[Nfbmd] Comments on the TEACH Act from a WebAIM Blog

Sat Oct 18 03:02:33 UTC 2014

This is an interesting post I  found on WebAIM concerning the TEACH Act.

Michelle. 

Subject: FW: WebAIM October 2014 Newsletter

Should TEACH Act language appear in the Higher Education Act? NCDAE and
WebAIM weigh in

Posted on  <http://ncdae.org/blog/teach-act/> October 15, 2014 by
<http://ncdae.org/blog/author/cyndi/> Cyndi 

NCDAE and WebAIM joined together on this position statement

Since their inception, both WebAIM and the National Center on Disability and
Access to Education have worked together with higher education on the issue
of web accessibility.  We believe that while accessibility is not easy to do
it must be accomplished if individuals with disabilities are to participate
fully in civil society.

Recently, important conversations of digital accessibility have emerged in
U.S. higher education.  They were prompted by the inclusion of language from
the bipartisian
<https://beta.congress.gov/bill/113th-congress/house-bill/3505> Technology,
Education, and Accessibility in College and Higher Education (TEACH) Act
into the proposed reauthorization of the Higher Education Act; known as the
<http://www.help.senate.gov/imo/media/doc/HEAA%20Discussion%20Draft%20Langua
ge%206.25.14.pdf> Higher Education Affordability Act (HEAA), see Section
931. As a result, position statements made by the
<http://www.aascu.org/policy/federal-policy/outreach/LettertoHarkinHEA092920
14.pdf> American Council on Education and
<https://www.insidehighered.com/views/2014/09/16/essay-criticizing-teach-act
> Educause, along with a
<https://www.educause.edu/library/resources/technology-equality-and-accessib
ility-college-and-higher-education-act-teach-act-legal-analysis> legal
analysis provided for 6 education associations against the inclusion of
TEACH language into HEAA, ignited a firestorm. This debate has been seen in
<https://www.insidehighered.com/news/2014/09/19/higher-ed-associations-disab
ility-rights-groups-clash-over-campus-technology> news articles,
<http://chronicle.com/article/A-New-Obstacle-for-Students/148795>
commentary,
<https://nfb.org/blog/vonb-blog/unachievable-or-unwanted-why-ace-opposed-acc
essibility-guidelines> blogs from groups,
<https://www.insidehighered.com/blogs/law-policy-and-it/convergence> blogs
from individuals,
<https://www.insidehighered.com/audio/2014/09/19/program-18-are-campuses-und
ermining-pell-grants-digital-access-disabled-students> podcasts, and
alternative  <http://ahead.org/teach_act_clarification_letter> position
statements.

Both the National Center on Disability and Access to Education (NCDAE) and
WebAIM would like to share our thoughts on this complex subject. Nobody at
NCDAE or WebAIM is offering a legal opinion; rather, our thoughts come from
working with institutions of higher education on matters of accessibility
for 15 years.

TEACH Act, a primer (Or skip to
<http://ncdae.org/blog/teach-act/#controversy> What's the controversy)

Note: This TEACH Act should not be confused with a previous piece of
legislation using the same acronym that deals with the use of copyrighted
materials in distance education. 

The current Technology, Education, and Accessibility in College and Higher
Education (TEACH) Act had it's origins in the previous Higher Education
Opportunity Act of 2008, which established the Accessible Instructional
Materials (AIM) Commission. The
<http://www2.ed.gov/about/bdscomm/list/aim/meeting/aim-report.pdf> AIM
Commission detailed recommendations to Congress and to the Secretary of
Education in December of 2011.  One such recommendation influenced the
creation of the TEACH Act. This proposal was introduced to the House by
Representative Tom Petri (R-Wisconsin) in November of 2013 and introduced to
the Senate by Senators Elizabeth Warren (D-Mass) and Orrin Hatch (R-Utah).
The bill had extraordinary bipartisan support, including 52 cosponsors of
the bill across party lines. It was referred to committee February of 2014
and has yet to move out for a vote.

Because of the AIM Commission Recommendations, authors of the TEACH Act were
able to respond to some issues plaguing accessibility in higher education.
One issue is the fact that accessibility guidelines are not unified as
campuses try to make content accessible (i.e., some conforming to Section
508, others to State guidelines or standards, others to differing versions
of WCAG, and others who blend accessibility guidelines uniquely for their
campus). This creates enormous headaches for vendors and for campuses
seeking conformance to their own guidelines in a purchasing context; if you
cannot purchase digital materials that follow your own technical standard it
will be nearly impossible to reach your accessibility goals. Another issue
is the enormous liability perceived by many in higher education for anyone
who acknowledges that they need to work on digital accessibility.

The TEACH Act proposal provides a mechanism for unified accessibility
guidelines to be created in harmony with national and international
standards.  It authorizes the Access Board to be responsible for the work to
establish and keep guidelines current (i.e., initial guidelines to be
completed in 18 months, as well as reviews to be completed every 3 years).
Those institutions that wish to embrace TEACH guidelines can do so, yet
there is nothing in the Act that would compel them to do so. Since
institutions are not required to conform to TEACH, they can continue to use
their own set of guidelines if they wish. However, for those that choose to
become a TEACH Act institution, they must implement the guidelines into
every aspect of the campus digital architecture.

The voluntary nature of embracing TEACH comes from this language:

"Nothing in this Act shall be construed to require an institution of higher
education to use electronic instructional materials or related information
technologies that conform to the accessibility guidelines described in
section 2 if the institution of higher education provides such materials or
technologies, or an accommodation or modification, that would allow covered
blind individuals and covered individuals with a disability to receive the
educational benefits of such materials or technologies-

(1) in an equally effective and equally integrated manner as non-disabled or
non-blind students; and

(2) with substantially equivalent ease of use of such materials or
technologies.

Thus, an institution has the choice to embrace TEACH Act guidelines or to
continue to do that which they are doing now to assure conformance to
Section 504 of the Rehabilitation Act and the Americans with Disabilities
Act.  One incentive for an institution to embrace the TEACH Act is the
Safe-Harbor provision of the Act.  It protects those institutions that
embrace TEACH by considering that they in fact conform to the
non-discrimination provisions of Section 504 of the Rehabilitation Act and
also the Americans and Disabilities Act where digital access is concerned.

So, in summary, the TEACH Act proposes to establish clarity of guidelines,
provide market-driven solutions to challenges in accessibility, provide
legal protections for those institutions who embrace TEACH, all the while
being entirely voluntary for the higher education community.

What's the controversy?

Those opposed to TEACH in HEAA generally cite at least one of 5 issues:

1.	This program exerts increased federal regulation that will
overburden higher education 

2.       This program will result in the demise of technology innovation on
our nation's campuses 

3.       There is not a reason for TEACH Act provisions since we have
existing laws that are sufficient to address the issues 

4.       The language of TEACH Act creates a different legal standard for
institutions who choose to not embrace the guidelines 

5.       The Access Board is ill equipped to do the work 

Federal Regulation

First and foremost, many in higher education shiver at the thought that
increasing issues of compliance are put into reauthorizations of the Higher
Education Act. Opponents to adding accessibility regulation into the HEAA
indicate it is becoming a junkyard of federal oversight, where items are
simply tossed in because they can be. Proponents to regulation being
included for digital access indicate that this is a proper use of Federal
oversight. The thinking is that if those in higher education did not want to
be regulated on this issue, they have had nearly 20 years to get in front of
it in a way that regulation is not needed. This is especially important
considering the topic; that failure to provide access to electronic
materials violates protections against discrimination for persons with
disabilities and is an issue of civil rights. Also, proponents of TEACH
language appearing in the latest HEAA draft indicate that it would make
sense that something that came from the previous reauthorization of the
Higher Education Act (i.e., the work of the AIM Commission) would return to
inform a subsequent reauthorization of the Act.

Demise of technology innovation

Opponents to the addition of TEACH language in the HEAA indicate that when
an institution chooses to adopt TEACH guidelines, this will be the end of
technology innovation in higher education; that is because institutional
technologies would need to conform to the guidelines. One example that has
been seen in posts is the use of 3-D technologies in biology textbooks.
Opponents indicate that the campus would be unable to use this innovation.
Proponents see it differently. While they concede that in the short term
some technologies would not be used as developed, they believe innovation
overall is enhanced as entrepreneurs, visionaries, and vendors solve
problems. This could drive greater technology innovation than ever before.
The market-driven approach to innovation could not be created whatsoever if
there were not a large playing field (i.e., a large swath of higher
education entities) as potential new customers for these innovations that
address electronic access. Proponents cite the rich innovations that have
already been developed by individuals or groups whose focus is to address
accessibility.  They express confidence that technology innovation will
continue to enrich higher education in ways we can't yet know. It is
important to note that the language of the proposal allows for
accommodations or modification as long as they are "equally effective . . .
equally integrated . . .[and have] substantially equivalent ease of use".

Existing laws are sufficient

Opponents to this action indicate that we have existing laws that are
sufficient for today's needs (i.e., Sections 504 and ADA).  They do not see
a reason to create additional burdens for any institution. In cases where
discrimination may be present, opponents to adding TEACH language into HEAA
indicate that we have processes in place to address it (i.e., through OCR
complaints, and the courts). Proponents consider the failure of higher
education to become accessible over time to be one reason this action is
needed now.  They cite the uptick in litigation and the failure of judgments
to broadly influence the higher education system as another reason something
new is needed. It is true that many institutions wait until they receive
requests, or worse, until there is a formal complaint lodged before action
is taken.  This creates an untenable position for individuals with
disabilities who are always put in a position to have to request or
complain, and usually put in a position to wait for that which they need.
This creates lags in their educational experiences that affect outcomes.

Creates a different legal standard

If an institution chooses not to embrace TEACH guidelines, they must then
provide materials and technologies (or accommodations and modifications), in
an "equally effective and equally integrated manner as non-disabled or
non-blind students; and with substantially equivalent ease of use of such
materials or technologies."  The current legal standard of Sections 504 and
the ADA reference the use of reasonable accommodations or auxiliary aides
and services that result in "effective communication" provided in a "timely"
manner.  Opponents to adding TEACH language into HEAA believe that this
could fundamentally shift the legal standard. We could not find an opinion
from proponents on this specific point so it is not known if they agree or
not.  There is discussion, however, that important differences in the
language used in TEACH are the result of the need for institutions to be
proactive, rather than reactive in their approach to accessibility.

The Access Board is ill equipped

Those opposed to adding TEACH language into the reauthorized HEAA cite that
they are uncomfortable that the Access Board was named as the responsible
federal agency.  They do not have confidence that the Access Board could
complete the work as envisioned in TEACH; to create initial standards within
18 months and engage in cycles of review each 3 years. There is a reason for
this concern-A refresh of Section 508 standards began in 2006 and has not
yet been completed. Proponents feel they are the best equipped to address
harmonization of the guidelines, and feel that if the Access Board is given
resources to perform a statutory duty on a specific schedule, that they
could accomplish the task.

Our position

Let us begin by stating that those in higher education want the very best
outcomes for all their students. This is why they have gone into the field.
While we have read some harsh criticisms of individuals in the postsecondary
community, NCDAE AND WebAIM respect the challenging work that goes into
enterprise-wide web accessibility, and we acknowledge that this is often
times a bumpy journey.

With that said, we have also heard many reasons why institutions choose not
to tackle accessibility in a proactive manner.  Sometimes it is due to
competing institutional priorities and shrinking budgets.  Other times
accessibility is put off because there is a lack of accessible products.
(Moreover we have heard vendors remark that accessibility is not part of
their development cycle because it's not a feature request from their
customers.) We have also heard institutional administrators quietly craft a
strategy of waiting until there is a complaint sufficient to take action on
accessibility writ large.  Taken together, there is a broad segment of the
higher education community who has decided, consciously or not, to leave the
important work of accessibility as an after-the-fact accommodation of a
student's request.  The model of post-hoc accommodations in the digital
world could never be the long-term solution, it creates a false sense of
protection for institutions that are under increasing legal peril, and it
continues to plague those with disabilities today.

It is our opinion that the HEAA is an appropriate vehicle to place a
regulatory issue of this importance. It would elevate the urgency to make
intentional decisions on accessibility for each institution.  And, let us
not forget, it is voluntary.

Market driven approaches were a brilliant strategy that helped the federal
government as it implemented it's own procurement policies under Section
508. If the lack of accessible products at the time, or the fear that it
would stifle all innovation had been the reason not to move forward, we
would not be where we are now; we currently have many accessible products
and the attention of federal vendors. Bringing together a single harmonized
standard that vendors would use in higher education would likewise create
important innovation and product delivery. All journeys begin with a single
step. We believe that innovation will not suffer, rather it will be enhanced
as new energies go into thoughts about access for all.

We cannot comment on whether or not the TEACH language provides a different
legal standard. While the spirit of it does not seem to do so, legal eyes
are the best to weigh in on the issue.

While placing this work into the hands of the Access Board worries some, it
is our belief that given appropriate resources and statutory authority, they
are the best fit for the work.  We do think that 18 months to promulgate the
guidelines may be too aggressive. It is more likely that the committee they
will appoint would complete draft guidelines in 18 months, and then the work
to promulgate rule would take another 18-24 months (or more if the Section
508 work is a peek into a typical process).

Finally, we see a gaping hole in the language inserted into the HEAA. When
the ADA was passed into law, massive changes reverberated throughout our
society not unlike that which will happen in higher education if this goes
into effect.  The establishment of transition planning was a brilliant idea
that should be considered here.  At the time, if you were a business trying
to conform to the ADA and you were sticking to reasonable timelines of your
own posted transition plan, you were held harmless for that period.  Some
institutions of higher education may need the option of creating a
transition period as they adopt the TEACH guidelines.  Of course all other
existing laws would be in force (i.e., Section 504 and ADA), but the slow
and arduous work will have begun; the work to ensure that accessibility of
digital materials is in place for all in higher education.

This entry was posted in  <http://ncdae.org/blog/category/uncategorized/>
Uncategorized by  <http://ncdae.org/blog/author/cyndi/> Cyndi.  

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