The COVID-19 pandemic dramatically increased the use of the internet and digital platforms by institutions of higher education. While providing online content has great potential to improve the ways that institutions communicate with and educate students, institutions must also be aware of their respective compliance obligations when acting in a digital world.  

Thompson Coburn’s Higher Education Group previously detailed the requirements of the Department of Education’s new Distance Education Rule in a webinar for institutions looking to educate students online. This blog post focuses on website accessibility considerations and provides a high-level overview of legal requirements for private institutions of higher education.  

Legal framework

There are two main federal laws that govern website accessibility for private institutions of higher education: Title III of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). State and local laws, including anti-discrimination or human rights laws, also govern online accessibility and can vary greatly based on the jurisdiction. While this blog post does not address state and local laws, institutions should be sure to understand and abide by such relevant requirements in addition to federal law.  

The Americans with Disabilities Act

Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns ... or operates a place of public accommodation.” 42 U.S.C. § 12182(a). A private institutions of higher education is considered to be a “public accommodation” under Title III. Id. at 12181(7)(J).

Title III is silent as to whether websites are “public accommodations.” In the absence of statutory or regulatory language, case law has filled in the gaps. While all cases are fact-specific, website accessibility standards under Title III largely depend on the jurisdiction reviewing the matter.

Some courts have found that online content is subject to Title III of the ADA. See, e.g. Nat'l Ass'n of the Deaf v. Harvard Univ., 377 F. Supp. 3d 49 (D. Mass. 2019); Robles v. Domino's Pizza, LLC, 913 F.3d 898, 910-11 (9th Cir. 2019). Such courts frequently have accepted the Web Content Accessibility Guidelines (“WCAG”) as an industry standard to gauge website compliance with the ADA. WCAG is guidance promulgated by the World Wide Web Consortium, an international organization governing accessibility standards. But other courts have interpreted the ADA differently, for example holding “public accommodations” under the ADA are limited to actual, physical places and do not include websites. See, e.g. Martinez v. Mylife.com, Inc., 2021 WL 5052745 (E.D.N.Y. Nov. 1, 2021). Given the split amongst courts, this may also be an issue that the Supreme Court may eventually review.

While it is unlikely that Congress will provide additional clarity on this question in the near future, institutions should be aware of the possibility that new federal rules related to website accessibility may be issued by the Department of Justice (“DOJ”). In 2010, the Obama Administration’s DOJ initiated the process to propose such rules, but this process was stopped by the Trump Administration is 2017. The Biden Administration may resuscitate the effort to publish these rules. Even in the absence of new rules, however, recent DOJ settlement agreements with Kroger, Hy-Vee, and Rite-Aid have required conformance with WCAG standards.

Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits a qualified individual, on the basis of their disability, from being “excluded from participation in, [] denied the benefits of, or otherwise [] subjected to discrimination under any program or activity which receives Federal financial assistance.” 34 C.F.R. §104.4. The Department of Education’s Office for Civil Rights (“OCR”) enforces Section 504 with respect to institutions of higher education, both public and private, that receive federal financial assistance from the Department of Education.

Although Section 504 also does not contain a website accessibility standard, OCR has interpreted an institution’s website accessibility obligations under Section 504 in recent resolution agreements between institutions and OCR. In 2020, resolution agreements contained the following language:

Online content and functionality. The University agrees that it will, in a reasonably timely manner, and in no case longer than 12 months, develop and take substantial steps in the implementation of a strategy to ensure that individuals with disabilities have an equal opportunity to participate in the University's programs and activities offered through the University's website by making the online content and functionality accessible, or, if necessary, providing equally effective alternate access. To meet this commitment, the University will develop a strategy for identifying and addressing inaccessible content and functionality for individuals with disabilities. The University’s strategy will designate the standard that the University will use to determine the accessibility of online content and functionality (e.g., WCAG 2.0 level AA or a similar standard). (E.g. Resolution Agreement with Caldwell University, OCR Docket No. 02-09-6906).

Here, OCR specified that institutions must designate a particular standard to be used to “determine the accessibility of online content and functionality.” WCAG 2.0 level AA is noted as an example of such a standard.

Practical guidance

Because courts, DOJ, and OCR have often looked to WCAG standards to satisfy an institution’s website accessibility obligations, institutions should strongly consider implementation of WCAG compliant websites to guard against potential litigation or administrative enforcement actions. The most current WCAG standard is 2.1.

Institutions can consider taking the following steps to move toward compliance:

• Create a website accessibility team: Identify stakeholders and appropriate individuals to tackle website accessibility issues. For example, an institution’s disability services office, information technology office, procurement office, and faculty likely all have a stake and a role in ensuring compliance.
• Review current website and online products: Understand the scope of your institution’s website, online footprint, and current levels of compliance. There are a number of free tools that can be used to check the accessibility of documents (Accessibility Checker and Checklist (cpp.edu)) or websites (WAVE Web Accessibility Evaluation Tool (webaim.org)). There are also a number of companies that can provide an accessibility audit for your institution.
• Ensure new content posted by the institution is accessible: New content posted on websites by staff and faculty should meet applicable accessibility standards. The University of Washington has great resources that may help give your institution a sense of what is required.
• Future procurements and web design: In all future procurements for websites or online products, make sure that accessibility is a consideration. Consider specifying the level of required compliance in future contracts – for example, WCAG 2.1 Level AA or similar standard – so there is no question that the product your institution is compliance.

WRITTEN BY: Thompson Coburn LLP

Scott Goldschmidt
Aaron Lacey