Policy Matters: Primers and Insights

Digital Accessibility Requirements for Online Learning

How Disability Anti-Discrimination Laws Impact Online Courses and Programs

Overview

Across UPCEA’s membership and higher education more broadly, every individual plays an important role in fostering inclusive environments. As we increasingly rely on digital technologies to enhance learning and streamline operations, it becomes imperative to ensure that our websites, software, and course content are accessible to all, regardless of ability. Ensuring content is accessible can have a significant impact. Using 2019-20 data, the National Center for Education Statistics found that more than 20% of undergraduate students report having at least one disability to their institutions along with more than 10% of graduate students. 

This resource details digital accessibility requirements primarily from a legal perspective. However, it is ultimately intended to serve as a more foundational resource to help those working in a wide range of roles to both support risk mitigation efforts and implement appropriate measures to create a more inclusive online learning landscape.

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Government Affairs Updates

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.    

Accessibility Expectations and Enforcement

Federal agency definitions for what would be considered “accessible” for ADA purposes have existed in the context of higher education enforcement actions for more than a decade. However, these definitions have been somewhat subject to interpretation, with accessibility being achieved, in principle, when “a person with a disability is afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as a person without a disability in an equally effective and equally integrated manner, with substantially equivalent ease of use.” (OCR Compliance Review, University of Cincinnati, 2014, p. 2). Conformance with specific technical standards would have been considered neither strictly necessary (absent a court order) nor sufficient. 

However, the degree to which WCAG conformance, in particular, could be demonstrated had nevertheless been influential as part of lawsuits and investigations alleging discrimination under the ADA.  At times, institutions of higher education have asserted that accessibility lawsuits and enforcement efforts combined with the lack of a clear standard for accessibility and ongoing rulemaking efforts created due process violations, but any such disputes had settled out of court without a final decision being reached on the merits of these claims. (See, e.g., NAD v. Harvard and NAD v. MIT). 

For Title III entities, confusion over specific compliance obligations with regard to digital accessibility may continue. However, with specific accessibility standards, WCAG 2.1, AA, now codified in ADA implementing regulations under Title II, public institutions will have a harder time arguing that expectations for accessibility are unclear. Even during this interim period as institutions work towards compliance by the end of April 2026 or 2027, and even for private institutions of higher education that are not explicitly subject to WCAG conformance, these same guidelines can be useful to employ as part of compliance efforts and to better serve learners. 

WCAG is a technical standard that provides a roadmap for digital accessibility built around four principles: perceivable, operable, understandable, and robust. While WCAG 2.2 has already been published and WCAG 3.o is in development, the DOJ’s 2024 accessibility rule establishes the minimum standards for Title II accessibility at WCAG 2.1, Levels A and AA and does so without provisions for the current rule to automatically update as new versions are released. The impact will be significant for institutions that have not already sought to be in conformance with these standards. In what should be considered a non-exhaustive list of examples, this standard, through its incorporation into Title II regulations:

  • Requires text versions for any non-text media (e.g., captioning for both live and recorded media, alternative text for images) and/or audio descriptions for certain pre-recorded media;
  • Sets color contrast standards for text and non-text media;
  • Provides functional standards for keyboard and mouse navigation;
  • Establishes formatting guidelines for the logical organization of headings, tables, webpages, etc.; and 
  • Details expectations around the functionality of assistive technologies.   

The DOJ has provided for several limited exceptions in its final accessibility rule. These include:

  • Archived web content (created before compliance date, must be organized, stored, and labeled as being archived, and cannot be updated);
  • Pre-existing conventional electronic documents (e.g., word processing documents, PDFs, and spreadsheets), unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities;
  • Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements (e.g., course materials obtained through contractual relationships are not exempt from WCAG conformance); 
  • Conventional electronic documents about a specific individual, their property, or their account and that are password-protected or otherwise secured; and
  • Pre-existing social media posts (created before compliance date).


In limited cases, it may also be possible to create alternate versions of content that conform to WCAG 2.1, AA but only where it is “not possible to make web content directly accessible due to technical or legal limitations.” One area where this may be necessary is in the context of copyright protected third-party content, for example. Just as with the use of alternate versions, each of the listed exceptions above is accompanied by noted limitations addressed in the preamble to the DOJ’s final rule. All applicable limitations should be carefully reviewed prior to relying on an exception. 

Finally, in addition to exceptions unique to these implementing regulations, affirmative defenses under the ADA itself would continue to apply. Namely, the ADA does not require modifications be made where such modifications would result in undue hardship (i.e., undue financial or administrative burden) or would fundamentally alter the nature of the service, program, or activity. Note, however, that these defenses have historically been difficult for institutions of higher education to successfully assert where educational offerings are concerned and have associated procedural requirements, such as outlining specific reasons for noncompliance in writing. These defenses should not be relied upon without first seeking guidance from legal counsel. Moreover, the institution would still need to take alternative steps to ensure impacted individuals can still participate and receive the same educational benefits to the maximum extent possible. 

Compliance Tips

1. Convene Experts and Stakeholders. A critical first step for creating policies, resources, and procedures devoted to improving digital accessibility will be convening appropriate subject matter experts and stakeholders from across the institution. The Title II accessibility rule along with broader compliance and ethical obligations impact a wide range of systems and activities and a wide range of campus units, as a result. For institutions that lack an accessibility coordinator or devoted accessibility team, which may have already formed a network of experts and key stakeholders, forming an accessibility task force with compliance specialists and representatives from technology services, procurement, legal, online learning, library, student services (including disability services and resource units), marketing, and academic units could be formed to address many of the same critical issues and prioritize areas of greatest need. Ensuring representation from students and other end-users with disabilities will also be critical to the success of these efforts.

2. Establish Clear Policies and Procedures. While many institutions may have existing digital accessibility policies, these policies may need to be updated to ensure WCAG 2.1 (or higher), Level AA is set as the minimum technical standard for accessibility. The scope of the policy may also need to be updated (e.g., online course content should be mentioned explicitly in policies that refer only to “websites”). Resources devoted to supporting successful implementation in consideration of a wide range of digital environments and tools (e.g., online courses, websites, training for staff, social media, and technology procurement) should be listed or linked in any updated policies to ensure these are easily discoverable.   

3. Ensure Accessibility Barriers Can Be Identified, Reported, and Remediated. While compliance reviews can be initiated without a complaint, providing a mechanism for individuals to report accessibility barriers can be a particularly effective strategy for minimizing the chances of accessibility complaints being filed in addition to ensuring students and learners are not falling behind in their studies due to such barriers. The University of California, Berkeley, for example, has created a web accessibility page detailing accessibility policies and barrier reporting procedures, which is linked in website footers. This page may have been created to satisfy conditions of a consent decree entered into with the DOJ in 2022, but many institutions have adopted a similar approach absent any explicit legal obligation to do so. Institutions may wish to also consider including accessibility statements on their homepages to further signal the importance of accessibility. George Washington University has taken this approach, for example, stating on its homepage that it is “committed to making all web properties and web content accessible and usable for everyone, including people with disabilities, by employing principles of universal design and striving to conform to the Web Content Accessibility Guidelines” before providing a link to an accessibility feedback form. 

4. Teach and Design with Accessibility in Mind. Instructors and instructional designers will not necessarily have a foundation in the various web design and programming concepts used throughout WCAG resources, and may therefore find them difficult to navigate. Ideally, these standards would be translated for different audiences, with clear and practical examples provided for the instructional contexts, such as for the use of LMSs, content creation software, and learning tools. For example, the University of Michigan’s Center for Academic Innovation uses this online learning accessibility checklist, which promotes best practices that are mapped to specific WCAG standards. Approaching accessibility efforts through an appeal to pedagogical frameworks and best practices can be helpful as well, such as by encouraging the use of Universal Design for Learning principles. Ensuring faculty and staff have general familiarity with accessibility best practices and designing online courses to be generally accessible from the start can save significant time, cost, and effort that would instead need to be devoted to remediation work after content has already been created. When filming lecture videos, for example, asking instructors to narrate certain actions critical to the learning objectives could potentially eliminate the need to add audio descriptions post-production, which vendors can charge upwards of $10 per minute of video to provide. 

5. Evaluate Third Party Content, Tools, and Services for Accessibility. At many institutions, third party tools and services will not always be procured through a central office as certain cost thresholds or other conditions may not be met, particularly with regard to free or low-cost tools used in courses open to the public and without FERPA implications. Even with regard to more central processes when such conditions are met, any accessibility testing or requests for information regarding the software accessibility (e.g., Voluntary Product Accessibility Template or “VPAT” requests), can be limited to tool reviews and may not extend to requests to procure services, such as instructional design services where course content would still be produced. Updates to procedures at both the institution- and unit-levels may be appropriate, such as by including accessibility criteria in requests for proposals and contracts with a wider range of third-party vendors. For situations in which no formal review process is applicable, faculty and staff may then need training and support to evaluate the accessibility of tools and third-party content.

Resources

History of Changes/Authorship

This guide was originally authored by Richard LaFosse of the University of Michigan with input by the UPCEA Policy Committee and Staff. It was first published and last updated on August 22, 2024.

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