In a joint “Dear Colleague” letter (DCL) released May 19, 2023, the U.S. Department of Education’s Office of Civil Rights teamed up with the U.S. Department of Justice’s Civil Rights Division to make the public aware of both Departments’ efforts to address barriers that prevent people with disabilities from participating in online services, programs, and activities sponsored by colleges, universities, and other postsecondary institutions (“educational institutions”). The letter also summarizes the Departments’ enforcement activities, guidance they have posted, and it discusses upcoming proposed regulations for Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
Educational institutions are increasingly relying on their websites and third-party online platforms to provide services, programs, and activities to students and members of the public. The DCL informs educational institutions that both Departments consider the online content housed on these platforms to be a service, program, or activity of the institution that must be accessible to students, and in some cases the public.
Titles II and III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act require educational institutions to provide equal opportunities to people with disabilities in all their operations, including equal opportunities to participate in and benefit from online services, programs, and activities.
As the DCL notes, public and private educational institutions must take appropriate steps to ensure that communications with individuals with disabilities are just as effective as communications with others, including providing appropriate auxiliary aids and services. Public and private colleges, universities, and other postsecondary institutions must also make reasonable modifications in policies, practices, and procedures where necessary to avoid discriminating based on disability, and where necessary to afford access to their goods and services to individuals with disabilities.
Enforcement Actions
In the past, federal executive agencies have used “Dear Colleague” letters to publicly state how they will interpret and enforce the federal laws over which they have jurisdiction. Although the policy interpretations expressed are not legally binding, they do describe how agencies will handle administrative complaints before them, and courts often view them as persuasive. The DCL describes the following enforcement actions that have recently taken place:
- The Departments of Justice and Education have used their enforcement authority to enter a consent decree between the Justice Department and a public university to make public online content on its websites and other online platforms accessible to people with disabilities.
- The Department of Education’s Office of Civil Rights (OCR) has used its enforcement authority to proactively launch 100 compliance reviews regarding digital accessibility. The reviews sought to review the digital accessibility of public- and student-facing websites and educational platforms maintained by public and private educational institutions. In less than a year, the OCR has resolved more than 50 of these compliance reviews.
- The OCR has also used its enforcement authority to address the inaccessibility issue by investigating complaints and entering into resolution agreements. These agreements also provide clear steps to remedy digital barriers to access to ensure recipients have policies and trainings in place to ensure compliance with Title II and Section 504 moving forward. The OCR has resolved and monitored more than 1,000 cases in recent years.
Resources and Regulations
In the May 19 DCL, the Departments of Education and Justice also provided general, non-regulatory guidance and resources regarding website accessibility. The following resources offer some basic technical assistance for educational institutions on website accessibility for individuals with disabilities:
- The Justice Department issued guidance in March 2022 involving website accessibility for individuals with disabilities. The guidance describes ways government agencies and businesses can make their websites accessible.
- The OCR released a 20-part video series in March 2022 covering topics such as how people with disabilities use technology, applicable federal laws, and how to identify and remediate different types of technological barriers that can interfere with the ability of parents and students with disabilities to participate in modern American education.
In addition, the DCL discussed two new federal rule-making initiatives:
- The DOJ discussed an anticipated Justice Department Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities; and
- The Department of Education announced its intent to strengthen and protect rights for students with disabilities by amending Section 504 regulations.
What Can Educational Institutions Do?
Educational institutions will want to familiarize themselves with the guidance discussed in the DCL and work to ensure that the teams that develop and manage their online offerings are familiar with digital accessibility to ensure access for everyone.
WRITTEN BY: Littler