How will the new Disability Standards for Education affect what universities do on the web?

Summary

On August 18, 2005 new Disability Standards for Education came into effect in Australia. Questions have been raised about how they may impact on the way universities publish resources on the web. In this article, I provide an overview of the new Standards, their general impact, and conclude that if organisations are already following the advice of the Human Rights and Equal Opportunity Commission (on how to comply with the Disability Discrimination Act 1992 in relation to the web), the introduction of the Standards should make no appreciable difference.

Disclaimer: in producing this information I should point out that I am not a legal practitioner and so this not a legal opinion. What follows is an opinion based on my own reading of the Standards and other associated documents, and discussion with colleagues who work in this field.

Background

On August 18, 2005 new Disability Standards for Education came into effect, having been introduced into Federal Parliament in late 2004.

The Standards are subordinate legislation to the Disability Discrimination Act 1992 (DDA), enacted under Section 31. This means that if an education provider complies with the Standards, they are complying with the Act, and if they breach the Standards, they are in breach of the Act.

The standards were developed over a lengthy period – more than 7 years.

Aims of the Standards

The overall aim of the Standards is to clarify the rights and obligations within the DDA with respect to education and training.

Scope of the Standards

The Standards apply to providers of training and education in the public and private sectors. They apply to current and prospective students.

The Standards cover five areas of activity:

  • Enrolment
  • Participation
  • Curriculum development, accreditation and delivery
  • Student support services
  • Elimination of harassment and victimisation.

Format of the standards

There are three parts to each standard:
  • Statement of rights or entitlements
  • Description of legal obligations or responsibilities
  • Description of measures that are evidence of compliance.

Key principle

The key principle of the Standards is that students with disabilities must be treated "on the same basis" as those without disabilities.

"On the same basis" means disabled students must have comparable opportunities and choices in admission and enrolment, courses and programs and the use of facilities and services.

"Reasonable adjustments"

To ensure that students with disabilities are treated "on the same basis", education providers may make "reasonable adjustments". Reasonable adjustments are measures or actions taken to assist a student with a disability so that they can participate in education and training on the same basis as other students.

In making adjustments education providers will need to consider:
  • The student's disability, views, ability to achieve learning outcomes, participate in course, independence
  • The impact on education provider, staff, other students
  • Costs and benefits of making the adjustment
  • Entitlement to maintain the academic requirements of the program or course
Education providers are not required to make unreasonable adjustments. For instance, providers are entitled to maintain the academic requirements and integrity of the course.

In making "reasonable adjustments" it is mandatory to consult with disabled student concerning about reasonableness of adjustment. Consideration should be given to the disruptiveness and/or intrusiveness of proposed adjustment. Providers must also assess if an adjustment will need to change over time to meet the student's changing needs. Adjustments must be made in a reasonable time.

"Unjustifiable hardship"

The Standards require that educational providers comply with the Standards "to the maximum extent not involving unjustifiable hardship". So it appears that some level of hardship is justifiable.

The courts would ultimately decide what constituted an "unjustifiable hardship", but it is worth noting that many accessibility experts believe that the defence of unjustifiable hardship would be very hard to maintain when it comes to the web.  Bruce Maguire from the Human Rights and Equal Opportunity Commission (HREOC) writes

"It is hard to see how a website could succeed with a claim of unjustifiable hardship, given the considerable amount of information, training and techniques that exist for making websites accessible, and given also the ready availability of affordable technologies for achieving such accessibility."

Ensuring compliance

Compliance with the Standards is the responsibility of the education provider. Non-compliance generates a right of complaint which will be dealt with in the first instance by HREOC, and if unresolved may be referred to the Federal Court or Federal Magistrates Court.

Complainants can seek an injunction in the Federal Court or Federal Magistrates Court to maintain the status quo or maintain the rights of an affected person while a complaint is being conciliated by HREOC.

Impact of the Standards

An independent quantitative cost-benefit analysis of the Standards was completed in June 2003 by the Allen Consulting Group. They report the following responses from education providers.

Universities said that the standards will not increase the cost of compliance with the DDA. Allen Consulting Group concluded that "the sector feels it has processes in place that comply with the Standards".

Other education providers were concerned that the Standards would increase compliance costs. Three issues were raised:
  • The DDA is essentially "passive legislation". Compliance is assumed until challenged, but the Standards will become de facto requirements
  • The Standards will raise awareness of rights of disabled persons and the obligations of providers
  • Self-identification as "disabled" will expand the number of people needing to be accommodated.
The Allen Consulting Group considered the information and cost-benefit analysis provided by educational providers and disability advocacy groups. They concluded that the main cost of introducing the Standards related to professional development because staff will need to be made aware of the rights and obligations embodied in the Standards. In terms of the impact of the Standards themselves, they said:
  • Meeting the enrolment standards will involve "no appreciably different burden than under the DDA"
  • Meeting the new participation standards involves "no greater imposition than under the DDA"
  • There will be "no costs attributable to the Standards" in meeting the support standards
  • In meeting the curriculum development standards "some activities would need to change…" but change is ongoing in curriculum development anyway
  • The review team was "not convinced" of the requirement for additional spending due to standards relating to harassment and victimisation.

Standards and the web

The Act gives the Human Rights and Equal Opportunity Commission (HREOC) the power to issue "Advisory notes" to assist organisations to meet their obligations under the Act.

HREOC's publishes its "World Wide Web Access: Disability Discrimination Act Advisory Notes" on its website. It advises that organisations design websites that conform to the World Wide Web Consortium's Web Content Accessibility Guidelines 1.0. It also warns against publishing content solely in PDF or Flash format, since these formats tend to be inaccessible--either completely or partially--for some disabled users.

From my reading of the Standards, it seems clear that if you are already following HREOC's advice, the introduction of the Standards should make no appreciable difference.

So the real question is – are you complying with HREOC's advice?

Related (external) links

Published: 26 August, 2005.
Updated: 7 January, 2006.