Last Tuesday, the Department of Justice's comment period for it's draft Title II web accessibility rule closed. At Converge, we were asked to help write comments on behalf of one of our clients and also submitted our own. Here is a link to the PDF version of our comments. But who wants to read a PDF, right?
Quick Summary of What DOJ Proposed
In a nutshell, the DOJ's Notice of Proposed Rulemaking (NPRM) requires that state and local government websites comply with the Web Content Accessibility Guidelines (WCAG) 2.1 A/AA. At the same time, it creates several categories of exceptions:
- Archived Web Content
- Pre-Existing Conventional Electronic Documents
- Web Content Posted by a Third Party on a Public Entity’s Website
- Third-Party Content Linked from a Public Entity’s Website
- Password-Protected Class or Course Content of Public Educational Institutions
- Public Postsecondary Institutions: Password-Protected Web Content
- Public Elementary and Secondary Schools: Password-Protected Web Content
- Individualized, Password-Protected Documents
WCAG Compliance Should be a Safe Harbor
As much as we love the idea of state and local governments making their websites accessible, the practical reality is that they can't do it because the vendors that support them don't make accessible products. From working with a lot of state and local governments, we've found that local governments use dozens of specialized web applications for the services they offer. For instance, they use one product for their records, another one for payments of fees, and a third one for booking appointments. When you add them all up, even a small city can use two dozen or more web applications. We've also learned that the products that these vendors create have a lot of accessibility problems and that the vendors have little awareness of accessibility. The vendors in this space also tend not to work with federal agencies-- so they do not have the history of working with Section 508 like vendors in the federal space.
WCAG 2.1 A/AA compliance is also a tough standard to meet because it requires manual testing of every page. On government websites, where content is constantly changing as new updates and announcements are made, WCAG 21 A/AA compliance is an impossible standard to meet.
Instead of focusing on technical compliance with WCAG, the Department should focus on functional outcomes for people with disabilities while keeping its sights on WCAG. We proposed that the regulation ensure that the programs, services, and activities made available through its web sites and mobile apps provide effective communication and equal access to people with disabilities and that WCAG 2.1 A/AA compliance will be deemed to satisfy this requirement. This approach keeps the focus squarely on meeting WCAG but, if a local government can't meet WCAG, it still needs to show that the services made available through that web application or mobile app is accessible.
The Exceptions MUST be Removed or Limited
Using our safe harbor approach eliminates the need for any of the exceptions listed in the proposed rule. But if DOJ insists on keeping the exceptions, here is a summary of our position.
- Archived Web Content and Pre-Existing Conventional Electronic Documents. Once the first person makes a request for archived web content to be made accessible, the public entity should replace the inaccessible version with the accessible one.
- Web Content Posted by a Third Party on a Public Entity’s Website. The key part missing here is that it doesn't mention that third-party content that is important to accessing government programs is not exempted. As it's written, it could potentially include exempting entire web applications.
- Third-Party Content Linked from a Public Entity’s Website. Oddly, this exception does mention that third-party content relevant to a government's services is not exempted. That makes this exception barely squeak by our test.
- Password-Protected Educational Content. DOJ proposed three exceptions here and they are a complete disaster. They perpetuate discrimination against students with disabilities, give digital publishers no incentive to create accessible content, and put local governments in the impossible position of making inaccessible course content accessible within a ridiculously short (five business day) time period. Seriously, if DOJ wanted to pull the rug from underneath anyone, why should it be kids with disabilities?
- Individualized, Password-Protected Documents. This exception is too broad because some documents (like templated documents) are easy to make accessible if the template is accessible. Plus, once a person with a disability makes the first request stating that they need accessible versions of documents, the public entity should have to always provide her with accessible versions.
You Can Still Comment!
Comments were due on Tuesday, October 3. This doesn't mean that your voce won't count if you file your opinion late. DOJ says that they reserve the right to not consider them, but if you feel strongly, it can't hurt to add your voice to the chorus. Here is the direct link to the proposed regulation on the regulations.gov website.
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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