Accessibility at ISU: The "What" and "Why" of Accessibility - Legal Landscape

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I'm Maureen De Armond and I am an attorney for the university. I'm in the Office of University Counsel, and some of my areas include labor and employment, disability, and discrimination. And I get to work with Dr. Jordan on her efforts, and student disability resources on a regular basis, as well. 

Alright. We're gonna flip over to the slides, and I was given very strict orders that I only got four slides. I think I was given three, and I negotiated up to four. But we will circle back to that question at the end. So the first slide, I'm gonna throw up a bunch of logos and names of different universities. So we've got Penn State, South Carolina Tech, Louisiana Tech, University of Montana, Youngstown State, Harvard, MIT, University of Cincinnati, University of Phoenix, Miami University, Arizona State University, Florida State University, Colorado State University, and then the question, what do all of these institutions have in common? Oh, you know the answer, I'm not calling on you! Anyone else? Louder, for the group.

They've been sued?

Okay, these are all institutions that have had complaints filed against them based on their failure to provide accessible material to students. And the fact that, the comprehensive list is longer than this, but one of the reasons we're picking these examples is that you see a very big variety. From University of Phoenix to Harvard. Okay, the whole gamut of higher-ed institution could be subject or target to a complaint. 

So some of these were third-party complaints, so maybe filed with the National Federation of the Blind, maybe student complaints filed with the Department of Education, possibly complaints filed with the US Department of Justice, as well. Complaints can come in a very wide variety of kind of formats. Here in Iowa, we could also see complaints filed with the Iowa Civil Rights Commission, at the state level. If it were an employee instead of a student, it could be with the EEOC, the Equal Employment Opportunity Commission. So complaints for failure to provide accessibility could come in a wide variety of avenues and, as we see here, Colorado State University, a fellow land grant. We shouldn't be in a position where we feel like these aren't common enough, or this isn't a risk that's real enough, or we're just not the type of institution that could face these types of complaints. I think that's not a rational approach to take. 

So on the legal front, when asking what law is relevant, obviously we know the Americans with Disabilities Act is a very significant federal law. The Rehabilitation Act of 1973 actually has components that come into play, as well. And then at the state level, we have the Iowa Civil Rights Act. Passed in 1965, it does have an education component in addition to public accommodation, housing, employment, among others. But within the state law, making sure that students are not deprived of access to programs is a component of what we have at the state level, as well. 

When we're talking specifically about web accessibility, the reality is that, right now, there is an argument that we are in legal limbo, insofar as no federal agency, and not at the state level within Iowa, has clearly adopted a legally binding standard for web accessibility and online content. So if you were to say show me the law that defines what level of accessibility is needed for content in an educational setting, I can't do that. If you're asking for that, like the black letter of the law, we don't have that right now. But what we do have is learning from past example, and that's the prior slide. All those other schools that have been sued or had complaints filed against them have settled or entered into resolution agreements. And the resolution agreements that have been entered into with federal departments like the US Department of Education and the US Department of Justice, those are our road map. Okay, those settlement agreements tell us what are those federal agencies saying are the standards that we should be considering. 

So that's what I want to do right now, is kind of walk through some of the lessons learned in picking apart those resolution agreements with the likes of University of Montana, Louisiana Tech, other institutions, that gives us the road map for if the US Department of Education or the US Department of Justice came here, what would we reasonably anticipate they would be looking at and looking for, as far as how we have practices. So in the absence of binding, clear law, we learn from others' lessons and hope we don't get added to that list. 

So what are the things that we should be doing as we develop and flesh out a plan here at ISU is make sure that we adopt some auditing processes. So we have an accessibility audit. So that we are first looking to see, gauge where are we, and then develop a strategy to address those areas where the accessibility standards aren't being met. And I'll tell you what those standards are in just a moment. We should have written policies and procedures. If you are gonna bind web content developers and other people who put content online, then you need to be able to really point to that standard. That's important for transparency. It's also important for compliance and enforcement. So we need to figure out where do we want to have standards, and are we going with minimum standards, or are we going to adopt loftier goals. And we need to make sure that those standards are easy to find, that the most relevant people receive training and education so that they can comply with those standards. So it's important to have those kind of, our own self-imposed law, if you will, in the form of policies and procedures. 

One of the things that's really interesting when you review the resolution agreements that have been entered into by other institutions of higher learning. The US Department of Education says you must have dedicated staff. This isn't gonna happen on its own. You can't just cross your fingers and hope for an automated evolution into web accessibility. That's not going to happen. If we come and give you a visit here on campus, and we ask who's responsible for managing the program and the efforts of web accessibility on this campus, everyone can't say "not it," okay? We need to be able to have staff who have that dedicated. Now obviously, lots of people will bear some of those duties, and the policy will set forth responsibility that will be shared among many. But the government is saying there needs to be at least one person on campus that that is a primary part of their job responsibility. And until about, what, eight months ago, we didn't have that. Okay, we did have some people who had decided on their own to make improvements and advancements. We had departments and agencies and ELO and others who had, on their own initiative, said this is something we should be doing, which is fantastic, but we couldn't point to a person and their job description and say this is one of their primary duties and responsibilities. Even though obviously they're not an island on themselves and have to do all the work. So Dr. Jordan is our WAC, as I like to call her. To her face, and lovingly. Web Accessibility Coordinator. So we do finally have dedicated staff. With a university this size, we may reach a point where the term staff needs to be plural. But luckily we have a lot of partnerships and Dr. Jordan is doing a lot of building of relationships with offices like Student Disability Resources, partnerships with ELO, and others. So the appetite, I think, was already here. But we had not the dedicated staff for that. So that was a wonderful advancement for us. 

Some of the other lessons learned. And this is the big one, I probably should have listed this earlier. The Department of Education has identified the standard that it believes institutions of higher learning need to meet. And it's the Web Content Accessibility Guidelines 2.0 level AA, and it is saying that's the standard. Meet or exceed this. Again, is that in any written law, or any DOJ or DOE reg, nope. But it's in every recent settlement agreement that those agencies have entered into with other institutions of higher learning. We're not in a position where we can ignore that and say there's no law, so there's no standard. The Department of Education, the Department of Justice are saying this is the standard. You wanna go triple A, go for it. But we're gonna hold you to double A. And so if there is guidelines that get released at some point in time, and there have been threats of guidelines, but they keep getting pushed out, this is what I would expect that standard to be listed as. So we should anticipate this or better are the accessibility guidelines that we should be aiming for. 

One of the other lessons learned, and this is one that in an institution of higher learning should be intuitive, but I'll tell you, it wasn't necessarily for me because I don't deal with procurement, is that if we are contracting with third parties, textbook companies that have online textbooks and guides, third-party vendors like Blackboard, et cetera. We need to write into those contracts if we are gonna pay you lots of money and you are gonna give us a product, you need to make it accessible, and this is the standard. Previously what we would see, and we saw this with at least one recent vendor that helped us develop online training for faculty, staff, and students, is that they were saying it was Rehab Act accessible. And that means nothing. So from now on, if we're gonna enter into contracts, this is one reason why centralized purchasing is important for consistency and standard language. If we are going to invite a third party in to provide a service for us that utilizes online content, we need to say we're not signing on the dotted line unless you can meet these standards, and this is the standard. So this is a way, kind of indirectly, for the Department of Education to force these textbook publishers to make their content accessible to the standard, without having to do so directly. Because if every school adopts this standard and adopts this language in their contracts, those companies won't have anyone to do business with. Unless they modernize. So, crafty, Department of Education, very crafty. 

And then additionally, there are other miscellaneous accessibility components that we have seen enough in these resolution agreements that the theme kind of emerges. So some of the things we want to think about in addition to online content and anything that's on a website, is how we modernize and offer resources through our library. Course and learning management systems are important. Classroom devices and the use of clickers, and are there alternatives. And even other types of online services on campus that you may see, like banking or ATMs. You know, some ATMs are more accessible than others. If we're gonna allow one on our campus, one of the strings attached to that permission should be you make it accessible. 

So those are some of the things that we've seen through three recent resolutions. Obviously, we don't want to learn firsthand the pain of a resolution agreement. They are public. It's not a point of pride to be on that list, so that first slide I showed you. But I think if we could learn from the collective lessons of other institutions, the road map really emerges very clearly. Again, even in the absence of what I would call ideal government guidance, the resolution agreements, from my take and my read, that is our guidance for now, and honestly it could be a number of years before we see it really put down into federal law or regulation. For some reason, we're just not seeing that happen at the speed that we would want. 

I would say this is a trick question, because compliance with the law is something we have to do, it's not optional. But it shouldn't necessarily be what is driving the bus, okay? We are a school of science and technology. We are a land grant institution. And if we are striving to really live our mission, my personal feeling, and this was reflected by the associate dean, who spoke earlier, and Dr. Kurtenbach, and our previous speaker, the fear of getting in trouble and mere legal compliance should not be the underlying motivating forces. Really, what we should be striving to do is serve our students as best we can. Our employees, as well. And the prospective students and employees who are looking at this institution, and for many of them, their first impression of us is gonna be online, and not necessarily in person. So I would say yes, we need to comply, but I would say that shouldn't be the true driving reason. Thank you.