With most colleges and universities having transitioned almost entirely to online learning in light of COVID-19, the accessibility of this new mode of teaching for students with disabilities – and the sufficiency of that accessibility under Section 504 of the Rehabilitation Act and/or Title II of the Americans with Disabilities Act – has emerged as a key concern. The most recent guidance from the U.S. Department of Education (“DOE”), which enforces both statutes, contained arguably mixed messages as to whether schools’ accessibility obligations with respect to remote instruction have changed in light of the pandemic.
DOE’s first written guidance on the subject, issued March 17, 2020, gave little indication of any changes regarding post-secondary schools’ accessibility obligations, and subsequent guidance issued on March 21 focused entirely on accessibility in elementary and secondary schools. Not until April 3, in the midst of an omnibus package of higher education-related guidance, did DOE appear to focus squarely on the accessibility implications of remote collegiate instruction.
In some places, the April 3 guidance simply repeats the applicable legal standard under Section 504 and the ADA. It notes, for example, that post-secondary students with disabilities must receive academic adjustments, auxiliary aids and services, or reasonable modifications to policies and practices where doing so would not impose an “undue burden” or “fundamental alteration.”
In other instances, however, DOE’s April 3 guidance could be seen as attempting to lower the bar. The guidance states that colleges and universities “should not decline to provide distance instruction, at the expense of most students, to address matters pertaining to accommodations for students with disabilities.” Further, the guidance recognizes that some services and accommodations that were available on campus may not be available online, at least “for the rest of the academic year.”
Where does this leave colleges and universities? Although these statements will guide DOE’s enforcement discretion, they do not impact the ability of any member of the public to bring a private right of action for noncompliance, which both Section 504 and the ADA permit. The guidance, as it states, is only a “statement of policy,” which a court could consider but is not bound to follow. This COVID-19-driven guidance is not, in other words, an absolute defense against noncompliance with existing statutes and regulations.
That is not to say, however, that the guidance’s observations do not represent a compelling public policy argument. To make use of that argument, schools facing difficult issues concerning accessibility and online learning should remember the key provisos already built into these statutes, which the guidance also highlights: an adjustment, auxiliary aid or service, or modification need not be provided if it would constitute an undue burden or fundamental alteration.
Both the undue burden and fundamental alteration defenses turn on a range of factors, many of which are likely to be impacted during a period when colleges have had to rapidly shift their entire teaching apparatus online. For example, many of the problems schools have run into in making online learning accessible stem from administrative burdens like staffing shortages, which create legitimate undue burden concerns. For certain smaller institutions, in particular, the longer remote learning goes on, there may reach a point where cost concerns also pose an undue burden.
Fundamental alterations could also come into play where a requested modification poses a more extreme revision to the student-college relationship – for example, a student requesting to be exempted from exams entirely as opposed to modifications to how the exam is administered remotely. However, except in extraordinary circumstances, institutions should be cautious of arguing that online learning in general causes a fundamental alteration to their educational program, since an institution may be required to teach online for the foreseeable future.
As DOE recognizes by highlighting these defenses in its guidance, it seems highly likely that a court considering a Section 504 or ADA challenge brought by a student would, at least when considering this period of remarkable disruption, factor in that disruption when evaluating whether a college or university met its obligations to its disabled students. But, as the guidance’s reference to the remainder of the academic year implies, post-secondary schools will not be able to rely on an “extraordinary circumstances” argument forever.
Note that this guidance from DOE about the ADA and Section 504, by its explicit terms, does not cover the CARES Act, which is “beyond” this document and about which DOE plans to issue guidance “in the near future.” We expect further guidance on that statute, potentially including more information concerning accessibility requirements for elementary, secondary, and post-secondary schools, to be forthcoming.
