Address Accessibility in Your EIT Vendor Contracts

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

For example, when one vendor’s learning management system (LMS) didn’t enable blind students to access class readings, the National Federation of the Blind (NFB) sued the institution. NFB alleged 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 LMS and revising procurement procedures.

Federal EIT Accessibility Guidance

In 2010, the Justice and Education departments 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 products under the Rehab Act and Titles II and III of the ADA.

Litigation and Department of Education (ED) Office for Civil Rights enforcement activities indicate schools and institutions should follow Web Content Accessibility Guidelines 2.1 (WCAG 2.1),  Level AA. Note that conformance with guidelines is broken into three levels: Level A (lowest), AA, and AAA (highest).

In May 2022 ED announced it intends to amend the regulations implementing Section 504 of the Rehab Act. It’s possible these updated regulations could impact EIT accessibility recommendations. As of November 2023, the department hadn’t released proposed changes to the regulations.

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 Department of Justice reached a settlement agreement with EdX, a private, nonprofit educational vendor of massive open online courses (MOOCs), stating 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 these actions before signing a vendor contract:

Require a Completed VPAT

Although most institutional contracts don’t fall under Section 508, VPATs help ensure 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 don’t apply 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 doesn’t fully conform with the VPAT, consider whether to continue with the vendor. An item without full accessibility may look like this:

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; do this by providing an “accessible by” date. Include penalties for failing to meet that deadline and language stating 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 their accessibility and indemnity provisions.

• Work with institutions and groups. If you have trouble getting a vendor to comply, work with similar institutions and don’t use the company unless it provides accessibility.

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