In the last 25 years, technology has fundamentally changed higher education. New technologies allow for new kinds of instructional materials and delivery mechanisms — but students with disabilities are often unnecessarily left behind.
This must change. This settlement with Siskiyou Joint Community College District, facilitated by TRE Legal Practice and the Legal Aid Society – Employment Law Center, is a part of the solution:
The settlement alters the District’s policies in regards to making instructional tools and materials accessible to students with disabilities and it obligates the District to pay the student $40,000, plus cover attorney’s fees and costs (as is normal for lawsuits involving civil rights like disability access).
The Challenges and Opportunities of New Technology
Some new technologies, such as online courses from Coursera and edX, bring potentially revolutionary change. Others, like the use of PDFs for extra readings rather than photocopied “course readers,” have more quietly altered how students interact with their course materials.
When Congress passed the Americans with Disabilities Act (ADA) in 1990, they fully expected that these kinds of technological changes would “further enhance options for making meaningful and effective opportunities available to individuals with disabilities.” (See House Report No. 485(III), p. 108 (1990).)
“Top-down” legislation like the ADA, along with existing laws like Section 504 of the Rehabilitation Act of 1973, have provided long-standing mandates that require higher-education institutions receiving federal financial assistance to provide accessible instructional materials for students with disabilities.
Various agencies charged with overseeing the implementation of these laws have long provided guidance to institutions as to how to make their instructional materials accessible. For example, the Departments of Justice and Education provided guidance in 2010 and 2011 on making sure electronic book readers used in education are accessible to blind and low-vision students. This guidance simply clarified a long-standing legal obligation for educational institutions.
- Dear Colleague Letter regarding electronic book readers (June 29, 2010)
- Questions and Answers about the Dear Colleague Letter (June 29, 2010)
- More Frequently Asked Questions about the Dear Colleague Letter (May 26, 2011)
Many states have similar, or even stronger, requirements. California, for example, has regulations that specify, among other things, how California Community Colleges should handle their obligations under both federal and state anti-discrimination laws, including the Americans with Disabilities Act.
Laws & Markets
Although both state and federal agencies have provided a great deal of guidance, additional “top-down” lawmaking that would provide technical guidelines and incentivize their use would be beneficial. Clearer and more uniform standards would help the marketplace better respond, benefitting both buyers and sellers of instructional tools.
Laws like the proposed Accessible Instructional Materials in Higher Education Act (HR 6122) attempt to develop such guidelines and to incentivize their use — thus making compliance with existing legal obligations easier and more likely. With more centralized and standardized guidelines in place, schools can make better purchasing decisions and suppliers can make better development choices.
Many Institutions Are Not Meeting Their Current Obligations
Unfortunately, in many cases, despite existing legal obligations and the availability of accessible solutions, many institutions are implementing new instructional technology in a way that decreases disability access rather than improving it. Disabled students are thus being denied equal access by the very technology that could have enabled their full integration.
For example, some institutions require students to use centralized learning platforms (virtual class rooms) that are simply not functional with the screen-reading technology used by blind students. Other schools are distributing electronic texts that are likewise inaccessible to blind individuals. Both of these problems have clear technological solutions, provided institutions make use of them.
But Why a Private Lawsuit?
State and federal agencies are not the only ones tasked with protecting the civil rights of Americans. Historically, state and federal governments have depended on the American people themselves to protect our own rights. Government simply cannot be everywhere and do everything.
In recognition of the power of American individuals to bring about “bottom-up” change, civil-rights laws like the ADA encourage all individuals who have suffered harms, rich and poor alike, to work with attorneys to bring private lawsuits to enforce the law.
But a lawsuit is always a last resort. Litigation can quickly drain resources that might have been spent on improving access for disabled students. Ideally, compliance is voluntary so that disabled students can obtain their education and fully integrate into employment and life without the social costs of increased litigation. Students can also advocate for themselves before turning to litigation, using resources like those provided by the National Federation of the Blind’s “toolkit” for Self-Advocacy in Higher Education. Despite the alternatives, however, further litigation is expected until compliance with existing legal requirements increases in the higher education sector.