DOJ Issues Letter Addressing Title II ADA Web Accessibility Regulation

On May 19, 2023, the Justice Department (DOJ) and the Department of Education (DOE) issued a joint Dear Colleague Letter addressing the online accessibility of colleges, universities, and other postsecondary institutions. The letter serves as a timely reminder for these institutions to ensure that their online services, programs, and activities are accessible to individuals with disabilities.

This follows last year's announcement that new Title II web accessibility regulations are on their way and represents one of the final steps that need to be taken before the new rules are issued publicly.

With the increasing reliance on websites and third-party online platforms, such as learning platforms, social media, and sites like YouTube, Spotify, and Apple Podcasts, it is crucial for educational institutions to uphold equal opportunities for people with disabilities, as mandated by Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

With this in mind, let's take a look at why the imminent new regulations are a truly significant development, what they will mean for web accessibility going forward, and how your organization can prepare.

First Things First, What Is Title II of the ADA?

For the uninitiated, Title II of the Americans with Disabilities Act (ADA) applies to State and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Put simply, it describes the non-discrimination obligations for U.S. State and local governments.

What The Announcement Means and Why It Matters

Make no mistake,while the new regulation may seem like an insignificant technicality to some, this is pretty a big move from the DOJ. The planned new regulation demonstrates a commitment to taking real action towards tackling web accessibility issues by giving State entities (SE) what they have been lacking for so long; tangible and unified regulations to follow. This is an especially welcome and somewhat unexpected announcement, as it comes after many years of criticism of what is widely considered to be vague and unfocused guidance from the DOJ. Beyond providing some clarity on how to achieve web accessibility, the regulation will also offer an indication as to the type of web accessibility regulations that are likely to be applied to private businesses and organizations a little further down the road.   

This will come as a pleasant surprise to many commentators who were less than impressed with the DOJ’ most recent accessibility guidance, accusing it of being inadequate for the task, containing no new insights, and failing to address the legal uncertainty that still exists around the area of web accessibility compliance in general.  

The new regulation should go some way to reassuring those with such ongoing concerns about the state of web accessibility compliance law that something tangible is finally arriving, and will likely come as a great relief to many who have wanted to keep up with accessibility requirements, but have found themselves unable to follow what is demanded of their websites despite their best efforts. 

In other words, the significance of these new regulation should not be underestimated, as, apart from anything else they might bring, it is highly likely that, as in prior rulemaking efforts, regulations of a similar form and substance will follow that apply not just to SE’s, but also to private organizations. 

What To Expect from the Regulation and How To Prepare

Truth be told, the DOJ has essentially been singing the same tune for 20 years with regards to web accessibility, and it is unlikely that their core recommendations will drastically change with the release of this new draft regulation. As this is the case, and with the chances of the regulation bringing with it any truly groundbreaking or unpredictable requirements being slim to none, preparing for its arrival should actually be pretty straightforward. 

The best course of action for SE’s is to make efforts to become more conscious of whether their existing web-based content, services and activities are equally accessible to people with disabilities. If they are not, some effort will need to be made to remove the barriers that currently exist. Further, while previous DOJ guidance has been based on the Web Content Accessibility Guidelines 2.0, it is now a good idea for SE’s (as well as other online organizations) to start striving to meet the Web Content Accessibility Guidelines 2.1 A/AA requirements when creating new content, as these will be close to the core of the new regulation, as well as any further web accessibility regulations coming out in the foreseeable future.  

While some expert commentators still have deep concerns about the future of web accessibility legislation, citing just how long it has taken the DOJ to get to this early stage, as well as the truly urgent need for Title III regulations in the face of the ongoing flood of private sector litigation, amongst other things. 

However, despite these real and very reasonable concerns, the announcement of new Title II ADA Web Accessibility Regulations remains a resolute win for all those concerned with making web accessibility a priority in the US, and an absolute cause for celebration for those who thought such a regulation might never arrive. 

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