In late November, the Department of Education (DOE) Office for Civil Rights (OCR) released a revised Case Processing Manual that reversed controversial rules changes made in March 2018 that automatically dismissed complaints from individuals and organizations that filed multiple complaints. As a result of the rescission of the so-called “Mass Filer” rule, web accessibility complaints against educational institutions are likely to increase significantly.
Under the March rules changes, the OCR dismissed complaints without an investigation where they were part of a pattern of complaints filed by an individual or group against multiple organizations. While the DOE at the time justified the Mass Filer amendment as necessary to prioritize resources and better manage OCR’s case load, the Mass Filer amendment was criticized by disability advocates for significantly limiting the ability of advocates and not-for-profit groups like the National Federation of the Blind (NFB) to challenge discriminatory practices that are widespread across institutions.
Web accessibility was central to many of the cases dismissed under the Mass Filer amendment. Over the past two years, disability rights advocate Marcie Lipsitt had filed or helped to file over 2,400 complaints against educational institutions with websites that she said were not accessible to individuals with disabilities. Under the Mass Filer policy, hundreds of Lipsitt’s complaints were dismissed by the OCR without investigation.
With the DOE having rescinded the Mass Filer rules, however, Lipsitt and advocacy organizations like the NFB may once again file complaints on behalf of students with disabilities and their families. In addition, the DOE has agreed to reopen complaints previously closed under the policy, including the web accessibility complaints filed by Lipsitt.
The DOE’s decision to rescind the Mass Filer amendment is not entirely surprising, however. In May, the NFB and other civil rights organizations, including the NAACP, brought suit against the DOE, alleging that the Mass Filer amendment and other changes to the OCR’s Case Processing Manual violated the Administrative Procedure Act because they were done in an arbitrary and capricious manner and without the solicitation of public comment before the amendments went into effect. The litigation against the DOE is pending, and Eve Hill, an attorney representing the civil rights groups, told Education Week that it would continue absent a binding agreement with the DOE. “They have to reach an agreement with us to stop doing this bad behavior, or they need a court order or a consent decree to say they will,” Hill said.
The revocation of the Mass Filer rule is likely to lead to a significant increase in the number of investigations against educational institutions focused on inaccessible websites and other digital content. In addition to the reopening of hundreds of previously-closed cases, the rules change once more opens the door for new complaints to be filed by disability rights advocates and advocacy groups. If your institution’s website isn’t accessible, it is at risk of being named in an OCR complaint.
The Bottom Line
If you are concerned about your organization’s risk of an OCR complaint, contact us for a complimentary Risk Assessment of your website. If you have already been named in a complaint, we can partner with your attorney to help you through the process.
This blog post is for informational purposes only and does not constitute legal advice.