This year, The Americans with Disabilities Act (ADA) turns 30 years old. When it was born, its aim was to eliminate disability discrimination in American public life. And its existence is arguably responsible for the disability support departments our customers staff today.
However, Forbes magazine described the ADA as ‘the oldest “new law” in American legal history’. What they mean is that institutions, businesses and other facilities are still attempting to catch up with the ADA, acting as if accessibility requirements are ‘new’.
Though disability support departments are better placed than most to deliver on the requirements of the ADA, are there still ‘new’ gaps that institutions fall into?
* A caveat…
We’re no legal experts. We’re not qualified to talk in too much granular detail about the law. But what we do know is the central importance of ADA compliance to disability services, and the challenges that institutions still face in staying on the right side of it.
And the issue we speak about most often with our customers is, of course, note taking.
Note taking and the ADA
Note taking support is a great example of a compliance issue facing support staff. So let’s take a look at it.
Using AHEAD’s legal database (AHEAD members can access it through the ‘Professional Resources’ area), we’ve found a few decisions from the Office of Civil Rights (OCR) that have had a direct impact on the application of note taking support, and have broader relevance for those providing note taking services.
The first is a decision made in 2015 (we’ve redacted names of institutions involved).
A lack of flexibility
The college involved faced a complaint on behalf of a student that was approved for peer note taking. This student had been promised a set of notes from a volunteer note taker for each of their classes. However, for one class, this wasn’t delivered.
Despite the institution’s offer of alternative accommodations, such as tape recording in class, the student’s complaint was upheld. Why? Because the institution had specifically agreed to provide a note taker, and they didn’t take steps to ensure one was available.
This effectively means that the college hadn’t held up their end of the bargain to the student.
Case #2: No backups
A similar case, also from 2015, highlights the need for institutions to be clear about their policies for note taking accommodation.
A student, facing the same gaps in services through absentee note takers, had their complaint resolved through the OCR, causing the institution to adjust its procedures.
The problem here was that the institution didn’t have a failsafe procedure for when note takers weren’t available.
Contrast this case with a decision letter sent to another college 5 years previous.
Case #3: Goldilocks
The background to this complaint is pretty similar to the case above. A student makes a complaint through OCR because they, among other assertions, hadn’t received notes as per the approved note taking accommodation.
The difference with this example, however, is that the university had multiple failsafes in place for when peer note takers were unavailable. Audio recording, carbonless notebooks, professor notes… there were enough alternatives to satisfy the OCR that the student hadn’t been put at a disadvantage.
What can we learn from these cases?
Clearly, having a robust procedure in place that accounts for availability issues is hugely important for compliance.
But a common theme from these cases is a simple reality – peer note takers don’t always turn up to class.
Each of these institutions was put in a vulnerable position due to its reliance on 3rd parties for the delivery of note taking support. The colleges that accounted for this stayed on the right side of the OCR decisions, but clearly the absence of note takers was enough for students to pursue complaints in the first place.
Changing tack: web accessibility
An issue that has been high on the agenda in recent years – and is sure to be on the minds of those working in higher education now – is web accessibility.
In 2017, there were 814 lawsuits relating to web accessibility. The following year, this number had risen to over 2,200.
Clearly, web accessibility is now at the frontline of ADA compliance. And though higher ed institutions might be reasonably well prepared to face scrutiny of their online systems, some will inevitably come up short.
And with colleges rapidly moving online in response to Covid-19, could there be problems down the road for compliance with web accessibility?
This may be something many institutions will be anxious about now that their online learning platforms are so heavily depended upon.
Watch our free ‘note taking and ADA’ webinar
Last month we were joined by a panel with first-hand knowledge of ADA and note taking.
Tim McHenry from the University of Montana knows what it’s like to be on the receiving end of a damaging ADA lawsuit. But he also knows how to respond and adjust procedures and resources to become a leading light for accessibility. He shared his experiences with us.
Joining him was Allison Butler, a Director & ADA Compliance Officer. She brought her expertise and knowledge of the ADA to the table.
If you missed the webinar, now’s your chance to catch up! Watch the webinar to get answers for questions like…
- What do institutions need to consider about compliance when they assess the role of note taking accommodations?
- When working remotely, how can we ensure the compliance of online learning?
- Are the legal issues surrounding peer notes similar to those surrounding AT?
Follow the link below to access the recording!