By Patrick Carrigg
Marcie Lipsitt is not a familiar name to school districts in New Jersey. A special education advocate residing in Michigan, she is hardly the type of person who would be likely to interact with public schools in a state far away.
In fact, New Jersey’s public schools may be completely unaware of Lipsitt’s efforts, which include filing more than 500 federal complaints against schools, school districts and state education departments, advocating for website accessibility for students with disabilities.
But Lipsitt may have already impacted the state.
The U.S. Department of Education (USDOE) Office of Civil Rights has created a searchable online database of resolution agreements bearing the names of an increasing number of school districts, including some in New Jersey, that have agreed to make their websites accessible using Web Content Accessibility Guidelines (WCAG). And while it is difficult or impossible to know whether Lipsitt was the complainant who filed those cases, due to the Office of Civil Rights’ confidentiality policy, all New Jersey schools that use websites must now be accessible to individuals with disabilities, or potentially violate the Americans with Disabilities Act.
Armed with an iPad, and searching online for websites with barriers to access, such as state education department sites and large school districts, Lipsitt has helped bring about change that impacted schools across the country.
ADA Protections and the Web Signed into law in 1990, the Americans with Disabilities Act, or ADA, prohibits discrimination “on the basis of disability in employment, programs and services provided by state and local governments, goods and services provided by private companies, and in commercial facilities.”
The following year, on Aug. 6, 1991, the World Wide Web went live. For the most part, the birth of the web went unnoticed and few, if any, people were thinking about how the web and the ADA would interact.
However, the U.S. Department of Justice (USDOJ) as early as September 1996 made clear that the ADA Titles II and III require state and local governments, and the business sector, to provide effective communication whenever they communicate through the internet. The department’s position is, “covered entities that use the internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.” (See Letter from Deval L. Patrick, assistant attorney general, to Senator Tom Harkin on Sept. 9, 1996.)
The Internet Everywhere Fast forward and the internet not only touches upon, but dominates, virtually every aspect of our daily living. School districts’ adoption of the web has been no less fast-paced, as professional educators find ever more progressive and creative online resources for teaching students. Nevertheless, while the internet has become a virtual necessity for school, work, and life as we know it, school districts, who are most often acutely aware of ADA accommodation in school construction for physical access, have been slow to realize and address the need for web accessibility for users with disabilities, including visual, auditory, cognitive, learning, neurological and physical impairments.
Indeed, school board members and administrators can speak in detail about the costs of ramp access and ADA modifications to school facilities. But rarely, if ever, have school boards or educators seemed to ask if a school district website’s content is accessible with assistive technologies.
Little Guidance from USDOJ Currently there are no rules or regulations from the USDOJ to give guidance to public accommodations or public entities as to what is required for a website to be considered accessible. The Trump Administration’s first Unified Agenda places the USDOJ rule makings under Titles II and III of the ADA, for websites, medical equipment, and furniture of public accommodations and state and local governments, on the 2017 “inactive actions” list, with no further information.
Notwithstanding clear direction for website accessibility from the USDOJ, the growing number of resolution agreements, and the hunger lawyers have for bringing lawsuits under the ADA where the prevailing party is entitled to a reasonable attorney’s fee, school districts would be wise to take a proactive approach toward bringing their school websites into compliance.
Anti-Discrimination Law in New Jersey This is particularly true in New Jersey, a state prides that itself on being on the forefront of anti-discrimination laws. The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et. seq., was enacted in 1945 with the express purpose of ensuring that the civil rights guaranteed by the state constitution are extended to all of its citizens. The statute was amended in 1972 to prohibit discrimination against the physically handicapped (L. 1972, c. 114.) and again in 1978 to include disabilities other than physical ones. (L. 1978, c. 137, § 3.)
It has often been said that the LAD is remedial social legislation, whose overarching goal is to “eradicate the cancer of discrimination.” The law applies to places of public accommodation and most assuredly applies to public schools and public education.
Resolutions in Seven States As of June 2016, the U.S. Department of Education Office of Civil Rights touted 11 resolution agreements for website accessibility in seven states. That number has undoubtedly grown, as New Jersey was not featured on that press release, and now has at least three schools, including West Windsor-Plainsboro Regional School District, Montclair Public Schools, and Hamilton Township Public Schools, that can be added to the list of those resolving to bring their websites into compliance.
In the event your school district is targeted by the Office of Civil Rights, you should follow these steps:
• Notify your board attorney, so that counsel can prepare an appropriate response to the complaint, and document and information request that will accompany it.
• Notify your website administrator of the complaint and the requests.
• Ask for a self-evaluation or contact an auditor to review your websites for compliance.
• Determine the final burden of compliance.
Unless your district has been on the forefront of web accessibility, it is likely that a resolution agreement is in your interest. Unlike the typical settlement, a resolution agreement for web accessibility can be viewed as a positive step toward greater access for students, parents, and all stakeholders with disabilities. Included in such an agreement may be terms including:
• An affirmation of commitment to website accessibility;
• An audit of existing content or an agreement to provide a new website;
• Adoption of policies for website accessibility and for reporting barriers to access;
• A corrective action plan with a workable timeline for compliance;
• A notice to persons with disabilities as to how to request access to information or functionality that is not currently accessible; and
• An agreement to provide training to appropriate personnel.
It is recommended that each district consult its legal counsel, as terms are often negotiable and may or may not apply relative to your district.
A Proactive Course of Action For those wishing to be proactive and address website accessibility prior to receiving a complaint, the question is, what should a school district do to bring its website into compliance? When designing and publishing a website, how does a school district ensure it is accessible to users with disabilities? The best place to start is with a self-assessment.
A school district can perform a self-assessment of its pages using the Web Accessibility Evaluation tool (WAVE)at http://wave.webaim.org/. Anyone can input a district website into the WAVE Tool and it will identify errors, alerts, and structural components of a website that can be referred to your district’s information technology department or third-party provider, to best determine how to make the content compliant. To better understand compliance, board members and school district personnel should consult the Website Content Accessibility Guidelines (WCAG) available at https://www.w3.org/WAI/intro/wcag.
The guidelines endeavor to make web content more accessible to people with disabilities and older individuals through four guidelines. Although not officially adopted under the rule-making powers of the DOJ, the guidelines have been used as a guide for web accessibility in all DOJ resolution agreements to date.
Principles of Web Accessibility The guidelines are broken down into four principles with sub-guidelines under each.
The first principle is that the content must be “perceivable,” meaning it must be presentable to users in ways they can perceive. The idea is that the same web content could be perceived by a person who is color blind, a person who cannot see, and another person who cannot hear. The content intended to be perceived would include not only text-based content, but also media such as photos, video, and sound. Many of the guidelines involve simple solutions, such as transcripts for video and audio and descriptive elements, known as alt-tags, for photographs.
Second, the content should be “operable” such that users can navigate and interact with a web page. Most websites have hyperlinks that we can click with a mouse. What if you could not use a mouse? This principle strives to have developers make websites that disabled users can navigate solely with a keyboard or other assistive technology.
The third principle is that content should be “understandable.” Websites should operate in a way that is predictable, such that users can rely on their intuition when navigating. When reading is required, the guidelines recommend that text not require reading ability more advanced than the lower secondary education level.
Finally, the content must be robust enough that it can be interpreted reliably by a wide variety of users, including various assistive technologies.
Unlike physical access improvements such as the ramp outside the school building, web accessibility is not a one-time fix with some routine annual maintenance. School websites are growing in size, content, features, and interactivity. Visionary educators are finding imaginative ways to deliver quality education through web content to a generation of students that have their first interactions with the internet before they are three years old.
As content grows and develops and changes daily and even hourly, your district’s website accessibility will be pushed to its breaking point. It is recommended that school districts take proactive measures to assess their current websites’ accessibility and determine the effort and cost it would take to achieve compliance. It is likely only a matter of time until Marcie Lipsitt’s iPad, and the U.S. Department of Education’s Office Civil Rights, find your school’s website.