RIIL/DBTAC Webcast no. 4 Website Accessibility April 22, 2002 Presenter: Dr. Cyndi Rowland RACHEL: hi, good afternoon and welcome to the Webcast on Website Accessibility: the Legal Landscape for Postsecondary Institutions. I'm RACHEL Kosoy, I'm here at the Southwest DBTAC which is at ILRU and we're your host for today's program. Before we get started I would like to recognize the sponsors of this program and review a couple of technical details. First of all, today's activity is a result of and funded by commitment of the National Institute for Disability and Rehabilitation Research, to make research and information readily accessible to everybody who has a stake in that information. And NIDRR funds the southwest DBTAC, which is your sponsor for this program and that stands for disability and business and technical assistance center. Just a couple of technical things to go over before we get started. First of all, if anybody out there has any problems during the Webcast, and if you need some technical assistance, there are people standing by to answer your call and you can call us at (713) 520-0232. And the next thing I want to tell you is that Dr. Rowland, the presenter, will be taking questions during the Webcast. So if you'd like to submit a question, you can go to the bottom of your RealPlayer screen. There should be a link there to click onto submit a question, or you can go ahead and address it to Webcast@ ILRU.org. Okay, now I'd like to introduce our speaker for today, Dr. Cyndi Rowland. Dr. Cyndi Rowland works at the Center for Persons Can Disabilities at Utah State University. She is the director of keeping web accessibility in mind, or for short, WebAIM which is the U.S. Department -- and the U.S. Department of Education funds this program. And WebAIM works to mitigate the enormous problems of inaccessible websites that exist in postsecondary settings. Dr. Rowland has expertise in conducting research as well as speaking and writing about web accessibility for people with disabilities. And she's really an expert on today's topic, which is legal issues for postsecondary institutions which it comes to website accessibility. So, Cyndi, thank you for being here today and I'll now turn it over to you. DR. ROWLAND: Oh, you bet and Rachel, thank you so much for that introduction. And inasmuch as I want to make sure that today I cover postsecondary education's institutional responsibility for web accessibility from a legal standard, I want to make sure I'm covering the other major laws as well that cover web accessibility or that people are talking about that may cover web accessibility. We have a lot of gray ground here that I want to cover, in part because I'm hearing a lot of folks that have some pretty basic misunderstandings about what's going on. So as Rachel said, what I'm going to do is present some information and then stop. I'm going to try to chunk this so that I'm getting all of the comments and questions that all of you have at some regular intervals. Now, I did understand we've got a full hour here and I've selected the materials in such a way that I think that I'll just be presenting probably 10 or 15 minutes at a time. So if I've figured this right, we really would have opportunities for me to take your questions for, oh, a good 20 minutes out of this hour, which would just be wonderful, and I'm going to do my best to answer everything that comes in. Please also know that I encourage comments that come in from folks that have had experiences with some of these elements. Well, if any of you have pulled off the html version of my content today, you will have the information in front of you that I'm going to be covering, but in our brief time today I am just going to cover the legal picture of website accessibility with an emphasis on what that means in postsecondary education, and recognizing that this is pervasive across our culture. So inasmuch as we're going to focus on postsecondary settings today, the laws don't necessarily limit within those settings. Okay, on I believe it's like the fourth slide here, I just wanted to provide for folks kind of a summary of the major pieces of the law. Then I'm going to go into each one more in depth and try to describe where we are at this point in time. But there are several laws at this point that reenforce the notion that the internet should be accessible to all individuals, including those with disabilities. The reauthorized Rehab Act is one of those and there are two specific and distinct sections that are part of the Rehab Act. Section 504, which many of you if you're in postsecondary education already are very aware of, and Section 508, which is a mandate for federal agencies. Again, I'm going to cover each of these in depth in just a few minutes here. We also have as another major piece of law, the Americans with Disabilities Act. Now, although when it was enacted there was no such word as the internet that appeared within its statutory language, there is a lot of information I can share with you about why the ADA may clearly apply to the web. So we'll be covering that. The telecommunications act is another piece, although I'm not -- I'm choosing not to talk about that so much today because that talks more about hardware and I doubt that any of you out there are designing, you know, cell phones and pagers and other kinds of telecommunications equipment and would need to know what the law says about your requirement to design it in a way that would allow for assistive technologies. The other thing I would want to toss in here is that in addition to some major statutes like the ADA or like the Rehab Act, there are several responses and letters that have come out of the office of civil rights out of the U.S. Department of Education that also support this. So there really is wide support, and I'm going to -- and I've provided docket numbers, things like that. Norm Coombs, who has the EASI Project, and that's easy access to software information, and you can find his website at www.easi.cc on the internet. He has an entire section on laws and policies, and he's got links to some of these docket numbers. So if anyone is interested in getting more specific information on this, you may want to go to Norm's site. And then before we get moving on to some of the specifics, I'm also going to highlight our own site, that is www.WebAIM.org. We are in the midst right now of a free national training event, and all the materials are available online in an on demand format. Week two of the training we covered a lot of the legal background and as one of the reasons people might choose to create accessible websites. So if you're interested in sharing this kind of content with some of your colleagues, what you want to do is go into the WebAIM site and go into the national training event portion of the site and again it's week two, and you would be able to find legal considerations under that. Each of these is covered in detail there. So I'm hoping that that provides everyone with sufficient resources that they can either use for themselves to clarify things or to pass on to colleagues. Okay, we're going to start right in with the one section that pertains the most within higher education, and that is Section 504 of the Rehab Act. Many of you are very aware of this, and in part, that section states, and I'm actually reading from the statute: no otherwise qualified individual with a disability in the united states shall solely by reason of his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Now, it's very clear the intent of the federal government in this kind of language that if you are an institution receiving federal funding, you may not discriminate, and this actual -- this is an anti discrimination piece here. So in much the same way as those of that you are in higher ed right now make accommodations for students with disabilities for their on campus classes, you need to make sure that accommodations are being made for web based work as well. Now, let me just take a quick segue and remind everybody that on higher education campuses, colleges, universities, professional development schools all over the country, the web is becoming an ever more important piece of education. Not only do we have online courses, but we also have an awful lot of courses that are campus based and that have heavy supports from the web. It's very common right now for an instructor to have a campus-based class and to place the silly bus on the website, to place assignments on the website, to place other references, maybe even the course readings or links to them. So it's not as cut and dry as we're just talking about online or distance learning courses because that's not true anymore. We're now talking about most courses because many have these online components. Under Section 504 of the Rehab Act, you need to make sure that students have what they need to get through their courses. Now, one of the things that I am always cautious or I want to caution people about is making post hoc accommodations. There are some situations where a brand new student will come to your school. You have absolutely no idea that this student was going to sign up for, let's say, an English class and it was web based components. The second that you find out about them, boy, you are working your tail off to make sure that every aspect of that website is accessible for the student but that scenario is actually few and far between. More likely, you have students that have enrolled themselves in the disability service office and are following a plan of study through their advisor, and for any of you guys that are involved in disability service offices across your region, you know how important it is for those students to be working with their advisor, in part because you need to plan for -- an example would be a book on tape that they might need for the coming semester, or a book on braille that they might need the coming semester. So it is more typical that we actually know a head of the curve when it is that students are going to be taking courses. Now, one of the things that I've heard as I've gone around talking about website accessibility is this notion that, well, we won't fix the website until the student is actually in the class. And I would just want to caution people that in the past, although courts haven't ruled specifically on the web, they have ruled definitively that if you are aware that a student is in your school and you are aware that a student is going to be taking a class, it is your responsibility to make sure that those materials are ready for them in a timely fashion, and so you wouldn't want to wait until the beginning of the semester to start making accommodations. Of course unless those can be made within a day. That would certainly be permissible, but do be very aware that you don't want to get yourself into a legally vulnerable position by making these after the factor post hoc accommodations or you could get yourself into a little bit of trouble. Let me stop right there and allow for questions or comments to come in on Section 504 and the obligation of individuals within -- I'll say higher education, but it really again could be any entity -- any educational entity receiving federal funding. And the obligation to provide an accessible web. Rachel, anything? RACHEL: yeah, we have a couple of questions, and some of them might be getting a little bit ahead of yourself. So if you want to postpone answering some, just let me know and I'll make sure to reask them later. But somebody is referring to how you mentioned posting assignments and maybe posting a syllabus on the web, and they want to know, well, are you saying that they can't do that or is it just that they need to make sure it's accessible, and what do they need to know to ensure that they are doing that in an accessible way? DR. ROWLAND: that's an excellent question. No, absolutely. I would never say that folks shouldn't post stuff onto the web. In fact, the only way students with disabilities are going to learn to use the web is by using it just like, you know, typically abled students do. You have to go out there and you rata round and you get the information you need. In fact, we would be doing students with disabilities a huge disservice if we decided, well, you know, it's just going to be easier, we'll just talk this instructor into not posting things on the web and we'll make accommodations in another way. Again, we are robing students with disabilities from an opportunity to learn how to become power users of the internet. And in fact, as a quick little segue, I'll just mention that students right now in both high school and in college learn to use the internet by practice, practice, and practice. Right now, if I had a job open and I had two highly qualified candidates with equal education and experiences, but one of whom I knew needed to use assistive technologies to get onto the internet, and I also happen to know that because of the way the web is designed, that person would probably not be as successful getting information to me that I might need, and again I would want to reiterate, not necessarily because of her skills, but because of the way that the web right now is limited in terms of its access. Who do you think I might hire? So we've got this horribly unequal footing to begin with. If we were to compound it by eliminating or reducing the opportunities for students with disabilities to learn to effectively and powerfully use the resources on the internet, we've done them a huge disservice. So, again, going back to what -- I guess I can't call them callers, can I, Rachel? The e-mailer wrote in, no, definitely, you wouldn't want to reduce those opportunities. You do want them up. Now, in terms of how do you make sure that you are making it accessible? That's a little bit more of a complicated question and I'm going to try to answer it as simply as possible. It's very important for every institution of higher education to have their own written, articulated policy on web accessibility. Now, what that policy is going to do, it's going to say from -- you know, our institution defines web accessibility to mean this. So let me throw out a couple of things and I hope I'm not confusing people with the information I'm presenting, but I guess you guys will e-mail comments in if I am. RACHEL: and also, Cyndi, I just want to let you know that we can go for up to an hour and a half if that's what the audience wants. DR. ROWLAND: that's even better. One of the groups that has -- that actually began by setting guidelines on web accessibility is the web accessibility initiative out of the world wide web consortium. Now, an institution might decide that what they would like to do -- and oh, let me -- I've got to back up a little bit. That particular group defines web accessibility in three distinct chunks. Priority one elements are those things that absolutely have to be present in order for a website to be accessible. Priority two are those things that would really enhance the accessibility of a page, but might not technically be absolutely required. Priority three are -- in a way I call it a wish list of consumers, things that wouldn't absolutely be necessary for everybody, but consumers are saying, please, please, please consider this when you are putting together a website. So an institution may say to themselves, you know what, we're going to go ahead and define for purposes of our institution the WAI, the Web Accessibility Initiative Guidelines of all of priority one and, you know, we're feeling pretty good here. We're going to say all of the elements under priority one and priority two are going to be our university standard. Another thing I've seen folks do is they look at the federal Section 508 guidelines that cover the web and I'll be talking about that in a few minutes. I've seen a lot of institutions that say, you know, we think this is going to be the way of the future. The federal government is defining web access, so we're going to say that our institution's policy for web accessibility is that we will follow all of the Section 508 guidelines and that will define what web accessibility means. So going back to what the e-mailer's question was, how do you know if you are hitting that mark? The first thing is you need to know what the mark is. So the first thing I would say is what is your institution's policy. Now, I just gave a couple of examples. Certainly there are lots of other ways that individuals could be setting their own institution's policies and standards that may or may not have anything to do with Section 508 or the web accessibility initiative guidelines. But as soon as you know what that mark is and as soon as your institution has policy and that that policy is well articulated so you know exactly -- a designer would know exactly whether a certain page passed or failed, that's when you could look at any page and say, is this meeting the standard? What I see mostly important colleges, universities, professional development schools is they don't really have a standard or their standard is something like this: our institution is committed to providing full access of the internet and in doing so we will comply with all ADA requirements. Well, we'll talk about this in a minute because there are no ADA requirements, but if you were a web designer, what in heaven's name would that even mean? When you think about it, you wouldn't know if what you're doing to your page is helping it or hurting it. So policies need to be very clear. They need to be very specific. The last thing that I'm going to say and Rachel we can look at another question or you can review if I've adequately answered this, is really the timing of all of this stuff. You know, if I had a situation where I needed to quickly get a website accessible and it wasn't yet ready, to be quite frank with you, I would -- I wouldn't deny the one student with a disability access to the materials. I would withhold them from everybody for the next couple of days until everything got -- you know, got going. Now, that would be -- that would be my personal preference, and it would certainly give me a better legal footing. Now, as long as we're not talking about withholding materials for weeks, because then that disadvantages all the students; but again, remembering that Section 504 is a piece of -- well, it's a piece of anti discrimination language in the law, you want to put everybody on equal footing, and you want to do it within a time frame that is going to be reasonable. RACHEL: okay, I think you did a great job of answering the question plus giving some additional information that maybe people hadn't thought of that's helpful, like your last suggestion. As well as just helping people be mindful that it's important to continue to use the internet because students with disabilities really need to become literate technology-wise. DR. ROWLAND: absolutely. RACHEL: okay, there are a couple of other questions. I'm going to kind of smush them together which has to do some with enforcement. So they are sort of interested in you mentioned that the courts have ruled against the practice of post hoc accommodation. DR. ROWLAND: correct. RACHEL: so e-mailers are interested in where can they find those court cases, and then sort of partnered with that there is also some interest in how is this law actually enforced. DR. ROWLAND: yes. What I can do, and you'll just have to tell me how you want to deal with this information, Rachel. I know that this information on the post hoc accommodations is within our week two training materials, but I also know that I got it off of the section -- the legislative section off of the easy website. RACHEL: okay, well, I will put links to the information. This presentation will be archived after today and where everybody was able to access the related material and information about the presenter, tomorrow we will add links for this additional information. DR. ROWLAND: good. And Rachel, what I will do then is I will send you some of that information so that folks can go through it. RACHEL: great. DR. ROWLAND: now, in terms of enforcement, what I think is important for every one to keep in mind is the process of accommodating a student under 504. You know, typically what happens -- first off, these students are required to self-identify themselves to the institution. I mean, you can't -- you clearly can't be requiring accommodation if you haven't asked for one, and institutions are not compelled to provide any accommodation for students that they are unaware of or that don't meet the criteria for being assessed and having a disability. What typically happens is that a student is going to take class x., and they work with the staff from the disability service office to figure out if there are materials that they're going to need in an alternative format or in the instance of the internet if there are web based components to the internet so that the disability resource or office is aware of the scope of their work. Next, what usually happens is folks from that office then contact faculty members to let them know that there is a student who is going to be needing some accommodations. It's only if there is some mismatch in terms of what the student believes is a reasonable accommodation and what the staff are able to do, is there going to be a complaint that is filed? Now, someone out there may actually know the data on this because I don't. Someone may know what percentage of internal complaints actually end up to be real complaints that get filed and, you know, lawyers start looking at it and all of that kind of stuff. I don't have that kind of information; but I would imagine it to be very, very low, that you're looking at a very small percentage of things that can't be resolved locally within the institution. On the other hand, with the way that the web is exploding and that folks are understanding that websites can be made accessible, I suppose if there were in the future more and more sites that were totally unavailable to students, you know, this could become more of an institutional problem. And they might see an increase in complaints. But that's really how this stuff is monitored over time. It's really through the process of students lodging a complaint. If it can't be settled internally, then it goes -- you know, up the chain through hearings and to potentially a court situation. So I hope that answered it. I'm also hoping, Rachel, that there might be a listener that has some specifics on some of that stuff, and they might be willing to e-mail that in. RACHEL: okay. Yeah, and if people -- I also would encourage people to e-mail in if you have any specific situation you're trying to figure out how does the law apply to that situation to go ahead and send that in and challenge Cyndi. DR. ROWLAND: yeah. RACHEL: I have one other question which I'm going to hold for now. It's more specific. It has to do with Adobe Acrobate so I'll bring that back near the end. Let me let you go on. DR. ROWLAND: what I'm going to do right now is leave Section 504, but we're going to stay within the Rehab Act and I'm going to move on over to Section 508. Now, what's important for everybody to -- I'm sure a lot of you guys have heard tons of information about Section 508 and in fact depending on kind of the area that you work in, Section 508 may have sounded to you a little bit like chicken little. Section 508 is coming, the sky is falling, you know. And we're all going to get in big, big trouble. And that may or may not happen. So let me explain to you what Section 508 is and where higher ed fits into the pick tour of the Section 508 regulations. Section 508 of the Rehabilitation Act is a statute that requires federal agencies to provide accessible goods and services, okay, of all of they're electronic information technology. So if I am a federal agency -- let's pretend I'm the Department of Education. I cannot purchase, let's say, a computer that would not be accessible. For example, that wouldn't hook up with some assistive technology. If I am the IRS -- there, that's a good one because everyone is still stinging a little bit from a week ago, I would not be able to post a website because that would be considered a service unless it was fully accessible. Electronic information technology, which is the requirement under Section 508, is a very, very broad category. It covers printers and fax machines and absolutely anything you can think of that a federal agency would either purchase or they would contract services out -- you know, contract for services, but for the purposes of today's discussion, I'm just going to limit the Section 508 discussion to the internet which is one of the many pieces of electronic and information technology. Section 508 is just a huge deal right now for a lot of reasons. One of the reasons that it's such a big darn deal is it's the first ever statute that actually includes the word internet in this kind of a context. So it actually says that there needs to be an accessible web. Well, web components again of federal agencies need to be accessible. The other thing that the Section 508 statute did or that section of the statute I should say is that it defined for the federal government what web accessibility would be. So if you'll recall, we were talking a little earlier about institutions of higher education defining what their policy would be for web access. Here we have an instance where the federal government has defined what web accessibility would be. So one of the reasons 508 is such a big darn deal is that we have the first ever federal definition of web accessibility. Now, a lot of people believe, and you know, we won't know, this is total crystal ball work here -- a lot of people believe that since the federal government spent considerable time and energy to define what web accessibility means under 508, that as this question comes up in the future, they may look back to their own existing definition of web accessibility rather than recreate another one. And that does make a lot of sense. Let's pretend that there was a complaint filed under the Americans with Disabilities Act or under Section 504 of the Rehab Act or under something else. For the federal government to redefine what web accessibility means in those contexts could be very confusing, and although this has happened in the past in government, it's unlikely that the federal government would want -- I don't know -- a half a dozen different definitions of website accessibility running around just because of how confusing it could get. So, again, just to reiterate, one of the reasons that Section 508 is such a big deal right now is that it provides the first ever definition from a federal standpoint of what web accessibility means. Now, for any of you that are interested in the specifics of that, we have on our WebAIM site a little checklist -- a 508 Checklist and I believe you can get that -- of course again we're at www.WebAIM.org/-- oh, I should probably try to look at this, /standard/508/checklis , and in fact, let me make sure that I just gave you guys the right URL for that. Standard/508/checklist -- okay. I gave you the wrong one. [http://www.webaim.org/standards/508/checklist is the correct address dawn] So I think what I'm going to have to do is, Rachel, I'll get you what the correct one is. Of course you could go just to the WebAIM.org site and find our 508 checklist. So there are 16 very specific statements about what web accessibility means, and what's important for you to know if you go look at our WebAIM checklist is that we at WebAIM created the columns that say pass and fail. It's our interpretation of the federal language, not a federal one. But I think it can be a very useful document for folks that are trying to figure out at what level of web accessibility is the federal government requiring of its own agencies. Another reason that 508 is a big deal is because it is written in compliance language. All of the stuff that had been written and published before -- for example, the web accessibility initiative and I'll refer to that from time to time as the WAI out of the World Wide Web Consortium provided a lot of guidance. That's the priority one, two, three I spoke of earlier, but those were never intended to be standards. Those were guidelines, and they were written in guideline language. Now here we have something written as a standard and something that could be monitored at a distance. Certainly there are consumers with disabilities trying to get onto websites and they understand now because Section 508 took effect last June, that they can start complaining if they hit a federal agency whose site is not accessible. And you know, that just makes sense. They pay taxes just as much as you or I do. So shouldn't they have the same access to governmental information? To me, that's almost a no brainer. But these standards can, for the first time, be monitored at a distance. Oftentimes when projects or different entities are going to have even some aspect of a federal evaluation, or even a state evaluation, a site-based team would arrive and do stuff. So you always have that warning, but now that someone can pull up your site at any point in time, they can frankly look to see the extent to which you are complying with the Section 508 guidelines. Now, again, remember in higher education, you're not compelled to comply with 508. All federal agencies are. Everything that comes under, you know, a federal agency is something that is covered under 508. Now, let me get to why this gets a little confusing. There is in every state in our country, there is a chunk of money that states take called the Technology Acts, the Assistive Technology Acts, and in order to take that chunk of money and do some very important work within their state, they sign off what is considered assurances. So they say, you know, federal government, we will take this money and we promise you or we assure you a whole bunch of things. We assure that our state will -- all of our state agencies will comply with equal opportunity and anti-discrimination hiring practices. We promise or assure you that we will follow a certain kind of auditing procedure that you require. Well, one of the other things, and there is a whole bunch of other assurances. One of the assurances that state governments have to give the federal government in order to take the tech act monies is the assurance that all state agencies will comply with all of the Section 508 requirements. So in your state, it's entirely possible that all state agencies, including higher education, will have to come under the same procurement -- well, the same requirement for accessible electronic information technology for all goods and services. Now, this is something that is likely going to be tested. We're just going to have to wait and see. Wait and see what the clarification on this is going to be. Interestingly enough, this isn't under the Department of Justice, this is under the Department of Education, and they are supposed to clarify for states this piece, whether state agencies are in fact compelled under Section 508 and I have not heard that they have done so. And in fact, one of the things that I heard was that they didn't -- they were quite reticent to issue a statement because then they would have to follow it up if there were any complaints or any other litigation and they just don't have that in their budget. So they may end up by waiting for court cases to define this. So it's really quite a gray area. It makes sense to me that, on one hand, that if states are writing this, assuring the government that they are going to follow Section 508, that they would do that. On the other hand, it makes sense to me that you shouldn't be able to hold me to something that I was unaware of at the time that I signed. So who knows exactly what's going to happen. I will say this, though, there are some states right now -- in fact, Missouri is one that I can point out. The state's chief information officer has already made a public commitment that all state agencies, including higher education, will comply -- their state will assume that Section 508, you know, is going to be applied to them. So they're just getting the work done, and frankly, I think that's the most progressive and proactive way to work, instead of sitting around and just waiting for some court case to define it, and then having to get up to speed really quickly. In this way, they can go about a very planful and very systematic particular way of getting everybody up and running before it's required. RACHEL: Cyndi, if I can interject one thing. You have a question that relates directly to that comment. And people wanted to know -- or somebody wanted to know, are there also state laws that also affect the university's responsibility to provide I. T. access? So you said something about some states have made -- I don't know what word you used -- statements or are there actually some state laws that affect this. DR. ROWLAND: that would be on a state by state basis. I'm not aware of which states have enacted what kind of laws. The listeners might know if there are any in your area. Again, I know, for example, Missouri has just decided that they're going to move in this way. I don't know that it's going to become part of their state law, but I do believe it's going to become part of their state policy. If there is anyone from Missouri listening in, they might be able to clarify that. Again, I didn't really think through to kind of comb some state laws under access, so I'm not really prepared to talk about that. My sense is that few states would have done that because they're either going to interpret their state agencies to fall under the federal guidelines of Section 508 and if they interpret it to mean that, they've got ample, you know, leverage to get the work done, or they're going to interpret that they don't. So I don't know why they would necessarily spend the time to create a new law, although again, I have to say that I just don't know; but it certainly could happen. RACHEL: okay, and I know some of the governor's committees on people with disabilities have information about their individual states. DR. ROWLAND: right. RACHEL: so that might be a place to look if people are curious about what's happening in their state, that might be the first place to look. DR. ROWLAND: right. RACHEL: sorry to interrupt you. Go ahead. DR. ROWLAND: that's okay. Well, I just wanted to cover really briefly the exceptions to 508 and then we'll finish up with comments or questions that people have. There are three exceptions to Section 508, and these were put in place in part because there are some branches of the federal government that deal with a lot of very sensitive information, so they needed to make sure, for example, that if making a site accessible was creating a problem of national security that for that element -- not for the entire agency and for everything that they do, but for that one element, it's okay for it not to be accessible. Of course there is nothing that any of us do that would fall under a national security provision, so we can forget about that. Another provision that would exempt you from the 508 regulations would be if it's considered an undue burden to do so. The interesting thing is that as the Rehab Act was being reauthorized, the designers of this were so -- the designers of 508 were so worried that every one would cry undue burden, undue burden, that they frankly made it almost an undue burden to prove and it's on your shoulders to prove that it's an undue burden. And I won't go into all the details, but all I can tell you is that it's probably more of an undue burden to prove that it's an undue burden rather than just to do the work. Now, every once in a while there is going to be something that is then going to work and you're going to want to make sure that the designers are keeping a paper trail on all of the different experts that they have asked and all the paths that they have followed. So if it comes back to you, instead of just saying, well, that was an undue burden, it couldn't be done, you'll be able to say we followed these paths. We talked to these national experts. We've done all of this stuff, and the consensus of everyone is it can't be done and there was no other way to make an accommodation, which I know is ridiculous because you can accommodate just about everything. The other exception to 508 -- now, this one makes sense to me -- is if making the accessible fix actually alters in a fundamental way the nature of the web content -- now, let me give you an example of what that might be. Let's pretend that I am an instructor of ancient languages, and so one of the things that I've put up on the website are these little images that were taken probably from like a digital camcorder, something like that, of fragments of the Dead Sea Scrolls, and the assignment that students have to do from these images on the web is they have to translate that. So clearly, we have a visual signal and students need to do something else with that visual signal as the end product. Well, if I were to make that image accessible, I don't know how I would do it without fundamentally altering the nature of the activity. Because typically with images, what you do is you put alternative text behind the image or you provide a long description or another link that fully describes that site. So my choices would be to either go ahead and provide the transcription of what was up there, which of course now the student doesn't need to engage in work, that would be silly, or I could put up something that's totally inadequate like this is an image of the Dead Sea Scrolls or something like that. That's not going to help the student. There is probably no way I can describe this in such a manner that the student would be able to provide the translation. But you can see that there are some parallels because if you had that student with typical materials in your typical classroom, you would probably struggle with how to make a reasonable accommodation so that they could learn to provide that translation from a textbook or even if they had that right in front of them, and of course I've been talking about this entire example as if the student in question has a visual impairment and I should have made that clear up front. But those are the three exemptions under Section 508. But let me stop here and find out if there are comments or questions on 508. RACHEL: well, I think the other comments and questions might sort of incorporate information about the ADA, too. So look at the questions I think it makes more sense for you to finish up on the ADA and then I'll ask them. DR. ROWLAND: okay, great. Well, the Americans with Disabilities Act as you are all aware was a landmark piece of civil rights legislation for individuals with disabilities and it was enacted in 1990. Now, it's important to remember, again, that nowhere in the ADA does the word internet appear, but a lot of folks do believe that the internet is going to be covered. And, you know, I have to admit that I believe that as well, and we're not going to know -- in fact, it's funny, if you ever hear any of your colleagues saying we need to make this accessible under the ADA, you can correct them because the ADA does not require that at this time. Quite a while ago there was a letter that went in from Senator Tom Harkin into the office -- into the Department of Justice Asking the Department of Justice if they believed that the internet -- that they believed the internet to be sub assumed under the ADA and what the department of justice replied was that if it fits under the criteria of the Americans with Disabilities Act, it would be a covered entity. Now, let me explain to you two places where I would imagine it would likely be covered. Under Title II of the ADA is a provision for effective communication, in other words, it's considered discriminatory if you communicate one way to one person and a different way, a less effective way to someone with a disability. One of the pieces of effective communication is a piece called timing. Now, we know that the internet is there 24/7. Of course unless a server goes down or a phone line is out or something like that. Are there really mechanisms to communicate with the same kind of timing that appears on the internet in alternate formats? Also, under effective communication is the notion that in some instances the only place that that information is communicated is on the internet. So if an individual couldn't get to the internet, they couldn't get that information period because there is no phone number they could call, there is nothing like that. So the internet, in my opinion, may come under the effective communication provision. There is another entire area though under Title III of the Americans with Disabilities Act, there is a whole array of things that define something as a public accommodation, and if the internet is defined to be a public accommodation, then under the ADA, it would need to be made accessible. Now, when the -- when they are talking about a public accommodation, they are talking about things like this: a place of entertainment, a place of commerce, a place of education, you know, a place of a gathering, like a social gathering. So they're talking about things that to me define the internet. I mean, that is exactly what the internet is these days. It's places for people to come together to transact business, to learn about things, to interact with one another, to post their own social views on our society, I mean all kind of things. So it's my opinion that because of the effective communication provision and the public accommodation provision, in time, the Americans with Disabilities Act will probably subsume the internet as one of the things that they cover; but what's critical for every one to remember is that we will have to wait for court cases to make that statement. As much as I believe that the train has left the station and at some point in time this is going to happen, we just never know. We never know how this stuff is going to come down. The other thing I want to mention about court rulings, there have been a number of lawsuits that have been filed. Some of you may have heard of a very famous one years back, the National Federation for the Blind sued America Online for their failure to provide an accessible platform for its members. And AOL settled out of court. There have been numerous lawsuits since that time, and in every instance, they have settled out of court. I think until we have some -- a group of consumers who is willing to dig in their heels and not take court settlements, but try to push it to a decision, we're not going to know the answer to this. So it's also along with whether Section 508 applies to any of you, we have the notion does the ADA apply to you, and not only to students, but also to staff members, because Section 504 only applies to students. That would not apply to faculty and staff at your institution, but the ADA would under equal employment. You know, you can't -- for example, I wouldn't be able to -- well, I don't believe I would be able to create an intranet, not an internet, but an intranet that is inaccessible and yet require everybody to do their job on it because then what I'm saying is that I can't hire an individual with a disability because their job requirement is to interact with something that's not accessible. To me, that would be something just ripe for a complaint under the Americans with Disabilities Act, under discriminatory employment practices, and that should be fixed. But again, the ADA -- well, I'm also going to throw in and the constituents you have in your community. Think of all the library resources and other things that your community members may have access to, any of those that aren't accessible could be considered a problem under the Americans with Disabilities Act. Again, separating that away from Section 504 because those cover different entities. Okay, I'm going to stop there and see if I have just entirely confused people or not. RACHEL: no, actually, I think you're doing a good job, and some questions came in and you actually answered them before I got a chance to ask them. DR. ROWLAND: that's good. RACHEL: you anticipated the crowd. All right, I have a comment and then I have at least two questions. DR. ROWLAND: okay. RACHEL: the comment is I really like your comment about withholding course materials from all students until they can be made accessible to any member of the class who has a disability. This is the kind of statement that makes people sit up and pay attention and then they said, and maybe even change practice. DR. ROWLAND: exactly, because you would never in a million years says I'm going to withhold information from these 90 students, but you would withhold it from one? I mean, it's so -- I think that that kind of stuff really does put it in perspective. Are we being discriminatory, and if not, let's withhold it from everybody. RACHEL: that is a good point. I'm going to bring back up this Adobe Acrobat question, and this e-mailer said he's found very little information about Adobe Acrobat and whether or not it can create files that are compliant with accessibility guidelines. Do you know if this can be done? DR. ROWLAND: that is an excellent -- that is an excellent question. Let me answer it this way: Adobe has made some progress in creating accessible PDF. The best way -- the short answer is it's still not accessible, but the long answer is if you have the most recent version of Adobe Acrobat and you are being careful to put everything in a full OCR format and you do a few other little things, and frankly, all of these other little things are outlined on our WebAIM.org site. We cover PDF, Power Point, we cover a whole bunch of things that are problematic in higher education and we talk honestly about whether they can be made fully accessible. If you do everything right, you're going to be more accessible to more people than you were before; but that doesn't mean that under some circumstances you're still not going to block some folks out, and this is where we end up by just having some limitations because of the technology. I believe that folks in industry are working hard on these kind of solutions, whether those are going to be available to us in the next few years is a huge question. The practice that is really awful are folks that just take a document and they just scan it and they post it. Because when you do that, what you've posted is basically one big fat image, so you could never get assistive technologies like screen readers, refreshable braille displays, things like that to get in and get the text. The other thing I'm going to say about PDF documents that is very disturbing to me, sometimes folks assume that, well I'm going to get the latest adobe, I'm going to make sure everything is OCR compliant, I'm going to do all of this stuff, but the document is still rife with charts, graph, images, who is to describing those? Who is going back in and saying, you know, this is a chart of the number of people in Utah that eat Jello by color and then -- by color of Jello I mean, and then describing, you know, every little cell on that data chart because if that is necessary, if that chart is necessary for folks to understand the content, someone has got to provide an alternate description to that, and even folks that are going in and doing a very good job with the best that they can do under current limitations than PDF, I'm still not seeing folks going in to provide description, descriptive links or long desk attributes to these kind of things. So that was a long winded response, wasn't it, Rachel? RACHEL: but it was very thorough. Okay, this is switching gears a little bit. This question has to do with how should an institution handle if -- I'm trying the paraphrase. It's kind of along question. If a student cannot access many inaccessible sites where they could get some research. So if they're doing research related work at school, you know, the writer says they understand that the institution where the student is not responsible for those other inaccessible resources, however, what do they do because ultimately the student with the disability is not getting access to all of the websites and resources that the other students are, and so they're not actually getting to do their full scope of research. DR. ROWLAND: right. Well, this is an excellent question, and I sure wish I had an easy, clean answer for it. But the reality is that a lot of folks have found wonderful resource materials out someplace else, and they are linking students to get out there. Now, clearly, your university isn't going to be responsible for the accessibility of some other site, but the issue is are you responsible for requiring that that be part of the student's work, and I think that's what is at issue. Now, let me give you a little analogy and it will make this piece a little more essential. Let's say I'm an instructor in a medical field and we are running some little unit on optical research, what's going on with respect to eye surgeries and physics of eyes and all this kind of stuff. And what I say -- and first let me put it in a requirement. What I require is that all the students in my class purchase a ticket and visit the Mayo Clinic because there is a wonderful reference or a wonderful resource. They can talk to him and they can actually see because he has a lab all the things that are going on. Now, we would never in a million years do that because of course what that sets up is a class system or a cast system, if you will, where students that have a lot of disposable income or wealthy parents could participate in that and probably enhance their grade and those that couldn't, you know, who knows, would they even get the same access to the same learning experience. I would say no. On the other hand, if I can present the information in another way and anecdotally say if any of you are ever in this area, you would want to meet up with this person because of all of these wonderful resources that they have. Now, I'm not making it something that's an integral part of the curriculum. So when you think about linking information, you know, you may want to think about is it a requirement to get that information to complete the assignment or integral in terms of the information that it provides. Now, with that said, I'm also going to be a realist and say there is no way you can make a statement and say to every faculty member, oh, by the way, it's our institution's policy that you better have checked every single site that you send students to, which of course would be the best way to go, but I will say that I think it is an instructor's or at a minimum an institution's responsibility to dog those people. I can't tell you how many folks respond to little complaints that they get. And certainly if someone at a corporate level -- like let's pretend that students needed to go out to Amazon.com or Barnes & Noble.com and I can tell you neither one of those are accessible at this moment in time to purchase some ancillary books. Well, there would be clearly some ways to work around that because they both have 800 numbers that I believe work almost on a 24-hour basis, but I still think what would be important would be for that institution to e-mail the web master and say, you know, I really like what you guys have on your site and we're in a real pickle here because it's not accessible to people with disabilities and at some point in time we may have to not use that information. So I think that there are some ways to be thinking about it in a proactive way. The best of all possible worlds would be to help faculty find equivalent information that is fully accessible, at the same time I know that this is a society al transformation, so it's unrealistic to think that a lot of the really good stuff would be accessible. With that said, since this is starting in federal state governments and higher education, it's possible that this segment of our culture will be accessible first. So there is some hope there I think. RACHEL: okay, and I know -- I know just from when I was in graduate school that when grad students say have to compile literature and do a lit review, you do have to have -- you do need to look at everything that's out there, and if things were not accessible, then the disability students office provided an individual to actually sit at the computer with the student and help them do the research because they couldn't access it themselves. DR. ROWLAND: right, and that would certainly be under that Section 504 reasonable accommodation. At the same time, then we're starting to get into a gray area because you wouldn't want to set your institution's policies to mean that, well, what we're going to do to accommodate this student is just give them a reader and they can read through the internet. I doubt that that would be seen as -- if there was a complaint -- that that would be seen as equivalent because, again, you can't -- you can't get a reader 24/7 at your beck and call, but you can get the internet. So there are some built in inequalities, but I think that you could in an unusual circumstance, you know for example, if there is a single resource or out of a group of 60 resources there are two, I think you could do some work arounds like that, but you'd want to be very cautious that you're not setting your whole policy on getting readers for the web. RACHEL: great point. Okay, now we have things pouring in so let me try to move them along. Here is a response to the discussion on Adobe Acrobat, and it's a comment. This person said I just came back from a program, and Adobe does have two files that you can download to allow you to make scan documents readable and Adobe files readable and it says once you run either format through, then the screen reader can read them. I don't know the exact name, but can get it to you later. So I now have this person's e-mail address and we'll make sure to follow up with him and when I find that, I will add it to the other links. DR. ROWLAND: good. RACHEL: we talked about. Okay, I'm going to string these together which are more comments that have to do with state policy and state law. So we have three different ones that came in -- information to share with people. One comes from Kansas, and says that Kansas has a state policy for web accessibility that incorporates Section 508 standards. DR. ROWLAND: great. So it doesn't sound like it's a law, but it's a policy within the state and all the agencies understand that they're going to have to get up to speed on this. RACHEL: that's what it sounds like. That's the way I'm reading it. So we've got that, and then also there is information here about Texas saying that Texas has standards for web accessibility and a new rule is in the works that will govern all state agencies including higher education, and there is a link here to the current standards as well as the proposed new rule. So I'll make sure to put those up. DR. ROWLAND: great. RACHEL: and then we also got a suggestion regarding state i.t. policies to look at the RESNA Technical Assistance Project's website. And they're at www.resna.org, and this person actually sent me a much longer link that takes you right to this part of their website. So I will post that on our website as well. DR. ROWLAND: good. RACHEL: I think it's too long to read out. DR. ROWLAND: okay. RACHEL: okay. Here is a followup now about the Adobe. I got the link. It says the program Adobe has for the scan document is called paper capture, and there is a link here for that so I will post that up on the website. Okay, now two questions, one is why not use a text only version of everything? DR. ROWLAND: excellent question and I get that all the time. There are two very important reasons why you would not. You'd absolutely not want to use a text only version. The first has to do -- well, and let me say this with a caveat, very few folks at the level of an institution or agency have a full and complete database, in other words, a single source for all of the information that's on the web. And what happens more often than not is that the exciting or shall we say the visual site would get updated before the site that is text only would get updated, and I am telling you the second that you have different content across those two parallel sites, you are so legally vulnerable, you don't even want to go there. Certainly someone could set up some protocol that the text only site gets updated first, but I guess I would -- I would look at the time that it would take and the involvement it would take to keep up two sites when the reality is -- you know, WebAIM does training all over the nation, and the agreement that we get out of developers after our training time is that none of this is rocket science, and in some ways it's not any different than them learning a new trick of the trade, you know, how to make a page render as beautifully in Netscape as in Internet Explorer. So the amount of time it would actually take to keep up two parallel sites in an equivalent fashion would far exceed what it would take to just learn how to design accessible. The second reason is that although a text only site is going to advantage some people, knows with certain readers probably would prefer text only sites, that would be wonderful, but there are other groups of individuals with disabilities, those with motor impairments, those that have cognitive impairments that are actually disadvantaged further by having a text only site. We know for example that students with learning disabilities do better if things are presented in like chunked information, which is actually the way most websites present it. If you got clean, clear consistent predictable navigation, if you're pairing icons or images or pictures along with the content, that's actually going to enhance the experience of an individual with a cognitive impairment or disability. So there really are lots of reasons why you wouldn't want to use a text only site, but I do know that a number of designers believe that that's the easiest option, and I would just challenge that over the long run developing a system like that I think actually makes it more labor intensive over the long run and you end up by disadvantaging larger groups of people. RACHEL: okay, that's good. Actually I've heard that question a number of times, too, so I'm glad that person sent in that question so everybody could hear the answer. Okay, here is another question: first it starts off by saying, Cyndi great info, thank you. And then wants to know your opinion about wouldn't the fact that the settlements -- this is referring to the court cases -- wouldn't the fact that the settlements have been made instead of actually going to court indicate a pattern which is telling us that the courts actually would be leaning toward the fact that the internet should be accessible, and did fact that these settlements are made out of court is in itself establishing a pattern of acceptance? What do you think? DR. ROWLAND: boy, that's an excellent -- you know, I've never really thought about it from that line of logic, and I sure wish we would like an attorney or a lawyer out in the audience, and maybe we do. You know, I don't know over the long run how these things are looked at. My only exposure with out of court settlements would be -- well, it's not even personal experience, but you hear about people that have been in accidents and they battle with their insurance company and then it gets settled out of court. So with something like that over the long haul, let's pretend that there is some kind of a problem in a specific make of car, the brakes go out and there actually are ten documented cases of this happening, people complaining and the company settle go out of court. Would a subsequent court see that as somehow acceptance of their own duty? I don't know. That's a really, really good question. Of course one of the things that just gets me crazy is with these out of court settlements, they are sealed. So we have no idea the specifics oftentimes of the settlement itself, not just in determines of the dollar amount, but in terms of other kinds of conditions that they might have that actually could provide the justification for this pattern. But that's a very, very good question. RACHEL: okay, thank you for those comments. Okay, I think I've covered all the questions that have come in, and if anybody -- I know there is a slight delay because people send in the e-mail and I need to look at it and then ask it. So if any questions come in after today, then I promise either somebody in-house here at the DBTAC will answer or we will get an answer from Cyndi and pass that onto you. So, Cyndi, did you want to make any wrap up comments? DR. ROWLAND: oh, you bet, and this is just the content I have on the last chunk -- well, of course for me it's a power point slide. Actually that's not really true. I've got a summary that is helpful as folks are thinking through the laws and what their responsibilities are, and it's under the header of summary of applicable laws. So if you are, and this is in the way of a little quiz, if you were a federal agency, are you compelled to have an accessible website, yes or no? Hopefully you're all screaming yes. The reason is because of Section 508. You have no wiggle room at all. That's it. And furthermore, you may be compelled under the Americans with Disabilities Act. Let's do another one. What if you're a state government, do you have to under law right now, have an accessible web for state agencies? Well, that's a good question, and my response is I've got two maybes. One is maybe because of Section 508's tie in with the tech act and the other maybe is because of the Americans with Disabilities Act. How about higher education. Right now as it stands, are you legally obligated to have an accessible web? Absolutely. And that is because of Section 504 of the Rehab Acts. 508 came in and everybody was yelling and screaming about this and the ironic thing is that 504 has covered students for a very long time and we have always been compelled to make sure that they have access to education and that they are not being discriminated against in any way. But I'm going to even further that a little bit and say maybe higher education is because as a state agency in most states, higher education may have that tie in of Section 508 and the Tech Act and again maybe because of ADA. And then the last one I have is what if you were a mom and pop e-commerce store, are you compelled to have an accessible internet? And the answer to that is maybe under the ADA. Again, I will assert my opinion that in time that is going to be subsumed. But again I'm not a federal court. You can talk about facts according to Cyndi but that's as close as you can get. We'll just of to wait and see how the courts decide on that one. The last thing that I would want to say before we take any last comments or questions, is that it's important for folks to remember that we've just been talking today about U.S. law, and there are tons of international laws that govern other countries that look different. Australia has accessible internet laws. So does the UK. So does Japan. So does Germany. So does Finland. There is tons of different international policies. So for example if your institution of higher ed was hoping to catch a global audience, you better get up to speed on what countries you think you'd like to target and what their laws on access are. Not that Japan could slap a lawsuit on you, but it may restrict your ability to get their students and their tuition dollars. So it's just an important thing and I've got a link there because the web accessibility initiative work group has done a wonderful job compiling international laws and policies and they keep it pretty up to date. So there is that. And Rachel, any last comments or questions that have come in? RACHEL: no, not at this time. DR. ROWLAND: well, any that you have? RACHEL: well, I actually through in a few of my own along the way. DR. ROWLAND: okay. RACHEL: but I won't to say thank you very much for the facts according to Cyndi as you said, and I know that I found this information very useful and interesting, but I also know from the numbers of people we have logged on as well as the great number of questions and almost all the questions actually came from the audience that this was important information for a lot of people. And so thank you, Cyndi. DR. ROWLAND: you're welcome. And again, I'll put in a shameless plug for WebAIM.org. Right now it's set up mainly to help developers with technical issues. In the next year we're putting a focus to help faculty members that may not know as much about the technical issues, but we really are a great resource for folks and we've got a discussion forum that folks can join if they want to ask questions, technical, legal, whatever it happens to be. RACHEL: okay, great. And also a number of people who are listening in are familiar with the DBTAC, which is sponsoring this program today, and there actually are ten DBTACs around the country. So anywhere you're located, you have access to one of these DBTACs, which are resource centers historically on the Americans with Disabilities Act, and now starting with this fiscal year that we're in, the DBTACs are also available to provide training and technical assistance on making information technology accessible to people with disabilities and specifically focusing in the education arena. So all the DBTACs around the country are sort of preparing and becoming more and more expert on these topics. So you can access your local DBTAC and there is one 800 number which would connect you to your local DBTAC and that is 800-949-4232. And you also can use the e-mail address that we gave you and that question would get forwarded to the DBTAC. And I also would like to invite the audience, if you have enjoyed today's presentation, to please look at the ILRU website and you can see there are a number of upcoming Webcasts and we've got another one this Wednesday and we also would love your feedback to find out what worked well for you today and what additional information you might like. So there is a link for an evaluation form on the page that you got, how you got to this Webcast. And finally I want to thank those who made today possible, first and foremost Cyndi Rowland and also to NIDRR for funding the DBTAC and making this possible, and of course this Webcast would not be possible without the efforts of our in-house crew here at ILRU, which includes Marj Gordon, Sharon Finney, Dawn Heinsohn, Mark Richards, and also the technical expertise of Rob Dickehuth and the fabulous services of our realtime captioner, Marie Bryant. So thank you everybody for joining us today and we hope to see you soon on another Webcast. Have a great day.