1. The ADA’s Hidden Barrier Removal Mandate: Access to Information Jeanne M. Kincaid Drummond Woodsum 100 International Drive, Suite 340 Portsmouth, NH 03801 603/433-3317 Jkincaid@dwmlaw.com

2. Three Statutes To Consider Rehabilitation Act (colleges/universities that receive federal financial assistance) ADA – Title II (public colleges/universities) ADA – Title III (private colleges/universities) ▫U.S. Department of Education (OCR) has jurisdiction under the Rehabilitation Act and Title II of the ADA ▫U.S. Department of Justice (DOJ) has enforcement powers under both statutes and Title III original jurisdiction 2 Drummond Woodsum 2011

3. Rehabilitation Act Regulations Adopted in 1977, do not address internet or technology access per se In the past, personal assistance to enable access was acceptable: ▫Examples:  OCR permitted a public university to provide personal assistance to access the internet as independent use was not feasible  San Jose State University (OCR 1996) ▫In a private institution, provision of a reader to a student accessing a library computer was sufficient  No specific equipment or devices required  Notre Dame College (OCR 2000) 3 Drummond Woodsum 2011

4. ADA Guidance Initially, DOJ took the position that the ADA did not necessarily require independent access to the web if a covered entity provided alternative methods of communication  Letter to Harkin (DOJ 1996) Drummond Woodsum 2011 4

5. Those Days Appear to be Gone... Drummond Woodsum 2011 5

6. E-Reader Litigation Drummond Woodsum 2011 6

7. E-Reader Litigation Amazon.com entered into agreements with certain postsecondary institutions to participate in pilot program to test student interest in buying and using the Kindle E-reader in the classroom with books downloaded onto the Kindle DX Drummond Woodsum 2011 7

8. E-Reader Legal Challenges National Federation of the Blind (NFB) and American Council of the Blind (ACB) filed complaints with OCR under the Rehabilitation Act and the ADA against nine (9) state and private colleges/universities NFB and ACB filed litigation against Arizona State University Drummond Woodsum 2011 8

9. Most Campuses Agreed Not to use E-reading devices as an instructional tool ▫Not “require, purchase or incorporate in its curriculum” unless “fully accessible to individuals with visual impairments” or, alternatively Provide an e-reader that allows students to “access and acquire the same information, engage in the same interactions, and enjoy the same services... with substantially equivalent ease of use”  Princeton University Settlement Agreement (DOJ 2010) ▫http://www.ada.gov/princeton.htmhttp://www.ada.gov/princeton.htm Drummond Woodsum 2011 9

10. Arizona State University Litigation Basic premise: that accommodations provided by the university’s disability services office were not as effective, accurate or timely Settlement agreement with DOJ following litigation was less onerous than the other agreements ▫Only if commercially available, at a reasonable cost and meets course requirements  http://www.ada.gov/arizona_state_university.htm http://www.ada.gov/arizona_state_university.htm Drummond Woodsum 2011 10

11. Permissible? Some faculty are developing instructional programs requiring students to use the iPad Drummond Woodsum 2011 11

12. The Good News Is Some are hailing the iPad as being the most accessible mobile device on the market ▫http://www.tuaw.com/2010/06/01/the-ipad- could-be-the-best-mobile-accessibility-device-on- the-ma/http://www.tuaw.com/2010/06/01/the-ipad- could-be-the-best-mobile-accessibility-device-on- the-ma/ But are your professors considering the accessibility of the devices at the instructional design phase? Drummond Woodsum 2011 12

13. Query How can an instructor assign textbooks period under this interpretation of the ADA/Rehabilitation Act? Drummond Woodsum 2011 13

14. Law School Admissions Council NFB has pending litigation against LSAC and four (4) law schools in California state court and pending DOJ complaints under the ADA against nine (9) law schools alleging: ▫The application process is not fully accessible to individuals with visual impairments Drummond Woodsum 2011 14

15. Law School Admissions Council Uses a centralized internet-based application process with inaccessible features ▫Examples:  Sample tests and practice materials  Each law school has its own application process Drummond Woodsum 2011 15

16. The Connection NFB alleges that the law schools are discriminating due to LSAC’s discriminatory practices Drummond Woodsum 2011 16

17. DOJ Settlement Agreements In September 2010, McNeese State University agreed, under Title II of the ADA, to make all its new and modified web pages accessible within three months To undertake to make accessible all of its existing web pages  http://www.ada.gov/mcneese.htm http://www.ada.gov/mcneese.htm  The agreement is misleading as it is not clear if DOJ intended such a broad sweep or to limit the requirement to emergency planning Drummond Woodsum 2011 17

18. Penn State University On November 12, 2010, NFB filed an OCR complaint alleging violations of the Rehabilitation Act and Title II of the ADA on behalf of students/faculty with limited vision or who are print disabled Drummond Woodsum 2011 18

19. Penn State University Examples of alleged inaccessible web design features: ▫University web pages  Including the Office of Disability Services  On line library catalog  Lack of department guidelines to instruct faculty on how to make web pages accessible  Course descriptions  Elion – website used to register for courses, access transcripts, etc. ▫ANGEL course management software (allowing interfacing between and among students/instructors) Drummond Woodsum 2011 19

20. Penn State University Other alleged inaccessible features: ▫Touch screen at library’s self check out ▫Clickers used in the classroom to take attendance and to engage students ▫ATMS and bank website Drummond Woodsum 2011 20

21. Penn State University Instructors with visual impairments encounter same barriers plus ▫“Smart” podium difficulties including inaccessible touch screen Drummond Woodsum 2011 21

22. The Latest NFB Filing NFB ha filed a complaint with the DOJ against the NYU, and Northwestern University for using Google Apps Education which the NFB alleges “contains significant accessibility barriers” for blind individuals who use screen reading technology that convert text into speech or Braille ▫Again, NFB is focusing on both employees and students Drummond Woodsum 2011 22

23. And Get Ready NFB filed suit against an airline terminal alleging use of inaccessible kiosks ▫Many campuses use kiosks Drummond Woodsum 2011 23

24. The Newly Revised ADA Regulations Add a provision that requires “independence” in use of auxiliary aids and services ▫28 C.F.R. § 35.160(b) Drummond Woodsum 2011 24

25. What’s Coming? On July 26, 2010, DOJ issued notice of intent to publish proposed regulations governing web access under Titles II and III of the ADA ▫http://www.ada.gov/anprm2010/web%20anprm _2010.htmhttp://www.ada.gov/anprm2010/web%20anprm _2010.htm DOJ also issued notice of its intent to publish proposed regulations governing movie captioning and video description ▫http://www.ada.gov/anprm2010/movie_captions _anprm_2010.htmhttp://www.ada.gov/anprm2010/movie_captions _anprm_2010.htm Drummond Woodsum 2011 25

26. The Upshot The use of personal assistance as a means of providing access to information is under serious challenge It appears that the notion of “equivalent” access is undergoing serious reconsideration ▫E.g., “similar ease of use” Drummond Woodsum 2011 26

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