by John E. Motylinski (Fall 2016)

The internet has become a tremendous asset in education. Therefore, it is no surprise that school districts nationwide have created websites to help students and parents access electronic sources. Unfortunately, not all school websites are created equal – some are not accessible to individuals with disabilities. This has caught the attention of federal regulators.

Recently, the United States Department of Education’s Office for Civil Rights (“OCR”) reported it has launched approximately 350 investigations against school districts regarding web accessibility. With the number of active investigations growing daily, website accessibility is a top priority for OCR. The result is that many districts are now scrambling to become compliant. As such, this article seeks to assist school districts in navigating the murky waters of web accessibility.

Q: What is “web accessibility”?

Broadly, the phrase “web accessibility” means that people with disabilities can use a website to an equal degree as those without disabilities.

Q: What laws require school districts to ensure their electronic resources are accessible?

In its complaint letters, OCR commonly cites Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (“ADA”) as authority for the proposition that school districts must provide accessible websites. Generally, both provisions prohibit individuals, on the basis of disability, from being excluded from participation in, being denied the benefits of, or otherwise being subjected to discrimination by public entities and schools receiving federal financial assistance. OCR has extended this language to require individuals with disabilities to be afforded an opportunity to participate in or benefit from school websites and electronic assets to an equal degree as extended to others.

Q:  What standard governs whether a website is accessible?

At the present time, there is no standard mandated by law governing web accessibility. Despite that, OCR and the U.S. Department of Justice (“DOJ”) have adopted on a de facto basis the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0”). These guidelines are published by the Web Accessibility Initiative of the World Wide Web Consortium, which is a major internet International standards organization.

While the WCAG 2.0 standards are not “official” at the moment, it is expected they will be formally adopted in the future. The DOJ has issued proposed regulations that would implement WCAG 2.0 as the official standard moving forward. While these regulations have been delayed for a number of years, it is presumed they will eventually become law.

Q:  What is generally required to meet the WCAG 2.0 standards?

WCAG 2.0’s general mandate is that websites must be “perceivable,” “operable,” “understandable,” and “robust.”

Under the “perceivable” category, WCAG 2.0 requires that all information on the website be presentable in such a way that users can perceive it. For instance, non-text content (such as pictures) must be able to be changed into other forms, such as large print, braille, speech, symbols, or simpler language. Additionally, foregrounds and backgrounds must be clearly separated—deep grey text on a black background likely won’t suffice. Finally, there must be multimedia alternatives, such as captioning, for those who cannot perceive time-based media.

Under the “operable” prong, user interfaces and navigation elements must be able to be operated by users. For example, web content must be obtainable solely by using a keyboard. Furthermore, websites should provide ways to help users navigate and find content.

As to the “understandable” section, all text content should be readable and understandable. A website should not contain confusing or obfuscating elements, but rather should appear and operate in predictable ways.

Finally, under the “robust” category, websites should maximize compatibility with assistive technologies.  For instance, individuals with diminished eyesight may require the use of a “screen reader,” which is a software application that converts text into computerized speech. The website must function with these aids without any loss of content.

Q:  How does a district know if its website is accessible?

The best way to tell if a website is accessible is to undergo an audit. This type of audit is not easily performed by districts themselves, given the complexity of the relevant diagnostic tool.
Accordingly, districts may need to hire a reputable expert to perform a web accessibility audit.

Districts looking to get an unofficial or cursory view of potential web accessibility issues can look to online accessibility checkers. One popular option is to use Web Accessibility in Mind (“WebAIM”), a website published by Center for Persons with Disabilities at Utah State University. WebAIM features a free web-based accessibility checker that assists districts to determine their compliance with WCAG 2.0. However, it must be noted that such free tools cannot supplant the well-reasoned analysis of an expert audit.

Q: Does a district have the obligation to ensure third party web content is accessible?

Yes. Title II of the ADA and Section 504 place affirmative obligations on districts to ensure everything on their websites – including third party content – is accessible.  This means that, if a vendor’s web application is not accessible, then the District can be held responsible. For this reason, districts should make certain to require guarantees of web accessibility from their information technology vendors.

Q:  What happens if OCR launches a web accessibility investigation against my district?

If OCR investigates your district for web accessibility issues, take the matter very seriously – but don’t panic. While OCR does has the power to terminate federal funding of non-compliant districts, OCR has demonstrated that it is most interested in compliance.  Commonly, OCR will accept settlements where the affected district promises to take remedial measures, implement web accessibility training, and make periodic reports of its progress.

Q: How can my district best avoid an OCR web accessibility investigation?

While it may seem obvious, the best way to avoid an OCR investigation is to make sure that all of the district’s currently available web content is accessible.   This can be achieved by performing an audit, which will show the district exactly what deficiencies exist.  If the district does discover non-accessible content, the district may consider removing the material until it can be made compliant. District personnel with web content authoring responsibilities should also consider undergoing accessibility training. This will ensure that only accessible content is posted moving forward.

If you have additional questions regarding the accessibility of your school district’s website, please contact Laura Weizeorick or Maureen Lemon at 630-682-0085.