Throughout society there is a call to be increasingly inclusive. Yet more than 30 years after the establishment of the Americans with Disabilities Act (ADA) in 1990, as well as recurring lawsuits for alleged inaccessible content in violation of the 1973 US Rehabilitation Act, high-branded institutions such as Harvard University and University of California, Berkeley (UCL Berkeley), are failing to achieve digital inclusion for Americans with a wide range of disabilities.
In fact, an AAAtraq Report claims that 96% of American Colleges are denying equal access to disabled people. The company finds that US higher education websites fail on the basics. That’s despite efforts and increasing spend on attempts to make websites more inclusive.
In today’s post-secondary education environment, it reports that 19.4% of students are disabled. “It’s time for a reality check,” said Lawrence Shaw, CEO of AAAtraq. “This is not the time for complacency or pointing the finger at another department, or vendor. Against a backdrop of the increasing threat of litigation, failure is now an organizational risk. It’s time to get real or get sued.”
Shaw said it’s the responsibility of chief financial officers (CFO) and counsel to ensure they take ADA compliance seriously – particularly give the financial, brand, and reputational risks involved with achieving website accessibility compliance or failing it. The trouble is that there is a false sense of security, which may be caused by a mindset that believes all ADA and Rehabilitation Act matters are in hand. In their view there is nothing to worry about. But there many institutions are being misguided. He accuses service providers of dishonesty about compliance and of lacking accountability.
Non-compliance costs
AAAtraq estimates that the cost of non-compliance across the industry could equate to “$6.62 billion in legal demands alone, but this excludes the cost of ongoing monitoring essential to ensure ongoing compliance as websites are iterative in nature, constantly being changed and updated.” Thankfully, some US colleges are ahead of the game; they are achieving a high level of digital inclusion through website accessibility.
AAAtraq’s Risk Index finds that a number of smaller US colleges are able to join The Green Room. In other words, they are the best performers. However, of the 63 US colleges and universities who made it to the room, there is still room for improvement. In fact, AAAtraq finds that there is no room for complacency, or for sitting back on laurels. It’s the nature of websites. They are ever-changing. There is always new content and updated content. So, it's important to monitor and ensure compliance is being maintained.
What’s most interesting about the INDEX is the failure of Harvard University and of UCL Berkeley to make this list of top performers, begging the question about whether they have something to learn from less prestigious and smaller US higher educational establishments.
UCL Berkeley signs consent decree
Insight into Diversity magazine reported on November 22, 2022, in its article ‘Justice Department Announces Agreements with Universities to Ensure Accessibility for Individuals with Disabilities’, that UCL Berkeley has signed an agreement with the Department of Justice to improve access to individuals with disabilities. It has received a complaint that alleges the university violates Title II of the ADA by omitting accessibility options from most of its online content.
The publication explains: “By doing so, the complainant claims the university discriminates against people with visual, hearing, and manual disabilities. Accessible design features such as transcripts, text descriptions, and captions are missing from many contents posted on UC Berkeley’s website and social media accounts, including podcasts, conferences, lectures, and graduation ceremonies.”
Further to the agreement and a press release on the matter, Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division is cited in the article as stating: “By entering into this consent decree, UCL Berkeley will make its content accessible to the many people with disabilities who want to participate in and access the same online educational opportunities provided to people without disabilities.”
To achieve compliance UCL Berkeley must make all of its existing and future digital content, on websites and apps, accessible to individuals with disabilities. It is also required by the consent decree to “hire or designate a website accessibility co-ordinator, train personnel, adjust relevant policies, and hire independent auditors to ensure its content is accessible.”
EdScoop explains why: “Berkeley had been posting many of the lectures it includes in its free online platform, BerkeleyX, without closed captions and transcripts for deaf users, or image descriptions for visually impaired users. Similar shortcomings were found in much of the other content — including guest speakers, sports highlights and graduation ceremonies — the university published on third-party platforms, like YouTube and Apple Podcasts.”
The investigation was instigated in 2014 when a complaint by the National Association of the Deaf led “prosecutors to conclude that Berkeley was in violation of the Americans With Disabilities Act.” The consent decree is for a period of three years, meaning that the university should ideally have resolved its accessibility issues by then, if not well beforehand.
Claims contradicted
Meanwhile, UCL Berkeley provided a statement that showed some irony in its claim of being the home of disability rights and independent living movement. In an email to Higher Ed Drive, a UC Berkeley spokesperson commented:
“We are proud of that distinction and are committed culturally and technically to ensuring that disabled people can equally access Berkeley’s digital assets. Over the last few years in particular, we have taken numerous significant steps to improve public access to as broad a population as possible to content created and published by the university.”
“This remains underway, as we are always looking for ways to improve access for all audiences, adjusting our work as new technologies, tools, and best practices emerge. Our work, with the DOJ, which stems from a 2014 investigation, is part of that effort.”
Interestingly, Christopher Rim - CEO of Command Education, writes in his article on ‘Digital Accessibility on College Campuses—Is Berkeley The Beginning Of A Broader Call To Action?’ that ULC Berkeley had “in response to the DOJ’s allegations, the university chose to promptly remove over 20,000 resources rather than make the online content more accessible to students with disabilities.”
Harvard: Intention discrimination?
As for Harvard University, a recent report AAAtraq asks: ‘Harvard University: Intentionally discriminating or a lack of ownership, visibility and accountability?’, by Rob Andrews – Director for Brokerages at AAAtraq, cited similar claims about Harvard University’s commitment to digital accessibility to those of UCL Berkeley. University President Larry Bacow, who’s due to leave Harvard University in June 2023, commented on its Digital Accessibility Policy in the April 30, 2019, edition of the Harvard Gazette: “Harvard is deeply committed to expanding access to knowledge, information, and learning opportunities for people with disabilities.”
Andrews therefore wonders whether or not Harvard University is serious about its commitment: “The same article goes on to describe a host of measures to be put in place to ensure its digital resources are accessible including the forming of a Digital Accessibility Services (DAS) team and an Accessibility Steering Committee. Despite this and a host of other measures, described in the Harvard Crimson article, Harvard adopts University-wide digital accessibility – Harvard Gazette, here we are again; a new class action lawsuit and allegations of failing to design websites to be accessible.”
He adds: “The Harvard Crimson website article (mentioned above) is a case in point. The page, which is still live today, shows basic failures including missing alternate text, missing labels on forms, and missing link text.” In fact, a recent AAAtraq ADA compliance check on the page in question shows a negative, red compliance score of more than 300. Andrews explains that a Green score of 12 or less is good, but a Red denotes the highest risk. “The compliance score ensures oversight of improvement, without the need to delve into the technical detail,” he explains.
‘Inaccessible’ content
The implementation of Harvard’s Digital Accessibility Policy goes back to 2019 when an initial complaint argued that its content was inaccessible, and that it was in violation of the United States Rehabilitation Act 1973. It outlawed discrimination in institutions which receive federal financial assistance. According to Alexandra A. Chaidez and Aidan F. Ryan, Crimson Staff Writers at Harvard Crimson in their article, ‘Harvard Introduces Digital Accessibility Policy Amidst Lawsuit’, the complaint says Harvard violated Title III of the Americans with Disabilities Act.
In 2019 The Harvard Crimson revealed that the Digital Accessibility Policy “comes on the heels of an ongoing lawsuit against Harvard alleging the school failed to close caption and provided inaccurate captions for its public online content — including YouTube, iTunes U, Harvard@Home, and the Extension School’s sites. It adds: “The National Association of the Deaf and four of the organization’s members originally filed the suit in February 2015 in Massachusetts District Court.”
WCAG standards
The Harvard Gazette’s article, ‘Campus and Community: Increasing Digital Accessibility’ says the university’s Digital Access Policy called for the application of generally accepted best practices for websites. Those being the Worldwide Web Consortium’s Web Content Accessibility Guidelines version 2.1 AA (WCAG 2.1 AA). It also established Digital Accessibility Services by establishing a new team within Harvard University Information Technology (HUIT) to provide in-house expertise, training, and information to Harvard faculty and staff.
The Harvard Gazette adds: “HUIT expects the DAS team to be staffed and ready to provide training and information over the summer. In addition to this central resource, Schools and units soon will be appointing at least one Digital Accessibility liaison to engage with DAS and help coordinate local efforts and resources.”
Nothing changes
Fast-forward thought to October 12, 2022, and Jessy Edwards reveals that despite the policy it doesn’t seem that much has changed at Harvard University. Harvard University Class Action Claims Website Inaccessible to Visually Impaired, [and] Blind,’ says his headline. He writes that legally blind person and “plaintiff Milagros Senior filed the class action lawsuit against Harvard University Oct. 7 in a New York federal court, alleging violations of the Americans With Disabilities Act (ADA).”
The plaintiff says the university has failed to design and operate its websites—harvard.edu and gocrimson.com to ensure they are fully accessible to her and other blind or visually-impaired persons. She adds: “Defendant’s denial of full and equal access to its website, and therefore denial of its products and services offered thereby, is a violation of Plaintiff’s rights under the Americans with Disabilities Act and The Rehabilitation Act of 1973 prohibiting discrimination against the blind.”
Putting CFOs in charge
Given the potential financial and reputational impact on having to deal with lawsuit after lawsuit for a failure to take digital accessibility seriously, despite claims to the contrary, AAAtraq believes the university’s CFO should be taking control of the situation. At present it looks like it has to date only paid lip-service to digital inclusion and digital equality.
Even if the charge of paying lip-service does not apply, the CFO needs to take ownership of the issue to ensure ADA and overall regulatory compliance because lawsuits are costly. “Furthermore, the general public and institutional constituents expect and assume that a high ethical standard prevails in higher education institutions,” adds Andrews.
He also argues that there needs to be better reporting, which creates visibility: “Without visibility, there is no accountability. Institutions are at the mercy of those undertaking the work. It’s akin to a builder signing off their own work or a university student grading their own paper. Contracts must be in place with third parties to make them accountable and appropriate indemnities and warranties included.”
Unnecessary exposure
At the end of the day, the risk and financial exposure that universities are putting themselves through is unnecessary. Surely though they aren’t discriminating intentionally. Andrews therefore believes it’s more about them having a lack of true ownership, visibility, and accountability.
To make an immediate difference today to those with disabilities – with an instant improvement in content accessibility, to save million-of-dollars of spending on ineffective compliance programs, services and tools, and to mitigate the threat of litigation – Harvard and other US universities therefore need to demonstrate ‘reasonable adjustment.’ That requires them to give a single person ownership such as the CFO or a direct report overall ownership and accountability.
Rather than taking their time over it and paying lip-service, they should also get to work immediately on fixing all basic failures – including the quick wins of fixing alternate text, missing labels, and text links. They should also do a regular compliance check with tools such as AAAtraq’s (www.AAAtraq.com/check) for ADA Compliance, and Andrews advises they get independent, unbiased reporting that the executive sponsor - the CFO or direct report can instantly understand –for compliance oversight to monitor progress. Done this will reduce any costs and risks.
By Graham Jarvis is a freelance business and technology journalist.