Introduction

DOJ Announces New Title II ADA Web Accessibility Regulation

DOJ Announces New Title II ADA Web Accessibility Regulation

I'll make this quick. A few minutes ago, my wife (Laura Ruby) gave me a heads up that my old office at the U.S. Department of Justice announced a new regulation for web accessibility under Title II of the Americans with Disabilities Act.

Why is this Relevant?

Title II of the ADA describes the non-discrimination obligations for U.S. state and local governments. Therefore, this rule will clarify what state and local governments need to do to make sure that their web-based programs, services, and activities are accessible to people with disabilities.

Why Should We Be Excited About This Regulation?

This development is exciting for two reasons.

First and most obviously, state and local governments need clear rules for what they are expected to do with their websites. While most of them have known for years that their websites were covered by the ADA, the lack of clear regulations for websites meant that websites were generally put on the back burner. Yet, COVID-19 has shown that web-based services are absolutely essential for state and local governments.

Second, the development defied my past cynicism. About six months ago, I blogged about my disappointment in DOJ's latest web accessibility guidance. To give a quick recap, I was disappointed because that guidance basically repeated the same guidance I created back in 2003. But I also said that what we needed were regulations-- not just guidance.

In March, I predicted in my post that DOJ wouldn't be coming out with those regulations in the coming year... or ever. I'm not going to be so bold as to say that I threw down the gauntlet (why should Justice care about my blog?), but DOJ's timing couldn't have been more perfect. Why? Here's their schedule:

  • Release NPRM: April 2023
  • Close NPRM Comment Period: June 2023

So I was right! DOJ will be coming out with their draft regulation (an "NPRM" or "Notice of Proposed Rulemaking") exactly one year and one month after my prediction! Huzzah!

What We Should Expect the NPRM to Look Like (and How Can We Prepare)?

Want to know what the NPRM will look like? Just read my earlier post and DOJ's Guidance. For the last 20 years, DOJ has been saying the exact same message on what state and local governments need to do with their websites-- what's are the chances that they are going to change course now?

Preparing for the regulations next year is easy. In the short-term, make sure that all of your web-based programs, services, and activities are accessible to people with disabilities. This doesn't necessarily mean instantly making all of your websites accessible. It does mean, however, thinking about the different ways those programs, services, and activities are provided to the public-- and making sure that the avenues of delivery for people with disabilities are accessible and equally convenient. If you are, however, creating new web content or refreshing web content, absolutely focus on meeting the Web Content Accessibility Guidelines 2.1 A/AA.

Why Should We Be Disappointed?

I think that there are three reasons we should still be disappointed or at least very concerned.

  • First, why didn't this regulation get announced earlier? It's 2022 and the first Biden Administration is already half over. This regulation is essential to meeting the needs of people with disabilities in this country and, as the previous guidance suggests, it's an easy regulation because governments have been told the same message for 20 years.
  • Second, DOJ needs to move very fast or this regulation may get scrapped. What happens, after all, if there are delays in the rule making and this process extends well into 2024? In that case, the rule making will likely be suspended due to the upcoming election. And then if the Republicans win the White House, there is a zero percent chance that this regulation will be published.
  • Third, what about the private sector? After all, the flood of litigation recently all concerns Title III of the ADA-- not Title II. This is the harder regulation to create (mostly because of the confusion about the term "place of public accommodation" and the impact on businesses) but it's also the area where clear rules are most needed. Unfortunately, looking down the list of upcoming regulations, a proposed Title III rule is no where to be seen.

Disclaimer

Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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