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Accessibility Complaints: The Department of Education Reopens Hundreds

By: Aylin Dunham

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New Revision Reopens Dismissed Accessibility Complaints

In November 2018, the U.S. Department of Education announced additional revisions to the Office for Civil Rights’ (OCR) Case Processing Manual (CPM). Previously in its March 2018 revision, the Department of Education made several revisions to this process, some of which were considered controversial. Due to this controversy, an accessibility lawsuit that was filed in May by the National Federation of the Blind, the Council of Parent Attorneys and Advocates, and the National Association for the Advancement of Colored People argued that these provisions were discriminatory and contrary to OCR’s mission. As a result of this lawsuit, some of the components removed in its March 2018 revision are being reinstated In this newer revision of the CPM. These revisions include the reopening of hundreds of accessibility complaints which had previously been dismissed.

What revisions are being reinstated?

The most controversial of the components removed in March 2018 allowed the OCR to dismiss accessibility complaints that were part of a pattern of complaints that placed “an unreasonable burden on OCR’s resources.” Hundreds of accessibility complaints were dismissed for this reason, allowing many complaints go to unresolved.

Other revisions include one that restores the ability for complainants to make appeals for cases of dismissals and insufficient evidence, as well as the opportunity for recipients to provide responses to these appeals. In addition to this, the revision requires the OCR to comply with the First Amendment when when it comes to investigating complaints. In addition to this, important revisions are also being upheld. This includes one that allows investigations and resolutions to focus on the issues brought up by the complainant and only doing systemic investigations in specific situations.

What’s unclear is whether all of these previously dismissed accessibility cases are back on the table. According to several sources, it seems like a significant number of complaints will be reopened. Disability rights advocates like Marci Lipsitt from Michigan dedicate themselves to submitting hundreds of complaints to the OCR yearly. In November, Lipsitt received a letter from the Department of Education notifying her that her 662 complaints opened on behalf of students would be reopened and investigated. In addition to these cases being reopened, it seems that the case review process will be significantly expanded. An official press release by the Department of Education indicates that “post-case closure Quality Assurance Reviews” will be done to ensure quality and consistency in all of the regional OCR offices.

In light of these events comes news of fifty new lawsuits filed over website accessibility issues in universities and colleges across the country. The lawsuit, filed by blind resident of New York Jason Camacho, argues that the various websites across these colleges and universities are inaccessible to people who use screen readers. What stands out in this case is that it wasn’t filed with the OCR but the courts of New York, making it a legal case that will rely on regulations in the Americans with Disabilities Act (ADA). Indeed, many of the complaints filed with the OCR rarely make it to courts and it’s a strategy that some disability advocates tend to avoid, because it tends to put institutions on the defensive.

What does this mean for your institution?

For educational institutions, these new revisions mean that students will have the opportunity to press for expanded accessibility in their learning environments. In most institutions, students remain one of the main sources of improving accessibility across campuses. Through complaints, students are able to bring to light some of the issues that staff members may have missed or never thought to consider. Inevitable improvements that will need to be made will be given momentum through this process. While complaints may not seem favorable to any institution, it should not be a source of discontent. The majority of complaints made are found to be valid, bringing to light important issues for students.

In his best selling book Nudge, Behavioral economist Richard Thaler describes how complaints like these can help “nudge” institutions in the right direction in terms of accessibility. Even multiple complaints by one individual reveal important issues about accessibility — issues that can be addressed before becoming a systemic issue. In some respects, the new changes in the CPM and the resulting re-opened complaints can be interpreted as “accessibility nudges,” through which institutions receive motivation to correct gaps present in their system. As mentioned in our previous article on how to launch an Accessibility Nudge Unit, once problems are addressed, these “nudges” can be used to improve learning experiences for all students.

Improve Your Own Practices

Taking the time to do research and learn ways to improve your institution is a great resource in itself. AST can help you resolve issues in your institution and help you use nudges to improve your accessibility complaint practices.