Across the country, colleges and universities have been tasked with developing a system of learning that not only mitigates students' risk of exposure to COVID-19, but also provides students with meaningful access to education. While online and remote learning have proven to be indispensable tools during a global pandemic, issues of accessibility have arisen for students with disabilities. More specifically, many institutions have failed to ensure that digital learning is compatible with the unique needs of students with physical and mental disabilities.
In this article, we will provide colleges and universities with factors to consider as they navigate digital learning for students with disabilities in the new school year. We will discuss universities' obligations under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act to ensure that online education is accessible to students with disabilities. We will identify barriers to digital accessibility that students with disabilities faced in the 2020-21 school year. Finally, we will highlight certain ways in which digital and hybrid learning have benefitted students with disabilities. With this information in mind, colleges and universities may provide more comprehensive access to digital learning and guard against liability for disability discrimination.
The ADA prohibits disability discrimination by public entities, including schools, while its sister statute, Section 504, prohibits disability discrimination by schools receiving federal financial assistance. Together, these acts provide disabled students with the right to equal access to post-secondary education; to non-discrimination; to participate in and enjoy the benefits of their school; to an accessible education; to an appropriate accommodation; and to have information about their disability kept private. As schools abruptly transitioned to online learning in response to COVID-19, the U.S. Department of Education's Office for Civil Rights (OCR) released guidance reminding schools and universities of their anti-discrimination obligations under these acts, and their responsibility to ensure that online education is accessible to all. In its guidance and webinar, OCR emphasizes:
- Public universities, and private universities receiving federal financial assistance, must ensure that students with disabilities can participate in online learning programs, activities, and services in the same manner as other students;
- "Accessibility" means that students with disabilities are able to acquire the same information, engage in the same interactions, and enjoy the same programs and activities as their non-disabled peers with substantially equivalent ease of use; and
- Online learning services should be built and developed to be accessible to students with a variety of disabilities. At a minimum, schools should confirm their online services are compatible with the common forms of assistive technology such students might use.
In regard to making accommodations for students with disabilities, colleges and universities are generally required to provide "reasonable" accommodations so long as those changes do not "fundamentally alter" the nature of the program or otherwise pose significant difficulty or expense.
Challenges to Digital Accessibility and OCR's Proposed Accommodations
Colleges and universities that made the transition to digital learning in the wake of COVID-19 were faced with a flurry of ADA lawsuits by August 2020. Students alleged that their universities were ill-prepared for digital learning and failed to make online resources accessible to them. For instance, one blind student was unable to successfully complete her college courses online because the PDFs did not support text-to-speech functionality for course materials or web content. Other students' digital learning programs did not provide closed captioning of audio and video resources. Indeed, the global pandemic exposed the technological shortcomings of many universities, and these inadequacies were experienced more significantly by differently-abled students.
As previously stated, colleges and universities must make reasonable accommodations for a variety of disabilities. As the OCR explains, students may be blind, have low vision, have mobility disabilities affecting hand control and coordination, be deaf or hard of hearing, and have other disabilities such as seizures and cognitive disabilities such as Attention Deficit Hyperactivity Disorder. These students need assistive technology to access their courses and materials, including speech recognition software, screen-reader software that converts visual information into speech for individuals who are blind, and mouth sticks, eye tracking, or pointing devices to navigate websites for students with mobility disabilities. It is imperative that universities engage in discussions — also referred to as an interactive process — with their students and disability services to determine how their online services can be meaningfully accessible to all. Unless the institution would face significant difficulty or expense, it should promptly implement accommodations for its students with disabilities.
Advantages of Hybrid Learning to Students With Disabilities
As colleges and universities begin the new school year, they should also consider the ways in which online and hybrid learning have benefitted students with disabilities and aim to continue such beneficial practices, if reasonable. Students with disabilities have benefited from the flexibility of remote learning. For instance, the availability of digital learning may be helpful to immunocompromised students who are not yet comfortable in large gatherings, and to students who frequently miss classes due to medical attention. Further, students who must navigate college campuses that do not have accessibility features for individuals with muscular disabilities have benefited greatly as such burdens are non-existent at home or in their accessible personal environment. For students with disabilities who prefer to attend class in person, there is a peace of mind that accompanies the ability to secure accommodations with less resistance and less stigmatization.
As the OCR has stressed, compliance with the Center for Disease Control and Prevention's recommendations should not create civil rights concerns. Colleges and universities are obligated under the ADA and Section 504 to ensure equal access to online educational programs for students with disabilities. In this new school year, institutions should consider the variety of existing disabilities and the variety of available accommodations as they unveil their hybrid learning systems. Indeed, in order to safeguard the rights of students with disabilities and mitigate the risk of liabilities under these acts, institutions of higher education must comply with the guidance set forth by the OCR, engage in meaningful discussions with their students with disabilities, and promptly make feasible accommodations when requested.
Further, institutions must consider whether any of the temporary changes made to respond to the global pandemic will become permanent accommodations. Institutions must view these changes as a necessary component that may be required for all of their students to have the same or similar learning experience.
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