Braille Monitor                                             January 2015

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The TEACH Act: Frequently Asked Questions

by Lauren McLarney

From the Editor: Lauren McLarney is the manager of Governmental Affairs for the National Federation of the Blind. Her passionate speeches about educational equality for blind students are always a convention favorite, and in this article she attempts to answer some commonly asked questions about the TEACH Act. Here is what she says:

Lauren McLarneyThe Technology, Education, and Accessibility in College and Higher Education (TEACH) Act, HR 3505/S 2060, is a bill designed to address barriers to success that many blind students face because of inaccessible educational technology. The TEACH Act does three major things: 1) Authorizes the creation of voluntary accessibility guidelines for electronic instructional material and related information technology used in postsecondary education; 2) Incentivizes colleges and universities to use only technology that conforms to those guidelines with a safe harbor from litigation; and 3) States that, although conformance with the guidelines is optional, schools still need to meet their obligations to provide equal access—by following the guidelines or in some other way.

For the first nine months the TEACH Act cruised along smoothly. But in September of this year controversy erupted. The higher education lobby spoke out against a provision in a bill proposed by Senator Harkin which was modeled after the TEACH Act, and a debate ensued in the press. Luckily the debate has evolved into a productive discussion between NFB, the higher education lobby, and our industry partners. We hope consensus can be reached so blind students get the relief they deserve.

As part of an effort to keep everyone informed and set the record straight, the December Monitor included two editorial pieces: an op-ed from the Chronicle of Higher Education supporting the TEACH Act, and a blog evaluating the controversies surrounding the bill. Seeing all sides of the debate makes us stronger, more capable advocates, but there is always more to learn. So below are fifteen frequently asked questions about the TEACH Act to serve as an addendum to last month's articles.

1. Voluntary accessibility guidelines...what in the world are you talking about?

Answer: Colleges and universities are required under Titles II and III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act to provide equal access to students with disabilities, which means using accessible instructional material or providing accommodations that give blind students equivalent access. Unfortunately, there are no criteria defining what accessibility means, so schools have no idea what products to use, what to demand from the market, or how best to comply with the law.

Currently most schools deploy the old-fashioned, ad hoc accommodations model that was adequate in the print world but fails miserably in the digital world. The concepts of  “accommodations,” and “ad hoc” are not in dispute—everyone knows that accommodations are the way many entities choose to provide equal access, everyone knows that “ad hoc” means one at a time, and everyone agrees that that is the nature of how accommodations are provided. Therefore, the “accommodations model” generally has a positive connotation, and it is the individualized nature of accommodations that seems to be part of why everyone thinks the model is so great. But, in the context of digital technology for blind students, this system is not great, and it is the individualized nature of accommodations that is precisely why. Equal access in the digital world can only be provided when schools use mainstream, inherently accessible technology across the board—ad hoc treatment of blind students just will not do, just like temporary ramps for students with wheelchairs will not do.

Consequently, the application of the ad hoc accommodations model in the digital world cannot continue; blind students are dropping out of school, and schools are getting sued. The TEACH Act creates the missing criteria in the form of guidelines, and then rewards schools that follow those guidelines with a safe harbor from litigation. Schools can continue to deploy the accommodations model, but most will probably choose the better route and the legal protections that come along with it. The more schools that follow the guidelines, the more the market will reflect that need. The goal is to stimulate the market, reduce litigation, and ultimately ensure equal access for blind students.

2. Will colleges and universities have to follow the guidelines?

Answer: No, the guidelines are 100 percent voluntary. Offering immunity from litigation as a reward means that the guidelines will offer one path to compliance with the law, but it is not the only path. Some schools may ignore the guidelines or develop their own, but they forfeit the legal protection of a safe harbor by choosing those alternative routes.

This conversation often gets derailed by fears about a school being at risk for litigation if it does not follow the guidelines, but this is a misguided concern. Schools are already at risk for litigation because the mandate for equal access applies right now. Even after the TEACH Act passes, the mandate will apply, and it will not be voluntary.

3. Where did the idea for guidelines come from?

Answer: In 2008 the Federation successfully lobbied Congress to authorize the creation of the Advisory Commission on Accessible Instructional Material in Postsecondary Education for Students with Disabilities (AIM Commission). The AIM Commission examined the status of accessible educational technology and the impact it was having on students with disabilities and then developed recommendations for how to address the matter. President Riccobono sat on the commission, offered valuable experience, and brought influence that was instrumental in the ultimate recommendations. The final report found that students with disabilities experience a daunting assortment of challenges, including blocked access to educational opportunities and even failure to graduate, solely because of inaccessible materials. The commission also found that "there is still persistent unmet need" and that steps must be taken to stimulate the creation of a viable accessible digital marketplace. Of the commission's nineteen recommendations, the first one calls for Congress to authorize the creation of accessibility guidelines.

4. Why are the guidelines voluntary?

Answer: For several reasons: first, the AIM Commission recommended that Congress create accessibility guidelines, and "guidelines" are voluntary. Congress likes data, so we should not stray too far off course from what the AIM Commission Report recommends.

Second, voluntary guidelines are more flexible than enforceable standards. Suppose a company develops a method of accessibility that the TEACH Act guidelines did not predict: surely VoiceOver was a surprise to technology experts when it first came on the scene. By keeping the guidelines voluntary, innovation in unique accessibility solutions can still be explored. If the guidelines were mandatory, this kind of innovation might be discouraged. Worse, regulations take a significantly long time to develop and upgrade. Technology moves faster than the rulemaking process, so there is a heightened risk of harm when those standards inevitably become outdated.

Third, voluntary guidelines are more appealing to members of Congress who oppose federal regulation of education. Some members of Congress might feel differently, but even they are obligated to consider the opinion of the colleges and universities in their district or state, and many of those institutions express feeling overly burdened with bureaucratic regulations. The TEACH Act offers a voluntary solution that avoids those objections without compromising our objectives.

Finally, voluntary guidelines achieve the same outcome as enforceable standards. If the TEACH Act created regulations, a school that uses technology that conforms to those standards cannot be sued for following the law. With the TEACH Act a school has the option of following voluntary guidelines and is rewarded with a safe harbor from litigation, i.e., they cannot be sued. Looks the same, right?

5. What are the differences among criteria, standards, regulations, and guidelines?

Answer: "Criteria" are technical benchmarks that one uses to determine whether or not a product is "accessible" based on the intended function of a product. For example, criteria might designate that an e-reader is accessible only if it provides audio output, or web content is accessible only if the images are properly labeled and the page is compatible with screen-access software. Voluntary criteria are called "guidelines," and mandatory criteria are called "standards." In this context the word "standards" is also synonymous with "regulations," which are requirements/rules that specify how a covered entity must comply with a law.

6. What if the guidelines are not any good?

Answer: The only way to ensure that the guidelines align with the Federation's concept of accessibility is to write them ourselves and put them into the bill, but ultra-prescriptive bills can be problematic. Our laws are living documents, and, while technology inevitably evolves, the words in those laws remain the same. As we have learned over the last seventy-five years of advocating, changing laws can take a long time. A sound solution takes a timeless approach and uses widely applicable language, which is why the current version of the TEACH Act calls on the Access Board to develop the guidelines and then update them every three years. But regardless of who creates the guidelines, there is an inevitable risk that the group might come up with something lousy. That risk is mitigated only by making the guidelines voluntary so additional methods of accessibility can still be explored.

7. How will this work—so the guidelines will be created, and then schools will have to change all of the technology on campus?

Answer: No. The TEACH Act does not require retrofitting; in fact, the TEACH Act does not require anything. Remember: schools are currently required to use accessible material, and they will be required to do so whether the TEACH Act passes or not. If a school needs to retrofit its materials or revise its procurement policies, it is because it is not complying with that requirement. The mandate to provide equal access is not altered, strengthened, or removed by the TEACH Act.

Rather, the TEACH Act guidelines will be a tool for schools to use to identify what material is accessible and what material is not, informing decisions that should facilitate better compliance with that equal access mandate. We expect that many schools will request TEACH-Act-compliant material from vendors and that streamlined demand will be met by manufacturers. Hopefully this transformation will result in such systemic change that schools never have to retrofit materials or provide accommodations because mainstream access is built-in from the start and already deployed across campus.

8. Why can't each state or each school create its own guidelines?

Answer: Equal access mandates are national mandates, and the instructional material market is a national market. This calls for national guidelines. Every state could develop its own, but no manufacturer would make fifty different product lines, and there is no guarantee that federal agencies would even accept each state's criteria as sufficient. Furthermore, only Congress can authorize the safe harbor. Most important, blind students deserve equal access across the country, not just at a few select schools or in a few select states.

9. Aren't schools doing a good job of providing accommodations already?

Answer: In the last four years more than a dozen lawsuits have been filed over schools using inaccessible instructional materials, and the problem is escalating. This is not entirely the schools' fault; institutions of higher education were mandated to use accessible material but not given any direction for how to do so. Other than a handful of schools, the overwhelming majority of colleges and universities are still confused about how to accommodate students with disabilities in a digital world. Consequently, most resort to the ad hoc accommodations model mentioned earlier, a model that worked only in the print world. Legislators are also ignorant about the needs of students with disabilities, assuming that wheelchair ramps on campus or the extra test time given to their friend with a learning disability means that their school is doing an amazing job of meeting requirements. The AIM Commission report tells us otherwise when it comes to accessibility, and if the proof of the pudding is in the tasting, this failure is solidified by the number of lawsuits and complaints that grow exponentially by the year.

10. How much is this going to cost?

Answer: The bill currently calls for Congress to appropriate "such sums as may be necessary" to develop the guidelines. There is no dollar amount, and there is no score, which is Capitol-Hill-speak for "how much it will cost". However, the development of guidelines should not be an expensive endeavor. Not only is this a modest undertaking, the amount of money will be minuscule compared to the amount taxpayers lose to enforcement actions, investigations, and lawsuits against schools that are failing to comply with the mandate.

Worse, every time a blind student changes majors, delays his or her education, or drops out of school, taxpayers take another major hit. People with disabilities have an 80 percent unemployment rate, and many of those people rely on government assistance for survival. There is no way to measure the untapped talents and lost productivity that result when an entire population fails to reach its potential, but tangible change can be made with this small investment.

11. Does this mean schools will need to have something readily available for a student with a severe disability even though they don’t have such a student attending the school?

Answer: Schools will not have to do anything that they do not already have to do when it comes to a student with a severe disability. The TEACH Act will make it easier for schools to identify which items are accessible to that student and which are not and hopefully will shift the paradigm from the ad hoc accommodations model to a mainstream access approach. Widespread use of TEACH-Act-compliant material will create a situation in which the arrival of a student with a particular disability does not call for any reaction because the school already deploys fully and inherently accessible material across the campus.

This question overlooks something more critical: how does the school intend to provide accessible materials to this student when he or she gets there? Society would never accept temporary ramps that are deployed only when a student with a physical disability arrives on campus, and students with severe disabilities deserve the same treatment. When this question is posed, it is an opportunity to change attitudes about accessibility.

12. Will guidelines inhibit innovation? Why should schools be discouraged from using a cool piece of technology just because it is not accessible?

Answer: First, accessibility and innovation are not mutually exclusive; in fact, the very first digital book was created by a blind person! Some of the most innovative products in the market (i.e., devices made by Apple) are the most accessible, and we expect the TEACH Act guidelines to stimulate greater production of these kinds of hardware and software. Since the passage of the ADA, we have seen the mainstream benefits of universal design and accessibility. Curb cuts that were originally designed for people with physical disabilities now benefit parents with strollers and travelers with luggage. Similarly, stimulating accessible technology can only enhance innovation, because an increase in the former will generate benefits for all and extend well beyond the intended audience of the disabled.

Second, in the unlikely event that an emerging technology is totally inaccessible even after the TEACH Act passes, a school will still be allowed to deploy such material, as long as it provides equivalent access through an alternative accommodation. If an adequate alternative or accommodation cannot be found, the school is prohibited from deploying that technology—not because of the TEACH Act, but (say it with me now) because current law already prohibits that kind of discrimination. It is because of this requirement that, in the end, a decision to reject the guidelines and allow the market to stay saturated with inaccessible materials is what will ultimately inhibit innovation.

And finally, which is more important for a school to do: use cool technology or provide an education to all students, regardless of disability?

13. Who is ACE?

Answer: According to its website, the American Council on Education (ACE) represents the presidents of US accredited degree-granting institutions, and has a membership base of more than 1,700 member institutions. ACE is seen as an umbrella association, bringing together other higher education associations (community colleges, four-year public institutions, four-year private institutions, etc.) and representing the collective interests of those groups in the public policy space. When this article says "higher education lobby," interest groups like ACE are what we are referring to.

Although many schools defer to their association on legislative matters, it is not uncommon for an individual institution to take an independent position. It is critical that blind students engage their institution directly, since those in leadership positions may not be aware of the problems caused by inaccessible materials or the debates that are ensuing at the national level. Just as the Federation represents the collective interests of blind Americans, ACE represents the collective interests of schools, and just as the individual blind members of NFB are the voice behind our actions, individual schools should be engaged in these important debates.

14. You keep saying the guidelines are voluntary, so why does the higher education lobby think the guidelines are mandatory? Is that the only reason they have opposed the bill?

Answer: As stated above, the TEACH Act does three things: 1) authorizes the creation of guidelines; 2) incentivizes their use with a safe harbor; and 3) states that schools do not have to follow the guidelines, but they must still follow current law by providing equivalent access with an alternative or accommodation. The higher education lobby had concerns regarding items one and three.

Regarding item one, the higher education lobby wants to explore a mechanism for developing guidelines that has input from their community. We can explore that option as long as the voice of institutions does not drown out the voice of blind students who are the actual people depending on the guidelines to protect their civil rights.

Regarding item three, ACE feels that the TEACH Act establishes a bar for alternatives that is impossible to meet, thereby forcing schools to default to the guidelines. We profoundly disagree with this interpretation, and every major disability group and expert in the field agrees with our position. Our understanding of current law is based on the words found in that law, guidance issued by the federal government, and our understanding of the limitations of the accommodations model. But the nice thing about politics is that we can agree to disagree. There may be a way to reword that section to reflect our understanding of current law without inciting controversy.

15. Where do things stand with ACE right now?

Answer: We are in the midst of a productive discussion, with the goal of reaching a consensus. It is too soon to say if that will be achievable, but we are encouraged by the schools' willingness to come to the table and admit that they need help meeting equal access mandates and providing accessible material to blind students.

We know all too well the poor outcomes that result when lawmakers make decisions about blind people and for blind people without consulting the Federation. We practice what we preach. That is why we are leading this effort. That is also why we have reached out to ACE during the drafting of the TEACH Act, and why we hope our second dialogue will be successful. We will continue engaging in these important conversations until all blind students can freely pursue the education they need, to live the lives they want.

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