[Athen] In the news

Laurie Vasquez vasquez at sbcc.edu
Fri May 22 10:50:28 PDT 2015


Another DOJ Action over Allegedly Inaccessible Websites and Other
By Seyfarth Shaw LLP <http://www.seyfarth.com/> on May 21st,
2015Posted in Department
of Justice <http://www.adatitleiii.com/doj/>, Website

[image: Domain names and internet concept]
<http://www.adatitleiii.com/files/2015/05/iStock_000021093936Large.jpg>By Minh
N. Vu <http://www.seyfarth.com/MinhVu>

For today’s Global Accessibility Awareness Day
<http://www.globalaccessibilityawarenessday.org/background.html>, we have
yet another Department Justice enforcement action to report relating to the
allegedly inaccessible websites and other technologies. This time, DOJ is
trying to intervene
<http://www.justice.gov/file/miami-u-complaint-intervention/download>in an
existing lawsuit, *Dudley v. Miami University,* filed by a former Miami
University student who is blind. Although the lawsuit is brought under
Title II of the ADA which applies to state and local government entities
and not public accommodations, the obligations under the Title II and III
are very similar. Thus, the DOJ’s position in this lawsuit provides useful
insight into how it would treat private universities and other public
accommodations covered by Title III of the ADA.

On May 12, 2015, the DOJ sought permission from the court to intervene in
the lawsuit as an additional plaintiff. If the request is granted, the
lawsuit’s scope will widen. As an individual plaintiff, Ms. Dudley can
only seek injunctive relief that relates to her own disability (blindness)
and attorneys’ fees. The DOJ, on the other hand, can and is seeking
injunctive relief that would benefit people with other types of
disabilities such as those who are deaf or hard of hearing. In addition,
the DOJ can seek compensatory damages for past and present students who
have been harmed, and a civil penalty of up to $75,000.

The DOJ’s action stems from the University’s obligation ensure that its
communications with individuals with disabilities is effective. One
question we often get is whether a public accommodation is required to
ensure that all of its communications with the public are effective, or
just those that relate to the core goods and services that the public
accommodation offers (*e.g*, communications by a university to students and
prospective students about its courses and programs). Some advocacy groups
have taken the position that all material posted on any university website
must be accessible for the benefit of the public at large, even if the
material is not directly related to any coursework or other programs
offered by the school.

The DOJ’s Complaint-in-Intervention seems to focus on the university’s
websites generally, and technologies used only by students. With regard to
blind students, the DOJ alleges that (1) they were required to use Google
Docs, learning management systems, and websites for courses that are not
compatible with screen readers; (2) the university failed to convert
written texts to electronic formats that are accessible or did not
proofread the error-filled converted text; (3) university facilities did
not have room signage with braille and tactile lettering; and (4)
course-related videos did not have audio descriptions (*i.e*., voiceover
that describes what is visually happening). With regard to deaf students,
the DOJ alleges that some had to do coursework using videos that did not
have captioning. The DOJ also alleges more generally that the university’s
websites are not accessible to individuals with disabilities, and that
“Miami-sanctioned organizations” that organize campus events use a platform
for its documents that is not accessible to screen readers.

DOJ’s intervention in this lawsuit will be its second in a case involving
an allegedly inaccessible website. In 2013, DOJ intervened in a lawsuit
brought by the National Federation of the Blind against tax return
preparation company H&R Block about the company’s allegedly inaccessible
website and online tax preparation tool. Shortly after DOJ’s intervention,
H&R Block agreed to a consent decree under which it would make its website,
tax preparation tool, and mobile application conform to a set of web
accessibility guidelines called the Web Content Accessibility Guidelines
(WCAG) 2.0, Level AA. Since then, DOJ has secured agreements with other
entities to make their websites and/or mobile applications conform to WCAG
2.0 AA, including online grocer Peapod, massive online open course platform
provider edX, the Museum of Crime and Punishment, and Louisiana State
University. This requested intervention just confirms that DOJ continues
to pressure ADA-covered entities to make their websites and other
technologies accessible, even though it has not issued its much anticipated
proposed regulations for websites.
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