web accessibility in education:

1
web accessibility in education

• sen and disability act 2001
• martin sloan LLB (hons)
• post-graduate student
• glasgow graduate school of law

email martin.sloan_at_orange.net
2
web accessibility in education

• what is Web accessibility?
• why and how might the Disability Discrimination
  Act (DDA) apply to web accessibility in
  education?
• what about the Special Educational Needs and
  Disability Act (SENDA)?
• summary and final thoughts

3
what is web accessibility?

• the Internet was originally designed as a
  platform independent, universal system of sharing
  information, irrespective of disability
• the use of proprietary technologies and failure
  to properly implement World Wide Web Consortium
  (W3C) standards has led to these principles being
  undermined

4
disability on the net

• W3C has introduced its Web Accessibility
  Initiative (WAI) and associated guidelines for
  content, browsers and authoring tools
• but awareness has remained low and these are
  rarely followed in practice
• arguable that the DDA and SENDA can provide the
  necessary impetus to increase awareness and
  compliance

5
why consider accessibility?

• potential legal obligations
• commercial benefits
• users with older equipment
• Personal Digital Assistants, wireless devices
• disabled community has a spending power of 33bn
  in the UK alone and would perhaps benefit most
  from new technology
• Source Fairclough, Nick Disability
  Discrimination the October Revolution
• SJ 1999 143(36) 878

6
isnt education exempt from the DDA?

• excluded by virtue of s.19(5)(a)
• grounds of cost to the tax payer
• however the Act still applies to ancillary
  services
• for example student unions, catering
• i.e. the public aspects
• logical to assume this includes institution Web
  sites

7
does the act apply to the web?

• The Act and its Obligations
• Are Web site owners Service Providers?
• Definition of Discrimination
• Duties under the Act

8
the act and its obligations

• Disability Discrimination Act 1995
• a universal, all embracing right of
  non-discrimination against disabled
  peopleapplicable to all providers of goods,
  facilities and services to the general public
• Minister for Social Security and Disabled People,
  
• Hansard, H.C. standing Committee E col. 290

9
the act and its obligations

• part III introduced on October 1 1999
• accompanied by a Code of Practice
• fleshes out the Act
• provides guidance to both service providers and
  disabled people
• aims to avoid legal action
• not an authoritative statement of the law
• but does now mention Web Accessibility

10
who is a service provider?

• service provider is not defined in either the
  Act or the Code
• non-exhaustive examples are given
• includes access to and use of information
  services (s.19(3)(c))
• reflects drafting in a pre-Internet era

11
what if the site is free?

• irrelevant if the service is free or paid for
  (s.19(2) and the Code at para 2.12)
• potentially includes marketing or promotional Web
  sites
• the service is provision of information

12
discrimination defined

• s.20 -
• A provider of services discriminates against a
  disabled person if
• (a) for a reason which relates to the disabled
  persons disability, he treats him less
  favourably than he treats or would treat others
  to whom that reason does not or would not apply
  and
• (b) he cannot show that the treatment in question
  is justified

13
duties under the act

• s.19(1) -
• (a) not to refuse to provide or deliberately not
  provide any service which he provides or is
  prepared to provide to the public
• (b) to comply with any s.21 duty to make
  reasonable adjustments

14
1. refusal to provide a service

• would apply where a service provider has
  deliberately chosen not to make his site
  accessible for whatever reason
• requires knowledge
• very few sites cannot be made accessible
• sums up The Gap approach

15
2. duty to make reasonable adjustments

• s.21 -
• (1) Where a provider of services has a practice,
  policy or procedure which makes it impossible or
  unreasonably difficult for disabled persons to
  make use of a service... it is his duty to take
  such steps as it is reasonableto have to take in
  order to change that practice, policy or
  procedure so that it no longer has that effect.

16
what is a reasonable adjustment?

• is it a reasonable adjustment to rectify an
  inaccessible Web site?
• main opposition is cost and work involved
• question has been considered by the Australian
  Human Rights and Equal Opportunities Commission
  (HREOC)

17
maguire v socog

• involved a visually impaired person and the
  Sydney Organising Committee for the Olympic Games
  (SOCOG)
• brought under the Commonwealth Disability
  Discrimination Act 1992 (Cth DDA)
• alleged that the official Sydney Olympics Web
  site was inaccessible

18
maguire v socog - the issues

• site was alleged to be inaccessible for three
  reasons -
• no ALT attributes on images and image maps
  necessary for navigating
• index of sports pages were inaccessible from the
  schedule page
• tables used for the results were in an
  inaccessible form

19
maguire v socog - the findings

• The commission found that -
• SOCOG was indeed intending to offer a service to
  the public by creating a Web site
• expecting a user to type in the full Uniform
  Resource Locator (URL) for each page expected
  prior knowledge and goes against the way the Web
  works
• SOCOGs claims of unjustifiable hardship were
  unfounded

20
unjustifiable hardship

• SOCOG argued that it would take 368 working days
  and Au2m to rectify
• commission favoured Maguires expert witnesses
  who stated that it would take a small team about
  four weeks
• reference made to W3C WAI guidelines and the
  continuing duty that SOCOG were under to comply
  with these

21
relevance of maguire v socog

• first time the WAI guidelines have been discussed
  in a court of law
• have now effectively become quasi-law in
  Australia
• sets a standard for interpreting accessibility
• demonstrates that undue hardship will be strictly
  interpreted

22
what might the uk courts say?

• common for the UK courts to consider practice in
  other jurisdictions when dealing with new
  technology problems
• Maguire is likely to be held as persuasive
  authority by the UK courts
• continuing obligation to review duties under the
  Code (para 4.9) will heighten WAI guidelines
  importance

23
what does this mean for eduation?

• for the public elements of their online content
  universities will be considered as service
  providers
• e.g. the front page, commercial operations,
  information, prospectus etc
• will have duties under Part III of the Act
• web site should follow the WAI Web Content
  Accessibility Guidelines

24
sen and disability act 2001

• likely to come into force late 2002
• amends the 1995 Act by inserting a new Part IV
  dealing with Education
• will effectively confer similar rights upon
  disabled students as those available against
  service providers

25
what does the SENDA say?

• not to treat disabled students less favourably
  without justification and
• to make reasonable adjustments so that students
  are not at a substantial disadvantage compared to
  those who are not disabled

26
duties under the SENDA

• not to discriminate in the arrangements for
  determining admission
• not to discriminate in the student services it
  provides or offers to provide
• not to discriminate against a disabled student by
  excluding them from the institution either
  permanently or temporarily

27
what is a student service?

• Includes
• Teaching (classes, lectures, seminars, practical
  sessions)
• Curriculum design
• Examinations and assessments
• Informal/optional study skills sessions
• Distance learning
• E-learning
• Learning equipment (handouts, lab equipment)
• Libraries, IT facilities and their resources

28
web pages

• if they provide information for students in
  relation to education they will be a student
  service
• e.g. faculty homepage with course information
• if they do not then they will generally be
  ancillary services and covered by Part III of the
  Act (Goods and Services)
• e.g. careers page or student union homepage

29
web pages what is required?

• interpretation of duties is likely to follow that
  in Part III
• will need to be provided in an accessible form
• W3C guidelines
• Experience suggests Level 1 will be the minimum
  legal requirement
• include ALT attributes on images, refrain from
  using frames etc

30
e-learning environments (1)

• e-learning and distance learning are specifically
  mentioned as student services
• similar principles apply to e-learning as to Web
  sites
• need to ensure that materials and resources are
  provided in an accessible form

31
e-learning environments (2)

• what does this mean?
• Provide class handouts online in an accessible
  form (i.e. html)
• Use accessible versions of off the shelf
  products like Blackboard and WebCT
• Provide online resources in an accessible form
• e.g. captioned video/transcripts, documents in
  different formats
• Use plain text in email

32
do these duties always apply?

• generally, yes
• however there are some justifications for
  discriminating
• Adjustments must be reasonable
• Necessary to maintain academic standards
• Other reasons as prescribed (none as of yet)

33
reasonable adjustments (1)

• term reasonable is undefined
• however, inference is likely to be drawn from the
  interpretation under Part III of the Act and/or
  Maguire v SOCOG
• but providing course information in html on Web
  is likely to be a more reasonable adjustment than
  providing the information in Braille

34
reasonable adjustments (2)

• other factors in determining reasonableness
• is it reasonable for that course to make it
  accessible?
• is it reasonable and important to expect a
  particular element to be accessible?
• is it reasonable to expect students to be
  accessing material outside a controlled
  environment?

35
academic standards

• unlikely to be relevant difficult to justify
  not making web pages and/or e-learning accessible
  under this ground
• might be used where an external body sets the
  standards for a course
• e.g. the General Medical Council, Law Society of
  Scotland etc

36
implications of the sen and disability act

• will be likely to mean that educational
  institutions will have to provide accessible web
  sites and teaching resources
• online projects and materials will have to be
  presented/made available in an accessible form
• will also have to provide suitable ICT

37
summary

• duty to make reasonable adjustments comes into
  effect from September 2002
• ultimate responsibility lies with the governing
  body of the institution
• but individuals may be indemnifying the
  institution in the case of legal action
• duties are anticipatory should not wait until
  the issue arises before implementing accessibility

38
final thoughts

• very strong case for arguing that an inaccessible
  Web site breaches a service providers duty under
  the DDA
• likely that a test case will be brought in the
  near future as public awareness increases
• successful defence unlikely
• will set the standard for interpretation of the
  new Education provisions

39
further information (1)

• Sloan, Martin Web Accessibility and the DDA
  2001(2) Journal of Information, Law and
  Technology
• http//elj.warwick.ac.uk/jilt/01-2/sloan.html
• Sloan, Martin Institutional Web sites and
  accessibility by the disabled TechDIS Website
  http//www.techdis.ac.uk/resources/msloan01.html
  and 2002 Communications Law 7(2) 49
• Sloan, Martin E-Learning and Accessibility
  TechDIS Website http//www.techdis.ac.uk/resources
  /msloan02/html

40
Further information (2)

• TechDIS
• http//www.techdis.ac.uk
• RNIB See it Right scheme
• http//www.rnib.org.uk/digital/siraccess/
• W3C Web Accessibility Initiative
• http//www.w3.org/wai/
• Digital Media Access Group (DMAG)
• http//www.dmag.org.uk
• Martin Sloan
• email martin.sloan_at_orange.net