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Martin Sloan
Using electronic media for learning and teaching is widespread. E-Learning offers opportunities for staff to convey material in a variety of ways and ultimately on 'anytime, anyplace' basis. E-learning materials can range from the simple act of putting lecture notes on line to simulations of real life. This means that distance learning (both off and on campus) is a realistic possibility, with students able to take part in class discussions via email and online discussion forums, and at the same time being able to remotely access materials and information. These materials do not need to be static web pages, as technologies such as broadband improve audio and video may be made available on a faculty Intranet allowing students to review material already covered, or prepare for lectures and tutorials. For example, medical students may review a video of clinical procedures 'streamed' over the intranet and then discuss them in a tutorial, the flexibility of streaming would allow the students to view the video at the their own pace and at times which suit them.
The Ardcalloch Project designed by the Glasgow Graduate School of Law for Diploma in Legal Practice students, makes extensive use of the facilities offered by Microsoft Outlook and an Intranet to simulate a personal injury negotiation for a fictitious client. This project tests not just negotiation skills, but also those of working in a simulated law firm and more generic skills such as letter writing. By having access to videos of interviews with the client and being able to email relevant witnesses and experts in the virtual town ('played' by members of staff and artificial intelligence), students are able to build up a case and negotiate with the opposing firm by email. Such a project would arguably not be possible if it were paper-based and required each letter to be individually replied to and videotapes borrowed and viewed by 50 firms.
Virtual Learning Environments (VLEs) have also become an established method of delivering this kind of learning. They range from off the shelf products such as WebCT and BlackBoard to 'homegrown' systems developed by institutional staff to meet their specific needs. Some of the more established systems, such as COSE and Bodington Common, are used widely in both further and higher education.
Online learning can be beneficial for students with disabilities. For example, a student unable to attend lectures as a result of a disability may be able to participate via remote learning. Another example may be in the case of a student with a hearing impairment who finds it difficult to lip-read and keep up in lectures. The student could download the lecturer's notes and PowerPoint presentation and review the subjects covered. Finally, a student who is visually impaired can access the PowerPoint presentation using a computer equipped with a screen-reader, thus allowing him to 'hear' what was being displayed on screen.
However, in order for online learning resources to be useful to disabled students accessibility must be borne in mind when creating the material. For instance, if video-clips or audio recordings are used as part of the teaching process and then made available to students on the department Intranet, the potentially huge benefit to a student with a hearing impairment will be lost unless there is also an accompanying transcript. In the case of remote learning, if the online discussion forum does not follow the World Wide Web Consortium's Web Accessibility Guidelines (WAI) there may be problems. If the Web page does not cater for keyboard navigation of the site, a student with motor impairments, and who is subsequently unable to use a mouse, may not be able to access it. Finally, if the same Web page makes extensive use of frames and graphics in its design and does not offer a 'no frames' alternative or ALT attributes on the images, a student with visual impairments may be unable to use it. Despite having a screen reader installed on his computer he may not know where each link leads to and thus be unable to navigate the site independently. Whilst the material’s creator can address some of the issues of accessibility, if a VLE is used it sometimes constrains what can be created and may not allow for accessibility features.
It can be argued that a service provider's Web site must be made accessible under the provisions of Part 3 of the Disability Discrimination Act 1995 (DDA) and that the public elements of an educational institution's Web site also fall within the Act. However, education had been exempt from these duties until the Special Educational Needs (SEN) and Disability Act 2001 was passed. This act extends disability discrimination rights to those in education. As a result, it is extremely likely that online learning resources will have to be provided in a form accessible to students with disabilities.
Under the SEN and Disability Act educational institutions have a duty not to discriminate on the grounds of disability. The Act amends the 1995 Act to place new duties in relation to the provision of education. These duties, which are contained in the new sections 28R to 28X (Part 4), are:
These duties generally reflect those that are currently incumbent on service providers under Part 3 of the DDA. Under the new s.28R, it is unlawful for higher and further educational institutions to:
In relation to the provision of online learning resources and VLEs, the relevant duty here is that contained under s.28R(2) of the Act. Although the term 'services' is not defined in the Act, the current draft of the new Code of Practice for the Post-16 provision of education duties is of assistance here. Under Para 3.14, it is suggested that 'student services' include, amongst others:
Considering our initial examples of the uses of E-learning, it is highly likely that these will involve the provision of several of the above services. In the first example, distance learning would obviously come under 'distance learning' and 'independent learning opportunities such as e-learning', but is also likely to encompass examinations and assessments if these are carried out online and the curriculum design, learning materials and the teaching of the course itself.
On-campus use of online resources will also encompass several of these services, including the teaching of the course, if students were required to consult online resources or a computer-aided learning program in preparation for a tutorial, the curriculum design and learning materials.
Virtual Learning Environments and other interactive learning and teaching media, such as the Ardcalloch Project, may include teaching/practical sessions, curriculum design and examinations and assessments amongst other activities. Therefore it is clear that the many instances and uses of online learning will come within the scope of student services under the Act. Following the introduction of the requirement to make 'reasonable adjustments' (s.28T) in September 2002, it is likely that these will have to be provided in an accessible format.
The institution has a duty to make 'reasonable adjustments' if the disabled person is placed or is going to be placed at a 'substantial disadvantage', taking into account the time, inconvenience, effort or discomfort that that the disabled person experiences compared with other people or students. The draft code cites an example, of a student who is unable to partake in an online discussion and thus loses marks, as an example of a student being placed at a 'substantial disadvantage'.
In the case of online resources that take the form of Intranet/departmental Web sites including audio/video and Web pages, a similar argument to that used under Part 3 of the Act can be applied. The Australian case of Maguire v SOCOG can be argued to show that an inaccessible Web site is a breach of the DDA and that it would be a 'reasonable adjustment' to provide the Web site in an accessible form. As such, given the similarity of the Part 3 and 4 education provisions, it is likely that such an argument can easily be transposed.
Similarly, in the case of distance learning, if it is possible to choose online discussion forum software that is accessible to those with disabilities, then this should be done. Email should be in plain text format and course materials provided in an accessible form (indeed, HTML if properly used is probably the most accessible format to provide). Again, in relation to a VLE, reasonable adjustments would mean that accessibility should be incorporated in to the project's design. As with other accessibility problems, these should be relatively easy and cheap to resolve and may mean something as simple as providing transcripts of videoclips and using an accessible email client and email format (i.e. plain text).
Although less favourable treatment can be justified, the grounds are very limited. Essentially, the treatment must be necessary to maintain academic standards or other prescribed standards (for example that of a professional or external body which sets the standards for a course). This justification must be valid even if a 'reasonable adjustment' was made. However, whilst it may be reasonable to discriminate against a visually impaired student who cannot take part in an essential project on a Graphical User Interface course because it is inaccessible, it is unlikely that such a student would have been accepted for the course in the first place. Similarly, when considering whether an adjustment is 'reasonable', failure to make the adjustment can only be justified if the reasons are both 'material' to the circumstances and are substantial. As the majority of online accessibility problems are relatively simple and easy to fix, there is likely to be little grounds for justification. Indeed, even in cases where accessibility may be impossible to introduce (such as where third party software is used for computer-aided learning which tests student’s knowledge), there is generally always a 'reasonable adjustment' that can be made to make it accessible (in this case the provision of questions and answers in Braille).
Following these arguments, it can be seen that there is likely to be a duty on higher and further education institutions to ensure that their online teaching resources and VLEs are provided in a form accessible to disabled students. Further, institutions will be expected to make 'reasonable adjustments' to overcome these problems and are unlikely to be able to justify continuing discrimination.
Institutions also have to remember that the duty is on the responsible body not the individual. The 'responsible body' is defined in Sch.4C and 4D of the Act. In the case of the higher and further education sector, this is generally the governing body of the institution. Therefore, although the majority of online learning resources are created and maintained by individual lecturers and departments, it will be the governing body of that institution that will be legally liable for any discrimination that takes place as a result. This is true even if the responsible body has issued express instructions to its staff not to discriminate.
Although the institution will have a defence under s.58(5) if it can prove it took 'such steps as were reasonably practicable' it is likely that such a defence will be strictly interpreted. A lack of knowledge on the part of the institution will not be a sufficient defence. In the present writer's view it is likely that the institution will have to show it had provided its staff with relevant training and support and made regular checks to ensure that resources were accessible for a defence to be accepted should the matter come to court.
Finally, as with the duties to service providers under Part 3 of the Act, these duties are anticipatory. This means that institutions need to be planning now for the introduction of these new provisions later this year, assessing where accessibility problems lie, and making the necessary adjustments by issuing guidelines and training to staff for the provision of online resources and VLEs. Otherwise institutions run the very real risk of breaching the new legislation.
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