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NCDAE: The National Center on Disability and Access to Education

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Legal Costs Can be Big to Defend Inaccessible Web Content in Postsecondary Education

Linda Goetze

There are many reasons why institutions are working to improve the accessibility of digital content for faculty, students and staff. Federal law requires institutions that accept federal funds, to provide equal opportunity for persons with disabilities. Today that equal opportunity includes equal access to content in web and other digital media. The costs to mitigate student complaints that stem from inaccessible content can be high, both in terms of dollars and reputation. The cost that may result from legal action is a strong incentive for institutions of higher education to improve their efforts to make web content accessible for those who benefit from it.

The GOALS economist is in the midst of collecting and reporting on the costs incurred when litigation is the last resort. While the information presented below is only half of the story, it merits sharing now. Early next year, a monograph with a comprehensive case study on this topic will be available. At that time, the participants in the litigation may be named. For now, they will remain anonymous.

There have been a number of lawsuits brought against institutions of higher education for violation of equal opportunity under Section 504 of the Rehabilitation Act and the American with Disabilities Act (ADA). We have obtained some costs from one such case brought on behalf of a student with a disability by an advocacy organization. In this case, the complaint alleged that a postsecondary institution was in violation of federal law because the student couldn't complete coursework due to the inaccessibility of web content that was required for the course. The student had made a complaint to the Office of Civil Rights 2 semesters before filing suit. Then, after less than a year of litigation, the Institution entered into a settlement agreement. While we do not have the full costs to the institution from defending themselves in this case, we do know that the institution agreed to reimburse the advocacy group's legal costs, expenses and damages to the plaintiff which totaled almost $385,000; it should be noted that the institution continues to dispute the reasonableness of the costs and fees. The advocacy group incurred total costs and fees of over $400,000. If the institution's defense expenses were comparable then the total cost to the institution is approximately three quarters of a million dollars. Even if the institution's legal cost was much lower than the advocacy organization's expenses, say half, the institution had out of pocket legal costs of nearly $600,000. We were told that legal and court costs would have been significantly higher if the case had continued on a track through the courts. The costs reported here are the costs of taking a case through part of the pre-trial discovery process. Institutions often cannot avoid engaging in this work, and the associated costs, even if a case settles prior to trial.

In addition, the Institution agreed under the settlement agreement to make significant improvements in accessibility of web and digital content, the cost of which is not included in these estimates. If the Institution had made these accommodations without legal action they could have saved at least $400,000, probably closer to $600,000 or perhaps even significantly more. There were other non-dollar costs to all those involved as well. The student was unable to participate in the coursework or the degree program so there is a social loss due to their decreased lifetime earnings and associated taxes paid, quality of life, etc. Both groups involved in the legal action spent many staff hours engaged in this action that could have been spent in other productive activities on behalf of those they serve. These losses reflect additional opportunity costs of this case and illustrate a large potential benefit for institutions. Of course proactive work to increase the accessibility of web content before it becomes a barrier to individuals with disabilities in their work, education and knowledge acquisition benefits a broader group of stakeholders (i.e., students, staff, faculty, and community members). As this case shows it makes sense from a human perspective and from a financial one as well. It is economically efficient to invest in web accessibility and avoid such a lawsuit and its associated human and out of pocket costs.