http://www.techdis.ac.uk

RNIB ‘See it Right’ schemehttp://www.rnib.org.uk/digital/siraccess/

W3C Web Accessibility Initiativehttp://www.w3.org/wai/

Digital Media Access Group (DMAG) http://www.dmag.org.uk

Martin Sloanemail: [email protected]

Documents

June 12 2002web accessibility in education1 web accessibility in education: sen and disability act 2001 martin sloan LLB (hons) post-graduate student glasgow