869
TECHNOLOGY AS A CIVIL RIGHT AND A MOVE
TOWARD DISABILITY JUSTICE: ENSURING DIGITAL
ACCESS FOR DISABLED STUDENTS IN THE PANDEMIC
DeVan L. Hankerson* & Lydia X. Z. Brown
†
ABSTRACT
Disabled students have long faced the impact of systemic and
structural ableism in education, from early learning through
postsecondary education. Yet despite nearly fifty years of civil rights
advocacy and legislative victories, disabled students still face routine
denials of access in the classroom, inaccessible pedagogies, and
exclusionary technologies. The COVID-19 pandemic has heightened
and sharpened disparities in learning and digital access for disabled
students of all ages, with the burden falling most heavily on disabled
students further marginalized by racism, classism, and other forms of
oppression. Disabled students are less likely to have reliable access to
web-based technologies, while websites, software, and course tools are
often inaccessible to disabled users despite their near ubiquity in the
pandemic. This Article explores the opportunities created by and
limitations inherent to disability rights laws as a means of bridging
the increasing digital divide in education and offers starting points for
charting a path forward informed by radical anti-ableism and
disability justice movement work.
* M.P.P., Middlebury Institute of International Studies. The author is a
telecommunications and technology policy researcher at the Center for Democracy &
Technology.
†
J.D., Northeastern University School of Law. The author is a disability justice advocate,
policy counsel at the Center for Democracy & Technology, and adjunct lecturer and core faculty
at Georgetown University’s Disability Studies Program.
870 DREXEL LAW REVIEW [Vol. 13:869
TABLE OF CONTENTS
INTRODUCTION ............................................................................... 870
I. LEGAL FRAMEWORKS .................................................................. 874
A. The Human Rights and Civil Rights Frameworks: Access
to Education and Information as Basic Rights for Disabled
People .............................................................................. 874
B. Moving from Rights Frameworks Toward Disability Justice
to Urge Access-Centered Social and Cultural Change .. 880
II. SYSTEMIC AND STRUCTURAL BARRIERS TO DIGITAL ACCESS IN
EDUCATION: IMPLICATIONS DURING A PANDEMIC ............ 883
A. How COVID-19 Widened the Disability Digital
Divide ............................................................................. 883
B. Individualized Education Plans and FAPE During
COVID-19 ...................................................................... 891
1. Implementation of education technology and digital
inequities ................................................................... 895
2. Barriers to digital inclusion in education ................... 898
III. UNIVERSAL DESIGN FOR LEARNING AND STRATEGIES FOR
ENABLING DIGITAL ACCESSIBILITY FOR EDUCATION .......... 901
CONCLUSION: INACCESSIBILITY AND MARGINALIZATION AT COST
TO SOCIETY ............................................................................ 905
INTRODUCTION
In March 2020, students across the United States faced a
jarring transition to virtual education when K-12 classrooms
and university campuses alike moved online in response to the
COVID-19 pandemic. This abrupt, nationwide transition
exemplified and exacerbated existing systemic and structural
disparities and injustices in education, especially for those
students who lacked reliable internet access, a safe physical
environment, or usable technologies.
1
Virtual learning and
1
. Paloma Esquivel, Howard Blume, Ben Poston, & Julia Barajas, A Generation Left Behind?
Online Learning Cheats Poor Students, Times Survey Finds, L.A. TIMES (Aug. 13, 2020, 5:00 PM),
https://www.latimes.com/california/story/2020-08-13/online-learning-fails-low-income-
students-covid-19-left-behind-project; MONICA TSETHLIKAI, MICHELLE SARCHE, JESSICA V.
BARNES, & HIRAM FITZGERALD, SOC’Y FOR RSCH. IN CHILD DEV., ADDRESSING INEQUITIES IN
2021] TECHNOLOGY AS A CIVIL RIGHT 871
telework have increased access for many disabled people who
are unable to reliably access in-person education and
employment, both for disability-related reasons like chronic
pain, and environmental or structural reasons like a lack of
reliable and accessible transportation.
2
Yet at the same time,
disabled students who had previously struggled to receive
necessary supports, services, and accommodations at all levels
of education have had to navigate a new digital environment
that has largely been inaccessible and unusable for many
students with different types of access needs.
3
Many disabled students
4
are significantly less likely to be able
to access online content, with 98% of the top-ranked one million
websites failing to meet international accessibility standards,
EDUCATION: CONSIDERATIONS FOR AMERICAN INDIAN AND ALASKA NATIVE CHILDREN AND
YOUTH IN THE ERA OF COVID-19 (Sept. 9, 2020), https://www.srcd.org/research/addressing-
inequities-education-considerations-american-indian-and-alaska-native-children; Andrew
Ujifusa, 1 in 3 American Indian, Black, and Latino Children Fall into Digital Divide, Study Says, EDUC.
WK. (July 22, 2020), https://www.edweek.org/education/1-in-3-american-indian-black-and-
latino-children-fall-into-digital-divide-study-says/2020/07; Maureen Downey, Coronavirus
Closings: When College Students Must Go Back to Abusive Homes, ATLANTA J.-CONST. (Mar. 25,
2020), https://www.ajc.com/blog/get-schooled/coronavirus-closings-when-college-students-
must-back-abusive-homes/1oSNzpzWPP6Qoe12BcBXAN.
2
. See Danielle Campoamor, Disabled People React to Coronavirus Work from Home
Accommodations, TEEN VOGUE (Mar. 24, 2020), https://www.teenvogue.com/story/disabled-
people-react-to-coronavirus-work-from-home-accommodations; Chelsea Cirruzzo, Disabled
People Have Worked Remotely for Years, and They’ve Got Advice for You and Your Bosses, WASH. POST
(Mar. 17, 2020, 10:00 AM), https://www.washingtonpost.com/lifestyle/wellness/disabled-
people-have-worked-remotely-for-years-and-theyve-got-advice-for-you-and-your-bosses-
/2020/03/17/f99dfd54-67d1-11ea-b313-df458622c2cc_story.html; see also Adriana Saso-Graves,
Opinion, Undercover Ableism Still Exists in the Classroom, MAC WKLY. (Mar. 5, 2020),
https://themacweekly.com/77723/opinion/undercover-ableism-still-exists-in-the-classroom.
3
. Greta Anderson, Accessibility Suffers During Pandemic, INSIDE HIGHER ED (Apr. 6, 2020),
https://www.insidehighered.com/news/2020/04/06/remote-learning-shift-leaves-students-
disabilities-behind; Mythili Sampathkumar & Maya Shwayder, The Mass Migration to Online
Learning Is Leaving Disabled Students Behind, DIGIT. TRENDS (Mar. 27, 2020), https://
www.digitaltrends.com/news/disabled-students-online-learning-coronavirus/; see also Chelsea
Jones, Opinion, Accessibility Must Be More than an Add-On to Online Pedagogy, UNIV. AFFS. (Aug.
21, 2018), https://www.universityaffairs.ca/opinion/in-my-opinion/accessibility-must-be-more-
than-an-add-on-to-online-pedagogy.
4
. This Article discusses students in both the K–12 and the college/university context. The
legal frameworks outlined in Part I, infra, apply to people with disabilities broadly and to
students with disabilities.
872 DREXEL LAW REVIEW [Vol. 13:869
according to one recent study.
5
Furthermore, students from
low-income backgrounds and students of color are less likely to
have broadband access at all and are more likely to have one or
more disabilities, making low-income disabled students of
color particularly vulnerable to the negative impact of the
digital divide.
6
During the pandemic, these challenges have
jeopardized basic access to education for these students.
The legal framework for disability rights in education has
largely relied on the civil rights and human rights frameworks
for addressing disabled students’ right to access, inclusion, and
equality of opportunity both offline and online.
7
That legal
landscape does not, however, adequately address the myriad
ways in which disability is often deeply entangled with race,
class, and gender; thus, ableism is entangled with oppression
based on race, class, and gender.
8
Nor can legal frameworks
address the ways in which legal and policy reform fail to
meaningfully change the undercurrent of ableism (or disability
oppression) endemic in society. Rights-based frameworks
necessarily depend at least in part on the expectation of
5
. WEBAIM, THE WEBAIM MILLION, https://webaim.org/projects/million (Feb. 2021)
(finding that 97.4% of sites examined failed to fully comply with the Web Content Accessibility
Guidelines published by the World Wide Web Consortium, a marginal improvement from
2020’s 98.1%).
6
. Rebecca Vallas & Shawn Fremstad, Disability Is a Cause and Consequence of Poverty, TALK
POVERTY (Sept. 19, 2014), https://talkpoverty.org/2014/09/19/disability-cause-consequence-
poverty/; NANETTE GOODMAN, MICHAEL MORRIS & KELVIN BOSTON, NAT’L DISABILITY INST.,
FINANCIAL INEQUALITY: DISABILITY, RACE AND POVERTY IN AMERICA 18–20 (2019), https://www
.nationaldisabilityinstitute.org/wp-content/uploads/2019/02/disability-race-poverty-in-
america.pdf; see also infra Part II (examining the relationships between internet access and
poverty, race and ethnicity, and disability).
7
. See Nirmala Erevelles, Anne Kanga, & Renee Middleton, How Does it Feel to Be a Problem?
Race, Disability, and Exclusion in Educational Policy, in WHO BENEFITS FROM SPECIAL EDUCATION?
77, 77–78 (Ellen A. Brantlinger ed., 2006).
8
. See Talila A. Lewis, Stolen Bodies, Criminalized Minds & Diagnosed Dissent: The Racist,
Classist, Ableist Trappings of the Prison Industrial Complex, Presentation at the 2019 Longmore
Lecture in Disability Studies (Feb. 19, 2019), https://www.youtube.com/watch?v=zpY4v10jqXY
(recording), https://longmoreinstitute.sfsu.edu/transcript-longmore-lecture-disability-studies-
talila-tl-lewis (transcript); Longmore Lecture: Context, Clarity & Grounding, TALILA A. LEWIS (Mar.
5, 2019), https://www.talilalewis.com/blog/longmore-lecture-context-clarity-grounding; A.J.
WITHERS, DISABILITY POLITICS AND THEORY 98–101 (2012); JENNIFER SCURO, Intersectionality: A
Dialogue with Devonya N. Havis & Lydia X. Z. Brown, in ADDRESSING ABLEISM: PHILOSOPHICAL
QUESTIONS VIA DISABILITY STUDIES 41, 54–57 (2018).
2021] TECHNOLOGY AS A CIVIL RIGHT 873
regulatory compliance, enforcement, and monitoring
mechanisms, regardless of whether underlying socio-cultural
values change.
9
As explained by Patricia Berne, a co-founder of
the disability justice movement, “the disability rights
framework centers people who can achieve status, power and
access through a legal or rights-based framework, which we
know is not possible for many disabled people, or appropriate
for all situations.”
10
As an intervention for the limitations of
rights-based frameworks, the disability justice framework and
praxis offers more expansive ways of building and sustaining
access as a practice of love, liberation, and justice.
11
This Article aims to describe the ways that both disability
rights and disability justice frameworks can enable and expand
education access for disabled students, while providing a
foundation for advocating against inaccessibility, inequity, and
discrimination in the digital learning environment. Part I of this
Article describes the opportunities created by and limitations
inherent to existing legal frameworks for disability rights in the
educational context. Next, Part II examines the ways in which
the COVID-19 pandemic has exacerbated and deepened
disabled students’ disproportionate lack of equal access to
technology, which in turn deprives students of equal access to
education. In Part III, we offer some starting points for
reshaping curricular and pedagogical methods to center access
and attend to historic and ongoing injustice.
9
. See, e.g., LEAH LAKSHMI PIEPZNA-SAMARASINHA, CARE WORK: DREAMING DISABILITY
JUSTICE 47 (2018).
10
. Patty Berne, What Is Disability Justice?, in SKIN, TOOTH, AND BONE: THE BASIS OF
MOVEMENT IS OUR PEOPLE, A DISABILITY JUSTICE PRIMER (2d ed.), adapted at SINS INVALID (June
16, 2020), https://www.sinsinvalid.org/news-1/2020/6/16/what-is-disability-justice.
11
. Mia Mingus, Keynote Speech at the 2018 Disability Intersectionality Summit: “Disability
Justice” Is Simply Another Term for Love (Oct. 13, 2018), https://www.youtube.com
/watch?v=lm21KpsNk1s (recording), https://leavingevidence.wordpress.com/2018/11/03/
disability-justice-is-simply-another-term-for-love/ (transcript); see also Ki’tay D. Davidson: A
Eulogy, TALILA A. LEWIS (Dec. 10, 2016), https://www.talilalewis.com/blog/kitay-d-davidson-a-
eulogy.
874 DREXEL LAW REVIEW [Vol. 13:869
I. LEGAL FRAMEWORKS
A. The Human Rights and Civil Rights Frameworks: Access to
Education and Information as Basic Rights for Disabled People
The United Nations Convention on the Rights of Persons with
Disabilities (CRPD), which was first adopted in 2006 and began
to take effect in 2008,
12
is one example of a disability rights legal
tool that reflects key concepts found within the social model of
disability. The CRPD holds the unique distinction of having the
highest number of signatories to a U.N. Convention on its
opening day.
13
Although the United States eventually became a
signatory on July 30, 2009,
14
the Senate has failed to ratify it, due
in large part to lobbying from ageist and nationalist right-wing
political factions concerned that the CRPD infringes upon
parents’ rights to control their own children,
15
and out of a
general fear of “infringing on American sovereignty.”
16
The CRPD was crafted as a human rights tool that
incorporates the social model of disability by emphasizing the
need for accommodation rather than medical intervention, and
the need for societal protection of individual rights.
17
The social
12
. See generally Convention on the Rights of Persons with Disabilities, G.A. RES. 61/106,
U.N. Doc. A/RES/61/106 (Dec. 13, 2006) [hereinafter CRPD].
13
. Convention on the Rights of Persons with Disabilities (CRPD), UNITED NATIONS, https://
www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-
disabilities.html (last visited May 17, 2021).
14
. Press Release, ACLU, U.S. Signs International Treaty on the Rights of Persons with
Disabilities (July 30, 2009), https://www.aclu.org/press-releases/us-signs-international-treaty-
rights-persons-disabilities.
15
. See Rosalind S. Helderman, Senate Rejects Treaty to Protect Disabled Around the World,
WASH. POST (Dec. 4, 2012), https://www.washingtonpost.com/politics/senate-rejects-treaty-to-
protect-disabled-around-the-world/2012/12/04/38e1de9a-3e2c-11e2-bca3-
aadc9b7e29c5_story.html (describing how conservatives who voted against ratification argued
that the CRPD “could relinquish U.S. sovereignty to a U.N. committee” and that the committee
would prevent parents from homeschooling disabled children).
16
. STEVEN GROVES, HERITAGE FOUND., NO. 2406, RATIFICATION OF THE DISABILITIES
CONVENTION WOULD ERODE AMERICAN SOVEREIGNTY 1 (2010), http://report
.heritage.org/bg2406. See also Guiding Principles of the Convention, U.N. DEP’T ECON. & SOC. AFFS.:
DISABILITY, https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-
persons-with-disabilities/guiding-principles-of-the-convention.html.
17
. See CRPD, supra note 12, at 3–5.
2021] TECHNOLOGY AS A CIVIL RIGHT 875
model of disability recognizes the significant role of social and
cultural values and attitudes about disability in creating
disabling experiences and marginalizing disabled people,
18
which is clearly articulated in the CRPD’s preamble: “disability
is an evolving concept and . . . results from the interaction
between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective
participation in society on an equal basis with others.”
19
In
keeping with the social model’s recognition of societal barriers
as prime conduits of ableist discrimination, the CRPD
recognizes that for people with disabilities to “exercise the . . .
freedom to seek, receive and impart information and ideas on
an equal basis with others and through all forms of
communication of their choice,” parties to the Convention must
take measures to “[u]rg[e] private entities that provide services
to the general public, including through the Internet, to provide
information and services in accessible and usable formats for
persons with disabilities.”
20
And in recognition of the right of
disabled people to education, ratifying parties “shall ensure
that . . . effective individualized support measures are provided
in environments that maximize academic and social
development, consistent with the goal of full inclusion.”
21
Unfortunately, because the United States has not ratified the
CRPD, advocates within the country cannot use its language or
18
. Fiona Kumari Campbell, Medical Education and Disability Studies, 30 J. MED. HUMANS.
221, 227 (2009) (“A social constructionist approach distinguishes between disability and
impairment in the same way that early feminist writing distinguishes between gender and sex.
This approach understands disability as socially produced or a neologism wrapping around
and over impairment. . . . [T]he notion of disability as a relational and cultural concept is now
well established. The insights of disability studies have shown that the disability idiom has a
history before biomedicalism; indeed, this is a history where the reckoning of bodily and mental
differences is both culturally, locally and historically contingent.” (footnotes omitted) (citing
PATRICK MCDONAGH, IDIOCY: A CULTURAL HISTORY (2008)).
19
. CRPD, supra note 12, at 2.
20
. Id. at art. 21.
21
. Id. at art. 24.
876 DREXEL LAW REVIEW [Vol. 13:869
standards in legal forums to assert rights within the elementary,
secondary, or postsecondary educational systems.
22
Nonetheless, the human rights framework for access to
education and information advocated within the CRPD tends
to align well with the civil rights framework shared in the
United States’ domestic legal protections for students with
disabilities. The U.S. domestic legal framework, largely shaped
by the Individuals with Disabilities Education Act (IDEA),
23
the
Rehabilitation Act,
24
and the Americans with Disabilities Act
(ADA),
25
sets forth certain protections against discrimination in
education and to appropriate accommodation and services.
Similar to the CRPD’s approach, using the social model, the
IDEA states that “[d]isability is a natural part of the human
experience and in no way diminishes the right of individuals to
participate in or contribute to society.”
26
Likewise, as an explicit
civil rights law, the ADA describes the isolation and
segregation of disabled people as “a serious and pervasive
social problem.”
27
Adopting a social model of disability, the
ADA’s statement of findings and purpose similarly state that
disabled people “continually encounter various forms of
discrimination, including outright intentional exclusion, the
discriminatory effects of . . . communication barriers, . . . failure
22
. See Frequently Asked Questions Regarding the Convention on the Rights of Persons with
Disabilities, U.N. DEP’T ECON. & SOC. AFFS., https://www.un.org/development/desa/disabilities
/convention-on-the-rights-of-persons-with-disabilities/frequently-asked-questions-regarding-
the-convention-on-the-rights-of-persons-with-disabilities.html (last visited Apr. 1, 2021)
(explaining that ratification creates legally binding obligations on state parties). For examples
of where American advocates were able to use ratified U.N. treaty language to support their
work, see generally Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication,
25 EMORY INT’L L. REV. 197 (2011) and Sylvana M. Falcón, Invoking Human Rights and
Transnational Activism in Racial Justice Struggles at Home: US Antiracist Activists and the UN
Committee to Eliminate Racial Discrimination, 4 SOC’YS WITHOUT BORDERS 295 (2009).
23
. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1482.
24
. Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796l.
25
. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.
26
. 20 U.S.C. § 1400(c)(1). The Act Congress originally enacted in 1975, known today as the
IDEA, was called the “Education for All Handicapped Children Act.” A History of the Individuals
with Disabilities Education Act, U.S. DEP’T OF EDUC., [hereinafter A History of the IDEA]
https://sites.ed.gov/idea/IDEA-History (Nov. 24, 2020).
27
. 42 U.S.C. § 12101 (a)(2).
2021] TECHNOLOGY AS A CIVIL RIGHT 877
to make modifications to existing facilities and practices, . . .
segregation, and relegation to lesser services, programs,
activities, benefits, jobs, or other opportunities.”
28
The Rehabilitation Act of 1973 focuses less on societal barriers
and more on the provision of services to disabled people as a
means of mitigating impairment and enabling participation in
the workforce, grounded primarily in a more medicalized
understanding of disability.
29
Section 504 of the Rehabilitation
Act, however, guarantees disabled people the right to
nondiscrimination in all federally funded programs and
activities, including the right to equal access and reasonable
accommodations in any educational institutions or agencies
receiving federal assistance.
30
Likewise, Title II of the ADA prohibits all public entities,
including state and local governments, or any instrumentality
of such government, regardless of whether they receive federal
financial assistance, from discriminating against people with
disabilities.
31
The non-discrimination standards under Section
504 and Title II are essentially the same: actions that would
violate Section 504 would also violate Title II, and vice-versa.
32
28
. § 12101 (a)(5).
29
. See 29 U.S.C. § 701(b) (“The purposes of this chapter are (1) to empower individuals with
disabilities to maximize employment, economic self-sufficiency, independence, and inclusion
and integration into society . . . (4) to increase employment opportunities and employment
outcomes for individuals with disabilities . . . .”). See also 29 U.S.C. § 705(9) (“The term
‘disability’ means . . . a physical or mental impairment that constitutes or results in a substantial
impediment to employment . . . .”).
30
. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified as
amended at 29 U.S.C. § 794(a)).
31
. Americans with Disabilities Act of 1990, Pub. L. No. 101–336, §§ 201–202, 104 Stat. 327,
337 (codified as amended at 42 U.S.C. § 12132).
32
. Disability Discrimination Frequently Asked Questions, U.S. DEP’T OF EDUC. OFF. FOR C.R.,
https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/disability.html (Apr. 21, 2020). In
cases where Title II requirements exceed requirements for Section 504, public school districts,
colleges, universities, and libraries must adhere to the higher Title II standard. Id. Public charter
schools, magnet schools, and essentially all private colleges and universities are also covered
by Section 504 because they participate in federal student aid programs which receive federal
assistance. Id. Section 504 and Title II do not apply to private schools that do not receive federal
assistance. Id.
878 DREXEL LAW REVIEW [Vol. 13:869
The IDEA created two important rights: the right to a “free
appropriate education” (FAPE) to all disabled students
between the ages of three and eighteen, with certain applicable
exceptions as may apply according to state law,
33
and the right
to education in the “least restrictive environment” possible, as
opposed to segregated or institutionalized environments.
34
These rights can only be guaranteed when disabled students
receive adapted, accommodated, or specialized instruction and
support enabling access to the same general curriculum and
educational standards applied to nondisabled students.
35
Finally, the Every Student Succeeds Act of 2015 (ESSA) aims
to “increase access to personalized, rigorous learning
experiences supported by technology by providing technical
assistance to local educational agencies to improve the ability of
local educational agencies to . . . use technology, consistent with
the principles of universal design for learning . . . .”
36
In 1999, the Supreme Court clarified in Olmstead v. L.C. that
the ADA bars unjustified segregation and isolation of disabled
people as a form of unlawful discrimination that “perpetuates
unwarranted assumptions that persons so isolated are
incapable of or unworthy of participating in community life
. . . .”
37
Long considered a seminal case in disability rights
history, Olmstead’s articulation of the community integration
mandate in the ADA sets a high standard for advocating against
isolation or institutionalization of disabled people, including
through segregated educational settings and programs.
38
More
recently, the Supreme Court held in Endrew F. v. Douglas County
33
. See 34 C.F.R. § 300.101 (2017) (stating the general requirements for FAPE); §300.102 (2017)
(describing the exceptions for certain ages).
34
. See 34 C.F.R. § 300.114 (2012); see also infra text accompanying notes 45–46.
35
. 34 C.F.R. § 300.39(b)(3) (2018).
36
. Every Student Succeeds Act of 2015, Pub. L. No. 114-95, § 4014, 129 Stat. 1802, 1973
(codified at 20 U.S.C. § 7114(b)(3)(c)); AM. INST. FOR RSCH., ESSA AND DIGITAL LEARNING:
CLOSING THE DIGITAL ACCESSIBILITY GAP 3 (2018), https://www.air.org/resource/essa-and-
digital-learning-closing-digital-accessibility-gap.
37
. 527 U.S. 581, 600 (1999) (citing Allen v. Wright, 468 U.S. 737, 755 (1984)).
38
. See Olmstead v. L.C., DISABILITY JUST., https://disabilityjustice.org/olmstead-v-lc/ (last
visited May 17, 2021).
2021] TECHNOLOGY AS A CIVIL RIGHT 879
School District that IDEA requires schools to give disabled
students more than the minimal possible benefit of their
education,
39
and in a significant district court decision, the
District Court for the Central District of California recognized
in P.P. v. Compton Unified School District that the experience of
trauma can, possibly, constitute legally cognizable disability
under the ADA or Rehabilitation Act.
40
Despite these enormous strides in legislative and
jurisprudential history, disabled people continue to experience
ableism throughout the educational system. For instance,
according to the U.S. Department of Education’s Civil Rights
Data Collection, Black and Latinx students with disabilities face
the highest rates of suspensions, expulsions, restraint, and
seclusion (i.e., functional solitary confinement in schools)
compared to any other group.
41
Stanford University recently
faced a class-action lawsuit from students who alleged they
were pressured into an involuntary medical leave of absence
39
. 137 S. Ct. 988, 1001 (2017) (“When all is said and done, a student offered an educational
program providing ‘merely more than de minimis’ progress from year to year can hardly be said
to have been offered an education at all. . . . The IDEA demands more. It requires an educational
program reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances.”).
40
. 135 F. Supp. 3d 1098, 1103 (C.D. Cal. 2015) (“The [c]ourt does not endorse the legal
position that exposure to two or more traumatic events is, without more, a cognizable disability
under either of the Acts. The [c]ourt simply acknowledges the allegations that exposure to
traumatic events might cause physical or mental impairments that could be cognizable as
disabilities under the two Acts.”). But see Cory Turner, Ruling in Compton Schools Case: Trauma
Could Cause Disability, NPR (Oct. 1, 2015, 4:38 PM), https://www.npr.org/sections/ed/2015/10/01
/445001579/ruling-in-compton-schools-case-trauma-could-cause-disability (noting that Judge
Fitzgerald was “not questioning whether exposure to traumatic events can disable a student,”
but that “exposure to traumatic events does not guarantee disability.”).
41
. K–12 Education: Federal Data and Resources on Restraint and Seclusion: Hearing on GAO-19-
418T Before the Subcomm. on Early Childhood, Elementary & Secondary Educ. of the H. Comm. on
Educ. & Labor 116th Cong. 4 (2019) (statement of Jacqueline M. Nowicki, Dir., Educ. Workforce,
& Income Sec.); U.S. COMM’N ON C. R., BEYOND SUSPENSIONS: EXAMINING SCHOOL DISCIPLINE
POLICIES AND CONNECTIONS TO THE SCHOOL-TO-PRISON PIPELINE FOR STUDENTS OF COLOR WITH
DISABILITIES 64–65, 65 fig. 4 (2019); Tamar Lewin, Black Students Face More Discipline, Data
Suggests, N.Y. TIMES (Mar. 6, 2012), https://www.nytimes.com/2012/03/06/education/black-
students-face-more-harsh-discipline-data-shows.html.
880 DREXEL LAW REVIEW [Vol. 13:869
when struggling with their mental health.
42
While students in
theory have legal protections against discriminatory discipline
whether in elementary school or college, these examples
illustrate larger, growing problems—disability rights laws can
help fight back, but they cannot transform social and cultural
values about disability alone.
B. Moving from Rights Frameworks Toward Disability Justice to
Urge Access-Centered Social and Cultural Change
The disability rights movement, which is grounded in the
social model of disability, recognizes disabled people as a
minoritized community deserving of (but denied) equal access,
equality of opportunity, and equal rights within the
sociopolitical sphere.
43
The social model of disability
distinguishes between impairment (a bodily/mental difference
or atypicality) and disability (society’s understanding of
impairment and the resulting social exclusion of people with
impairments).
44
Students with disabilities, in particular students of color with
disabilities as well as students labeled as autistic or as having
an intellectual disability, are disproportionately segregated out
of general education, removed from instructional and social
opportunities as a matter of practice.
45
These underlying norms
42
. Anemona Hartocollis, Feeling Suicidal, Students Turned to Their College. They Were Told to
Go Home., N.Y. TIMES (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/college-suicide-
stanford-leaves.html. Students at Georgetown have also reported feeling pressured to take
leaves of absence. See Julia Jester, Take It or Leave It: Does a Medical Leave of Absence Help or Harm?,
GEO. VOICE (Nov. 6, 2014), https://georgetownvoice.com/2014/11/06/take-it-or-leave-it-does-a-
medical-leave-of-absence-help-or-harm.
43
. See Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 HASTINGS
L.J. 1203, 1209 (2007) (“Because social model advocacy is grounded exclusively in formal
equality notions, legislatures have promulgated civil rights protection; by definition these
antidiscrimination prohibitions do not encompass positive rights such as equality measures.
Put another way, civil rights are directed at ensuring equal treatment but not equal
opportunity.”).
44
. Sara Goering, Rethinking Disability: The Social Model of Disability and Chronic Disease, 8
CURRENT REVS. MUSCULOSKELETAL MED. 134, 135 (2015).
45
. NAT’L COUNCIL ON DISABILITY, IDEA SERIES: THE SEGREGATION OF STUDENTS WITH
DISABILITIES 9 (2018).
2021] TECHNOLOGY AS A CIVIL RIGHT 881
and ideologies are grounded in ableist judgements about
“normality,” and directly impact the educational trajectories of
students with disabilities and severely limit how disabled
people obtain access to education.
46
An important insight of the
social model of disability is that if structural barriers were
addressed, disablement
47
could be substantially reduced. The
disability rights movement aims to change the social conditions
for disabled people by changing laws and policies, whether by
expanding and/or enforcing existing legal protections,
repealing harmful laws, or creating new mechanisms for legal
protection.
48
The Rehabilitation Act, ADA, and IDEA all attempt to
incorporate the values of the disability rights framework, and
they all seek to address structural barriers to equal access and
equal rights by remediating or removing those barriers and
legislating equitable treatment via reasonable accommodation
and nondiscrimination.
49
These laws have been around for
some time: the ADA was passed in 1990, the Rehabilitation Act
was passed in 1973, and what is known today as the IDEA was
46
. See id. at 33–36.
47
. Kathy Cologon, “What Is Disability? It Depends Whose Shoes You Are Wearing”: Parent
Understandings of the Concept of Disability, 36 DISABILITY STUDS. Q., no. 1, 2016, https://dsq-
sds.org/article/view/4448. The social model of disability focuses not on a deficit-based
understanding of disability, but on the economic, environmental, and cultural barriers
encountered by people who are labelled or designated as “impaired.” See id. It locates disability
in the society and recognizes “disablement” as a “socially imposed process consisting of barrier
encountered by people who are labelled or designated as ‘impaired.’” Id.
48
. See generally SAMUEL R. BAGENSTOS, LAW AND THE CONTRADICTIONS OF THE DISABILITY
RIGHTS MOVEMENT (2009) (examining the history of the disability rights movement and its
relationship to the passage of the ADA).
49
. See generally LENNARD J. DAVIS, ENABLING ACTS: THE HIDDEN STORY OF HOW THE
AMERICANS WITH DISABILITIES ACT GAVE THE LARGEST US MINORITY ITS RIGHTS (2015)
(recounting the political history of the ADA and its predecessor, the Rehabilitation Act); KIM E.
NIELSEN, A DISABILITY HISTORY OF THE UNITED STATES (2012) (discussing the history of disability
in the United States, including the enactment of the Rehabilitation Act, the ADA, and IDEA);
JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT
(2012) (discussing the immediate impacts, victories, and challenges that followed the enactment
of the ADA).
882 DREXEL LAW REVIEW [Vol. 13:869
originally enacted in 1975.
50
Yet, their promises for the most
marginalized disabled people remain unfulfilled.
Recent years have seen attempts to pass different versions of
the Keeping All Students Safe Act, a bill that would severely
restrict the use of restraint, seclusion, and painful aversive
interventions in schools, and which was first introduced in the
House of Representatives 2009.
51
In the same way earlier
legislation sought to address structural harm against disabled
students in education by changing the environment and
systems surrounding disabled students, this legislative
proposal likewise seeks to change the conditions to which
disabled students are subjected and the environments in which
disabled students learn, rather than attempting to change or fix
disabled students themselves.
52
By understanding disability as
a problem primarily located in society or culture, rather than
one located in the brains or bodies of disabled people as
necessarily defective, the social model requires changing or
fixing society and culture.
53
The disability justice framework, however, moves beyond the
limitations of both the rights framework and the pure social
constructivist understanding of the social model by
incorporating the radical model of disability that posits
disability as a biopolitical category inextricably connected with
multiple systems of power, oppression, and domination.
54
As a
framework that focuses on the necessity of intersectionality and
50
. See Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as
amended at 29 U.S.C. §§ 701–796l); Americans with Disabilities Act of 1990, Pub. L. No. 101-
336, 104 Stat. 328 (codified at 42 U.S.C. §§ 12101–12213); A History of the IDEA, supra note 26.
51
. Keeping All Students Safe Act, H.R. 4247, 111th Cong. (2009). Most recently, the bill was
introduced in the Senate in November 2020, but it did not receive a vote. Keeping All Students
Safe Act, S. 4924, 116th Cong. (2020).
52
. See Robin Roscigno, Semiotic Stalemate: Resisting Restraint and Seclusion Through Guattari’s
Micropolitics of Desire, 9.5 CANADIAN J. DISABILITY STUDS. 156, 162–63 (2020); see also, e.g., JESSICA
BUTLER, HOW SAFE IS THE SCHOOLHOUSE? AN ANALYSIS OF STATE SECLUSION AND RESTRAINT
LAWS AND POLICIES 51 (2019), https://autcom.org/pdf/HowSafeSchoolhouse.pdf (listing states
that have banned or limited seclusion as a way to deal with disabled students).
53
. See Lydia X. Z. Brown, Disability in an Ableist World, in CRIPTIQUES 37, 43 (Caitlin Wood
ed., 2015).
54
. See WITHERS, supra note 8, at 98.
2021] TECHNOLOGY AS A CIVIL RIGHT 883
cross-community solidarity and movement building, disability
justice understands that legal reforms are necessary but not
sufficient.
55
In thinking about education, the disability justice
framework directly upends ableism, as what disability justice
advocate and community lawyer Talila TL Lewis describes as a
system rooted in “societally constructed ideas of normalcy,
intelligence, excellence and productivity” used to determine
“who is valuable and worthy based on a person’s appearance
and/or their ability to satisfactorily [re]produce, excel and
‘behave.’”
56
Fully addressing systemic and structural barriers to
equal access—digital or otherwise—in education requires
moving beyond the limitations of the disability rights legal
framework.
II. SYSTEMIC AND STRUCTURAL BARRIERS TO DIGITAL ACCESS IN
EDUCATION: IMPLICATIONS DURING A PANDEMIC
A. How COVID-19 Widened the Disability Digital Divide
The “digital divide” refers to the gap in both opportunities to
access information and communication technologies; these
differences fall along socio-economic lines, resulting in
disparate internet usage.
57
Disabled people are at least twice as
likely to become impoverished as people without disabilities,
which undoubtedly contributes to the relatively fewer number
55
. There are ten principles of disability justice: (1) “Intersectionality,” (2) “Leadership of
those Most Impacted,” (3) “Anti-capitalistic Politic,” (4) “Commitment to Cross-movement
Organizing,” (5) “Recognizing Wholeness,” (6) “Sustainability,” (7) “Commitment to Cross-
disability Solidarity,” (8) “Interdependence,” (9) “Collective Access,” and (10) “Collective
Liberation.” 10 Principles of Disability Justice, SINS INVALID (Sept. 17, 2015), https://www
.sinsinvalid.org/blog/10-principles-of-disability-justice.
56
. Ableism 2020: An Updated Definition, TALILA A. LEWIS (Jan. 25, 2020), https://www
.talilalewis.com/blog/ableism-2020-an-updated-definition. Lewis also defines ableism as
explicitly rooted in capitalism, colonialism, anti-Blackness, and eugenics. Id.
57
. What Is the Digital Divide?, SAN DIEGO FOUND. (Sept. 19, 2020), https://www
.sdfoundation.org/news-events/sdf-news/what-is-the-digital-divide.
884 DREXEL LAW REVIEW [Vol. 13:869
of disabled people with internet access today.
58
We know that
disabled people have extremely varied access needs, and
therefore the extent to which particular disabled people use or
have access to information and communication technologies
(ICT), devices, and services varies accordingly.
59
The unique
barriers facing people with disabilities as it relates to access and
use of the internet are referenced as the “disability digital
divide.”
60
The disability digital divide is a civil rights issue first
and foremost. This difference in internet usage and
participation hurts many disabled people because it worsens
their alienation and perpetuates educational disparity for
students with disabilities.
61
For example, people with
disabilities are significantly more likely than those without a
disability to say they never go online.
62
Disabled people are also
much less likely to say they subscribe to home broadband and
58
. See Highlighting Disability / Poverty Connection, NCD Urges Congress To Alter Federal
Policies that Disadvantage People with Disabilities, NAT’L COUNCIL ON DISABILITY (Oct. 26, 2017),
https://ncd.gov/newsroom/2017/disability-poverty-connection-2017-progress-report-release.
59
. See Assistive and Mainstream Technologies for People with Disabilities, in THE FUTURE OF
DISABILITY IN AMERICA 183, 196 (Alan M. Jette & Marilyn J. Fields eds., 2007). People with
disabilities make use of a number of assistive technologies of various types which help them to
increase, maintain, or improve their functional capabilities. Due in part to federal policy
requirements, the technology industry has developed a range of software and hardware which
augment individual capabilities, making it possible for people with vision, hearing, speech and
other impairments to access digital technologies. Assistive technology is an umbrella category
that covers a wide range of products designed to accommodate impairments, for example,
adaptive assistive devices like computer screen readers. Computer screen readers make digital
displays (which are inaccessible without adaptation), usable by people with low vision by
allowing them to hear what is shown on the screen. Id. at 187–88. For additional discussion on
how widely students with disabilities’ needs vary, see Lauren Camera, Schools Struggle to
Educate Students with Disabilities amid Pandemic, U.S. NEWS & WORLD REP. (Apr. 15, 2020, 3:01
PM), https://www.usnews.com/news/education-news/articles/2020-04-15/schools-struggle-to-
educate-students-with-disabilities-amid-pandemic (“For students with disabilities, needs vary
greatly based on the specific impairment—encompassing everything from auditory to visual to
cognitive to physical and more. As a result, individualized education plans run the gamut, from
extra time for tests and personalized tutoring, to a special education aide dedicated to a student
for the entirety of the school day.”).
60
. See María Rosalía Vicente & Ana Jesús López, A Multidimensional Analysis of the Disability
Digital Divide: Some Evidence for Internet Use, 26 INFO. SOC’Y 48, 50 (2010).
61
. See What Is the Digital Divide?, supra note 57.
62
. Monica Anderson & Andrew Perrin, Disabled Americans Are Less Likely To Use Technology,
PEW RSCH. CTR. (Apr. 7, 2017), https://www.pewresearch.org/fact-tank/2017/04/07/disabled-
americans-are-less-likely-to-use-technology.
2021] TECHNOLOGY AS A CIVIL RIGHT 885
to report lower levels of comfort with technology.
63
According
to the Pew Research Center, “even among younger adults,
people with a disability are less likely to report using digital
technology;” the Center cites the percentage of disabled
Americans ages 18–64 who report ownership of a desktop or
laptop computer at 67% as compared to 84% of their
nondisabled peers.
64
Technology adoption,
65
which refers to the
acceptance, integration, and use of new technology in society
(inclusive of internet usage and computing devices,
smartphones, tablets, and other mobile devices), is lower
among people with disabilities across the board, regardless of
age.
66
The abrupt move to remote learning environments during
the COVID-19 pandemic made plain many technology-related
disparities,
67
including in home access to internet services and
digital devices, and for students with disabilities, the barriers
were manifold.
68
63
. Id. Fifty-seven percent of Americans with disabilities report having home broadband as
compared to 76% of Americans without a disability. Id. The State Health Access Data Assistance
Center (SHADAC), a multidisciplinary health policy research center focused on state policy,
reports similar disparities in digital equality among people with disabilities including statistics
on home broadband access and Internet access more generally. See Internet Access Measures the
Impact of the Digital Divide and COVID-19, ST. HEALTH ACCESS DATA ASSISTANCE CTR. (Mar. 27,
2020), https://www.shadac.org/news/internet-access-measures-impact-digital-divide-and-
covid-19. SHADAC reports on national and state-level figures showing that households
including someone with a disability were 14% less likely to have broadband internet access than
households that did not include anyone with a disability (76% vs. 88.1%). Id. According to
SHADAC, on a national level, households where someone with a disability resided were, on
average, approximately 14% less likely to have broadband internet access than households that
did not include a person with a disability. Id.
64
. Anderson & Perrin, supra note 62.
65
. See Evan T. Straub, Understanding Technology Adoption: Theory and Future Directions for
Informal Learning, 79 REV. EDUC. RSCH. 625, 626 (2009) (“Adoption theory examines the
individual and the choices an individual makes to accept or reject a particular innovation.”).
66
. Anderson & Perrin, supra note 62.
67
. Id.
68
. Camera, supra note 59 (describing the “confluence of circumstances” that made the
transition to remote learning more difficult for students with disabilities: “The sudden crush of
COVID-19 cases forced schools to close with little to no time to plan for how they would
transition students to a comprehensive and effective distance learning model, especially for
students with disabilities who have individualized learning plans tailored to their specific
needs. . . . Meanwhile, largely lost in the rapid response to establish something—anything—
that would allow students to continue learning, were students with disabilities, the very
students who research shows are most negatively impacted by lost learning time.”).
886 DREXEL LAW REVIEW [Vol. 13:869
The disability digital divide affects disabled people of color
and low-income disabled people more acutely than others, and
to an even greater degree during the pandemic, given the
disproportionate impacts of COVID-19 at the nexus of race,
class, and disability.
69
Complex challenges reflecting second-
level digital divides include disparities in school resources for
assistive technologies, which impact key aspects of the
educational environment, for example, whether digital tools are
integrated into a curriculum for students with disabilities at all,
which necessarily impacts the availability of complementary
teacher training.
70
Other factors include attitudes about
students with disabilities as it relates to digital skills
development; these gaps were both more visible and more
pronounced during COVID-19.
71
These are just a few of the
structural issues which shape technology use and access, and
serve to exacerbate existing educational inequalities.
The complex structural barriers facing students with
disabilities
72
were made worse during the COVID-19 pandemic
when educational services transitioned to remote instruction.
73
69
. See NAT’L DISABILITY INST., RACE, ETHNICITY AND DISABILITY: THE FINANCIAL IMPACT OF
SYSTEMIC INEQUALITY AND INTERSECTIONALITY 1–2 (2020); see also Stephen Frost, Deadly
Discrimination: The Forgotten Impact of Covid-19 on People with Disabilities, FORBES (July 6, 2020,
5:35 AM), https://www.forbes.com/sites/sfrost/2020/07/06/deadly-discrimination.
70
. The “second-level digital divide” refers to the indirect but multifaceted factors affecting
society with the potential for social exclusion, and it pertains to the subtle divisions in how
technology is utilized. See Patricia A. Tyson, The Digital Divide and Inequities for Students with
Disabilities: Needed… A Bridge over Troubled Waters!, J. AM. ACAD. SPECIAL EDUC. PROS.,
Spring/Summer 2015, at 151, 153.
71
. See generally Frost, supra note 69 (discussing the lack of resources and consideration given
to the disability community that results from their exclusion from decision-making and
distribution roles); see also Camera, supra note 59 (discussing the challenges of educating
children with disabilities amid the COVID-19 pandemic).
72
. See supra text accompanying notes 45–48.
73
. See GLOB. STRATEGY GRP., PARENTS’ SURVEY IDENTIFIES ONGOING EDUCATION NEEDS FOR
NEW YORK FAMILIES (2020), https://edtrustmain.s3.us-east-2.amazonaws.com/wp-
content/uploads/sites/5/2020/06/26111501/NY-Public-School-Parents-Memo-6.29.20.pdf.
According to a poll of 800 parents of children in New York public schools, only 26% of schools
were providing instructional materials for students with disabilities as of June 2020. Id. A
separate Education Trust poll conducted among 1200 parents in California in the Spring of 2020
showed 24% of parents reporting that schools were providing instructional materials for
students with disabilities. Sonali Kohli, Stress Levels Are High for Parents. They Worry Kids Will
2021] TECHNOLOGY AS A CIVIL RIGHT 887
Means of virtual learning, including popular video
conferencing tools, can lack accessibility features.
74
School
administrators scrutinized online platforms like Zoom and
Microsoft Teams, used on a widespread basis during the
pandemic, because of difficulties encountered by some students
with disabilities.
75
These online platforms are not fully
Fall Behind in School, Survey Finds, L.A. TIMES (Apr. 8, 2020, 3:45 PM), https://www.latimes
.com/california/story/2020-04-08/coronavirus-parents-students-school-stress-level-survey.
74
. See Sarah Katz, The Inaccessible Internet, SLATE (May 22, 2020, 12:14 PM), https://slate.com
/technology/2020/05/disabled-digital-accessibility-pandemic.html (describing how COVID-19
led to increased visibility on these existing issues: “[N]ow, as we shift to working, schooling,
shopping, and communicating virtually, the pandemic is showing how many holes remain in
digital accessibility. From the absence of captioning to technical obstacles to blatant disregard
for who even has access to the internet, these holes are everywhere: in health care, the
workplace, [and] education . . . .”). The digital accessibility needs of students with disabilities
largely depend on the situation, and in remote learning environments, inaccessibility is a
consistent barrier. See Adrianne Gibilisco, The Impact of COVID-19 on Students with Disabilities,
UNC OFF. OF THE PROVOST: DIVERSITY & INCLUSION (June 30, 2020), https://diversity
.unc.edu/2020/06/the-impact-of-covid-19-on-students-with-disabilities. Virtual learning tools,
including video conferencing tools do not always include accessibility features, and even in
cases where they do, it may be up to the teacher and school administration to implement them
appropriately. See id. For example, “[s]tudents who are sight-impaired may need voice
activation for audio access or bigger onscreen images for easier viewing.” Id. Captioning is an
important accessibility feature that may require school administrators to plan in advance for
live captioning of video-based instruction as well as for asynchronous video materials. See id.
Accessibility on web-based platforms presents similar challenges. See id.; David E. Johnson, A
Problem That Can’t Be Ignored: Online Learning Hurts Special Ed Students, SAN ANTONIO REP. (Feb.
2, 2021), https://sanantonioreport.org/disruption-of-educational-services-during-pandemic-is-
hurting-san-antonios-low-income-special-education-students-of-color (“[S]ome online
learning practices inherently present barriers to persons with disabilities. Uncaptioned videos
are not accessible to students who are deaf, content presented with graphic images only is not
accessible to individuals who are blind, disorganized content cluttered on a page creates
barriers to some students with learning disabilities and attention deficits, and web pages that
require using a mouse are inaccessible to those who cannot operate one.”).
75
. Faith Hill, The Pandemic Is a Crisis for Students with Special Needs, ATLANTIC (Apr. 18,
2020), https://www.theatlantic.com/education/archive/2020/04/special-education-goes-remote-
covid-19-pandemic/610231. A school administrator in a school serving deaf and hard-of-
hearing students described the difficulty in using Zoom for ASL classes, who said that when
too many students are in the display, it becomes harder and harder for students to see and
understand signs. Id. The administrator added that “[s]o much of ASL is communicated
through physical nuance in the immediate space, and I think that is not easy to catch on a
screen.” Id. Additionally, online platforms like Zoom and Microsoft Teams, and printed work
packets provided by teachers, “just aren’t accessible” because “[s]tudents with disabilities often
use assistive technology . . . [b]ut a lot of online platforms aren’t compatible with assistive
technology—and even when they are, other problems frequently arise.” Id. But see Claudio Luis
Vera, Which Video Conferencing Tools Are Most Accessible?, SMASHING MAG. (June 15, 2020),
https://www.smashingmagazine.com/2020/06/accessible-video-conferencing-tools (“Ask
888 DREXEL LAW REVIEW [Vol. 13:869
compatible with many assistive and augmentative
technologies, including screen-reader software or Braille
readers, and in instances where there is some compatibility,
there are other problems that interfere with the quality of
education received.
76
Students may also have limited internet access because of the
expense or the geographic availability of services.
77
In addition
to compatibility conflicts for students with access to assistive
technology, students in districts with limited resources may
anyone in the disability community about video conferencing tools, and they will almost
certainly point you to Zoom. There’s no shortage of favorable opinions and anecdotal support
for Zoom in the disability community, as the app has a reputation for providing a consistently
high level of access.”); Jennimai Nguyen, Zoom’s New Feature Makes Sure You’ll Catch Every Word
of the Meeting, MASHABLE (Oct. 29, 2020), https://mashable.com/article/-zoom-live-captions/;
Rochelle Bowyer, UW Isn’t ‘Boundless’ for Students with Disabilities, DAILY (Apr. 13, 2020),
https://www.dailyuw.com/opinion/article_2c8b2e90-7d1b-11ea-81ff-df2a491a4478.html
(describing how Zoom Pro offers additional disability features such as closed captioning,
automatic transcripts, screen reader support, and keyboard accessibility).
76
. Hill, supra note 75.
77
. See Emily A. Vogels, 59% of U.S. Parents with Lower Incomes Say Their Child May Face
Digital Obstacles in Schoolwork, PEW RSCH. CTR. (Sept. 10, 2020), https://www.pewresearch.org
/fact-tank/2020/09/10/59-of-u-s-parents-with-lower-incomes-say-their-child-may-face-digital-
obstacles-in-schoolwork. Cost is one of the barriers cited as a primary reason why U.S.
households do not subscribe to internet services. See id. The Pew Research Center has published
a number of studies spanning at least the last six years showing that the cost of broadband is a
substantial challenge. Cf. id. (finding strong correlation between income level and obstacles to
distance learning). Disparities in home broadband adoption rates (the digital divide) produces
concerns related to students’ ability to access remote learning during school closures. See John
B. Horrigan & Maeve Duggan, Home Broadband 2015, PEW RSCH. CTR. (Dec. 21, 2015),
https://www.pewresearch.org/internet/2015/12/21/home-broadband-2015/ (identifying cost as
the predominant barrier to respondents obtaining broadband internet). An April 2020 survey
showed that 29% of parents with homebound, school-aged children said it was very or
somewhat likely their children would have to do their schoolwork on a cellphone. See Vogels,
supra. Twenty-one percent of parents said they did not have access to a computer at home and
22% said they did not have reliable internet connectivity at home. See id. As it relates to the
geographic dimensions of the digital divide, the Federal Communications Commission
estimates that 27% of people living in rural areas do not have internet access. Joyce Winslow,
America’s Digital Divide, PEW TRUST MAG. (July 26, 2019), https://pew.org/35A4Wlj. On this point
regarding broadband adoption as it relates to the cost of internet services and the geographic
dimensions of the digital divide, the FCC adds further comment on data showing overall
adoption rates that, “in general, these data suggest that the average household adoption rate in
a county increases with median household income and population density, and decreases with
increases in the poverty rate and rural population rate.” FED. COMMC. COMM’N., GN DOCKET
NO. 20-269, IN THE MATTER OF INQUIRY CONCERNING DEPLOYMENT OF ADVANCED
TELECOMMUNICATIONS CAPABILITY TO ALL AMERICANS IN A REASONABLE AND TIMELY FASHION
32 (2021).
2021] TECHNOLOGY AS A CIVIL RIGHT 889
also lack adequate hardware, software, and broadband access.
78
Because broadband access, technology adoption, and comfort
with technology are lower across the board for people with
disabilities,
79
a lack of technological resources at home or in
schools compounds these issues for students with disabilities.
Disabled students of all ages lack adequate support and care
around accessible technology solutions.
80
Educational
institutions all over the country turned to technological stopgap
solutions during the pandemic.
81
As schools implemented
emergency preparedness and response plans, transitioning to
remote instruction, many students with disabilities were left
behind.
82
It became clear as the weeks of school closures turned
to months that there are not appropriate technological
78
. See U.S. DEP’T OF EDUC. OFF. OF EDUC. TECH., REIMAGINING THE ROLE OF TECHNOLOGY IN
EDUCATION: 2017 NATIONAL EDUCATION TECHNOLOGY PLAN UPDATE 21–22 (2017), https://
tech.ed.gov/files/2017/01/NETP17.pdf.
79
. See, e.g., Anderson & Perrin, supra note 62; Internet Access Measures the Impact of the Digital
Divide and COVID-19, supra note 63.
80
. Charlotte McClain-Nhlapo, An Inclusive Response to COVID-19: Education for Children with
Disabilities, GLOB. P’SHIP FOR EDUC. (May 11, 2020), https://www.globalpartnership.org/blog
/inclusive-response-covid-19-education-children-disabilities.
81
. Elizabeth A. Harris, ‘It Was Just Too Much’: How Remote Learning Is Breaking Parents, N.Y.
TIMES (June 12, 2020), https://www.nytimes.com/2020/04/27/nyregion/coronavirus-
homeschooling-parents.html.
82
. Special Education During COVID-19: Stories from Across California, DISABILITY RTS. CAL.
(Dec. 12, 2020), https://www.disabilityrightsca.org/post/special-education-during-covid-19-
stories-from-across-california. Anecdotal reports from Disability Rights California (DRC), an
agency designated under federal law to protect and advocate for the rights of Californians with
disabilities, cites inconsistencies in special education resources during COVID-19 related school
closures:
But some school districts have failed to provide the special education services that
students desperately need. These districts failed to conduct needed assessments,
ignored families’ requests for in-home assistance, disciplined students who could not
comply with the distance learning rules because of their disabilities, denied needed
assistive technology and discriminated against disabled students in their reopening
policies.
Id. (footnotes omitted).
890 DREXEL LAW REVIEW [Vol. 13:869
supports
83
that would allow adequate access to the services and
resources that students with disabilities need.
84
There has been widespread concern among teachers and
researchers that in a distance-learning setting, the barriers that
arise for students with disabilities will lead to students’ skills
significantly regressing
85
due to the digital accessibility gap,
86
and a lack of consideration to digital inclusion. Millions of
83
. As of 2020, web content accessibility hovered at only 2%, meaning that nearly all web
content failed to meet the international standards for making web content accessible to people
with disabilities. See Lydia X. Z. Brown, How to Center Disability in the Tech Response to COVID-
19, BROOKINGS (July 20, 2020), https://www.brookings.edu/techstream/how-to-center-
disability-in-the-tech-response-to-covid-19.
84
. The pandemic has had a significantly negative impact on whether and how disabled
people access their rights to education. It has disrupted educational access for all students, but
remote learning, intended to mitigate that disruption, has introduced insurmountable barriers
for students with disabilities. “[S]tudents with disabilities are facing barriers on account of the
absence of required equipment, access to the internet, accessible materials and support
necessary to permit them to follow online school programs. As a result, many students with
disabilities are being left behind, particularly students with intellectual disabilities.” See U.N.
HUM. RTS. OFF. OF THE HIGH COMM’R, COVID-19 AND THE RIGHTS OF PERSONS WITH DISABILITIES:
GUIDANCE 6 (Apr. 29, 2020), https://www.ohchr.org/Documents/Issues/Disability/COVID-
19_and_The_Rights_of_Persons_with_Disabilities.pdf.
85
. See James D. Basham, Jose Blackorby & Matthew T. Marino, Opportunity in Crisis: The
Role of Universal Design for Learning in Educational Redesign, 18 LEARNING DISABILITIES: CONTEMP.
J. 71, 73 (2020).
86
. The digital accessibility gap refers to gaps in the implementation of universal design
principles in Edtech and website design to meet federal requirements for digital accessibility.
See ALISE CROSSLAND, KRISTIN RUEDEL & MARSHAL CONLEY, AM. INST. FOR RSCH.,
PRESENTATION AT SXSW EDU, CALL TO ACTION: CLOSING THE DIGITAL ACCESSIBILITY GAP (2018)
(PowerPoint presentation available at https://powerupwhatworks.org/resource/call-action-
closing-digital-accessibility-gap). Digital accessibility is the “ability of a website, mobile
application, or electronic document to be easily navigated and understood by all users of varied
abilities, including those who have visual, auditory, motor, or cognitive disabilities.” Amihai
Miron, A Lesser Known Impact of COVID-19: People with Disabilities May Be Denied Access to Online
Resources, GLOBENEWSWIRE (May 20, 2020, 10:03 AM), http://www.globenewswire.com/news-
release/2020/05/20/2036492/0/en/A-Lesser-Known-Impact-of-COVID-19-People-with-
Disabilities-May-Be-Denied-Access-to-Online-Resources.html. The 2017 National Education
Technology Plan discusses that learning experiences enabled by technology should be
accessible to all learners and it goes on to describe the importance of digital accessibility:
Supports to make learning accessible should be built into learning software and
hardware by default . . . . Modern public buildings include features such as ramps,
automatic doors, or braille on signs to make them accessible by everyone. In the same
way, features such as text-to-speech, speech-to-text, enlarged font sizes, color contrast,
dictionaries, and glossaries should be built into educational hardware and software to
make learning accessible to everyone.
U.S. DEP’T OF EDUC. OFF. OF EDUC. TECH., supra note 78.
2021] TECHNOLOGY AS A CIVIL RIGHT 891
students are at risk of severe learning loss during the
coronavirus pandemic and the most vulnerable are students
with disabilities and those living in deep poverty.
87
School
administrators have even said that these students will see
“historic academic regression.”
88
While the law allows parents
to request compensatory services if they can show that their
child has actually regressed from where they were on the last
day of in-person schooling before the pandemic, receiving these
services may be difficult given that there will likely be a large
number of eligible families, creating a bottleneck.
89
B. Individualized Education Plans and FAPE During COVID-19
In the Spring of 2020, the U.S. Department of Education (ED)
was in the process of deciding whether or not to provide
waivers exempting K-12 schools from IDEA requirements
which mandate that students with special needs receive an
education comparable to that of their peers through
Individualized Education Plans (IEPs).
90
IEPs, “legal contracts
between schools and parents that set goals” for the student,
“outline the special education services” that will be provided.
91
87
. Laura Meckler, Valerie Strauss & Joe Heim, Millions of Public School Students Will Suffer
from School Closures, Education Leaders Have Concluded, WASH. POST (Apr. 13, 2020, 6:00 AM),
https://www.washingtonpost.com/local/education/online-learning-summer-school-
coronavirus/2020/04/11/de11c278-7adc-11ea-a130-df573469f094_story.html.
88
. Id.
89
. Corey Mitchell, How Will Schools Pay for Compensatory Services for Special Ed. Students?,
EDUC. WK. (Nov. 10, 2020), https://www.edweek.org/teaching-learning/how-will-schools-pay-
for-compensatory-services-for-special-ed-students/2020/11.
90
. BETSY DEVOS, U.S. SEC’Y. OF EDUC., REP. TO CONGRESS: RECOMMENDED WAIVER
AUTHORITY UNDER SECTION 3511(d)(4) OF DIVISION A OF THE CORONAVIRUS AID, RELIEF, AND
ECONOMIC SECURITY ACT (“CARES ACT”) 1–18 (2020), https://www2.ed.gov/documents
/coronavirus/cares-waiver-report.pdf; see Carolyn Jones, Federal Special Education Law Must Stay
Intact During School Closures, DeVos Says, EDSOURCE (Apr. 27, 2020), https://edsource.org/2020
/federal-special-education-law-must-stay-intact-during-school-closures-devos-says/630298.
91
. Angela Nelson, How COVID-19 Has Affected Special Education Students, TUFTSNOW (Sept.
29, 2020), https://now.tufts.edu/articles/how-covid-19-has-affected-special-education-students;
Erica L. Green, DeVos Weighs Waivers for Special Education. Parents Are Worried., N.Y. TIMES (Apr.
2, 2020), https://www.nytimes.com/2020/04/02/us/politics/special-education-coronavirus.html;
Kara Arundel, IEPs Altered to Reflect Distance Learning Service Changes, but at Cost to Schools, K-
12 DIVE (Oct. 6, 2020), https://www.k12dive.com/news/iep-changes-to-special-ed-services
/586104.
892 DREXEL LAW REVIEW [Vol. 13:869
They span a range of needs to include communication and
language access services for blind, deaf, and deafblind students,
services for students with multiple disabilities, and rules that
govern how schools must respond to due process complaints.
92
Although school districts have transitioned to remote learning,
many of them are figuring out how to manage the continuation
of services for students with disabilities, which has led them to
adapt IEPs to reflect distance learning service changes.
93
These plans require a range of support—not easily
transferred to the internet during a health crisis—to include
behavioral assistance, timelines for assessments, hands-on
services like physical and occupational therapy, and adherence
to stringent rules for adjusting a student’s IEP.
94
At the
beginning of the pandemic, school districts argued that these
services were impossible to deliver because of the shift to online
learning and that if these requirements were not waived,
districts would be vulnerable to lawsuits from parents.
95
Parents of students with disabilities feared that if granted, the
waivers would jeopardize student disability rights and would
allow schools to deny provision of special education services for
however long distance learning would be in place.
96
The ED
ultimately decided that it would not issue waivers of special
education requirements and that provisions of the IDEA—all
timelines, services, and regulations—were to remain in force.
97
92
. Green, supra note 91.
93
. Arundel, supra note 91.
94
. Green, supra note 91.
95
. Carolyn Jones, Despite Assurances of Flexibility, Educators Fear Liability in Online Instruction
of Special Ed Students, EDSOURCE (Mar. 24, 2020), https://edsource.org/2020/despite-assurances-
of-flexibility-educators-fear-liability-in-online-instruction-of-special-ed-students/626898.
96
. Katz, supra note 74. After the College Board transitioned to administering advanced
placement tests digitally, five seeing-impaired students in Pennsylvania, along with the
National Federation of the Blind, filed a civil rights complaint against the College Board for not
making the tests accessible for students who use Braille. Press Release, Nat’l Fed’n of the Blind,
Blind and Deafblind Students Set to Take Advanced Placement Tests File Civil Rights
Complaint Against College Board (May 11, 2020), https://www.nfb.org/about-us/press-
room/blind-and-deafblind-students-set-take-advanced-placement-tests-file-civil; see also
Green, supra note 91.
97
. Nelson, supra note 91.
2021] TECHNOLOGY AS A CIVIL RIGHT 893
The ED, school administrators, and special education experts
acknowledge that implementing IEPs in the middle of a
pandemic has been extremely difficult for schools, and that
modifications to these plans often fell short of parents’
expectations.
98
COVID-19 laid bare the unfortunate reality that
some schools were already providing very little in terms of
special education services but responses across school districts
have varied.
99
There have been reports of some districts
providing very little guidance to teachers on how to support
disabled students, while other districts encouraged various
methods of daily outreach, including phone or video chat,
delivery of educational materials directly to the student’s home,
and welfare check-ins.
100
The core questions raised by parents
under the extreme conditions imposed by the pandemic
underscore the struggles students and their families have faced
in securing the right to FAPE guaranteed by the IDEA.
101
The
98
. Id. Dr. Melinda Macht-Greenberg, a clinical, developmental, and school psychologist
and support specialist for children with disabilities, discussed the difficulties students with
disabilities, their parents, and school districts faced because of COVID-19, saying that school
modifications to IEPs “really led to this whole cascading nightmare where many school districts
felt they didn’t need to provide everything if they couldn’t do it in person, and they didn’t need
to provide services for the same amount of time or in the same way.” Id. Guidance from the ED
stated that “the department recognizes that exceptional circumstances may affect how special
education and related services and supports are provided to students with disabilities, and the
department will offer flexibility.” Press Release, U.S. Dep’t. of Educ., Urging States to Continue
Educating Students with Disabilities, Secretary DeVos Publishes New Resource on Accessibility
and Distance Learning Options (Mar. 21, 2020), https://www.ed.gov/news/press-
releases/urging-states-continue-educating-students-disabilities-secretary-devos-publishes-
new-resource-accessibility-and-distance-learning-options.
99
. Nelson, supra note 91.
100
. Jones, supra note 95.
101
. Johnson, supra note 74 (“Disabled children are legally entitled to free educational
services that are tailored to their individual needs, from physical therapy to speech therapy to
an in-class aide or assistant. But this one-to-one support simply cannot be provided at a
distance. Home confinement, for example, limits certain kinds of professional contacts such as
physical or occupational therapists. . . . Given the digital divide, San Antonio’s economic
segregation, the pandemic-precipitated shift to virtual learning, and federal regulators’ findings
that years of pressure from state officials to enroll fewer students in special education have
created a culture of noncompliance with federal law, it’s clear that San Antonio’s low-income
special needs students of color are not receiving their legally entitled educational services. What
remains unclear is how school districts can provide these services during these uncertain
times.”). While many parents of students with disabilities appreciate the novelty and
894 DREXEL LAW REVIEW [Vol. 13:869
remote environment makes providing services for a vast range
of disabled people uniquely complicated, which is why parents
have been primarily concerned with getting their children what
they need, ensuring their children get what they are entitled to
receive, and clarifying what they are allowed to request from
school districts.
102
The short-term relief that the ED provided to school districts
may cause more harm than good, as it could open the door to
districts reducing their services for disabled students in the long
term by claiming they lack the resources.
103
The perception
among special education advocates is that the ED’s guidance
includes too many caveats that would allow schools to offer as
complexity of the challenges schools have managed during the pandemic, they are also
concerned about their children regressing. See Arundel, supra note 91; Green, supra note 91
(reporting that one cause for potential regression stemming from a transition to distance
learning might be missing speech therapy outlined in an IEP). One of the provisions of special
education law, compensatory education, requires school districts to provide services after-the-
fact, and parents are worried that the post-pandemic backlog will be insurmountable and that
students with disabilities will sustain further developmental harms. Jones, supra note 95.
102
. Nelson, supra note 91.
103
. Jones, supra note 95. In the late Spring of 2020, the ED declined to seek any waiver
authority that would alter core tenets of the IDEA, namely waiving school district’s
requirements to provide students with disabilities access to free appropriate public education
(FAPE) through distance education or other alternative strategies. Michelle Diament, DeVos
Finds ‘No Reason’ to Waive Key Provisions of IDEA, DISABILITY SCOOP (Apr. 28, 2020),
https://www.disabilityscoop.com/2020/04/28/devos-no-reason-waive-provisions-idea/28244.
At the time, disability rights advocates pointed out that while the ED’s announcement provided
clear guidance, it also allowed districts the flexibility to find protocols that would work for
individual students. However, advocates warned that the announcement included enough
caveats for schools not to make their best efforts. Jones, supra note 95. These early warnings
have borne themselves out nearly eleven months later as the ED is now investigating multiple
school districts due to concerns that they failed to provide appropriate services during the
pandemic. Officials from the ED have said that they are examining “possible discrimination
against students with disabilities by failing to provide them with a free, appropriate public
education (FAPE) during the COVID-19 pandemic.” Michelle Diament, Ed Department
Investigating Special Ed Failures During COVID-19, DISABILITY SCOOP (Jan. 29, 2021),
https://www.disabilityscoop.com/2021/01/29/ed-department-investigating-special-ed- failures-
during-covid-19/29171. The ED’s Office for Civil Rights is looking at the Indiana Department of
Education, Seattle Public Schools, Los Angeles Unified School District, and Fairfax County
Public Schools in Virginia, where parents of students with disabilities have brought multiple
complaints about schools forcing kids into a “one-size-fits-all” remote learning program rather
than programs tailored to meet student’s individual needs. Id.
2021] TECHNOLOGY AS A CIVIL RIGHT 895
little support as possible.
104
However, it could also mean that
districts doing absolutely nothing will have to begin offering
services for students with disabilities.
105
1. Implementation of education technology and digital inequities
Students with disabilities are continually overlooked and
families often encounter a number of barriers to acquiring the
support services schools are required by law to provide. In
some school districts, failure to provide support services or
inclusive remote learning programs with accessible technology
available reflects a lack of resources.
106
However, multiple
barriers beyond funding impact meaningful use of accessible
information and communicative technology (ICT) resources for
students with disabilities. These include the school curriculum,
pedagogy, environmental setting, and teacher attitudes,
training, and capacity.
107
For example, in May of 2020, Parents
Together Action, a national parent-led advocacy organization,
published results from a survey about the impact of the
104
. A CNBC report from late July 2020 described the financial pressures of remote learning
for families of students with disabilities. See Sharon Epperson, Special Needs Families Face
Increased Financial Pressure in Covid-19 Crisis. This Can Help, CNBC (July 31, 2020, 9:52 AM),
https://www.cnbc.com/2020/07/31/special-needs-families-face-increased-financial-pressure-in-
covid-19-crisis.html. Some students with disabilities require various educational and support
services to include occupational and speech therapy to other types of one-on-one aid. Id. During
the COVID-19 crisis these costs now fall on parents shoulders to pay out of pocket. Id. In
discussing this challenging landscape for the families of students with special needs, advocates
report that, “[n]ow some school districts are claiming they can’t offer the services they’re
required to provide remotely.” Id. Some schools require students with disabilities to attend class
in person, disability rights advocates add that, “parents have significant reservations about
sending children with certain disabilities and special needs back into the building.” Id.
105
. See Jones, supra note 95.
106
. See Hallie Levine, As School Returns, Kids with Special Needs Are Left Behind, N.Y. TIMES,
https://www.nytimes.com/2020/09/16/parenting/school-reopening-special-needs.html (Sept.
18, 2020). The Executive Director of the National Association of State Directors of Special
Education described the funding crisis school districts have been experiencing: “they’re facing
massive budget deficits due to implementing safety measures for the pandemic, and the unique
needs of kids with more significant disabilities—special busing, complex technology—drives
the cost up even more . . . .” Id. In certain situations “where districts do have the funds, they
have gone in the other direction, allowing children with disabilities back to school five days a
week, even while their typical peers do hybrid or remote learning.” Id.
107
. Tyson, supra note 70.
896 DREXEL LAW REVIEW [Vol. 13:869
coronavirus on children’s education, which showed that 40% of
students in special education had not received any support at
all and that only 20% received all of the services they were
entitled to receive.
108
Just over a third were not participating in
any remote learning programs, as compared to 17% of their
general education peers.
109
The survey also found that 40% of
parents of disabled students reported being concerned about
their children’s mental health, as compared to only 23% of
parents of other students.
110
While many school districts have struggled to meet students’
IEPs during the pandemic, many of the holes in the
technological infrastructure (inclusive of pedagogy and teacher
training) were present before the pandemic hit. Prior to the
pandemic, researchers reported how logistically difficult and
overwhelming it was for teachers to use traditional special
education technology and to receive adequate training.
111
A
number of studies detail gaps in special education technology
access despite existing legislative mandates.
112
Students with
disabilities routinely go without the required technology
devices and services.
113
Reports on the state of the special
108
. See ParentsTogether Survey Reveals Remote Learning Is Failing Our Most Vulnerable
Students, PARENTSTOGETHER ACTION (May 27, 2020), https://parentstogetheraction.org/2020/05
/27/parentstogether-survey-reveals-remote-learning-is-failing-our-most-vulnerable-students.
109
. Id.
110
. Id.; see Anya Kamenetz, Survey Shows Big Remote Learning Gaps for Low-Income and Special
Needs Children, NPR (May 27, 2020, 12:03 PM), https://www.npr.org/sections/coronavirus-live-
updates/2020/05/27/862705225/survey-shows-big-remote-learning-gaps-for-low-income-and-
special-needs-children; Levine, supra note 106.
111
. Tyson, supra note 70, at 158.
112
. Id.
113
. What Should Ms. Adelaide Know About Assistive Technology and How It Is Used by Students
with Disabilities?, IRIS CTR. PEABODY COLL. VAND. UNIV. [hereinafter What Should Ms. Adelaide
Know?], https://iris.peabody.vanderbilt.edu/module/at/cresource/q1/p01 (last visited Apr. 1,
2021). Vanderbilt University’s public disability support resources, provided with support from
the federal Office of Special Education programs, describes that teachers are hesitant to provide
the necessary assistive technology tools due to “common misunderstandings and
misapprehensions” about assistive technology. Id. There are a number of factors driving the
lack of access to assistive technologies in the classroom; some of these barriers include
insufficient assessment, planning processes, and financial support, difficulty obtaining and
managing equipment, time constraints, a lack of appropriate teacher preparation and support,
2021] TECHNOLOGY AS A CIVIL RIGHT 897
education technology ecosystem also suggest that educators are
often unaware of the IDEA amendments which mandate that in
developing an IEP, team members must consider assistive
technology.
114
Studies have also found instances where, given
the widespread scarcity of resources in school districts, IEP and
assistive technology teams have even shied away from
suggesting assistive technology because of the cost
implications.
115
Taken together, these findings paint a grim but
clear picture of how the support services for students with
disabilities often fall outside of the scope of what school
districts are prepared to provide. Parents of students with
disabilities often assume these responsibilities at cost.
116
Educational technology (EdTech) tools
117
used to provide
remote education are often not designed to be as accessible for
learners with disabilities or complex needs, as they are targeted
and negative staff attitudes. Areej Ahmed, Perceptions of Using Assistive Technology for Students
with Disabilities in the Classroom, 33 INT’L J. SPECIAL EDUC. 130, 133 (2018). Researchers evaluating
barriers to assistive technology point out the consensus among educators that adaptive
technologies and their corresponding support services may be a solution for students with
disabilities who are struggling to achieve academic growth; however, they also acknowledge
that “consideration for assistive technology process is not prevalent in schools.” Dawn LaRae
Jacobsen, Assistive Technology for Students with Disabilities: Resources and Challenges
Encountered by Teachers (Dec. 2012) (Ph.D. dissertation, University of Northern Iowa) (UNI
ScholarWorks). Some of the barriers include fiscal constraints, limited teacher knowledge,
negative attitudes, a lack of acceptance, and perceptions about the efficacy of the equipment
itself. Id.
114
. According to the IDEA, assistive technology encompasses “any item, piece of
equipment, or product system, whether acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or improve functional capabilities of a child with
a disability.” Individuals with Disabilities Act, 20 U.S.C. § 1401(1)(A).
115
. See Victoria Zascavage & Kathleen Winterman, What Middle School Educators Should
Know About Assistive Technology and Universal Design for Learning, 40 MIDDLE SCH. J. 46, 48 (2009).
116
. See Donna Anderson, Serge Dumont, Philip Jacobs & Leila Azzaria, The Personal Costs
of Caring for a Child with a Disability: A Review of the Literature, 122 PUB. HEALTH REP. 3, 4 (2007).
117
. EdTech refers to the use of technology for facilitating learning. It is an area of mass-
market technology dedicated to the development and application of tools, including hardware,
software, and processes aimed to promote education. See What Is EdTech?, EDTECHREV. (Feb.
15, 2013), https://edtechreview.in/dictionary/119-what-is-edtech. As such, EdTech tools, apps,
and products enhance learning, pedagogy, and instruction by aiding the delivery of education.
Id.
898 DREXEL LAW REVIEW [Vol. 13:869
to a mass market.
118
These solutions often lack the basic
accessibility features to make them usable for students with
disabilities.
119
In the case of off-the-shelf EdTech products, the
technology itself “restricts access to those who fit bodily
norms,” and it is no surprise that disabling experiences are the
result.
120
The widespread use of technology and internet-based
tools during the COVID-19 pandemic has produced awareness
of existing digital inequalities and about the importance of
digital accessibility as it relates to the meeting the specific needs
of students with disabilities.
121
2. Barriers to digital inclusion in education
Experts on digital accessibility and digital inclusion
122
advise
that without proper implementation, the mere presence of
118
. Marketplace Tech, Online Learning Tools Aren’t as Accessible for Students with Disabilities,
MARKETPLACE (Aug. 13, 2020), https://www.marketplace.org/shows/marketplace-tech/online-
learning-tools-arent-as-accessible-for-students-with-disabilities.
119
. Id.
120
. Katz, supra note 74.
121
. See Laura Robinson et al., Digital Inequalities 2.0: Legacy Inequalities in the Information Age,
FIRST MONDAY, June 17, 2020, https://journals.uic.edu/ojs/index.php/fm/article/view/10842
/9561; A COVID-19 Wake-Up Call: How ITU Supports Digital Accessibility, MYITU (Mar. 12, 2020),
https://www.itu.int/en/myitu/News/2020/12/02/15/07/How-ITU-supports-digital-accessibility-
for-persons-with-disabilities; Tony Coelho, Coronavirus Pandemic Showed Importance of Digital
Access for People with Disabilities, S.F. CHRON., https://www.sfchronicle.com/opinion/openforum
/article/Coronavirus-pandemic-showed-importance-of-digital-15283847.php (May 21, 2020,
4:00 AM); Abrar Al-Heeti, COVID-19 Exposes Hypocrisy over Lack of Disability Accommodations,
CNET (May 21, 2020, 12:18 PM), https://www.cnet.com/health/the-covid-19-crisis-highlights-
how-far-accessibility-still-has-to-go.
122
. “Digital inclusion is the ability of individuals and groups to access and use information
and communication technologies.” See Samantha Becker, Chris Coward, Mike Crandall,
Rebecca Sears, Ron Carlee, Kira Hasbargen & Mary Alice Ball, Building Digital Communities: A
Framework for Action, INST. OF MUSEUM & LIBR. SERVS. 1, 70 (2012), https://www.imls.gov/sites
/default/files/publications/documents/buildingdigitalcommunitiesframework.pdf. Scholars
discuss the importance of digital inclusion as an increasingly important social issue,
highlighting that:
The use of technology to communicate has become an essential and socially acceptable
aspect of most people’s lives and it is becoming increasingly difficult to distinguish
between the “digital world” and the “real world.” Hence, Digital Inclusion is an
increasingly important social issue, reflecting imperatives, opportunities, and
considerations about human rights, equity, issues of identity, language, social
2021] TECHNOLOGY AS A CIVIL RIGHT 899
EdTech—where schools have the resources to support
technology access—offers little benefit to students with
disabilities.
123
Assistive technologies provided without the
support services necessary to use the devices appropriately is
insufficient for student success.
124
In light of the pace of
innovation and technological advancement, policymakers have
recommended since the 1970s that, in addition to devices and
equipment, instructional technology should also involve a
systematic way of designing and delivering instruction, but this
guidance has largely been ignored by practitioners.
125
Schools
have failed to shift their thinking about students with
disabilities and to understand that the flaws are in the
curriculum and not the students.
126
Field researchers continue
to report that “[s]tudents with disabilities, disregarded and
powerless, have not been included in curriculum design, and
they ‘find barriers rather than supports for learning.’”
127
Considering the time and costs required to maintain teacher
proficiency levels in the appropriate uses of innovative
technologies (which have limited lifespans), it should come as
no surprise that teachers do not receive adequate technical
training for integrating digital learning into the classroom.
128
It
is for this reason that training on technology integration,
specifically as it relates to incorporating appropriate tools in
current and future practices and ongoing professional
participation, community and civic engagement, and opportunity pertaining to the
digital world.
Darren Chadwick & Caroline Wesson, Digital Inclusion and Disability, in APPLIED
CYBERPSYCHOLOGY: PRACTICAL APPLICATIONS OF CYBERPSYCHOLOGICAL THEORY AND RESEARCH
1 (Alison Attrill & Chris Fullwood eds., 2016) (internal citations omitted).
123
. Tyson, supra note 70, at 153 (citing Monica R. Brown, Access Granted: Achieving
Technological Equity in the 21st Century, in HANDBOOK OF SPECIAL EDUCATION TECHNOLOGY
RESEARCH AND PRACTICE 105 (Dave Edyburn, Kyle Higgins & Randall Boone eds., 2005)).
124
. See What Should Ms. Adelaide Know?, supra note 113.
125
. Tyson, supra note 70, at 154 (citing Chuck Hitchcock & Skip Stahl, Assistive Technology,
Universal Design, Universal Design for Learning: Improved Learning Opportunities, 18 J. SPECIAL
EDUC. TECH. 45, 46 (2003)).
126
. See id. at 155 (quoting Hitchcock & Stahl, supra note 125, at 45).
127
. Id.
128
. Id. at 155–56.
900 DREXEL LAW REVIEW [Vol. 13:869
development, must become a critical focus in addressing digital
inequities experienced by students with disabilities.
129
One of the barriers to better digital inclusion is a lack of
understanding about how to best support students with limited
exposure to online learning environments. Online learning can
be more challenging for students with disabilities because it
places greater demands on their executive functioning (EF)
skills.
130
In a classroom setting where instruction is face-to-face,
students receive some level of ongoing instructional support;
they are able to access one another’s strategies for succeeding—
for example, hearing other students’ questions adds depth and
clarity to a discussion, can assist in awareness of deadlines, and
provides examples of how to ask for assistance.
131
These
features of face-to-face classroom instruction significantly
impact students with disabilities’ EF skills to help navigate the
learning experience.
132
The scaffolds and supports typically
present in a face-to-face classroom are not present in the online
environment. Many disabled students find themselves at a
greater disadvantage in virtual classrooms, where there are
fewer instructional cues.
133
The difficulties students face
navigating online learning environments were especially acute
during the shift to virtual classrooms driven by the coronavirus
pandemic.
134
Teachers can support students with disabilities
impacting EF by tailoring the course design, while
administrators can select learning management systems or
other virtual learning tools designed with EF support
embedded.
135
Without these considerations, students’ learning
outcomes are substantially disrupted.
136
129
. Id. at 156.
130
. Executive Functioning in Online Environments: Universal Design for Learning in Higher
Education, CAST: UDL ON CAMPUS, http://udloncampus.cast.org/page/teach_executive (last
visited Apr. 1, 2021).
131
. Id.
132
. Id.
133
. Id.
134
. See Basham, Blackorby & Marino, supra note 85, at 71.
135
. Executive Functioning in Online Environments, supra note 130.
136
. See Basham, Blackorby & Marino, supra note 85, at 75–76.
2021] TECHNOLOGY AS A CIVIL RIGHT 901
III. UNIVERSAL DESIGN FOR LEARNING AND STRATEGIES FOR
ENABLING DIGITAL ACCESSIBILITY FOR EDUCATION
The IDEA incorporates the Assistive Technology Act of 1998
definition of “universal design,” which is “a concept or
philosophy for designing and delivering products and services
that are usable by people with the widest possible range of
functional capabilities, which include products and services
that are directly accessible (without requiring assistive
technologies) and products and services that are interoperable
with assistive technologies.”
137
Universal design for learning
(UDL) refers to principles and features that enable students
with disabilities to have access to learning and education
technologies.
138
Educators and educational institutions have a
legal responsibility to provide accessible platforms and
materials.
139
Web-based information and other digital resources
should provide students with disabilities the most convenient
access, without obstacles. UDL builds on the principles of
universal design by integrating accessibility standards into the
overall design, as opposed to being incorporated as an after-
thought, i.e., after digital materials or products are complete or
137
. Assistive Technology Act of 1998, 29 U.S.C. § 3002(a)(19); Individuals with Disabilities
Education Act, 20 U.S.C. § 1401(35). The concept of universal design originated in the field of
architecture “as a means to promote the design of products and environments that would
appeal to all people, yet meet the requirements of the Americans with Disabilities Act (ADA)
to provide access for individuals with disabilities.” History of UDL, OCALI,
https://www.ocali.org/project/learn_about_udl/page/udl_history (last visited Apr. 1, 2021). In
1997, a working group of environmental design researchers developed seven principles of
universal design: (1) “Equitable Use,” (2) “Flexibility in Use,” (3) “Simple and Intuitive Use,”
(4) “Perceptible Information,” (5) “Tolerance for Error,” (6) “Low Physical Effort,” and (7) “Size
and Space for Approach and Use.” Bettye Rose Connell, Mike Jones, Ron Mace, Jim Mueller,
Abir Mullick, Elaine Ostroff, Jon Sanford, Ed Steinfeld, Molly Story & Gregg Vanderheiden, The
Principles of Universal Design, in THE UNIVERSAL DESIGN FILE: DESIGNING FOR PEOPLE OF ALL
AGES & ABILITIES 31, 34–35 (1998).
138
. Alise Crossland, Tracy Gray & Jillian Reynolds, ESSA and Digital Learning: Closing the
Digital Accessibility Gap, AM. INSTS. FOR RSCH. 1, 5 (2018), https://www.air.org/sites/default
/files/downloads/report/ESSA-Digital-Lrng-508.pdf.
139
. Accessibility and Universal Design for Learning: First What Do We Mean by “Accessibility”?,
BOISE ST. UNIV., https://www.boisestate.edu/ctl-idea/accessibility (last visited Apr. 15, 2021).
Educational institutions describe their legal obligations for accessibility as including reasonable
accommodations that afford equal access to course content, learning activities, assessment, and
other aspects of the learning experience for students with disabilities. Id.
902 DREXEL LAW REVIEW [Vol. 13:869
as a modification.
140
The ESSA, which governs K-12 public
education policy, references UDL in its passages.
141
It mentions
local educational agencies’ use of technology “consistent with
the principles of universal design for learning, to support the
learning needs of all students, including children with
disabilities and English learners.”
142
UDL and digital
accessibility aim to improve learning access and reduce barriers
for disabled students, and both are critical to ensuring digital
equity in education.
143
There are important distinctions between
UDL and digital accessibility, however, which have been
known to create conflicts specifically in cases where a lack of
resources compromises digital accessibility in favor of the
appearance of UDL.
144
For example, some schools may prohibit
students from audio or video recording lectures (a common
practice in UDL) because the recordings may not include
accurate captions (a necessary accessibility practice).
145
This
seeming conflict underscores a concern expressed by advocates
of UDL who also understand the limitations of school budgets
and the flaws of the UDL approach with respect to meeting the
specialized needs of students with disabilities, especially those
in impoverished rural and urban schools.
146
An access-centered
approach to education would recognize the equal importance
of enabling all students (not just those with specified disabilities
or diagnoses, such as being hard of hearing, or having ADD or
auditory processing disabilities) to have access to audio or
140
. See id.
141
. Every Student Succeeds Act of 2015, Pub. L. No. 114-95, § 1111, 129 Stat. 1802, 1828–29;
Crossland, Gray & Reynolds, supra note 138, at 1.
142
. Every Student Succeeds Act of 2015, § 4104(b)(3)(C)(i)(II).
143
. Crossland, Gray & Reynolds, supra note 138, at 4.
144
. Judy Ableser & Christina Moore, Universal Design for Learning and Digital Accessibility:
Compatible Partners or a Conflicted Marriage?, EDUCAUSE (Sept. 10, 2018), https://er.educause.edu
/articles/2018/9/universal-design-for-learning-and-digital-accessibility-compatible-partners-or-
a-conflicted-marriage.
145
. Id.
146
. Tyson, supra note 70, at 157.
2021] TECHNOLOGY AS A CIVIL RIGHT 903
video recorded lectures, and ensuring that all such recordings
have captions or a transcript as a default.
147
In practical terms, digital accessibility practice allows
students with sensory, physical, and cognitive disabilities to
access digital documents, websites, and applications.
148
People
with disabilities who rely on assistive technology and other
alternative methods of interaction rely on accessibility features
and practices to interface with digital environments.
149
Blind
and low-vision people will be able to interpret information on
digital screens where zoom functions and high contrast colors
are in use.
150
Deaf people will obtain value from captions and
transcripts for video content, and people with motor disabilities
will rely on speech-to-text software or keyboard-based
interaction.
151
People who have speech or language disabilities
will get value from non-vocal methods of interaction online.
152
People with certain physical disabilities may use adapted input
and interface devices like sip and puff input or eye-tracking
input, rather than a standard mouse and keyboard, to access a
computer.
153
Thoughtfully organized and structured page or
interface layouts with clear guidance make screens accessible
for people with cognitive disabilities.
154
Nonetheless, access-centered teaching and learning require
more than merely enabling access within specific technologies,
services, and devices. It requires addressing systemic and
structural barriers to equal access to technology and education
147
. Ableser & Moore, supra note 144.
148
. Crossland, Gray & Reynolds, supra note 138, at 4.
149
. Id. at 6.
150
. See Ableser & Moore, supra note 144.
151
. See id.; Motor Disabilities: Assistive Technologies, WEBAIM, https://webaim.org/articles
/motor/assistive (Oct. 12, 2012).
152
. Motor Disabilities: Assistive Technologies, supra note 151.
153
. Id. Sip and puff switches “interpret the user’s breath actions as on/off signals, and can
be used for a variety of purposes, from controlling a wheelchair to navigating a computer.” Id.
Eye-tracking devices allow people to navigate internet websites with only their eye movements.
Id.
154
. See Clear Layout and Design, W3C WEB ACCESSIBILITY INITIATIVE, https://www.w3.org
/WAI/perspective-videos/layout/ (Jan. 23, 2019).
904 DREXEL LAW REVIEW [Vol. 13:869
as a whole in the first place, including the pervasive beliefs that
disabled people do not deserve to learn or are incapable of
learning.
155
Access-centered teaching and learning require
attention to and transformation of ableist policies and
pedagogical practices that punish disabled students for
inability to comply, even and especially in the name of
promoting access or educational progress.
156
Aimi Hamraie, for
instance, offered important starting points on how to design
accessible courses during the pandemic that recognize both the
need for basic accessibility and the need for access as an
iterative, adaptive, fluid, and relational practice that takes into
account the ways that all people—disabled and nondisabled
alike—move, think, learn, sense, communicate, and express
differently and at different paces.
157
What does it mean for
teachers of young children or postgraduate students to account
for cognitive processes overwhelmed by chronic fatigue or
pain, complex and compounded trauma, or the exhaustion of
having to navigate an ableist society day after day? Students
may be able to access a re-designed video conferencing app or
course management system, but how do their teachers or
professors expect or require them to demonstrate aptitude and
achievement? The system can become superficially accessible or
universally designed, while the pedagogy remains ableist,
rooted in assumptions about what a successful and intelligent
student is able to do, and how quickly and in what manner they
are able to do it.
158
155
. See supra Part I; Paul Gorski & Christine Clark, Multicultural Education and the Digital
Divide: Focus on Disability, 4 MULTICULTURAL PERSPS. 28, 30–33 (2002).
156
. See Gorski & Clark, supra note 155.
157
. Aimi Hamraie, Accessible Teaching in the Time of COVID-19, CRITICAL DESIGN LAB (Mar.
10, 2020), https://www.mapping-access.com/blog-1/2020/3/10/accessible-teaching-in-the-time-
of-covid-19.
158
. See Gorski & Clark, supra note 155.
2021] TECHNOLOGY AS A CIVIL RIGHT 905
CONCLUSION: INACCESSIBILITY AND MARGINALIZATION AT COST
TO SOCIETY
Technology in some form has long been part of educational
services provisions and, at least in the past twenty years,
pedagogical design integrates digital technologies to bolster
educational quality and transmit important digital
competencies.
159
However, institutionalized ableism shows up
in pedagogical design in a number of ways, e.g., in the lack of
access to affordable adaptive equipment, and the absence of
training and educational opportunity that would adequately
support students with disabilities.
160
It is also reflected in the
attitudes of the people in educational institutions and wrongly-
held assumptions that students with disabilities do not need or
could not benefit from access to computers or the internet, and
a general lack of attention (whether intentional or inadvertent)
to disabled people’s specific information technology needs.
161
This ableism is also apparent in the widespread lack of
compliance with website accessibility standards for physical,
sensory, language, and cognitive access.
162
As of 2020, 98% of all web content fully failed to comply with
the minimum guideline requirements of the Web Content
Accessibility Guidelines (WCAG).
163
This level of neglect is less
159
. See Ableser & Moore, supra note 144 (explaining how complying with Section 508 of
Rehabilitation Act required educational institutions to “completely overhaul their websites and
instructional content”); Crossland, Gray & Reynolds, supra note 138, at 6.
160
. See Gorski & Clark, supra note 155, at 30–31 (2002).
161
. Id. at 31.
162
. See Brown, supra note 83; ACCESSIBE, WEB ACCESSIBILITY ANNUAL REPORT 2020, at 3
(2020).
163
. ACCESSIBE, supra note 162. The Web Content Accessibility Guidelines are published by
the Web Accessibility Initiative of the World Wide Web Consortium. Web Content Accessibility
Guidelines (WCAG) Overview, W3C WEB ACCESSIBILITY INITIATIVE (Oct. 17, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag. These guidelines apply to a variety of
web technologies including software and digital documents and they are designed to also apply
to new advances in technology. Crossland, Gray & Reynolds, supra note 138, at 3. The four
principles of WCAG create a single standard for web content accessibility. They include: (1)
Perceivability—for example, providing text alternatives to non-text content, creating content
that is versatile in that it can be presented in different ways including assistive technology with
high fidelity; (2) Operability—assuring that all functions are available from a keyboard, and
906 DREXEL LAW REVIEW [Vol. 13:869
of a “gap” and more of an inaccessibility canyon, showing a
consistent disregard for the needs of disabled people, even well
before the pandemic.
164
As we have discussed at length, the
more than 124,000 closed K-12 schools—not to mention colleges
and universities—scrambled to enable online access for
students who suddenly found themselves trying to learn at
home, some with more success and resources than others.
165
The
digital transformation of American society happened almost
overnight, alienating and leaving behind many students with
disabilities, and who now have an accelerated need for
accessible online classes and services.
166
There is a direct
relationship between the marginalization that students with
disabilities experience in the educational system and the
marginalization of disabled people throughout all other aspects
of society.
167
Ableist structures, systems, and processes deny
and deprive students with disabilities the ability to acquire the
skills and resources necessary to learn and participate in
society. The costs are enormous, including disparities in
employment, technological skills, poverty, and engagement in
society more broadly.
168
Disabled people are at least twice as
likely to become impoverished than people without disabilities,
ensuring that designed content does not cause seizures; (3) Understandability—text should be
readable and understandable, and should appear and operate in predictable ways; and (4)
Robustness—maximizing compatibility with current and future user tools. Id.
164
. According to a 2019 report by 3Play Media, a company that provides captioning,
transcription, and audio description services, lawsuits over web accessibility are filed at the rate
of once every working hour. See Katz, supra note 74. In the first quarter of 2020, more than 500
digital accessibility lawsuits were filed. See Miron, supra note 86.
165
. Holly Peele & Maya Riser-Kositsky, Map: Coronavirus and School Closures in 2019-2020,
EDUC.WK., https://www.edweek.org/leadership/map-coronavirus-and-school-closures-in-
2019-2020/2020/03 (Sept. 16, 2020).
166
. See Anderson & Perrin, supra note 62.
167
. Amy Milsom, Creating Positive School Experiences for Students with Disabilities, 10 SAGE
66, 68 (2006) (discussing how people with disabilities can internalize negative attitudes from
teachers, which can affect the behavior, relationships, education, employment and health of
people with disabilities in the future).
168
. See Highlighting Disability/Poverty Connection, NCD Urges Congress to Alter Federal
Policies that Disadvantage People with Disabilities, NAT’L COUNCIL ON DISABILITY (Oct. 26, 2017),
https://ncd.gov/newsroom/2017/disability-poverty-connection-2017-progress-report-release.
2021] TECHNOLOGY AS A CIVIL RIGHT 907
which undoubtedly contributes to the relatively fewer number
of disabled people with internet access today.
169
Yet when many disabled people have also long found
connection, community, and culture online—especially many
communities of multiply marginalized disabled people—
internet access becomes even more important for our future and
as a tool to broaden and increase access in all parts of our
lives.
170
Disabled people who have benefited from online
learning and work before the pandemic already knew that
greater flexibility and adaptations enabled by technology can
offer both more access to work and pleasure, and can widen and
deepen disparities impacting disabled people deprived of
access to those same technologies as they become ubiquitous.
171
Students of all ages have experienced a unique collective
trauma because of the COVID-19 pandemic—the challenge
before technology and disability advocates now is how we
might maximize use of and access to technologies that enable
access, while honoring the principles of disability justice and
access-centered learning in a time of mass unwellness where
things cannot continue as usual.
172
169
. Id.
170
. See, e.g., s.e. smith, Why Aren’t More Disabled People Online?, ROOTED RTS. (July 5, 2017),
https://rootedinrights.org/why-arent-more-disabled-people-online/; Jim Sinclair, Cultural
Commentary: Being Autistic Together, 30 DISABILITY STUD. Q. (2010), https://dsq-
sds.org/article/view/1075/1248; s.e. smith, How Disabled People Find a Lifeline in the Online World,
DAZED DIG. (Jan. 5, 2018), https://www.dazeddigital.com/science-tech/article/38504/1/how-
disabled-people-find-a-lifeline-in-the-online-world.
171
. Imani Barbarin, Opinion, Coronavirus Made Accessibility a Priority. It Should Stay that Way
When the Pandemic Ends., PHILA. INQUIRER (Mar. 31, 2020), https://www.inquirer.com/health
/coronavirus/coronavirus-pennsylvania-disability-accessibility-accommodations-
20200331.html.
172
. Mimi Khúc, Lecture at Georgetown University, Anguish and Ableism in the Academy:
The Professor Is Ill (Mar. 30, 2019) (“We live and work within a machine that makes us unwell
while not allowing us to be unwell, and punishes us for being unwell and asks us to punish
others for being unwell so that we can prove we are well.”).
