Apology and Accessibility are Not Synonyms

Author: Jenna M. Marx and Erin E. Hannaford - Contact: Contact Details
Published: 2024/10/30
Publication Type: Opinion Piece, Editorial
Topic: Disability News - Publications List

Page Content: Synopsis - Introduction - Main

Synopsis: This op-ed explores the legality of providing accommodations to individuals living with disabilities.

Why it matters: This article is insightful and valuable for several reasons. It highlights the critical issue of digital accessibility, particularly for individuals with disabilities, in an era where the internet has become an essential part of daily life. The authors present a compelling argument for updating the Americans with Disabilities Act (ADA) to explicitly include online spaces as places of public accommodation, drawing parallels with existing educational accommodations and international human rights declarations. By discussing the legal ambiguities surrounding website accessibility and sharing personal experiences, the article effectively illustrates the real-world impact of inaccessible online content. Furthermore, it emphasizes the importance of universal design principles in creating inclusive digital environments, not just as a legal requirement but as a moral imperative. The article's authoritative tone, backed by relevant citations and the authors' expertise, makes it a persuasive call to action for policymakers, content creators, and the general public to prioritize digital accessibility - Disabled World (DW).

Introduction

This piece focuses on the applicability of the Americans with Disabilities Act to online spaces. The piece was inspired by a personal experience in which a person intended to utilize a video in an undergraduate course but could not do so because neither closed captioning nor a transcript was provided.

Main Item

"Our apologies!"

This was the response I received from a customer support agent after being told that neither closed captioning nor a transcript were available for a specific video produced by a well-known progressive newspaper that I intended to use as a teaching aid. I was also thanked for providing my feedback, which stated, "I hope going forward your organization makes content accessible to all who are interested."

I was appalled that a video published by this New York based paper lacked even basic closed captioning. If such a bastion of progressive ideas cannot (or will not) provide accessible options for all content on their platform, even at the request of an individual who needs them, what does that say about our society?

I rebel against the word "options." Accommodations for disabilities are not optional. They are a civil right according to the Americans with Disabilities Act of 1990 (Americans with Disabilities Act, 1990). Our built environments are structured for the physical accommodations this law requires, such as ramps, elevators, and accessible parking spaces (Kent, 2017). The ADA covers disabilities not impacted by physical spaces in addition to disabilities related to mobility, such as those experienced by individuals with a vision, speech, or hearing disability. Related accommodations might include braille signage, an augmentation and alternative communication device, and closed captions and transcripts (United States Equal Opportunity Commission, 1991).

Title I of the ADA prohibits discrimination by employers on the basis of disability for qualified applicants, Title II extends these protections to state and local government entities, and Title III extends these protections for "the activities of places of public accommodations" (Americans with Disabilities Act, 1990).

In a Congressional hearing focusing on whether or not the ADA applies to websites, the experts present came to different conclusions as to whether Title III extends to the internet (Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites, 2000).

Twenty-one years later, we are still grappling with this question. Various courts in the United States, both federal and state, do not agree on the issue. Most relevant to this article is a recent decision by the New York State Supreme Court, which not only decided that the internet is a place of public accommodation, but also concluded that a media website violated New York's Human Rights Law by not providing closed captioning for a deaf individual (See Sullivan v BDG Media, Inc., 71 Misc3d 863 [NY County, 2021]). Other decisions, however, have not held that online spaces are included in the ADA. It seems we will continue forward without an inclusive policy until an amendment clearly stating that the internet is a place of public accommodation is made to the ADA.

Meanwhile, the internet has been a ubiquitous part of daily life for people around the globe, a fact recognized by the United Nations when that organization declared access to the internet a human right in 2018 (Human Rights Council, 2018). The Council's Resolution states that "...the same rights that people have offline must also be protected online, in particular, freedom of expression..." and that States should

"...enhance the use of information and communications technology, in order to promote the full enjoyment of human rights for all, including by... fostering an enabling online environment that is safe and conducive to engagement by all, without discrimination and with consideration for individuals facing systemic inequalities; Maintaining and enhancing efforts to promote access to information on the Internet as one means of facilitating affordable and inclusive education globally, underlining the need to address digital literacy and the digital divides..." (Human Rights Council, 2018, p. 4).

While this is not a binding guideline, this Resolution by the United Nations General Assembly is a strong argument in favor of an amendment to the ADA specifically including websites as spaces that need to be accessible. In fact, the blueprint already exists; one only need to look at the field of education.

Educators have been providing accommodations to students since the passage of the Education for All Handicapped Children Act in 1975 (Education for All Handicapped Children Act, 1975). This law, called the Individuals with Disabilities Education Act (IDEA) since 1990, guaranteed "a free appropriate public education" in the "least restrictive environment" (Individuals with Disabilities Education Act, 1990), which is required to be offered to students in public elementary and secondary schools through Section 504 of the Rehabilitation Act of 1973 (The Rehabilitation Act, 1973).

Public elementary and secondary schools aim to achieve compliance with these regulations through the use of Individualized Education Plans, or IEPs, while collegiate students are offered accommodations through offices of Accessibility Resources or Disability Services. It is not acceptable in the classroom for an educator to ignore a student's accommodations; in fact, it's illegal. While college students are not covered by IDEA, federal civil rights laws, such as Section 504 and the ADA, still apply. At the collegiate level, there is growing momentum to support Universal Design Learning (UDL), in which learning environments are made accessible through implementation of specific science-backed strategies to provide multiple means of engagement, representation, and action and expression (Universal Design for Learning Guidelines, 2018).

Online resources are arguably a growing part of the learning environment across the scholastic experience and need to be as accessible as in-person classroom resources. 95% of K-12 teachers use digital tools in the classroom, with digital-streaming services such as YouTube.com among the most common, endorsed by 60% (Vega & Robb, 2019). At the collegiate level, 70% of college students learn of news from their instructors or professors, and 76% use online newspaper sites at least weekly; only social media (89%) and discussions with peers (93%) were identified as more frequent sources of news (Head et al., 2018). Making online resources accessible to all students is legally required; it can also come at a significant monetary and time cost to colleges, staff, and professors.

While students have teachers and accessibilities staff to advocate on their behalf, individuals living with disabilities outside of the educational sphere lack identified champions to campaign for the accessibility of the online resources they use without entering the legal system. Imagine how much more inclusive our offline spaces could be if our online spaces applied UDL principles.

When the ADA was first passed in 1990, the internet was still in its infancy. Now, over 30 years later, the internet is a necessity of daily life. Several online platforms have voluntarily made steps toward accessibility by offering automatic transcriptions and closed captioning options (e.g., YouTube and Instagram). Others, such as this progressive newspaper, have yet to uniformly do so -- at the cost of accessibility. The ADA must be updated to ensure that "the activities of places of public accommodations" extends online. Only then can we truly endeavor to transition from apology to accessibility.

About the Authors

Jenna M. Marx, Ph.D. is an associate professor of Psychology at Lebanon Valley College in Annville, PA. Jenna is passionate about inclusive excellence. She served as chair of a faculty committee that recently championed changes in the tenure and promotion standards at the College that require faculty to demonstrate inclusive practices in teaching and encourage them in research and service. The video that inspired this essay was intended to be used in class to provide background for discussion. However, it was not used as it could not be made accessible. Jenna is personally connected to advocacy for accessibility; she wears an assistive hearing device and is supported by a service animal.

Jenna's teaching interests are in general psychology, clinical psychology, abnormal psychology, sport psychology, and health psychology. She runs the Health Psychology Research Lab, which explores issues of behavioral health such as health promotion and disease prevention and inequities in and social determinants of health. Jenna has several ongoing interdisciplinary research projects in sport and performance psychology and runs an immersive experience focusing on homelessness and affordable housing. Jenna is a licensed Clinical Psychologist and a member of the American Psychological Association.

Erin E. Hannaford, M.S., CRC is the Director of the Center for Accessibility Resources at Lebanon Valley College in Annville, PA. Erin works with over 150 students with diagnosed disabilities to assist them with securing academic accommodations at the college. Erin works closely with faculty and staff at Lebanon Valley College to make their courses accessible for all students and is passionate about a universal design for learning. Erin is personally connected to advocacy for accessibility, as her father was paralyzed from the waist down when she was just 10 months old. Erin has spent her entire life working towards the acceptance of all individuals, regardless of their disability.

Erin is a member of the Association on Higher Education and Disability and a Certified Rehabilitation Counselor, with a background in working for the Office of Vocational Rehabilitation.

References

Americans with Disabilities Act, 12101 et seq. (1990). https://www.ada.gov/pubs/adastatute08.htm

Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites, 2d Sess. 65-010 (2000). http://commdocs.house.gov/committees/judiciary/hju65010.000/hju65010_0f.htm

Universal Design for Learning Guidelines, (2018). https://udlguidelines.cast.org/

Education for All Handicapped Children Act, Pub. L. No. 94–142 (1975). https://www.govtrack.us/congress/bills/94/s6/text

Head, A. J., Wihbey, J., Takis Metaxas, P., MacMillan, M., & Cohen, D. (2018). How students engage with news: Five takeaways for educators, journalists, and librarians. Project Information Literacy.

Human Rights Council. (2018). The promotion, protection and enjoyment of human rights on the Internet (38/L.10/Rev.1). United Nations General Assembly. https://documents-dds-ny.un.org/doc/UNDOC/LTD/G18/203/73/PDF/G1820373.pdf?OpenElement

Individuals with Disabilities Education Act, Pub. L. No. 101–476, 104 Stat. 1142 (1990). https://sites.ed.gov/idea/statute-chapter-33

Kent, J. (2017). ADA in details: Interpreting the 2010 Americans with Disabilities Act Standards for Accessible Design. Wiley.

The Rehabilitation Act, Pub. L. No. 114–95 (1973). https://www2.ed.gov/policy/speced/reg/narrative.html

United States Equal Opportunity Commission. (1991). Americans with Disabilities Act handbook. U.S. Department of Justice.

Vega, V., & Robb, M. B. (2019). The Common Sense Census: Inside the 21st-Century Classroom. Common Sense Media.

Sullivan v BDG Media, Inc., 71 Misc3d 863 [NY County, 2021]