Last Friday, the American Council on Education (ACE) sent a letter to Senator Harkin outlining their problems with his proposed Higher Education Opportunity Act reauthorization. Harkin’s draft includes a provision to address accessible instructional materials that was modeled after the Technology, Education and Accessibility in College and Higher Education (TEACH) Act. I was thrilled when I heard that Harkin included TEACH Act language in his draft because gaining equal access to electronic instructional materials for blind college students is one of the Federation’s most important priorities.
After reviewing ACE’s position on the proposed legislation, I am tremendously disheartened and disgusted by their failure to support equal access for students with disabilities. ACE’s letter specifically states the following regarding the provisions for accessibility:
This provision creates an impossible to meet standard for institutions and will result in a significant chilling effect in the usage of new technology. Such a proposal, if implemented, will seriously impede the development and adoption of accessible materials, harming the very students it is intended to assist.
This statement gets an A for confusion, but an F for logic and rationale. My background is in education. Before being elected President of the National Federation of the Blind, I was responsible for directing education programs as the Executive Director of the NFB’s Jernigan Institute. In 2010, I represented the NFB in my appointment to the Federal Advisory Commission for Accessible Instructional Materials in Postsecondary Education for Students with Disabilities, a congressionally authorized study to examine the barriers faced by students and faculty with disabilities in gaining access to instructional materials. I’ve heard every concern and participated in countless debates about the problem of inaccessible technology. I find ACE’s statement uninformed and illogical, as it is not in their best interest. Let’s try to make sense of ACE’s statement by breaking it down.
The statement starts with, “This provision creates an impossible to meet standard…” The TEACH Act provision authorizes the creation of voluntary accessibility guidelines and then incentivizes schools to only use technology that conforms to those guidelines with a safe harbor from litigation. It does not create enforceable standards. To give them the benefit of the doubt, perhaps ACE is referring to a different portion of the provision that says schools that don’t conform to the guidelines must still meet their equal access requirement by offering material in a way that allows students with disabilities to use it in an equally integrated, equally effective manner with substantially equivalent ease of use as non-disabled students. Like many pieces of legislation, this provision may be wordy, but the standard for access is absolutely not a new obligation. In 2010, the Departments of Justice and Education, using these words, issued guidance explaining the obligation of institutions of higher education regarding the accessibility of emerging technologies, which can be found at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.pdf.
In the four years since this guidance was issued, a dozen or so universities have faced litigation or enforcement action because of their failure to meet this obligation. Almost all have ended in settlement agreements where the school agreed to use accessible material or provide material in a (say it with me) equally integrated, equally effective manner with substantially equivalent ease of use. So when ACE calls the proposed provisions an “impossible to meet standard,” I question if they do not know that the proposed guidelines are voluntary, or if they are admitting that they have not been following current law for the last four years because it has been “impossible.” If it’s the latter, they’re also suggesting that every member institution that has signed a settlement agreement regarding the accessibility of electronic instructional technologies will violate their agreement because it is impossible to comply. The irony of this statement is that it is indeed impossible to meet any accessibility standard without guidelines to stimulate a market that includes accessible products. The worst part of this statement is that requiring an equivalent alternative for students with disabilities is a very reasonable thing to demand. The saddest part of this statement is their lack of faith that equal access for students with disabilities is truly possible.
ACE goes on to say, “…and will result in a significant chilling effect in the usage of new technology.” Colleges and universities are already prohibited from using emerging technology that is not accessible. The reason most institutions continue to do so is because there are no guidelines by which to measure if a product is accessible or not. By citing this reason, ACE is implying that its member institutions are better off not knowing what constitutes accessibility—ignorance is bliss. After all, with knowledge comes responsibility. Accessibility guidelines would provide a framework for those currently using inaccessible instructional materials to meet their obligations. As a father of two blind children, it is chilling to me that the higher education lobby would sell out educational access for students with disabilities using the scare tactic that accessibility guidelines will stifle innovation.
The statement continues, “Such a proposal, if implemented, will seriously impede the development and adoption of accessible materials, harming the very students it is intended to assist.” When I sat on the AIM Commission, we dissected every approach to stimulating the development and adoption of accessible materials. The Commission made nineteen recommendations, and number one was for Congress to authorize the creation of guidelines. The well-informed report of the AIM commission tells us that if we give schools guidelines, they’ll know what to ask for. The more schools that ask for accessible products, the more accessible products will emerge in the market for use. ACE says guidelines will have the opposite effect, but offers no explanation for why this is true and no substitute proposal that might have a better outcome.
The NFB reached out to ACE about the TEACH Act a year and a half ago. They objected to our proposal and did not offer any compromises. We have since collaborated with other stakeholder groups and were able to get the bill introduced, but we continued trying to engage ACE through our congressional leaders. After only receiving statements like this, we truly believed that ACE was just confused. We tried to initiate several discussions to search for common ground, but these meetings never materialized. Until ACE is willing to sit down and discuss this issue, we are left to assume they are content with leaving behind blind and other disabled students. We can also assume they are fine to leave their members, the very schools subject to the equal access mandate and desperate for guidance, vulnerable to litigation.
I hope that these interpretations are wrong. Regardless, we plan to work with the fifteen endorsing groups and fifty-plus supporting members of Congress to pass the TEACH Act and advance bills with similar provisions. The invitation to meet with ACE still stands. We hope they will take us up on the offer and become part of a meaningful solution.