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Draft accessible instructional materials recommendations to Congress pending

The U.S. Department of Education (ED) Postsecondary Accessible Instructional Materials (AIM) Commission will review the final draft of its report to Congress at meetings on September 8-9. Public access to the meetings will be available online at:

The commission hasn’t yet posted the full draft report it will discuss next week, but the most current version of its recommendations available indicates a mixed bag from the standpoint of EDUCAUSE member institutions; examples include the following:

  • The commission has defined “instructional materials” in very broad terms, including not just the subject-matter content but also “the technologies required (software and applications) for the manipulation, annotation, and dissemination of content” as well as “any other required instructional software and applications used to facilitate the teaching and learning process.”
  • The responsibility of postsecondary institutions to ensure instructional materials are accessible, regardless of source, is once again highlighted: “In circumstances where the instructional materials consist of open educational software . . . or faculty-developed instructional resources, it is still the legal responsibility of the postsecondary educational institutions to deploy software or hardware that is accessible to persons with disabilities.”
  • Recommendation 3 urges Congress to consider mandating the accessibility of “certain materials and devices in the digital marketplace” if the availability of accessible instructional materials does not improve in the near future. The commission is still debating whether to propose a firm deadline for making that determination.
  • It has also reengaged the debate on whether to recommend that Congress create a legal right for students to sue relevant content providers and device/application makers for not providing accessible postsecondary instructional materials. As noted in the comments of the National Federation of the Blind’s representative on the commission:

Finally, if publishers and technology vendors are not providing accessible instructional materials, legislation should extend the private right of action students already have against their educational institutions for failing to provide equal access to reach the vendors who fail to provide the necessary accessible technology. At present, the legal liability for ensuring equal access rests with postsecondary educational institutions alone. These institutions bear the brunt of inspecting the accessibility of each technology and the accessibility of the content [of] each digital book that is part of any course curriculum. The student, for her part, risks consequences from suing her school that she would not by holding liable third parties who trade in the goods that must be accessible.

While a move in this direction might lessen the burden on institutions for ensuring instructional materials accessibility, the Association of American Publishers representative on the commission abruptly left the last commission meeting over the possibility of what he described as unfair, counter-productive mandates on providers. Thus, while the point has resurfaced, it is unclear whether the commission will include it in its final report, much less whether Congress would enact such a provision if recommended.

  • In its fourth draft recommendation, the Commission essentially proposes that Congress give the U.S. Access Board, which already sets federal accessibility standards in relation to a variety of laws and regulations, the authority to set accessibility standards for postsecondary instructional materials. Standards set by the board would provide the basis for assessing the state of the marketplace in relation to possible Congressional mandates and/or legal action by students against vendors who produce inaccessible materials. Even if mandates or a new private right of action don’t materialize, the standards and a vehicle for maintaining them would make it easier for institutions and companies to know what instructional materials will allow institutions to meet their legal responsibilities.
  • Recommendation 15 would pose a new challenge to colleges and universities. In it, the commission proposes that Congress tie institutional access to “federal grant monies” to whether institutions “aggressively educate faculty, staff, students, and university leadership about accessible instructional materials.” The accompanying text clarifies this proposal:
    • “Requiring postsecondary institutions to certify that they have educational programs in place (e.g., online courses to be completed by professors each year) should be linked to the release of certain federal monies.”
    • “The Commission believes that each postsecondary institution should complete a system-wide orientation for faculty and administrators on the importance of ensuring accessibility in all aspects of the education enterprise…. Consideration should be given to establishing some benchmarks for proficiency in disability awareness.”

From the perspective of colleges and universities, the lack of specifics about which “federal monies” might be linked to “aggressive” educational efforts by institutions may be the point of greatest concern about the draft recommendations. As the commission issues its final report to Congress, the higher education community will want to pay particular attention to whether this recommendation gains traction, what requirements might emerge as a result, and how those requirements would impact institutional eligibility for a range of federal funding.