1. June 12 2002web accessibility in education1 web accessibility in education: sen and disability act 2001 martin sloan LLB (hons) post-graduate student glasgow graduate school of law email: martin.sloan@orange.net

2. June 12 2002web accessibility in education2 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. June 12 2002web accessibility in education3 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. June 12 2002web accessibility in education4 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. June 12 2002web accessibility in education5 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. June 12 2002web accessibility in education6 isn’t 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. June 12 2002web accessibility in education7 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. June 12 2002web accessibility in education8 the act and its obligations Disability Discrimination Act 1995: ‘a universal, all embracing right of non- discrimination against disabled people…applicable 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. June 12 2002web accessibility in education9 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. June 12 2002web accessibility in education10 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. June 12 2002web accessibility in education11 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. June 12 2002web accessibility in education12 discrimination defined s.20 - A provider of services discriminates against a disabled person if (a) for a reason which relates to the disabled person’s 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. June 12 2002web accessibility in education13 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. June 12 2002web accessibility in education14 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. June 12 2002web accessibility in education15 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 reasonable…to have to take in order to change that practice, policy or procedure so that it no longer has that effect.

16. June 12 2002web accessibility in education16 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. June 12 2002web accessibility in education17 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. June 12 2002web accessibility in education18 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. June 12 2002web accessibility in education19 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 SOCOG’s claims of unjustifiable hardship were unfounded

20. June 12 2002web accessibility in education20 unjustifiable hardship SOCOG argued that it would take 368 working days and Au$2m to rectify commission favoured Maguire’s 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. June 12 2002web accessibility in education21 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. June 12 2002web accessibility in education22 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. June 12 2002web accessibility in education23 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. June 12 2002web accessibility in education24 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. June 12 2002web accessibility in education25 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. June 12 2002web accessibility in education26 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. June 12 2002web accessibility in education27 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. June 12 2002web accessibility in education28 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. June 12 2002web accessibility in education29 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. June 12 2002web accessibility in education30 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. June 12 2002web accessibility in education31 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. June 12 2002web accessibility in education32 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. June 12 2002web accessibility in education33 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. June 12 2002web accessibility in education34 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. June 12 2002web accessibility in education35 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. June 12 2002web accessibility in education36 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. June 12 2002web accessibility in education37 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. June 12 2002web accessibility in education38 final thoughts very strong case for arguing that an inaccessible Web site breaches a service provider’s 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. June 12 2002web accessibility in education39 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 http://www.techdis.ac.uk/resources/msloan01.html Sloan, Martin ‘E-Learning and Accessibility’ TechDIS Website http://www.techdis.ac.uk/resources/msloan02/html http://www.techdis.ac.uk/resources/msloan02/html

40. June 12 2002web accessibility in education40 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@orange.netmartin.sloan@orange.net