A lot of friends have asked me what I think will happen to web and digital accessibility during the second Trump Administration. While I’m a dyed-in-the-wool liberal, I think it should be clear to anyone who knows me or reads my blog that I am a pragmatist.
This post isn’t intended to be a detailed legal analysis or a break down of recent court decisions. Instead, this post is more of a high-level view of what my gut says will happen over the next four years. Also, like the rest of my blog, I'm putting it down in print mostly for my own sake and to organize my thoughts.
Federal Civil Rights Laws
It’s easy enough to say that, with a 6-3 majority in the Supreme Court, laws like Section 504 and the ADA are going to be declared unconstitutional. While anything is possible, I think that view is alarmist. While I can’t see huge improvements in civil rights laws over the next four years, I think that disability rights laws will be low on the priority list of laws for getting overturned. To understand why I feel that way, I’ll tell you how I look at civil rights laws. There are roughly two categories of laws to consider: Spending Clause laws and Fourteenth Amendment laws. Let’s take them one at a time.
The Spending Clause of the Constitution gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.” Congress sometimes passes laws that requires federal fund recipients to meet specific obligations in exchange for receiving those funds. Section 504 of the Rehabilitation Act, which prohibits discrimination against qualified persons with disabilities by federal fund recipients, is an example of Spending Clause legislation. The federal courts have rarely had a problem with this kind of legislation. Basically, Congress can attach just about any strings that they want to federal fund recipients.
Another group of civil rights laws are based on the Fourteenth Amendment, a Civil War era amendment that expanded equal protection requirements beyond the federal government. These laws usually also rely on the Commerce Clause, which has also been broadly interpreted to allow Congress to control anything that even remotely touches on interstate commerce. Up until recently, these laws have been airtight. Then, in 2013, the Supreme Court decided Shelby County v. Holder, 570 U.S. 529 (2013), which significantly gutted the Voting Rights Act. Central to that opinion was Chief Justice Robert’s observation that much of the discrimination central to passing the Civil Right Act didn’t exist in 2013. Whether that’s true or not, the Supreme Court has also cast a suspicious glance at other cases based on allegations of racial discrimination (e.g. Students for Fair Admissions Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), which made affirmative action admission decisions by colleges and universities unconstitutional).
While the ADA is based on the same constitutional basis as the Voting Rights Act, I just don’t see the Supreme Court moving to strike down the ADA on the same basis. As the Court chips away at civil rights, the Court and Congress will face pushback at each step of the way. Race, gender, and other "woke" issues seem to be high on that list while disabilities seem lower on that list. I’m certainly not saying that we shouldn’t care about the possibility that the ADA will be declared unconstitutional; I’m just saying that it may take awhile for the courts to get there—if they ever do.
Federal Regulations
For the indefinite future, we can expect to see a ton of federal regulations getting chopped down. Fortunately, I don’t see the ADA Title II and III regulations falling victim to this trend.
Why is that? As I mentioned in a previous blog, the Supreme Court’s Loper Bright decision will make it easy for the courts to chop down any federal regulations that fall into a gap left by Congress unless Congress specifically delegated rulemaking authority to Congress. Had DOJ created a private sector web accessibility regulation, that would have been the first regulation to get chopped down. Title II is a lot more airtight—except for the requirement for WCAG 2.1 A/AA.
I can see two possible problems with the WCAG requirement. First, there's the practical problem of requiring WCAG 2.1 A/AA compliance. One of my concerns with the DOJ regulation was its insistence on using WCAG 2.1 as its basic standard because I don’t know of a single third-party web application used by state and local governments that met WCAG 2.1 A/AA. Even the smallest local governments has dozens of such applications-- larger governments have hundreds of them. Plus, even if a local government were to find a web application that met WCAG 2.1 A/AA, the chances are it wouldn’t stay that way for very long as their content creators add new content to that application.
Second, from a legal perspective, Congress never told DOJ to create design standards in the ADA for anything except facilities and vehicles. Because Congress never told DOJ to create standards elsewhere, the decision to require WCAG 2.1 A/AA for websites now seems risky after Loper Bright. I suggested that WCAG 2.1 A/AA should have been used as a safe harbor for state and local government websites—something that should be aspired to but not a hard-and-fast baseline requirement. Had DOJ followed that approach, their Title II web accessibility regulation would be less vulnerable to being rejected and would be easier to meet.
I honestly don’t think that the courts will reject the new Title II web accessibility regulation's WCAG requirement, however. Again, this comes down to the fact that disability rights doesn’t seem like the first target for this new wave of conservative justices. Plus, the implementation deadline for the web accessibility regulation will be during the midterm election season; even conservative courts may be wary of rocking the boat in such a big way.
I’m less confident about other federal agency disability regulations, however, because they may have a more flimsy relationship to their authorizing statute. While I haven’t examined each regulation against their authorizing statutes, my gut says that regulations from other agencies like the FCC, DOT, EEOC, or HUD may be easier to attack. This means that protections under laws like the CVAA, the Air Carriers Access Act, ADA Title I, or the Fair Housing Act may be a bit more vulnerable. But this is just a gut feeling and may be the subject of a different blog post.
State Laws and Regulations
Everything that I’ve said up until now is about federal laws and regulations. This means that it is really up to the states to carry the load and make advances in civil rights. Up here in Washington State, for instance, our lawmakers have made it clear that advancing and supporting civil rights will continue as before despite the change of Administration.
And I don’t expect to see the state governments easing up on pushing civil rights. For instance, while Colorado’s legislature may make some adjustments to HB 21-1110 as its state and local governments struggle with digital accessibility, I expect that will stay ahead of the rest of the nation in terms of digital accessibility. Similarly, I expect that California, Washington, or Oregon will keep pushing the envelope in promoting digital civil rights.
This is bad news, however, if you live in a “red” state versus a “blue” state. This region-by-region approach is the way that our country existed for much of its history before the 20th century. It's also the way that other countries like Canada still work.
Enforcement and Litigation
When I worked at DOJ, I worked through Republican and Democrat Administrations. Each time, it seemed like disability rights was spared a lot of criticism that forced a lot of great attorneys in other sections to leave their jobs. This isn’t to say that I didn’t notice a difference. For instance, during Democrat Administrations, it seemed like staff attorneys were given a bit more leeway to prosecute the cases that they thought would make a difference while during the Republican Administrations, the political appointees were much more circumspect and selected only the most egregious cases for enforcement.
The second Trump Administration could be very different. If President-elect Trump holds true to his word and implements Schedule F as soon as he takes office, it will still take quite a few months before it can actually come to pass. Then, replacing those employees and getting them to implement the new Administration’s plans will likely extend things to at least 18 months—just in time for the midterm elections. This is TERRIBLE news if you’re a federal employee. It could also mean that federal enforcement of civil rights will be stymied for years even after the Trump Administration.
President-elect Trump has also vowed to dismantle the Department of Education. While anything is possible, I think this is campaign bluster. But I could very well see the Office of Civil Rights getting seriously limited in its enforcement efforts very quickly.
Both of these outcomes means that there is a lot of room for private litigation. If federal agencies aren’t addressing major disability rights issues, we can expect disability rights organizations to be stepping into the gap. If people with disabilities are left out in the cold, I also think that private plaintiffs will be emboldened to bring more cases to address their causes.
Bottom Line
I don't think we should expect the complete end of disability rights in our country. My strategy for the next four years is to keep my expectations low while also expecting that, by 2028, our country won’t go as low as a lot of people fear it could go. I could be very wrong but let's all hope that I'm right.
If you're feeling helpless right now, there are a few things you can do
- Vote. First and foremost. the easiest thing you can do is vote. Ignore the attack ads, try to understand the issues that candidates stand actually stand for, and cast your vote.
- Join and Support Disability Rights Groups. Organizations like AAPD advocate for the rights of all people with disabilities. Organizations like ACB, NFB and NAD focus on the rights of people with specific disabilities. These organizations stay abreast of the latest developments and mobilize their membership to protect their rights.
- Support State-Level Efforts. As I mentioned, a lot of the action in actually improving rights for people with disabilities is going to be happening at the state level and not the federal level. Reach out to your state-level representatives and support their efforts.
- Monitor and Comment on Federal-Level Efforts. Monitor blogs like this one and stay on top of legal updates from disability rights groups when Congress proposes legislation that may undercut the rights of people with disabilities. While no one can control whom a president chooses as a judicial nominee, if any of them appear hostile to disability rights, let your senator know how you feel.
And you can always scream at the television.
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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