Should TEACH Act language appear in the Higher Education Act? NCDAE and WebAIM weigh in

NCDAE and WebAIM joined together on this position statement

Since their inception, both WebAIM and the National Center on Disability and Access to Education have worked together with higher education on the issue of web accessibility.  We believe that while accessibility is not easy to do it must be accomplished if individuals with disabilities are to participate fully in civil society.

Recently, important conversations of digital accessibility have emerged in U.S. higher education.  They were prompted by the inclusion of language from the bipartisian Technology, Education, and Accessibility in College and Higher Education (TEACH) Act into the proposed reauthorization of the Higher Education Act; known as the Higher Education Affordability Act (HEAA), see Section 931. As a result, position statements made by the American Council on Education and EDUCAUSE, along with a legal analysis provided for 6 education associations against the inclusion of TEACH language into HEAA, ignited a firestorm. This debate has been seen in news articles, commentary, blogs from groups, blogs from individuals, podcasts, and alternative position statements.

Both the National Center on Disability and Access to Education (NCDAE) and WebAIM would like to share our thoughts on this complex subject. Nobody at NCDAE or WebAIM is offering a legal opinion; rather, our thoughts come from working with institutions of higher education on matters of accessibility for 15 years.

TEACH Act, a primer (Or skip to What’s the controversy?)

Note: This TEACH Act should not be confused with a previous piece of legislation using the same acronym that deals with the use of copyrighted materials in distance education.

The current Technology, Education, and Accessibility in College and Higher Education (TEACH) Act had it’s origins in the previous Higher Education Opportunity Act of 2008, which established the Accessible Instructional Materials (AIM) Commission. The AIM Commission detailed recommendations to Congress and to the Secretary of Education in December of 2011.  One such recommendation influenced the creation of the TEACH Act. This proposal was introduced to the House by Representative Tom Petri (R-Wisconsin) in November of 2013 and introduced to the Senate by Senators Elizabeth Warren (D-Mass) and Orrin Hatch (R-Utah).  The bill had extraordinary bipartisan support, including 52 cosponsors of the bill across party lines. It was referred to committee February of 2014 and has yet to move out for a vote.

Because of the AIM Commission Recommendations, authors of the TEACH Act were able to respond to some issues plaguing accessibility in higher education. One issue is the fact that accessibility guidelines are not unified as campuses try to make content accessible (i.e., some conforming to Section 508, others to State guidelines or standards, others to differing versions of WCAG, and others who blend accessibility guidelines uniquely for their campus). This creates enormous headaches for vendors and for campuses seeking conformance to their own guidelines in a purchasing context; if you cannot purchase digital materials that follow your own technical standard it will be nearly impossible to reach your accessibility goals. Another issue is the enormous liability perceived by many in higher education for anyone who acknowledges that they need to work on digital accessibility.

The TEACH Act proposal provides a mechanism for unified accessibility guidelines to be created in harmony with national and international standards.  It authorizes the Access Board to be responsible for the work to establish and keep guidelines current (i.e., initial guidelines to be completed in 18 months, as well as reviews to be completed every 3 years). Those institutions that wish to embrace TEACH guidelines can do so, yet there is nothing in the Act that would compel them to do so. Since institutions are not required to conform to TEACH, they can continue to use their own set of guidelines if they wish. However, for those that choose to become a TEACH Act institution, they must implement the guidelines into every aspect of the campus digital architecture.

The voluntary nature of embracing TEACH comes from this language:

“Nothing in this Act shall be construed to require an institution of higher education to use electronic instructional materials or related information technologies that conform to the accessibility guidelines described in section 2 if the institution of higher education provides such materials or technologies, or an accommodation or modification, that would allow covered blind individuals and covered individuals with a disability to receive the educational benefits of such materials or technologies–

(1) in an equally effective and equally integrated manner as non-disabled or non-blind students; and

(2) with substantially equivalent ease of use of such materials or technologies.

Thus, an institution has the choice to embrace TEACH Act guidelines or to continue to do that which they are doing now to assure conformance to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.  One incentive for an institution to embrace the TEACH Act is the Safe-Harbor provision of the Act.  It protects those institutions that embrace TEACH by considering that they in fact conform to the non-discrimination provisions of Section 504 of the Rehabilitation Act and also the Americans and Disabilities Act where digital access is concerned.

So, in summary, the TEACH Act proposes to establish clarity of guidelines, provide market-driven solutions to challenges in accessibility, provide legal protections for those institutions who embrace TEACH, all the while being entirely voluntary for the higher education community.

What’s the controversy?

Those opposed to TEACH in HEAA generally cite at least one of 5 issues:

1. This program exerts increased federal regulation that will overburden higher education
2. This program will result in the demise of technology innovation on our nation’s campuses
3. There is not a reason for TEACH Act provisions since we have existing laws that are sufficient to address the issues
4. The language of TEACH Act creates a different legal standard for institutions who choose to not embrace the guidelines
5. The Access Board is ill equipped to do the work

Federal Regulation

First and foremost, many in higher education shiver at the thought that increasing issues of compliance are put into reauthorizations of the Higher Education Act. Opponents to adding accessibility regulation into the HEAA indicate it is becoming a junkyard of federal oversight, where items are simply tossed in because they can be. Proponents to regulation being included for digital access indicate that this is a proper use of Federal oversight. The thinking is that if those in higher education did not want to be regulated on this issue, they have had nearly 20 years to get in front of it in a way that regulation is not needed. This is especially important considering the topic; that failure to provide access to electronic materials violates protections against discrimination for persons with disabilities and is an issue of civil rights. Also, proponents of TEACH language appearing in the latest HEAA draft indicate that it would make sense that something that came from the previous reauthorization of the Higher Education Act (i.e., the work of the AIM Commission) would return to inform a subsequent reauthorization of the Act.

Demise of technology innovation

Opponents to the addition of TEACH language in the HEAA indicate that when an institution chooses to adopt TEACH guidelines, this will be the end of technology innovation in higher education; that is because institutional technologies would need to conform to the guidelines. One example that has been seen in posts is the use of 3-D technologies in biology textbooks. Opponents indicate that the campus would be unable to use this innovation. Proponents see it differently. While they concede that in the short term some technologies would not be used as developed, they believe innovation overall is enhanced as entrepreneurs, visionaries, and vendors solve problems. This could drive greater technology innovation than ever before. The market-driven approach to innovation could not be created whatsoever if there were not a large playing field (i.e., a large swath of higher education entities) as potential new customers for these innovations that address electronic access. Proponents cite the rich innovations that have already been developed by individuals or groups whose focus is to address accessibility.  They express confidence that technology innovation will continue to enrich higher education in ways we can’t yet know. It is important to note that the language of the proposal allows for accommodations or modification as long as they are “equally effective . . . equally integrated . . .[and have] substantially equivalent ease of use”.

Existing laws are sufficient

Opponents to this action indicate that we have existing laws that are sufficient for today’s needs (i.e., Sections 504 and ADA).  They do not see a reason to create additional burdens for any institution. In cases where discrimination may be present, opponents to adding TEACH language into HEAA indicate that we have processes in place to address it (i.e., through OCR complaints, and the courts). Proponents consider the failure of higher education to become accessible over time to be one reason this action is needed now.  They cite the uptick in litigation and the failure of judgments to broadly influence the higher education system as another reason something new is needed. It is true that many institutions wait until they receive requests, or worse, until there is a formal complaint lodged before action is taken.  This creates an untenable position for individuals with disabilities who are always put in a position to have to request or complain, and usually put in a position to wait for that which they need. This creates lags in their educational experiences that affect outcomes.

Creates a different legal standard

If an institution chooses not to embrace TEACH guidelines, they must then provide materials and technologies (or accommodations and modifications), in an “equally effective and equally integrated manner as non-disabled or non-blind students; and with substantially equivalent ease of use of such materials or technologies.”  The current legal standard of Sections 504 and the ADA reference the use of reasonable accommodations or auxiliary aides and services that result in “effective communication” provided in a “timely” manner.  Opponents to adding TEACH language into HEAA believe that this could fundamentally shift the legal standard. We could not find an opinion from proponents on this specific point so it is not known if they agree or not.  There is discussion, however, that important differences in the language used in TEACH are the result of the need for institutions to be proactive, rather than reactive in their approach to accessibility.

The Access Board is ill equipped

Those opposed to adding TEACH language into the reauthorized HEAA cite that they are uncomfortable that the Access Board was named as the responsible federal agency.  They do not have confidence that the Access Board could complete the work as envisioned in TEACH; to create initial standards within 18 months and engage in cycles of review each 3 years. There is a reason for this concern—A refresh of Section 508 standards began in 2006 and has not yet been completed. Proponents feel they are the best equipped to address harmonization of the guidelines, and feel that if the Access Board is given resources to perform a statutory duty on a specific schedule, that they could accomplish the task.

Our position

Let us begin by stating that those in higher education want the very best outcomes for all their students. This is why they have gone into the field.  While we have read some harsh criticisms of individuals in the postsecondary community, NCDAE AND WebAIM respect the challenging work that goes into enterprise-wide web accessibility, and we acknowledge that this is often times a bumpy journey.

With that said, we have also heard many reasons why institutions choose not to tackle accessibility in a proactive manner.  Sometimes it is due to competing institutional priorities and shrinking budgets.  Other times accessibility is put off because there is a lack of accessible products.  (Moreover we have heard vendors remark that accessibility is not part of their development cycle because it’s not a feature request from their customers.) We have also heard institutional administrators quietly craft a strategy of waiting until there is a complaint sufficient to take action on accessibility writ large.  Taken together, there is a broad segment of the higher education community who has decided, consciously or not, to leave the important work of accessibility as an after-the-fact accommodation of a student’s request.  The model of post-hoc accommodations in the digital world could never be the long-term solution, it creates a false sense of protection for institutions that are under increasing legal peril, and it continues to plague those with disabilities today.

It is our opinion that the HEAA is an appropriate vehicle to place a regulatory issue of this importance. It would elevate the urgency to make intentional decisions on accessibility for each institution.  And, let us not forget, it is voluntary.

Market driven approaches were a brilliant strategy that helped the federal government as it implemented it’s own procurement policies under Section 508. If the lack of accessible products at the time, or the fear that it would stifle all innovation had been the reason not to move forward, we would not be where we are now; we currently have many accessible products and the attention of federal vendors. Bringing together a single harmonized standard that vendors would use in higher education would likewise create important innovation and product delivery. All journeys begin with a single step. We believe that innovation will not suffer, rather it will be enhanced as new energies go into thoughts about access for all.

We cannot comment on whether or not the TEACH language provides a different legal standard. While the spirit of it does not seem to do so, legal eyes are the best to weigh in on the issue.

While placing this work into the hands of the Access Board worries some, it is our belief that given appropriate resources and statutory authority, they are the best fit for the work.  We do think that 18 months to promulgate the guidelines may be too aggressive. It is more likely that the committee they will appoint would complete draft guidelines in 18 months, and then the work to promulgate rule would take another 18-24 months (or more if the Section 508 work is a peek into a typical process).

Finally, we see a gaping hole in the language inserted into the HEAA. When the ADA was passed into law, massive changes reverberated throughout our society not unlike that which will happen in higher education if this goes into effect.  The establishment of transition planning was a brilliant idea that should be considered here.  At the time, if you were a business trying to conform to the ADA and you were sticking to reasonable timelines of your own posted transition plan, you were held harmless for that period.  Some institutions of higher education may need the option of creating a transition period as they adopt the TEACH guidelines.  Of course all other existing laws would be in force (i.e., Section 504 and ADA), but the slow and arduous work will have begun; the work to ensure that accessibility of digital materials is in place for all in higher education.