"Failure to consider accessibility when building online classrooms, such as by failing to caption videos or provide alternative text descriptions for graphics, makes these private postsecondary schools vulnerable to discrimination lawsuits..."
The continued growth of online classes in private postsecondary schools in the United States provides opportunities for students with disabilities to obtain a college education without having to leave their homes. This benefit is diminished, however, by the fact that those classrooms are not yet legally required to be accessible to students with disabilities. Nevertheless, many of these private postsecondary schools are leading the way by voluntarily choosing to make their classrooms accessible, providing students with disabilities more opportunities to further their education.
Because the Internet was in its early stages at the time the Americans with Disabilities Act (ADA) was enacted in 1990, website accessibility was not included in the legislation (Crowley, 2013). To date, the Department of Justice (DOJ) has not provided specific guidelines that private U.S. postsecondary schools must follow to ensure that their online classrooms are accessible to students with disabilities (Burke, Clapper, & McRae, 2016). While Section 508 of the Rehabilitation Act Amendments of 1998 provides specific accessibility guidelines for websites, the legislation does not apply to private U.S. postsecondary schools, even if they receive Federal funds (United States Access Board, n.d.).
Despite private U.S. postsecondary online classrooms not being expressly regulated by the ADA, some federal courts have expanded accessibility requirements to commercial websites, which would encompass the online classrooms of private postsecondary schools. Federal courts are split three ways as to whether the ADA requires commercial websites to be accessible: (1) original view: ADA applies only to the physical locations of businesses and not to websites; (2) majority view: ADA applies to websites of businesses that also have physical locations; and (3) minority view: ADA can apply to websites of businesses with no physical location (Gallegos & Sealey, 2015). This split is likely to continue until the U.S. Supreme Court, Congress, or the DOJ addresses the topic.
Because of this difference of opinion about the accessibility requirements of commercial websites, students with disabilities currently have different levels of anti-discrimination protection in U.S. online classrooms, depending upon the jurisdiction of the court making the ruling. An example of this involved the online company Netflix, which is an Internet-based company with no physical place of business. Two plaintiffs in different jurisdictions sued for discrimination because Netflix was not including captioning with its streamed videos. One case was dismissed because Netflix has no physical place of business, so the court ruled that the ADA does not apply (Cullen v. Netflix, 2015). However, in the other case, a district judge ruled that Netflix could be regulated by the ADA despite having no physical place of business (Nat'l Ass'n of the Deaf v. Netflix, 2012). That case was settled out of court for $755,000 (Nat'l Ass'n of the Deaf v. Netflix, Consent Decree, 2012).
These rulings could be applied to private U.S postsecondary schools as commercial businesses, some of which have corresponding physical campuses and others that offer classes online only. Failure to consider accessibility when building online classrooms, such as by failing to caption videos or provide alternative text descriptions for graphics, makes these private postsecondary schools vulnerable to discrimination lawsuits. Some of these types of lawsuits are being settled out of court, but the settlements are not binding on other businesses (Areheart & Stein, 2015).
With the current state of accessibility law in the United States as applied to commercial websites being unsettled, commercial businesses are wise to be proactive in ensuring that their websites are accessible to students with disabilities (Reindl & Linde, 2016). This advisory applies to private U.S. postsecondary schools offering online classes. This is excellent news for students with disabilities, because more schools are now providing accessible classrooms even without a mandate from the DOJ, Congress, or the U.S. Supreme Court. As more private U.S. postsecondary schools take proactive steps to ensure the accessibility of their online classrooms, students with disabilities will be provided additional avenues for furthering their education.
ADA: Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2009).
Areheart, B. A., & Stein, M. A. (2015). Integrating the Internet. George Washington Law Review, 83(2), 449-497.
Burke, D. D., Clapper, D., & McRae, D. (2016). Accessible online instruction for students with disabilities: Federal imperatives and the challenge of compliance. Journal of Law and Education, 45(2), 135-180. Retrieved from http://search.proquest.com/docview/1802195473?accountid=35812
Crowley, T. (2013). Wheelchair ramps in Cyberspace: Bringing the Americans with Disabilities Act into the 21st century. Brigham Young University Law Review, 2013(3), 651-690.
Cullen v. Netflix, Inc., 600 F. App'x 508 (9th Cir. 2015).
Gallegos, N. V., & Sealey, J. (2015). The coming ubiquity of ADA compliance to the Internet and its extension to online education. Journal of Technology Law & Policy, 20(1), 1-18.
Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012).
Nat'l Ass'n of the Deaf v. Netflix, Inc. (Consent Decree), No. 11-CV-30168-MAP (D. Mass. Oct. 9, 2012).
Reindl, K. & Linde, S. J. (2016). DOJ postpones website accessibility proceeding: How businesses can prepare in anticipation of a lawsuit and how to maximize insurance once served. Intellectual Property & Technology Law Journal, 28(3), 15-18.
Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d), as amended by the Workforce Investment Act of 1998 (1998).
United States Access Board. (n.d.). Questions & answers about Section 508 of the Rehabilitation Act Amendments of 1998. Retrieved October 31, 2016 from https://www.access-board.gov/guidelines-and-standards/communications-and-it/25-508-standards/720-questions-answers-about-section-508-of-the-rehabilitation-act-amendments-of-1998