Why Colleges and Universities Face More Web Accessibility Lawsuits

In February 2022, AAAtraq released a report analyzing the digital accessibility of higher education institutions in the United States. The research assessed the websites of more than 2,000 colleges and universities, using the Web Content Accessibility Guidelines (WCAG) 2.1 to identify potential accessibility barriers.

According to AAAtraq:

• 96% of audited websites failed to meet WCAG 2.1 Level AA standards.
• 13 percent of institutions had a “very high risk” of being targeted for litigation due to accessibility issues.
• 48 percent of institutions were classified as a “high risk" for litigation.
• Only 4 percent of institutions were classified as “low risk.”

The report focused solely on website accessibility — AAtraq didn’t analyze online learning portals or other digital resources — and the firm noted that their analysis focused on homepages. 

“With a more in-depth audit, it’s highly likely that failures could be identified on every website,” the report states. 

For colleges and universities, this analysis should be a wake-up call: As online learning continues to expand, digital accessibility is absolutely essential. 

Colleges and universities are legally required to accommodate students with disabilities

Institutions of higher learning are frequent targets for accessibility compliance actions under Titles II and III of the Americans with Disabilities Act (ADA). In some cases, lawsuits may cite Section 504 of the Rehabilitation Act of 1973 and state accessibility laws. 

While all places of public accommodation have a responsibility to offer accessible services, colleges are especially common targets for litigation:

• In 2015, the National Association of the Deaf filed a lawsuit against Harvard, alleging that the school failed to provide accurate closed captions for public online content.
• In 2009, the Law School Admission Council (LSAC) settled a lawsuit with the National Federation of the Blind, pledging to improve digital accessibility on the LSAC website.
• In 2018, Jason Camacho, a New York resident who is blind and uses a screen reader, filed lawsuits against 50 colleges and universities, citing alleged website accessibility issues under Title II of the ADA.

With website accessibility lawsuits rising — and expected to continue rising through 2022 — institutions of higher learning have a responsibility to audit their online resources. The threat of litigation is certainly a powerful incentive, but accessibility issues can impact colleges in other ways: A poor user experience affects students of all abilities. 

Unintentional accessibility barriers are still accessibility barriers

But what if universities are unaware of accessibility issues? Recent court cases indicate that intent doesn’t matter — the presence of digital accessibility issues is enough to allow for litigation. 

In the 2019 decision Payan v. Los Angeles Community College District, the Ninth Circuit Court of Appeals confirmed that the ADA and Section 504 are applicable to “unintentional discrimination.” According to the ruling:

“Section 504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by ‘thoughtless indifference’ or ‘benign neglect,’ such as physical barriers to access public facilities.”

In that case, the plaintiffs elected not to appeal to the Supreme Court. Unless a Supreme Court ruling overrides the precedent, educational institutions should assume that all accessibility barriers may be ADA and Section 504 violations — regardless of whether they’re intentional.  

For colleges, WCAG provides a framework for compliance

For educators, the good news is that digital accessibility has clear rules. WCAG 2.1 is a common-sense framework based on four principles: Content must be perceivable, operable, understandable, and robust. When developers follow these principles, all students benefit.

WCAG also includes technical success criteria, which are testable statements that are not specific to a single type of technology. These criteria can help universities identify and remediate the most common website accessibility issues, including: 

• Low-contrast text, which may be unreadable for people with vision disabilities
• Keyboard accessibility issues that limit navigation or prevent form submissions
• Missing image alternative text (also known as alt text) 
• Missing form labels

The Bureau of Internet Accessibility provides a free automated website analysis tool, which tests content against WCAG 2.1 Level AA standards. However, educational institutions should also engage manual audits on a regular basis — and have a plan to remediate barriers as they occur. 

For more guidance, read about our four-point hybrid testing methodology or send us a message.