Just a month ago, I blogged about the Department of Justice issuing its new final regulation for state and local government websites. As part of that blog, I predicted that we wouldn’t see a similar Title III web accessibility in the near future—or possibly ever. But I now have to change my answer.
What Was the New DOJ Title II Regulation?
imply put, the new DOJ regulation requires state and local governments to make their websites comply with the Web Content Accessibility Guidelines (WCAG) 2.1 A/AA by April 24, 2026 (smaller government entities of less than 50,000 residents get an additional year to 2027). My previous blog talks all about what the rule includes and doesn’t include so if this all new to you, I’d suggest you go there.
Why Won’t We See a New Title III Regulation
In my earlier blog, I mentioned that we likely won’t see a regulation requiring private sector Title III entities to make their websites accessible. Here’s why I predicted that we won’t likely see a Title III web accessibility regulation.
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).
But there’s also a third reason that we usually don’t think about—the Congressional Review Act of 1996 (if you open the link, don’t let the name of the Medicare law throw you; the relevant part starts in Subtitle E—around page 22). This was a law passed in 1996 during the Clinton Administration to appease a heavily Republican Congress. This law lets Congress toss out any federal regulation by a simple majority that was created within the last 60 “session days”—and then prohibits the agency from creating a similar rule. That’s an enormous power for Congress; otherwise, tossing out a federal regulation requires either having the agency issue a new contradictory regulation or having a Federal court overturn it. And because it prohibits the agency from creating a similar regulation when the balance of Congress changes, it can make agencies very cautious about creating regulations in the first place.
Until the Trump Administration, it was used only once but when President Trump came into office, it was used to throw out 14 important regulations from the Obama Administration. Not surprisingly, the Biden Administration has been issuing a flurry of new regulations in case President Biden doesn’t win the next election. However, “session days” follow a weird calendar; the bottom line is that if a new regulation doesn’t go into effect before July 2024, it can be overturned by the next Congress on Inauguration Day 2025. Because creating a new regulation takes several months, any new regulation would have to be well underway by now to make the July 2024 deadline. This means that there is basically no hope of seeing a Title III web accessibility regulation (or any other accessibility regulations from DOJ) during this Administration.
But Wait… There’s Section 504
In my earlier blog post, I talked about how the nexus standard made any private sector ADA web accessibility regulation doubtful. I forgot, however, that an alternate way to get to the private sector is through Section 504 of the Rehabilitation Act.
As a refresher, you should know that Section 504 prohibits discrimination against qualified individuals with disabilities in any program, service, or activity that is either conducted by a federal agency or provided by an entity that receives federal financial assistance. This covers quite a large scope, however. For instance, receipt of Medicare or Medicaid payments is considered federal financial assistance. Similarly, admitting students who receive student loans is also considered federal financial assistance. While the exact boundaries of what constitutes “federal financial assistance” may be unclear, it is undeniable that Section 504 reaches a lot more private activities than most of us normally think about.
This is particularly relevant because, just three days ago on May 1, 2024, the Department of Health and Human Services issued its final rule updating its Section 504 regulations. While HHS’s rule has a much broader scope than the DOJ rule, it requires exactly the same requirements for web accessibility (HHS and DOJ worked closely behind the scenes to harmonize this portion of the regulations). I didn’t really say anything about the new HHS regulation because my colleague Lainey Feingold has this topic pretty well covered and I’d encourage you to see her site for more information about it. The new HHS rule means that every hospital or medical practitioner that sees Medicare or Medicaid patients are now required to make their websites and mobile applications meet WCAG 2.1 A/AA!
Here's my prediction (and my hope)—that DOJ updates its Section 504 regulation to require WCAG 2.1 compliance if it becomes clear that it can’t be overturned by using the Congressional Review Act. Therefore, if Donald Trump doesn’t win and the Republicans don’t sweep both the House and Senate, newly reelected President Biden should encourage DOJ to immediately start an NPRM to update its Section 504 regulation to require web accessibility. While this might not sound like a huge deal, it is because of an executive order that every DOJ civil rights attorney knows by heart-- Executive Order 12,250. This executive order (from the Carter Administration!) states that the DOJ is responsible for implementing and coordinating civil rights policies across the federal government. This would have a hugely transformative effect because it would mean that anyone receiving federal financial assistance would be required to be WCAG compliant. While I applaud HHS for its new regulation, DOJ is really the domino that needs to fall for web accessibility to be taken seriously by a large swath of the private sector.
Did DOJ miss the boat with a Section 504 regulation? Absolutely. They didn’t have much difficulty with their new Title II regulation and a web accessibility rule for both Section 504 and Title II should have been done in parallel years ago given the deep similarities between the two laws in their implementation. Should DOJ issue a new Section 504 web accessibility rule now? Absolutely not—because there is no way that they could get a final rule out before the July 2025 Congressional Review Act deadline. Plus, even if they could have issued the new regulation along with their Title II regulation, there’s little chance that all of the other federal agencies could have issued coordinating regulations before the July deadline.
A Section 504 Regulation Should be Safe from the Courts
Addressing private sector web accessibility through Section 504 has a lot of advantages. The clearest advantage is that it completely avoids the nexus standard. It’s also easy to fold WCAG into Section 504 because of the similarities between Section 504 and Title II. Then, once web accessibility becomes established in the private sector, it will hopefully become far less controversial for DOJ (or Congress) to simply require private businesses to make their websites follow WCAG.
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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