A Simple Rule that Took Fourteen Years Too Long To Write
In Samuel Beckett's tragically absurd comedy, Waiting for Godot, the play's two main characters (Vladimir and Estragon) discover that they are both waiting for a man whom neither has met named "Godot." As they wait, other characters come and go-- at times engaging in long discussions and at others forgetting that they had ever met. A boy comes along and tells them Godot will be coming in a day but returns the next day, denies ever meeting the two men, and tells them Godot will not be coming. With their purpose lost, Vladimir and Estragon talk about suicide but even that final act is thwarted; the curtain drops without the story properly ending.
To me, Waiting for Godot is a farce of dashed hopes and pointless actions; it is the absurdity of life compressed into two acts. Waiting for DOJ to release its final rule for the past fourteen years has felt the same way. It started all the way back in 2010 (yes, fourteen years ago) when the Department of Justice announced that it would be developing a rule for web accessibility. Then, they issued one supplemental NPRM after another. Each time, it felt like no one at the Justice Department was listening-- or even aware of what they were asking. A lot of us (including this author) spent a lot of time and emotional energy hoping to contribute so DOJ would get things right. Then, in 2017, they scrapped the effort. Then, as if awakening from a long coma, DOJ resurrected its rulemaking effort anew in 2023. As soon as the rule came out, I thought it was a disaster. In Waiting for Godot, Vladimir and Estragon want to strangle the young boy who denies knowing them and who tells them Godot is never coming. I think a lot of us felt the same way when they read the DOJ NPRM.
Well the final rule was published today! After all this waiting, however, I neither love it nor hate it. Like the curtain drop in Beckett's play, it is anti-climatic. Yes, I think it a far better than the NPRM. Does it miss a lot of opportunities? Absolutely. But it also gets a lot of things right. One thing is sure, however-- it should not have taken fourteen years to get this rule out.
What Does the Rule Say?
The final rule itself is 320 pages long. The quickest way to understand the rule is to go directly to the fact sheet. Lawyers, however, like to see the black-and-white text of what they have to do, which takes up only seven pages of the 320 pages of analysis. Jump to page 54 if you'd like to see what it says.
So what are the requirements? Here's the summary:
- State and local governments must make their websites and mobile apps comply with WCAG 2.1 A/AA. Bigger entities (population 50,000 or more) have two years to comply while others get three years.
- The following categories of content never have to comply with WCAG 2.1 A/AA
- Archived web content
- Preexisting conventional electronic documents
- Content posted by a third party
- Individualized, password-protected or otherwise secured conventional electronic documents
- Preexisting social media posts
- The rule allows for conforming alternate versions and equivalent facilitation. It also includes the usual defenses and processes for fundamental alteration and undue burden. It doesn't specifically state "direct threat" as a third defense but I think that's assumed.
- The rule also includes a (huge) exemption if the state and local government can show that the manner in which they make their programs accessible provides "substantially equivalent" access.
What Do I Like About the Rule?
Really, I thought that the original NPRM was a train wreck-- and I had no qualms using that image to describe it. Frankly, the single best quality of the final rule is that it isn't the NPRM! Seriously, however, there are three elements of the NPRM that I like.
- Educational Content. The original rule exempted password-protected educational content from coverage. This made no sense to me because it just pulled the rug from under students with disabilities. To mitigate the effects of this exemption, the NPRM also created a series of complicated "exceptions to the exception" based on factors like when the student registered for classes. DOJ did the right thing by eliminating the exception altogether.
- "No Harm No Foul" Exemption for Local Governments. I'm going out on a limb here and saying that I like Section 35.205, which allows state and local governments to use inaccessible technologies if they can show that their means of providing that access is "substantially equivalent" to having fully accessible technology. The wording of the limitation makes it clear that the burden of proof is on the state and local government-- so they shouldn't use it unless they have to. Ultimately, Title II is a civil rights law and not a technology law (like Section 508). This means that the key focus is seamless and equivalent access to the programs-- not the whiz bang technology. Making every obscure corner of a state or local government website fully comply with WCAG 2.1 A/AA is impossible for all but the most basic website; section 35.205 makes it workable, however. UPDATE (11/25/24): I've had second thoughts about any flexibility in the new DOJ Rule. See my later post, How to Comply with DOJ's Seemingly Impossible Web Accessibility Regulation.
- Aside: Shout Out to Colorado. Section 35.205 is new in the final rule because there was nothing like it in the NPRM. Section 11.7(A) of Colorado's new OIT Accessibility Rule, however, includes a suspiciously similar-looking exception where a public entity can demonstrate that people with disabilities are not "substantially hindered" and enjoy "substantially equivalent" access to the program, service, or activity made available through inaccessible technology.
- Two to Three Year Phase In Period. From working with dozens of state and local governments, we've found that the biggest hurdles for state and local government technology is work needed by the vendors who create that technology. Two to three years is an ambitious time schedule to remediate, test, and deploy web and mobile applications, but it is workable... barely.
What Do I Hate About the Rule?
Nothing is perfect. While I don't hate the rule, I do really hate two qualities of it.
- Individualized, Password-Protected Electronic Documents. The final rule keeps several exemptions from the NPRM but none of them frosts me more than the exemption for individualized, password-protected electronic documents. Why? Because most of these documents exist in a system of records and make sense only in context to other (inaccessible) documents in that system of records. What do I mean by that? Well, imagine that you a blind user and you are looking at your lab results for your cholesterol values. While knowing the latest value is important, it's even more important to know what the trend of those values are-- that is, looking at how your current value compares to six months ago. The insulting part is that DOJ recognized this need and described it as part of their rulemaking analysis, ultimately concluding that it was too burdensome to require public entities to make such documents accessible. Some of us commented that this exemption also made no sense because public entities could (and should) use templates to make such documents accessible. Below I've quoted DOJ's response (from page 243 of the rule), which makes less sense the more often I read it. Am I the only one who reads it to say that public entities DO have to make individualized password-protected electronic documents accessible for people with disabilities?
However, some public entities may conclude that it is most efficient or effective to make all individualized, password-protected or otherwise secured conventional electronic documents accessible by using, for example, an accessible template to generate such documents, and this final rule preserves flexibility for public entities that wish to take that approach. This approach is consistent with the broader title II regulatory framework. For example, public utility companies are not required to affirmatively mail accessible bills to all customers. Instead, the companies need only provide accessible bills to those customers who need them because of a disability.
- "Forever" Quality of All Exceptions. The other thing that irks me about the final rule is that it memorializes accessibility exceptions forever. Â What if technology advances to the point that it becomes trivially easy to make legacy documents fully accessible? What if a public entity decides to make a legacy document fully accessible for an individual but decides not to replace the inaccessible version? In both cases, nothing requires the public entity to lift a finger to make their original content accessible. Â DOJ can talk about existing Title II obligations to provide effective communication but that misses the point. Instead, people with disabilities shouldn't have to make a special request if the public entity could have easily made that content accessible and available in the first place.
What Just Annoys Me About the Rule
There are a few things that annoy me about the rule. Some of these are just strange qualities but I can live with them. Here are three examples that pop to mind.
- WCAG 2.1? WCAG 2.2 has been out for months and WCAG 3.0 is around the corner. Some people may claim that this means that DOJ's rule will be out-of-date the moment it gets published in the Federal Register. From a technical perspective, this is completely right. On the other hand, I can see why DOJ wanted to use a stable, very well-understood standard that is backward compatible with future 2.x drafts of WCAG. Is it future proofed? Sort of but not really. Meh... but there are far bigger issues with this rule.
- Population or Entity Size? Different organizations have to be WCAG compliant by different dates-- and the trigger is the population. This makes sense if the rule is focused only on the entire government but it starts to fall apart when we talk about agencies. For instance, why does the five-person animal licensing department of a middle-sized city have to make its website accessible before the main government content management system for a small city? After three years, it won't make a difference because they both have to comply with WCAG but it still doesn't make sense.
- Mobile Apps and WCAG? After all these years, I still don't think DOJ and most lawyers understand that WCAG can't be seamlessly applied to mobile apps. The former is markup using a common set of standards (like HTML, JavaScript and CSS) while the latter is software that can written in dozens of different languages that have nothing to do with each other. Sure, developers can cobble together a basic set of UI requirements from EN 301-549 or the W3C's WCAG2ICT project to map WCAG guidelines to software (sort of), but it annoys me how attorneys on all sides of the issue blithely gloss over this enormous chasm.
What the Rule Should Have Said
I think that the rule could have revolved completely around just two concepts-- WCAG and substantial compliance. I think a better rule would have said something like the following paragraph.
Unless doing so would impose an undue burden or fundamental alteration, public entities must ensure that their websites and web-based applications comply with WCAG 2.1 A/AA within two years of the effective date of this rule. Public entities would not be in violation of this rule if they can demonstrate that (1) making such technology meet these standards is not readily achievable and (2) Â they provide access to the programs, services, and activities for qualified individuals with disabilities in a manner that is substantially equivalent (in terms of ease of use, hours of operation, etc) to the means of access provided to others.
Yes, I know this is very rough but the idea is that local governments should be held to the WCAG standard unless they can show that their services are already fully accessible and that making the technology fully accessible is moderately painful. This would keep the bar high but give public entities flexibility. It would also avoid the "forever" problem that I talked about earlier because, once a technology IS made accessible, it needs to replace the inaccessible stuff.
It's simple. It meets the needs of local government and people with disabilities. It adjusts as technologies are made accessible. And it certainly didn't take fourteen years to write.
Can We Expect a Private Sector Rule Next?
The million-dollar question is when DOJ will try to issue a Title III web accessibility rule. My answer? Don't hold your breath. Yes, the rule could be as simple as the (improved) version of the Title II rule that I wrote above-- substitute the words "public accommodations" for "public entities" and  "goods and services for individuals with disabilities" for "programs, services, and activities for qualified individuals with disabilities" and it would a fantastic rule. But that doesn't mean it will happen anytime soon.
Why is that? Two simple reasons. First, every regulation federal agencies create must be accompanied by an economic impact analysis. While I often find the assumptions and number crunching used in these analyses questionable, the fudge factors needed to assess the impact on every business in America are overwhelming and too easy to pick apart. Second, coming up with a regulation for Title III web accessibility will mean that DOJ has to address the nexus requirement, which it has never agreed with. If the Supreme Court discards the Chevron case, which it seems likely to do, this could mean that a defendant in a conservative jurisdiction could have the DOJ rule thrown out if the court disagreed with it.
I predict that until the Supreme Court's position on Chevron is clear, we shouldn't expect to see a final DOJ Title III rule-- and probably not even a Title III NPRM for web accessibility. Because creating a final Title III rule will generate a TON of comments, the time required for creating a final rule could be really long. Even if the Chevron case is upheld, I wouldn't expect to see Title III NPRM until President Biden's second term (if he is reelected).
Like It or Not, It's Now the Law
So there you go. It's not a perfect regulation but it's the one we've got. I'm happy that it finally sets a clear standard-- and public entities can't complain that they don't have clear guidance on what they have to do.
Props to DOJ!!
It's so easy to criticize government agencies like DOJ because we expect them to please all of the people all of the time. President Lincoln may have said that some close variant of that idea isn't possible (smile).
Without exception, every DRS alumni I've ever known takes immense pride in working in the Disability Rights Section. That pride only grows stronger after we've left the Section. The work that we did (and that the Section continues to do) shapes opportunities for people with disabilities immediately, across the country, and around the world.
At the end of the day, the DOJ Title II web accessibility rule is simply amazing. America is often seen as the cutting edge of accessibility. America, however, is also a very litigious country so creating a baseline for web accessibility firmly at WCAG 2.1 A/AA for all state and local government programs, services, and activities here is an incredibly bold statement. By drawing a line in the sand at WCAG 2.1 A/AA, DOJ really is changing the world for billions of people with disabilities. They aren't demonstrating what is possible for people with disabilities; they are demonstrating what is expected for people with disabilities.
Update: Published April 24, 2024
Update: April 24, 2024. The official version was published today. For the official copy, here is the link on the Federal Register website and here is a link to a local copy of the PDF. Why is this relevant? Because it sets the official dates for state and local governments to comply. Specifically,
- Larger public entities (50,000 residents or larger) must ensure that their websites and mobile applications comply with WCAG 2.1 A/AA by April 24, 2026.
- Other public entities must meet WCAG 2.1 A/AA by April 24, 2027.
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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