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City of San Jose, CA USA
There are significant law and policy issues impacting the community of people with disabilities in their ability to overcome digital barriers and participate in the digital economy. The growth and success of the emerging digital economy requires that attention be paid to the mechanism for enabling dynamic participation. Unless the civil rights of America's 54 million people with disabilities are addressed during this period of rapid, technological development, the community will be locked out from participation on the basis of disability and the technological world will not be enriched by their diverse contributions.
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This paper identifies some of the emerging barriers to Web usage, current efforts to address these barriers, and legal issues related to information access.
The evolution of our disability rights laws has resulted in the understanding that access to information and communication is a civil right for people with disabilities. Some of the current federal statutes and their implementing regulations that protect this civil rights include: Sections 504 and 508 of the Rehabilitation Act of 1973, Rehabilitation Act Amendments of 1986, Technology-Related Assistance for Individuals with Disabilities Act of 1988, Americans with Disabilities Act of 1990, the Education of the Handicapped Act Amendments of 1990, the Education for All Handicapped Children Act of 1975 (EAHCA), the Handicapped Infants and Toddlers Act, the Telecommunications Act of 1996, Section 121 of the U.S. Copyright Law, and the Individuals with Disabilities Education Act.
Although each of these statutes, their amendments and regulations deserve an extended discussion as to the civil right protections impacting electronic and information technology, this paper is limited to highlighting some of the significant legal issues that can inform our policy impacting people with disabilities.
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ADA Legal Challenges
First, as of this writing there have been no legal challenges under the Americans with Disabilities Act of 1990 (ADA) on the issue of inaccessible web pages and the Internet environment. Nevertheless, attention is being paid to the application of the ADA to inaccessible web design because of the scope and impact of this statute protecting people with disabilities from discrimination in their access to employment and commerce. As discussed below, the ADA requirements for "effective communication" and the provision of "auxiliary aids and services" and "reasonable accommodations" apply to the computer and Internet environment. Because of the ongoing duty to remove barriers, it is not enough to respond on an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy involving input from the community of people with disabilities. New technology must either improve accessibility or ensure compatibility with existing access design functions. In addition, the ADA also provides for a "new generation of civil rights laws in which Congress assigned Federal agencies not only the duty to enforce, but also to inform all parties (persons with disabilities and covered entities) of their responsibilities and rights under the law." Nevertheless, the U.S. Department of Justice (USDOJ) has issued only one policy ruling letter concerning web site accessibility dated September 9, 1996 (hereinafter USDOJ Letter). In fact, the USDOJ has been faulted for failing to provide proactive guidance on web site accessibility. But the USDOJ Letter does reiterate the ADA requirement that covered entities must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden.
Under the rationale of "effective communication," the USDOJ Letter states that ADA Titles II and III require state and local governments and the business sector to provide effective communication whenever they communicate through the Internet. The effective communication rule applies to covered entities using the Internet for communication regarding their programs, goods or services since they must be prepared to offer those communications via an accessible medium.
Specifically addressing the needs of people with visual disabilities, the USDOJ Letter points out that providing a text format rather than a graphical format assures accessibility to the Internet for individuals using screenreaders. Without special coding a text browser will only display the word "image" when it reads a graphic image. Moreover, if the graphic is essential to navigating the site (such as a navigational button or arrow) or if it imparts vital information (such as a table or image map) the user can get stuck and not be able to move or understand the information provided.
Legal challenges are anticipated amid the growing avalanche of ADA administrative complaint filings that have yet to reach the courts. In fact, a number of web site complaints have quietly settled with the covered entities promising to retrofit their web sites for accessible design. Examples of the types of ADA complaints anticipated include: employees requiring accessible intranet/internet environment as a reasonable accommodation under ADA Title I; employees and students requiring access to long-distance learning courses; citizens requiring access to internet kiosks for voting or participating in business or governmental transactions; or consumers requiring access to electronic textbooks and the web-based environment.
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Section 508: Electronic and Information Technology
The newly revised Section 508 of the Rehabilitation Act of 1973 now imposes strict accessibility requirements for electronic and information technology developed, maintained, procured, or used by federal agencies. As part of the Section 508 implementation effort, on April 2, 1999 Attorney General Janet Reno directed that all federal agencies conduct self-evaluations of their electronic and information technology and report by June 15, 1999 the extent to which their electronic and information technology is accessible to people with disabilities. This Section 508 compliance package includes a number of accessibility checklists for software, web page, information technology machines, (ITM) and information technology (IT) equipment as well as a Resource Guide.
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U.S. Department of Education, Office for Civil Rights
Lastly, for the last four years there have been significant legal developments coming out of the U.S. Department of Education, Office for Civil Rights, in their OCR Letters of Resolution against higher education institutions in the State of California.
Access to the learning environment is a critical, front-line issue requiring an immediate resolution. For example, library reference services are being transformed by the efficiency of Internet access to information systems and search engines. Professors are teaching long-distance learning courses over the Internet and even if a student is physically in class, homework assignments and resources are being posted on classroom web pages. Yet, even if a library terminal has assistive computer technology installed for students or visitors with disabilities, Internet research is not possible with inaccessible web page design.
The following is a summary of four selected California OCR Letters of
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Resolution impacting Internet accessibility:
1. OCR Letter Docket No. 09-95-2206 (January 25, 1996): Student complaint that a university failed to provide equivalent access to the Internet. Student with a visual disability was required to make appointments with personal reader attendants as the exclusive mechanism for access to the Internet. The University also failed to complete the "Self-Evaluation Plan" as required by ADA Title II. According to the finding:
The issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others. Title II [of the ADA] also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities. OCR notes that the "information superhighway" is fast becoming a fundamental tool in post-secondary research.
2. OCR Letter Docket No. 09-97-2002 (April 7, 1997): Student complaint that
a university failed to provide access to library resources, campus publications, open computer laboratories, training on adaptive computer technology and computer test-taking. According to the finding:Title II of the Americans with Disabilities Act (Title II) requires a public college to take appropriate steps to ensure that communications with persons with disabilities "are as effective as communications with others" [28 C.F.R. § 35.160(a)]. OCR has repeatedly held that the term "communication" in this context means the transfer of information, including (but not limited to) the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet. Title II further states that, in determining what type of auxiliary aid and service is necessary, a public college shall give primary consideration to the requests of the individual with a disability [28 C.F.R. § 35.160(b)(2)].
In further clarifying what is meant by "effective communication," OCR held that the three basic components of effective communication are: "timeliness of delivery, accuracy of the translation, and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability."
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OCR also points out that the courts have held that a public entity violates its obligations under the ADA when it only responds on an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services. See Tyler v. City of Manhattan, 857 F. Supp. 800 (D.Kan. 1994). Moreover, according to OCR "[a] recognized good practice in establishing such a comprehensive policy is to consult with the disability community, especially those members most likely to request accommodations." Of particular interest is the analogy OCR draws between the rationale for bringing an existing building up to code for access and the purchase of new technology for information systems. For example, buildings built prior to access laws are governed by "program access" requirements and remodeling triggers the requirement to install certain accessible architectural features. Similarly, the effective communication requirement according to OCR imposes a duty to solve barriers to information access that the entity's purchasing choices create. Whenever existing technology is "upgraded" by a new technology feature, it is important to ensure that the new technology either improves accessibility or is compatible with existing assistive computer technology. For example, web-authoring software programs that erect barriers in their coding of web pages fall under this scrutiny. Lastly, OCR states that when an entity selects software programs and/or hardware equipment not adaptable for people with disabilities, "the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection." Therefore all technology improvements must take into account the removal of barriers and ensure that new barriers to access do not occur. Covered entities preparing to retrofit their web sites need to be aware of this requirement.
3. OCR Letter Docket No. 09-97-6001 (January 22, 1998): OCR Statewide compliance review under Title II of the ADA and Section 504 of the Rehabilitation Act. The purpose of the review and subsequent OCR Report was to assess how 106 California Community Colleges meet their obligations to students with visual disabilities in providing access to print and electronic information. In OCR's letter dated January 22, 1998, the comprehensive review suggested nine strategies to address: Cost-effective approach to purchasing adaptive technology; Adaptive technology training; Access guidelines for distance learning and campus web pages as well as tools for training faculty and staff; Inclusive language in the distribution of standard technology grants/funds addressing college responsibility to ensure technology access and compatible upgrades; Print materials translated into alternate formats such as electronic text and Braille; Central registry of textbooks in alternative format; Library technology initiatives for access to both students and patrons with disabilities; Follow-up to OCR survey initiated in 9/18/96 to determine compliance progress; and Annual reviews of Disabled Student Programs and Services to include attention to the removal of barriers in electronic technology.
The Community College Chancellor has agreed to implement OCR's recommendations to help the colleges meet their obligations under the ADA and Section 504 of the Rehabilitation Act. Whereas the assistive computer technology training, support and services for students with disabilities was once limited to staff exclusively working with the Office of Disabled Student Programs, a systemic plan is now required for mainstreaming this knowledge campus-wide. Just as the removal of architectural barriers requires a plan for implementation, the removal of technological or digital barriers in programs and services requires a comprehensive institutional plan impacting every campus office.
4. OCR Letter Docket No. 09-99-2041 (April 20, 1999): Student complaint that the university failed to provide access to the College of Business curriculum and other educational programs, including computer laboratories and classes in the College of Business. OCR noted that although the academic community has heavily relied upon centralized units on campus to house and maintain assistive computer technology: [S]uch sole reliance upon a single centralized location (when not limited to adaptive technology training, but instead used for instructing disabled students in course subject matter) may run counter to the strong philosophy embodied in Title II and Section 504 regarding the importance of fully integrating students with disabilities into the mainstream educational program, unless such services cannot be otherwise effectively provided [see 34 C.F.R. § 104.4(b)(iv); 28 C.F.R. § 35.130(b)(iv)] . Thus, OCR assumes in most cases computer access will be effectively provided to the student with the disability in an educational setting with his or her nondisabled peers and classmates at the various computer laboratory sites scattered throughout the campus.
As a result, the mainstreaming of students with disabilities has created the need for appropriate technology tools for access to the learning environment. And as students with disabilities move into the workforce as employees, employers or consumers, accessible web design and an accessible internet platform remains a significant issue to be addressed in the digital economy. In other words, overcoming barriers in the digital economy requires appropriate policies, technology tools and education for accessible system design and implementation.
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Accessible System Design
As governmental entities and businesses employ policies to satisfy ADA Title II or ADA Title I requirements, a systemic review similar to the Year 2K problem should be underway to remove accessible system design barriers impacting employees and consumers. For example, designers of statewide or agency computer systems should be addressing the impact of their design 'upgrade' on current employees using assistive computer technology. Employees with disabilities should not be suddenly losing their ability to do their job because of this lack of planning.
If equal access to multimedia for people with disabilities is to become a reality, knowledge and awareness will have to be developed across all areas. A robust and strong digital economy requires the removal of barriers through the deployment of accessible design elements in our computer, information technology and communications. By directing our research and policy directives to address these problems, we will overcome the digital divide and ensure full participation in the global digital economy.
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