On Friday, May 19, the Department of Justice (DOJ) Civil Rights Division and the Department of Education Office for Civil Rights (OCR) issued a Joint Dear Colleague Letter on the participation of people with disabilities in online activities made available by colleges, universities, and other postsecondary institutions. The accessibility of online education has been a major focus for AFB’s Public Policy and Research Institute since the pandemic expedited the adoption of educational technologies, and Dr. Silverman recently published a blog on resources for using accessible educational technologies.
The Government Is Warning Colleges about their Obligations
This Dear Colleague Letter briefly explains online content accessibility, especially podcasts and videos. It then describes how the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act require institutions to provide equal opportunities for people with disabilities to participate in and benefit from educational services and programs. The letter calls attention to the recent DOJ Guidance on Web Accessibility and the ADA and OCR’s video series on accessible technology. The Letter further describes recent enforcement actions and declares that the Departments will continue enforcement activities.
At AFB, we are pleased that both Departments are paying attention to educational technology accessibility but fear this letter does not go far enough. Coming on heels of Global Accessibility Awareness Day, this letter is a reminder and warning to postsecondary institutions following a settlement between DOJ and the University of California at Berkley. In that settlement, the University agreed to a timeline to make its online content, especially podcasts and videos, accessible to people with disabilities. The settlement also requires University websites to meet the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA. Notably, the Consent Degree only requires content on third-party platforms, such as YouTube, to be fully accessible if the platform allows for it. It does not directly require the University to use third-party platforms that are fully accessible.
Similarly, the Joint Dear Colleague Letter makes no direct mention of procured platforms that are not controlled by the institutions of higher education. It does not address preschool or K-12 educational institutions, and it only references WCAG 2.0, rather than the newer standard, WCAG 2.1. As advocates, we believe this letter calls further attention to the need for broad digital accessibility regulations.
AFB Has Reported on the Scope of the Problem
AFB has documented the widespread use of inaccessible platforms and content in educational programs and services throughout the country. These findings continue to inform our advocacy on digital inclusion.
In our recent Barriers to Digital Inclusion report, Dr. Silverman and her colleagues reported that 137 participants had used websites for college-level courses. Of those, only 12% reported that they never encountered accessibility barriers while 29% reported barriers more than half the time. Of the 69 who used apps during their studies, 16% encountered no barriers while 38% reported frequent barriers. Similar barriers were encountered by adults accessing information about their child’s education with only 15% encountering no barriers on websites and 13% on apps. In addition, more than three-quarters of respondents reported at least occasional barriers in programs used for learning specific skills outside of schools, such as language-learning apps and online coding platforms.
Unreported data from AFB’s Journey Forward study demonstrated how these barriers can have real and significant effects on educational participation of post-secondary students who are blind or have low vision. During the pandemic, 56 survey participants whose classes moved fully or partially online reported dropping a class, taking an incomplete, leaving their program, or having to file an official complaint because of lack of accessibility. Such actions can delay a student’s graduation or affect their ability to pursue a preferred course of study.
In addition, the Access and Engagement studies revealed numerous examples of inaccessible educational technologies deployed in preschool and K-12 settings. In the Fall 2020 survey, families reported their children were expected to use an average of 4.9 different digital tools or programs of which 2.7 were inaccessible. As one family member said, “[the learning program] was not set up for a screen reader [and] had videos that were not audio described. We spoke with their OIT department about accessibility issues but were told they couldn’t implement them.”
Some family members discovered that their children with disabilities had been exempted from lessons. Blind family members also reported being unable to assist their children with coursework.
The Federal Government Must Act Quickly to Achieve Educational Equity
The finding from AFB’s research is clear: Educational technologies continue to exclude students with disabilities at all levels. We are grateful that the Departments of Education and Justice are taking some enforcement actions on inaccessibility. Nevertheless, this Dear Colleague does not address all of the issues students face, and the government cannot individually address every school. The Departments must quickly issue regulations, providing an effective uniform legal framework that is specific, implementable, and enforceable across the board. To expand on this letter, we urge the Departments to issue ADA Title II and III as well as Section 504 regulations specifying that:
- All websites and apps, including third-party platforms and those procured from vendors, must be accessible.
- All levels of education from preschool through post-secondary education have an affirmative obligation to prevent digital discrimination.
- Enforcement should be based on recent standards, such as WCAG 2.1, Level AA.
The University of California, Berkeley, consent decree suggests that Congress must also act. Schools and universities must establish accessible procurement processes and produce their own content accessibly. Still, they depend on vendors and third-party platforms. The Websites and Software Applications Accessibility Act and the Communications, Video, and Technology Accessibility Act would strengthen the legal frameworks ensuring that platforms beyond the control of covered entities are accessible to all. They would limit how often covered entities produce accessible content but cannot easily add audio description or other accessibility features.
Are you looking for a way to make your voice heard?
The ball is in the federal government’s court. However, if you want to raise these issues individually, report your experience with inaccessible websites and applications used in educational settings to the DOJ or OCR. Neither agency can respond to all complaints, but having a large number of complaints keeps the agencies focused on these issues. You can also share the Dear Colleague letter with University professors and administrators to support your self-advocacy.
