Lainey Feingold: Hello! OK, well, thank you for having me. And thank you for being accessibility champions at UMass. Let me just check in with John. It's sounding good and looking good as I start?
John: Yes, you are. You're all set.
Lainey Feingold: OK, great. OK, so I have my video on just going to say hello, so you can see who I am. And you can see my upstairs office. But for the presentation, I'm going to shut it off because I feel it's distracting. So I am going to stop the video, and you still should see the slides.
So I titled this "Accessibility as a Civil Right of Students, Faculty, and Staff." I'm really happy to be part of the UMass accessibility retreat. On the title slide, I have my Twitter account, which is @LFLegal. I really recommend Twitter for people interested in digital accessibility. There's a really great community there. And in fact, this is all happening because of Twitter. And I thank Kelsey. We met each other through Twitter. And now, we're here.
My website is LFLegal.com. I have a lot of information about digital accessibility and the law and practical tips. So I invite you to check things out. One easy way in is there is a high-level topics tab. And you can see everything on the site organized by topic-- web accessibility, digital access, point of sale devices, many things that we'll talk about today.
So I didn't hear the introduction of myself, so you probably already know I'm a disability rights lawyer and have been since '92. My focus is exclusively digital technologies for blind people. And that's what I've worked on since I started working in this space. in 1995 with talking ATMs for blind people.
I'm also a speaker and a trainer, and I've written a book. I'm an author. The book is called Structured Negotiation-- A Winning Alternative to Lawsuits, which is about the way that I've done digital accessibility with my clients in the blind community. That is with collaboration, with problem solving, and without-- as much as possible, without conflict, and most importantly, without lawsuits.
So one of the good things about being a speaker is I get to go to different places and learn about different cultures. And last year, I had the privilege of speaking in Toronto and in Australia. And in both Canada and Australia, they begin all public speaking with a recognition that, before we were here, there were native people on the land. And I just loved that.
So I now start my talks with the same thing, remembering our place. This is a picture of nature in Massachusetts. Some of you may recommend it. You may recognize it. And these are some of the native people that lived in Massachusetts-- Mahican, Pennacook, Pocomtuc, Nipmuc, and Massachuset. And I like starting like this, not just to remember that there were native people on the land and still are on the land, but also to just remember that, back in the day before European settlers came, people weren't thinking about digital accessibility. And I like to remember where I am in the flow of time.
Because if you're sitting in this room, you're an accessibility champion. And I really believe that, in 2018, if we don't do the work we're all collectively doing now, then 20 years from now, 300 years from now, disabled people are going to be locked out of the technological world. So I like starting with remembering the native people for those two reasons.
In this presentation, I'm also remembering our time. Because as Kelsey said, and maybe it was said in the introduction, my parents are UMass alumni. They both graduated from the University of Massachusetts Amherst in 1954. And that's where they met. And that's where they dated. And they got married right after they graduated.
So I found two pictures from the 1954 yearbook, one of a cafeteria worker and one of a football player. So I'm showing those two pictures and dedicating this talk to my parents, Norma and Saul Feingold, who, like I said, were UMass alumni. So thinking of them back in 1954, UMass wasn't thinking about digital accessibility then, either. So this is our time and this is our place.
The not-so-fine print of my presentation is that whatever I say is not legal advice. I put the little Twitter bird on some of the slides. I don't know if any of your tweeters or you tweet, but I always like to remind people to tweet about anything I say. It's not legal advice. And if I think something is tweetable, I put a little bird on the slide. So that's why that's there.
And the goals of this session. OK, so we have about an hour, a little less than an hour. I want to cover a lot of things. And I also want to be respectful of audience questions. So I will leave time for questions at the end. If you have a burning desire to ask a question while I'm talking, just raise your hand in the room, and the moderators will chime in. I don't want to call it an interruption, because I'd like this to be more of a dialogue and a conversation, but there's so much to share that I may be talking a lot and talking fast.
So the goals of the session are to help you understand accessibility as a civil right, to make sense of the legal landscape, because I know there's so much going on in the legal space right now. And I also know that the legal space is just one small part of accessibility. I don't know if there's any lawyers in the audience. I think this is an area where lawyers-- we all need to remember that accessibility is happening on the ground. There are so, so many roles that make accessibility work. If we had more time, I'd go around the room and I'd hear what each of you do and know what your role is to make UMass a more accessible campus for your students and staff and faculty.
But the legal space is important. And I'm a lawyer, and that's why you asked me to talk. So I want to help you make sense of the legal space, and also, in that regard, help shift from fear to motivation. Because too much of conversation about the law is about fear. Oh, no, we're going to get sued. Oh, no, we have to be careful and not say this because we might not be saying the right things, so we should say nothing.
I like to see law as a motivator. As we said, the first goal of the session is to understand that digital access is a civil right. That's a good thing. That's a motivating thing. You are in whatever role you're in because you want to have an inclusive campus. So that's part of the law. So I'd like to help people shift from fear to motivation if I can.
Like I say, I don't-- lawyers are called sharks. And I like to think of a lawyer as a dolphin because everybody loves dolphins. And I do a whole training on my process in structured negotiation where we talk about what are the dolphin qualities and what are the shark qualities. And hopefully, you'll leave this session thinking a little bit more about the law less as a shark. And again, you each have a role. How can the law help you do your role?
So this picture here of a jean pocket with tools, like scissors and a tape measure, a pen. I see the law as something everyone-- I see it as a tool and something everyone has a right to put in their pocket and use to advance accessibility. So that's what I hope to do. And let's see if we can do it.
So the first principle is that accessibility is about people. This is a picture I got after I put on Twitter, can anyone please send me a picture of diversity not in a staged setting? And this photo came from someone named Carl Martin, who has a website, More Than We. It's diverse in terms of gender and disability and race and ethnicity. Not very diverse in terms of age. I have another picture later than tries to get the age thing.
But accessibility is about people. And whatever your role, if you can get back to that, like who are the people I'm doing this for and will all the people I'm doing it for be able to use what I'm doing, that is going to get you very far down the road of meeting the legal requirements.
All the people have legal rights. And I just put together-- oh, here's the picture with the better diversity on aging, not so good on visible disabilities. Then again, many disabilities that you are doing your work for are not visible. So in some sense, that is a good picture for that.
So I was thinking about, oh, this is a talk for people working in the university system. So when you think about people-- accessibility is about people-- you're thinking about students. You're thinking about staff. You're thinking about faculty. And then, I was thinking about, as a university system, the people that you all are dealing with is everybody, because you have job applicants, for example, and you have student applicants. So there's a lot of activity in the legal space, making sure that applicants have a fair shake now that more and more application processes are online.
Do you have a medical system? I don't know. Is anybody in the room-- is the medical system part of this talk? Can John or Kelsey-- can you let me know that because--
John: Yes, there is.
Lainey Feingold: OK, so good. So welcome. And yeah, patients and the flip side of patients-- not the flip side, but patients and their visitors and those of you working at UMass Medical, which-- I should've said when I gave the shout out to my parents that I was born and bred in Worcester, Massachusetts, now the home of UMass Medical Center, which has been a great facility for my family. My whole family is still in Worcester. There's actually four generations of Feingolds, which is pretty unusual. So yeah, I have Worcester and Massachusetts near and dear to my heart.
And there's a lot of activity in the legal space, in the medical setting, for patients, for families, for visitors. So those of at UMass Medical have a lot of digital accessibility work that you are thinking about. Parents and guardians, who are in all your different spaces-- parents, guardians of your students.
And then I put in shoppers because I know you sell things. You have stores. There is digital accessibility with online shopping. That's in the legal space. And I have a lot of pluses here. If anybody has something really they want to say what people-- or we don't really have time to go around and talk about the other types of people that your work is impacting in the UMass system, but you might just think about that. You could send me a note afterwards.
Because the more we can just remember that the work we do is about people and narrow it down to the type of people, not just like lawyers-- we call them clients, or those viewer web developers, users, or usability experts. But think of the actual people-- the new student, the returning student, the older student, that will, like I say, go a long way towards putting accessibility where it needs to be.
So because accessibility is about people, accessibility is a civil right of disabled people. And if we had to stop right now, if the computer system stopped working, and you said, oh, what was she going to say? Basically this. That accessibility is a civil right, often called a human right in other countries. For our purposes, the same thing-- a civil right of disabled people. And I have this slide illustrated by a march as part of the run up to the ADA with disabled people in the front that says, "Injustice anywhere--" with a banner that says, "Injustice anywhere is a threat to justice everywhere," which is a Martin Luther King quote.
So that is really why we're here, why there's a lawyer talking to you, why accessibility is in the legal space. Because since the first principle is that accessibility is about people, accessibility is a civil right of disabled people. And why is that?
Because bottom line, with accessibility, we have participation, inclusion, and equality, as illustrated by these smiling people talking to each other, one with a disability, one without. And without accessibility, we have, like this picture, a sad-looking girl looking out through the window. People are left out. People are excluded. And people are discriminated against.
And there's so much about accessibility. And whatever particular role you're in, whether you're developing, designing, content, policy, legal, you know, we all look at our particular roles, but if we can step back and look at the big picture, we're doing this so we don't leave anybody out. We don't leave anybody out of the great programs of the University of Massachusetts.
So there's a choice in whatever you're doing. You can open the door. And I got this great old picture-- I got this great picture of an old door with the sun shining through. Or the door is locked and people can't get in. So that is really what this is all about.
Accessibility is a civil right, also, because it's the right to information. And again, they have this expression in negotiation-- if your stuck, you should to go to the balcony to get a picture, get a little distance for what you're doing. And at the core, accessibility is a right to information in the classroom, on the college application, a job application, job training, which is a really big issue and somewhat of a problem in many places-- making sure job training is accessible-- in the library, in all the healthcare information-- I've done a lot of work in making sure healthcare information is accessible to people who are blind-- in the retail space, in employment, in community, in sports.
I know UMass-- I used to go to the football games with my father in the fall when I was growing up. And oh, I used to love to go up there. I'm not much of a sports fan these days, but it was fun. We went in the car, and it was like this UMass feeling, and my father saw his friends from college. And so sports is a big part of it-- and a dining hall. And these are all areas where the law has come into play recently around information around food and nutrition. I did a negotiation with Major League Baseball about sports information. So when you're thinking about accessibility and people and the civil rights aspect, one reason is that accessibility is a right to information.
Accessibility is also about confidentiality, security, and privacy. And I know many of you in your roles-- I don't know what your roles are, but I have a basic sense-- are always thinking about keeping student records confidential, making sure your digital properties are secure, making sure there's privacy. Well, without accessibility, disabled people don't have privacy, security, or confidentiality with their online material because they need help getting it.
I can't tell you how many of the cases I worked on over the last 25 years have started with somebody saying to a blind person, well, can't someone read that for you? Can't get help doing that? Can't someone go to the ATM with you? And the things we've gone past, like when I started in the '90s working on ATMs that talks for blind people, there were none in the world. So like a common thing, oh, can't someone help you? Well, now, we think that's outrageous that people would have to give their PIN to be able to access their own money.
Or I've worked on point-of-sale devices in stores. And they were times in the not-so-recent past where blind people couldn't enter their PIN independently on a retail device. So when you're thinking of what's the law about, why is the law involved with this? Well, without accessibility, we don't have confidentiality, security, and privacy. So why be afraid of that, in terms of why should the law be seen as a fear rather than a motivator?
So the legal equation for access-- I don't know if any of you have seen a presentation I've done before. I always try to mix it up a little, but this equation really just sticks. And I've used it for the last couple of years when presenting on digital access.
The legal equation is the foundation, which is laws and regulations, plus the advocates, who are the who, plus the strategies, which is how those advocates use the strategies, and especially in this climate, it's really important to distinguish the foundation, the laws, from the strategies. Because some strategies advance accessibility and some strategies not so much. But the main equation for accessibility and why the law and how the law's involved is the foundation plus the advocates plus the strategies. And when used appropriately together, that comes to greater accessibility.
So let's look at the foundation. The basic idea of the foundation, the basic takeaway here, is that the foundation is strong. And that's why I have it illustrated by this very strong-looking foundation of cement blocks and the guide leveling it and mortar. It's a strong foundation. So we could spend five hours talking about the legal foundations, but I just want to give you a quick overview.
Like I said, I have a lot of information on this on my website. I'm always happy to answer follow-up questions. So we have federal laws and policies. That's why I'm using color for emphasis here. Federal is in blue because we had federal. And then, you'll see in a minute, we also have state.
So we have the Americans with Disabilities Act, which covers the public sector, which is you guys at the University of Massachusetts; the private sector, and perhaps you have some arrangements with the private sector or this private sector aspect in some of the work you do; and employment. So those are what they call the three titles. Public sector is Title II, private sector is Title III, employment is Title I.
And the ADA prohibits discrimination. Back to the earlier point of this is about people and inclusion and participation, that's what the ADA is all about. And for the lawyers in the room, I can share the feeling that there's complications and there's different court decisions and there is details and regulations, but the bottom line is the ADA is a civil rights law, making sure disabled people are included. So that's part of the strong foundation.
We have federal procurement, which is Section 508. It's very familiar to many people, but it only applies to what the federal government purchases. It may or may not-- if you're not the federal government, you may have products or services you sell to the federal government, in which case you have to concern yourself with 508.
Federally funded-- there is Section 504. And these are sections of the Rehabilitation Act. And those of you who like reading the citations, I can get you those afterwards. So federally funded has to do with when the federal government gives money, the recipient of that money can't spend it in a discriminatory way. So it's very-- in terms of fear versus motivation, that's good. We have a federal government that says, you know what, if we're going to give federal money to the states or to state universities or the state hospitals, university systems, the money has to be spent on everyone, including people with disabilities. So that's why accessibility is part of 504.
And then, for those of you in the medical part of things, there's Section 1557 of the Affordable Care Act, which has to do with health IT. And really, I have a whole presentation I do on health IT and accessibility, which, if the medical folks are interested in that, we can talk offline. But there's so much going on. There's so much exciting technology in the healthcare space. And Section 1557 is basically, if you're going to have healthcare technology and information as part of the Affordable Care Act, it needs to be available to everyone.
So this is why I say it's a strong foundation. Right here on this one slide, we have, really, decades of laws protecting the rights of people with disabilities to have access to information. In the digital age, that means digital access.
Do we have web regulations under the ADA that require universities to make websites accessible? We do not, which is why I have a red circle with an X over that. Do we have ADA web regulations? Many in the audience may have heard that we're going to be regulations since 2010. They were proposed. And they went through a million iterations. And they were finally withdrawn by the current administration.
But the fact that the web regulations are inactive doesn't mean the ADA is. So I have a couple slogans for this because it's so important. ADA web regs are inactive. The ADA is not. ADA web regulations are inactive. The ADA is not. So talk about tools in your pocket, if you have to convince a supervisor or someone that you work with, well, there's no regulations. Its a gray area. Not so much. Not so much. Because the ADA is alive and well, which brings me to the second slogan.
The web regs are dead. The ADA is alive and well. Web regs are dead. ADA is alive and well. And the judges agree with that. They're starting to be more cases filed on web accessibility, which many of you have read about. And that means there are starting to be court orders. Most of these court orders are early in cases, where cases are filed and a company comes in and says, this case should be thrown out of court.
I think something like 90%, 95% of the cases, the judges are saying these cases can stay in court. So we're seeing fewer of them. But in the last two years, there were maybe 20, 25 court orders. And some of the companies argued, well, there's no regulations, so we shouldn't have a lawsuit against us. And I used to say what I said in the previous slide-- web regs are dead, ADA is alive and well. And now, I can point to judges who say it, too.
So just a couple quotes to drive it home. In a case against 1-800-Flowers, which is why I have this slide illustrated by these pretty flowers, the judge said, "The Department of Justice's rule-making process has no impact on the fitness of this case for adjudication," which is just a fancy way of saying that the fact that the DOJ didn't make rules doesn't mean the case cannot go forward.
And another good one was in a case against Blue Apron that said, "The court will not delay in adjudicating the plaintiff's claim on the off-chance that the DOJ promptly issues regulations it has contemplated issuing for seven years, but has yet to make significant progress on." So this case was at the end of 2017. It's now been eight years. The regulations were first proposed in July of 2010.
If you're history buffs, I have a lot of my website about the history of that. Many people, including me, testified before the DOJ about the rules. But as this judge says, the court's not going to delay here in lawsuits just because there aren't any regulations. So again, the web regs are dead, but the ADA is alive and well.
Massachusetts also has laws. And I have this map here with your campuses on the map and their locations. You have many laws in Massachusetts. You have a state-funded IT requirement, just like Section 508. Most states have that. Section 508, like I said, was for Federal procurement. State-funded IT is for state procurement.
And again, it's really common sense that, if the state is going to spend money on IT, if you're going to get funded from states for projects, you have to make sure that IT is accessible to everyone. State procured IT, if you're purchasing information technology. There's state anti-discrimination laws that are similar to the Americans with Disabilities Act that prohibit discrimination.
And you have a very good constitution in Massachusetts. I have a quote here that is also supportive of digital accessibility because it says, "No otherwise qualified handicapped individual--" I don't know if they updated that to say disabled or not, but-- "No otherwise qualified handicapped individual shall solely by reason of the handicap be excluded from the participation--" again, accessibility is about participation-- "--shall be excluded from the participation in, or denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth." So these are things to be proud that you have in Massachusetts and my home state. And it is part of that strong foundation that we talked about before.
The foundation also extends beyond the United States. And if you're in this room at the UMass Accessibility Retreat, you're part of a global movement. And I really feel that strongly, which is why, like I say, invite people to be on Twitter because the Twitter accessibility community is global.
The United Nations Convention on the Rights of People with Disabilities has a lot of great language. I know you have study abroad programs. You have US requirements for your students here. You may have additional requirements in the countries that they go to. The UN Convention on the Rights of People with Disabilities has a lot of strong language on accessible technology.
And the W3C site-- and that's the World Wide Web Consortium Web Accessibility Initiative-- they keep track of web accessibility requirements around the world. You can find it at w3.org/WAI/Policy. I also keep a list on my website. You can find a link on the home page or you can just, in the search box, put in "Japan," because it's the only time the word "Japan" shows is on that list.
So that's part of the foundation beyond the US, in the US, in the state of Massachusetts. But without advocates and strategies, that's all you have is the foundation, like this picture, a foundation without a building on top of it. So advocates are needed to enforce the foundation. And there's many different strategies that advocates use.
I always talk about this in terms of the tool box because very important. Like I said, not to confuse, if there's a strategy you don't like, like too many lawsuits or too many certain type of lawsuits, that's a strategy. That's not the foundation. And that's not the underlying core principles of people being the root of accessibility requirements.
So I have down here four strategies that have mostly been responsible for the legal part of advancing accessibility. Again, I just want to say that so much of accessibility is advanced by people like you in the room that you're sitting in doing the work to make sure your campuses and your university system are accessible. So it's not that all good results come from legal strategies, but there are legal strategies. And that's what we're talking about today.
So the first strategy I want to mention is often left out, which is student advocacy. Because students with disabilities-- and I say here, student plus plus because we're talking about employees with disabilities, or visitors, or your patients-- the list that we talked about before-- people don't want to be involved in the legal system. We know this from our own personal lives. And students are always advocating for themselves. And when they have a responsive campus to advocate to, they get results without having to go to other legal strategies.
But this is why I like to say, put the law in your pocket. Because students, staff, faculty should be able to use the law without having to escalate into a legal process, even a kinder, gentler one, like structured negotiation that I practice. So I put the student advocacy and the people advocacy as a legal strategy.
There's also, of course, lawsuits. There's federal agency complaints. And there's structured negotiation. So I'm going to talk a little bit about how those strategies have been used. And then, I'm going to take up best practices. And I'm going to do all of that in the next half hour. But maybe this is a good time, if there's any burning questions in the audience, we could take a couple minutes and I could try to answer to them.
John: Does anybody have any questions for Lainey?
Lainey Feingold: Say again?
John: I'm just looking around the room. I don't see any hands up. So I guess you could continue.
Lainey Feingold: OK, OK. But don't be shy. If you have questions, put your hand up. And I can take them. OK, so higher ed litigation-- there have been lawsuits, most of which settled. And here's a partial list. I have resources at the end where I'll give you where you can find links to all these documents and more information about the cases.
So Miami University in Ohio-- maybe can just do a quick show of hands, how many of you have heard of the digital accessibility litigation with Miami University? And John, maybe you could tell me if anyone has.
John: Looks like about 5 to 10 people.
Lainey Feingold: OK, so Miami University of Ohio is just the most recent of a series of cases that the National Federation of the Blind and the US Department of Justice-- in this case, it was of them-- brought against the university on all sorts of aspects of their digital presence. Before there was Miami University, being first on my list, there was a case against the University of Montana. There is some cases against community colleges. Atlantic Cape Community College was a big one. And all these are kind of the same.
I thought I'd printed out the press release to read it to you, but basically, these are cases that look at the entire-- they're brought because of students, because of people, who weren't able to access digital content when and where they needed it. Sorry, I'm hesitating for a second because I wanted to read you the press release, which I thought had, but I don't.
But the basic idea of these is that they're looking campus wide at, not just websites, mobile applications, library systems, learning management systems, videos, course material, textbooks, other technology on the campuses. I'm sure you have ATMs and you have point-of-sale devices. And so I recommend reading these.
They ended up settling. The Department of Justice had one settlement. And the National Federation of the Blind had another. They've kind of coming back together just to see-- they talk about training. Wait, I think I found it. They talk about-- yeah, OK, sorry. The Department of Justice issued a press release about Miami University with the title, "Miami University Agrees to Overhaul Critical Technologies to Settle Disability Discrimination Lawsuit."
You know, it's funny. This is not a training on structured negotiation. I do that also. But structured negotiation, it's a collaborative approach. We're looking for a win-win results, so we don't do negative press releases at the beginning. And we don't issue press releases, like this, about settling disability discrimination lawsuits. We want the organizations we work with to proudly announce their changes without that cloud over them.
On the other hand, in the education setting, these cases were filed as lawsuits. They've got spectacular results in my view. And the downside of ending up on the receiving end of a lawsuit is the final press release when you're doing the good work reads like that, "Miami University Agrees to Overhaul Critical Technologies to Settle Disability Discrimination Lawsuit." In the press release, they mentioned that the agreement deals with web content, learning management systems, procurement.
As part of a consent agreement, Miami University will, among other things, procure web technology or software that best meets various accessibility standards. And again, this is really key. It says, "Technology in the classroom and across campus provides the backbone for full and equal participation in college life." And that's really at the heart of it. And that's the thing to put in your pocket, that technology across campus in the classroom provides the backbone for full and equal participation in college life.
So other pending litigation in higher ed-- there's a lawsuit against Harvard and another one against MIT about video captioning. How many in the room have heard about that?
John: There seems to be about six people.
Lainey Feingold: OK, so just some. I don't really need head counts. I'm just--
You know, these are in Massachusetts, so it's a partial list, but I tried to-- I want to mention Harvard and MIT. Now, those are cases brought by the National Association of the Deaf. The litigation around web accessibility began around the needs of blind people. Because without accessibility, blind people are 100% locked out.
As more and more content goes on video, and I'm sure this is true for your campus, as well, the deaf community started out saying, wait a second here. If we don't have accessibility, we don't get video content, which is primarily closed captions and transcripts. So there are pending cases against Harvard and MIT on that issue by the National Association of the Deaf.
There was the case against edX early on about their platform. As I mentioned, Montana and Atlantic Cape are two other agreements that you can look at just to get a feeling of the scope of the issues. UC Berkeley also has a pending National Association of the Deaf claim by the Department of Justice, again, on video captioning. So that some of the litigation that's happening.
There's also, in October of last year, there were seven cases basically filed in one week against New York colleges-- sorry-- colleges and universities in the New York City area-- Iona, Fordham, NYU, Hofstra, Manhattan College. This is some of the stuff that creates the fear that we're talking about.
And I need to mention it because it's out there, but it really needs to be put in perspective that it's a certain strategy. Some people are using it. It's out there, but the best defense to these, again, it's not legal advice. But the best defense is having a robust accessibility program that is transparent. And we'll talk about some of those best practices in a minute. Long Island University is another one.
Other related legal developments-- there was a settlement against Barbri, which is a test prep for the Bar Association, because their online testing materials weren't accessible. So that's part of the law school, law school issues. Then, part of a case against Los Angeles Community College, which the case is pending and they're actually set for trial later this year, last I heard, they had a big kerfuffle about whether an organization can sue a university or community college system. And the court ruled they can be part of that lawsuit.
Again, in structured negotiation, we don't deal with those types of issues because we're presenting accessibility as a problem to be solved, not something to fight over. But lawsuits have played a vitally important role in this space. And organizations representing people with disabilities are part of that. Like I said earlier, there's lawsuits about employment websites and online job applications for that aspect and those involved in employment.
There's a lot of legal developments around healthcare. I've done structured negotiations around accessible websites talking prescription labels. I've done agreements with CVS and Humana, Walgreens, Rite Aid. Again, if you go back to the people you're serving and you're thinking about patients who can't read a standard label, obviously, you need talking prescription labels. So I have information on my website about that. I could talk more about that offline to people involved in healthcare issues. So those are some of the other recent legal developments.
I want to just throw out quickly that digital access is about more than websites. We talked about some of those things, like learning management systems, coursework. Here are a couple of others-- kiosks. I have two pictures of kiosk here, one is on the left side-- my left-- a New York City kiosk that was the subject of a lawsuit to make sure that the information was not just on a flat screen, that blind people could get the information audibly. You can see the audio jack and that there's a tactile input method.
To the right is a kiosk that more and more are seen and maybe you have these on your campus at restaurants to order, to pay, to choose want you want to eat, also, the subject of a lawsuit. On my website at LFLegal.com/2018/01/kiosks18, I talk about the legal space and kiosks. And I'm sure the University of Massachusetts has various types of kiosks. Hospital registration is often on a kiosk-- class course registration. If we had more time, we'd go around the room. And I'm sure you have other types of technologies that aren't websites that you need to think about digital access.
But again, if you think about people and the particular people you're serving-- the patients, the students, the employees-- then you will remember, oh, yeah, here's a kiosk, and I need to make sure everybody can use it.
So the Department of Justice is also involved in accessibility. Like I said, they were part of the Miami University of Ohio. They do have a website that has all their work from 2004 to 2017. It's ADA.gov/access-technology. There has been nothing added to this since the current administration. But in 2018, the current administration did announce a settlement with the City of Denver. It wasn't education, but it was web accessibility. So the DOJ is still doing some stuff. We won't, right now, get into the Department of Justice.
Department of Education-- probably many of you, and maybe UMass have got some of these complaints-- there is a woman in Michigan who has filed over 2,000 complaints against university systems, colleges, higher ed, lower ed. How many in the room are familiar with that, all those complaints?
John: There's like one or two people.
Lainey Feingold: Oh, OK, well, see, this is my conflict. Like, do I share with you the fact that there's all these complaints out there? Because I really don't like feeding the fear monster because fear is kind of a liar. And it's much better to be motivated by inclusion. But nonetheless, you invited me as a lawyer, so I feel I have to, in fairness, share with you that this is going on.
So there were all these complaints against K-12, higher ed, state and local departments of education. And then, recently, the Department of Ed put out new rules, which limited the Department of Ed's obligation to investigate all the claims, which is a total change of course from how the Department of Ed has operated for the last 40 years.
And there is currently pending a lawsuit against that change of law. So that is out there. There's. like I say, more on my website. There's a lot written in the Higher Ed Chronicles about these complaints. They were mostly focused on websites, and they would mostly settle with the obligation to make the website accessible to WCAG 2.0.
OK, so law is foundation. We talked about that. We talked about that advocates and the strategy bring results. So good strategies bake in access and help avoid legal activity. Good strategies bake in access, which is why I have this illustrated by a tray of cookies that I served in a presentation that I did with a Microsoft lawyer at the CSUN conference last year.
And we talked about best practices for baking in accessibility that flow from some of this legal activity we've talked about, and also flow from corporations, like Microsoft, who are doing the right thing because they know it's not just the law, but it's about inclusion and participation.
These cookies-- I'm sorry I didn't deliver them to Massachusetts because they were so good.
But they have a lot of different things in them, like chips and M&Ms to show that we all have a role. And like I said earlier, all of you are champions because you're in this room. And all of you have a different role in making sure UMass has an inclusive digital presence for your students, staff, and all the other people. So good strategies bake in access. We can call them smart practices, best practices.
So here is kind of the gold standard. The things I'm going to talk about now, many are included in the settlement agreements that I've negotiated that have been result of lawsuits or Department of Justice complaints or are just done by organizations wanting to do the right thing. I'm sure UMass is doing many of these things, now. It's really important that your digital policy apply to everything-- web, mobile, learning systems, electronic books, classroom technology, plus, plus, plus, plus.
You know, if we had more time, we could have a whiteboard and just write all the technology that is happening on UMass campus. We could fill a whole white board with just what's happening in the medical space, so smart patient rooms and how do patients access the information in their room. There's robots. There's virtual reality. There's so many things. There's ingestibles. There's pills-- they're not really pills, the things people can swallow that send-- and maybe you use this at UMass Medical-- that send a message to the iPhone of the person with confidential information, like did you take your psych medications and did you take them on time?
Again, privacy is so important to accessibility. Accessibility is so important to privacy, especially in any dealings any of you have with education records or healthcare. So the smartest practice is to make sure that, when you're talking about the digital accessibility program, you're talking about every single aspect of technology. You need to do an audit and a survey and make sure everything's included.
The current standard that the courts are starting to use-- like I say, there's very few court decisions on this kind of detail-- but courts are starting to recognize Web Content Accessibility Guidelines 2.0 AA. I negotiated my first web accessibility agreement in 2000 with Bank of America. It was actually the first one in the United States. And we used WCAG 1.0 about a year after it came out.
So now the standard and the standard in Section 508 for procurement to the extent your state law relies on the Federal Procurement statute is Web Content Accessibility Guidelines 2.0 AA. The guidelines, which are put out by the World Wide Web Consortium, like I mentioned, which is a consortium of corporate, academic, advocacy, they just put out a new 2.1 that's been out for about a month and a half with about 14 new guidelines to make digital content even more accessible, primarily focusing on mobile, low vision, and cognitive.
Again, each of these things could be a whole presentation, but 2.1, if you're complying with 2.0 AA, it's not like you have to throw that all out to have a new thing. 2.1 embraces AA of 2.0, and it also adds these 17 new criteria. And it's too early. They haven't been part of any law or any settlement agreements yet, but it's there. And as a forward-thinking university system, as you are because you're holding an accessibility retreat, it's worth looking at 2.1 and seeing how you can incorporate that into your programs.
You need to have a digital accessibility coordinator, probably both campus-- each campus, plus system wide. And there's a lot written and talked about where to have that person in a sort of neutral position that has power and authority. So those are some of the smart practices. They do not all fit on one slide.
Training-- I don't know. Do you have anybody in the room from UMass training?
John: I don't see anybody in the room at present.
Lainey Feingold: OK, next year, got to get the training department because training is everything for accessibility. And it's a question of who gets trained. Like I said earlier, whoever's answering a telephone, taking public inquiries about anything, needs to have at least a basic understanding of, yes, people with disabilities use the internet, use mobile devices, use technology, and how do you escalate it to someone who can help. So that's really important.
Who, what is being trained about, who's doing the training, to the extent that all or part of the training can be done by people with disabilities is worth the financial investment times 100 because, in my experience, when decision-makers and from the top to the bottom executing decisions get a chance to meet with people with disabilities, the idea that accessibility is a civil right of people, it can't be forgotten. Once known, it can't be forgotten.
Once you meet someone at the training I do with the Microsoft lawyer, they put employment people with disabilities as a best practice for digital accessibility. Because if you're designing something and you know that the person in the next cubicle won't be able to use it unless you design it accessibly, well, you're probably going to design it accessibly. So same with making sure you have trainers who have disabilities.
And check it out. The reason I have a phone here is because, early on, when we were working with Bank of America, who has been a great champion of accessibility on their talking ATMs, we had a problem with customer service-- they have huge customer service team-- not understanding the new technology. And so we sat in a room and we said to Bank of America executives, you know, why don't you call your 800 number and see what you find out? That's all it really took.
So one of the things when I train on structured negotiation, I talk about the importance of show, don't tell. Oh, lawyers are so interested in telling. But in structured negotiations, we're not trying to convince a judge to do something. We are trying to convince a person who has a decision making authority. So if you're going to do training, check it out yourself and make sure it works.
Having a public accessibility statement-- I have here #A11y, which is the hashtag for accessibility on social media. And that's because there's 11 letters in the word, plus it's so easy to misspell. So we have this shortcut, A11y. Having a public statement is very important. And you don't need to reinvent the wheel, which is why I have a picture here of a wheelchair rider adjusting a wheel.
If you go to my website, I have examples of accessibility statements. I think there's a link on the home page, but you can also search for the word "Hitachi." I try to keep track of them. I want to put more higher ed statements in there. It's really important that there be contact information and show your commitment.
Now, I love you guys, and you're are all champions. But I have to say that, this morning, I went to see the accessibility statement on UMass and I could not easily find it. And I checked UC Berkeley because a friend of mine is the accessibility evangelist at UC Berkeley. And UC Berkeley has-- UC system and UC Berkeley, I think, but I was checking the systems-- has accessibility in its footer. You click on it, and you get right there.
So in two clicks, students, faculty, patients, guardians, whoever can find, oh, here's the accessibility commitment. Here's who to call if I have a problem. And just randomly, I checked University of Alabama, and they have one, too. So I don't know if I missed yours or it's not in a prominent-enough space, but I really encourage public accessibility statements. And they have been part of justice department settlements, as well as my own.
And there's been very few court decisions going all the way through, but I believe there is at least one that says you should have a public statement. I also believe it's a kind of shield against lawsuits. Because like I said, people would rather get results and inclusion than have to call a lawyer. So a public accessibility statement is part of the best practices.
Some of the other practices-- have an accessibility policy. And these come out of the electronic information technology accessibility policy that is part of the settlements in the higher education cases. Add to performance evaluations-- if someone's responsible for accessibility in one way or the other, make sure it's evaluated like all their other responsibilities.
Use a testing tool and do usability testing. There's actually a conference in DC this fall that I'm going to be keynoting just on testing. It's a huge subject right now. I don't know if any of you in the room are involved with that.
Automated testing can be good, but never without human testing on top of it. And automated testing, it's really important when you decide what testing tool to use, evaluate it as you would any other technology and vendor you work with. Get different quotes. Make sure that it works with your culture. Make sure there aren't too many false positives. Because some of these testing tools out there-- I mean, this space is exploding.
We have new lawyers who might use strategies that don't build on the good foundation. We have defense lawyers jumping in who are fighting instead of collaborating. And we also have consultants and testing tool makers who are jumping in. So it's really important to have a good testing tool to test outside of a project and iteratively throughout it and have usability testing with people with disabilities. No substitute for that. No substitute for that.
Vendor contracts-- be sure you have an entire procurement department. I don't know if anyone is in the room from that. But because I only have a few minutes left, I'm not going to ask how many, if any.
I did an article with a disability rights lawyer named Eve Hill. You can find it on my website. It was published for business lawyers by the American Bar Association, but you can find it on my website at LFLegal.com/2018/04/vendor-contracts.
And we offer 10 practices-- 10 smart practices-- for vendor contracts to make sure that when you're getting technology, you're not just saying, oh, it should comply with the law, it should be accessible, but that you're specifying how the technology will be tested, what standard it's going to meet. So vendor contracts are a huge-- getting that under control is a huge aspect of making sure your whole digital program is accessible. I like to have a slogan, and I don't think I put it as a slide. No. But the slogan is, don't buy trouble, buy accessible. So that's important.
The culture of accessibility-- company, university culture. I did a post last May called-- you can find it on my website, /2018/05/accessibility-culture-- where I'm trying to keep track, just like I keep track of the accessibility information pages-- try to keep track of companies who are speaking out about how to create a culture, Microsoft being one of them.
It would be wonderful to have some university articles going beyond, this is legally required, here's what we do. But here's our culture. Here's how we bring people together. Here's how we make sure things are tested. And then, it's not an oversight-- after site-- after thought. Sorry.
Yeah, how we build accessibility in from the ground up. So I invite you to think about being the culture. And you guys, you're at this retreat. You're the seed of that culture at University of Massachusetts system. So I thank you for that.
Here's some resources for further information. A woman named Laura Carlson at the University of Minnesota keeps a good list. I have a short link, bit.ly/HigherEdLaw. She has links to the cases I mentioned-- the Montana, the Miami University of Ohio. Paul Grossman, who was the west coast person at the Office of Civil Right's Department of Ed-- he's now retired-- he did a webinar recently for 3Play Media, which you can find at bit.ly/Grossman3Play. I can recommend both Paul and that webinar to you for resources.
I have a mailing list at LFLegal.com/contact, which you can sign up for. And if you want to see what the-- there's a blog called ADATitleiii.com, which keeps track of what's happening in the litigation space. It's by a defense firm, but a defense firm that I've worked collaboratively with in the past and that I can recommend.
My book called Structured Negotiation-- A Winning Alternative to Lawsuits-- it has stories. It has strategies. It's not just for lawyers. You can see how the blind community has worked with some of the largest organizations in the US on these issues. Right now, the publisher, the American Bar Association, is offering it for 20% off this summer with a code.
So I can get that to Kelsey. And maybe you can send it out to the participants. It's also on Amazon. And the book's in accessible format. There's a Kindle version. There's an EPUB version. It's on Bookshare, which is a library for people with print disabilities.
And that is it. So please stay in touch. My Twitter is up here, @LFLegal. My mailing list is LFLegal.com/contact. You can read up legal updates. You can see media coverage. You can follow some of these webinars. And I didn't leave too much time for questions, but maybe if there's one or two, we could take them.
John: First, a clarification we wanted to have.
Audience: So, yeah, we do have an accessibility site that has an accessibility statement. I think Christina told me last night the one through the president's office wasn't working, but I know Amherst has one. Lowell has one. And there's supposed to be a system site, too. So I'm sorry you couldn't get there when you clicked--
Lainey Feingold: Oh, OK, yeah, I was hesitant to bring that up because I was sure it was there, but I didn't see it in the footer, which is where it's kind of-- there's no requirement that be in the footer, but it's kind of getting to be standard practice to have it in a footer. So, yeah, oh, thank you for having them and-- yeah.
I hope it wasn't taken as a criticism. I just wanted to-- sharing. That's what I meant-- sharing.
John: Any other questions? Well, we got one in the way back. Hold on one second.
Audience: In terms of the quality of the accessibility features, for example, in captioning, if the captions are 55%, 60% accurate, does that actually comply or that will be good enough?
Lainey Feingold: Well, this is why I don't like the word "compliance." Because if you think about people, and if you're not deaf, would you really want to get 65% of the content? I mean, what if you're a student that would get a 100% grade, but you only got 65% of content? You might be getting a grade of 65%.
So there is no, as far as I know-- I'm sure there are best practices on the National Association of the Deaf website on how to make sure you're close captioning as good as possible. But I certainly don't think if you think of that captioning as something you want your students to have for inclusion, you're not going to be satisfied with 65%.
And if there were a lawsuit around it, the judge would be looking at effective communication. Because part of the ADA says that covered entities, like UMass, have to effectively communicate their information. And I can't imagine a judge saying, oh, 65%, that's good enough. Because when you're talking about people getting the information, people need 100%.
And there are defenses built into the ADA. You don't have to do anything that's an undue burden. You don't have to do anything that fundamentally alters. With the budget like you guys have and proper budgeting, it'd be hard to see that a judge would say it's an undue burden to give a deaf student or a deaf patient effective communication with accuracy.
John: I think we have one more question here, Lainey.
Audience: What are the typical penalties for noncompliance by universities and institutions like the ones you've listed?
Lainey Feingold: There usually are-- the remedies under the ADA are attorneys fees, in terms of-- you're asking about money. Is that what you're asking about?
John: Yes, that's right.
Lainey Feingold: Yeah, so under the ADA, the plaintiff can be paid their attorney's fees. The reason for that, like I always say-- and that's the same true in structured negotiation, except in structured negotiations, as you know if you read the book, you'll see, we don't fight about these things and there's not a lot of wasted time. The attorney's fees are much less.
But Congress decided a long time ago that people with disabilities have a right to have a lawyer equal to the lawyer that the organization is going to have. So attorneys fees are part of the you can call it penalty. I should've mentioned-- in fact, I'm sorry I didn't mention this earlier.
UMass has a great attorney general who-- the attorney general's office at University of Massachusetts has been a great source of accessibility. I don't know what they've done in higher ed, and you guys might know more about that, but they've done a lot of web accessibility cases with the National Federation of the Blind. And they've been able to get, I believe, some penalties from organizations. I don't know about higher ed.
And then, in state law, the ADA does not have money damages for the students, but Massachusetts law does have the possibility of money damages for the students. So you can look on that Laura Carlson resource link-- the University of Minnesota. She'll have all the settlements.
And I think that the Miami University students-- oh, I don't have it right here. I think it's public what the students got. I just don't have the amount. So yeah, the biggest cost is your attorney's fees and the attorney's fees of the plaintiff, which is why one of my slogans is spend money on access, not on lawyers. No offense to the lawyers, myself, and those of you in the room.
John: Well, thank you, Lainey. I think we're about out of time here. That was very informative. And thank you very much for your time.
Lainey Feingold: Yeah, well, I was glad to be there. And thank you all for the work that you're doing.