[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2138 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 2138

    To authorize the creation of a commission to develop voluntary 
  accessibility guidelines for electronic instructional materials and 
  related technologies used in postsecondary education, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2017

 Ms. Warren (for herself and Mr. Hatch) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
    To authorize the creation of a commission to develop voluntary 
  accessibility guidelines for electronic instructional materials and 
  related technologies used in postsecondary education, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Accessible Instructional Materials 
in Higher Education Act'' or the ``AIM HIGH Act''.

SEC. 2. COMMISSION STRUCTURE.

    (a) Establishment of Commission.--
            (1) In general.--
                    (A) Development of voluntary guidelines.--The 
                Speaker of the House of Representatives, the President 
                pro tempore of the Senate, and the Secretary of 
                Education shall establish an independent commission 
                (referred to in this Act as the ``Commission''), 
                comprised of key stakeholders, to develop voluntary 
                guidelines for accessible postsecondary electronic 
                instructional materials and related technologies in 
                order--
                            (i) to ensure students with disabilities 
                        are afforded the same educational benefits 
                        provided to nondisabled students through the 
                        use of postsecondary electronic instructional 
                        materials and related technologies;
                            (ii) to inform better the selection and use 
                        of such materials and technologies at 
                        institutions of higher education; and
                            (iii) to encourage entities that produce 
                        such materials and technologies to make 
                        accessible versions more readily available in 
                        the market.
                    (B) Review of standards.--In developing the 
                guidelines under subparagraph (A), the Commission shall 
                review applicable national and international 
                information technology accessibility standards, which 
                it will compile and annotate as an additional 
                information resource for institutions of higher 
                education and companies that service the higher 
                education market.
            (2) Membership.--
                    (A) Stakeholder groups.--The Commission shall be 
                composed of representatives from the following 
                categories:
                            (i) Disability.--Communities of persons 
                        with disabilities for whom the accessibility of 
                        postsecondary electronic instructional 
                        materials and related technologies is a 
                        significant factor in ensuring equal 
                        participation in higher education, and 
                        nonprofit organizations that provide accessible 
                        electronic materials to these communities.
                            (ii) Higher education.--Higher education 
                        leadership, which includes: university 
                        presidents, provosts, deans, vice presidents, 
                        deans of libraries, chief information officers, 
                        and other senior institutional executives.
                            (iii) Industry.--Relevant industry 
                        representatives, meaning--
                                    (I) developers of postsecondary 
                                electronic instructional materials; and
                                    (II) manufacturers of related 
                                technologies.
                    (B) Appointment of members.--The Commission members 
                shall be appointed as follows:
                            (i) Six members, two from each category 
                        described in subparagraph (A), shall be 
                        appointed by the Speaker of the House of 
                        Representatives, three of whom shall be 
                        appointed on the recommendation of the majority 
                        leader of the House of Representatives and 
                        three of whom shall be appointed on the 
                        recommendation of the minority leader of the 
                        House of Representatives, with the Speaker 
                        ensuring that 1 developer of postsecondary 
                        electronic instructional materials and 1 
                        manufacturer of related technologies are 
                        appointed. In addition to the 6 members, the 
                        Speaker shall also appoint 2 additional 
                        members, 1 student with a disability and 1 
                        faculty member from an institution of higher 
                        education.
                            (ii) Six members, two from each category 
                        described in subparagraph (A), shall be 
                        appointed by the President pro tempore of the 
                        Senate, three of whom shall be appointed on the 
                        recommendation of the majority leader of the 
                        Senate and three of whom shall be appointed on 
                        the recommendation of the minority leader of 
                        the Senate, with the President pro tempore 
                        ensuring that 1 developer of postsecondary 
                        electronic instructional materials and 1 
                        manufacturer of related technologies are 
                        appointed. In addition to the 6 members, the 
                        President pro tempore shall also appoint 2 
                        additional members, 1 student with a disability 
                        and 1 faculty member from an institution of 
                        higher education.
                            (iii) Three members, each of whom shall 
                        possess extensive, demonstrated technical 
                        expertise in the development and implementation 
                        of accessible postsecondary electronic 
                        instructional materials, shall be appointed by 
                        the Secretary of Education. One of these 
                        members shall represent postsecondary students 
                        with disabilities, one shall represent higher 
                        education leadership, and one shall represent 
                        developers of postsecondary electronic 
                        instructional materials.
                    (C) Eligibility to serve on the commission.--
                Federal employees are ineligible for appointment to the 
                Commission. An appointee to a volunteer or advisory 
                position with a Federal agency or related advisory body 
                may be appointed to the Commission if the primary 
                employment of such appointee is with a non-Federal 
                entity and the appointee is not otherwise engaged in 
                financially compensated work on behalf of the Federal 
                Government, exclusive of any standard expense 
                reimbursement or grant-funded activities.
    (b) Authority and Administration.--
            (1) Authority.--The Commission's execution of its duties 
        shall be independent of the Secretary of Education, the 
        Attorney General, and the head of any other agency or 
        department of the Federal Government with regulatory or 
        standard setting authority in the areas addressed by the 
        Commission.
            (2) Administration.--
                    (A) Staffing.--There shall be no permanent staffing 
                for the Commission.
                    (B) Leadership.--Commission members shall elect a 
                chairperson from among the 19 appointees to the 
                Commission.
                    (C) Administrative support.--The Commission shall 
                be provided administrative support, as needed, by the 
                Secretary of Education through the Office of 
                Postsecondary Education of the Department of Education.

SEC. 3. DUTIES OF THE COMMISSION.

    (a) Development of Voluntary Guidelines.--Not later than 18 months 
after the date of enactment of this Act, subject to a 6-month extension 
that it may exercise at its discretion, the Commission shall--
            (1) develop and issue voluntary guidelines for accessible 
        postsecondary electronic instructional materials and related 
        technologies; and
            (2) in developing the voluntary guidelines--
                    (A) establish a technical panel pursuant to 
                subsection (d) to support the Commission in developing 
                the voluntary guidelines;
                    (B) develop criteria for determining which 
                materials and technologies constitute ``postsecondary 
                electronic instructional materials'' and ``related 
                technologies'' as defined in paragraphs (5) and (6) of 
                section 6;
                    (C) identify existing national and international 
                accessibility standards that are relevant to student 
                use of postsecondary electronic instructional materials 
                and related technologies at institutions of higher 
                education;
                    (D) identify and address any unique pedagogical and 
                accessibility requirements of postsecondary electronic 
                instructional materials and related technologies that 
                are not addressed, or not adequately addressed, by the 
                identified, relevant existing accessibility standards;
                    (E) identify those aspects of accessibility, and 
                types of postsecondary electronic instructional 
                materials and related technologies, for which the 
                Commission cannot produce guidelines or which cannot be 
                addressed by existing accessibility standards due to--
                            (i) inherent limitations of commercially 
                        available technologies; or
                            (ii) the challenges posed by a specific 
                        category of disability that covers a wide 
                        spectrum of impairments and capabilities which 
                        makes it difficult to assess the benefits from 
                        particular guidelines on a categorical basis;
                    (F) ensure that the voluntary guidelines are 
                consistent with the requirements of section 504 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 794) and titles 
                II and III of the Americans with Disabilities Act of 
                1990 (42 U.S.C. 12131 et seq.; 42 U.S.C. 12181 et 
                seq.);
                    (G) ensure that the voluntary guidelines are 
                consistent, to the extent feasible and appropriate, 
                with the technical and functional performance criteria 
                included in the national and international 
                accessibility standards identified by the commission as 
                relevant to student use of postsecondary electronic 
                instructional materials and related technologies;
                    (H) allow for the use of an alternative design or 
                technology that results in substantially equivalent or 
                greater accessibility and usability by individuals with 
                disabilities than would be provided by compliance with 
                the voluntary guidelines; and
                    (I) provide that where postsecondary electronic 
                instructional materials or related technologies that 
                comply fully with the voluntary guidelines are not 
                commercially available, or where such compliance is not 
                technically feasible, the institution may select the 
                product that best meets the voluntary guidelines 
                consistent with the institution's business and 
                pedagogical needs.
    (b) Development of Annotated List of Information Technology 
Standards.--Not later than 18 months after the date of enactment of 
this Act, subject to a 6-month extension that it may exercise at its 
discretion, the Commission shall, with the assistance of the technical 
panel established under subsection (d), develop and issue an annotated 
list of information technology standards intended to serve solely as a 
reference tool to inform any consideration of the relevance of such 
standards in higher education contexts.
    (c) Supermajority Approval.--Issuance of the voluntary guidelines 
and annotated list of information technology standards shall require 
approval of not less than 75 percent (not less than fifteen of the 19 
members) of the Commission.
    (d) Establishment of Technical Panel.--Not later than 1 month after 
the Commission's first meeting, the Commission shall appoint and 
convene a panel of 12 technical experts, each of whom shall have 
extensive, demonstrated technical experience in developing, 
researching, or implementing accessible postsecondary electronic 
instructional materials or related technologies. The Commission has 
discretion to determine a process for nominating, vetting, and 
confirming a panel of experts that fairly represents the stakeholder 
communities on the Commission. The technical panel shall include a 
representative from the United States Access Board.

SEC. 4. PERIODIC REVIEW AND REVISION OF VOLUNTARY GUIDELINES.

    Not later than 5 years after issuance of the voluntary guidelines 
and annotated list of information technology standards described in 
subsections (a) and (b) of section 3, and every 5 years thereafter, the 
Secretary of Education shall publish a notice in the Federal Register 
requesting public comment about whether there is a need to reconstitute 
the Commission to update the voluntary guidelines and annotated list of 
information technology standards to reflect technological advances, 
changes in postsecondary electronic instructional materials and related 
technologies, or updated national and international accessibility 
standards. The Secretary of Education shall submit a report to Congress 
summarizing the public comments and presenting the Secretary's decision 
on whether to reconstitute the Commission based on those comments. If 
the Secretary of Education decides to reconstitute the Commission, the 
Secretary may implement that decision 30 days after the date on which 
the report was submitted to Congress. That process shall begin with the 
Secretary requesting the appointment of Commission members in 
accordance with section 2(a)(2)(B).

SEC. 5. CONSTRUCTION.

    (a) Nonconforming Materials or Related Technologies.--Nothing in 
this Act shall be construed to require an institution of higher 
education to require, provide, or both recommend and provide, 
postsecondary electronic instructional materials or related 
technologies that conform to the voluntary guidelines. However, whether 
or not an institution selects or uses nonconforming materials or 
related technologies, the institution shall comply with existing 
obligations under section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) and titles II and III of the Americans with Disabilities 
Act of 1990 (42 U.S.C. 12131 et seq.; 42 U.S.C. 12181 et seq.) to 
provide access to the educational benefit afforded by such materials 
and technologies through provision of appropriate and reasonable 
modification, accommodation, and auxiliary aids or services.
    (b) Relationship to Existing Laws and Regulations.--With respect to 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) 
and the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), nothing in 
this Act may be construed--
            (1) to authorize or require conduct prohibited under the 
        Americans with Disabilities Act of 1990 and the Rehabilitation 
        Act of 1973, including the regulations issued pursuant to those 
        laws;
            (2) to expand, limit, or alter the remedies or defenses 
        under the Americans with Disabilities Act of 1990 and the 
        Rehabilitation Act of 1973;
            (3) to supersede, restrict, or limit the application of the 
        Americans with Disabilities Act of 1990 and the Rehabilitation 
        Act of 1973; or
            (4) to limit the authority of Federal agencies to issue 
        regulations pursuant to the Americans with Disabilities Act of 
        1990 and the Rehabilitation Act of 1973.
    (c) Voluntary Nature of the Products of the Commission.--
            (1) Voluntary guidelines.--
                    (A) Intent.--It is the intent of Congress that use 
                of the voluntary guidelines developed pursuant to this 
                Act is and should remain voluntary. The voluntary 
                guidelines shall not confer any rights or impose any 
                obligations on Commission participants, institutions of 
                higher education, or other persons.
                    (B) Restriction.--
                            (i) In general.--No department or agency of 
                        the Federal Government may incorporate the 
                        voluntary guidelines developed pursuant to this 
                        Act, whether produced as a discrete document or 
                        electronic resource, into regulations 
                        promulgated under the Rehabilitation Act of 
                        1973 (29 U.S.C. 701 et seq.), the Americans 
                        with Disabilities Act of 1990 (42 U.S.C. 12101 
                        et seq.), or any other Federal law or 
                        instrument.
                            (ii) Application.--The restriction under 
                        clause (i)--
                                    (I) applies only to the voluntary 
                                guidelines as a discrete document or 
                                resource; and
                                    (II) imposes no limitation on 
                                Federal use of standards or resources 
                                to which the voluntary guidelines may 
                                refer.
            (2) Annotated list.--
                    (A) Intent.--It is the intent of Congress that use 
                of the annotated list of information technology 
                standards developed pursuant to this Act is and should 
                remain voluntary. The annotated list of information 
                technology standards shall not confer any rights or 
                impose any obligations on Commission participants, 
                institutions of higher education, or other persons.
                    (B) Restriction.--
                            (i) In general.--No department or agency of 
                        the Federal Government may incorporate the 
                        annotated list of information technology 
                        standards developed pursuant to this Act, 
                        whether produced as a discrete document or 
                        electronic resource, into regulations 
                        promulgated under the Rehabilitation Act of 
                        1973 (29 U.S.C. 701 et seq.), the Americans 
                        with Disabilities Act of 1990 (42 U.S.C. 12101 
                        et seq.), or any other Federal law or 
                        instrument.
                            (ii) Application.--The restriction under 
                        clause (i)--
                                    (I) applies only to the annotated 
                                list of information technology 
                                standards as a discrete document or 
                                resource; and
                                    (II) imposes no limitation on 
                                Federal use of standards or resources 
                                to which the annotated list of 
                                information technology standards may 
                                refer.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Annotated list of information technology standards.--
        The term ``annotated list of information technology standards'' 
        means a list of existing national and international 
        accessibility standards relevant to student use of 
        postsecondary electronic instructional materials and related 
        technologies, and to other types of information technology 
        common to institutions of higher education (such as 
        institutional websites and class registration systems), 
        annotated by the Commission to provide information about the 
        applicability of such standards in higher education settings.
            (2) Disability.--The term ``disability'' has the meaning 
        given such term in section 3 of the Americans with Disabilities 
        Act of 1990 (42 U.S.C. 12102).
            (3) Institution of higher education.--The term 
        ``institution of higher education'' has the meaning given such 
        term in section 101 of the Higher Education Act of 1965 (20 
        U.S.C. 1001).
            (4) Nonconforming materials or related technologies.--The 
        term ``nonconforming materials or related technologies'' means 
        postsecondary electronic instructional materials or related 
        technologies that do not conform to the voluntary guidelines 
        developed pursuant to this Act.
            (5) Postsecondary electronic instructional materials.--The 
        term ``postsecondary electronic instructional materials'' means 
        digital curricular content that is required, provided, or both 
        recommended and provided by an institution of higher education 
        for use in a postsecondary instructional program.
            (6) Related technologies.--The term ``related 
        technologies'' refers to any software, application, learning 
        management or content management system, or hardware that an 
        institution of higher education requires, provides, or both 
        recommends and provides for student access to and use of 
        postsecondary electronic instructional materials in a 
        postsecondary instructional program.
            (7) Technical panel.--The term ``technical panel'' means a 
        group of experts with extensive, demonstrated technical 
        experience in the development and implementation of 
        accessibility features for postsecondary electronic 
        instructional materials and related technologies, established 
        by the Commission pursuant to section 3(d), which assists the 
        Commission in the development of the voluntary guidelines and 
        annotated list of information technology standards authorized 
        under this Act.
            (8) Voluntary guidelines.--The term ``voluntary 
        guidelines'' means a set of technical and functional 
        performance criteria developed by the Commission that provide 
        specific guidance regarding both the accessibility and 
        pedagogical functionality of postsecondary electronic 
        instructional materials and related technologies not addressed, 
        or not adequately addressed, by existing accessibility 
        standards.
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