The Attorney General of the United States has signed a final rule that will update its regulations for Title II of the Americans with Disabilities Act (ADA). This long-awaited rule contains requirements on how to ensure that web content and mobile apps are accessible to people with disabilities.
The press release from the DOJ states:
“This final rule clarifies the obligations of state and local governments to make their websites and mobile applications accessible. Every day, people across the country use the web and mobile apps to access public programs and services, including emergency information, courts, healthcare providers, schools, voting information, parking, permit applications, tax payments, and transit updates.
“If these technologies are not accessible, it can be difficult or impossible for people with disabilities to access critical services. Consequently, individuals with disabilities may be excluded from accessing public services that other people routinely use.”
According to the New Rule of Accessibility Fact Sheet, a rule is a regulation that is a “set of requirements issued by a federal agency for laws passed by Congress. When Congress passed the ADA, it gave the Department the authority to make regulations that explain the rights and requirements for Titles II and III of the ADA. Refer to the advanced copy of the full rule. The official rule will be published in the Federal Register.
Thomas Logan: Hello, everyone. This is Thomas Logan from Equal Entry here with Ken Nakata of Converge Accessibility. In this episode of A11yInsights, we’re talking about this exciting new regulation from the DOJ that will affect all 50 states and local municipalities.
What Is the DOJ Accessibility Rule and Why Is It a Big Deal?
Thomas Logan: Ken, what is this new regulation, and why is it a big deal?
Ken Nakata: This regulation is an amendment to the ADA Title II regulations, and it requires that state and local governments and all the municipalities within state and local governments, that cities and counties and agencies within those organizations that they have to make their web content and their mobile apps comply with WCAG 2.1 A and AA.
And they’ve got to do it either within two years if they’re a larger organization, which means over 50,000 residents, or three years if they’re smaller than that.
What Do We Think of the DOJ Accessibility Rule?
Thomas Logan: Now that they’ve made this new regulation, Ken, what do we think of it? Or what do you think of it?
Ken Nakata: Well, it’s good and bad.
There are some things about it that are great, such as, well, they finally required WCAG. And there are some things that are not so great. For instance, I don’t like the way in which they kept some of the exemptions that were in the draft regulation. We call that a Notice of Proposed Rulemaking or NPRM. In that original draft, there were a number of exemptions for things like password protected, educational content, which just seemed to be throwing students under the bus.
And fortunately, the Justice Department scrapped those exemptions. I don’t think that they really have to have any exceptions in the hair because if it doesn’t fall under this powerful but hard to meet defense of undue burden or fundamental alteration, which are illegal terms.
They also had this much broader exception in the regulation that allows state and local governments to keep inaccessible content as long as people with disabilities weren’t substantially impaired. It uses language very similar to that. As long as people with disabilities could still easily access the information or the services through some other means, then they were given a pass.
So, in that sense, they really didn’t have to create those exceptions. But in general, I think it’s not a horrible regulation. By standards that means it’s a good one. But it did take 14 years too long to create this.
Thomas Logan: For like one small moment of positivity. So after the 14 years, do you feel like they were listening to people’s feedback? And that’s what ended up changing the regulation?
Ken Nakata: I think so. I think that they really did listen to people in their comments. That’s the reason why they limited the exceptions. And then they also included that broader exception. As long as the program, service, or activity was ultimately easy to get to, they added that into the regulation. It wasn’t in the NPRM. That gives state and local governments a lot more flexibility.
And it also makes me think that they could create a similar rule just on that one principle. It would simply say, “Okay, you have to meet WCAG 2. 1 unless you provide access to that same program, service, or activity in a nearly identical way or through a more traditional means such as the telephone, as long as people with disabilities can access that program, service, or activity just as conveniently.
I mean, they could have just made that the entire regulation, but instead they didn’t.
Thomas Logan: I do think it’s good, though, to acknowledge that they had this whole process, that notice of proposed rulemaking (NPRM) process which we contributed to. It’s a good reminder to all of you all listening here. If you don’t make your voice heard or if you don’t share your opinion, you can’t complain about it afterward.
I think some of the things that changed in the final rulemaking were things that Ken and I discussed in previous episodes here. We did make our voices heard. Did they listen to our specific comment? Who knows? But my voice here is if you didn’t contribute, don’t expect your voice to be heard.
And if you do contribute, be open to the idea that maybe what you contributed is something that they listened to and helped shape the future of the regulation.
What About Accessibility for the Private Sector?
Thomas Logan: Ken, now, this is very focused and great that we’re focusing on local and state government with this new ruling, but what about the private sector?
Ken Nakata: That is a fantastic question, Thomas. I think that everybody would love to see, a new regulation that’s focused on the private sector. The problem is that the way in which Title III of the ADA, which covers of businesses is written, makes it very complicated to do that.
In addition, you also have the impact on small businesses which may be significant in this case. But it takes up a lot of analysis for federal agencies when they’re coming up with regulations, and obviously, that creates a lot of political pressure. I think though that if I were the Justice Department, I would be very hesitant right now to come up with a Title III regulation.
And the reason for that is because of what’s going on in the Supreme Court. If you’ve been following that, the Supreme Court is beginning to question whether they want to give as much deference to the federal agencies when they’re interpreting statutes. Right now, federal agencies have a lot of leeway in this because of something that we call the Chevron Doctrine.
And the court, back in a case involving Chevron, the oil company, basically said that federal agencies should be entitled to a lot of deference because they have a lot of expertise in the areas that they’re regulating. Now the Supreme Court is saying, “Well, maybe the court should be interpreting it instead.”
And I’m wary of that outcome because courts don’t have that kind of specialization, They shouldn’t be just interpreting statutes willy-nilly on their own. Especially since different judges are going to come up with different interpretations. And they’re going to come up with interpretations about things that only federal agencies care about like what the emission limits should be for cars or what are the technical details that federal regulations should specify.
Those are the kinds of things that regulations get into. So, until the Supreme Court decides this case that’s questioning whether Chevron is still going to be a good precedent, I think that the Justice Department should be wary about issuing a Title III regulation because if the court ends up overturning or varying away from Chevron, it means that a federal court could always just throw out the entire regulation if they wanted to.
That would be a tragic outcome, obviously. And we have to be really careful. And I think that the justice department’s got to be careful as they’re deciding what to do next.
Thomas Logan: And we’d love your insight into this process. For that particular part, that’s related to the private area, would you say for the local and state government it’s decided or there’s still also arguments that can happen at the local and state government with this new decision?
Ken Nakata: With this new case reinterpreting Chevron, I don’t think that the threat is nearly as significant in the Title II context because it would be hard to say that they came up with a regulation that is wildly new or that imposes new requirements. The Justice Department’s made it quite clear that WCAG 2.1 is the way to go.
And there’s not a whole lot of doubt about the idea that state and local governments are covered by Title II when it comes to their web-based activities. There’s a big question in the federal courts right now about whether private businesses are covered. If you’ve been following this area, you know that different circuits in our country require different things.
For instance, in the Ninth Circuit, or the Third Circuit, or the Eleventh Circuit, which are different regions of our country, and different, clusters of federal courts, those circuits that I just mentioned require that you have to have a nexus or connection between a website and a physical bricks and mortar place of public accommodation.
And for instance, purely online companies wouldn’t be covered at all. The other circuits, like the First Circuit, which is Boston, Massachusetts, and the New England states, and the Seventh Circuit, which is some of the Midwestern states, notably Illinois, I think Chicago, they don’t require that nexus, and so you can pursue a purely online only company.
If the Justice Department comes up with a regular interpretation of Title III which differs from one of those circuits, then the circuit that has a different opinion could say that the Justice Department exceeded its authority in interpreting its regulation and throw out the web regulation.
So, It’s possible, and if, Chevron gets overturned, it would be crazy for the Justice Department to come up with a Title III regulation.
Thomas Logan: Right, and of course, from our perspective, it’s like, ” Hey, let’s be real. Everything needs to be accessible.” That determination of what that means is hard. But if they’re saying WCAG 2.1, that does give us a stake in the ground to work from. And I think that’s great.
We can actually operationalize that as a community that cares about improving access for people. WCAG 2.1 is quite broad and can cover a lot of the issues that we want to see change in. I’d like to ask our listeners/viewers, like we’d love to hear from you.
What are you thinking about this new decision? Ken and I think this is going to have a huge impact in the United States, but what do you think? Please add the comments and we’ll be happy to respond. Thank you so much for your time, and we’ll see you in our next episode.
References
- Converge Accessibility Report by Ken Nakata
- DOJ’s Current Efforts to Adopt Web Accessibility Regulations for State and Local Governments update from Lainey Feingold
Do you need help with accessibility compliance?
Our years of experience working with lawyers and being expert witnesses in lawsuits have given us a unique perspective when it comes to explaining and justifying our clients’ accessibility compliance.
If you are experiencing any legal issues related to the accessibility of your technology, please contact us to discuss how we can help.
