[Athen] For your information

Laurie Vasquez vasquez at sbcc.edu
Thu Oct 8 09:43:48 PDT 2015

Federal Enforcement Activity Focusing on Accessible Technologies
<https://wcetblog.wordpress.com/2015/10/08/cooley-accessibletech/>by Russ
Poulin <https://wcetblog.wordpress.com/author/russpoulin/>

*Thank you to Nancy Anderson and Paul Thompson of the Washington, DC law
firm,Cooley, LLP <https://www.cooley.com/index.aspx>. Over many years,
Cooley has been of great service to WCET members in keeping us abreast and
advising us on how federal regulations will affect the use of educational
technologies in the United States. As part of our month of focusing on
accessibility issues, Jarret Cummings informed us of upcoming legislation.
We're pleased to have Nancy and Paul inform us of how current regulations
are being enforced.Russ Poulin, WCET*

Despite the Americans with Disabilities Act (ADA) being on the books for a
quarter century, affording every learner accessibility to education remains
a critical issue. The rapid evolution of new technologies and online
media, which has been seen as a key solution to reaching learners, has
given rise to significant challenges for students with various
disabilities, a population that has grown as more people become aware of
their rights under the ADA and other laws.

The issue of accessible technology that supports educational programs has
not gone unnoticed by regulators. The Department of Justice (DOJ) and the
Department of Education’s Office for Civil Rights (OCR) are increasingly
focusing on this issue, with DOJ recently terming the use of inaccessible
technologies in higher education an area of “great public importance.”

*Disability Actions Include Online Course Offerings and Inaccessible

The ADA, and its sister law, Section 504 of the Rehabilitation Act,
generally prohibit excluding otherwise-qualified individuals from any
covered program or activity or denying such individuals the benefits of any
program or activity because of their disability. Cooley
<https://www.cooley.com/index.aspx> has been closely tracking both DOJ and
OCR enforcement in this area, and we have issued Alerts describing two
notable developments in DOJ’s enforcement trends.

Here are the headlines:

- While the ADA and Section 504 have always been understood to apply to
traditional brick-and-mortar institutions, the applicability the laws to
Internet-based learning has been less certain. DOJ’s recent enforcement
activity against edX <https://www.edx.org/>—one of the largest and
earliest distributors of MOOCs—makes clear that DOJ intends to construe
disability laws to apply to online service providers that conduct
instructional activity, regardless of whether the entity is an institution
in the traditional sense, and regardless of whether it receives federal
funds. You can read our full alert on the subject here

- DOJ’s new enforcement activities focus on holding institutions
responsible for any inaccessible technology incorporated into curricular
and co-curricular activities, *even if that technology is created by a
third party*. While in principle this is not a new position, DOJ’s
recent decision to intervene on behalf of a student who claimed to have
been denied educational services due to inaccessible technology is
instructive. The agency has filed its own complaint in the case, focusing
on the many types of software and technology-based services that may not be
compliant. You can read our full alert on the subject here

*Both Colleges and EdTech Companies Need to Address Accessibility*

These developments pose important challenges both to traditional
institutions and to other entities, such as edX, that the agencies classify
as places of education. Traditional institutions that have significantly
increased their online programs to enable them to become engaged in a range
of educational initiatives face unique challenges associated with growing
size and scope, such as controlling the many entry points for technology
and promptly identifying and meeting student needs. Institutions of all
types should take note: any technology that provides or enables online
learning needs to be accessible. This means that, at a minimum, online
content should meet the Web Content Accessibility Guidelines (WCAG) 2.0
standards, which outline technical guidelines for making web content

With respect to non-traditional entities such as online coding academies
and companies marketing web-based platforms to K-12 and postsecondary
schools alike, DOJ’s new position will require small companies and startups
to commit more of their limited time and resources to ensure that the use
of their product can result in effectively reaching students. As
institutions increasingly focus on adopting technology that contains proven
accessibility features, failing to consider accessibility when designing a
platform could leave many companies with an unmarketable product.
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