Why make your web sites accessible in post-secondary education? Presented by Sherrie Brown, J.D., Ed.D. and Kurt L. Johnson, Ph.D. on September 24, 2003 Why Make Your Web sites Accessible in Post- Secondary Education? Presenters: Kurt Johnson and Sherrie Brown. AARON: Good afternoon, everybody. I want to welcome everybody to today's web cast. We are honored to have Drs. Kurt Johnson and Sherrie Brown to present today on why make your websites accessible in post-secondary education. Before I introduce the presenters, I just need to tell you a little bit about the web cast today and get a little business out of the way. First, my name is Aaron McCullough, I'm with the disability law resource project and I'm filling in as your host for today's web cast. I will be moderating the web cast which basically means that the questions that you E-mail in I will voice to the presenters. I want to remind you about the questions. This webcast is intended to be interactive. We want you to submit your questions now or at any point during the presentation. The presenters will be taking and leaving plenty of time to address your questions. So please as -- if you have some now, send them. If issues during the presentation arise and create questions in your mind, please send those, and we will get those addressed as quickly as we can during the time we're given and even afterwards if we run over time. Let's see, and in order to submit a question you can click on the submit question button which is at the bottom of your RealOne Player or it may just say webcast@ilru.org. Ultimately, you can also create an e-mail and just send it to ilru.org. If anybody runs into technical difficulties of any kind, please feel free to give us a call. We've got people who can help you out and the number is (713) 520-0232. Again, that's (713)520-0232. Again, the topic is why make your websites accessible in post-secondary education? A little bit about the presenters: Dr. Johnson is associate professor in the Department of Rehabilitation Medicine in the School of Medicine at the University of Washington. Additionally he is the head of the Division of Rehabilitation Counseling and the director of the University of Washington Center for Technology and Disability Studies among other honors. Sherrie Brown is a graduate of law school as well as a doctorate in education, a research associate professor in educational leadership and policy studies in the College of Education at the University of Washington. She additionally directs the Community Disability Policy Initiative in the Center for Human Development and Disability and is a faculty member at the University of Washington Center for Technology and Disability Studies. We are gratified to have both these presenters here. I have heard -- I have heard Dr. Johnson speak before and I think you guys are going to get a lot of great information and I'll just hand it over to the experts and, again, please feel free to e-mail or call us if you have questions. Drs. Johnson and Brown. SHERRIE: Thank you, Aaron. In our presentation today Kurt and I are going to talk about the obligations of post-secondary educational institutions to provide accessible web sites and there are many aspects of that that we could be covering today but we're going to limit it -- we only have 45 minutes as you all know. We're going to limit it primarily to the relevancy on two very well known civil rights laws. Section 504 of the Rehab Act and the ADA Title II; and how those laws are relevant to the obligations of post-secondary institutions to providing these accessible websites and we titled the presentation why make your websites accessible in post-secondary education, because the bottom line -- and you'll hear us say this many times throughout the presentation -- is that neither Section 504 nor ADA Title II specifically mention accessible web sites. Neither one specifically require that post- secondary institutions provide accessible web sites and if you think about it, both of them in terms of web development at least were written in the dark ages. So the writers didn't think about what may come down the pike in terms of technology. So let me say it again. 504 and ADA do not explicitly require post-secondary educational institutions to develop, maintain or provide accessible web sites. Now that I've gotten that out of the way, does this mean that these laws have no relevancy to post-secondary obligations in the area of the web? And the answer to that is no, they are very important in understanding the obligations of the schools to provide access to the web. And this is what we want to talk about today. So we're going to spend quite a bit of time talking about compliance agreements that have been developed between the office for civil rights or OCR and higher educational institutions and some other agency documents that are concerned with web accessible in higher ed. We are also going to briefly talk about section 508 which I expect all of you know or I will remind you who don't that it does not apply explicitly to higher ed institutions but it has been influential in developing some state policy or legislation that addresses accessible web sites so we'll briefly touch on that. Since we only have 45 minutes I want to remind everyone that this is only an overview. We'll leave the remainder of the time as an opportunity for you to ask questions and Kurt and I will do our best to answer them. Before we begin the substantive part of this presentation, which is really going to be a conversation between the two of you, I want to make a couple of preliminary statements, and the first one is that the law is never reflective of where we currently are in society. It seems to either be ahead of the times or behind. For example, those of you that have worked exclusively with ADA or Section 504 or perhaps 503 in the employment arena can remember when those laws came into -- were implemented required that buildings be made accessible for people to enter buildings and for employers to provide reasonable accommodations. It was an attempt to change the way the environment currently looked. Laws may have been written decades ago and not be reflective of where society currently is, and that I think is a perfect -- the web is a perfect example of that. So when we talk about the application of 504 and ADA to web accessibility, they were both written years ago and did not contemplate many of the issues that are raised today with web access for people with disabilities. And although I think both laws were written very broadly with the intention of applying to new situations, the process of applying existing legal standards to new facts is typically not smooth or easy. It's often hotly debated, and can take years to really resolve through the courts and administrative agencies. So, again, bottom line -- another bottom line statement here -- the application of 504 and the ADA to the web is not easy or simple. And if you're looking for easy or simple answers to this, I'm afraid you're going to have to wait a few years. The second preliminary statement I want to make is to set the stage by saying that we strongly advocate for accessible information technology or IT, which includes accessible websites in education from kindergarten through post-secondary institutional settings. That may sound very straightforward to most of you, but we've learned that in fact the terminology I used there is very confusing. So before we go into our conversation here, we want to start with explaining to you what we mean by accessible IT. So for some of you it will be a review, but for others this might be new information. And I'm going to ask Kurt to discuss the difference between assistive technology and information technology and what we mean in this conversation – in this presentation today by accessible IT or accessible web sites. Kurt. KURT: Thanks, Sherrie. That also segues into a brief introduction that we forgot to include which is that both Sherrie and I are with the national center on accessible information technology in education, which is funded by the National Institute on Disability and Rehabilitation Research. So when we think about information technology, we really use -- and I want to refer you to the document that we posted on your web site about terminology, about what information technology is. And IT is much more general than accessible web sites. It includes products that store, process, transmit, convert, duplicate or receive electronic information. And it's really the scaffold or it's like a building if you think about it. And assistive technology is the individual accommodation. Assistive technology are products that people with disabilities use to gain access to environments and activities. And it might include wheelchairs or things that help with dressing or eating, and it also can include devices that help people access information technology. For example, it might be devices that help people access a computer or the Internet or software applications or other kinds of information technology, a special mouse or a screen reading software, et cetera. So when we talk about accessible information technology, we're really looking at technology which is accessible to people with disabilities, including those people who use assistive technology. So when the information technology is accessible, it doesn't mean that people won't need to use their assistive technology, but it does mean that the assistive technology will work with that technology, with the information technology. So the information technology is like a building, and we make it accessible by putting ramps in so that somebody who may use a wheelchair can get into the building. And I think I'll leave it at that and we can come back and revisit that if we want later on. So, Sherrie. SHERRIE: Let's start now with some of the common questions we're asked all the time about web sites on college and university campuses. KURT: Well, one of the things that we hear is people want to know does information on public web sites and Internets and intranets and distance learning courses at the post-secondary institution, like colleges, universities and vocational technical schools. Does it have to be accessible to individuals with disabilities? SHERRIE: And the short answer to that is yes. The information must be accessible. Now, there is a big but to than I'll put that first but in there -- but there are some legal defenses that can be used by schools, and when I say schools, again we're focusing on post-secondary ed here, that relieves them from the obligation to provide access to that information, and those two defenses are very familiar to people who have worked in these civil rights laws, undue hardship or fundamental alteration. We'll talk more about what those mean, but those two defenses can be used by a school to say that they do not have to provide information to the - - they don't have to provide access to the information on the web. But let me reiterate here and make sure everyone is understanding what I've said. The information contained on the web sites must be accessible to the person with the exception of those defenses. People have to have access to the information. They have to get it. But that obligation for the schools to make sure that the person gets the information may or may not be the same as providing an accessible web site. An accessible web site as Kurt was discussing, accessible information technology and what has to be provided is access to the information and there are various ways to do that. So, again, as a nontechnical person, I think of the web as a technical framework, and it's really void of content. And the technical people designed the structure and then others of us provide the content, the material information that we want the web structured to convey, to communicate. So the content material information has to be accessible to people, but that does not necessarily mean under the civil rights laws that the technical framework for web itself has to be accessible. KURT: Well, so then what does it mean -- I'm sorry. So why do we say that the information has to be accessible? SHERRIE: Well, now we have to turn to section ADA and the 504. And the ADA and the 504 generally prohibit institutions from discriminating against individuals with disabilities. So what does that mean? Well in the area of web accessibility or information technology, the Office for Civil Rights, OCR, again, in the U.S. Department of Ed, has indicated through complaint resolution agreements and other documents that institutions covered by ADA and Section 504 that use the Internet for communication, regarding their programs, goods or services must make that information accessible. Now, in one particular settlement agreement, the federal agency, OCR, stated that whether the communication is via media, print or the Internet, institutions must effectively communicate with individuals with disabilities. Now, effectively communicate is language that's also used in the regulations that OCR enforces. It was used in this resolution letter and many others after this to say this is the standard that OCR expects in terms of the ability of individuals to get the information. Now, Civil Rights Division Disability Rights Section in the Department of Justice, DOJ, which is another federal department, has just recently issued a document which I think everyone would find quite interesting, located on the web, entitled accessibility of state and local government websites to people disabilities. And in this document, DOJ states that state and local governments, which is applicable to public, post-secondary institutions are required under the ADA and 504 to provide equal access to their programs, services or activities and again, provides these defenses unless doing so would fundamentally alter the nature of these programs or would impose an undue burden and this equal access obligations covers access to the information on governmental web sites. Again, it doesn't mandate that institutions or state government provide accessible web sites, it mandates equal access to the information on those web sites. KURT: So one of the things we hear a lot is from folks in higher education is what does it really mean to effectively communicate web site content to individuals with disabilities under 504 and ADA? SHERRIE: Well, I'll state right away that there is some disagreement and dispute about what this really means in terms of web accessibility. It is language that was written in the regulations many years ago to enforce Section 504, so it's been around a long time, but it's now -- it's one of those legal concepts and standards that's being applied to a new factual situation, i.e. websites. So effectively communicate standards which are used in OCR in complaint resolutions as I said earlier with post-secondary institutions to determine whether the means of communication satisfied the legal obligations under Section 504 and ADA. And according to OCR the three basic components they looked at to determine whether communication was effective were, one, the timeliness of delivery; two, the accuracy of the translation; and three, was it provided in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability. And the example that's been used is if a university web site is inaccessible to a visually impaired student, for example, and the university is still required under these laws to effectively communicate the information on the web site to the student, so if the website is available 24 hours a day, 7 days a week for other users, it must be available that way for the visually impaired student. Now, there are many ways, theoretically, that the visually impaired student could have access 24 hours a day, 7 days a week to that information. There could be a full time reader available to the individual. But none is likely to be as practical or meet the effectiveness standard as well as the if web site were accessible in the first site. KURT: So does that mean that a full time reader needs to be available at the student's preferred time of accessing the site like at 2 in the morning? SHERRIE: Yes. Absolutely. Equal according to OCR in this resolution letter meant, that if it was available 24 hours a day 7 days a week for others then it needed to be available that way for the visually impaired student. Again, let me start of rephrase and reiterate here. Information has to be accessible and it has to be equal access, and according to OCR, that means timeliness of delivery, accuracy of the translation, and in a manner and medium appropriate to the significance of the message and the abilities of the individual with a disability. These are factors to be considered, they're not black and white lists, they're not easy to apply standards necessarily. Now, DOJ, in the document I referenced earlier that's available on the web that just came out about a month ago, DOJ does not discuss the effectively communicate standards, doesn't use the terminology, however, the document does state that one way to ensure governmental web sites -- and again here, governmental web sites means post-secondary educational web sites -- are accessible to individuals with disabilities is to provide accessible features. And though DOJ acknowledges that there are many ways that other than accessible features on web sites that there could be access to the information, and the example they give is such as staffed telephone information lines, the document states -- and I'm going to read this -- that, quote, these alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available. For example, job announcements and application forms, if posted on an accessible web site would be available to people with disabilities 24 hours a day, 7 days a week. Again, that's as much as DOJ provides in terms of guidance on that subject; but again, I think it's useful and fruitful indication of some DOJ policy direction. KURT: Okay, well, that helps. So has the Office of Civil Rights ever provided guidance in addition to the effective communication standard that might help understand the obligation for post-secondary educational institutions better? SHERRIE: Well this is a little bit of a tricky area, but indeed, in a resolution letter, OCR adopted and favorably cited a judicial decision in which the court ruled that a post-secondary institution violated its obligations under the ADA when it only responded on a case-by-case basis to individual requests for accommodation. This individual case decision, the Tyler vs. city of Manhattan decision out of Kansas, 1994, also stated that a public entity has an affirmative duty to develop a comprehensive policy in advance of any request. Now, it's really important here to point out that a favorable citation in a resolution letter from OCR does not mean that OCR has a regulation or is mandating that post-secondary ed develop an institutional policy concerning accommodation requests. That is not what this resolution letter says. However, I think it is fair to say that it does provide guidance to post-secondary institutions on how OCR might consider the lack of an institutional policy on accommodation in another situation. Now, again, accommodation is not necessarily easily transferred to web accessibility in some people's minds. So I leave that to you and to your post-secondary interpretation; but in this same resolution letter, the university agreed to develop a plan with input from appropriate groups on and off campus to devise and implement campus-wide accessibility standards for electronic and information technology, all part of the same resolution agreement. This plan was submitted to OCR by the university for review and OCR indicated that the school must include, quote, a process by which the university will ensure comparable access for students with disabilities to official university web sites, closed quote. OCR has also issued not too long ago a comprehensive PowerPoint presentation that provides some updated OCR thinking on considerations in web accessibility and post- secondary ed. I believe we provided you a link to that also on the materials prior to the presentation. KURT: Okay. Well, you've talked a lot about settlement letters and resolution agreements and maybe this would be a good point to stop and talk about what kind of legal authority those hold. SHERRIE: This is an important area and one that often causes quite a bit of confusion outside the legal profession. Let me just take a minute here to explain how OCR deals with complaints. When OCR receives a complaint from an individual regarding an alleged violation under Section 504 or ADA Title II and they hear other complaints under other laws, too, but we're talking about these two, the agency may decide after initial review that the complaint has merit. It may then open an investigation into the complaint, in which -- and again we're talking about post- secondary ed hear, the OCR investigators and or attorneys they are both personnel and OCR offices, would contact the school to discuss the issue. Often -- and this differs widely among various OCR regional offices -- but often the investigation itself results in a voluntary agreement between OCR and the school that resolves the issue. This type of agreement can really go by several different names and I may use them interchangeably, resolution agreements, compliant agreements, settlement agreements. They all mean the same thing in essence, that the school agrees to certain actions or agrees to stop certain things, and OCR considers the case resolved at the administrative level. That means that they do not pursue it judicially. They do not take the complaint to -- actually, they would take the complaint to the Department of Justice and the Department of Justice would actually litigate it in the courts. The key things to remember about OCR resolution letters is that they are voluntary agreements by the school, they are a case resolution or complaint resolution at an administrative level, meaning outside the courts, and the facts in the settlement are very specific to the individual school and the individual complaints that are heard. So these are real limitations. As a source of law they have validity, but they are not a court decision. They are not an amendment to a statute. They are an OCR administrative resolution of a complaint. Nonetheless, they have some -- there is some evidence -- these resolution letters provide some evidence of how OCR would evaluate certain actions or inaction’s regardless of where they occur. KURT: Well. So given that are there any court cases on web accessibility and obligations of post-secondary institutions under either 504 or ADA? SHERRIE: No, and I think it would make every one's life a lot easier I think if there were, but there aren’t as of yet. I sort of would expect that with time we will have some complaints that reach the courts and the courts will be forced to rule on them. Some of you may have followed the court decisions that have come out on web accessibility in the areas of public services or private businesses; but there haven't been any in post-secondary yet to date. And it's always hard to know how a court is going to rule with any certainty; but it is well established that when a court is asked to decide a new issue, for example obligations to provide accessible web sites, it's going to look at earlier cases that have raised similar issues and it often will look at agency resolution letters or policy statements on how it should think about application of new facts to old law. It's important I think to point out here that 504 and ADA complaints are typically individual complaints. Perhaps they are class actions, meaning that a complaint is brought before the courts representing the concerns and the complaints under a law of a large number of people, but nonetheless, a court is asked to resolve individual complaints under the laws. In the case of web accessibility, the court I think is going to look at the legal standards established and the defenses allowed under 504 and ADA for similar post-secondary obligations. Now, some people would argue that the similar kinds of obligations are the duty to provide auxiliary aids such as sign language interpreters or readers or modifications to a particular course. Others argue that those are significantly different than the standards we should be using for web accessibility. Nevertheless, they are the ones that have been litigated time and again by the court. The legal obligation, and I will say this again. The legal obligation in the case of web sites is to provide equal access to the information contained on the websites and to effectively communicate that information to the users. Other duties under 504 and ADA, the post- secondary institution does not need to meet this obligation if doing so results in a fundamental alteration to the nature of the program or creates an undue burden. Now, I said I would talk briefly about that again. So let me do that. Undue burden in other cases not having to do with web accessibility in post-secondary ed has been interpreted many times as actions that require substantial effort or cost. Therefore, it would seem likely that a court would not require a post-secondary institution to provide web access if the institution could successfully argue that to do so created an undue burden. There are no court cases yet interpreting that, so it's hard to, again, be definitive about what they might rule. However, OCR has stated in a complaint resolution letter that when a post-secondary institution selects software programs and/or hardware equipment not adaptable for people with disabilities, quote, the subsequent, substantial expense of providing access is not generally regarded as an undue burden when such costs could have been significantly reduced by considering the issue of accessibility at the time of the initial selection, closed quote. Again, I offer that as some evidence of how a court might interpret an argument by an educational institution that it was an undue burden. Again, we have to acknowledge the limitations of drawing conclusions, and making predictions based on resolution agreements but in the absence of judicial precedence, I think it's arguable that the court would adopt this reasoning depending I suppose on the lawyering on the other side. Individuals found to be discriminated against -- individuals with disabilities because the information contained on their web sites was inaccessible under the ADA may be required -- not necessarily -- but may be required to pay for redesigning web sites as well as incurring the costs for effectively communicating web site content in an effective manner to individuals. I think most people would acknowledge it's much less expensive to design and implement an accessible web site from the beginning than to retool it later. KURT: So does the web site developed by -- let's just take a specific that comes up on our campus -- does the web site developed by a professor for a particular course at a university or college have to meet accessibility standards? SHERRIE: Well, there are a couple of issues here, let me start with the first one. The answer to the question really is very complicated in an academic environment by some unique rights that are enjoyed by faculty in varying degrees across this country and that's the concept of academic freedom. And academic freedom is generally considered to mean the right of faculty to speak freely on political or ideological issues without fear of reprisal, but it's often commonly thought to also encompass the right of faculty members to teach in the manner and style of their own choosing. So if a faculty member might state that he or she is under no obligation to design a web site using accessibility guidelines any more than he or she would be required to teach a particular -- using a particular methodology or giving a certain type of examination. Again, no court decision or OCR ruling on this, but using academic freedom as a justification for maintaining an inaccessible web site probably wouldn't be considered a sufficient defense to providing an accessible web site and let me tell you why I think that. It's clear that if the website is available to students and the student enrolls who cannot access the web site because it's inaccessible to him or her, the information on that web site has to be available. The information has to be effectively communicated under Title II of the ADA and Section 504. What does that mean, effectively communicate? Well if all other students in the class can have access 24 hours a day, 7 days a week to the professor's web site, then in this case, it will probably mean that this student would have to have that access, too. How can that be achieved? Well, I suppose the professor could go to his or her department chair and say I need a person 24 hours a day, 7 days a week who is going to be available to read my web site to the student whenever he or she chooses to access it; but again, I think we can all see that that's probably not very practical. However, I think the other point here is that if the institution itself had a policy that mandated professors follow accessibility guidelines, whatever those were, it's very likely that a defense by a professor of academic freedom would absolutely go nowhere in terms of maintaining an accessible web site. KURT: So let me just insert a question then. I'm thinking of two examples, again, on our campus. One is Jaime Diaz a psychology professor who has an animation of the conduction of a nerve impulse along the nerve on his website for the class for students to look at. The other is a virtual anatomy lab where students go in and go through anatomy. And those courses I think are impossible to make accessible and how would that be handled? SHERRIE: Well, you've got a couple of issues there. Under 504 and ADA, we have to provide equal access to otherwise qualified individuals, and if the individual is qualified to take for example the anatomy class, then -- and again, that opens up a whole other analysis under 504 and ADA, but if they are qualified, meet the prerequisites for the course, and let's just play devil's advocate and say that a legitimate bona fide prerequisite is that the individual be able to see, then I don't think the fact that the website includes visual reality that can't be tagged and made accessible appropriately is going to be a problem. KURT: Great. Thanks, just a short answer because I know this comes up all the time. So now we know that one of the big things -- the reason we started out with the difference between accessible IT and AT is because people often get that confused and let's just look at an example. So do post-secondary institutions have to provide the specific accessible software that individuals with disabilities request? SHERRIE: Okay, so now we are moving from information technology and thinking about accessible web sites as a systems issue or a technological framework to specific AT. And Title II of the ADA requires that public institutions must give primary consideration, that's a terminology used in the regulations, to the requests of the individual with a disability when determining what type of auxiliary aid and service is necessary. Now, here we're going to say the specific software is an auxiliary aid or service. However, the post-secondary institution is not required to provide the individual's requested aid or service if an alternative is generally regarded by knowledgeable experts as effective in the context in which it will be used. Now, the answer to the question then has to ask -- has to make it clear first that primary consideration has to be given to what the student or faculty person requests. That does not necessarily mean that that has to be provided if the institution has instead an acceptable alternative that is generally recognized by professionals in the field as being widely accessible to the majority of people, for example, then we might -- and this has been written in resolutions and in other areas, it might be appropriate for the individual student or faculty member to learn a new software that would allow them access to the information. KURT: So if we had computers in the computer lab that was used by all students in the university with screen reading software on several of those so that blind students -- they wouldn't have to put four different kinds of screen readers on? SHERRIE: As long as what was provided on as a screen reader was recognized. Again, that's the standard, recognized by experts in the community as being effective within the context. KURT: Okay. Well, then that leads right to the question about distance learning. So do post- secondary institutions have to provide accessibility software like screen enlargement software to students with disabilities who enroll in distance learning course? So let's say we have a web-based distance learning course and the end user is a student in another area of the state for example, who needs assistive technology, so the distance learning course is accessible, but the student needs assistive technology to interact with the accessible web- based instruction? SHERRIE: There has not been a specific, again, court decision on this. And initially you know when OCR was asked kind of to help with this because distance learning has raised a number of questions in both the web areas as well as assistive technology link area, there was some disagreement among the regional offices about how to interpret this obligation of the post- secondary institutions. But now there seems to be resolution, and this is a great example of new facts being applied to existing law and there is some initial processing that has to go on before people can really figure out how does this apply. There seems to be agreement now that there is no obligation to provide the accessible software for distance learning students. And their reasoning -- again this, is OCR's reasoning -- is that it's based on the application of our existing 504 ADA standards regarding the duty to provide auxiliary aids or services. Generally these two laws require that the school supply reasonable accommodations to individuals who are otherwise qualified for the program or service. And the department of ed regs have suggested three types of accommodations that might be made, one of which is the provision of auxiliary aids. And the school is required to provide auxiliary aids and services necessary to afford an individual with a disability an equal opportunity to participate. Auxiliary aids and services are those that ensure effective communication. Now, Title II, not 504, but Title II of the ADA lists such or the regulations to that law lists things such as qualified interpreters, Braille materials, assistive listening devices, video text displays as examples of auxiliary aids, but that list is not exclusive this is one -- or exhaustive – excuse me. This is one of those examples where the law has recognized that technology is going the to change and things might change in the future so let's give some illustration of what kinds of services and devices are appropriate but others can be considered also. So this is a specific question that OCR had to deal with, is accessible software an auxiliary aid in a distance learning course? If a prerequisite for enrolling in a distance learning course is that all students, for example, with or without disabilities have access to all the hardware and software that they need, i.e., students who sign up for a distance learning course are required to have the compatible computer and Internet access, then we can state that the institutions aren't required to provide the students with the hardware or software necessary to take a distance learning course any more than they would be required to provide that for a student without a disability. So a student who requires AT, assistive technology, to access a distance learning course would be similarly required under these federal disability laws to provide whatever they need to be able to participate. However, it's still the obligation of the post- secondary ed to provide the assistive technology -- excuse me, even if it's not the obligation of the post-secondary ed to provide the AT, it is the responsibility of the course provider, meaning the university probably, to make sure that users with disabilities who use AT have equal access to the web-based information. KURT: Okay. So then I assume that if I got a grant and put on a distance learning program and as part of that when I enrolled people I sent them notebook computers, then for some reason then I would be obligated to make sure that those computers were accessible? SHERRIE: That the computers had the AT on them? KURT: Yeah. SHERRIE: Probably you would because you're providing the equal access and equal access in this situation would be providing the hardware and the software for a student's use. Right? KURT: Yeah. SHERRIE: Because you're providing -- so then you probably would have to include as an accommodation, yeah. Yeah. KURT: Yeah. Because I know of a couple of folks with grants who have done that and that was their experience. So then how do sections 508 of the Rehab Act fit into this? SHERRIE: So to confuse everything a bit more, section 508 of the Rehab Act of 1973 requires a couple of things of federal agencies only. It mandates that when agencies -- federal agencies develop, procure, maintain, or use electronic technology that their employees with disabilities must have access to and use of that in a comparable manner to the access provided individual employees without disabilities. Again, there is an undue burden defense thrown in there and it also requires that members of the public when they're seeking information of these federal employee agencies must have access to and use of information that's comparable to that provided to those without disabilities, again, with an undue burden. It requires agencies to ensure that all their E&IT -- that's procured, developed, maintained or used complies with the accessibility standards that were developed by the Access Board. Now, it applies only to federal agencies. KURT: Okay, now we have about three minutes left to go here before we take questions, but let's just finish this up. So does 508 apply to state universities or community colleges? SHERRIE: No. It addresses the obligations of federal agencies. However, and this is where it sometimes can get confusing, some state governments or individual institutions of higher ed have adopted or are in the process of adopting some or all of the Section 508 standards. To determine whether your institution, if you're representing or from a particular institution, does or doesn't comply with 508 accessibility standards, you would need to check with your university. KURT: Okay. And there are -- you mean whether or not they're required to comply with 508 standards? SHERRIE: Well, whether or not they have adopted them and/or whether their state government has adopted them. You know, 508 provides -- or the Access Board accessibility standards are just one example of standards that have been developed around the world addressing information technology; and some states, some universities are adopting what look like 508 standards, some are taking part of 508 standards and some are looking at other accessibility standards that have been developed around the world. So I can't sit here and say that a particular university or any university has adopted all of Section 508 standards carte blanche. KURT: Right. No, you can't either. And I guess finally what civil rights laws cover post- secondary educational institutions? SHERRIE: You know, Section 504 and ADA Title II are the laws that are going to be used in the foreseeable near future anyway to determine whether post-secondary ed has met its obligations to provide nondiscrimination, equal access to programs and services and that is going to include, again, for the near future, access to the web. The information as well as access to the web. How those laws are actually going to be modified or changed or interpreted through the courts we're just going to have to wait to see. What I want the audience to understand is both the limitations and the value of those laws in affecting change and in advocating for systems- wide kinds of change for web accessibility in higher ed and although they are used primarily to litigate individual complaints, they have been primarily through these OCR resolution letters, but they have been used as sort of a wedge or a soft hammer, I suppose, to wake up educational institutions about the policy reasons as well as the legal reasons that they might want to consider adopting accessibility standards for web development on their campus and thereby create accessible web sites. These civil rights laws would still be used to litigate individual complaints, but nonetheless, institutions can look to what OCR has said and provided in guidance under previous complaints that had to do with access to information technology. KURT: And in fact it's one of the really cool ways that this OCR process has worked is they often end up in a role as collaborative -- in a positive collaborative role in providing technical assistance. I think the California community college resolution where they made really powerful systems changes throughout their system in a collaborative effort with OCR to resolve the initial complaint. SHERRIE: There may be -- come a day when 504 and ADA will be recognized as being limited in its ability to enforce what society may come to see as equal access meaning web -- excuse me -- meaning accessible web sites on all public web sites, but that would require a change in the law and/or courts to interpret the statutes to mean that. And we don't have that yet. KURT: So with that, let's take some questions. Aaron. Hello, Aaron? SHERRIE: Hello? KURT: Let me put me on hold and see if I can call them and get technical assistance to see if we can get questions started. SHERRIE: Hello? AARON: Hello, I'm sorry for the little technical difficulty. Is everybody still there. SHERRIE: Oh, Aaron we lost you for a long time. Chris tried to contact you. AARON: Are we live? KURT: We assumed we were live and had said we were finished with our presentation and were ready to take questions and called on you to begin the questions. AARON: I had tried to pull off my mute and apparently I hung up on you guys. I’m not as adroit as Rachel, but I will fumble along. I do have some questions. Again if we're live I'll double-check on my RealPlayer to make sure we're going along. SHERRIE: Did you hear us? AARON: Yes, I was listening that's why I switched along. I'm seeing a stall on our RealPlayer -- there we go. Everybody I'm back. The least important person in today's presentation, but I do have a list of questions in my hands as well as some comments. The first one we do have somebody complimenting a post-secondary school. They stated they wanted to recognize Southwest Missouri State University on their web accessibility coordination and implementation. They encourage you to take a look at the presentation and apparently the SMSU has a presentation on their effort. It's wact.smsu.edu/powerup/ -- you can probably just find it if you go to the site. That's my undergrad so I had to give a shout out to them. KURT: We have them as one of our promising practices in our database and have recognized them for their efforts. AARON: I'll have to look back on the Alma mater a little bit and check this out myself. We did have a question on whether or not -- whether there had been any complaints filed specifically against post-secondary institutions for violating -- or for failing to provide accessible -- let's see -- for failing to provide access for students with disabilities in distance learning. Are you guys aware of any complaints that have been issued to the Department of Education? SHERRIE: I'm not aware of any for distance learning, no. AARON: What about generally for -- this is a broader issue -- accessibility in web sites and in post-secondary? SHERRIE: Yes. That's what the OCR -- are we talking about court decisions? AARON: I guess it appears the question was something that was resolved. SHERRIE: Often those aren't published even. OCR resolution letters -- we have access to that, and so those are the ones that I'm aware of. Complaints that have been raised to OCR having to do with a wide variety of access to information technology, including access to the web, but no court decisions. AARON: And okay, let's see, second question is when the schools decide to purchase a software package that is required to be used by students in the classroom, are there any legal requirement that they check when purchasing that that software be accessible? And it seems pretty straightforward? SHERRIE: No, unless they've adopted some kind of procurement or other kind of institutional process or there is a state law that requires that, but the federal civil rights statutes do not require that, no. AARON: So general accessibility requirements would apply to say, something like course wear or the access to the information within course wear. Am I correct? SHERRIE: I'm not sure I have your question. KURT: You mean if we were using a platform such as Blackboard for course management? AARON: Certainly or Web CT or one of the others. I think that's what they're referring to here, where every student is required to utilize it. SHERRIE: But again, we can mix up 508 obligations under the federal law or comparable state law. Nothing under 504 or ADA is going to say a professor or an institution has to look at any of those software packages prior to purchase and say these are accessible. AARON: Okay. KURT: But the content that is on them -- SHERRIE: The information on them, if they're being used by students -- required by students, yes, the information has to be, but in 508 there is that step of you're not supposed to procure anything until you're assured or that the producer assures you that it has met the accessibility standards, right? There is nothing like that unless your state law has something like that. It's nothing in 504 or ADA that's going to require that. But if you're using that in your classroom, then the information contained in there has to be accessible to the students given this effective communication standard and equal access standards. AARON: Actually, we just got a question that kind of follows that one up. I guess along these lines, that being said, what strategies would you suggest to meeting their needs when schools are ever increasing their dependence on the use of course software such as Black Board or Web C. T.? SHERRIE: This is where we sort of fall into the more general advocacy policy area. You know, if you step back and think about how to make effective change, probably the more effective way to go about creating accessible information technology generally in your campus, is to pass a state law that says all institutions must purchase, develop, maintain accessible information technology comparable to what 508 mandates for federal agencies. That way, you're sort of acting proactively and you're setting the stage for accessible information technology and then the AT that a student may need becomes an accommodation issue. Another way to do that is to create a policy within your particular institutional setting that doesn't have the mandate of a state law or a federal law, but that says this institution shall only procure, develop, maintain accessible information technology which includes accessible web sites and accessible software for curricula and et cetera. That might be -- might be -- I'm not saying it would be, but it might be a faster tactic than getting a state law passed. An alternative is to individually take complaints through OCR and try to mandate change through the legal system, which is probably your longer term solution to creating an accessible information technology structure within your school, but is also a way that we can effect change at a systems level. Like Kurt was talking about in California -- not all California schools, but some California state colleges have adopted policy statements within their institutions that basically have mandated accessible information technology. So I think any three of those avenues and I'm sure there are others that I'm not thinking of, consumers writing the paper might do it, too, as a way you could create that environmental change. AARON: Are you aware of any states given I guess the recent run of legislative sessions that have amended their state laws to incorporate accessible information technology, at least in the educational arena if not more broadly? SHERRIE: There are states. I can't give you the specific states and I can't give you the numbers. Those are available on the ITEC website. There is a lot of -- there is some activity —, ongoing activity in state legislatures. I don't know specifically -- and Aaron, this is not an area of expertise at all of mine -- I don't know if they are amending existing laws or passing new laws within those states that address the obligations to provide accessible information technology within state institutions. I do know that they vary a lot state to state on what they look like. Some are very comprehensive and are broad to all state agencies and departments, some are very narrow, some may specify only educational institutions. I don't know that, but so they vary, very widely. AARON: We have one additional question and it appears what they're asking is -- here is what they're asking -- how far do you think the reach of 508 will be because initially we thought it would reach anybody receiving state AT funding and then that wasn't the case. We know it touches federal agencies, and this person appears to be asking do you think we're going to get additional -- are we going to get additional guidance on 508? SHERRIE: This is a personal opinion only, but when I look in the last 30 years of civil rights laws, when we look historically, we see the federal government making some initial steps in changing their environment, whether it was tied to federal funds. If you receive federal funds, you will make your buildings accessible. If you receive federal funds, your roads are going be accessible, your mass transit, et cetera. Then speaking directly to the federal agencies themselves in terms of affirmative action for people with disabilities, which is what 501 said in the Rehab Act, I think the federal government in some instances will begin to do things that then years later generalize or spread or cover additional entities. So it wouldn't surprise me if at some point down the pike, 508-comparable standards were in some way linked to state agencies. That may be in a federal funding stream similar to the AT act or something comparable. Perhaps it will be K-12, if you receive federal funding you're going to make accessible information technology available within your schools. Maybe something like that could happen but I think we've often seen the federal government passing laws that are applicable only to itself or to its federal funding that then become more generalized. KURT: And in the current climate we know in advance that there are many people in state government who would see that as another -- what they would call an unfunded federal mandate, and we know that the Supreme Court has been receptive to arguments that some federal laws don't have authority over state government. SHERRIE: But I think in addition to sort of the federal piloting of certain environmental changes, I think what you will see, and I know this is one of the intents, is that manufacturers of software will change. Things will change out there in the commercial world and that will make it easier for institutional settings to both find technology; to purchase technology, so things might begin to change just because of what the marketplace looks like. KURT: You know, I think that's a really good point. Because now it often is difficult to find accessible IT in some areas and I think that that may be the biggest effect of section 508. SHERRIE: Again, as we've said maybe not very eloquently, 508 has been used by some states as a model for what they want in their own state and I think that has had significant impact. Just making states think about, you know, maybe we should consider some parts of this or aspects of it or just even the issue needs to be addressed. Again, I think that's a positive and influential role that 508 has had at the state and local level. AARON: We just got an initial question, and by the way we'll continue to receive these well after the presentation is over, and I want to assure everybody that we'll make every effort to get those answered. This question is in your review of post- secondary policies, do you have any comment on what is generally the impetus for making IT accessible? Is it state legislation or is it complaint driven, et cetera? SHERRIE: I don't think it's complaint driven. I think it’s -- well, I think it varies from institution to institution, definitely, but I think in many cases, it's an awareness that as a public institution there is a role for -- say this in quotes -- for good citizens to do the right thing and it's not so cost prohibitive if you think about accessible IT from the very beginning so that you can't -- you don't have much difficulty with a financial argument that it's not such a costly right thing to do if you think about it in advance; but I think it differs institution to institution, and some of the policies that we've seen at an institutional level have come from particular units, small groups of individuals within technology groups or perhaps even outside of technology groups who have just sort of led the charge and thought this was the right thing that should happen and work to make it happen. Others have been more top down. So I don't know that one strategy is always successful or has been the most common. Kurt, do you? KURT: No, I think that's exactly right. I think it really often is determined by the local culture, and that's why when you want to do systems change within universities, it's really important to understand how they work and who is who. You know, two of our colleagues, Jeff Whitfield and Terry Thompson here at Access IT who are kind of our techies would argue that making web sites accessible has some consequences that are very attractive to universities. For example, accessible web sites can be much more easily viewed through your palm pilot or your pocket PC or on your cell phone Internet screen. And many campuses, that becomes increasingly important when whole campuses are on wireless networks. So there are some utilitarian arguments that sometimes advance that policy as well. AARON: We have a question regarding purchasing the IT. They ask do you have any recommendations regarding purchasing accessible IT? You had mentioned that it was impossible to find a complete package or anything -- everything you want, but is there any product or procurement that you would recommend? KURT: Well, again, this is really difficult in educational settings and I think that the trick is that you start by thinking about what you want the outcome to be and then you evaluate and then you have the people who are going to be using it evaluate the products to see how closely they approximate that. And when we talk about course management software, examples are Black Board, Web CT and there are many others. Even though elements of some of these programs - - well, let me back up. Even if those programs were completely accessible, it's very easy for an uninformed faculty member to create a completely inaccessible course on a fully accessible platform. So it isn't just finding the product, but it's also teaching people how to use it. Here at the University of Washington we made a decision, which has been not without adverse consequences, to develop our own course management software partly to deal with these issues, and what we've ended up with is something that works but is not quite as well integrated and doesn't cross across other campuses that use something else. So I don't think those are simple questions. AARON: Okay. Like I said, it looks like we're going to get a few questions trickle in every few minutes and my guess is that this is a function of some of our technical problems and I want to assure everybody that we will get around to answering your questions. To our two presenters I would ask is there anything you would like to address more or less in closing? We've got plenty of time. KURT: Well, I think that we've covered an awful lot of material and -- AARON: You have. We do have an additional question. Would you care to entertain that? KURT: Sure. AARON: Do you know of any research studies that demonstrate that accessible IT does benefit students with disabilities and all others? KURT: No. AARON: No, okay. KURT: You know, that's a very hard thing to do research on. We can do individual case studies where we can demonstrate what happens when IT is not accessible, but that's the same kind of question that comes up when we look at K-12 when we try to say is there evidence that when you make IT accessible that test scores will go up and, no, that's really hard to do. And I don't know of anything that's been -- that would be credible that's been done. Do you, Sherrie? SHERRIE: No. AARON: Okay. And again, unless you guys have some issues you'd like to close with, I just have some closing business. Anything else you guys would like to address? KURT: We'd like to thank you all for giving us the opportunity to talk today and we appreciate the thoughtful questions. AARON: We're more than happy to have you guys here. I'm impressed, for one, with the pace of the information given. I will assure everybody that within the next -- one of the biggest questions we've had is I dialed in a few minutes late, am I going to be able to access the full transcript tomorrow? I don't know about tomorrow, but very shortly you'll be able to access the transcript of this fine presentation. It will be archived on our web site. So I encourage you to check that out later in the week. And again our website address is www.southwestada.org. You can go through that or the ILRU website, and I want to thank everybody for participating today. Let's see, in addition, I had to find my thank you list, I don't do this regularly, I want to acknowledge everybody who participated in the web cast today, I want to particularly thank -- we've got additional questions -- but I wanted to particularly thank our two presenters and I want to encourage them to maybe come back and address this issue at a later date as we get maybe some more guidance at the federal level or we get additional states developing good state law and universities developing policy. Additionally, I want to encourage people to review our web site to check our calendar out for upcoming web casts. And let's see, I'd also like to acknowledge NIDRR who funds the host for today's program, which is the Disability Law Resource Project, my employer, and the small team of hard working people who have been putting on multiple web casts every week, these include the ILRU web cast team of Marj Gordon, Sharon Finney, Dawn Heinsohn as well as the woman that I'm somewhat ineptly replacing today, Rachel Kosoy. We also have our tech guy who is Rob Dickehuth and last but not least our incredible realtime captioner, who can keep up with everybody but me, Marie Bryant. Marie, thank you, and I hope I made an effort to slow down today and thank everybody for calling in, dialing in, e-mailing in and participating. You all take care.