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The ADA’s Hidden Barrier Removal Mandate:Access to Information
Jeanne M. KincaidDrummond Woodsum100 International Drive, Suite 340Portsmouth, NH 03801603/[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.h
tm
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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-ipad-c
ould-be-the-best-mobile-accessibility-device-on-the-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%20an
prm_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_capt
ions_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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