By John W. EganDov Kesselman, and Ashley S. Jenkins

A recent “Dear Colleague” letter issued jointly by the U.S. Department of Justice (DOJ) and the Office of Civil Rights of the Department of Education (OCR) places colleges and universities on notice of recent enforcement activities under Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) directed at digital accessibility.  Referencing recent consent decrees entered into between OCR and more than 50 institutions of higher learning in just the last year, the Letter sends a clear message that institutions should meaningfully address the accessibility of their online properties and communications.

The Letter describes the increasing reliance by colleges, universities, and post-secondary institutions on not only their own websites, but also third-party social media and third-party platforms like YouTube, Spotify, and Apple Podcasts, to deliver services, programs, and activities.  It cites broad obligations to provide disability access, not only to students, but to members of the public as well.

Specifically, the Letter references the recent court-approved consent decree in an ADA enforcement action commenced by the DOJ against the University of California at Berkeley, which addressed the accessibility of Berkeley’s online content, including thousands of hours of free coursework made available to the public.  This agreement, as well as the 50-plus consent decrees that OCR entered into with covered entities over the last year that are also referenced in the Letter, have a number of common themes that provide insight into the DOJ’s and OCR’s position on these issues:

  • Digital Accessibility Standard: Adoption of an institution-wide digital accessibility standard, such as Web Content Accessibility Guidelines (WCAG), Version 2.0 or 2.1, Level AA; 
  • Broad Remedial Coverage: Requirement to audit digital properties and content via a qualified consultant.  Audit methodologies to include not only automated scanning tools, but also manual code review and testing with a screen reader.  Audit scope to cover not only university websites but also third party social media and other sites where they post content, with a corresponding remedial obligation for identified accessibility barriers;
  • New Content to Be Accessible With Institutional Controls: New content on the university website and third-party sites all subject to the institution’s selected digital accessibility standard, with certain agency reporting obligations, and the requirement to develop a plan to maintain accessibility going forward; and
  • Means To Provide Feedback: Posting of an accessibility statement and/or means for individuals to notify the university of any alleged technology-based barriers or related commentary.

Further, the Letter references a 20-part internet video series developed by OCR, which, while not exhaustive, does address digital accessibility concepts and methods of execution. It covers topics such as digital access in education, how people with disabilities use various forms of assistive technology, related federal regulations, and coding techniques for the elimination of barriers, including through the use of mini lessons.  Additionally, the Letter references the Department of Education’s intention to publish a Notice of Proposed Rulemaking (NPRM) to amend Section 504 regulations, which may address digital accessibility.

Based on these developments, now is the time for colleges and universities to review, with the advice of qualified counsel, their policies, procedures, and protocols addressing key areas of regulatory focus, such as:

  1. Accessibility of digital content on university websites and social media platforms;  
  2. Procurement of accessible technologies from third parties, such as vendors that provide athletics, library, merchandising/e-commerce functionality on institution websites;
  3. Audits for WCAG conformance and existing consultant contracts and relationships; and
  4. The terms of previous settlement agreements or consent decrees, and the institution’s ongoing compliance with these terms. 

We will continue to monitor these regulatory and enforcement activities and will provide additional reporting on future developments.