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As Higher Ed Goes Digital, ADA Compliance Falls Behind

A recent report from the risk management company AAAtraq found that 97 percent of U.S. college and university websites do not fully comply with requirements of the Americans with Disabilities Act.

A piece of paper with "ADA Americans with Disabilities Act" printed on it laying on a table with glasses and a red pen on top of it. Beneath the paper are two sheets of paper with rows of numbers on them.
As technology and digital services become increasingly ubiquitous across higher education, experts say more and more institutions are running into complaints that their websites and digital services do not meet accessibility requirements under the Americans with Disabilities Act.

According to a recent report from the risk management firm AAAtraq, 97 percent of U.S. colleges and universities do not have accessibility-compliant websites, which could cost them millions of dollars in litigation fees and payouts. The report, which was emailed to Government Technology, added that most of the 97 percent of colleges who failed ADA compliance tests in AAAtraq’s July audit were “let down on their home page.”

“We are really concerned that colleges and universities are being told their sites are compliant, but in reality they are not and no one knows how to check. Time and time again we are having to prove those who are providing digital services wrong. In any other sector, a project would not be signed off by the supplier. There has been a distinct lack of accountability in this market, and we want to change that,” AAAtraq CEO Lawrence Shaw said in a public statement. “It is becoming ever more evident that compliance methods are failing, underpinning the need for a risk-managed rather than technically led approach.”

Shaw said in an interview withGovernment Technology that institutions should have clearer contracts with digital-service vendors, as well as independent auditing, to ensure content is accessible to students with audio and visual impairments.

“The failure is widespread, and it has been for the past six years. Lots of money is being spent, but compliance is not improving ... We’ve dealt with many lawsuits where schools are being sued for the failure of their learning management platform. Schools, universities, et cetera are being sued for compliance issues on their platforms, but what can they do to fix it if they don’t have control over their platform?” he said. “I think the majority of people see it as a technical issue, because they have to try to fix the platform, but it’s a contractual problem because actually the contract [with the vendor] should say, ‘You will provide an ADA-compliant platform.’ ... The starting point is a solid contract where it defines who is responsible for what, so you’ve got who is responsible for the content and who is responsible for the platform.”

According to Shaw, the issue of accessible websites and services has been a major concern for education leaders and policymakers in recent years. He noted that there have been “hundreds” of complaints about higher-ed institutions over the issue of ADA-compliant websites and digital services, adding that two blind students were recently awarded $240,000 from the Los Angeles Community College District (LACCD) for not receiving accessible course materials and software such as MyMathLab in a timely manner.

Shaw added that California also recently revised regulations under Assembly Bill 1757 to make it clear that web developers themselves can be sued for inaccessible websites. In addition, the U.S. departments of Education and Justice issued a Dear Colleague letter in May reminding educational institutions that officials consider online content to be a service, program or activity of the institution that must be accessible to all students.

Shaw said institutions should be wary of taking vendors’ word for it that their services are accessible and ADA compliant so that they don’t have to deal with accessibility issues down the line.

“Quite often, there is a false sense of security. You look at some of the websites of vendors selling services, and they’re promising compliance,” Shaw said, adding that the average settlement is about $27,000 when a website is not ADA compliant.

Jessie Weber, a partner at the law firm Brown Goldstein & Levy, which helped represent the students in the recent case against LACCD, agreed that institutions should avoid taking vendors’ word on whether their websites and platforms are ADA compliant. She stressed the need for institutions to ensure their websites and any digital technology they’re using, such as social media platforms, podcasts and video learning platforms, are accessible to students rather than fixing issues after the fact.

Among other considerations, Weber said accessibility needs to be “baked into the institution’s policies and procedures.” She said one of the issues with LACCD’s digital services was the fact that administrators didn’t have a plan for what to do if a blind student took a course with online work.

“Like all other sectors, they need to be thinking about the accessibility of digital technology … Institutions of higher learning should be ensuring that the technology they procure is accessible,” she said. “If there is truly no accessible alternative, and a piece of technology must be used, then the institution needs to know up front about what the problems are so they can make a plan. How are they going to provide access in a timely way to students with disabilities or faculty with disabilities? What are they going to do proactively so that they’re not just waiting around for a complaint?”

Adam Bialek, an attorney at Wilson Elser Moskowitz Edelman & Dicker LLP, said that ADA-compliant websites and digital services should be a major consideration for colleges and universities today that are increasingly digitizing daily operations and using new ed-tech tools to enhance instruction and expand the availability of online learning options.

Bialek said institutions can ensure they have ADA-compliant websites that meet accessibility regulations by training those who participate in digital delivery, as well as having proper vendors who are held accountable. He added that contracts with vendors that require websites to be compliant — with clauses to protect the educational institution in case of compliance failures — are also important for ensuring sites are accessible.

“The digitization of education is happening amongst the backdrop of a pivotal change in our society; that our daily lives have become, and are becoming, more beholden to a digital environment. E-commerce, social media and the ever-increasing reliance upon our digital devices has changed society. Where educational institutions were once focused upon physical learning spaces and the resources present for students, including books and supplies, educational management now needs to contend with licensing, bandwidth, access to devices, web accessibility, and privacy and data security,” Bialek said in an email to Government Technology. “While online learning and digital access can enhance learning opportunities, it comes with a cost. Educational managers will need to figure out how best to address these challenges.”
Brandon Paykamian is a staff writer for Government Technology. He has a bachelor's degree in journalism from East Tennessee State University and years of experience as a multimedia reporter, mainly focusing on public education and higher ed.