By Dr. Janice Emerzian and Gaeir Dietrich, Accessibility Specialist/Consultant
It has been 30 years since the passage of the Americans with Disabilities Act (ADA) and 46 years since the adoption of Section 504 of the Rehabilitation Act of 1973. Section 508 standards were added nearly 20 years ago in 2000. While there has been significant progress on “leveling the playing field” for many persons with disabilities on college and university campuses, uncertainty continues to exist as to who has the primary responsibility for compliance with both laws. Many college and university leaders look to Disability Services Providers to implement and monitor the ADA, Section 504, and Section 508 issues and compliance; however, while Disability Services Providers are extremely competent and excellent resources for planning and responding to the needs of students with disabilities, it is the ultimate responsibility of the college and university leadership to meet full compliance.
In July 1990, President George W. Bush signed into law “The Americans with Disabilities Act” (ADA), a civil rights law enacted by the U.S. Congress. The ADA prohibits discrimination based on disability. This law was amended in 2008 and called the ADA Amendments Act of 2008 (often known as “the ADA as amended”) and took effect January 2009. The ADA was a significant step forward for civil rights beyond the Rehabilitation Act because the requirements of the ADA were not tied to federal funding, as the Rehabilitation Act had been.
Section 508 is a separate law and is not part of the ADA. Section 508 is an amendment to the Rehabilitation Act of 1973, which was added in 1998. The same act includes Section 504, which also prohibits discrimination based on disability in the areas of education, employment and rehabilitation of persons with disabilities.
Originally Section 508 consisted of guidelines for Federal agencies to make their electronic and information technology (E&IT) accessible to persons with disabilities; however, the Access Board published the Section 508 Standards in the Federal Register, December 21, 2000, creating legally binding standards that applied to the development, procurement, and use of electronic and information technology by the federal government.
Section 508 Standards, as written, apply only to the federal government and certain federal contractors. Confusion, at the time, over the Access Board’s intent led many colleges, and even the Department of Education, to believe that Section 508 applied to them. Many assumed that Section 508 Standards applied to anyone receiving federal funds, as is the case with Section 504. In actuality, the standards did not apply to colleges under federal law—except in a limited case as part of contractual agreement for institutions accepting specific federal contracts.
The state of California chose to adopt the Section 508 Standards under state law in 2001 (California government code 11135), applying the standards to California state entities, including the K–12 system and the California community colleges. One year later in 2002, California extended coverage to the California state universities. When Section 508 underwent its recent refresh (published in Federal Register in 2017), California rewrote the state law slightly, as well, and moved it under CA Government Code 7405, where it is currently.
The ADA as amended defines a person with a disability as someone who:
- Has a physical or mental disability that significantly affects a person’s life functions;
- Has a proven record of a disability; or
- Is regarded as having a disability.
The ADA includes five areas of coverage (listed below). Of these five areas, the two most looked to by colleges when working with students are Title II (for public institutions) and Title III (for private institutions).
- Title I (Employment)—This portion of the law is designed to protect persons with disabilities by helping them access the same employment opportunities and benefits available to people without disabilities and requires employers of 15 or more employees to provide reasonable accommodations to qualified applicants or employees. (This portion of the law is regulated and enforced by the U.S. Equal Employment Opportunity Commission.)
- Title II (State and Local Government)—This portion of the law prohibits discrimination against qualified persons with disabilities in all programs, activities, and services of public entities, including all state and local governments and agencies. It supports the requirements of Section 504 of the Rehabilitation Act of 1973, including public transportation systems, whether or not they receive federal funds. (This section is enforced by the U.S. Department of Justice.)
- Title III (Public Accommodations)—This title prohibits private places of public accommodation from discriminating against persons with disabilities, such as privately owned, leased, or operated facilities including hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day-care centers, health clubs, sports stadiums, movie theaters, and more. This title sets minimum standards for accessibility for alterations and new construction and requires public accommodations to remove barriers in existing buildings where it is easy to do so without much expense. (This title is enforced by the U.S. Department of Justice.) Please note that when the ADA was amended, requirements for accessibility of stadiums and theaters were significantly enhanced.
- Title IV (Telecommunications)—This title requires telephone and internet companies to provide a nationwide system of interstate and intrastate telecommunications relay services that allow individuals with hearing and speech disabilities to communicate over the telephone and requires closed captioning of federally funded public service announcements. (This title is regulated by the Federal Communications Commission.)
- Title V (Miscellaneous Provisions)—This final title contains a variety of provisions relating to the ADA as a whole, including relationship to partner laws, state immunity, impact insurance providers, and benefits, prohibition against retaliation and coercion, illegal use of drugs, and attorney fees. Also contained in this title are conditions that are not covered by the ADA.
What does all this mean for colleges and universities, and who is responsible for compliance? The overall message for college and university leaders is that they must comply with either Title II (public colleges) or Title III (private colleges) of the ADA, as well as with Section 504, if their institutions receive any federal funds. Colleges have the responsibility to provide accommodations (auxiliary aids and services) to students to learn and live on campus, as well as any and all college/university sponsored programs, including off campus and distance education programs. In addition, in California, the community colleges and California state universities must comply with the Section 508 Standards when purchasing, developing, or using and information and communication technology (ICT). Often common oversights can occur even when campus leaders believe that they have complied with the ADA and Section 504 of the Rehabilitation Act; however, in order to not violate these laws, constant attention should be spent on the intent and scope of the laws and continued reviews and trainings should be conducted for all administrators, faculty, and staff.
The Disabilities Office and Professionals are valuable resources for the latest updates to the laws; however, they are not the primary entity to enforce the conditions of the laws on the campus. Nondiscrimination on the basis of disability is a campus wide responsibility, and campuses should be focusing on compliance of facilities, academics, assessments, athletics, information technology, residence life, dining, student affairs, campus safety, admissions, campus offices including Veterans Services, study abroad, job placement and training, and career services, as well as hiring and training of faculty and staff. Disability Services can be valuable in establishing campus wide ADA and 504 trainings and resources, as well as providing information and assisting with campuses working towards full compliance to the laws ensuring full access for all students.
As technology has evolved, providing access to information and technology access has increasingly become a challenge. As colleges and universities attempt to meet the requirements of the ADA and 504, they must also consider the requirements of Section 508 of the Rehabilitation Act. Whether Section 508 directly applies to the campus or not, it provides an excellent template for ensuring access to technology. The importance of a planned coordinated response to the accessibility requirements of the law needs to be stressed if colleges and universities are to maintain accessibility while minimizing the cost of retrofitting existing resources.
Whereas the accommodation strategy of Section 504 and the ADA can be used in certain academic situations, technology often cannot be accommodated in an equally effective manner. Campuses utilizing software, hardware, online tools, and distance education courses need to develop campus wide strategies for equal access, rather than simply relying on disability services to meet student needs.
The need for access, especially in the online environment, is a concern for not only public but also private colleges and universities, even though little binding case law exists. Several prominent U.S. Department of Education (DOE) rulings and out of court settlements indicate that future case law will follow. In addition, high profile cases around the issue of web accessibility have been brought against a number of public businesses, including Winn-Dixie, America Online, Target, and H&R Block
Cases in California against the California Community Colleges (CCC) and San Jose State University resulted in the colleges choosing to comply with DOE recommendations to improve overall accessibility. In the case of the CCCs, a system wide policy for the accessibility of distance education was developed by a committee appointed by the state chancellor.
Ensuring that students with disabilities have an equal opportunity to participate and to achieve cannot rest solely on the shoulders of disability services. While the disability services office has charge of accommodations, ensuring general access is a greater campus responsibility. All campus departments and divisions need to be involved in providing the accommodations, including campus facilities, athletics, academics, safety, admissions & records, student affairs, student activities, study abroad, career services, housing, and many more.
In order to ensure technological access, faculty members need to learn how to make their courses, curriculum, documents, videos, and webpages accessible. Purchasers of technology (hardware, software, apps, online resources) need to become aware of which technology is accessible and whether or not it can be accommodated. Departments utilizing webpages and posting documents and videos online need to understand how to make their own resources accessible.
Veterans and students with disabilities who choose to not utilize Disability Services need to be made aware of how to gain technological access and services in a timely manner.
So who does what?
- Faculty and creators of online content: Learn to create accessible documents, videos, and online courses; consider accessibility to benefit all students; think accessible first!
- Web developers: Develop accessible websites (follow WCAG 2.0), use WCAG 2.0 checklists and compliance checkers, assist webpage administrators with accessible templates, include a link in the footer to a webpage containing information about accessibility
- Choosers of software, apps, and online modules: Remember to consider access, don’t take vendors’ word for accessibility—ask them to demonstrate how to use their product without a mouse, tabbing from field to field; always ask about captions on videos
- Purchasers of technology: Follow Section 508 purchasing guidelines, check for accessibility, ask vendors to demonstrate software without a mouse, consider whether or not the technology can be accommodated effectively
- Instructional support staff: Provide training/support for faculty on how to create accessible course materials
- Administrators: Learn about the ADA and Section 508; assess current efforts toward accessibility including off-campus and distance education courses and programs; develop ADA Transition Plans including timelines and persons responsible for activities; complete internal program reviews ) using the AHEAD model with outside assistance if needed; ensure that staff & faculty have the training and resources they need; ensure connectivity for students, including Veterans who opt out using Disability Services, and how to access services; include disability services in planning and resources
- Disability services: Determine accommodations to meet individual student’s needs, respond to campus questions about access and accommodations, recommend auxiliary aids and services when needed
In the final analysis, inclusion takes a campus. The hope is that colleges and universities will not only accept the laws but believe in the spirit of the laws, recognizing that disability rights are civil rights and that equity and social justice include the needs of individuals with disabilities. The authors plan to share additional recommendations in future publications on how to guide your campus towards compliance.
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***About the Authors
Dr. Janice Emerzian (drjaniceemerzian@gmail.com): District Director DSPS for State Center Community College District for 35 years, was a founding member of CAPED, co-chair CAPED Program Management CIG, and has served on numerous Governor’s boards and commissions representing inclusion of persons with disabilities. She lives in Fresno, California, and works as an ADA Consultant to colleges, universities and public entities.
Gaeir Dietrich (gaeird@gmail.com): former director of the High Tech Center Training Unit (HTCTU), member of the DIAGRAM Center advisory board, Treasurer of the AHEAD Board of Directors, chair for the Federal Advisory Commission on Accessible Instructional Materials (AIM) in Postsecondary Education 2010–2011, contributing author to Beyond the Americans with Disabilities Act, published by NASPA