On April 2, the Department of Justice entered into a settlement
agreement with edX, a major online college course provider, over
alleged violations of the Americans with Disabilities Act (ADA)
related to the accessibility of online courses. EdX operates a
web-based service that allows members of the public to view
hundreds of online courses, including courses at more than 60
universities. Following a compliance review, the Justice
Department determined that edX violated the ADA by not ensuring
that online courses were accessible to people with hearing, vision
and manual dexterity disabilities. EdX denied any ADA
violations and disputed the Justice Department's
findings.
The settlement agreement is notable both for what it signals about
the federal government's enforcement strategy for online
accessibility in higher education and for the practical guidance it
may offer institutions of higher education.
The edX settlement could portend enforcement action against other
providers of online courses, including colleges and
universities. The settlement agreement itself notes that
"many of [edX's Content Providers] are independently
covered by the ADA," and it contains an express determination
by the Justice Department that edX violated Title III of the
ADA.
The settlement agreement seems to anticipate that edX will set
accessibility protocols that will be broadly adopted. It notes
that edX's new measures "will permit Content Providers . .
. the opportunity to contribute Course Content that complies with
the ADA" and that because edX's code is open-source,
"any modifications made under this Agreement will enable other
[Massive Open Online Course] providers to enhance the accessibility
of online offerings." Settlement Agreement ¶ 7. It also
requires edX to develop "Accessibility Best Practices Guidance
for Content Providers," to mandate that course providers
review the guidance, and even to warn that the "use of
authoring tools other than those provided by edX may result in
inaccessible course conduct." Id. ¶
27(a). The edX guidance must be issued in 90 days.
To reduce potential risk under the ADA and Section 504 of the
Rehabilitation Act, online course providers could consider
implementing some of the changes that edX committed to carry out as
part of the settlement agreement or undertook before entering into
it. These changes include:
- Ensuring that rolling transcripts and captioning are available on course videos
- Allowing users to set their own schedule for viewing online courses
- Designating a Web Accessibility Coordinator
- Adopting a Web Accessibility Policy
- Retaining a consultant to evaluate accessibility
- Soliciting feedback from users on course accessibility
- Conducting accessibility training for employees responsible for maintaining online course content
Federal enforcement authorities are increasingly active on the issue of disability accessibility at colleges and universities. Further developments can be expected as more government resources are dedicated to higher education enforcement. In June 2010, the Justice Department Civil Rights Division and the Department of Education Office for Civil Rights (OCR), which share ADA/Section 504 enforcement responsibility over colleges and universities, issued a joint letter identifying a "serious problem" with electronic book readers that do not offer a text-to-speech function for students with impaired vision. And in December 2014, OCR reached resolution agreements with the University of Cincinnati and Youngstown State University that required them to ensure website accessibility for users with visual and hearing disabilities. These actions followed a March 2013 resolution agreement with the South Carolina Technical College System on the same issue.
The edX settlement agreement is available here. The lawyers in WilmerHale's Education Practice Group are available to discuss the implications of the edX settlement agreement and to help clients develop strategies for avoiding similar scrutiny by the Justice Department and/or OCR.
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