Website Accessibility Under the ADA and

Section 504

Mary Kay Klimesh, Seyfarth Shaw, Chicago, IL;

Kristina Launey, Seyfarth Shaw, Sacramento, CA

Presented at the 2017 School Law Seminar, March 23-25, Denver, Colorado

The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because

Seminar papers are published without substantive review, they are not official statements of NSBA/COSA,

and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers

are those of the author and should not be considered legal advice.

© 2017 National School Boards Association. All rights reserved.

WEBSITE ACCESSIBILITY UNDER SECTION 504 AND THE ADA

Mary Kay Klimesh, Esq. Kristina Launey, Esq.

Kevin Fritz, Esq. (Co-Author of Written Materials) Seyfarth Shaw LLP

131 South Dearborn, Suite 2400 Chicago, IL 60603

mklimesh@seyfarth.com klauney@seyfarth.com

for the

2017 School Law Seminar March 23-25, Denver, Colorado

I. Website Accessibility -- Its Importance and Meaning for School Districts

A. School districts provide important information to students, parents and the public via the Internet. The Internet may also serve as a basic tool for educating students. Although accessibility is important to all persons entitled to and/or seeking online information, not all websites give persons with disabilities equal access to information and services. As a result, the accessibility of school district websites to individuals with disabilities has become a critical legal issue for public school districts, their administration and teachers.

B. “Website accessibility” has been defined to mean that “people with disabilities can access the web” by the Web Accessibility Initiative, a project of the international standards group called the World Wide Web Consortium. See https://www.w3.org/WAI/intro/accessibility.php.

II. The Legal Framework Underlying Website Accessibility

A. Statutes Prohibiting Discrimination on the Basis of Disability Apply to PublicSchools and School Districts

The legal requirements underlying the issue of public school website accessibility are found in federal antidiscrimination statutes prohibiting discrimination on the basis of disability, including Title II of the Americans with Disabilities Act of 1990 (“Title II” or the “ADA”), 42 U.S.C. § 12131 et seq. and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794.

1. Title II of the ADA provides that “no qualified individual with adisability shall, by reason of such disability, be excluded fromparticipation in or be denied the benefits of services, programs, oractivities of a public entity.” 42 U.S.C. § 12132.

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2. Section 504 of the Rehabilitation Act protects the rights of individuals with disabilities in programs and activities that receive federal financial assistance. Specifically, it states that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a).

B. Title II and Section 504 Implementing Regulations

1. Title II’s implementing regulations require “effective” communication with individuals with disabilities by public entities, including public schools and school districts, unless doing so would fundamentally alter the nature of the programs, services, or activities, or would impose an undue burden.

a. “A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1).

b. “A public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1).

c. “The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.” 28 C.F.R. § 35.160(b)(2).

d. “In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2).

e. “This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.164.

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2. Section 504’s implementing regulations generally prohibit public entities from discrimination on the basis of an individual’s disability in any program or activity which receives Federal financial assistance. “Program and activity” is defined broadly by the regulations to include “all of the operations” of a local educational agency. See 34 C.F.R. §104.3(k). The regulations prescribe prohibited conduct to include affording an individual with a disability an unequal opportunity to participate in or benefit from an aid, benefit or service and require that disabled individuals be afforded an equal opportunity to participate in a public entity’s services. See 35 C.F.R. § 104.4.

a. “No qualified [disabled] person shall, on the basis of [disability], be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.” 34 C.F.R. § 104.4(a).

b. “A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of [disability]:

(i) Deny a qualified [disabled] person the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified [disabled] person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified [disabled] person with an aid, benefit, or service that is not as effective as that provided to others;

(iv) Provide different or separate aid, benefits, or services to [disabled] persons or to any class of [disabled] persons unless such action is necessary to provide qualified [disabled] persons with aid, benefits, or services that are as effective as those provided to others; . . .”

34 C.F.R. §104.4(b) (emphasis added).

c. “For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for [disabled] and [nondisabled] persons, but must afford [disabled] persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.” 34 C.F.R. § 104.4(b)(2) (emphasis added).

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d. Section 504’s implementing regulations address “accessibility” at Subpart C but do not specifically address “website accessibility.” Rather, these regulations reference the accessibility of facilities and methods that will be used to make facilities accessible. See 34 C.F.R. §§ 104.21 - 23.

C. U.S. Department of Education (“DOE”) and Department of Justice (“DOJ”) Guidance

In recent years, the DOE and the DOJ have issued guidance with respect to the application of federal law to accessibility of technology used in the education sector.

1. June 2003 DOJ Guidance Regarding State and Local Government Websites

This DOJ Guidance recognizes that State and local governments “are using the web to offer citizens a host of services including: corresponding with local officials; providing information about government services; . . . applying for jobs or benefits.” The Guidance states that the ADA and Section 504:

“generally require that State and local governments provide qualified individual with disabilities equal access to their programs, services, or activities, unless doing so would fundamentally alter the nature of their programs, services, or activities or would impose an undue burden. One way to help meet these requirements is to ensure that government websites have accessible features for people with disabilities, . . . An agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line. These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and range of options and programs available.”

See U.S. Dep’t of Justice, Civil Rights Division, “Accessibility of State and Local Government Websites to People with Disabilities,” (June 2003) available at, https://www.ada.gov/websites2.htm

2. June 2010 DOJ and DOE/OCR Joint Dear Colleague Letter Regarding Electronic Book Readers and Other Emerging Technologies

In June 2010, the DOJ and the U.S. Department of Education, Office for Civil Rights (“OCR”) issued a Joint Dear Colleague Letter (“DCL”) to College and University Presidents stating that “[r]equiring the use of an

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emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities . . . is discrimination prohibited by the [ADA and Section 504].” See Office for Civil Rights, Dep’t of Educ. Civ. Rights Div. & Dep’t of Justice, Joint “Dear Colleague” Letter: Electronic Book Readers (June 29, 2010) available at, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.pdf

3. May 2011 DOE/OCR Follow-Up FAQs to June 2010 DCL Stating that June 2010 DCL Applies to Elementary and Secondary Schools

In a subsequent FAQ regarding the June, 2010 Dear Colleague Letter, the DOE clarified that its June 2010 guidance was applicable to elementary and secondary schools:

“The [June 2010] DCL grew out of complaints filed with the Department’s Office for Civil Rights (OCR) and DOJ that concerned postsecondary education. However, the principles underlying the DCL -- equal opportunity, equal treatment, and the obligation to make accommodations or modifications to avoid disability-based discrimination -- also apply to elementary and secondary schools under the general nondiscrimination provisions in Section 504 and the ADA. The application of these principles to elementary and secondary schools is also supported by the requirement to provide a free appropriate public education (FAPE) to students with disabilities.”

The FAQ specifically clarified that the June 2010 DCL applied to technologies beyond electronic book readers to other forms of emerging technologies:

“The core principles underlying the DCL -- equal opportunity, equal treatment, and the obligation to make modifications to avoid disability-based discrimination -- are part of the general nondiscrimination requirements of Section 504 and the ADA. Therefore, all school programs or activities -- whether in a ‘brick and mortar,’ online, or other ‘virtual’ context -- must be operated in a manner that complies with the Federal disability discrimination laws.”

The FAQ further described the “legal obligations” of schools covered by the ADA and Section 504 by stating that “the implementation of an emerging technology should always include planning for accessibility” and that the “planning should include identification of a means to provide immediate delivery of accessible devices or other technology necessary to ensure accessibility from the outset.”

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The FAQ stressed that the “legal obligations described in the DCL always apply” and that “[s]chools that are covered under Section 504 and the ADA have a continuing obligation to comply,” noting that:

“Just as a school system would not design a new school without addressing physical accessibility, the implementation of an emerging technology should always include planning for accessibility. . . . The planning should include identification of a means to provide immediate delivery of accessible devices or other technology necessary to ensure accessibility from the outset.”

See U.S. Dep’t of Educ., “Frequently Asked Questions About the June 29, 2010 Dear Colleague Letter,” (May 29, 2011) available at, https://www2.ed.gov/print/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html

D. DOJ Rulemaking -- DOJ Has Issued Supplemental Advanced Notice of Proposed Rulemaking for State and Local Government Websites Under Title II of ADA

The DOJ has been engaged in the rulemaking process on website accessibility under the ADA, but regulations have not been finalized. In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking indicating the intent to promulgate regulations under Title II and Title III of the ADA to address requirements for website accessibility. On April 29, 2016, the DOJ issued a Statement Regarding Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities, which stated in part:

“The increasingly interconnected and dynamic nature of Web sites allows for easy and convenient access to the programs, services, and activities of public entities covered by the Americans with Disabilities Act (ADA). Yet, individuals with disabilities are often denied equal access to the services, programs, and activities of State and local governments because many public entities’ Web sites are inaccessible. Public entities have also expressed the need for accessibility standards to help them meet their responsibility to provide equal access. The Department believes that adopting technical standards clarifying how to make a Web site accessible is crucial to achieving the ADA’s mandate.”

In addition, in May, 2016, the DOJ issued a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) which contemplates that WCAG 2.0 Level AA standards will be the standard for web content and that entities will have two years after final adoption to comply. See Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 81 Fed. Reg. 28,657 (May 9, 2016) available at,

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https://www.federalregister.gov/documents/2016/05/09/2016-10464/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state

E. Case Law on Applicability of the ADA and Section 504 to Website Accessibility

1. Title II Case: Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362 (N.D. Ga. 2002)

In this case, plaintiffs with mobility and vision-related disabilities alleged that the MARTA violated the ADA by failing to provide access to information through its website. The court granted injunctive relief to the plaintiffs, explaining that until MARTA’s website was made accessible, MARTA was “violating the ADA mandate of ‘making adequate communications capacity available, through accessible formats and technology, to enable users to obtain information and schedule services.’”

2. Title III Recent Website Accessibility Case: Kidwell v. Florida Commission on Human Relations and SeaWorld Entertainment, No. 2:2016cv00403 (M.D. Fla. 2017)

In this case, a disabled pro se plaintiff sued SeaWorld under Title III of the ADA, alleging that SeaWorld’s website was not accessible to individuals with disabilities. This claim was rejected by the court:

“Neither Busch Garden’s nor SeaWorld’s online website is a physical or public accommodation under the ADA. The internet is a unique medium -- known to its users as ‘cyberspace’ -- located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet. Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency. As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.”

As noted by one commentator: “Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision holding that SeaWorld’s website is not a place of accommodation was a small bright spot -- albeit one with limitations.” See Minh Vu, “Florida Federal Court Holds That a Website is Not a Place of Public Accommodation,” available at, http://www.adatitleiii.com/2017/01/florida-federal-court-holds-that-a-website-is-not-a-place-of-public-accommodation/. The plaintiff in

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Kidwell failed to plead that the inaccessibility of the website prevented him from accessing a physical place of public accommodation. In reaching its decision, the court relied on Access Now, Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), in which the court dismissed an ADA Title III claim against Southwest because the airlines’ website was neither a public accommodation nor was a means of accessing a physical place of public accommodation.

3. Other Recent Cases of Relevance

a. Nat'l Ass'n of the Deaf v. Massachusetts Inst. of Tech., No. 3:15-CV-30024-MGM, 2016 WL 3561631 (D. Mass. Feb. 9, 2016); Nat'l Ass'n of the Deaf v. Harvard Univ., No. 3:15-CV-30023-MGM, 2016 WL 3561622 (D. Mass. Feb. 9, 2016)

In these cases, an organization for the hearing impaired filed putative class actions against both Harvard University and Massachusetts Institute of Technology (MIT) for failing to provide captioning for many of the online audio and audiovisual content on their websites. The plaintiffs brought claims under both Section 504 and Title III of the ADA. In these cases, plaintiffs specifically alleged that by not providing captioning, the universities failed to provide equal access for deaf and hard of hearing individuals to much of the audio and audiovisual content available online to the public for free. The plaintiffs sought declaratory and injunctive relief requiring the universities to provide timely, accurate captioning of its content. The court in both cases denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery. The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim and rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility. The court noted that the issue was “rather mushy” and noted that “striking the appropriate balance between accommodating the rights of Plaintiffs and not unduly burdening [the universities] requires a fact intensive inquiry that is not suitable for resolution on a motion to dismiss.”

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4. Differences Between Title II and Title III May Be Relevant to Application of Title III Case Law on Website Accessibility to School Districts

The applicability of the ADA to websites in Title III cases, such as the Kidwell case, turn on the issue of whether a website is a “place of public accommodation” since the general nondiscrimination mandate of Title III provides:

“No 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, leases (or leases to), or operates a place of public accommodation.”

42 U.S.C. § 12182(a). Note also that some judicial circuits, such as the First Circuit, do not require that a business have a nexus to a physical location to be a place of public accommodation. See Carparts Distribution Ctr. v. Automotive Wholesalers’ Ass’n of New England, 37 F.3d 12 (1st Cir. 1994) (noting that the definition of public accommodation does not explicitly include a requirement that the entity be limited to a physical structure).

Title II of the ADA does not include the “place of public accommodation” language, but rather applies broadly to a “public entity” and prohibits a public entity from excluding an individual with a disability from participating in “the benefits, services, programs or activities of a public entity.” 42 U.S.C. § 12132. Likewise, the statutory language of Section 504 is relatively broad providing that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a). As a result, it may be questionable as to whether cases such as Kidwell are applicable in the Title II and Section 504 context.

III. Potential Barriers to Website Accessibility for People with Disabilities

Examples of basic problems with web design are described by the ADA Best Practices Tool Kit for State and Local Governments published by the U.S. Department of Labor, see Chapter 5 available at https://www.ada.gov/pcatoolkit/chap5toolkit.htm

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A. Posting Images on a Webpage Without Text Equivalents

Posting images without text presents an accessibility issue for blind people, those with low vision, and people with other disabilities. The absence of text may prevent such individuals from readily accessing and interpreting the images displayed. Accessibility may be accomplished through a screen reader and/or a refreshable Braille display,1 but these tools cannot translate images into speech or Braille and therefore cannot interpret photographs, charts, color-coded information, or other graphic elements on a webpage. Therefore, visual images such as a photograph of a student, classroom, teacher, administrator, and/or school board on a school’s website may be inaccessible even if a screen reader or refreshable Braille display is utilized. The ADA Best Practices Tool Kit for State and Local Governments proposes some solutions to this problem, including “adding a line of simple HTML code to provide text for each image and graphic [to] enable a user with a vision disability to understand what it is” or “adding a type of HTML tag, such as an ‘alt’ tag for brief amounts of text or a ‘longdesc’ tag for large amounts, to each image and graphic on your website.”

B. Posting Documents in an Inaccessible Format

School districts will often post documents on their websites using Portable Document Format (PDF). But PDF documents, or those in other image based formats, are often not accessible to blind people who use screen readers and people with low vision who use text enlargement programs or different color and font settings to read computer displays. According to the ADA Tool Kit: Website Accessibility Under Title II of the ADA, this issue can be addressed by posting documents in a text-based format, such as HTML or RTF (Rich Text Format) in addition to PDF.

C. Specifying Colors and Font Sizes

Webpages may be designed with certain preferences for color, font size, layout, etc. Because of their disability, individuals with low vision may not be able to see website content in a certain color and/or cannot see text or images that are too small. The solution suggested by the ADA Tool Kit: Website Accessibility Under Title II of the ADA is to avoid dictating colors and font settings for web pages.

D. Posting Videos and Other Multimedia Without Accessible Features

School districts and/or teachers may post content in the form of videos, slide shows, video tours, etc. Posting of such multimedia can present problems for individuals with disabilities because they may not be able to see or hear adequately the information presented. The ADA Tool Kit: Website Accessibility

1A refreshable Braille display is an electronic device that translates text into Braille characters that can be read by touch.

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Under Title II of the ADA suggests that the solution to this issue is to include audio descriptions and captions when videos are posted on the web.

IV. OCR Settlements With Public Schools

On June 29, 2016, the OCR reported that it “ha[d] reached settlements with education organizations in seven states and one territory to ensure website accessibility for people with disabilities.” See Settlements Reached in Seven States, One Territory to Ensure Website Accessibility for People with Disabilities, (June 29, 2016), available at, http://www.ed.gov/news/press-releases/settlements-reached-seven-states-one-territory-ensure-website-accessibility-people-disabilities. This page is now listed as “Archived Information.”

Note the following synopsis of the issues investigated and the resolutions reached shared by the U.S. Department of Education:

“OCR investigations found that on all 11 websites, important images were missing text descriptions, called “alt tags,” that describe the images to blind and low-vision users who use special software. Common problems affecting many of the websites included:

Some important content of the website could only be accessed by people who can use a computer mouse, which meant that content was not available to those who are blind, many who have low-vision, and those with disabilities affecting fine motor control;

Parts of the website used color combinations that made text difficult or impossible for people with low vision to see; and

Videos were not accurately captioned, so they were inaccessible to people who are deaf.

The 11 education groups voluntarily committed to make their websites accessible through a range of actions, which require OCR review and approval at key stages, including:

Affirming their commitment to ensuring that people with disabilities have opportunities equal to those of others to enjoy the recipients’ programs, services, and activities, including those delivered online;

Selecting an auditor who has the requisite knowledge and experience to audit content and functionality and identify barriers to access on the existing website for people with disabilities;

Conducting a thorough audit of existing online content and functionality;

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Adopting policies and procedures to ensure that all new, newly added or modified online content and functionality will be accessible to people with disabilities;

Making all new website content and functionality accessible to people with disabilities;

Developing a corrective action plan to prioritize the removal of online barriers;

Posting a notice to persons with disabilities about how to request access to online information or functionality that is currently inaccessible; and

Providing website accessibility training to all appropriate personnel.”

V. Steps a School District Can Take Now

As discussed, the DOJ and DOE are interpreting the ADA’s and Section 504’s non-discrimination mandates to require school district websites to be accessible. Even without applicable federal regulations adopted by the DOE or DOJ, school websites should be monitored with consideration given to accessibility of content to individuals with disabilities. Not doing so may leave a school district subject to complaints of discrimination or litigation. Until federal regulations are adopted, school districts should consider taking all possible steps to make their websites accessible. Such steps include:

A. Implementing Industry Standards: By implementing the WCAG 2.0 guidelines to the extent possible, school districts with web presence can work to ensure equal access for users with disabilities.

B. Inquiring About Accessibility: A school district may consider inquiring about accessibility issues. A simple inquiry will do: “How is our website?” “Can you use it?” “Do you have problems with it?”

C. Usability Testing: A school or school district might consider usability testing which will help identify problems with accessibility but will also identify other problems that might not be on a district’s radar screen.

D. Contracting With Vendors: School districts can also explicitly require that accessibility be a requirement when seeking website vendors.

E. Audits: Several organizations offer tools and checklists that web developers can use to check websites for accessibility.

F. Training: Training of administrators and staff on the importance of website accessibility and their roles in contributing to website accessibility should be considered and provided as needed to implement plans for making school district websites accessible to users.