OCR’s New Approach to Resolving Website Accessibility Complaints

Our April 26, 2018 edition of School Law Notes highlighted myriad changes to the Office of Civil Rights Case Processing Manual (CPM) that would directly affect schools. One of the most noteworthy changes to the CPM allowed OCR to dismiss a complaint in its entirety if the complaint was either (1) a continuation of a pattern of complaints previously filed with OCR against multiple recipients or (2) filed for the first time against multiple recipients, and the complaint placed an “an unreasonable burden on OCR’s re­sources.” The new bases for dismissal followed a deluge of duplicative website accessibility complaints made by a few mass filers against public bodies, including most Michigan schools.

Shortly after the release of the new CPM, several groups sued OCR, seeking to overturn the CPM changes. In November 2018, in response to the lawsuit, OCR an­nounced plans to reverse some of the CPM changes, in­cluding removing OCR’s dismissal authority based on a “pattern of complaints previously filed with OCR by an individual or group” that placed an “unreasonable burden” on OCR’s resources.

OCR’s response to the lawsuit also included establishment of the National Website Accessibility Team (NWAT) of OCR personnel, tech consultants, and attorneys to open “directed investigations” to expedite the resolution process for hundreds of website accessi­bility complaints that were dismissed under the reversed CPM language.

Some Michigan schools have heard from OCR about moving forward with this expedited resolution process. The NWAT’s approach is described as a collaborative, educational process, with the goal of quickly closing out these complaints by remedying potential barriers to website accessibility and then issuing non-violation letters.

Per our conversations with OCR, the automated website accessibility compliance tools used by many schools reportedly do not catch some website accessi­bility issues that have been discovered through OCR’s manual audits. OCR’s manual testing has also consist­ently detected accessibility issues with some third-party vendor services. For this reason, the NWAT’s first action is to run manual website accessibility compli­ance testing on a school’s website.

Given this new manual testing approach, school officials should ensure that their IT personnel supple­ment the use of automated website accessibility tools with manual checks and regularly monitor and address accessibility issues with third-party vendor services. Regardless of the source of the website accessibility issue, your school remains responsible for ensuring persons with disabilities can access school websites.

After manual testing, NWAT representatives will schedule a “Tech Meeting” with a school that usually in­volves an OCR attorney, OCR Tech Consultant, school administration and IT personnel, and the school’s legal counsel, if desired. During this meeting, OCR personnel identify and discuss options with school personnel about how to remedy any accessibility issues. OCR does not prescribe how a school must address accessibility issues, but instead works collaboratively with school officials to explore optional remedies.

Following the “Tech Meeting,” schools are provided an opportunity to remedy any identified accessibility issues. The final steps of the process include, but are not limited to, a second Tech Meeting to review the school’s progress, discussing any remaining accessibility issues, obtaining approval by NWAT representatives, and a fi­nal manual re-check by OCR’s Due Diligence Team. Af­ter the OCR Due Diligence Team signs off on the school’s website, it is our understanding that an OCR attorney will send the school a form letter closing the case, stating that the website accessibility issues have been addressed and that no violations were found.

If OCR dismissed a website accessibility complaint against your school in 2018 or 2019 under the “unduly burdensome” CPM dismissal standards, your school should anticipate being contacted by NWAT about this expedited resolution process and working with your IT personnel to proactively implement manual accessibil­ity checks.