Barbri, the largest bar preparation company in the United States, was sued in April 2016 for allegedly failing to make their online content accessible under Title III of the Americans with Disabilities Act (ADA). The content at issue includes Barbri’s mobile application, website, and course materials. The plaintiffs seek monetary compensation for blind law students that signed up for Barbri and relied on Barbri’s products and review services to study for their bar exams, only to find that the products and services the students paid for were inaccessible.
The potential class includes potentially hundreds of blind law students who have each paid several thousand dollars to use Barbri’s courses.
Claire Stanley, Dereck Manners, and Christopher Stewart are the three named plaintiffs in the putative class action against Barbri. The potential class includes potentially hundreds of blind law students who have each paid several thousand dollars to use Barbri’s courses. The Texas Civil Rights Project, a legal non-profit organization, is representing the three plaintiffs. Stanley graduated from law school in 2015 and currently works for the District of Columbia Protection and Advocacy agency, a federally mandated organization that protects the legal rights of the disabled.
Stanley paid for, and attempted to use, Barbri’s test preparation services but encountered technical problems with the website’s practice multiple choice testing function, its answer choice key, and its essay architect feature. Stanley took the Pennsylvania bar exam in July 2015 but did not pass. Manners and Stewart are third-year law students who have purchased Barbri as a bar preparation course and plan to take the July 2016 bar examination. They have both requested accommodations for the Barbri course.
On its website, Barbri states that they “compl[y] with the Americans with Disabilities Act (ADA) and provide appropriate auxiliary aids and services to students with disabilities.” However, when Stanley contacted Barbri about the technical problems with its website, they refused to alter its content. Stanley Barbri’s website allowed Stanley to read the practice questions with her screen reader, a program that allows the blind and visually impaired to use computers, but the website prevented Stanley from accessing the answer choices in the “MPQ Question Sets.” Additionally, Barbri’s website did not allow Stanley’s screen reader program to read the multiple choice questions and answers line by line. Barbri instructs its users to read the “call to question” before reading the fact pattern, but the format of the website prevented Stanley’s screen reader from doing so.
Barbri’s “Essay Architect” feature requires students to drag and drop phrases to better organize their essays after receiving feedback on their writing in the margins of the essay. However, Barbri allegedly failed to make this drag and drop feature accessible both online with Stanley’s screen reader and with its iOS app. Stanley also requested an accessible PDF version of her books and study materials. Stanley argues that the PDF she received, which did not feature page numbers detectable by her screen reader, made it unnecessarily difficult for Stanley to find specific sections of the textbook that were mentioned in lectures as well as finding pages mentioned in the online planner. Lastly, Barbri allegedly supplied materials with inaccurate braille italics indicators, with a braille italics symbol in front of every italicized word instead of one italics symbol at the beginning of the italicized passage and one symbol at the end of the passage. Stanley allegedly contacted Barbri’s National ADA director about the issues with the course but Barbri did not respond.
As a provider of bar preparation courses and materials related to professional and postsecondary education, Barbri is subject to section 12189 of the ADA and must offer alternative accessible arrangements for disabled individuals who pay for their products and services.
Title III of the ADA prohibits discrimination in areas of public accommodation, which includes areas of privately owned businesses that are generally open to the public. Section 12189 of Title III requires that anyone offering “examinations or courses related to…postsecondary education” or for “professional, or trade purposes” must “offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” As a provider of bar preparation courses and materials related to professional and postsecondary education, Barbri is subject to section 12189 of the ADA and must offer alternative accessible arrangements for disabled individuals who pay for their products and services. Companies such as Barbri must make disabled individuals, so long as those accommodations do not fundamentally alter the nature of the company’s goods, services, facilities, etc. A determination of whether an accommodation is reasonable under the ADA is a fact-specific, case-by-case analysis that considers the effectiveness of the accommodation in relation to the nature of the disability and the cost to the entity that would implement it.
The recent suit against Barbri is not the first web accessibility case to be litigated, with approximately 40 similar web accessibility cases brought in 2015 alone.
The recent suit against Barbri is not the first web accessibility case to be litigated, with approximately 40 similar web accessibility cases brought in 2015 alone. Other companies who have been sued for failing to make their websites accessible under the ADA include: Amazon, Disney, LSAC, and many others. In the suit against LSAC, similar accessibility concerns were raised, with the LSAC reaching a settlement agreement with the National Federation of the Blind, the organization representing the visually impaired plaintiffs. Stanley was also a plaintiff in the NFB’s class action against LSAC, in which the LSAC agreed to provide website accessibility training to employees responsible for coding.
In 2010, the Department of Justice provided advance notice of proposed rulemaking on the accessibility of web information and services provided by entities covered under the ADA; this includes companies like Barbri. However, since 2010 the Department of Justice has failed to issue the promised guidelines. Organizations such as the World Wide Web Consortium are left to provide “best practice” suggestions for software engineers and web developers in the interim. The lack of guidelines has resulted in a legal standard that is difficult to discern and even harder for companies to technically implement.
Many blind people access the internet by using a screen reader, a type of software that vocalizes visual information and allows users to control their computer with keyboard shortcuts. There are several screen reader programs on the market, including JAWS for windows and VoiceOver for Mac. Some blind individuals use their computer with a instead of a screen reader. Both types of assistive technology can be used on Windows machines or Apple machines, but for these programs to function correctly they “require information on the internet to be capable of being rendered into text so that [a] blind computer user may access it.”
The lawsuit against Barbri is significant…because of its “role as the gate-keeper of the legal profession.”
The lawsuit against Barbri is significant, according to a Disability Rights attorney for the Washington Lawyer’s Committee, because of its “role as the gate-keeper of the legal profession.” Goraya sent a letter to Barbri identifying the accessibility issues for blind law students, but the company did not respond with the requested changes. Goraya believes that companies like Barbri need to be mindful of the more diverse needs of law students because, due to advances in technology, individuals from different backgrounds are now more likely to attend law school.
Wayne Krause Yang, the lawyer from Texas Civil Rights Project who is representing the three plaintiffs, stated that Barbri’s refusal to grant reasonable accommodations to the three plaintiffs is a setback for every blind law student because of Barbri’s preeminence in the market.