WEBSITE ACCESSIBILITY LEGAL REQUIREMENTS AND PRACTICAL CONSIDERATIONS PRESENTED BY Tara L. Moffett, Partner Girvin & Ferlazzo, P.C. 20 Corporate Woods Blvd Albany, NY 12211 ph: 518 ‐ 462 ‐ 0300 tlm@girvinlaw.com Why is This a Hot Issue? • Civil Rights ‐ Compliance with Federal Mandates Prohibiting Discrimination on the Basis of Disability • Increasing use of Websites and On ‐ line Services by Districts • Internet may serve as the new “public forum” • Lawsuits and Accessibility Challenges are on the Rise • Increasing numbers of OCR investigations and Resolution Agreements for Website Accessibility Compliance • Technology Advances and Universal Design Principles • Decreasing Costs of Accessibility Features 1
Websites Serve as the District’s Point of Distribution for Public Information • Government and public agencies, including public schools, frequently use websites as a means of distributing information and allowing individuals to access programs and services on a 24 hours a day, 7 days a week schedule, offering flexibility for individuals who are unable to go to the offices during typical business hours. – Public notices ‐ many laws (state and federal) allow Districts to use their website to publicize information, including policies, required reports, guidance and systems information. (DASA, FERPA, IDEA, Title IX, Title VII, etc.) Websites Serve as the District’s Point of Distribution for Public Information – Parent/Teacher communication ‐ frequently Districts are using a school interface to allow parents to access information about student’s grades, attendance, assignments and other work. – Food Service Programs ‐ frequently use on ‐ line account services to initiate services, replenish funds, pre ‐ pay, or monitor student expenditures. – Forms, Calendars, Schedules, Contact information and other Resources are frequently accessible through a District’s website. – On ‐ line coursework, programs, resources and materials – Registration and Enrollment in clubs, activities and fees 2
What is Website Accessibility? • Making sure that Individuals with a range of disabilities are able to access the information and features of the website . • Accessibility may be achieved through a variety of means, such as • Accessible plug ‐ ins • Using Text files instead of PDF or graphic based programs • Captioning or Descriptions for Graphics or Videos • Text which can be manipulated (enlarged, change the contrast, change the font) • Alternate navigation features ‐ such as accessibility using a keyboard vs. mouse (for individuals with motor disabilities or visual impairments) This is not an exhaustive list. Website Design is Critical to Ensuring Accessibility Poorly designed websites can create unnecessary barriers to access online • programs and services for individuals with disabilities Website designers need to recognize that not everyone sees and accesses • a website in the same way Website design must recognize the need to provide access without • requiring people to see, hear or use a standard mouse in order to access information and services provided. Websites need to be accessible to certain assistive technology systems or • software, such as screen readers, text enlargement software and programs which allow voice operations, or adjust color schemes, contrast setting and font sizes, to name a few. All new and modified webpages and content also need to be monitored • for accessibility. Keep in mind that ANYONE who adds content to website must be • considering accessibility features (including on teacher webpages) Obligation to make information accessible is proactive, not reactive • ***If you are updating or modifying your website ‐ make sure to consider Accessibility issues as part of the design protocol*** 3
What Are the US Standards? • To Be Determined ‐ On April 28, 2016, the Department of Justice (DOH) withdrew its Notice Of Proposed Rulemaking ‐ Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, ( which had been submitted on July 9, 2014), • Simultaneously, the DOJ issued a Supplemental Advanced Notice of Proposed Rulemaking ‐ (same title above) which sought additional public comment and input in light of changes to the Internet, accessibility tools and assistive technology since the original announcement in 2010. Where Else Can We Look To For Guidance? International Standards ‐ which are referenced in guidance documents are the best source: – WCAG 2.0 (Web Content Accessibility Guidelines) • Four guiding principles ‐ perceivable, operable, understandable and robust (aka “ POUR guidelines”) – WAI ‐ ARIA (Web Accessibility Initiative Accessible Rich Internet Applications Suite) • A set of tools designed to improve website functionality, to make web content and web applications more accessible to people with disabilities 4
Relevant Laws and Regulations • Americans with Disabilities Act – Title II provides that “no qualified individual with a disability, shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs or activities of a public entity. 42 U.S.C. § 12132 Relevant Laws and Regulations • Title II Implementing Regulations ‐ A public entity shall: – Take appropriate steps to ensure that communication…[with individuals with disabilities] are as effective as communications with others. 28 C.F.R. § 35.160(a)(1) – Furnish appropriate auxiliary aids and services where necessary…28 C.F.R. § 35.160(b)(1) – In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. 28 C.F.R. § 35.160(b)(2) 5
Relevant Laws and Regulations • Determine the type of auxiliary aid or service necessary to ensure effective communication, recognizing that it may vary in accordance with the method of communication used by the individual; the nature, length and complexity of the communication involved; and the context in which communication takes place. Primary consideration should be given to the requests of the individual with disabilities . 28 C.R.R. § 35.160(b)(2) • This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or result in undue financial and administrative burdens. 28 C.F.R. § 35.164 Relevant Laws and Regulations • Section 504 of the Rehabilitation Act ‐ protects the rights of individuals with disabilities to access and participate in programs and activities which are federally funded. “[N]o otherwise qualified individual with a disability…shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance…” 29 U.S.C. § 794(a). • Section 504’s Implementing Regulations ‐ prohibit public entities from discriminating on the basis of disability in any program or activity which is federally funded. The regulations prohibit conduct which would interfere with an equal opportunity to participate in or benefit from an aid, benefit or service provided by the public entity. 35 C.F.R. § 104.4 6
Relevant Laws and Regulations No qualified person shall, be excluded from participation in, denied the • benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance. 34 C.F.R. §104.4(a) A recipient, in providing any aid, benefit or service, may not, directly or • through contractual licensing or other arrangements, on the basis of disability: – Deny a qualified person the opportunity to participate in or benefit from the aid, benefit or service; – Afford a qualified person an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded to others (aka equal opportunity); – Provide a qualified person with an aide, benefit or service that is not as effective as that provided to others; – Provide different or separate aid, benefits or services to persons of any class of persons unless such action is necessary to provide qualified persons with aid, benefits, or services that are as effective as those provided to others. 34 C.F.R. § 104.4(b) Relevant Laws and Regulations • For purposes of this part, aides, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for [disabled] and [nondisabled] persons, but must afford [disabled] persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs. 34 C.F.R. § 104.4(b)(2) • Section 504’s implementing regulations do not address “website accessibility”, rather they address accessibility related to the facilities and methods used to make facilities accessible. 7
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