WEB ACCESS LAW Its a Mess Out There Jerry M. Brown (979) 458-6126 - - PowerPoint PPT Presentation

It’s a Mess Out There

WEB ACCESS LAW

(979) 458-6126 jmbrown@tamus.edu Jerry M. Brown Managing Counsel

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

• f 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

17

TEXAS is in the 5th Circuit

Survey of Decisions

• Circuits requiring a

NEXUS to a physical place

– 3, 6, 9, 11

• Undecided

– 4, 5, 8, 10

• Circuits with no

physical place required

–1, 2, 7

18

NFB v. Scribd, Inc.

• HELD: Digital library's website and mobile applications were places
• f 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 2nd 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

• ffered 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
• f 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

Gil Court’s Analysis

• Court found text of ADA is ambiguous so it looks beyond the words

and considers legislative intent.

• The Eleventh Circuit has not addressed whether websites are public

accommodations for purposes of the ADA. However, the Eleventh Circuit's decision in Rendon v. Valleycrest Prods., Inc. offers some

• guidance. 294 F.3d 1279 (11th Cir. 2002). The Rendon court noted

that the plain language of Title III of the ADA covers both tangible, physical barriers that prevent a disabled person from accessing a public accommodation, and also “intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person's ability to enjoy the defendant entity's goods, services and privileges...”

23

Gil Court’s Analysis

• Court relied on a 9th Cir. trial court decision finding the

ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation,” and concluded that Target's website was “heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores.” NFB v. Target, 452 F.Supp.2d 946 (ND Cal. 2006)

• Winn–Dixie's website is heavily integrated with, and in

many ways operates as a gateway to, Winn–Dixie's physical store locations. The website's inaccessibility denies the Plaintiff equal access to company’s services.

24

• IV. Recommendations
• Look to UCB: 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.

• Look to La. Tech: web pages and course content that is

accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard, existing web pages and materials created since 2010 will be accessible, train instructors and administrators on the requirements of the ADA.

25

• Avoid Litigation

Title II cases against public universities will borrow Title III analysis (“no physical location” or “nexus to physical location”) to find a duty to make websites accessible to the disabled so universities should prioritize screen reader use and captioning. Remember, courts used Title VII cases to inform Title IX decisions. Personal Opinion-find a road to accessibility, not because the 5th Cir. may some day require it or because OGC tells you to do it, but because its the right thing to do!

26