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F3/CETPA Legal Summit

Equity. Access.

A Moral Imperative to Bridge the Digital Divide

October 14, 2016Computer History Museum

Mountain View, CA

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Presenters Brooks Allen, Vice President

Common Sense Media

Namita Brown, Partner Fagen Friedman & Fulfrost

Christopher Fernandes, Partner Fagen Friedman & Fulfrost

Gretchen Shipley, Partner Fagen Friedman & Fulfrost

Mark Williams, Partner Fagen Friedman & Fulfrost

Lori Chiu, Associate Fagen Friedman & Fulfrost

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OCR Complaints: Web AccessibilityEnforcement and Best Practices

Gretchen M. Shipley, Partner

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Web Accessibility: Defined

People with disabilities can perceive,understand, navigate, and interact with thewebsite to the same extent as peoplewithout disabilities

Persons who are impacted

Visually impaired (e.g. blind or low vision)

Mobility challengers (e.g. cerebral palsy)

Deaf or hard of hearing

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Web Accessibility for School Districts

Many school districts are facing legal actionrelated to inaccessibility of their web pages

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Legal Framework

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Anti-Discrimination Laws

Section 504 of the Rehabilitation Act of 1973

Title II of the Americans with Disabilities Act of1990

“No qualified person with a disability shall, onthe basis of disability, be excluded fromparticipation, be denied benefits of, orotherwise be subjected to discrimination underany program or activity which receives federalfinancial assistance.”

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Web Accessibility Laws

Federal government: Section 508 of theRehabilitation Act

State and local government: No statutes,regulations, or case law

No mention of web accessibility in Section 504 or Title II

BUT, implicitly require public entities (e.g. schooldistricts) to make web pages accessible

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Legal Guidance

DOJ Guidance (June 2003) ADA/504 “generally require” equal access unless fundamental

alteraction or undue burden

OCR Dear Colleague Letter (June 2010) Colleges and universities must make book readers and other

educational technologies equally accessible

OCR FAQs (May 11) Follow-up from June 2010 Dear Colleague letter – legal

requirements articulated in letter apply to elementary andsecondary schools

DOJ Notice of Proposed Rulemaking (May 2016) * Proposed rulemaking for state and local governments with

regard to web accessibility

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DOJ Proposed Rulemaking

Public input sought on proposed regulations,including cost and benefits

Adoption of the WCAG 2.0 web accessibility.

Comment period ended October 7, 2016

Now, waiting on the DOJ…

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So what should you do now?

Standards for compliance

Section 508 of the Rehabilitation Act

WCAG 2.0 Level AA Standards

WCAG 2.0 Level AA standards are the mostwidely accepted for accessibility and maypotentially be adopted by the DOJ

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WCAG Standards

The 4 P.O.U.R. Principles

Includes 12 guidelines which provide the basicgoals that school districts should work towards

Highly technical standards

Consult with IT department

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1. Perceivable

Information and user interface components mustbe presentable to users in ways they can perceive

Provide text alternatives

Provide alternatives for time-based media

Create content that can be presented in different ways(e.g. simpler layout) without losing information orstructure

Make it easier for users to see/hear content

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2. Operable

User interface components and navigation must beoperable

Make all functionality available from a keyboard

Provide users enough time to read and use content

Do not design content in a way that is known to causeseizures

Provide ways to help users navigate, find content, anddetermine where they are

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3. Understandable

Information and the operation of use interfacesmust be understandable

Make text content readable and understandable

Make webpages appear and operate in predictable ways

Help users avoid and correct mistakes

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4. Robust

Content must be robust enough that it can beinterpreted reliably by a wide variety of useragents, including assistive technologies

Maximize compatibility with current and future useragents, including assistive technologies

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OCR Enforcement

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Overview

Complaints filed with OCR regardinginaccessible web pages

OCR investigating complaints

OCR has sought to enter into resolutionagreements in lieu of conductinginvestigation

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OCR Enforcement Procedures

Complaint

Data request

Investigation stage

Determination of non-compliance

Negotiation stage

Voluntary resolution agreement

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Resolution Agreements

In lieu of investigation, school districts may enterinto a resolution agreement providing assurancesthat it will make its web pages accessible

Implementation of agreement requires monitoring byOCR

Components Website notices

Developing policies and procedures

Performing a website audit

Developing a corrective action plan

Providing training to staff

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Website Audits

School districts must conduct audits based on theWCAG 2.0 Level AA standards

Must identify an auditor (in-house or third party)

Must audit websites

Web checkers, PDF checkers, video

checkers, contrast checkers, etc.

Must seek public input

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Corrective Action Plan

School districts must develop a plan toremediate the errors discovered through theaudit and ensure that no new inaccessiblecontent is loaded onto website

Sample format Current problems

Remediation plan: Timeline for fixing those errors.

Long-term solutions: Lay out the district’s continueplan to ensure accessibility (e.g. provide training,conduct annual audits)

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Training

School districts must provide training toindividuals who maintain district’s websites This can include teachers, principals, IT, and directors

Training must include information how to makecontent accessible

Tip: Limit the persons who areresponsible for maintaining oruploading content onto website

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Best Practices

Provide regular training to all staffresponsible for uploading content to thewebsite

Act proactively to build website accessibilitywhen putting RFPs/bids for websites Include provision regarding WCAG compliance

Conduct thorough and ongoing audits

Develop policies for maintaining accessibilitybefore complaint occurs

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Resources

WCAG Standards:http://www.w3.org/TR/WCAG20/

Preliminary website check:https://www.w3.org/WAI/eval/preliminary.html

Free webpage checker: http://wave.webaim.org

Perform site evaluations:http://webaim.org/services/evaluation

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Access to Technology ForStudents with Disabilities

Christopher J. Fernandes

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Students with Disabilities

Individuals with Disabilities Education ImprovementAct (IDEA) governs the legal obligations of schools andthe rights of students with disabilities

All students with disabilities must receive a freeappropriate public education (FAPE) as providedthrough the individualized education program (IEP)

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Students with Disabilities

Right to be educated with non-disabled peers

Staff must be trained for the inclusion

Teachers must be prepared to adapt instructionbeing taught

Teachers must have general knowledge ofstrategies and assistive technology that could beapplied to their subject area teaching

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Assistive Technology Device

Defined as… Any item, piece of equipment, or product system,

whether acquired commercially off the shelf,modified, or customized, that is used to increase,maintain, or improve functional capabilities of achild with a disability

Includes… Specialized writing tools, planners, raised-line paper

Portable keyboard, calculators, spell checkers

Audio books, computers, communication devices

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Identify…

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Assistive Technology Service

Defined as…

Any services that directly assists a child with adisability in the selection, acquisition, or use of anassistive technology device

Includes…

Evaluation of the AT needs of the child

Customization, maintenance, repair andreplacement of devices

Training and technical assistance for child, familyand professionals

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Assistive Technology in Schools

The IDEA requires the IEP team to considerassistive technology needs of all children withdisabilities

The team makes decisions about AT based on thechild’s unique needs “to maximize accessibility forchildren with disabilities”

If the team determines that the child needsassistive technology, it must provide the device orservices to the student regardless of availability orcost

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Assistive Technology in Schools

If AT is required for student’s education, it must beprovided at no cost to the parent, including normalwear and tear

California law does permit districts to recover costsassociated with “negligent, willful, or unlawfuldamaging or taking of property of the localagency”

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Assistive Technology Training

The IDEA requires schools to provideassistive technology training to teachers,children, and families

E.g. training on how to use the device

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Common Assistive Tech Devices

Computers

Tablets

Calculators

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Issues: Parental Request

Districts are generally not required to provide thespecific AT devices or services specified by parentsor the agree with each request

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Issues: Right to Privacy

Students and parents generally have no right toprivacy with district-owned device

State this clearly in the IEP or in an AssistiveTechnology Use Agreement

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Digital Divide for Studentswith Disabilities?

Is there a digital divide for students withdisabilities with IEPs?

Entitled to assistive technology at no cost

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Digital Divide for Studentswith Disabilities?

Is there a digital divide for students withdisabilities with IEPs?

Entitled to assistive technology at no cost

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So What Are the PotentialTech Issues?

Chromebook classroom for student with iPadas assistive technology device.

Do you try to provide student with access toChromebook or modify instruction to allowaccess on iPad?

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So What Are the PotentialTech Issues?

Early/Often app adopters

Are apps accessible to students withdisabilities in that class?

Does IEP team need to consider howstudent can access information/assignmentson apps used in class?

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So What Are the PotentialTech Issues?

Are classroom apps/software accessible tostudents with visual impairments?

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So What Are the PotentialTech Issues?

Do teachers upload assignments to theirwebsites?

Can students with disabilities access thatinformation to same extent as their non-disabled peers?

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So What Are the PotentialTech Issues?

Do teachers expect students to track gradesand assignments online (e.g., StudentVue)?

If so, can students with disabilities accessthat information to same extent as theirnon-disabled peers?

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Takeaways

Be aware of potential implications of newapps/technology for students withdisabilities

Ensure that case carriers are aware ofapps/technology used in class

Inform case carriers before adoptingimplementing new technology in classroom

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The Digital DivideChallenges and Solutions

Mark Williams, Partner

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The Desire for Digital Education

The Desire for Digital Education is NearlyUniversal

87% of Students

86% of Administrators

84% of Students

Believe that digital learning is important inresolving challenges to student education.

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Common Core is Digital Education

Many strands directly or indirectly mention adynamic use of the internet as an essentialskill:

“Use technology, including the internet, toproduce and publish writing and to interactand collaborate with others.”

(CCSS.ELA-Literacy.CCRAW6)

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The Marketplace Demands DigitalLiteracy In order to even access and pursue most job

openings a person must be digitally literate.

(Pew Research Center, 11/19/2015)

One study has said that most well-payingjobs in the future will require information,media and technology literacy.

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The Gap Between Desire andDeployment

Despite a near-universal desire for moredigital education and the relentless demandsof the marketplace, deployment of digitaleducation has been limited.

What are the three “bottlenecks”?

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Three Bottlenecks

1. Shortfalls in infrastructure and devicedeployment.

2. Shortfalls in teacher training to utilizetechnology.

3. Gaps in student skills to utilize digitalcurriculum in the most beneficial waypossible.

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Overall Deployment

Taken together these three bottlenecks haveresulted in significant shortfalls indeployment. Overall classroom use can bedivided into three groups:

10% of classrooms use digital educationdaily.

75% use digital education occasionally.

10-15% never use it.

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Looking Closer at the DigitalDivide

Looking closer at the data on the DigitalDivide reveals three statistically significantvariances:

1. Rural v. Urban

2. Ethnicity

3. Income Levels

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Rural v. Urban

Rural: 39% have no access to broadband

Urban: 4% have no access to broadband

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Impact of Income on Internet Usage

Internet Usage by Income Level

Families making less than $30,000: 62%

Families making more than $50,000: 90%

56% of teachers in low income schools saythat their students inadequate access totechnology is a major challenge for usingtechnology as a teaching aid.

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Ethnicity and High Speed Access

Black 62%

Hispanic 63%

White 75%

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Digital Divide and The Williams Case

Williams v. California (2004)

Class action based on denial of equaleducational opportunity.

Resulted in settlement that establishesstandards for provision of essentialeducational resources. Subsequentlycodified into law.

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Digital Divide and Williams

Adoption of digital instructional material must beanalyzed to allow equal educational opportunity.

What is “sufficiency” for technology as applied toWilliams? Devices, licenses, software

Students must have necessary equipment in class ANDat home to access electronic textbooks and content.

Districts may still meet sufficiency by providing printedmaterials “identical” to electronic materials, or byproviding equipment or access to take home.

Cannot force parents to pay extra.

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What are the Solutions?

Attack each of the three bottleneckssystematically

Infrastructure: Bring the high speed internethome.

Microsoft Petition to apply E-Rate subsidiesfor students using the internet at home.

Obama’s “Connect America”

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Other Solutions

Providing low-cost internet though specialtelecommunications programs. Set up fee isabout $50 a month $9 to $15 a month permonth.

King County’s Data Access Program

Lindsay School District

Boys and Girls Club and Wi Fi

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Other Solutions

Build technology into your bond programs

Build technology into your projectspecifications.

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Teacher Training

50% of all teachers would use more digitaleducation if they could receive more training

Statutory Solution?

Every Student Succeeds Act establishes two(2) funds for teacher training

Technology and Student Data PrivacyFocused Development ($2.29 Billion)

Student Support and Academic EnrichmentGrants ($1.65 Billion)

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Teaching Across the Digital Divide

Tulare County SAMR Model

Coding with Parents and Students

The second main method of erasing theDigital Divide is teaching students to movebeyond drill and practice exercises andeBooks to constructivist activities.

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Teaching Dynamic Learning

A recent study showed that low-incomestudents were consistently more likely thantheir more affluent peers to use classroomsoftware for “directed instruction” typeactivities, such as drill and practice.

Higher income students were more likely tolearn digital education through creative“constructivist activities”.

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Aids for Constructivist Activities

There has been growing interest in apps.Directed to low-income students, such asStreetwyze developed by San FranciscoState university professor Antwi Akom.

In “Streetwyze” young people becomeexperts about the social and materialconditions they are navigating around on adaily basis.

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The Digital Divideb

Parent’s Rights in Opting Students Out ofTechnology

Lori Chiu, Associate

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Introduction

Nationwide push for more technology in theclassroom

New technology laws

Digital standardized testing

Digital instructional materials

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Emerging Issues

Parental rights regarding education

District’s obligation to provide instructionalmaterials

Equal access

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FERPA Affords parents (and students 18+) the right to

control the disclosure of information from theirstudent’s educational record

Requires written parental consent before Districtcan release information to third parties

Directory Information Exception: can disclose student’s name,address, date of birth, etc. without parental consent if Districtprovides

Prior Notice

Opportunity to opt-out

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FERPA

School Official Exception

Allows District to disclose student information to thirdparties with a legitimate educational interest

So long as District maintains direct control over use of theinformation

Contains no opt-out right

Effectively allows students to access technology thatparents have opted them out from under DirectoryInformation Exception

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Children’s Online Privacy Protection Act

Applies to children under age 13

Parents may opt their children out of activitiesinvolving collection, disclosure or use of studentinformation for marketing or sale

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Protection of Pupil Rights Amendment

Governs administration of surveys, analyses, orevaluations pertaining to certain protectedcategories

e.g. political or religious affiliations;

Sex behavior or attitudes;

Legally recognized privileged relationships

Provides parent opportunity to opt-out

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District’s Obligations ConcerningCurriculum

Governing board of a school district must establish coursesof study and choose appropriate instructional materials

Materials can be digital as long as each student has“sufficient instructional materials”

Must provide for and promote teacher & parentinvolvement in selection of materials

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Parents’ Rights Concerning Curriculum

Education Code provides parents a right to: Examine curriculum materials used in child’s classroom;

Participate in decisions relation to the education of their child or thetotal school program;

Request a particular school for their child; and

Meet & confer with child’s teacher and principal

No parental authority to select or request the use of aspecific curriculum

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Ensuring Equal Access District must offer standards-aligned materials

both in class and at home

Parents can request alternative instructionalmaterials

If District is 100% digital, parents likely cannotrequire alternative instructional materials

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Practical Pointers If a parents are concerned with students’

use of technology:

Schedule a meeting to share the details of theDistrict’s Technology Plan

Discuss the benefits of digital educationalmaterials

Explain the steps District will take to addressInternet safety

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Practical Pointers

Discuss the benefits of digital educationalmaterials in the classroom, such as:

Personalized learning opportunities;

Expanded learning opportunities;

Collaborative learning;

Regularly updated curriculum; and

A larger database of instructional materials forteachers to pull from.

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Practical Pointers

Offer to provide digital citizenship trainingfor students and parents

Consider alternative placement options

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