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����The New ADA Title II Regulation on Digital Technologies:�What it Means for Your School��

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Why Digital Accessibility? (1 of 2)

  • Digital accessibility = bridge to information, services, goods (connects customers to you)
  • Accessibility = Students
    • 16% of world population = 1.3 billion people
    • $3 trillion disposable income worldwide
  • The world is online – digital accessibility = Equality
  • Digital accessibility = Privacy and Independence

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Why Digital Accessibility? (2 of 2)

  • Digital accessibility = Civil Right
  • Digital inaccessibility = Exclusion

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What Is Digital Accessibility? (1 of 3)

  • Beyond websites – mobile apps, kiosks, VR, software,…
  • Technology + content
  • Allows people with disabilities to access same information and engage in same transactions at same time with equivalent ease of use

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What Is Digital Accessibility? (2 of 3)

  • People with all disabilities
    • Blind/low vision
    • Deaf/hearing loss
    • Manual dexterity
    • Cognitive
    • Speech impairment

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What Is Digital Accessibility? (3 of 3)

  • Coding to work with assistive technology and to work for people with disabilities
    • Alt text for images
    • Labeled form fields
    • Keyboard-only navigation
    • Color contrast
    • Proper use of headings
    • Captions and audio description for video
    • No flashing content
    • Color not the only means of conveying information

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THE LAWS

AMERICANS WITH DISABILITIES ACT (ADA)

SECTION 504 OF THE REHABILITATION ACT

STATE LAWS

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Americans with Disabilities Act, Title II (1 of 2)

  • Title II – State and Local Governments
    • Equally Effective Communication
      • Ensure effective communication with people with disabilities through auxiliary aids and services
      • Accessible electronic and information technology is an example of an auxiliary aid
      • In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
    • No technical accessibility standard

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Americans with Disabilities Act, Title II (2 of 2)

  • Title II – State and Local Governments (including public colleges and universities)
    • New DOJ regulation
      • Effective April 24, 2026 for entitles with population >/= 50,000
      • Effective April 26, 2027 for entities with population < 50,000
      • Population is determined by the size of the government (e.g., Maryland), not the size of the school
        • Determine by census data

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ADA Title II Regulation (1 of 5)

  • Web content and mobile apps must meet WCAG 2.1 Level AA
    • Defense – Entity can demonstrate its nonconformance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the web site or app
    • Permits equivalent facilitation providing substantially equivalent or greater accessibility and usability
  • Can only use a conforming alternate version when a technical or legal limitations prevents accessibility
  • Covers any web content or mobile apps the public entity makes available, directly or though contract, licensing or other arrangement

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ADA Title II Regulation (2 of 5)

  • 5 Exceptions (don’t have to be accessible in advance)
    • Archived web content
      • Created before the compliance date
      • Kept only for reference, research or recordkeeping
      • Kept in a special area for archived content
      • Has not changed since it was archived
      • Still have to make it accessible on request

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ADA Title II Regulation (3 of 5)

  • Preexisting conventional electronic documents (e.g. pdfs)
    • Were available on the website before the compliance date
    • Not currently being used to apply for, access, or participate in the public entity’s services, programs or activities
  • Third party posts (e.g., comments)
    • Not posting due to a contractual, licensing, or other arrangement with the public entity
    • Third party content the public entity posts (e.g. maps) are not exempted
    • Tools or platforms that allow third parties to post must be accessible

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ADA Title II Regulation (4 of 5)

  • Individualized password-protected documents (e.g., bills)
    • Word processing, presentation, PDF, or spreadsheet files (not html)
    • About a specific person, property or account
    • Password-protected or otherwise secured
  • Preexisting social media posts
    • Before the compliance date
    • Not required to ensure the social media platform is accessible, but must use accessibility tools available

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ADA Title II Regulation (5 of 5)

  • Not excepted
    • Password-protected course materials or educational technologies
    • Captioning for live-audio content
    • Linked third party content if the public entity makes the content available through contractual, licensing or other arrangements
    • External apps the public entity uses through contractual, licensing or other arrangements
    • Library digital materials
    • Classes without students with disabilities

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Americans with Disabilities Act - Title 3

  • Title III –public accommodations (12 categories, including private colleges and universities)
    • Effective communication
      • Ensure effective communication with people with disabilities through auxiliary aids and services
      • Accessible electronic and information technology is an example of an auxiliary aid
      • In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
    • No technical accessibility standard

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Section 504

  • Recipients of federal financial assistance
    • Equally effective communication (Title II Standard)
    • HHS Regulation – WCAG 2.1 Level AA & exceptions
      • Effective May 11, 2026 for entities with >/= 15 employees
      • Effective May 10, 2027 for entities with < 15 employees
    • Same defenses as ADA

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Americans with Disabilities Act - Defenses

  • DEFENSES (Title II and Title III and Section 504)
    • Must be documented in writing
      • By an official with budgetary authority
    • Undue Burden
      • Significant difficulty or expense in light of all the entity’s available resources
    • Fundamental Alteration
      • Accessibility would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered
    • Entity must provide alternative that would not result in undue burden or fundamental alteration but ensure effective communication to the maximum extent possible.

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State Laws

  • Anti-discrimination
    • Some follow ADA, some go beyond (California, New York)
    • Damages (California, New York)
  • State-funded technology
    • California, Colorado, Maryland (K-12), Rhode Island, Texas, Colorado
    • Follow 508
    • Often require WCAG

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GUIDANCE

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Guidance Links

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CASES

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Education

  • University of Illinois Chicago (2021)
  • Los Angeles Community College District (2022)
  • University of California Berkeley (2022)
  • Berkeley Unified (2022)
  • CUNY (2023)

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Kiosks

  • Quest Diagnostics
  • Labcorp
  • NFB Settlements with SSA and CVS

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Overlays

  • Lighthouse v. ADP, Inc. – overlays not compliant
  • Parikh v. AccessiBe – dermatology practice subscribing to overlay service filed class action for breach of contract
  • FTC consent decree with AccessiBe

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IMPLEMENTATION

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IMPLEMENTATION PRACTICES

  • POLICIES
  • STAFFING & TRAINING
  • PRE-POSTING PROCEDURES
  • PROCUREMENT
  • REMEDIATION
  • INTERIM MEASURES
  • AUDITS
  • FEEDBACK

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IMPLEMENTATION – Policies & Staff

  • Establish leadership commitment
  • Adopt policy and publicize policy
    • Setting standard (WCAG 2.1 Levels A & AA)
  • Hire/assign responsible staff
    • With sufficient authority and budgetary authority
    • With sufficient expertise
  • Training for developers and content creators
  • Provide experts/resources for developers and content creators

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IMPLEMENTATION – Pre-posting Procedures

  • Set procedures for pre-posting reviews of accessibility of new content
  • Establish responsibility to approve and document exceptions
      • 5 exceptions
      • Undue burden
      • Fundamental alteration
      • Minimal impact on accessibility
      • Equivalent facilitation
  • Establish accountability mechanisms for developers and content creators who post inaccessible material

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IMPLEMENTATION - Procurement

  • PROCUREMENT
    • Establish
      • Procurement accessibility policy
      • Contract language
      • Audit capability
      • Accountability mechanisms
      • Remediation responsibility

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IMPLEMENTATION – Remediation (1 of 2)

  • Audit to identify barriers
  • Prioritize
    • Frequency of customer encounters
    • Importance of function
    • Severity of the barrier
    • Ease of remediation

    • Schedule for barrier elimination
      • Page by page
      • Barrier type by barrier type
      • Format by format

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IMPLEMENTATION – Remediation (2 of 2)

  • Test, track and report progress
    • Automated and user testing
    • Track complaints and feedback
    • Establish metrics for evaluation
    • Evaluate employee performance
  • Update (every 5 years at least)
  • Share success

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QUESTIONS

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Eve Hill�Inclusivity Strategic Consulting�(410) 962-1030�ehill@browngold.com