Q&A with Paul Grossman: Who Is Responsible for Ensuring Accessibility?
Paul Grossman is a Former Chief Reginal Attorney for the US Department of Education, Office of Civil Rights (OCR).
Paul is an expert on accessibility laws in higher education.
In the webinar, The Legal Year in Review: Accessibility Trends in Higher Ed, Paul dives into the trends in higher education for digital equality. Below is a snippet from the Q&A portion covering faculty versus student civil rights, cost of audio description, and who is responsible for making content accessible.
Does a faculty contract trump a student’s civil rights?
PAUL GROSSMAN: If I’m going to make a general principle statement, it does not. There is a provision in the 504 regulations and in the ADA regulations about methods of administration. That means that how a school does business cannot have a discriminatory result on students.
An example of this came up in a contractual case that I had many years ago. A school would hire interpreters for deaf students on an as-needed basis. And they had successful relationships with enough interpreters that it worked.
But then the union insisted that the school not hire any interpreter until the school had complied with the provision in the collective bargaining agreement, which stated that no job would be filled with an outside employee before three weeks had transpired, where inside employees were given the opportunity to bid on the job. And of course, the problem was, there were no inside employees who would bid on the position. And secondly, three weeks of a semester can be a lifetime for a student.
And we took the position that, under the method of administrative regulation, the rights of the deaf students trumped the collective bargaining agreement provision. And while the school never said, “Oh, yeah, you’re right,” it did agree that it would waive this provision with regard to hiring interpreters.
Is the cost of adding accessibility accommodations like audio description ever considered in a case?
PAUL GROSSMAN: There is always such a thing as an undue burden defense. But it’s a very, very hard defense to successfully raise. And the truth is, I am unaware of any case against an institution of any size that was successful on undue burden grounds. A fundamental alteration is a very viable defense, but the undue burden is not.
Now, one might argue that if there is no one who needs the captioning– so you have a brick-and-mortar class, and you know everyone who’s in that class– then I could see asserting, because there’s no need and there’s an expense, that the school need not do it in that situation. But if you have an online circumstance, you have a class with students with sensory impairments, if you have a huge class, I think in all those circumstances that defense isn’t going to fly.
Who has the responsibility for making something accessible? Is it a faculty member, a university, or a vendor that they are using that provides inaccessible materials?
PAUL GROSSMAN: Ultimately, it’s always the university. Now, the university may contract with the vendor to see to it that the vendor will do everything necessary to both guarantee and deliver an accessible product. And indeed, at the very start, I recommended that you go to Lainey Feingold’s website, and there is at least one article about how to contract with vendors. But even if you contract with a vendor in that manner, if ultimately the product is inaccessible, DOJ and OCR will still hold the university responsible.
Now, there have been cases where there was a contract, for example, to make a facility accessible, and because the university wrote a good contract, they were able to bring that contractor in as a co-defendant. So it didn’t entirely let the university off the hook, but it forced the vendor, who had promised to make a facility a constructive facility and accessible manner, also responsible.
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