For today’s Global Accessibility Awareness Day, we have yet another Department Justice enforcement action to report relating to the allegedly inaccessible websites and other technologies.  This time, DOJ is trying to intervene in an existing lawsuit, Dudley v. Miami University, filed by a former Miami University student who is blind.  Although the lawsuit is brought under Title II of the ADA which applies to state and local government entities and not public accommodations, the obligations under the Title II and III are very similar. Thus, the DOJ’s position in this lawsuit provides useful insight into how it would treat private universities and other public accommodations covered by Title III of the ADA.

On May 12, 2015, the DOJ sought permission from the court to intervene in the lawsuit as an additional plaintiff.  If the request is granted, the lawsuit’s scope will widen.  As an individual plaintiff, Ms. Dudley can only seek injunctive relief that relates to her own disability (blindness) and attorneys’ fees.  The DOJ, on the other hand, can and is seeking injunctive relief that would benefit people with other types of disabilities such as those who are deaf or hard of hearing.  In addition, the DOJ can seek compensatory damages for past and present students who have been harmed, and a civil penalty of up to $75,000.

The DOJ’s action stems from the University’s obligation ensure that its communications with individuals with disabilities is effective.  One question we often get is whether a public accommodation is required to ensure that all of its communications with the public are effective, or just those that relate to the core goods and services that the public accommodation offers (e.g, communications by a university to students and prospective students about its courses and programs).  Some advocacy groups have taken the position that all material posted on any university website must be accessible for the benefit of the public at large, even if the material is not directly related to any coursework or other programs offered by the school.

The DOJ’s Complaint-in-Intervention seems to focus on the university’s websites generally, and technologies used only by students.  With regard to blind students, the DOJ alleges that (1) they were required to use Google Docs, learning management systems, and websites for courses that are not compatible with screen readers; (2) the university failed to convert written texts to electronic formats that are accessible or did not proofread the error-filled converted text; (3) university facilities did not have room signage with braille and tactile lettering; and (4) course-related videos did not have audio descriptions (i.e., voiceover that describes what is visually happening).  With regard to deaf students, the DOJ alleges that some had to do coursework using videos that did not have captioning.  The DOJ also alleges more generally that the university’s websites are not accessible to individuals with disabilities, and that “Miami-sanctioned organizations” that organize campus events use a platform for its documents that is not accessible to screen readers.

DOJ’s intervention in this lawsuit will be its second in a case involving an allegedly inaccessible website.  In 2013, DOJ intervened in a lawsuit brought by the National Federation of the Blind against tax return preparation company H&R Block about the company’s allegedly inaccessible website and online tax preparation tool.  Shortly after DOJ’s intervention, H&R Block agreed to a consent decree under which it would make its website, tax preparation tool, and mobile application conform to a set of web accessibility guidelines called the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA.  Since then, DOJ has secured agreements with other entities to make their websites and/or mobile applications conform to WCAG 2.0 AA, including online grocer Peapod, massive online open course platform provider edX, the Museum of Crime and Punishment, and Louisiana State University.  This requested intervention just confirms that DOJ continues to pressure ADA-covered entities to make their websites and other technologies accessible, even though it has not issued its much anticipated proposed regulations for websites.