According to some estimates, the number of website accessibility lawsuits filed in federal court nearly tripled from 2017 to 2018, and there is no indication that this trend will slow down in 2019. Businesses across a wide spectrum of industries have reported exponential increases in the number of demand letters they received threatening suit over the accessibility of their organization websites. Organizations in higher education are no exception. As the number of plaintiff-friendly opinions stacks up, many higher education entities are asking: Does our website comply with the Americans With Disabilities Act?

A website accessibility claim typically alleges that an organization or school website contains content that is inaccessible to persons with visual, auditory, or other types of impairments. Many of these suits have been filed on behalf of visually impaired individuals who rely on screen-reader software, such as JAWS or NVDA, to interact with and access information on websites and mobile applications. A growing number of lawsuits have been filed on behalf of individuals with auditory impairments, alleging that video content posted on the organization website does not include closed captioning. This type of claim is particularly problematic for many colleges and universities that post lectures, education videos, webinars, and other similar video and audio content on their websites. Plaintiffs have brought, or threatened to bring, these types of claims under both Title III of the Americans With Disabilities Act (ADA) and applicable state law, such as California's Unruh Civil Rights Act.

To bring a viable claim under Title III of the ADA, the organization or school website must be considered a "place of public accommodation," or otherwise considered a service, privilege, or benefit of such a public accommodation. Title III lists twelve categories1 of covered public accommodations, including "places of education," such as colleges and universities. Some—but not all—jurisdictions require the organization website to have some "nexus" or connection to a physical place of public accommodation (e.g., a college campus) to trigger Title III obligations. Other jurisdictions, however, have ruled that a website can constitute a place of public accommodation in and of itself, or that such a website offering video and other content is a service or privilege of the public accommodation.

In addition to the ADA, many websites are also subject to state accessibility laws. Most states have their own public accommodation statutes and accessibility obligations. Many mirror the ADA, but some provide additional protections and obligations beyond Title III. For example, although California courts interpret Title III to apply only to those websites with a nexus to a physical location, they interpret California's Unruh Act more broadly, as applying to "all business establishments of every kind whatsoever." State statutes may also provide for additional remedies not available under Title III, including statutory damages.

While recent website accessibility claims brought under the ADA have predominantly resulted in plaintiff-friendly decisions, some companies have successfully obtained dismissals of website accessibility claims by asserting standing, personal jurisdiction, mootness, and other, similar defenses. For example, the Fourth Circuit recently affirmed the dismissal of a website accessibility suit brought by a visually impaired plaintiff against a credit union, which successfully argued that the plaintiff did not allege a concrete injury. The credit union argued that because the plaintiff was ineligible for membership, he could not take advantage of the credit union's online services, regardless of the website's accessibility. Similarly, a recent opinion out of the Southern District of New York dismissed a website accessibility claim for mootness and lack of personal jurisdiction. The defendant company successfully argued that it had already remediated all accessibility barriers on its website and that it did not offer goods or services in the plaintiff's immediate location.

Organization and schools with websites subject to ADA or state law accessibility obligations (and even those with no such obligations) should consider exploring potential options for making their websites more accessible. In the absence of federal regulations, courts and businesses have turned to the Web Content Accessibility Guidelines (WCAG), a widely accepted industry standard for website accessibility. Depending on the circumstances, organizations may want to retain an accessibility consultant who is familiar with the WCAG 2.0 AA guidelines, to help identify and remediate accessibility barriers and other areas of non-compliance. Companies should also consider engaging legal counsel familiar with website accessibility issues to help maximize business opportunities while minimizing the risk of legal liability.