Fight Over Digital Accessibility

September 19, 2014

By
Michael Stratford

WASHINGTON — Advocates for students with disabilities and groups
representing colleges and universities are sparring over federal legislation
that would
set new standards for accessible technology on campuses.

At issue is a four-page provision in Senator Tom Harkin’s massive proposal
to rewrite the Higher Education Act that would require a federal board to
establish
guidelines for evaluating whether instructional materials and other
technology used on campuses are accessible to students with disabilities.
Colleges
and universities would have to either use only instructional materials that
conform to the guidelines or assure the Education Department that they are
providing disabled students with materials that are “substantially
equivalent” to those provided to their non-disabled peers.

More Discussion of This Issue

Kyle Shachmut of the National Federation of the Blind and Jarret Cummings of
Educause, the higher ed technology group, will join Friday’s edition of
This Week,
our weekly news podcast, to discuss the new legislation.
Sign up here
to be notified when new podcasts are available.

Backers of the legislation, which include advocacy groups for students with
disabilities, say the guidelines will improve accessibility to the
technology
that is an increasingly significant component of nearly every aspect of a
student’s experience in higher education. Higher education associations,
however,
say the legislation would burden campuses with new legal requirements and
stifle innovation.

“There is all this promise of great technology that could level the playing
field in a way, but students with disabilities are being left further
behind,”
said Kyle Shachmut, president of the National Federation of the Blind’s
Massachusetts chapter. “As a broad statement, universities aren’t living up
to
their obligations to provide equal access.”

Shachmut said the guidelines, which would be developed by the U.S. Access
Board, would help colleges and universities better serve their students with
disabilities.

Supporters of the TEACH Act also say that a unified set of technical
guidelines would help prod the educational publishing and technology
industries to
provide products that are more accessible. They say that colleges will
gravitate toward vendors offering compliant products, creating a demand that
doesn’t
currently exist without uniform standards. The American Publishers
Association backs the legislation.

“The problem in many cases is that schools are adopting technology from the
market and schools are not demanding that they be made accessible,” said
Shachmut.

The legislation’s backers also point to the fact that it carves out a “safe
harbor” for colleges that use technology that complies with the federal
standards,
and would deem those institutions to be in compliance with federal
anti-discrimination laws.

“The TEACH Act won’t expand or contract anybody’s legal liability,” said Dan
Goldstein, a lawyer who specializes in disability rights law. “All it would
do is to introduce some predictability for small schools and colleges and
for vendors or educational technologies and publishers.”

Goldstein, who also represents the National Federation of the Blind, said
the standards would also help address the diffuse way that technology is
used
in large institutions of higher education, where everyone who is involved in
selecting technology — a French instructor considering using Rosetta Stone
software, for instance — cannot be a compliance officer.

“Consistently when this is the topic of discussion, I hear a plea from
college and universities: ‘Please give us some goal lines; this would be
easier
if we had some standards,’ ” he said. “That’s what we’ve been responding to
with the TEACH Act.”

“This isn’t new regulation that schools would have to deal with; it’s
technical guidelines that would help schools meet their current guidelines
and stimulate
the market,” Shachmut said.

Opposition from One Dupont

But the groups that lobby on behalf of colleges and universities don’t see
it that way. They say that while they share the same goals as the bill’s
supporters,
the legislation is misguided and would impose a burden on them.

“Colleges and universities have a clear responsibility to ensure that
disabled students have access to high-quality educational content and
services,”
said Terry Hartle, senior vice president for government relations and public
affairs at the American Council on Education, which is joined by about 20
other organizations in its concerns about the legislation. “But we disagree
about this bill and the impact it will have.”

The American Council on Education provided an
analysis
it commissioned from a D.C. law firm that says the TEACH Act would upend
many of the established concepts in the Americans with Disabilities Act.

“This is a vast expansion, and it’s being put forward as just some
guidelines that will help colleges and universities comply with the law,” he
said. “They
will pose a substantial problem.”

Colleges and universities are required by various parts of the Americans
with Disabilities Act to provide reasonable accommodations to students on an
individual
basis, as students request them. But, like other entities subject to the
law, they also have an obligation to proactively offer accessible public
accommodations,
like elevators or ramps in buildings.

The technical standards that a federal board would be required to set by the
TEACH Act would help colleges and universities adopt the digital equivalent
of elevators and ramps into the technology they use on campus, according to
Scott Lissner, who is the ADA compliance officer at Ohio State University.

“These are more like building standards than like the traditional
accommodation approach,” said Lissner, who until recently also served as the
president
of the Association on Higher Education and Disability. “Having a clear
identified set of standards focused on this area actually reduces risk and
cost
in the long run.”

Hartle said that he didn’t believe many colleges and universities feel they
need substantially more guidelines on accessibility than they currently
have.

“The ADA has been the law of the land for some time now, and there is a
fairly substantial body of case law built up around it,” he said. “Obviously
institutions
don’t always get it right, but every institution has made investments in
their physical campus as well as put in place a process to make
accommodations
for individual students who request them.”

Tracy Mitrano, director of Cornell University’s Institute for Internet,
Culture, Policy and Law, said that while the TEACH Act might not be the
proper
vehicle, it would be a positive development for higher education, vendors,
technologists and others to converge on universal standards for digital
accessibility.

Mitrano, who is also an Inside Higher Ed blogger, said she shared the
concerns of higher education associations that the Higher Education Act had
become
“flypaper for every possible concern people have in the world,” citing as
another example the peer-to-peer file sharing provisions that content
producers
were able to insert into the law in 2008.

The TEACH Act was, in part, inspired by a recommendation made by a
commission established by the 2008 reauthorization of the Higher Education
Act. That
panel, the Advisory Commission on Accessible Instructional Materials in
Postsecondary Education, in 2011
said
that the federal government ought to create uniform accessibility
guidelines, citing “general confusion” about how disability law applied to
digital instructional
materials in higher education.

“I agree that higher education doesn’t want to be told what to do,” she
said. “But if this is the vehicle that is going to be used for setting
standards,
then higher education should take a leadership position in developing them.”

The debate over the federal role for accessibility standards on campus,
though, is unlikely to be hashed out in the halls of Congress any time soon.

While the TEACH Act was first introduced as independent legislation earlier
this year, it was largely incorporated into Harkin’s draft plan, released in
August, to rewrite the Higher Education Act. Both chambers of Congress have
made only incremental progress toward reauthorizing that sweeping law. And
after considering stopgap funding measures to keep the government running
and pressing foreign policy issues, lawmakers will depart Washington as soon
as next week to hit the campaign trail.

At a Senate education committee hearing on Wednesday, Harkin vaguely alluded
to moving ahead with the Higher Education Act in November and December, when
Congress convenes for a lame duck session after the midterm elections. But
it’s highly unlikely Congress will pass the legislation then, so the fight
over
digital accessibility for those with disabilities — like many other higher
education issues — is likely to flare up in other venues in the meantime.

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