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District Website Accessibility, the ADA and OCR

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Oct. 26, 2016

Over the past few months, more and more Michigan school districts have received inquiries from the Federal Office of Civil Rights indicating that a complaint was filed against the district alleging discrimination based upon disability. In particular, the issue generally involves vision-impaired individuals who are unable to access various portions of the district website; that is, the assistive devices that vision-impaired individuals use to read webpages are unable to interpret certain district webpages, or relevant portions of a webpage, for various reasons.

OCR states that, as part of its duty to enforce Section 504 of the 1973 Rehabilitation Act, as well as enforce Title II of the Americans With Disabilities Act, they will investigate these disability discrimination claims and take whatever steps necessary to ensure compliance. OCR has been investigating such claims throughout the country and generally enters into a similar Resolution Agreement with each entity.

At present, one of the most difficult parts of the standard resolution agreement involves OCR’s expectation that the district will “draft and submit to OCR for review and approval a policy and/or procedures to ensure information provided through the District’s website(s) (online content) is accessible to students, prospective students, employees, guests and visitors with disabilities…”

Initially, many entities that have been required to submit such a draft policy have been at a loss as to what form this policy should take. This is because the Department of Justice has been slow in developing the rules and guidelines they wish to see implemented, despite a 2011 Dear Colleague Letter that initially addressed the matter. In the interim, OCR expects districts to rely upon the Web Content Accessibility Guidelines 2.0 developed by the World Wide Web consortium.

So where does this leave districts? Without more federal guidance, professional policy developers, including NEOLA and most law firms, as well as MDE, are hesitant to create a model policy. Based upon the text of the standard Resolution Agreement, we know that OCR expects the following:

  1. A notice of nondiscrimination consistent with Sec. 504 and Title II
  2. Designation of a coordinator to comply with Sec. 504 and Title II whose name and contact information must be included in the notice of nondiscrimination
  3. A web accessibility policy that includes:
    1. A process for regular audits of the website to ensure continuing accessibility
    2. Identification and adoption of specific technical standards
    3. Regular training for all staff responsible for creating or distributing information on the web (teachers, admin, etc.) (Lynda.com is a good resource for this.)
    4. Information about the reporting process for complaints in the web accessibility policy

In speaking with other entities around the country that have dealt with this issue, including the state of Washington’s Office of Superintendent of Public Instruction, which submitted a proposed accessibility policy to OCR in August, these policies should strive to cover the deficiencies outlined in the Resolution Agreement itself. OCR wants to see procedures that include safeguards for ensuring that future web content is not published until it has been vetted for ADA compliance.

As part of its compliance plan, OSPI designated a staff member to be the organization’s “Website Accessibility Coordinator,” and tasked this individual with the responsibility of reviewing all content for ADA compliance. Likewise, OSPI also elected to create the position of “Web Content Producer.” This individual will be responsible for receiving all new proposed content from the various sources seeking to publish to the website and rendering it ADA compliant before it is published.

Finally, as it relates to any actual website accessibility policy itself, so called “legacy content” (i.e., web pages that existed prior to any OCR Resolution Agreement) will need to be brought into compliance or eliminated within a reasonable timeframe. However, OCR does not expect a district’s web content accessibility policy to address “legacy” issues. The website accessibility policy itself will need to govern the posting of new content only.

All districts should strive to ensure that community members are able to access information as needed, hence transitioning your website toward ADA compliance should be embraced. For a better understanding of how a noncompliant site can impede the visually impaired, follow this link. However, several experts are cautioning against “throwing money at the problem” by simply hiring an expensive consulting firm to fix the issues. ADA website compliance will be an ongoing issue moving forward but can be dealt with in small increments, and with only a little bit of research and training for existing personnel. Likewise, there are also several tools available that will evaluate web accessibility.

MORE RESOURCES:

The DOJ has developed this FAQ as a resources for those who initially had questions about its 2011 Dear Colleague Letter.

The Michigan Department of Education, which itself was subject to an OCR investigation and resolution concerning this very issue, created some very helpful documents, including a web accessibility plan, a guide for creating accessible Word documents and a Microsoft™ Word accessibility checklist. These are available through MDE. Contact Michael Flaminio (FlaminioM@michigan.gov) for more information.

MDE has also developed its own Accessibility Policy that may help to inform some local policy decisions.

The state of Washington Office of Superintendent of Public Instruction has, as a part of its Nondiscrimination Policy and Procedure, an accessibility form for reporting noncompliant webpages.

Education Week has published an excellent article on this issue, as well as a spotlight piece on the Michigan disability advocate behind this movement.

The Michigan School Public Relations Association will be holding a Drive-In Workshop on this issue on Friday, Dec. 2 at Michigan State University. Visit their website to learn more.

This topic will also be covered as part of the Michigan Council of School Attorneys Fall Conference on Thursday, Nov. 10 at 1:10 p.m., presented by Margaret Hackett of Thrun Law Firm.

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