State Bar of Michigan
Volume 6, Issue 3, October 2010

Disabilities Project Newsletter

A New Frontier: The Legal System, Accessibility, and the World Wide Web
by Kristine Moore, Assistant Director for Institutional Equity, Office for Inclusion, Michigan State University

Technology continues to develop at a pace where, let’s face it, the law tries to keep up. Yet another example of this arises in the disability law arena, specifically regarding access to the Web for persons with disabilities. Access to the Web is becoming an increasingly significant concern for those who have disabilities. As we move toward a higher degree of dependence on the Web for access to programs, services, businesses, and activities, it becomes progressively more important to ensure a business or organization’s website is accessible. Perhaps nowhere is this more important than it is in terms of access to the legal system. Those of us in the legal system should become educated on Web accessibility—what it is and what can be done.

Barriers to Accessing the Web

What are the barriers and who encounters them? The first thing one thinks of with respect to disability related issues and the Web is blindness or low vision. However, there are a host of other disabilities that may present issues with respect to accessing the Web, such as deaf/hard of hearing, mobility, and learning and cognitive disabilities. Individuals who are visually impaired may rely on screen reader software to access the Web. Many of the technical accessibility issues involve making a website adaptable to various screen reader software. If a screen reader is employed and the website is accessible, someone who is visually impaired will be able to access content that others can, in real time. If a website is not accessible, a screen reader may, for instance, not be able to read an image, video, forms fields, or non-standard document formats. The screen reading software may be unable to navigate or forced to spit out gibberish. Screen reading software is improving; yet, without building certain accessibility features into a Web page, there may still be barriers. In addition, someone who is deaf may encounter lack of captions or transcription of audio. Someone who has a mobility related disability who may be using a specialized mouse may encounter issues with time-limited response options. The same issue may be encountered by someone with a learning or cognitive based disability.

Current Statutes and Regulations

So, which laws address Web accessibility? Title II of the Americans with Disabilities Act (ADA) covers public entities and prohibits discrimination on the basis of disability in all services, programs, and activities provided or made available by local or state governments and their affiliate agencies (including, obviously, the courts). Title III of the ADA prohibits discrimination against individuals on the basis of disability by private entities that provide places of public accommodation (which specifically includes law offices). Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) prohibits discrimination by recipients of federal financial assistance, and Section 508 of the Rehabilitation Act prohibits discrimination by the federal government.

Both statutes require covered entities to provide individuals with disabilities equal access to their programs and services unless doing so would constitute a fundamental alteration to the program or service. 34 CFR 104.4(b)(1); 28 CFR 35.130(b). The ADA defines equal access in terms of communication as communication with persons with disabilities that is as effective as communications with others without disabilities. 28 CFR 35.160(a).

However, only Section 508 of the Rehabilitation Act, applicable to federal agencies, sets forth very specific regulatory requirements for making the Web accessible. The other sections of the two statutes leave it up to the entity to interpret whether communication that is “as effective” infers a requirement to adapt a website to achieve Web accessibility, as well as how to define “accessibility.”

Guidance

There is some guidance from case law. The most notable lawsuit thus far may be the one filed against Target Corporation (National Federation for the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006)). The case settled, but not before the court issued an interesting opinion granting the defendant’s motion to dismiss in part and denying it in part, as well as denying plaintiffs’ motion for injunctive relief. Plaintiffs challenged the accessibility of Target.com under Title III, and defendant countered with the argument that Target.com was not a physical place, so was not covered as a “place of public accommodation.” The court in Target found middle ground and held that although in its opinion a “place of public accommodation” means a physical space, there is a cognizable claim under the ADA if one can establish a nexus between the denial of service (shopping via Target.com) and the physical space (the physical store). Other courts have split on the issue of whether there must be a “bricks and mortar” connection to the disability claim in order to establish a cause of action under Title III of the ADA. The Sixth Circuit has held that a place of accommodation means a physical place, but has not yet specifically applied the ruling to a Web accessibility case.

Other guidance has come from agencies such as the Department of Education and the Department of Justice (DOJ). In a significant development, at the end of July this year, the DOJ issued an Advance Notice of Proposed Rulemaking on Web accessibility. It is proposing to make explicit, in the implementing regulations for Titles II and III of the ADA, that accessibility to websites is a requirement under the law. While the Department states that it is not proposing to address whether the Internet itself should be considered a place of public accommodation, it believes that goods and services of places of public accommodation that operate exclusively or through some type of presence on the Web should be covered. The DOJ document notes that while resolving website barriers is neither difficult nor especially costly, failing to resolve them can greatly impede the ability of individuals with disabilities to fully enjoy good services and programs offered by covered entities on the Web. The DOJ is seeking comment on such questions as which set of industry standards should be used, what should the implementation date be, and how costly is it to maintain accessible websites.

Organizational Policies

At Michigan State University (MSU), Web accessibility is, at its core, about access to higher education. In terms of the courts, firms, and lawyers, Web accessibility is about access to justice. In both cases, given the significance of what is at stake, a proactive approach is warranted. At MSU, we have developed a comprehensive, university-wide policy for Web accessibility. The policy requires that all new and redesigned University Web pages that conduct core university business be in compliance with Web accessibility technical guidelines—which MSU created based on two sets of Web accessibility industry guidelines—unless granted an exception. The two sets of guidelines are the U.S. Access Board’s Section 508 standards and the Web Content Accessibility Guidelines, developed by World Wide Web Consortium. As set forth above, MSU is not legally required to follow these guidelines at this point, but they serve as a good benchmark for measuring accessibility. The University has included a remediation requirement for inaccessible Web pages, up to possible removal of the site. The University created an implementation plan that included an educational campaign and the provision of resources for all MSU community members affected by the policy. We are in year two of our policy, and we consider it a successful work in progress. More information about MSU’s policy can be found at: www.webaccess.msu.edu.

The Future

As our dependence on the Web increases—from the perspective of both the consumer and the provider—so will the expectation that information is made accessible. Although regulations and guidance currently permit an accessible alternative to the Web, it must provide an equal degree of access in terms of hours of operation and range of information, options, and services available. In terms of the legal system, if an able bodied person is able to log on to a website at midnight and have access to court forms, a searchable docket, the ability to pay fees, determine schedules, etc., a person who is blind should be able to have the same type of access. Trying to provide alternative access in many cases is more problematic and more costly than simply to build in accessibility features to any website as it is being developed. Web developers are becoming more and more knowledgeable about the industry standards and should be versed in developing accessible sites. The concept of making the Web accessible is here to stay, and courts, law firms, and others who provide services and programs to the public are well advised to jump aboard.

Previous issues of Disabilities Project Newsletter:

• Demystifying the Administrative Law—Medicaid Fair Hearings Process
• Self Identification Notice Under the ADA
• Guardianship—The Impact on Parents with Special Needs
• Disabled Veterans: Serving Those Who Served
• Conflicts in Guardianship of Adults
• Conflicts Involving Counsel and Adult Clients With Cognitive Disabilities
• Planning Alternatives to Guardianship

Previous editions of this newsletter are online.

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