[tabi] department of justice issues a statement on the ADA, websites, and new technologies

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  • Date: Fri, 23 Apr 2010 19:54:26 -0400

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Subject: [fcb-l] FW: [leadership] DOJ's official statement on applicability
of ADA for websites

I am not a lawyer.  However, I think that people with disabilities have real
cause to celebrate this statement and what it implies about the involvement
of the Department of Justice in making our society more accessible to people
with disabilities.

Please also note that ACB is specifically mentioned in this statement along
with the NFB and the Reading Right Coalition.  We are perhaps at the
beginning of a new era, ladies and gentlemen.  Can we look forward to a time
when there is an expectation that products designed for the mainstream will
be told they must be accessible????


-----Original Message-----
From: leadership-bounces@xxxxxxx [mailto:leadership-bounces@xxxxxxx] On
Behalf Of Pratik Patel
Sent: Thursday, April 22, 2010 10:00 PM
To: 'Access Technology Higher Education Network'; 'WebAIM Discussion List';
leadership@xxxxxxx; VICUG-L@xxxxxxxxxxxxxxxxxx; 'ACBNY board list';
'ACBNY-L'; sds-discuss@xxxxxxxxxxxxxxxxxxxx
Subject: [leadership] DOJ's official statement on applicability of ADA for

Below please find a statement from Samuel R. Bagenstose given at a
Congressional hearing which looked at ADA and digital issues.




Chairman Nadler, Ranking Member Sensenbrenner, and Members of the
Subcommittee, it is an honor to appear before you today to discuss the
rights of individuals with disabilities to have access to emerging
technologies. The Civil Rights Division enforces the Americans with
Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act, and we
have a substantial role in implementing Section 508 of the Rehabilitation
Act. Pursuant to these statutes, access to the internet and emerging
technologies is not simply a technical matter, but a fundamental issue of
civil rights. As more and more of our social infrastructure is made
available on the internet B in some cases, exclusively online B access to
information and electronic technologies is increasingly becoming the gateway
civil rights issue for individuals with disabilities.
Congress adopted the Americans with Disabilities Act in 1990. The statute is
a comprehensive, broad-reaching mandate to eliminate discrimination on the
basis of disability in all of the areas of American civic and economic life.
The Department of Justice is responsible for enforcement and implementation
of Titles II and III of the ADA, which cover State and local government
entities and private businesses, respectively. We also enforce Title I of
the ADA, which prohibits disability discrimination in employment, in cases
involving State and local government employees. Most of the
nondiscrimination requirements of Title III apply to private businesses that
fall within one of the categories of Apublic accommodation@ established in
the statute and the Attorney General=s implementing regulations. The
Department also enforces the statute on which the ADA is based, Section 504
of the Rehabilitation Act of 1973, 29 U.S.C.
794, which prohibits discrimination in federally assisted and federally
conducted programs and activities.
When Congress enacted the ADA and Section 504, the internet as we know it
today B the ubiquitous venue for information, commerce, services, and
activities B did not exist. For that reason, although the ADA and Section
504 guarantee the protection of the rights of individuals with disabilities
in a broad array of activities, neither law expressly mentions the internet
or contains requirements regarding developing technologies. When Congress
amended the Rehabilitation Act in 1998, it added section 508. That provision
specifically requires Federal government agencies to ensure that their
electronic and information technologies, including their websites, are
accessible to individuals with disabilities. 29 U.S.C. 794(d).
Within the Civil
Rights Division the Disability Rights Section is responsible for enforcement
of the civil rights statutes relating to the accessibility of information
technologies to individuals with disabilities.
In this testimony, I will first discuss the importance of accessible
technology to people with disabilities. I will then talk about the
significant barriers that keep people with disabilities from having full and
equal access to emerging technologies. I will then discuss the actions the
Department of Justice is taking to ensure that emerging technologies do not
leave people with disabilities behind.
Disability Rights and Developing Technologies Information technologies play
a significant and ever expanding role in everyday life in America. The most
developed and entrenched of these technologies, the internet, has become a
gateway to the full range of activities, goods, and services available
offline. Constituents of State and local government use the internet to
renew library books and driver=s licenses, to file tax forms, and even to
correspond with elected officials. Increasingly, businesses B even those
with substantial physical sales facilities B use websites to sell goods and
services to their customers. So-called e-commerce is a rapidly expanding
segment of the American economy.
Ensuring nondiscriminatory access to the goods and services offered through
the internet is therefore essential to full societal participation by
individuals with disabilities.
It is not simply e-commerce that is affected, however. Electronic and
information technologies are swiftly becoming a gateway to employment and
recruiting and hiring systems are often web based. In many cases, the only
way to apply for a job or to sign up for an interview is on the internet.
Job applicants research employment opportunities online, and they use the
internet to most efficiently learn about potential employers= needs and
policies. And schools at all levels are increasingly offering programs and
classroom instruction through the internet. Many colleges and universities
offer degree programs online; some universities exist exclusively on the
internet. Even if they do not offer degree programs online, most colleges
and universities today rely upon the internet and other electronic and
information technologies in course assignments and discussion groups, and
for a wide variety of administrative and logistical functions in which
students and staff must participate.
For many individuals with disabilities who are limited in their ability to
travel or who are confined to their homes, the internet is one of the few
available means of access to the goods and services of our society. The
broad mandate of the ADA to provide an equal opportunity for individuals
with disabilities to participate in and benefit from all aspects of American
civic and economic life will be served in today=s technologically advanced
society only if it is clear to businesses, employers, and educators, among
others, that their web sites must be accessible.
But the internet is not the only information or electronic technology that
is altering the way in which we do business and provide education in this
country. Facing an exponential rise
- 2 -
in the cost of standard print text books, colleges and universities are
beginning to use electronic books and electronic book readers instead.
Electronic book readers are typically lightweight, hand-held devices with
screens and operating controls. Texts in an electronic form appear on the
screens of these devices to simulate the experience of reading a book. The
texts that appear on screen are formatted to look just like they would in a
print version.
Colleges and universities are
likely to use digital and electronic text books more and more. Some experts
predict that traditional print texts will be replaced by electronic or
digital texts within three to five years.
As public servants entrusted with the welfare of our citizens, we in the
Federal government must provide the leadership to make certain that
individuals with disabilities are not excluded from the virtual world in the
same way that they were historically excluded from Abrick and mortar@
facilities. Emerging technology promises to open up opportunities for people
with disabilities throughout our society. But a digital divide is growing
between individuals with and without disabilities. If we are not careful, as
technology becomes more sophisticated the gap will grow wider, and people
with disabilities will have less access to our public life.
These problems-and the corresponding opportunities-are likely to become more
acute in the years to come. As the population ages, more and more Americans
will need access to emerging technologies to continue working and to access
the healthcare system. The 2006 National Health Interview Survey (NHIS),
revealed that 13.6 percent of Americans 65 to 74 years of age reported
having a vision loss and 21.7 percent of Americans 75 years of age and older
reported having a vision loss. Advances in the availability of accessible
technologies will increase-and are already increasing-the long-term
employability of individuals with progressive blindness and other vision
Technological Barriers to Accessibility
Millions of people have disabilities that affect their use of the web -
including people with visual, auditory, physical, speech, cognitive, and
neurological disabilities. People who are blind or have low vision are often
the most affected by inaccessible information and electronic
technology.1 Many individuals with visual impairments use an assistive
technology known as a screen reader that enables them to access the
information on computers or internet sites. Screen readers read text aloud
as it appears on the computer screen. Individuals who are blind may also use
refreshable Braille displays, which convert the text of websites to Braille.
Sometimes, those individuals will use keyboards in lieu of a mouse to move
up and down on a screen or sort through a list and select an item.
1People who have difficulty using a computer mouse because of mobility
impairments, for example, may use an assistive technology that allows them
to control software with verbal commands. But websites and other
technologies are not always compatible with those assistive technologies.
Captioning of streaming videos may also be necessary in order to make them
accessible to individuals who are deaf or hard of hearing. And individuals
with difficult memory or cognitive impairments may be affected by complex
- 3 -
The most common barriers on websites are posed by images or photographs that
do not provide identifying text. A screen reader or similar assistive
technology cannot Aread@ an image.
When images appear on websites without identifying text, therefore, there is
no way for the individual who is blind or who has low vision to know what is
on the screen.
The simple
addition of a tag or other description of the image or picture will keep an
individual using a screen reader oriented and allow him or her to gain
access to the information the image depicts.
Similarly, complex websites often lack navigational headings or links that
would make them easy to navigate using a screen reader. Web designers can
easily add those headings. They may also add cues to ensure the proper
functioning of keyboard commands. They can also set up their programs to
respond to voice interface technology. Making websites accessible is neither
difficult nor especially costly, and in most cases providing accessibility
will not result in changes to the format or appearance of a site.
Accessibility issues arise outside of the internet as well. Most
significantly, as schools increasingly use electronic texts, the
inaccessibility of many electronic book readers has become more and more
salient. At the same time, however, the use of electronic texts holds great
promise for people with disabilities. Students who are blind or have low
vision have long used a form of electronic text as an accommodation that
enables them to access the course materials their classmates use. These
electronic texts, which are converted from standard print texts, are read on
a computer, using a screen reader or a refreshable Braille display.
In order for these
electronic texts to be truly usable by someone who is blind or who has low
vision, however, the texts must be coded with structural data so that the
assistive technology can properly identify where to begin reading or where a
sentence or paragraph begins and ends.
This system disadvantages blind students in colleges and universities as
compared with sighted students, because it can take considerable time for a
university to locate texts from publishers, and convert the text to a format
usable by a screen reader or similar assistive technology. As a result, all
too often course materials are not available to blind students until well
after classes have begun.2 If you ask just about any disability student
services center at a major university, you will learn how significant this
problem really is.
Imagine as a student
being unable B on a routine basis B to obtain your course materials for the
first four months of the semester. As an alternative to obtaining converted
texts from the publisher, universities may scan printed texts in order to
provide them in electronic form. But this method can result in a Atext
dump,@ which lacks structural data to ensure proper reading by assistive
Conversion errors, too, are common. So, the choice available to blind
students prior to use of the new, electronic book readers, was to receive
accurate materials months into the semester or inaccurate materials in a
more timely manner.
2As the Disability Resource Center ("Center") at Arizona State University,
one of the universities involved in the Kindle matter that I will discuss in
a moment, informs blind students in its handbook, for example,
Atextbook/print conversion is a time intensive process, especially for
technical subject matter, and can require up to four months to complete.@
- 4 -
The emergence of dedicated electronic book readers thus holds great
potential to place students with disabilities on equal footing with other
students. But that happy result will occur only if the electronic book
reader is equipped with text-to-speech capabilities, so that it may read the
electronic text aloud. In a few moments, I will discuss the Department of
Justice=s settlements in investigations of colleges and universities that
used the Kindle DX, an inaccessible electronic book reader, as part of a
pilot project. At the time the Kindle DX was used in this pilot project, it
contained text-to-speech capabilities B meaning that it could read the
electronic text aloud, rendering the text audible and therefore accessible
to blind persons. Unfortunately, the device did not include a similar audio
option for the menus or navigational controls. Without text-to-speech for
the menu or navigational controls, blind students could not operate the
electronic book reader independently, because they had no way of knowing
which book they selected or how to access the search, note taking, or
bookmark functions of the device.
Electronic book readers developed by companies other than Amazon also pose
barriers to use by individuals who are blind or have low vision, typically
because they entirely lack a text-tospeech function.
But a dedicated electronic book reader can be made accessible. From the user

perspective, an accessible electronic book reader might speak each option on
a menu aloud, as the cursor moves over it, and then speak the selected
choice aloud once made by the user.
Special key strokes might be programmed specifically for blind users. For
example, the user would press the alt-A key any time something related to
accessibility is needed, at which point a menu with additional choices would
come up allowing the user to scroll over the menu as described above.
Appropriate coding would mean that the text, even mathematical formulas, or
poetry in which line lengths vary, would be read aloud coherently. In this
way, the user with the disability would gain access to all the information
on the printed page.
The Department of Justice Positions Regarding Website Accessibility.
Ensuring that people with disabilities have a full and equal opportunity to
access the benefits of emerging technologies is an essential part of our
disability rights enforcement at the Department of Justice. Because the
internet was not in general public use when Congress enacted the ADA and the
Attorney General promulgated regulations to implement it, neither the
statute nor the regulations expressly mention it. But the statute and
regulations create general rules designed to guarantee people with
disabilities equal access to all of the important areas of American civic
and economic life. And the Department made clear, in the preamble to the
original 1992 ADA regulations, that the regulations should be interpreted to
keep pace with developing technologies. 28 C.F.R. pt. 36, App. B.
The Department of Justice has long taken the position that both State and
local government websites and the websites of private entities that are
public accommodations are covered by the ADA. In other words, the websites
of entities covered by both Title II and Title III of the statute are
required by law to ensure that their sites are fully accessible to
individuals with disabilities. The Department is considering issuing
guidance on the range of issues that arise with regard to the internet sites
of private businesses that are public accommodations covered by
- 5 -
Title III of the ADA. In so doing, the Department will solicit public
comment from the broad range of parties interested in this issue.
There is no doubt that the internet sites of State and local government
entities are covered by Title II of the ADA. Similarly, there is no doubt
that the websites of recipients of Federal financial assistance are covered
by Section 504 of the Rehabilitation Act.
The Department of
Justice has affirmed the application of these statutes to internet sites in
a technical assistance publication, Accessibility of State and Local
Government Websites to People with Disabilities
 and in numerous agreements with State and local governments and recipients
of Federal financial assistance. Our technical assistance publication also
provides guidance with simple steps to ensure that government websites have
accessible features for individuals with disabilities.
As to private places of public accommodation, only two cases B both in
Federal district courts B have specifically addressed the application of ADA
Title III to their websites, and those cases have reached different
conclusions. But the position of the Department of Justice has been
clear: Title III applies to the internet sites and services of private
entities that meet the definition of Apublic accommodations@ set forth in
the statute and implementing regulations. The Department first made this
position public in a 1996 letter from Assistant Attorney General Deval
Patrick responding to an inquiry by Senator Harkin regarding the
accessibility of websites to individuals with visual impairments. The letter
has been widely cited as illustration of the Department=s position. The
letter does not state whether entities doing business exclusively on the
internet are covered by the ADA. In 2000, however, the Department filed an
amicus brief in the Fifth Circuit in Hooks v. OKbridge, which involved a
web-only business; the Department=s brief explained that a business
providing services solely over the internet is subject to the ADA=s
prohibitions on discrimination on the basis of disability.3 And in a 2002
amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions,
the Department argued against a requirement, imposed outside of the internet
context by some Federal courts of appeals, that there be a nexus between the
challenged activity and a private entity=s brick-and-mortar facility to
obtain coverage under Title III. Although Rendon did not involve the
internet, our brief argued that Title III applies to any activity or service
offered by a public accommodation either on or off the premises.4 The
Disability Rights Section of the Department of Justice=s Civil Rights
Division began to provide technical assistance to a host of public and
private entities that were in the process of assisting Federal agencies with
Section 508 compliance, and much of its guidance on making internet sites
accessible developed from there. There are several sets of standards
describing how to make websites accessible to individuals with disabilities.
Government standards for 3Department of Justice Brief as Amicus Curiae at p.
7, Case No.
Aug. 1, 2000 (on appeal from the United States District Court for the
Western District of Texas.) The unpublished, per curiam opinion can be found
at 232 F.3d 208 (5th Cir.
4Department of Justice Brief as Amicus Curiae, Case No. 01-11197, June 18,
2002 (on
appeal from the United States District Court of the Southern District of
Florida). 294 F.3d 1279 (11th Cir. 2002).
- 6 -
website accessibility were developed pursuant to Section 508. Many entities
elect to use the standards that were developed and are maintained by the Web
Accessibility Initiative, a subgroup of the World Wide Web Consortium
The Department of Justice Positions Regarding Other Emerging Technologies In
June of last year, the Department of Justice received several complaints
from the National Federation of the Blind ("NFB"), the American Council of
the Blind ("ACB"), and a coalition of disability rights groups collectively
known as the Reading Rights Coalition B each alleging that colleges or
universities were violating their obligations under the ADA and Section
504 by having their students use electronic book readers that were
inaccessible to individuals who are blind for course materials. Case Western
Reserve University, Princeton University, Pace University, Reed College, and
Arizona State University, among others, had formed a pilot project with
Amazon.com, Inc., to evaluate the viability of using the Kindle DX in a
classroom setting. The NFB and the ACB, along with an individual blind
plaintiff, also filed suit in Federal district court against Arizona State
University; they argued that the pilot project violated Title II and Section
504. Nat=l Fed. of the Blind , et al. v. Arizona Bd. of Regents, et al.,
Case No. CV
09-1359 GMS (D. Az. 2009).
The Department of Justice investigated each complaint and, on January 13,
2010, the Department issued a press release announcing that it had reached
separate settlement agreements with Case Western Reserve University, Reed
College, and Pace University.5 The Department of Justice and the NFB and the
ACB also jointly settled the litigation against Arizona State University in
an agreement signed on January 11, 2010. Since that time, on March 29, 2010,
the Department entered into a final settlement agreement with Princeton
These settlement agreements provide that the universities will not purchase,
require, or in any way incorporate into the curriculum the Kindle DX or any
other dedicated electronic book reader that is not fully accessible to
individuals who are blind or have low vision. The agreements become
effective at the end of the pilot projects. The agreements also contain a
functional definition of accessibility when applied to dedicated electronic
book readers B the universities must ensure that students who are blind or
have low vision are able to access and acquire the same information, engage
in the same interactions, and enjoy the same services as sighted students
with substantially equivalent ease of use. The purpose behind these
agreements is to underscore that requiring use of an emerging technology in
the classroom that is inaccessible to an entire population of individuals
with disabilitiesBindividuals with visual disabilitiesBis discrimination
that is prohibited by the Americans with Disabilities Act of 1990
("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504").
During the course of its investigations and negotiations with the colleges
and universities, Amazon.com, Inc., which is not covered by the ADA or
Section 504 in its capacity as the 5Agreement between United States and Case
Western Reserve University, Jan.
13, 2010;
Agreement between United States and Pace University, Jan. 13, 2010;
Agreement between United States and Reed College, Jan. 13, 2010.
- 7 -
manufacturer of the Kindle DX, posted a notice on its website indicating its
intention to make the menu and navigational controls of the Kindle DX fully
accessible to individuals who are blind or have low vision by extending the
text-to-speech feature to these functions by the end of the year 2010.
The accessibility of electronic text readers stands to improve dramatically
the experience of students with visual disabilities. The instantaneous
downloading of texts is obviously a Anight and day@ difference for blind
students who are used to waiting for their materials until well into the
semester or to receiving inferior materials that are difficult to follow.
Moreover, if accessible electronic book readers are used in the classrooms
of the future, students with and without disabilities will be able to use
the same devices, albeit in different ways, resulting in an integrated
experience for students with disabilities who will not have to rely on
separate accommodations to gain access to course materials. Such integration
is the core goal of the ADA and Section 504.
As we come to realize anew each day, the pace of technological change is
amazing; what appeared impossible just months or years ago is now
commonplace. Advancing technology can open doors for people with
disabilities and provide the means for them to have full, equal, and
integrated access to American life. But technological advances will leave
people with disabilities behind if technology developers and manufacturers
do not make their new products accessible. In carrying out its
responsibilities under the ADA and the Rehabilitation Act, the Federal
government must make sure that the legal protections for the rights of
individuals with disabilities are clear and sufficiently strong to ensure
that innovation increases opportunities for everyone. We must avoid the
travesty that would occur if the doors that are opening to Americans from
advancing technologies were closed for individuals with disabilities because
we were not vigilant.
I look forward to answering any questions that Members of the Subcommittee
may have.

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