Last June, I wrote about the growing threats to the DOJ’s ADA Title II Web Accessibility Rule. That warning feels understated now. If you care about the accessibility of state and local government websites, read on.
There are credible rumors that the Title II web accessibility rule may not just get pushed back — it may get pulled entirely. DOJ and OMB are apparently pushing hard for an “interim final rule” (a procedural shortcut that bypasses public notice-and-comment). As I explained in my February 2026 Legal Update, that move would almost certainly be challenged in court. But the administration may not care.
This blog post outlines why an Interim Final Rule is a terrible idea and what you can do about it today.
Why an Interim Final Rule Would Be on Shaky Legal Ground
The DOJ’s submission is now under review at OIRA. It is listed as an “Interim Final Rule” — a device that, unlike a normal NPRM, requires no public comment period before taking effect. As I explained last month, there’s are strong reasons why an Interim Final Rule is going to get challenged or overturned in court, but we still need to address this now.
Five Compelling Reasons to Keep the Current Rule
1. Colorado HB21-1110: The Canary Is Still Singing
Colorado HB21-1110 is the DOJ rule on steroids. It required WCAG 2.1 compliance for all ICT — not just websites and apps, but kiosks, desktop software, and internal systems — by July 2024, with liquidated damages of $3,500 per violation per plaintiff. If any rule was going to trigger a compliance catastrophe or a flood of lawsuits (like commenters to OMB suggest), it was this one.
It didn’t. In nearly two years since the deadline, I am not aware of a single lawsuit under HB21-1110. Colorado governments adapted. As I noted in my September 2025 post, the state is actually saving money by pushing vendors to deliver more accessible products. If Colorado is the canary in the coal mine, the canary is fine.
2. DOJ Has Always Required Accessible Websites
The new 2024 rule doesn’t create a new obligation — it codifies one that already exists. The DOJ’s Project Civic Access settlement agreements have been requiring WCAG 2.1 A/AA compliance from state and local governments since at least 2015. The only thing that changed in 2024 is that DOJ clarified the regulation and made WCAG explicit; the obligation to provide effective communication and non-discriminatory treatment for people with disabilities on websites has been there since 1992. Pulling the rule doesn’t eliminate the underlying ADA obligation — it just removes the clarity. That helps no one.
3. The Department of Education Has Required WCAG Compliance for Years
The Department of Education’s Office for Civil Rights has been actively investigating digital accessibility at schools, colleges, and universities for a long time and have used WCAG as a yardstick for over decade. Any educational institution that claims confusion about WCAG requirements is simply not being candid. As I wrote last June (Is the DOJ Web Accessibility Rule in Danger?), groups like the American Council on Education and EDUCAUSE did real damage to the disability rights community by handing the administration political cover. The path to compliance isn’t a mystery — it just requires commitment.
4. Title II Has Never Fueled a Wave of Litigation
Opponents raise the specter of mass litigation. That fear makes sense for Title III, where thousands of web accessibility cases are filed against private businesses every year. But Title II is different — state and local governments simply are not targets of serial accessibility litigation. Over the last ten years, significant Title II web accessibility lawsuits are nearly nonexistent. And again: Colorado has lived under a far stricter law with real monetary penalties for two years, with no litigation wave in sight.
5. Vendors ARE Actively Stepping Up
Most of the significant barriers on government websites are created by third-party web applications. When DOJ released its final rule, it anticipated that vendors would update their applications to make WCAG compliance easier—and that public entities would be able to use the fundamental alteration and undue burden defenses in the interim.
While the Department understands the concerns raised by commenters that current market options make it challenging for public entities to procure accessible services, the Department expects that options for accessible third-party services will grow in response to subpart H of this part. The Department believes that more accessible options will be readily available by the time public entities are required to comply with subpart H, which will make it less difficult for public entities to procure accessible services from contractors. The Department also notes that public entities will be able to rely on the fundamental alteration and undue burdens limitations in this part in § 35.204 where they can satisfy the requirements of that provision.
89 Fed. Reg. 31,345-46 (Apr. 24, 2024). As I mentioned six months later, this really comes down to buying the most accessible solutions possible and carefully documenting that decision.
At the same time, since Colorado passed HB21-1110, vendors have responded quickly. We’ve seen applications that were inaccessible for years suddenly become accessible. Some major vendors have hired entire accessibility teams. Vendors are getting the word that accessibility is here to stay. While every application isn’t fully accessible yet, it’s important to remember that this movement is only going to continue. DOJ never expected every application to be perfectly WCAG compliant from Day One and that’s okay.
What You Need to Do — Right Now
Request an EO Meeting with OIRA
Under Executive Order 12866, anyone — individual, organization, or business — can request a meeting with OIRA to weigh in on a rule under review. Go to the OIRA review page on reginfo.gov and click “Request EO Meeting.” You’ll provide your contact information and that’s it. Keep it simple: you support the rule as written, you oppose any delay or weakening, and you want to say why. You don’t need to be a lawyer. You just need to show up.
Inundating OIRA with requests from disability advocates, practitioners, and allies sends a direct signal that this rule has a constituency willing to fight for it. This may be the most concrete lever we have right now. It’s what worked with the preposterous Department of Energy Direct Final Rule—and it should work here too if enough people sign up
Be Ready to Comment on an Interim Final Rule
If an IFR is published, agencies must accept post-publication comments. Those comments become part of the administrative record — which a court will scrutinize if the rule is challenged. A useful comment framework:
- Procedural: The IFR lacks “good cause” under 5 U.S.C. § 553(b)(B). Firing your own attorneys is not “impracticability” under the APA, and post-Chevron courts owe no deference to that finding.
- Colorado: HB 21-1110 has been in effect nearly two years — stricter requirements, real monetary penalties, no litigation wave, no compliance meltdown. WCAG 2.1 A/AA works there. It works for countless governments worldwide. It works for the ADA.
- Pre-existing obligations: Project Civic Access settlements have required WCAG 2.1 A/AA since 2015. The 2024 rule adds clarity, not a new burden.
- Litigation history: Title II has produced virtually no web accessibility lawsuits over the last decade. The flood-of-litigation argument has no evidentiary basis.
- Real-world harm: Tell your story. What does an inaccessible government website actually mean for you or someone you know — inability to pay taxes, access benefits, participate in civic life? Personal accounts matter.
The ADA passed in 1990 and we’ve waited for 35 years for the regulations to recognize the right to access websites and mobile apps. The rule exists so that people with disabilities can fully participate in their communities. It deserves to be defended.
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.
Want to See More Content Like This?
Want the latest blog posts, videos, white papers, and announcements? Sign up for our mailing list and stay in the loop!
We're Here to Help When You're Ready
Take a deep breath. Then feel free to reach out to our team when you're ready to discuss your accessibility needs.
0 comments on “RED ALERT: The DOJ Title II Web Accessibility Rule is in Danger!”