Digital Accessibility Requirements for Online Learning

Prior to receiving legal protections, individuals with a wide range of disabilities were often excluded from higher education. After years of civil activism, Section 504 of the Rehabilitation Act (commonly referred to as “Section 504”) was passed in 1973. While limited to programs receiving federal funding, Section 504 broadly prohibited discrimination on the basis of disability, including in higher education. Section 504 also created a requirement to provide reasonable accommodations in courses and programs.

In 1990, the Americans with Disabilities Act (ADA) was passed and expanded the broad prohibition on discrimination on the basis of disability to state/public entities, including public institutions of higher education (Title II entities) and private places of public accommodation, including both for-profit and non-profit private institutions of higher education (Title III entities), with the exception of religious institutions. Unlike Section 504, a direct connection to federal funding is not required under the ADA. Individual states have similar prohibitions through their anti-discrimination laws, providing for additional rights of action and remedies. 

The ADA was amended in 2008 with the ADA Amendments Act, which, among other additions, updated the definition of disability to clarify that the ADA should be construed in favor of broad coverage. Under each statute, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. These can be temporary or permanent. While examples are provided (e.g., autism, blindness or low vision, deafness or hearing loss, various mobility disabilities), this list is illustrative, not exhaustive.  In addition to providing reasonable accommodations to individuals with disabilities (i.e., reactive measures), enforcement activities and implementing regulations in the time since have often cited the need to conform with specific accessibility guidelines (i.e., proactive measures) where digital content, such as content provided on websites or in online course materials, is  involved.

An early source for federal accessibility requirements stems from Section 508 of the Rehabilitation Act (commonly referred to as “Section 508”), which was expanded in 1998 to apply to the federal government’s electronic and information technologies and is used to assess the accessibility of government websites and in software procurement processes. Section 508 regulations are updated by the U.S. Access Board, with amendments generally incorporating the World Wide Web Consortium's (W3C) Web Content Accessibility Guidelines (WCAG). While Section 508 does not, itself, automatically extend to institutions of higher education, many states have “little 508” laws that can extend these same or similar requirements to certain activities, such as software procurement, to public institutions receiving state funding.  

On April 24, 2024, the U.S. Department of Justice (DOJ) incorporated the WCAG 2.1, Level AA into Title II implementing regulations (added as a new subpart H to 28 CFR 35), through its “Accessibility of Web Information and Services of State and Local Government Entities” rule.  However, public institutions of higher education and other Title II entities were given either two or three years to come into compliance, as determined by the total census population in the jurisdiction the institution “is an instrumentality of.” This calculation is not based on the “population” of the institution, but rather the total population of the state, county, city, etc. The DOJ offers the following example to clarify:

[A] public State university located in a town of 20,000 within a State with a population of 5 million would be considered a large public entity [i.e., subject to the two-year compliance deadline] for the purposes of this part because it is an instrumentality of the State. However, a county community college in the same State where the county has a population of 35,000 would be considered a small public entity [i.e., subject to the three-year deadline] for the purposes of this part, because the community college is an instrumentality of the county.

For associated populations of 50,000 or more, which is likely to be the case for the vast majority of public institutions, the compliance date is April 24, 2026. For populations under 50,000, the compliance date has been set to April 26, 2027.

Despite the application of these rules to Title II entities, private institutions that would instead be considered Title III entities will also want to pay attention to accessibility standards under WCAG 2.1, AA. Future harmonization efforts may very well result in the expansion of these requirements to Title III institutions. Even religious institutions that are exempt from the ADA could be subject to similar requirements through possible future regulatory updates to Section 504 if they accept federal funding. Moreover, both the U.S. Department of Education (ED) and the DOJ have commonly required conformance with WCAG through resolution agreements and consent decrees, signaling an expectation that conformance can be critical to demonstrating accessibility under the ADA. A joint Dear Colleague Letter shared by these agencies in May 2023 provided a clear warning for institutions of higher education, regardless of category, to ensure their online learning experiences are accessible, even absent the existence of a minimum standard for accessibility at the time: 

Online accessibility for people with disabilities cannot be an afterthought. The Justice Department and Department of Education will use the ADA and Section 504 as tools to ensure that members of the disability community are able to fully participate in every education program. 

Congress has also been active in introducing legislation that would more explicitly connect digital accessibility to the ADA, which still does not directly address, by statute, how services offered online can be delivered or accessed in a nondiscriminatory manner with regard to individuals with disabilities. Recent efforts include: 

• The Online Accessibility Act (last introduced in the House in 2021), which would create a “Title IV” that addresses consumer-facing websites incorporating WCAG; and 
• The Websites and Software Applications Accessibility Act (last introduced as bicameral legislation in 2023), which would affirm the application of the ADA to websites and mobile applications, task the DOJ with rulemaking in these areas, create an accessibility advisory board, and devote resources to support accessibility best practices for a far wider range of impacted entities. 

With agency rulemaking discretion now significantly weakened by the 2024 U.S. Supreme Court decision in Loper Bright v. Raimondo, these congressional efforts to clarify the application of the ADA to digital technologies have become more significant and should be monitored alongside future agency rulemaking efforts.