Legal Brief

Costly Violations for Inaccessible Websites
By JOEL D. BUCKMAN/School Administrator, September 2017

IF YOU WENT to your school district’s home page right now and unplugged your mouse, would it be possible to navigate the site? Do the images on the page contain “alt tags?” Are the videos closed-captioned?

If you answered “no” to any of those questions, you are not alone, and you may well have a website accessibility problem.

Two years ago, the answer to all three questions apparently was “no” for the Washoe County School District, based in Reno, Nev. In June 2016, the U.S. Department of Education’s Office for Civil Rights announced that Washoe, four other school districts and six education organizations had settled OCR investigations stemming from those issues. The federal government alleged the districts had violated federal disability law — specifically, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.

Costly Settlements
In Washoe’s case, OCR launched an investigation after receiving a complaint. The agency examined five webpages on the district’s site and found a violation because, in addition to the three problems above, the website used color combinations that “made text difficult or impossible for people with low vision to see.”

Washoe settled the case by agreeing to, among other things, (1) adopt (subject to OCR approval) new policies and procedures that required adherence to an objective website accessibility standard; (2) hire an expert outside auditor to examine all website content and functionality; (3) submit a corrective action plan to address any accessibility problems identified by the audit; and (4) provide annual website accessibility training to all appropriate personnel (including anyone in the district responsible for developing content).

The cost of compliance with this and similar settlement agreements can be substantial. That is true even if OCR or the Justice Department were to change their position. In September 2015, the Seattle Public Schools settled a lawsuit brought by private plaintiffs that required many of the same steps as Washoe. Some news reports suggested the settlement could cost the Seattle district into the high six figures to implement, not counting the $5,000 in compensatory damages and $80,000 in attorneys’ fees Seattle had to pay.

Intentional Fixes
Website and other technology accessibility is an easy area to overlook, only to discover one morning your school district has a significant federal civil rights problem. A complaint could come from the U.S. Department of Justice, the Office for Civil Rights or a private plaintiff, all of which have taken the position in the past that when technology is not accessible to people with disabilities, a school district violates the law. More importantly, when websites and other technologies are not accessible, it can create unnecessary barriers for students and parents that can impede your district’s ability to achieve its educational mission.

No easy fixes exist. The Justice Department has tried for years to refresh its website accessibility rules applicable to school districts, so far without success. And, as important as accessibility is, school districts have to juggle early adoption of new learning tools and consider whether the particular costs of accessibility in particular cases qualifies as an “undue burden” under the law.

What it takes is a commitment districtwide to accessibility, documented in clear policies and procedures and implemented by an identified and accountable team. That commitment should incorporate an objective measure of accessibility, appropriate to the technology in question. For websites, a leading standard is the Web Content Accessibility Guidelines 2.0.

Districts can and should consider accessibility whenever procuring and creating new resources. Also, districts should consider conducting self-checks and audits to confirm that policies and procedures are not just gathering dust.

A superintendent might start the process with the not-at-all-comprehensive check outlined above, followed by a question to the right staff member about what the school district is doing to achieve accessibility.

JOEL BUCKMAN is an attorney in the education law practice at Hogan Lovells in Washington, D.C. E-mail: