Summary: We all have attachments to our alma maters, be they our undergraduate and/or our law school program(s). This article explores just what are the legal obligations of a university or college under the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, and their implementing regulations with respect to whether the homepage of the school must be accessible to persons with disabilities. In short, and for varying reasons, the college or university would be wise to make its homepage accessible to persons with disabilities.
Consider: A prospective student with a visual impairment tries to access the homepage of your college or university. He uses a screen reader, and the homepage is inaccessible to the screen reader. Does that violate the disability rights of the prospective student?
The answer to the question depends upon whether your school is private or public and upon whether it takes federal funds. A private university or college that does not take federal funds is subject to Title III of the Americans with Disabilities Act ("ADA").1 A private university that does take federal funds is also subject to the Rehabilitation Act of 1973.2 Public colleges and universities are subject to Title II of ADA,3 and because they invariably take federal funds, they are subject to the Rehabilitation Act of 1973 as well.4
Let’s first look at the private university that does not take federal funds. It is subject to Title III of ADA, but is its homepage subject to Title III of ADA? In other words, does Title III of the ADA, which applies to places of public accommodations,5 apply to physical spaces only or also to electronic space? Whether such a college or university may lawfully discriminate against the visually impaired with respect to access to its Internet site depends on the jurisdiction in which the school is located. Currently there are three approaches to this question. First, there is the view that the Internet is simply not a place of public accommodation as set forth in Access Now, Inc. v. Southwest Airlines, Co.6 In Access Now, the Southern District of Florida held that Southwest Airlines did not have to make its Internet site accessible to persons with disabilities because Title III of the ADA restricted its coverage to physical places.7 Second, a jurisdiction, such as the Seventh Circuit in Doe v. Mutual of Omaha Insurance Company,8 might take the view that the Internet is a place of public accommodation. In that case, Justice Posner relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England,9 said:
The core meaning of this provision [Title III of the ADA’s non-discrimination provision], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web Site, or other facility (whether in physical space or in electronic space) [citation to Carparts omitted] that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.10 (emphasis added)
Finally, a jurisdiction might follow the "gateway theory." In National Federation of the Blind v. Target Corp.,11 the Northern District of California was faced with a motion to dismiss by Target.12 The National Federation of the Blind had sued Target because the blind could not access Target’s web site as it had not been encoded for the blind to do so.13 In denying the motion to dismiss, the Northern District of California held that Target’s Internet site was subject to Title III of ADA14 because it was heavily integrated with Target’s brick and mortar stores and operated in many ways as a gateway to the stores. If your college or university sits in a jurisdiction that follows the "gateway theory," its homepage would probably be subject to Title III of ADA in that the homepage is certainly operating as a gateway to the school and it is also heavily integrated with the college or university.
Many private universities take federal funds. As such, they are subject to the Rehabilitation Act of 1973 (the precursor to the Americans with Disabilities Act of 1990), and it prohibits discrimination against persons with disabilities with respect to the programs and activities of an entity taking federal funding.15 The question that necessarily follows is, What is a program or activity under the Rehabilitation Act of 1973? The federal regulations make clear, with respect to colleges, universities or other postsecondary institutions, that the term "program and activity" includes all of the operations of that college, university, or postsecondary institution.16 Thus, a strong argument can be made that the website of a college or university must be accessible to the visually impaired if it is to comply with the Rehabilitation Act of 1973 and with its implementing regulations.
Finally, what if your college or university is a public school? Under Title II of ADA, the programs and activities of the public entity must be accessible to the person with a disability17 without regard to whether a physical facility is or is not accessible. (Facilities built before January 26, 1992 need not be accessible.) The question becomes, What is a program or activity under Title II of ADA. In trying to answer that question, the following might be useful:
1. Ascertain the public entity’s own view of its program by reviewing its self-evaluation plan, an assessment of the programs of a Title II entityand a review of their accessibility.
2. Consider commonalities in the delivery of the program or service: Programs are often built around a common set of services to a defined set of clientele;
3. Consider the common usage of the term "program" to the people in the governmental entity; what the particular program is may be fairly obvious to them; and
4. Consult legal counsel to help determine what constitutes a "program."18
Arguably, the homepage of a college or university is part of its admissions program, and the admissions program must be accessible to the visually impaired. Further, public entities invariably take federal funds. Thus, the public entity also has to deal with the Rehabilitation Act of 1973, which, as mentioned above, requires institutions of higher education that take federal funds to have all of their operations accessible to persons with disabilities.19
Title II of ADA and the regulations implementing the Rehabilitation Act create an interesting issue. It is possible for the Rehabilitation Act of 1973 to be broader than the requirements under Title II of ADA. As mentioned above, the Rehabilitation Act of 1973 requires that all of the operations of a place of higher education be accessible to the person with a disability20 whereas Title II of ADA requires accessibility only to the "programs and activities" of the public entity.21 Thus, it is theoretically possible for a program or activity to be defined in such a way that it would be accessible to a person with a disability but the particular operation of the school would not be. This presents an interesting conundrum in that the Americans with Disabilities Act and the Rehabilitation Act of 1973 are often construed together.22 In any event, if the plaintiff with a visual impairment is suing a public university or college for discrimination over access to a homepage, that plaintiff may want to consider adding a claim under the Rehabilitation Act of 1973 and its implementing regulations because it appears to go further than the Americans With Disabilities Act of 1990.
In short, whether it governed by Title III of the Americans with Disabilities Act, or Title II and/or The Rehabilitation Act of 1973, your college or university would be wise to make its homepage accessible to the visually impaired in order to comply with the laws and regulations discussed above. Finally, creating such accessibility is probably not as hard as it sounds in that what is needed is the ability to allow a screen reader to use the site through a combination of site layout and additional text pages, all of which, if this author’s experience is any guide, might not nearly be as costly as you think.
1 See 42 U.S.C. § 12181(7)(J) (2005).
2 29 U.S.C. § 794(a) (2005).
3 42 U.S.C. § 12132 (2005).
4 29 U.S.C. § 794(a).
5 See 42 U.S.C. §12181(7).
6 Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002).
7 Id. at 1319-1321.
8 Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999).
9 Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, 37 F.3d 12, 19 (1st Cir. 1994).
10 Doe, 179 F.3d at 559.
11 National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006), Class defined at __ F. Supp. 2d __, 2007 WL 1223755 (N.D. Cal. April 25, 2007).
12 Id. at 950.
13 Id. at 949-50
14 See Id. at 954-55, 950.
15 29 U.S.C. § 794(a).
16 29 U.S.C. § 794(b)(2)(A) (2005).
17 See 28 C.F.R. § 35.130 (2006).
18 See William D. Goren, Understanding the Americans With Disabilities Act, 2nd Ed., at 55 (American Bar Association 2006).
19 29 U.S.C. § 794(b)(2)(A).
21 See 42 U.S.C. § 12132; See also 28 C.F.R. §§ 35.104, 35.130 (2006).
22 See, eg. 29 U.S.C. § 794(d) (2005) stating that the provisions of the Rehabilitation Act dealing with employment discrimination against persons with disabilities are meant to be interpreted in the same way as Title I of the Americans With Disabilities Act, which deals with employment discrimination against persons with disabilities.
William D. Goren (www.william goren.com) is currently the Paralegal Program Coordinator as well as an Instructor at South Suburban College in South Holland, Illinois. He is a member of the DuPage County Bar Association and was a member of the DuPage County Bar Association publication board for seven years. When he is not engaged in his academic duties, he presents, publishes and consults on the Americans with Disabilities Act and on the Rehabilitation Act of 1973. Mr. Goren is licensed in both Illinois and Texas. He received his bachelor’s degree from Vassar College; his J.D. from University of San Diego; and his LL.M. in health law from DePaul University. The views expressed herein are his own and are not meant to represent the views of South Suburban College.