OCR Guidance on Disability Rights and Distance Learning During the COVID-19 Pandemic

On April 3, 2020, the Office for Civil Rights continued its guidance on how institutions can implement distance learning while complying with federal civil rights laws. This guidance is timely because, as we all know, distance learning due to COVID-19 is redefining how most educational institutions operate. When all levels of academic institutions had to close their doors due to stay-at-home orders, many of them opened the proverbial window by turning to online education.  Despite its increasing popularity over the past decade or so, distance learning remains an emerging and potentially scary (as well as exciting) landscape for many institutions as they navigate purchasing/installing new technology, implementing new methods of teaching, and ensuring connectivity with students. OCR’s guidance provides a roadmap to this new territory.

In further response to some institutions declining to use distance learning at all because they were unsure of being able to provide a free and appropriate public education (K-12) or appropriate accommodations (postsecondary) to students with disabilities, OCR reiterated: Continue reading “OCR Guidance on Disability Rights and Distance Learning During the COVID-19 Pandemic”

California Education Institutions Exempted from Statewide Stay-at-Home Order

Governor Newsom’s Stay-at-Home Order requires “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of the federal critical infrastructure sectors.”  The Order exempted “16 critical infrastructure sectors whose . . . incapacitation or destruction would have a debilitating effect on security, economic security, public health, or any combination thereof.”

We all intuitively know academic institutions fit this description, and the Order agrees:  “Government Facilities” are included as one of those 16 critical infrastructure sectors, and the cited-to guidance in the Order confirms that this includes an “Education Facilities Subsector [that] covers pre-kindergarten through 12th grade schools, institutions of higher education, and business and trade schools. The subsector includes facilities that are owned by both government and private sector entities.”

The State Public Health Officer published a list confirming who qualifies as “Essential Critical Infrastructure Workers,” which includes two areas relevant for educational institutions: Continue reading “California Education Institutions Exempted from Statewide Stay-at-Home Order”

Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic

As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures being overlooked, resulting in potentially discriminatory effects to students.

Recognizing this risk, the Department of Education’s Office for Civil Rights published guidance on March 16, 2020, reminding schools that students’ civil rights must be safeguarded during responses to the COVID-19 pandemic. OCR’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

The Department of Education focused on a few key areas as examples of potential pitfalls: Continue reading “Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic”

Million Dollar Settlements of Closed Captioning Website Accessibility Lawsuits Highlight Need for Dual Approach

Massachusetts Institute of Technology is seeking approval to pay $1,000,000+ in attorneys’ fees to settle a putative class action alleging MIT’s website was inaccessible to people with hearing difficulties.  See Nat’l Assoc. of the Deaf et al. v. Mass. Inst. of Tech., 3:15-cv-30024-KAR (D. Mass. filed Feb. 12, 2015).  This comes just months after Harvard University preliminarily settled a nearly identical lawsuit for $1.575 million.  See Nat’l Assoc. of the Deaf et al. v. Harvard Univ., 3:15-cv-30023-KAR (D. Mass. filed Feb. 12, 2015).  Neither university admits liability or wrongdoing in the settlement agreements.

The complaints alleged each university lacked adequate closed captioning of videos and audio tracks on publicly availably websites in violation of Title III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  They alleged the lack of captioning hindered the ability of individuals with hearing difficulties to fully and equally enjoy the services and goods offered to the public via the websites. The complaints alleged that closed captioning of such content was a reasonable accommodation. After motion practice, the courts agreed these allegations constituted viable claims under Section 504 and the ADA, and the parties proceeded into discovery before settling.

In the settlement agreements, the universities promised to: Continue reading “Million Dollar Settlements of Closed Captioning Website Accessibility Lawsuits Highlight Need for Dual Approach”