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Address Accessibility in Your EIT Member Contracts

Melanie Bennett, Esq.
October 2020
How to move toward compliance with federal disability law requirements

Your college or university might violate federal disability laws if it contracts with vendors whose electronic information technology (EIT) products don’t comply with those laws. Since 2010, the departments of Education and Justice have stated in guidance that it is not enough for higher education products to be accessible to people with disabilities. Rather, your institution also must ensure that the EIT products vendors provide meet the same accessibility requirements.

For example, when one vendor’s learning management system didn’t enable blind students to access class readings, the National Federation of the Blind (NFB) sued the institution. NFB alleged that the system’s lack of compatibility with accessibility software, such as screen readers, violated Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Rehab Act). The institution and NFB reached an agreement that held the institution responsible for providing an accessible learning management system and revising procurement procedures.

Federal EIT Accessibility Guidance

In 2010, the departments of Justice and Education released a “Dear Colleague” letter (DCL) instructing institutions not to use inaccessible e-readers. The DCL and related frequently asked questions clarified that students with disabilities must receive equal access to all EIT under Titles II and III of the ADA and Rehab Act.

Even with this guidance, significant confusion remains over appropriate technology accessibility standards. Recent litigation and Office for Civil Rights enforcement activity indicates that schools and institutions should follow the Web Content Accessibility Guidelines 2.1 (WCAG 2.1) Levels A and AA. Note that conformance with guidelines is broken into three levels: Level A (lowest), AA, and AAA (highest).

Contracts With EIT Vendors

In addition to institutions’ duty to ensure their vendors deliver accessible EIT, vendors may be directly responsible for providing materials that conform to federal accessibility standards. In 2015, the Justice Department reached a settlement agreement with EdX, a private, nonprofit educational vendor of massive open online courses (MOOCs), stating that the company is a public accommodation subject to Title III of the ADA.

Section 508 of the Rehab Act provides added guidance for institutions contracting with EIT vendors. It requires all federal contractors to complete a voluntary product accessibility template (VPAT) identifying the level of support products have for each of the Section 508 criteria. Section 508 and the revised VPAT explicitly incorporate standards from WCAG 2.1 Levels A and AA.

Consider taking the following actions before signing a vendor contract:

Require a Completed VPAT

Although most institutional contracts do not fall under Section 508, VPATs are recommended for ensuring vendor accessibility. For any criteria not fully met, vendors should state in the VPAT why and when they intend to achieve full support.

Understand Section 508 Criteria

Ensure vendors note in the VPAT any Section 508 criteria that are not applicable to the product.

Test the Product

Assign a trained employee — preferably someone in your institution’s technology accessibility office — to try the vendor’s product and ensure the VPAT is accurate.

Review Vendor Contracts

Work with legal counsel to ensure vendor contracts have adequate accessibility requirements. If the vendor lacks full conformance in any areas of the VPAT, consider whether to continue with this vendor. An item without full accessibility may look like this:

Criteria

Conformance Level

Remarks and Explanations

1.4.1 Use of Color (Level A)

Web: Does not support

Web: Links are not visually evident without color vision.

Consider this as you review contracts:

  • Work with legal counsel (if you will continue working with a non-conforming vendor) to address the incomplete conformance compliance in the contract. Note when the vendor intends to achieve full conformance by providing an “accessible by” date. Include penalties for failing to meet that deadline and language stating that your institution won’t renew the contract if the vendor fails to meet requirements.
  • Include indemnification language. Contractual indemnity clauses identify which party is responsible if a claim occurs. Appropriate language may vary by jurisdiction.
  • Assign someone to ensure all third-party contracts include the recommended language. This person usually works in the procurement office. Institutions with decentralized contractual procedures may need to create a more centralized process or train someone in each department to review contracts for the accessibility and indemnity provisions.
  • Work with institutions and groups. If you have trouble getting a vendor to comply, work with similar institutions and refuse to use the company unless it provides accessibility.
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