.Edu dilema: the web accessibility challenge facing public and private universities.

Clapper, Danial L. ; Burke, Debra D.

ABSTRACT

In the early days of the World Wide Web a popular metaphor used to capture the essence of the web was the frontier days of the American "Wild, Wild West." It was a wide-open, self-policing, unregulated frontier and newcomers had best beware! As the Web has become an increasingly accepted part of our world, the frontier metaphor use has noticeably declined. But the de-centralized technology architecture, which was behind this metaphor, is still as true today as it was in the early days of the web. And perhaps nowhere has that decentralized model been as enthusiastically embraced as in the university setting.

From the small team of professional developers working in the admissions office to create online applications, to the part-time student workers creating departmental web pages, to the full-time and adjunct faculty putting an increasing amount of course related material and content up on the web, widely disparate groups and individuals have created a phenomenal number of web pages, often without any awareness of other groups on campus, minimal to no oversight by university technology administration or legal counsel, and frequently with little or no awareness of legal/ethical concerns such as the need to make their web pages available to people with disabilities.

This paper will propose that, although the web has become a fundamental, vital tool for universities, some of the fundamental aspects of the web--combined with the history of how the web has been adopted on campuses--results in a particularly daunting barrier to verifying and guaranteeing that all web pages used at the university are in compliance with the law and accessible to populations with disabilities.

INTRODUCTION

The Americans with Disabilities Act ("ADA") of 1990 was Congress' effort to eliminate discrimination against individuals with disabilities. The intent of the legislation was to insure that people with disabilities could be active and productive members of society, undeterred by artificial barriers. At the time the ADA was enacted, the World Wide Web was in its infancy and no one--including its creators--could have foreseen how in a short fifteen years the web would move from being a tool for physicists to shared research results, to being an important part of our society. In the early days of the World Wide Web a popular metaphor used to capture its essence was the frontier days of the American "Wild, Wild West." It was a wide-open, self-policing, unregulated frontier and newcomer's best beware! As the Web has grown, the frontier metaphor use has noticeably declined. Instead, the Web has become an accepted, important part of our day-to-day routine and increasingly provides the information and services that we need in our normal lives. A recent report on web usage suggests that the web has become "the 'new normal' in the American way of life; those who don't go online constitute an ever-shrinking minority" (Rainie & Horrigan, 2005). As this change occurs, as more and more information is available on the Web, it becomes increasingly important to insure that all potential users can access this information.

This seems a particularly crucial issue for universities where--not surprisingly--the web has been enormously successful. The de-centralized technology architecture, which was behind the "Wild, Wild West" metaphor, is still as true today as it was in the early days of the web. And perhaps nowhere has that decentralized model been as enthusiastically embraced as in the university setting. From the small team of professional developers working in the admissions office to create online applications, to the part-time student workers creating departmental web pages, to the full-time and adjunct faculty putting an increasing amount of course related material and content up on the web, widely disparate groups and individuals have created a phenomenal number of web pages--often without any awareness of other groups on campus, minimal to no oversight by university technology administration or legal counsel, and frequently with little or no awareness of legal/ethical concerns such as the need to make their web pages available to people with disabilities.

This paper will first provide a legal survey of relevant legislation to answer the question of legal responsibilities of public and private universities to provide accessible web pages. It will then look at the types of disability impairments that provide barriers to using the web and explore the question of what accessibility means, and how to create web pages that are accessible to these different populations. Next it will explore why universities face some particularly daunting barriers to verifying and guaranteeing that all web pages used at the university are accessible to populations with disabilities. Finally, the paper will summarize the implications for technology managers and planners, who are responsible for university web pages.

OVERVIEW OF THE LEGAL ENVIRONMENT

Concluding that discrimination persisted against individuals with disabilities, which adversely affected both disabled Americans and society as a whole, Congress passed the Americans with Disabilities Act ("ADA") in July of 1990 in an effort to eliminate such discrimination, and to provide consistent, enforceable federal standards for addressing such discrimination. (Wehman, 1993). Congress concluded that "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." (42 U. S. C. [sections]12101(a)(7) (2004)). The five titles of the legislation address these problems in Employment (Title I), Public Entities (Title II), Public Accommodations (Title III), and Telecommunications (Title IV). Title V contains miscellaneous provisions relating the ADA to other laws and its implementation. The ADA extended the coverage provided by the Rehabilitation Act of 1973, which protects handicapped individuals from employment discrimination by the federal government and by private employers who either contract with the federal government or administer programs receiving federal assistance, to private entities in an expanded scope of activities. (Burgdorf, 1991).

Title I of the ADA requires employers to make reasonable accommodations for qualified employees with disabilities, so long as the accommodation would not result in an undue hardship, that is, one which entails significant difficulty or expense. (Karlan & Rutherglen, 1996). The ADA and federal regulations define the term "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (42 U.S.C. [sections] 12111(8) (2000)). In other words, a qualified individual must be able satisfy the requirements of the job, such as proper training, skills, education or experience, in addition to possessing the ability to perform the essential functions of that job either with or without reasonable accommodation.

The Act further defines disability for all Titles as "a physical or mental impairment that substantially limits one or more major life activities, a record of such of such impairment, or being regarded as having such impairment." (42 U.S.C. [sections] 12102(2) (2000)). In contrast to cases of an individual having an actual disability or a history of an actual disability, in "regarded as" cases of discrimination a covered entity entertains misperceptions about the individual, believing either that one has a substantially limiting impairment of a major life activity, which one does not have, or that one has a substantially limiting impairment, when, in fact, the impairment is not so limiting. (Simmons, 2000; Mayerson, 1997). These "major life activities" as defined by federal regulations include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, in the sense that one's ability to work is significantly restricted with respect to the performance of either a class of jobs, or a broad range of jobs in various classes, as compared to the average person having comparable abilities. (29 C.F.R. [sections] 1630.2 (2000)). The Supreme Court also interpreted the Act as including reproduction as a major life activity as well. (Bragdon v. Abbott, 1998). The term "substantially limits" is used in comparison to the average person in the general population with consideration being given to the nature and severity of the impairment, its duration, and its permanent or long-term impact. (Zappa, 1991).

Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (42 U.S.C [sections]12132 (2004)). The term ''qualified individual with a disability'' is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." (42 U.S.C [sections]12132(1) (2004)).

Title III provides, as a general rule, that "[n]o individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation..." (42 U.S.C. [sections] 12182(a) (2004)). Illegal discrimination includes 1) denying disabled individuals the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity; 2) affording disabled individuals the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals; 3) providing a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. (42 U.S.C [sections]12182(b)(1)(A) (2004)). As a caveat, Title III requires an entity operating "public accommodations" to make "reasonable modifications" in its policies "when ... necessary to afford such ... accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such ... accommodations." (42 U.S.C [sections]12182(b)(2)(A)(ii) (2004)).

The phrase "public accommodation" is defined in terms of twelve extensive categories, which include, for example, places of lodging, establishments serving food or drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, stations used for public transportation, places of public display, places of exercise or recreation, places of education, and social service centers. (42 U.S.C. [sections] 12181(7) (2004)). Legislative history indicates that the definition of private entities, which affect commerce, and are considered places of public accommodation under Title III, should be construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the nondisabled. For example, the Supreme Court held that golf tours and their qualifying rounds fit within Title III's coverage, and that a participant was within its protection. (Martin v. PGA Tour, Inc. 2001).

Although some observers argue that subsequent to its passage, courts have interpreted the provisions of the ADA too narrowly and frustrated its declared purpose (Sutter, 2000; Locke, 1997), the remedial statute may still be broad enough to embrace cyberspace. Under the law of other countries, the issue of web-accessibility for the disabled has surfaced. An individual won damages in Australia against the Sydney Organizing Committee for the Olympic Games for its failure to maintain a website, which was accessible to the visually impaired. (Clark, 2002). The issue is also being considered in the United Kingdom under its Disability Discrimination Act of 1995. (Sloan, 2001). It is estimated that as many as ninety-eight percent of websites are not accessible to individuals with disabilities. (Rich, et al., 2002). Is this situation problematic under the U. S. law? The answer at this stage would have to be "maybe," and dependent in part upon whether the site is maintained by a public or private entity, or by a recipient of federal funds.

PUBLIC ENTITIES AND WEB ACCESSIBILITY UNDER TITLE II

Congressional regulation of state governments and their affiliates, like state universities, is subject to constitutional restraints, in particular the Eleventh Amendment which declares that, "[T]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Congress, however, has the power under the Fourteenth Amendment to abrogate state sovereign immunity in some situations, and to create civil causes of action in order for private citizens to bring suit against state entities. For example, states can be sued under Title VII of the Civil Rights Act of 1964. Section 5 of the Fourteenth Amendment, which allows this inroad into state sovereign immunity, states in relevant part that "[N]o State shall...deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

A rich history of constitutional interpretation has defined this prohibition as being primarily applied to remedial situations involving fundamental rights or legislative classifications which are "suspect," such as the laws requiring segregation based upon race. In other words, for its legislation to be constitutional in these situations, Congress must be attempting to remedy a past pattern of discrimination by the states, such as slavery in the South. Further, it is easier for Congress to succeed in abrogating sovereign immunity if the legislation involves a fundamental right. (Nevada Dept. of Human Resources v. Hibbs, 2003). State action, which abridges fundamental rights, for example, the right to freedom of speech or religion, or the right to vote, is subject to strict judicial scrutiny; that is, it "may be upheld only if it is narrowly tailored to further a compelling interest." (United States v. Playboy Entertainment Group, Inc., 813, 2000). In contrast, legislation not involving such rights (or suspect classifications) is upheld if it bears a rational relationship to a legitimate state interest.

Presumably under Title I of the ADA, if state employees were required to utilize websites while performing job responsibilities, then web-accessibility could be viewed as potentially being a reasonable accommodation, depending upon the circumstances. Nevertheless, as a result of a recent Supreme Court decision, state employers in fact may have limited exposure to liability under Title I. (Rich, et al., 2002). In 2001 the Supreme Court held that state sovereign immunity under the Eleventh Amendment bars suits in federal court by state employees to recover money damages by reason of the state's failure to comply with Title I (employment) of the ADA. (Board of Trustees of the University of Alabama v. Garrett, 2001). Although Congress would have the authority to subject state governments to private lawsuits under Title I of the ADA for the violation of Fourteenth Amendment rights (such as due process and equal protection), that result is only permissible if there has been a pattern of discrimination in hiring decisions, in this case involving persons with disabilities, which Alabama had not exhibited.

Further, the Constitution only requires that states do not irrationally discriminate against disabled persons; however, Title I of the ADA demanded more, that is, that states take steps to provide a reasonable accommodation for qualified disabled individuals. The Court observed "that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly--and perhaps hardheartedly--hold to job-qualification requirements which do not make allowance for the disabled." (Board of Trustees of the University of Alabama v. Garrett, 2001). While this in tandem interpretation of the Eleventh and Fourteenth Amendments limits the availability of damages for suits brought against state governments by the disabled under Title II, injunctive relief may still be available. (Horvath, 2004).

The Court in Garrett also left open the question as to whether or not the Eleventh Amendment permits suits for money damages under Title II. In a subsequent case, the Court held that, at least as far as Title II of the ADA applies to cases implicating the fundamental right of access to state courts and the administration of justice, Title II of the ADA constitutes a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment, in order to enforce that Amendment's substantive guarantees. (Tennessee v. Lane, 2004). While the right of parents to direct the education of their children may be considered a fundamental one (Wisconsin v. Yoder, 1972), the right of access to education itself has not been so defined. Therefore, applying the mandates of Title II to public educational institutions, and derivatively their websites, indeed may be an unconstitutional exercise of Congressional power, because the right implicated is not a fundamental one, and the class of persons presumably discriminated against, that is, the disabled, are not (under Fourteenth Amendment jurisprudence) members of a suspect class, who historically have been discriminated against (as are racial minorities). It may take years to resolve conclusively which areas of Title II are enforceable, although arguably that resolution will hinge in part on the nature of the underlying right, as well as the existence of a history of civil rights violations by state actors (Eyer, 2005).

ACCOMMODATIONS IN VIRTUAL PUBLIC PLACES UNDER TITLE III

Congress may have more latitude under the Interstate Commerce Clause of the Constitution to regulate private entities under ADA. Under Title I (Employment) if qualified employees in private educational institutions are required, as part of their job, to use web pages, then employers may owe a legal obligation to make them accessible to the disabled, providing such a requirement is considered to be a reasonable accommodation, and not one that would result in an undue burden. Alternatively, it might be sufficient to make the necessary information accessible in another format.

As noted previously, Title III of the statute prohibits discrimination in privately owned and operated places of public accommodation, such as private educational institutions. The critical inquiry then, is whether or not websites should be considered places of public accommodation. Clearly Congress did not intend to embrace virtual environments when the ADA was passed in 1990, as the passage of the Act preceded the establishment of the Internet as a mainstream form of communication and of access to goods and services. Nevertheless, the Department of Justice issued an advisory letter in 1996 suggesting that the ADA covers entities on the Internet whose services are deemed to be public accommodations. (Ranen, 2002). While the issue is as yet unsettled, several commentators have argued that websites should be considered places of public accommodation (Kiedrokski, 2001; Lynch, 2004), or considered as such at least in those cases where the website has a connection, or nexus, to a physical place of public accommodation. (Moberly, 2004). Under this approach barnesandnoble.com would be covered under the ADA, but Amazon.com would not be covered, because Barnes & Noble has a physical presence in contrast to Amazon, which has only a virtual existence.

Some federal courts appear to be open to this type of argument in other contexts. In Rendon v. Valley Crest Products, Ltd (2002) hearing-impaired and mobility-impaired individuals alleged that Valleycrest Productions Limited and ABC violated the ADA by operating a telephone selection process that screened out disabled individuals, who wished to be contestants on the show "Who Wants To Be A Millionaire." The district court dismissed the complaint, but the Eleventh Circuit reversed, concluding that the fast finger telephone selection process was a discriminatory screening mechanism, which deprived plaintiffs the opportunity to compete for the privilege of being a contestant on the Millionaire program. The court reasoned that the alternative approach, screening contestants the same way at the actual studio, which is clearly a "place of public accommodation," could violate the ADA; therefore, an off-site approach should be treated similarly. (Grady & Ohlin, 2004).

This issue has been addressed in a somewhat different context by several courts with respect to insurance providers, and the issue of whether insurance providers should be considered a "service establishment" under the ADA if they do not serve walk-in customers. The First Circuit concluded that the ADA applied to physical establishments whether or not they served walk-in customers (Carparts Dist. Ctr., Inc. v. Automotive Wholesaler's Assoc. New England, 1994). Likewise, the Second Circuit concluded that practices of insurers could be covered by Title III of the ADA, reasoning that the statutory term was not limited to situations involving physical access. (Pallozzi v. Allstate Life Ins. Co., 1999). The Seventh Circuit went further and suggested in dicta that the critical inquiry is whether or not the entity provides goods and services, which are open to the public. (Doe v. Mutual of Omaha Ins. Co., 1999). In contrast, the Sixth Circuit concluded that there must be a nexus between the discriminatory transaction and the physical place of public accommodation. (Parker v. Metropolitan Life Insurance Co., 1997). The Third Circuit embraced this nexus requirement as well. (Ford v. Schering-Plough Corp., 1998).

Some observers criticize the nexus approach, since it produces incongruous results, which are conditioned upon the rather artificial distinction of either being able to serve walk-in customers, or not offering such services through a physical presence. While some critics of this approach would conclude that all websites, which serve as a conduit to the provision of goods and services, are covered by the ADA (Petruzzelli, 2001; Ranen, 2002; King, 2003), others argue that the ADA does not support such an extension, and that Congress should enact alternative legislation to assure web accessibility. (Maroney, 2000; Konkright, 2001).

In 1999 the National Federation for the Blind brought a class action lawsuit against American Online under Title III alleging that the Internet provider violated the ADA because its services were inaccessible to the blind, since they were incompatible with screen access software programs for the blind. (Ranen, 2002). The issue was never resolved as the complaint was dismissed by mutual agreement between the parties, whereby AOL agreed to take steps to improve accessibility. (Waddell, 2000). Only one case to date has considered the issue directly. In Access Now, Inc. v. Southwest Airlines, Co. (2002) a federal district court concluded that Southwest.com was not a place of public accommodation under Title III of the ADA, determining that the unambiguous language of the statute does not include Internet websites among the definitions of "places of public accommodation." The court reasoned that the ADA applied only to physical, concrete structures, and "[T]o expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards." (Access Now, Inc. v. Southwest Airlines, Co., 1318 (2002)).

Plaintiffs appealed the dismissal of the complaint to the Eleventh Circuit, which declined to consider the case on its merits because the issues raised on appeal were not adequately presented in the district court. While the district court's ruling was limited to the question of whether or not a website was a place of public accommodation, on appeal the plaintiffs argued for the first time that Southwest Airlines was a place of public accommodation because it operates a "travel service" under Title III, and hence violated that Title because of the website's connection to the airline's travel services. Because the new argument depended on facts and theories not presented to the district court, involving the allegation that the violation was a result of the nexus between the inaccessible website and the travel service provided by the airline, the court declined to consider the merits of either the theory presented to the district court or the one presented for the first time on appeal.

What does this mean for private educational institutions? Included among the private entities considered to be public accommodations under the ADA are "a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education." (42 U.S.C. [sections] 12181(7)(j) (2004)). But are their websites included? It would seem that in the circuits in which courts use the nexus approach, their websites would have to be made accessible, providing the institution had a "brick and mortar" physical presence. In other jurisdictions, courts might limit the application of the ADA mandate to the physical structures of the institution only.

However, the provision of education arguably dictates that another factor be considered. Title III of the ADA also provides that "[A]ny person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. (42 U.S.C. [sections] 12189 (2004)). Therefore, it could be argued that the statute requires a heightened standard of accessibility for educational providers. (Robertson, 2001). While that result does not necessarily command that the websites be made accessible, only that the information be provided in a manner that is accessible, as a practical matter, it would likely be efficient to meet the directive by providing accessible websites. At any rate, if courts do not interpret Title III of the ADA, as currently written, to include websites in cyberspace as constituting places of public accommodation, Congress still would have the power under the Commerce Clause to legislate such a result by prohibiting private websites from discriminating against disabled users. (Lynch, 2004).

THE REHABILITATION ACT

Congress amended the Rehabilitation Act of 1973 with the passage of the Work Force Investment Act of 1998, so as to require federal agencies to make their websites accessible to persons with disabilities. Section 508 of that law now provides that "[W]hen developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency...shall ensure, unless an undue burden would be imposed...that the electronic and information technology allows, regardless of the type of medium of the technology (i) individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and (ii) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities." (42 U.S.C. [sections] 794d (a)(1)(A) (2002)). The law directed the Architectural and Transportation Barriers Compliance Board (Access Board) to develop standards governing the implementation of this mandate, which are now set forth in the Federal Code of Regulations. (36 C.F.R. [sections] 1194.22 (2004)). While the Act does not apply specifically to states or private entities (McLawhorn, 2001), it does apply to states that receive funds under the Assistive Technology Act 1998 (29 U.S.C. [sections] 3011 (2004)), which requires recipients to give written assurances of compliance with Section 508 of the Rehabilitation Act in order to receive grants designed to maintain permanent, comprehensive statewide programs of technology-related assistance for individuals with disabilities. All fifty states receive such grants, thereby necessitating an assurance of compliance with the federal standards. (Robertson, 2001). However, there is a sunset provision in the Assistive Technology Act of 1998, which could terminate funding, and the corresponding need for assurances of compliance. (Myers, 2004).

Even so, Section 504 of Rehabilitation Act also provides that "[N]o otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." (29 U.S.C. [sections] 794(a) (2002)). The phrase ''program or activity'' is defined as including a college, university, or other postsecondary institution, a public system of higher education, a local educational agency, a system of vocational education, or other school system. (29 U.S.C. [sections] 794(b)(2)(A)&(B (2002)). The Civil Rights Restoration Act of 1988 clarified a broad definition for that term, such that if a state agency or entity receives federal funding for any purpose, it is subject to liability for discriminatory practices in all its programs. (Eyer, 2005). It would seem that this section could put covered institutions at risk, if the manner in which they offered their online services to their constituents were not equally available, either through web accessibility or by some other format, to the disabled.

Moreover, a strong argument can be made that despite differences between the ADA and Section 504, the statutes are co-extensive, and claims comparable to those, which previously were brought under Title II, should be viable under Section 508, particularly since the vast majority of state entities, which are potentially immune from ADA litigation, are still recipients of federal funds. (Eyer, 2005). Nevertheless, while some courts have held that Congress constitutionally may require a waiver of sovereign immunity as a condition of receiving federal funding, or that a waiver of immunity occurs when states accept such funding, others have held that the abrogation analysis should be the same for Title II of the ADA as for Section 504 of the Rehabilitation Act, which would preclude claims by private citizens to enforce rights provided for under Section 5. (Roy, 2004). Even so, the federal government might be able to sue in their behalf, and such an action arguably would not be subject to the Eleventh Amendment, which only expressly prohibits suits "by Citizens of another State, or by Citizens or Subjects of any Foreign State."

STATE LAWS AND STATE GOVERNMENTAL ENTITIES

Independent of federal law and federal financing concerns, an overwhelming majority of states require their governmental agencies, which could include publicly funded universities, to make their websites accessible and develop guidelines to that end. (Sweeney, 2000). Almost all states have developed web-accessibility policies or standards. (Poynter, 2003). For example, Texas state law requires all state agencies to maintain websites, which conform to generally acceptable standards for persons with disabilities. (Robertson, 2001). Twelve states have accessible information technology laws, some of which require compliance with Section 508 (e.g., California) or have established their own standards. (Myers, 2004). Moreover, states could decide to waive their sovereign immunity, like Illinois, in order to allow claims brought under civil rights legislation, such as the ADA. (Roy, 2004).

Yet, even assuming that there is a legal obligation to make websites accessible to the disabled, some might argue that there are no clear parameters to establish compliance. (Quinn, 1999). Moreover, if federal standards are applicable to state agencies under the Workforce Investment Act, they nevertheless have been slow to comply (Hammond, 2003). These problems, as well as other issues, plague the directive, assuming that there is one for private institutions under the ADA, or for states or state institutions seeking federal funds, or as required by state law.

Clearly accessibility regulations, which might pertain to university web pages, are a complicated mix of federal and state laws. The ADA, the statute which seems most relevant to the question of accessibility in web pages, was passed before the web was a significant part of our society; therefore web accessibility was not explicitly addressed by the legislation. While some federal courts seem inclined to interpret the ADA to cover websites maintained by private places of public accommodation, other jurisdictions do not. As amended, the Rehabilitation Act does explicitly cover websites, but its focus is on federal government websites. While the provision of Section 508 that extends to entities that receive funds from the federal government would certainly include most public universities, again there is no conclusive ruling that requiring public universities, which accept such funds, to have accessible web pages would not violate sovereign immunity, as might the application of the ADA itself to public universities. Most states have laws requiring accessible web pages for state government websites, which should include public universities. However, the precise requirements and penalties for non-compliance vary from state to state, and whether or not they extend to private universities would be dependent upon the particular statute.

While the legal environment for web page accessibility is complicated and unclear, the types of impairments that cause individuals problems accessing web pages are not. The following two sections will provide an overview of the impairments, which interfere with using the web, and the solutions web designers can use to provide accessible web pages to individuals with those impairments.

HOW TO MAKE WEB PAGES ACCESSIBLE TO INDIVIDUALS WITH IMPAIRMENTS

What is accessibility? Clark (2003) suggests that accessibility "involves making allowances for characteristics a person cannot readily change." The World Wide Web Consortium's (W3C) "How People with Disabilities Use the Web" (2004) provides a number of different scenarios showing the problems people with disabilities encounter when using the web. Some example scenarios they provide are: Online shopper with color blindness; Accountant with blindness; Classroom student with dyslexia; Retiree with several aging-related conditions, managing personal finances; and Supermarket assistant with cognitive disability.

A starting point for understanding web accessibility is to examine the characteristics that interfere with an individual's ability to use web pages. These characteristics can be grouped into the following categories: Visual, Auditory, Mobility and Cognitive impairments. Visual impairment can range from complete blindness to less impaired being able to read large text on a monitor. This category should also include that significant portion of the population that has some sort of color vision problem. Auditory impairment can range from having difficulty hearing different frequencies, difficulty hearing over background noise, to complete deafness. Mobility impairment refers not to the ability to move around, but impairments that cause difficulty--or make impossible--the use of a computer keyboard and/or mouse. Cognitive impairments concern an individual's ability to process and understand the content of a web page.

Clearly these categories cover a very wide variety of physical and mental impairments. How is it possible to make a web page accessible to individuals who may be blind, deaf, unable to use a mouse, and/or have a learning disability. The solution very often requires the combination of an assistive technology and web pages that are designed to not interfere with that technology. Assistive technologies used for web access include screen readers, alternative keyboards or switches, Braille and refreshable Braille, scanning software, screen magnifiers, speech recognition, speech synthesis, text browsers and voice browsers (W3C, 2004).

Perhaps the most technologically challenging impairment to overcome for accessible web pages is blindness. To make web pages accessible to blind individuals requires both the assistive technology of screen readers and web pages that are designed to make it easy for screen readers to do their job. The web creator's challenge is to create the web page in a way that makes it as easy as possible for someone using a screen reader to understand the content of a web page. The difficulty is that screen readers are sequential--they start at the beginning of the HTML file and read to the end. However, users who do not require screen readers are accustomed to glancing in the left column of a page to find navigation links and perhaps the right columns for navigations links also. Our eyes are capable of saving a great deal of time by not reading everything sequentially and web pages that utilize good graphical design principles are designed to take advantage of this. There are a number of approaches to making web pages that are easy to use and navigate for both sighted and blind visitors. They are not necessarily enormously complicated, but they do require an understanding of how screen readers work and things to avoid if you want the screen reader to be effective. Using HTML tables for page layout is a very widely used approach to a visually well-organized page, but can make it very difficult and tedious for a blind user to use a web page. HTML Frames and complicated JavaScript menus can also cause problems for screen readers. While it is certainly possible to retrofit solutions to these problems into an existing web page, it is much less expensive to create a new web page with these constraints in mind.

Moderate visual impairment means that the person will not need a screen reader, but rather just needs to be able to increase the size of the text to make it readable to him/her. This may involve the assistive technology of a screen magnifier or simply increasing the text font size of the page. How difficult this is depends on how the web page creator set the font sizes on the page. The preferred method is the use of relative sizes such as Medium, Small, Large, etc. The advantage of this approach is that it is interpreted in terms of the base font size set by the person. A person with a visual impairment would set their base font to be a very large one, and then these relative sizes would be in relation to that. Unfortunately, it is possible to set the font size using an absolute measure, for example twelve pixels. This makes it more difficult for the viewer of the page to increase the size of the font.

Another barrier to both moderately impaired and blind viewers is the use of images to show text. This use is understandable from a graphics design viewpoint: HTML's ability to handle text fonts is limited and dependent on whatever fonts the viewer has installed on their computer. One way around this for the designer is to use the font they want, save it as an image file and then use the image file on the page. This generally results in a very visually attractive web page, but a text reader must have text to read--it cannot read an image. The workaround to this is to set the ALT tag of the image to describe what the image is for the screen reader to read. This is useful for images that just convey information, less useful for images that are buttons, and not at all useful for complex image maps that do different things depending where on the image you click. This is also a good example of something that is much easier to do while creating the web page, rather than having to go back and add ALT tags to all the images on an existing web page.

Color blindness is another vision impairment that results in the individual having difficulty distinguishing some colors and differentiating between two colors. The accessibility solution to this impairment does not require an assistive technology; it just requires an understanding of the problem. Once the problem is understood, the web creator can avoid using only color to convey information and be aware of particular color combinations that are difficult for many color blind individuals to see. To help with this, there are tools on the web that will allow you to see how a web page would appear to an individual with color blindness (Vischeck).

Because the web is so text and visually oriented, many web pages can be viewed by individuals with an auditory impairment with no assistive technology or specific design at all. However, if a site is presenting online videos with sound then there must be a means for providing an equivalent text version of the audio if hearing impaired individuals are to access the information contained in the audio.

Mobility impairments make it difficult or impossible for an individual to use a mouse or keyboard. Mobility impairments can include can include weakness, limitations of muscular control (such as involuntary movements, lack of coordination, or paralysis), limitations of sensation, joint problems, or missing limbs. (W3C, 2004). Assistive technologies to overcome these impairments include specialized keyboard layouts, large trackballs, various pointing devices and voice recognition software. The primary approach to making web pages accessible to this population is to design web pages that can be navigated without a mouse. There are a number of methods for doing this, but the first step is the awareness that not all visitors to your website will be able to use a mouse.

Cognitive impairments is a broad category revolving around the difficulty of processing the content of the web page. Examples of cognitive impairments are Dyslexia, Attention Deficit Disorder, Intellectual impairments, Memory impairments and Aging-Related conditions (W3C, 2004). Approaches that web creators can use to make their web pages more accessible to this population are insuring the content of the page is clear and easy to read, minimizing or eliminating distracting animations on the page and providing non-text alternative versions of the content. An example of a non-text alternative would be an audio file of the of the web page content being read aloud.

As has been shown, there are a very wide range of visual, auditory, mobility and cognitive impairments, which can present a barrier to using a web page. It is important to note that despite the wide range of impairments it is possible to create web pages that can be used by all of these different populations, but many web page creators are not only not aware of how to create accessible web pages, they are not really aware of the fact that disabled individuals might need to view their web pages. This lack of awareness of the problems faced by impaired web viewers leads to the creation of web pages that make it very difficult or impossible for disabled visitors to use the web. The awareness and acceptance of this as a real problem to be dealt with and the willingness (and access to) training in the skills needed are the steps that creators of web pages must take to create accessible web pages.

WHY IS THIS A PARTICULARLY DIFFICULT PROBLEM FOR UNIVERSITIES

The previous section provided an overview of the types of impairments that cause difficulties for individuals accessing web pages and examples of how web creators can overcome those difficulties. A basic lesson suggested for planners is that it is much less costly to build the accessibility into new pages than to retrofit it into existing pages. Although universities have very large web sites, many corporations have very large websites also. What is it about university pages that make the goal of accessibility particularly difficult to achieve? The answer to this question lies with a combination of the de-centralized technology architecture behind the web and the unique organizational characteristics of the modern university.

The de-centralized architecture of the web means that as long as you have a computer that is running web server software and is connected to the Internet, you can publish your web pages. In a corporate setting, this factor is not typically that important because corporations tend to (wisely) feel that web pages are part of their brand image and need to be managed as such. Typically all company web pages will be hosted on one server (a computer running web server software). So the web server that represents the company's Internet domain name (i.e., acme.com), is typically one computer and most or all of the company web pages will physically reside on that computer.

The situation is quite different in a typical university setting. The difference starts with what an Internet name means in a university setting versus in the corporate world. A university Internet name (i.e., wcu.edu) very rarely represents one individual computer. Instead it represents a network of hundreds or thousands of computers. Only a small percentage of those computers will be used as web servers, but any of them could be.

The next factor is the control of the web server(s). In a corporate setting the IT group would typically have control over the web server and grant permissions to web creators on a strictly controlled, as-needed basis. Again, this is very different than a university setting where computers are controlled by administrative groups, colleges, schools, departments, programs, instructors and sometimes students, rather than the university IT group.

This de-centralized control of university web pages has allowed a great deal of flexibility for university web page creators to publish their web pages. However, the downside is that it also makes it very difficult for university planners to know how many web pages are currently published that have a university affiliation. Not only does the central IT group not control many of these computers, there is unlikely to even be an inventory of the servers and who does control them.

In a corporate setting there will often be a number of individuals and departments in the company that create and control the web pages. This may be a large number of people for a large website, but it is a finite, known list, and somebody who oversees the entire website should have that list. So if an accessibility planner wanted to check on the number of company web pages that are accessible, they would simply contact the people on that list. While not necessarily an easy or quick process, it is one that is quite possible to perform.

As previously noted, this scenario is absolutely not typical of a university situation. From the small team of professional developers working in the admissions office to create online applications, to the part-time student workers creating departmental web pages, to the full-time and adjunct faculty putting an increasing amount of course related material and content up on the web, widely disparate groups and individuals have created a phenomenal number of web pages--often with no awareness of other groups on campus, minimal to no oversight by university technology administration or legal counsel, and frequently with little or no awareness of legal/ethical concerns such as the need to make their web pages available to people with disabilities.

So while the task of inventorying a typical corporate website and guaranteeing that the web pages in it are accessible is not necessarily an easy, quick or costless task, it is possible. As has been shown, the same process for all pages that have some sort of university affiliation could be essentially impossible, particularly in the short-term.

SUMMARY OF SITUATION FACING UNIVERSITY ACCESSIBILITY PLANNERS

Currently it is unclear whether or not universities are legally required to make their web pages accessible. If the state in which the university is located has no state legislation governing accessibility requirements, then it is possible that the university, whether it is public or private, is not currently legally obligated to ensure the accessibility of its web pages. Sovereign immunity may insulate state universities from lawsuits under Titles I & II of the ADA, while the websites of private institutions may not be considered places of public accommodation under Title III. Nevertheless, while these questions have yet to be decided, along with compliance requirements for recipients of federal funding, query whether or not it would be wise for any university, public or private, to litigate these issues, arguing that they do not have to provide equal access to the disabled in this increasingly important forum for delivering instruction. Perhaps then, a more important inquiry for technology managers, as they look to the future, is whether or not the need for accessible web pages is likely to lessen or disappear. There are a number of factors that seem to indicate that the answer to this question is a strong, No!

First, overall use of the web continues to rise and individuals with disabilities will lose access to important information and resources if they are not able to use the web. One report suggests that the web has "become the 'new normal' in the American way of life; those who don't go online constitute an ever-shrinking minority." (PEW, 2005). The same report suggest that while sixty-three percent of American adults now use the internet, only thirty eight percent of those with disabilities do so.

Second, there is no reason to believe that the number of traditional age students with disabilities will decline in the near future. In fact, given the current increase in the overall number of students graduating high school, if the percentage of disabled students remains constant, then the number of disabled students in the traditional age range will increase.

Third, there is a growing population of web users who do not (yet) fit into the disabled category, but share many of the impairments and hence difficulties in accessing the web. This is the aging baby boomer population, which increasingly will experience some visual, auditory, mobility or cognitive impairment, which will impact their ability to use the web. In "Web Accessibility: A Broader View" the researchers suggest broadening the focus of accessibility to include an aging population with free time, discretionary income and an interest using the web (Richards and Hanson, 2004).

Finally, as web-based distance education courses become increasingly standard for universities to offer, the ability of disabled groups to take such courses hinges on the web pages being accessible to them. This will be a growing concern for traditional-age students who take some of their courses on-line, non-traditional, working students want to be able to take courses while working, as well as retirees who decide to return to school for additional courses. In addition to the likelihood of web accessibility becoming a greater issue in the near future, another important factor for planners is the fact that building accessibility into new pages is much less costly than retrofitting accessibility into existing, non-accessible web pages.

IMPLICATIONS FOR UNIVERSITY TECHNOLOGY PLANNERS

It is clear that the need to create web pages that are accessible to all students is not going to go away and seems likely to increase over time. To deal with this situation, university technology planners should view this as a long-term issue that is going to require developing long-term plans to address. An excellent resource for beginning this process is provided by the W3C (2002).

The first step should be to raise the awareness of all university web page creators about what accessible web pages mean and why that is important. There are still many people creating web pages, who have very little awareness of the problems impaired web users face daily. Unless the web page creator personally knows someone, who has experienced difficulty with the web due to an impairment, it is quite possible that they have no awareness of this problem. So the most important first step is to develop and implement a plan to remedy this lack of awareness.

The next step is to develop and begin implementing a long-term training plan for all university web page creators. This plan must recognize the wide variety of web creators in a university setting and approach the training of each group differently. A good starting point would be categorize university web creators into three groups: university staff, faculty and students.

University staff will probably the easiest group to reach. Both accessibility awareness training and accessible web page construction can be incorporated into existing staff training. Part of this process should be identifying all university staff, who are web creators, and documenting the training they receive. This process will also allow a next step of documenting which pages they create, and of determining whether or not they are accessible. This is not a trivial undertaking, but as a critical mass of staff understands the problem, it will become the norm that all new pages created will be accessible, and a priority plan will be developed for retrofitting existing pages. It is important to note that one of the targets of increasing awareness of the need to create accessible web pages are the managers of the web page creators. It will be the managers (and their managers) who must sign off on the increased time and expense, which will be required to both train the web creators and to create accessible web pages. So in order for this process to work, the very highest level university administrators need to be aware of the accessibility problem and agree to work to commit the resources necessary to solve it.

Faculty will be a more difficult group to reach. But again, the first step should be building an awareness of the problem. This can be done by offering training seminars to faculty, including an accessibility segment in orientation for new faculty, and training the support staff, who help to train faculty to create web pages. In addition training should also go through the traditional channel of building awareness of deans, who help build awareness of department heads, who then understand the value of this training for their faculty. Realistically, this should be viewed as a long-term effort. Very few professors will be opposed to creating accessible web pages, but unless they have experienced working with a student with a disability and understand the problems disabled students face, faculty may be resistant to spending time on this effort--simply because they don't see the relevance of it to their classes. This is where the efforts to build faculty awareness of the problem will be vital.

Student web page creators will also be a difficult group to reach because it is a group with frequent turnover and there is typically no existing process for student training (outside of classes they take). To address this, ideally somewhere at the university there should be a class on creating accessible web pages and other training opportunities should be made available to student web page creators.

CONCLUSION

The need to create accessible web pages is a problem for universities that is unlikely to go away. In fact, it seems much more likely to present significant problems in the near future to universities that fail to react and prepare for a population, which will increasingly demand that all web pages be accessible to disabled populations. As shown earlier, there are solutions to make web pages accessible to disabled individuals, but they have a cost. An important role for university technology planners is to build an awareness of this problem, convince administrators, staff, faculty and students that it is a real problem that must be addressed and build and implement plans for providing the training needed so that all university web page creators can create web pages that will be accessible to disabled individuals.

REFERENCES

Access Now, Inc v. Southwest Airlines, Co. (2002). United States District Court for the Southern District of Florida, 227 F. Supp.2d 1312.

Board of Trustees of the University of Alabama v. Garrett (2001). United States Supreme Court, 531 U.S. 356.

Bragdon v. Abbott (1998). United States Supreme Court, 524 U.S. 624.

Burgdorf, R.L., Jr. (1991). The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute. Harvard. Civil Rights-Civil Liberties Law Review, 26, 413.

Carparts Dist. Ctr., Inc. v. Automotive Wholesaler's Assoc. New England. (1994). United States Court of Appeals for the First Circuit, 37 F.3d 12.

Clark, J. (2003). Building Accessible Websites. Indianapolis, IN: New Riders Publishing. Doe v. Mutual of Omaha Ins. Co. (1999). United States Court of Appeals for the Seventh Circuit, 179 F.3d 557.

Eyer, K. (2005). Rehabilitation Act Redux. Yale Law and Policy Review, 23, 271-311. Ford v. Schering-Plough Corp. (1998). United States Court of Appeals for the Third Circuit, 145 F.3d 612.

Grady, J & Ohlin, J.B. (2004). The Application of Title III of the ADA to Sport Web Sites. Journal of Legal Aspect of Sport, 14, 145-159.

Hammond, A.S. (2003). Reflections on the Myth of Icarus in the Age of Information. Santa Clara Computer and High Technology Law Journal, 19, 407-456.

Horvath, S.A. (2004). Disentangling the Eleventh Amendment and the Americans with Disabilities Act: Alternative Remedies for State-Initiated Disability Discrimination Under Title I and Title II. University of Illinois Law Review, 2004, 231-265.

Karlan, P.S. & Rutherglen, G. (1996). Disabilities, Discrimination, and Reasonable Accommodation. Duke Law Journal, 46, 1-41.

Kennard, W.E., & Lyle, E.E. (2001). With Freedom Comes Responsibility: Ensuring That the Next Generation of Technologies Is Accessible, Usable and Affordable. CommLaw Conspectus, 10, 5-22.

Kiedrowski, C.L. (2001). The Applicability of the ADA to Private Internet Web Sites. Cleveland State Law Review, 49, 720-747.

King, N.J. (2003). Website Access for Customers with Disabilities: Can We Get There From Here? UCLA Journal of Law & Technology, 2003, 6-288.

Konkright, K.E. (2001). An Analysis of the Applicability of Title III of the Americans with Disabilities Act to Private Internet Access Providers. Idaho Law Review, 37, 713-746.

Locke, S.S. (1997). The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with Disabilities Act. University of Colorado Law Review, 68, 107-146.

Lynch, W. (2004). The Application of Title III of the Americans with Disabilities Act of 1990 to the Internet: Proper E-Planning Prevents Poor E-Performance. CommLaw Conspectus, 12, 245-263.

Maroney, P. (2000). The Wrong Tool for the Right Job: Are Commercial Websites Places of Public Accommodation Under the Americans with Disabilities Act of 1990? Vanderbilt Journal of Entertainment Law & Practice, 2, 191-204.

Martin v. PGA Tour, Inc. (2001). United States Supreme Court, 532 U.S. 661.

Mayerson, A.B. (1997). Restoring Regard for the "Regarded As" Prong: Giving Effect to Congressional Intent. Villanova Law Review, 42, 587-612.

McLawhorn, L. (2001). Leveling the Accessibility Playing Field: Section 508 of the Rehabilitation Act. North Carolina Journal of Law & Technology, 3, 63-100.

Moberly, R. E. (2004). The Americans with Disabilities Act in Cyberspace: Applying the "Nexus" Approach to Private Internet Websites. Mercer Law Review, 55, 963-999.

Myers, E. L. III. (2004). Disability and Technology. Montana Law Review, 65, 289-307.

Nevada Dept. of Human Resources v. Hibbs. (2003). United States Supreme Court, 123 S. Ct. 1972.

Pallozzi v. Allstate Life Ins. Co. (1999). United States Court of Appeals for the Second Circuit, 198 F.3d 28.

Parker v. Metropolitan Life Insurance Co. (1997). United States Court of Appeals for the Sixth Circuit, 121 F.3d 1006.

PEW Internet and American Life Project. (2005). A Decade of Adoption: How the internet has woven itself into American life. Retrieved March 1, 2005 from http://www.pewinternet.org/PPF/r/148/report_display.asp

Poynter, L. (2003). Setting the Standard: Section 508 Could Have an Impact on Private Sector Web Sites Through the Americans with Disabilities Act. Georgia State University Law Review, 19, 1197-1226.

Quinn, J. (November 2, 1999). Management and Technology, New York Law Journal, 5.

Ranen, J.S. (2002). Was Blind But Now I See: The Argument for ADA Applicability to the Internet. Boston College Third World Law Journal, 22, 389-418.

Rendon v. Valley Crest Prods., Ltd. (2002). United States Court of Appeals for the Eleventh Circuit, 294 F.3d 1279.

Rich, R.F., & Erb, C.T., & Rich, R.A. (2002). Critical Legal and Policy Issues for People with Disabilities. DePaul Journal of Health Care Law, 6, 1-53.

Robertson, C.B. (2001). Providing Access to the Future: How the Americans with Disabilities Act Can Remove Barriers in Cyberspace. Denver University Law Review, 79, 199- 227.

Roy. S. (October 2004). Suits Against States: What to Know About the 11th Amendment. Arizona Attorney, 41, 18-26.

Simmons, T. (2000). Working With the ADA's "Regarded as" Definition of a Disability. Texas Forum on Civil Liberties and Civil Rights, 5, 27-79.

Sloan, M. (2001). Web Accessibility and the DDA. Journal of Information Law and Technology, 2.

Student Note (November 2004). State Sovereign Immunity-Congress's Enforcement Power Under Section 5 of the Fourteenth Amendment. Harvard Law Review, 118, 258-268.

Sutter, L. (2000). The Americans with Disabilities Act of 1990: A Road Now Too Narrow. University of Arkansas at Little Rock Law Review, 22, 161.

Sweeney, D. (August 2000). ADA Fed Struggles With Web Accessibility; States Take Action. E-Commerce, 17(4), 1.

Taylor, P. (2001). The Americans with Disabilities Act and the Internet. Boston University Journal of Science and Technology Law, 7, 26-51.

Tennessee v. Lane. (2004). United States Supreme Court, 541 U.S. 509. United States v. Playboy Entertainment Group, Inc. (2000). United States Supreme Court, 529 U.S. 803.

Vischeck, Tool for viewing web page with simulated color blindness. Retrieved March 2, 2005 from http://www.vischeck.com/vischeck/vischeckURL.php W3C (1999). Web Content Accessibility Guidelines 1.0. Retrieved March 2, 2005 from http://www.w3.org/TR/WCAG10/

W3C (2002). Developing Organizational Policies on Web Accessibility. Retrieved March 4, 2005 from http://www.w3.org/WAI/impl/pol.html

W3C (2004). How People with Disabilities Use the Web. Retrieved March 3, 2005 from http://www.w3.org/WAI/EO/Drafts/PWD-Use-Web/

Waddell, C.D. (August 25, 2000). Will National Federation of the Blind renew their ADA Web Complaint against AOL? Disability Compliance Bulletin, 18(5).

Wehman, P. (1993). The ADA Mandate for Social Change.

Wisconsin v. Yoder (1972). United States Supreme Court, 406 U.S. 205.

Zappa, J.M. (1991). The Americans with Disabilities Act of 1990: Improving Judicial Determinations of Whether an Individual is "Substantially Limited". Minnesota Law Review, 75, 1303-1337.

Danial L. Clapper, Western Carolina University

Debra D. Burke, Western Carolina University