By Ann Pearce, Student Access Center, Kansas State University 

The University of Minnesota Duluth maintains a list of higher education lawsuits, complaints, and settlements regarding inaccessible technologies.  Lawsuits have been filed due to students with disabilities' inability to access learning management systems, online homework assignments, library databases, live chat features, and more.   

Reading the various lawsuits and complaints filed against higher education institutions provides a perspective of the struggles students with disabilities face to achieve a college degree. Some students named in the various lawsuits stated that they were so far behind in their coursework due to inaccessible technologies; they were compelled to drop out of school. The list is not exhaustive, but does illustrate that higher education has been found wanting in the area of digital access. Individuals, along with advocacy groups, have turned to litigation to address their complaints.

 

Figure 1:  National Federation of the Blind's White Cane Program 

One advocacy group at the forefront of this litigation is the National Federation of the Blind or NFB.  Of the thirty lawsuits listed, the NFB is named in fourteen and has devoted a significant amount of its resources to garner the attention of higher education.  According to the group’s website, it is the largest organization of the blind in America with over 50,000 members.  The mission of the advocacy group is to “raise the expectations of blind people, because low expectations create obstacles between blind people and our dreams. You can live the life you want; blindness is not what holds you back.”  In light of the numerous lawsuits mentioned above, one obstacle from the point of view of the NFB is postsecondary institutions.

In January 2010, Arizona State University entered into an agreement with the United States of America (the Government); the National Federation of the Blind, Inc. and the American Council of the Blind over the use of the Kindle DX e-book reader. At the time, the Kindle DX was equipped with text-to-speech capability but was still inaccessible to the blind due to the inability to configure settings, select books, or even turn on the text-to-speech feature. The use of the Kindle DX in the classroom was terminated, as per the agreement, at the end of spring semester 2010.

On the heels of this victory, the National Federation of the Blind was instrumental in the joint “Dear Colleague” letter sent in June 2010 by the U. S. Department of Justice Civil Rights Division and the U. S. Department of Education Office for Civil Rights to college and university presidents. The letter specifically listed e-book readers, but expanded the language to include all emerging technology utilized in classroom settings. The letter reminded presidents that both agencies have a responsibility to protect the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973 and Title II and III of the Americans with Disabilities Act of 1990. 

The letter goes on to request, “that you take steps to ensure that your college or university refrains from requiring the use of any electronic book reader, or other similar technology, in a teaching or classroom environment as long as the device remains inaccessible to individuals who are blind or have low vision.   It is unacceptable for universities to use emerging technology without insisting that this technology be accessible to all students.”  The joint “Dear Colleague” letter was followed by “Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter” by the Office of Civil Rights clarifying further the position of the letter.

The legislative arena is another avenue the NFB utilizes to further their cause for equal access to the blind in higher education.  H.R. 3505/S. 2060 or the Technology, Education, and Accessibility in College and Higher Education Act (TEACH Act) is the result of collaboration between the NFB and the Association of American Publishers.  The TEACH Act is intended to ensure that students with disabilities have equal access to instructional technologies in higher education and stems from one of the recommendations made by the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities which issued its final report in 2011.  The TEACH Act directs the Architectural and Transportation Barriers Compliance Board to develop accessibility guidelines for electronic instructional materials and related information technologies.  In February of 2014, Senators Elizabeth Warren (D-MA) and Orrin Hatch (R-UT) introduced the bill in the Senate while Tom Petri (R-WI) introduced a companion bill in the U. S. House of Representatives in November of 2013.  The NFB released a YouTube video in 2014 entitled, “A Lesson on the TEACH Act” to publicize the importance of the passage of the bill.

Though the bill has bipartisan support and several endorsements, the American Council on Education (ACE) leveled criticism in its analysis of the 2014 TEACH Act.  The American Council on Education according to the analysis, supports the basic premise of ensuring students with disabilities necessary access to the electronic instructional materials and related technologies used by postsecondary institutions.  However, ACE lists several concerns including that, “the legal standard set forth in the TEACH Act is not consistent with the standard currently provided under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act.”  The current law uses terms such as “reasonable accommodation,” and “comparable” access while the TEACH Act uses terms such as “equally effective,” and “substantially equivalent ease of use.”  The shift, according to ACE, will in essence require postsecondary institutions to meet a legal standard that other entities do not. 

In this year’s annual address, NFB President Mark Riccobono acknowledged the NFB’s frustration with higher education lobbyists which includes the American Council on Education when he said, “We have often been frustrated by their misunderstanding, and they have often been upset that we continue to sue their constituent schools.  They have told us they know how to run their institutions, and we have told them that we know how to run our lives.”  The NFB is counting on Congress to pass the TEACH Act bringing the promise of equal opportunity closer to reality.  Failing that, NFB President Riccobono is quick to add, “We will continue to take our cases to the courts, we will continue to march on their campuses, and we will continue to use all of the tools in our toolbox to defend the rights of blind students.”

References 

(in the general order of appearance):

The University of Minnesota Duluth: http://www.d.umn.edu/~lcarlson/atteam/lawsuits.html

National Federation of the Blind: https://nfb.org/

Arizona State University settlement agreement:  http://www.ada.gov/arizona_state_university.htm

Joint "Dear Colleague" Letter of 2010:  http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html

TEACH Act:  https://www.congress.gov/bill/113th-congress/senate-bill/2060

A “Lesson on the TEACH Act”:  https://www.youtube.com/watch?v=mU4MBIluhD0

American Council on Education:  http://www.acenet.edu/Pages/default.aspx

 

     

 About the Author

Ann Pearce works as Access Advisor at the Student Access Center at Kansas State University. She may be reached at dapearce@k-state.edu.