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The scales of justice

DOJ Icon BlogWilliam Zee of the law firm Barley Snyder recently posted his notes from a discussion he attended with top officials from the Office for Civil Rights (OCR) of the Department of Education and Department of Justice (DOJ). The discussion with Candice E. Jackson of the OCR and Thomas E. Wheeler II of the DOJ gave us a window into what enforcement might look like under the Trump administration. This discussion focused on the area of education including digital accessibility and the rights of students with disabilities.

They stressed that the OCR is a neutral body that will enforce the rights of students with disabilities. However, it seems that the OCR is going to take on a slightly more passive and different role than under previous administrations. They are going to examine the alleged violations but not dig too deeply to find obscure violations. Level Access believes that, going forward, digital accessibility violations will need to be clear and present in the evidence from a claim. High risk violations will include those that can be found through automatic testing and those that have an impact on the student’s ability to access content and participate. For educational institutions to reduce risk, addressing obvious public violations on the institution’s websites is critical. In addition, an institution’s genuine efforts to address accessibility and prevent discrimination based on disability will be taken into account.

The OCR is also going to consider an educational institution’s “good faith” effort to address problems and work collaboratively to address issues through other means such as early complaint resolution. According to Level Access Chief Accessibility Officer Jonathan Avila, “Good faith commitment is not just an accessibility statement – but in my opinion, evidence of efforts to remove barriers, get feedback from stakeholders, and communicate your efforts.  It doesn’t mean a perfect site with all accessibility issues addressed immediately.” The trend seems to be moving away from requiring implementation of specific accessibility standards to making sure that a student’s civil rights are protected.

With regards to digital accessibility, the OCR is going to implement a cost-benefit analysis. Greater emphasis is likely to be placed on implementing accessibility on new web content. In particular, the cost of accessibility is negligible when considered as the website is developed, rather than when trying to retrofit the website later. There are cost models available for digital accessibility – one model from the Access Board and another model from IBM – but it is unclear whether the OCR will use either of these models or develop their own.

Jennifer S. Rusie, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart P.C. notes that the DOJ has placed new ADA regulations on the “inactive” list. “This action further confirms that the Trump administration is unlikely to provide the help the business community needs in this area of the law,” Rusie said.

“While the absence of regulations will likely prolong the period of uncertainty surrounding website accessibility in the general business community, in education circles, OCR’s new, more collaborative approach will enable institutions to attain guidance as to what constitutes a compliant website,” Rusie added.

Level Access CEO Tim Springer notes, “On the surface, less enforcement from the DOJ and the OCR may seem to change the landscape of digital accessibility. However, a change in approach from the OCR is unlikely to curb the plethora of private lawsuits and structured negotiation efforts occurring over the past few years. Even though we are less likely to see Statements of Interest and Dear Colleague letters supporting web accessibility from the DOJ, courts ruled in favor of accessibility even when these supporting statements were not present.”

Want to learn more?

Access our new whitepaper, Dealing with Office for Civil Rights Complaints: Advice for Educational Institutions as well as the webinar resources from the corresponding webinar, Don’t Fear the OCR: Digital Accessibility for Education.

This blog post is for informational purposes only and does not constitute legal advice.