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OCR Investigations: They’re back!
Posted December 18, 2018
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The Office of Civil Rights to Revisit Previously Abandoned Web Accessibility Complaints
The U.S. Department of Education Office for Civil Rights (OCR) has updated its Case Processing Manual (CPM) to rescind a provision added earlier in the year (pursuant to Section 108(t)), which had the stifling effect of negating OCR complaints filed in mass by a person or group. Specifically, changes in the November 2018 version of the CPM directly address the following addition to the Spring 2018 version of the manual:
“OCR will dismiss a complaint if it determines that the complaint was a continuation of a pattern of complaints previously filed with the OCR by an individual or group against multiple recipients or a complaint filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.”
An additional provision added to restrict the appeals process has also been restored.
These two important changes are a welcome reprieve for disability advocates, who have characterized the current administration’s approach to addressing disability discrimination complaints in education institutions as unacceptable. The move from the OCR comes after a lawsuit from the National Association for the Advancement of Colored People (NAACP), the National Federation of the Blind (NFB), and the Council of Parent Attorneys and Advocates (CPAA) was filed in May following the publication of what has been viewed as “obstructive provisions” in the March 2018 CPM.
How we got here.
The premise behind the OCR’s decision to change the CPM back in March stemmed from serial-filings by special education activists, like Marcie Lipsitt, who, over the course of several years, single-handedly triggered hundreds of investigations from the OCR after claiming access barriers that violated school’s obligations under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), which, strictly prohibit public entities from discriminating on the basis of disability. Today, these laws extend to the accessibility of school websites and digital content, such as PDFs.
To offset the March 2018 CPM changes, the OCR was referring district administrators to attend web accessibility training seminars hosted by internal OCR subject matter experts. For disability advocates, this simply wasn’t enough; which is what motivated large advocacy organizations like the NAACP, NFB, and CPAA to get involved and ensure private colleges and schools fulfill their Title III ADA obligations. Title III of the ADA prohibits disability discrimination by places of public accommodation, which, among several other business types, includes “nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place(s) of education”. Along these lines, in November of 2018, an individual who is blind filed 50 lawsuits in the Southern District of New York against colleges and universities all over the nation.
What does this mean for school administrators?
If you were previously notified that a filed web accessibility complaint had been dismissed by the OCR, it may be reopened. The OCR is beginning the process of notifying these schools that a directed investigation to assess compliance under Section 504 with respect to the accessibility of websites and on-line programs will be initiated. Specifically, the OCR will be investigating the following:
“Whether the website and on-line programs exclude qualified persons with disabilities from participation in, denies them the benefits of, or otherwise subjects them to discrimination under any program or activity, in violation of the Section 504 implementing regulation at 34 C.F.R. §104.4.”
How AudioEye can Help.
AudioEye is a trusted digital accessibility auditor that services dozens of education institutions, primarily by way of an exclusive partnership with Finalsite, a leading CMS provider for public and private schools across the globe. Through this very special partnership with Finalsite, AudioEye has been able to deploy a leading-edge dynamic remediation technology backed by an end-to-end managed service that assists schools in achieving rapid compliance while maintaining a practical and sustainable web and digital accessibility strategy.
The AudioEye approach to addressing issues of digital accessibility is multi-faceted and, earlier in 2018, AudioEye had the opportunity to review the steps of our AudioEye Managed process in collaboration with the Department of Education’s Office of Civil Rights and accessibility SME leaders who were in charge of creating and delivering the department’s website accessibility webinar curriculum. In this way, by having validated the distinct deliverables associated with the fulfillment of AudioEye’s unique approach, school institutions and Finalsite clients have increasingly embraced a trusted solution that meets their obligations under ADA and Section 504; while meeting the expectations of the OCR to ensure barrier-free access to websites and on-line programs.
The AudioEye sustainable approach to digital inclusion offers Finalsite clients and school institutions with a holistic solution. The AudioEye Managed offering begins with automated testing and dynamic remediation of common accessibility barriers. Benchmarking against the internationally recognized standards for accessibility guidance, namely, the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA Success Criteria, AudioEye assists schools in their efforts to achieve and maintain substantial conformance with these standards.
Last but not least, all Finalsite customers and school institutions adopting the service can deploy free web personalization tools, which allow all users, regardless of their abilities, to personalize their user experience. These free assistive tools provide different options to meet individual needs and mirror the best features that can be found across the many different types of assistive technologies that are offered in today’s marketplace. These utilities have benefits for all site visitors, but, in particular, aging populations and individuals who have vision, hearing, motor and intellectual or cognitive disabilities, those who are color blind, dyslexic, are learning to read, learning a second language, or may prefer listening instead of reading.
If you are interested in learning more about AudioEye web accessibility solutions for schools and how to prepare for or address OCR investigations, please contact an AudioEye representative today.
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