Fight Over Digital Accessibility

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.

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.