Life seems so much brighter a week ago when the Disability Rights Section (DRS) at the Department of Justice (DOJ) sent their new web accessibility regulation to the Federal Register. At the time, Associate Attorney General Vanita Gupta, who leads the Civil Rights Division, said, "The issuance of this proposed rule concerning web and mobile app accessibility is a momentous occasion. It is hard to overstate the importance of this rulemaking to the tens of millions of people with disabilities in this country."
Today is such a different time. I'll keep this post short and to the point. The new Title II rule (which DRS put on its website a day before it was supposed to be published) is an absolute disaster. It puts unmanageable burdens on state and local governments. Strangely, it also manages to pull the rug from under the feet of the disability community. And it is written in a way that makes it clear that the only beneficiaries of the rule are consultants and drive-by plaintiffs. Even finding the NPRM is difficult. In fact, I'd say the only thing that DRS got right was writing a great FAQ page that outlines how they managed to bungle things up.
The NPRM Hurts State and Local Governments
The proposed NPRM requires that state and local governments make all of their websites and mobile apps comply with the Web Content Accessibility Guidelines (WCAG) 2.1 A/AA unless they can demonstrate that doing so would impose either an undue burden or fundamental alteration.
Are they crazy? At Converge, we currently work with a reasonably large city that has over 250 website domains that it manages. In total, they likely have over a quarter of a million web pages that they use to offer information and services to their residents. Expecting that city to either remove web pages (which ultimately hurts all residents) or make them fully comply with WCAG is impractical.
Nor is making every page accessible necessary. The basis for requiring web pages to be accessible is the ADA's effective communication requirement. The Department of Justice has never said that "effective" communications always means "perfect" or "immediate" communication; instead, "effective communication" is simply that-- communication that is "effective." So if a deaf patient needs a sign language interpreter at an upcoming doctor's visit, the doctor can require patients to provide a week's notice to book a sign language interpreter.
The approach taken by DOJ is an impractical "all or nothing" approach that serves no one. For instance, every city or local government has web content that is important but not frequently accessed. Because DOJ's regulation requires every page to comply with WCAG, this means that either the City will go bankrupt making every page accessible OR they will claim that it is an undue burden and make none of their web pages accessible. How does that help anyone?
A far better approach is the (albeit controversial) approach taken by California in AB 1757. This approach makes compliance with WCAG 2.1 a presumption of accessibility and not a requirement for accessibility. This approach gives organizations a strong incentive to comply with WCAG 2.1, but still allows them to take other approaches to provide an equally effective means of accessing their goods and services. I think that approach is also more consistent with the guidance that DOJ has been providing for years.
The NPRM Hurts People with Disabilities
While the NPRM does a great job at hurting state and local governments, it somehow also manages to do a great job at hurting people with disabilities. I already talked about how the NPRM's "all or nothing" approach encourages state and local governments to throw up their arms, assert that making their entire website WCAG-compliant constitutes an undue burden, fix nothing, and leave people with disabilities out in the cold. The really outrageous section of the NPRM, however, is how it carves out huge exceptions for digital content that is important for people with disabilities. Let's take a look at those exceptions-- and their potential impact.
- Archived Web Content. This might not seem compelling but remember that, once it is carved out, it is permanently carved out. This means that archived content never needs to be made accessible. So blind historians or students doing research through a City's archives will never be able to access archived web content.
- Preexisting Conventional Electronic Documents. This exception is like "archived web content," only broader. The only thing it gets right is that it does not exempt, "documents [that] are currently used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs, or activities."
- Content Posted by Third Parties. This is a tough one for state and local governments and this exception doesn't bother me.
- Linked Third Party Content. This exception also makes sense. DOJ also does the right thing and notes that this exception does not apply if that third party content is used to deliver programs, services, or activities for the state or local government.
- Password-Protected Public School Content. This exception is remarkable because it clearly undermines the rights of students with disabilities. I understand how educational institutions struggle to make course content accessible to students, but to carve out such a huge exception is unacceptable. The NPRM does exclude course content where the school is given advance notice that a student with a disability will enroll in a course. That exclusion, however, only betrays how out-of-touch DOJ is with education because college students typically add and drop courses constantly. If you are a student with a disability, don't expect to have that luxury anymore if you want accessible course materials.
- Individualized Password-Protected Documents. Really? So my state retirement statements or patient records don't have to be sent to me in an accessible format? In its FAQ's, DOJ notes that the effective communication requirement still applies and that "these documents would generally still need to be provided in an accessible format if a person with a disability requests them." Unfortunately, that's a nuance that isn't clear from the NPRM and will surely be lost on state and local governments.
The NPRM Only Benefits the Wrong People
There are only two groups of people that I see benefitting from this proposed regulation.
- Large Web Accessibility Consultants. One group that will love this proposed regulation is large web consulting companies that can cater to the thousands of state and local governments who suddenly need to make their entire sites comply with WCAG. These companies have armies of manual testers and automated testing solutions that can crawl and scan thousands or millions of web pages. From experience, I also know that some of them charge hundreds of thousands of dollars a year from their clients-- yet hardly make a dent in the accessibility of their clients' websites.
- Serial Plaintiffs. I've always said that serial plaintiffs thrive where the law is vague. They also thrive where defendants face a new or impossible-to-meet burden. There is simply no way that every state and local government will be able to make every web page comply with WCAG 2.1 A/AA-- and the serial plaintiffs know it and will be more than happy to swoop in once the final regulation goes into effect.
What We Need to Do
The answer is simple: kill this regulation.
All of us-- the disability community, state and local governments, and web accessibility experts and advocates-- need to do everything in our power to make sure that this regulation never gets published. The unfortunate reality is that the regulation is beyond "saving" because DOJ painted themselves in a corner (the limited questions that they asked means that they DOJ can only make minimal changes to the existing NPRM text). Instead, we should all advocate for DOJ to pull the current NPRM and just start again.
Updates
(August 4, 2023) Right on schedule, the official draft of the NPRM was published in the Federal Register. For those of you who prefer the old-fashioned look of the paper version (or who want an "offline" version), here's the link to the PDF version of the NPRM.
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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