Web Accessibility: OCR is Back, Is Your Website Ready?

Franczek P.C.
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Franczek Radelet P.C.

As we mentioned in our article last month, the November 2018 version of the U.S. Department of Education Office for Civil Rights (OCR) Case Processing Manual (CPM), deleted a section that was added in March 2018 that allowed OCR to dismiss burdensome complaints by one requester. We warned that schools should be ready for a return of web access complaints, which were the subject of dismissals under the revised CPM this spring. Is your school website ready if it is the next target of a web accessibility complaint with OCR?

For those unfamiliar with the story behind these changes, a Michigan-based special education activist, Marcie Lipsitt, filed thousands of OCR complaints against school districts and universities across the country over the past few years, claiming that school websites were inaccessible. OCR enforces the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), which prohibit public entities from discriminating against individuals based on disability, including in the operation of their websites. As one source reported, each month OCR would open as many as 150 new investigations based on Lipsitt’s complaints. When OCR revised its CPM in March 2018, however, it added a section that allowed OCR to dismiss complaints that were a “continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients.” Based on the new guideline, OCR began dismissing Lipsitt’s complaints and even quietly reworked old agreements reached before the March revision. A lawsuit followed. Now OCR has reversed course on the change, meaning schools should expect to see these complaints popping up again.

Assessing the accessibility of a school’s website can seem like a daunting task, with some commentators questioning if full accessibility is even possible. What’s clear is that it is certainly less burdensome to evaluate and address accessibility issues on a school website if the school undertakes the process on its own, rather than waiting for OCR involvement. OCR typically works with a school district to fix its website using its Rapid Resolution Process (RRP), meaning that OCR dismisses the complaint without making a finding of noncompliance once it is comfortable that any website issues have been fixed. The RRP process can look a lot like typical “monitoring” under a resolution agreement with OCR, however, and most schools who have been through that process know it can involve a significant amount of meetings and back and forth with OCR to get things right. Although the old adage “an ounce of prevention is worth a pound of cure” is often relevant in the school context, it is particularly true in this area.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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