United States: Your School Could Be One Click Away From A Lawsuit

The education industry continues to be at the forefront when it comes to using emerging technology and digital marketing. For most schools, their website functions as the new reception area (albeit virtual), where both current and hopeful students and their families access information, explore what the school has to offer, and connect with the community.

Though not necessarily an intuitive concept, you need to understand that in the eyes of the law, your website is akin to a physical structure that must be accessible to individuals with disabilities. In fact, websites have become the new hotbed of litigation brought under the Americans with Disabilities Act (ADA), and schools that increasingly rely on their web presence need to take note.

What Does The ADA Require?

Title III of the ADA prohibits disability discrimination by entities that are considered places of public accommodation. This category includes private businesses whose operations affect commerce and those that fall into any of the 12 types listed in the ADA, which specifically includes "a nursery, elementary, secondary, undergraduate, or post-graduate private school, or other place of education," as businesses subject to the law.

When Congress enacted the ADA in 1990, the existence of the internet and its pervasiveness in today's society was all but unfathomable. As a result, the ADA does not specifically address website accessibility. However, as Congress expressly stated upon its passage, "the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times" and technological advances "may require public accommodations to provide auxiliary aids and services in the future which today would not be required."

Increasingly, plaintiffs' lawyers are bringing legal actions or sending demand letters claiming that publicly available websites are inaccessible to users with disabilities, thereby disadvantaging those individuals in a modern society that is largely driven by an electronic marketplace.

How can websites be inaccessible? Many people with disabilities require "assistive technology" to enable their use of computers and to access the internet. Websites that are unable to communicate with assistive technology can create unnecessary barriers for users with disabilities, and help fuel website accessibility claims. For example, individuals who are blind or have poor vision may require screen readers—devices that read aloud the text on a monitor—to assist them in accessing a website's content. These users cannot fully access a site unless it is designed to work with screen-reading software.

Another example of an issue to consider when addressing potential accessibility barriers is ensuring each individual website page is coded to allow navigation by means of a keyboard or single-switch access device, without requiring a mouse. Users who are unable to use a mouse with precision due to a physical impairment could find your website unnavigable without this design.

Recent Ruling Provides Warning

A federal court in Florida recently issued a potentially groundbreaking decision that could open the floodgates to a new trend in litigation of complaints filed under Title III of the ADA: the "surf-by" lawsuit. While businesses have been dealing with so-called drive-by lawsuits—claims filed by plaintiffs who spot technical ADA violations, such as inaccessible entrances, by simply driving down the street—for some time now, recent years have seen an explosion of the digital equivalent of such suits.

A surf-by lawsuit is initiated when an individual logs on to an organization's website solely to search for possible accessibility violations, and when found, files an ADA lawsuit, sometimes without prior warning. In one such recent case, Gill v. Winn-Dixie Stores, Inc., the court held that Winn-Dixie's website was covered by Title III of the ADA because it offered "services," including a store locator. Significantly, the court ordered the retailer to make its website complaint with the Web Content Accessibility Guidelines (WCAG) 2.0, a set of international standards outlining methods to make websites more accessible for individuals with disabilities.

If courts in other parts of the country rely on the reasoning from this decision when ruling on similar cases, there is no question that school websites, which generally offer a multitude of services, will be held to higher ADA standards. This legal landscape should motivate you to review your digital presence to ensure compliance.

Schools Are Targets For Demand Letters And Litigation

This is not a trend that is going away. In 2017 alone, plaintiffs filed in excess of 800 federal lawsuits alleging website inaccessibility, not to mention the countless demand letters resulting in an untold number of pre-litigation settlements. There is no doubt that this number will climb in 2018 and beyond.

Schools are not immune from this new trend. The last few years have seen an onslaught of website accessibility complaints targeting public and private school websites. While a number of these complaints are settled before litigation is filed, the members of our firm's Education Practice Group have seen an increase in the number of federal accessibility lawsuits filed against academic institutions. School websites can be particularly vulnerable since content is often updated continuously and by multiple individuals. Therefore, just because you hired a vendor to build an accessible website a few years ago, maintaining that accessibility can be a challenge in a school setting.

How Can You Make Your Website More Accessible?

While the U.S. Department of Justice (USDOJ) has recently tempered its tone on whether to formally adopt the Web Content WCAG 2.0 as official federal regulations, it is clear that courts are already developing and will continue to shape this area of law by imposing their own technical obligations. A safe way for schools to protect themselves from exposure to these lawsuits is by following WCAG 2.0 for guidance on making their websites accessible for a variety of ADA-covered disabilities, and implement features that facilitate easier navigation and are compatible with assistive technologies.

Conclusion

Your school should anticipate being the focus of increased ADA scrutiny and challenges to the accessibility of your website, and prepare to respond accordingly. By taking some steps now to ensure compliance with the WCAG 2.0, you can decrease your risk of facing a future lawsuit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions