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Report from CSU on 504 vs 508

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From: Wayne Dick
Date: Jan 6, 2008 4:20PM

Please ignore my earlier version. I messed up the title and format.

Wayne


Section 504 vs. Section 508
If you are at a University or any other agency that receives US Federal
funding then you are subject to section 504 regarding all services at
your institution including your technology. Section 504 does not address
accessibility in detail like 508 does, but it is far more demanding.
Recently four California State Universities have been audited by the
Office for Civil Rights regarding accessibility of instructional
materials, paper and electronically based - including the Web. The key
finding was this: We must provide equally effective access. This means
that access must be equal regarding timeliness, quality and
availability. Specifically that means that if a resource is available
24/7 for individuals without disabilities then it must be available 24/7
for individuals with disabilities. Also the quality of the reading
experience must be equal. If the user without a disability has a usable
table of contents then the user with a disability must have a usable
table of contents. If a person without disability has page oriented
random access then a person with a disability must have page oriented
random access. If a person without a disability can perform heading
navigation in a document, then a person with a disability must be able
to perform heading navigation in the same document. Finally, equal
availability means that if a person without a disability can study
material anywhere, then a person with a disability should be able to
study the same material anywhere. That is the burden of responsibility
that the Office for Civil Rights demands from California State
University System and we have paid tens of millions of dollars in
settlements. This is not an anecdote. This happened on four campuses.
Moreover, our system is progressive regarding rights of individuals with
disabilities. So, be warned. If you are a university or some other
service agency in the US that receives federal money then you are
governed by 504 even if you are a private organization or your state
does not require 508.

California state entities are governed by Section 508 as well as 504.
From a self protective posture we at CSU have decided to interpret 508
as follows. Section 508 delineates a collection of criteria that define
barriers to electronic information access. The barriers are fairly easy
to articulate. The question is, "to what level do we address these
barriers?" Some of the remedies suggested by the criteria are ambiguous.
So, the CSU will remove the barriers to the point that we provide
equally effective access as required by Section 504.

Section 508 web criterion (d) provides a clear example of this issue.
The criterion states that a page must be readable even if CSS is
removed. The barrier addressed by this criterion is the use of
presentation to express semantics. It is a barrier because the meaning
of an item will be lost to individuals who cannot perceive the
presentation. This barrier is presented by at least four sources: style
sheets, inline style, table layout and images used for style. A narrow
reading of 508 criteria (d) suggests that one only need remove style
sheets and if the page remains readable then the barrier is removed.
That might work if you are developer filling out a voluntary product
accessibility template, but if you are a university, you would be in
legal danger. To really meet the burden of 504 you must provide equally
effective readability. That would mean addressing readability problems
caused by all style influences: style sheets, inline style, layout
tables and images.

How likely is it that you will be visited by the Office for Civil
Rights? You may be thinking, "Can I get away with less than equally
effective access?", or more cynically, "Will I get caught?"

This is how I calculated our chances at the CSU. People with print
disabilities are underrepresented at universities. K-12 filters them
pretty effectively. So, there are only about 1% on the CSU campuses.
Since our average class size is 20 the probability that one would have a
person with a print disability in any given class is (1-.01)**20 or a
little less than 1/5. So, about one in five classes have a person with a
print disability, and all it takes is one of those people to get mad and
file a complaint with the Office for Civil Rights. Those are not good odds.

At the CSU we got stung on four of our 23 campuses. That's not too
surprising given that we offer about 100,000 classes each year. The
surprise is that we didn't get more complaints.

To their credit the CSU System administration chose the high ground on
this issue. They started an Accessible Technology Initiative on our 23
campuses and are committed to fix the problem by 2012. We have less
financial support than we'd like, but the administrative support is real
and we are winning the cooperation of our campuses.

Most of the contents of this posting were derived from our first year
baseline analysis. We performed automated and manual evaluation of 400
representative pages. We found many sites that met a kind of minimal
508, but would not hold up to section 504, the section that supports
lawsuits. Another interesting finding was that the kind of problems that
pass automated evaluation but fail 504 were our most prevalent problems.
This has made a serious impact on or strategy for inaccessibility
abatement.

One more caution. Once the Office for Civil Rights arrives on campus,
they don't just stop with auditing your IT. They usually look at
architectural barriers too. That really runs up the settlement cost.

Nobody can fix everything all at once. We can make good progress, set
timelines and move toward total compliance with determination and all
possible speed. With well prioritized selection of site maintenance, and
re-design for accessibility with all site revisions, even a large system
can achieve accessibility in a reasonable time. In the interim 504
problems can be met with accommodation. But, a surprise visit by the
Office for Civil Rights can turn that whole plan on its head. You can be
asked to clean it all up at a pace that can be financially challenging.
Always maintaining a standard of equally effective access will protect
you from this danger.

One last observation. Venders are not subject to 504, the agency that
uses a product is. Universities get sued, not the vendors. Be careful
what you buy. If it doesn't provide equally effective access out of the
box then you will have to pay for accommodation out of your budget or
you will be exposed to serious legal risk.

Often campuses buy or are given an inaccessible piece of software that
is highly productive for individuals without disabilities. They usually
attempt to build work-arounds, but these work-arounds are rarely equally
effective. Any acquisition of this type that is used to deliver
instructional materials will place the university at risk of a complaint
to the Office for Civil Rights. That can trigger an audit of everything.



Wayne Dick
CSU System