WEB ACCESS LAW It’s a Mess Out There Jerry M. Brown (979) 458-6126 Managing Counsel jmbrown@tamus.edu
Current State of the Law and Regulatory Guidance? 2
Agenda Question: Does Title II of the ADA require public colleges to have websites and class materials accessible to the disabled? I. The Law & Regulations II. Current Status III. Agency Enforcement & Case Law IV. Recommendations 3
I. The Law & Regs • Federal Laws are contained in the US Code. These are laws passed by Congress. They are the “law of the land.” • Federal Regulations are rules passed by federal agencies like DOJ and ED. Regs provide more specific guidelines designed to implement the general policies reflected in legislation. The hard part is policy often changes when administrations change. 4
The Law • ADA 1990 (Title II, State & Local Gov’t) – 42 USC 12132 – no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services , programs, or activities of a public entity, or be subjected to discrimination by any such entity. • § 504 1973 – 29 USC 794 – No otherwise qualified individual with a disability in the United States, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of , any program or activity receiving Federal financial assistance. – the term “program or activity” means all of the operations of a department, agency, or other instrumentality of a State or of a local government. 5
The Regulations • ADA 1990 (Title II, State & Local Gov’t) – 28 CFR 35.130 – No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services , programs, or activities of a public entity, or be subjected to discrimination by any public entity. • § 504 1973 – 34 CFR 104.21 – No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of any program or activity to which this part applies. 6
Litigation Trends • ADA Title III Website Accessibility Lawsuits in Federal Court – 2017: 814 – 2018: 2258 (177% increase) – Texas had 7 lawsuits • 36 court opinions in 2018 – 21 cases pro-plaintiff – 14 cases pro-defendant Source: Seyfarth Shaw law firm 7
II. Current Status • 1996: DOJ CR, Title III entities “ must make their websites accessible to provide effective communication .” DOJ then filed a number of lawsuits resulting in consent decrees. 8
• 2010: DOJ issues advanced notice of proposed rulemaking to establish Title III accessibility standards for website compliance. • 2017: DOJ placed that rulemaking on the Inactive Actions list with no further information. 9
Magee v. Coca-Cola Refreshment USA Vending machines are not “sales establishments” and therefore are not “places of public accommodation” under ADA Title III. Magee v. Coca-Cola Refreshments USA, Inc. , 833 F.3d 530 ( 5th Cir. 2016, cert. den. 138 S.Ct. 55, Oct. 2, 2017) 10
DOJ amicus brief in US Supreme Court DOJ argued that the court of appeals was correct. The DOJ further argued that “questions concerning Title III’s application to nonphysical establishments — including websites or digital services — may someday warrant this Court’s attention . . . this case is not a suitable vehicle for addressing those emerging issues.” 11
So, DOJ’s opinion is… • Members of Congress have continued to pressure DOJ for guidance given the sharp increase in lawsuits. • Sept. 2018: DOJ confirms its position that the ADA applies to websites of public accommodations (Title III entities). “Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication” and that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” 12
III. Agency Enforcement • University Cases – UC Berkeley – La. Tech – Florida State – See https://www.d.umn.edu/~lcarlson/atteam/lawsuits.html • Non-University Cases – NFB v. Scribd Inc. – Gil v. Winn Dixie Stores, Inc. 13
UC Berkeley • August 2016, enforcement proceeding is still pending. • DOJ found UCB in violation of Title II. 26 MOOCs, 30 lectures on YouTube, and 27 courses on iTunesU. DOJ issued a letter of finding. • Large portions of UCB’s free, publically available online content is not accessible. UCB has ample infrastructure to support faculty in making material accessible. • UCB’s own rules required the material to be accessible. • UCB had a similar settlement in a lawsuit in 2013. The improvements Berkeley agreed to include: providing digital versions of textbooks within 10 days, providing course readers within 17 days, encouraging instructors to identify course materials earlier, providing scanning machines to allow students to self-scan materials. 14
La. Tech • July 2013, $23,543 paid to student. • The settlement resolves allegations that the University violated the ADA by using a version of an online learning product that was inaccessible to a blind student. The student’s lack of access to the course materials persisted nearly one month into the University quarter so he felt compelled to withdraw from the course. • The university will adopt a number of disability-related policies, including web pages and course content that is accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard. It will make existing web pages and materials created since 2010 accessible. The agreement also requires the university to train its instructors and administrators on the requirements of the ADA. 15
Florida State • March 2012, $150,000 settlement for two students. • A mathematics course relied on e-learning systems that were inaccessible to people with disabilities. The students could not access software that was used for homework and tests. The course also relied on inaccessible “clickers,” remote -control-like devices that allow students to answer multiple-choice questions during lectures. • The school agreed to increase its efforts to make courses accessible to all students. 16
III. Case Law TEXAS is in the 5 th Circuit 17
Survey of Decisions • Circuits requiring a • Circuits with no NEXUS to a physical physical place place required – 3, 6, 9, 11 – 1, 2, 7 • Undecided – 4, 5 , 8, 10 18
NFB v. Scribd, Inc. • HELD: Digital library's website and mobile applications were places of public accommodation under Title III of the ADA; no physical location is required. Defendant’s MTD is denied; case proceeds to trial. • California company operates reading subscription services on its website and on apps for mobile phones and tablets. Scribd's customers pay a monthly fee to gain access to its collection of over forty million titles, including e-books, academic papers, legal filings, and other user-uploaded digital documents. Nat'l Fed'n of the Blind v. Scribd Inc. , 97 F. Supp. 3d 565 (D. Vt. 2015)(matter of first impression in federal trial court). NOTE: Vermont is in the 2 nd Cir. 19
Scribd Court’s Analysis • Court found text of ADA is ambiguous so it looks beyond the words and considers legislative intent. • Purpose of ADA is clear: end widespread discrimination against disabled individuals. • The ADA must be broadly construed to effectuate its purpose. Congress could not have foreseen this extreme advance in technology. The law should be responsive to changes in technology. • The important quality public accommodations share is they offer goods and services, not that they are offered at a physical location. 20
Scribd Court’s Analysis • DOJ, which enforces ADA, believes websites are covered. • The Internet is central to every aspect of the economic and social mainstream of American life. • Excluding Internet businesses from ADA compliance would severely frustrate Congress’ intent. • Plaintiff has sufficiently alleged Scribd operates a place of public accommodation. • Cites to National Assoc. of the Deaf v. Harvard University , 2016 WL 3561622 (2016). 21
Gil v. Winn Dixie Stores, Inc. • HELD: Because Plaintiff showed a nexus between the store’s website and its physical stores, having a website inaccessible to the blind is a violation of Title III of the ADA . Defendant’s MTD is denied; the case proceeds to trial. • Customer, who was legally blind, brought action against grocery and pharmacy store chain, alleging that its website was inaccessible to the visually impaired in violation of Title III of the ADA. Gil v. Winn Dixie Stores, Inc. , 242 F. Supp. 3d 1315 (S.D. Fla. 2017)(federal trial court). NOTE: Florida is in the 11th Cir. 22
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