What Do the Exceptions in the Notice of Proposed Rulemaking for the Accessibility of Web Information for Educational Institutions Mean?

October 24, 2023
Image Description: Illustration with three college students walking outdoors. They're carrying backpacks and holding a device. The student on the left also uses a white cane.

The U.S. Department of Justice has issued a Notice of Proposed Rulemaking (NPRM) [PDF] on how to update the regulations for Title II of the Americans with Disabilities Act (ADA) to add specific requirements about web and mobile application and content accessibility. State and local governments would have to follow specific technical standards to meet their Title II ADA obligations. This standard would impact public schools and universities.

Many state and local governments offer many programs, services, and activities through their websites, apps, and other digital properties. When these are not accessible, it creates barriers for people with disabilities. Additionally, it makes it harder for them to access important government services that are readily available to people without disabilities.

However, the NPRM contains proposed exceptions. This means the public school or university would not have to comply with the technical standard. The reason for these exceptions is to help public institutions focus on ensuring the accessibility of more commonly used information. The thinking is the items under the exceptions are not frequently used which might be challenging for public institutions to fix.

Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan discuss these exceptions and whether they’re a problem.

Ken Nakata: Well, welcome Thomas. So, we’re going over the exceptions in the Notice of Proposed Rulemaking (NPRM). So, these are things that are going to be excluded from having to be accessible. And they won’t have to ever comply with the Web Content Accessibility Guidelines.

Thomas Logan: Let’s talk about them.

Do PreExisting and Archived Web Content Need to Be Accessible?

Ken Nakata: Okay, so the first one is any archived web content. So those are things that are very rarely accessed and are often not even easily available on the website.

Thomas Logan: And I have no problem with this being a starting point of the NPRM because let’s look at where we are today. 2023 doesn’t have nearly enough things accessible, so we’ve got to put a line in the ground somewhere.

So I’m okay with this.

Ken Nakata: Yeah, I am too, to a certain extent, although the one thing that I have against this exception and really all of the exceptions is that if the public entity eventually makes this stuff accessible, they don’t have to replace it on their website with the accessible version.

Thomas Logan: That’s interesting.

So yes, there should be some mechanism for once, if you make it accessible replace that everywhere that it’s referenced.

Ken Nakata: Yeah, and that becomes really clear when you talk about the next exception, which is pre-existing conventional electronic documents. So that’s things like PDFs that you put up on your website.

Or if you have a PDF that’s already up there, you don’t have to go back and make that document accessible. Which is interesting, but if you do make it accessible for a user, then again, you still don’t have to replace it with the accessible version. You just have to give a copy of the accessible version to the person who requested it.

Thomas Logan: And they request it via a contact form or some mechanism of reaching out, but they have to do that on an individual basis.

Ken Nakata: Exactly.

Thomas Logan: Yeah, I don’t like that either. Once you’ve done the work to fix it, it makes sense to me. It becomes then, how do you… And with technology, I guess there’s a way to search for the existing versions of that document, especially from the filename and document title.

There’s at least the best effort you could do to update all of those.

Ken Nakata: Yeah, exactly. Anyway, I mean, in theory, I think the idea of going and retrofitting thousands and thousands of existing PDFs is crazy. So the exception does make sense at a certain level, but if you do decide to make it accessible, then it should replace the existing version.

Otherwise, you’re just going to constantly have this. Collection of inaccessible documents forever.

Thomas Logan: I think I’m a little lost, Ken, on, I don’t understand the difference between, like, A is saying that you archived it. It’s not, don’t worry about it. B is saying, well, it was before, it was not archived, but it’s still on your site.

Still don’t worry about it. Is that what you’re saying?

Ken Nakata: Yep. And that’s also troubling because what if that pre-existing document is accessed constantly? And is a really important form.

Thomas Logan: Right. And that’s, that would be my problem with preexisting is that once you look at the most used documents on your site, I feel like that should be the starting point from what needs to be made accessible.

So if it’s preexisting, but it’s in the top 10, top 50 most downloaded documents, it makes no sense that that doesn’t need to be made accessible, but then something that five people download going forward is accessible.

Ken Nakata: Right, exactly. I agree. Anyways, okay.

Does Third-Party Content Need to Be Accessible?

Thomas Logan: Alright, C!

Ken Nakata: Yeah, these next two exceptions I had less problems with.

So, the first one is web content posted by a third party, and then the second one is linked third-party web content. So often these are things that might be injected into your website by a third party or things that you link out to that are maintained by a third party. And here, unless that web content is actually needed for a government program, service, or activity of that government, then I just don’t think that it needs to be accessible in all cases.

What do you think?

Thomas Logan: I don’t have a problem with the linked-out third-party web content where you’ve identified that it doesn’t have anything to do with the public entities, services, programs, and activities. But I do have a problem with C on your site itself because it’s very possible to me that the third-party content could create an issue that affects the rest of the content on your site.

So. I don’t really know that I would say that whatever the third party wants to put into the public entity’s website is fair game. That’s strange to me that I would think if you are getting the privilege of posting your content into that public entity site, it should comply. So I think I disagree with C.

Ken Nakata: Yeah. Well, my exceptions were to both C and D was if a public entity’s programs relied upon that third-party content then it’s got to be accessible, but if not, then it really doesn’t matter.

So, I think that exception C encompasses things where in a case where it’s not essential to a program it might include things like photographs that are posted on Flickr that are linked to the site or posts on social media by members of the public that are put onto the agency’s Facebook page, for instance.

That is content that they have no control over, but doesn’t affect access to government programs. And so I thought in that case, because the government program doesn’t rely on third-party content, that it is essential that the government worry about making sure that that content’s accessible.

Thomas Logan: Let me give you an example and then tell me if this is an exception. So for example, you use a third-party tool such as ArcGIS, to do the map visualization of the trash pickup routes of your city municipality. That’s something where the map or the visualization is produced and published via a third party and it’s hosted on that local government’s website.

Would that be considered third-party content or, because that’s this, It’s essential to the functioning of the entity’s services, programs, and activities. It’s not excluded.

Ken Nakata: That would be included in the exception under, as it’s written by the NPRM, but it wouldn’t be excluded on my limitation of the limitation because it’s essential to the programs that are offered by the public entity.

Thomas Logan: So why is that not also stated in subpart C?

Ken Nakata: It should be.

Thomas Logan: Oh.

Ken Nakata: Oh, no, it should be. And yeah, it really should. That exception really should be in item C as well.

Thomas Logan: I think we got something there.

Ken Nakata: Yeah!

How Is Public Post-Secondary Institution Password-Protected Course Content Exempt?

Thomas Logan: I like that one. All right, E.

Ken Nakata: Yeah, so exception E covers public post secondary institution password protected course content, which basically means anything in colleges or universities that students access for their courses, because that stuff is always password protected, is excluded.

And this exception is kind of tricky because it doesn’t apply. if that university is on notice that a student is pre registered for a course and that student has a disability and they’re going to need access to that content. So I’ve got a real problem with this because, I don’t know about your experience in college, but my experience in college was that during the first four weeks of any semester, I was adding and dropping courses like crazy.

And so, by this analysis, The college probably wouldn’t have to make any of my content accessible because I wasn’t pre-registered for probably at least half of my courses.

Thomas Logan: Right, and I don’t like this idea that now, as the student, I might feel some burden that, well, I pre-registered for this, and they did something to make it accessible for me, and now I don’t want to take this course.

I feel like that goes also in that thought process where, if you tell someone you have to do this. Now they feel like they have to keep taking that course, which isn’t the experience of, as you said, the average college student. I did the same thing. I would try the class and then drop it after the first two days and sign up for a different class.

Ken Nakata: Yeah. The other problem I have with this, and this will go into the next exception as well, is that a lot of course content is created by teachers. And so they have to make that content accessible at the last minute. And I recognize that that’s awfully burdensome, but a lot of the content is also created by publishers.

And that course content would also be accepted from this. And that’s awful because it doesn’t just affect the person in that one course, it also affects anybody else who’s taken a similar course at a university anywhere in the country. And so, in that case, I mean, those courses should definitely be made accessible.

Thomas Logan: And can you explain, how does that work with, so it’s basically you’re saying for the content that’s not generated by the instructor or professor himself, but maybe coming from a third-party educational source. How is that being exempted here?

Ken Nakata: Because it covers anything that’s behind a password-protected, a course content for colleges and universities.

Thomas Logan: I get it. So this kind of goes back also to the previous discussion saying, hey, you’re going to have third-party content. Like if you’re using third-party content, don’t use third-party content that doesn’t meet the guidelines.

Ken Nakata: Well, yeah, exactly.

Thomas Logan: Another question I have here from just reading this, what is the definition of pre-registered?

Ken Nakata: Oh, I don’t know, actually. It’s probably somewhere in those 216 pages that came before this. But I assume it means that you’re registered for that course before the semester begins. That’s my guess, but I could be wrong.

Thomas Logan: Before the start date of the course, right?

Ken Nakata: Right.

Thomas Logan: Okay, so this is saying, all right, for part two, the onus now is the student has now enrolled in a course after it started, and it’s their responsibility to report that that course is not accessible.

And then there are five days to meet that requirement?

Ken Nakata: Okay, yeah, I guess I missed that earlier. But still, if you’re signing up for a course, you’ve just transferred into it, and the university wasn’t on notice that you were thinking about taking that course, you won’t be able to take advantage of any of the course materials to figure out whether you want to stay in that course because five days haven’t passed.

Thomas Logan: Right, and it’s back to me as the student, I’m supposed to download the entire syllabus and run it through an automated scanning tool and do all of this to put you on notice that the stuff that you’ve provided isn’t accessible. Yeah, it’s a difficult idea. It seems like then it’s up to the student to have to tell you it’s not accessible and a course is like three months long, right, and there’s a lot of things to look at in that course, be difficult to identify.

How Are Public Elementary and Secondary Schools Password-Protected Class or Course Exempt?

Ken Nakata: Yeah, so the next exception, which I hinted at, is very similar to the previous one, is for public elementary and secondary schools, the password-protected content, or course content in that case. It’s very similar to the one for post-secondary, and here I feel more strongly in both directions. Then I did for the last one.

So, in the context of elementary or secondary schools, you do have a really good idea about who’s going to be pre-registered for a course. High school students don’t just add or drop courses. They have a pretty good idea whether they want to take a course, and if they don’t like the professor, tough luck, they’re going to take the course anyway.

So, in that sense, it does make more sense. On the other hand, the other problem is that in elementary and secondary schools, I could be wrong, but I think there’s a lot more course content that’s there, that’s pre-generated by the publishing houses. And so, they would have an even stronger incentive to make that content accessible.

So, for that reason, I feel both more strongly that they should be exempted, but also more strongly that they shouldn’t be exempted. What do you think?

Thomas Logan: No, I definitely agree with you. I mean, for example, I don’t think I switched any classes in my high school curriculum. I pretty much was signed up, and that’s what I was taking.

So, I do think… Unless things have changed. I think that’s the normal idea is that for the most part, it’s less common to switch between classes. And yeah, I think there’s some element for me too different from university for some reason, but it’s really irking me the definition of password password-protected class because it basically to me means the class.

Like what’s the point of saying password-protected class is literally the education at this point? Like what content isn’t secured via a login or a student login? I know Google Classroom is very popular in public elementary and secondary schools, and I concur it’s like using, I think a lot of the same curriculum around the US at least.

So again, you have this idea of like, why would you need to be specifically asking in your local municipality to have that content be made accessible when it’s being used probably a hundred other municipalities?

Ken Nakata: Right. I agree.

That’s Not All for the Public Elementary and Secondary Exceptions

Let’s see. Let’s go through some of the fine points of these exceptions.

Thomas Logan: What’s your opinion of five business days of notice? What do you think about five business days?

Ken Nakata: Well, in the elementary and secondary education context, I’ve got less of a problem with it, but it’s not like college where you’re constantly adding and dropping courses. And I can understand why a school system would need some time to suddenly make all of their content accessible for a course.

Five days, if anything, seems a little bit short, but not if they thought about accessibility from the beginning and just thought that they always have to make content for courses accessible.

Thomas Logan: Yeah, and now that I’m posing this question, I’m really thinking, for the content that gets reused, what I really don’t want to see is, in one specific municipality, they’ve been put on notice, in fact, that particular municipality worked around the issue, and let’s assume it is third party content, reused.

Other places, I think it really sucks to pay money to fix that for this one municipality. And then that doesn’t get fed back into all the other people using the same content. So I would like some acknowledgment or point that if you’re making a correction or making a fix to content that comes from a third party, that’s reused in other places, the same fix should be available and used in other locations.

Cause I feel like that’s a big problem that we see forever. And accessibility is one specific place that makes the fix. And then no one else gets the fix.

Ken Nakata: Yeah, exactly.

I mean, how many times has that happened in state and local governments anyway? All the time.

Thomas Logan: And so much money spent over and over, whereas if it was just directly applied to the original source, everyone would benefit from that.

Notice and a fix. I think I’d like that to be called out more and acknowledged that when it’s not created by the instructor, or it’s coming from a third party company, that’s producing that when they receive the notice, they make it available to other classrooms using the same content. All right, G so last one.

Exceptions Regarding Individualized, Password-Protected Documents

Ken Nakata: Okay, now, paragraph G, I’ve got real problems with. So, this protects individualized password-protected documents. So, conventional electronic documents that are somehow specific to an individual, and that are password protected. And the thing that I think about is medical records. So, here, I mean, medical records in all of these systems are under a password-protected system.

It doesn’t have to be the document itself is password protected, but it’s in a system that’s protected. And basically, this means that if you’re blind, and you go to the doctor, and they’ve got… Yeah?

Thomas Logan: I’m going to interrupt this part. I think we should just keep it on the educational one because this is like going off into some other realm.

So maybe we should just talk about it in the context of education for G.

Ken Nakata: Okay. So, well, I mean, there are so many things that are passed or protected in, but the ramifications are, I think, bigger in medical records because that means that anytime that a person with a disability has to get access to their documents.

They’re going to have to go back to their doctor and say, Oh, I can’t get access to this document. Can you somehow tell me what the problem was in my medical condition? And then they tell you and then they never record that into the medical record system so that you have no collective memory of your doctor’s visits.

So in the education context, it’s. It’s largely the same, although I think it’s a little bit less severe. In the educational context, uh, I guess things like your report card, although, is that course content? No, probably not.

I don’t know.

Thomas Logan: I was wondering about that. I was like, that’s why I was just trying to say that.

I think it might make, given what we’re going on, because I think your point for G, we almost need to do a different article about that.

Ken Nakata: Yeah!

Thomas Logan: Because we’re in education. So I was thinking grades is what I was thinking for this. And I don’t know if that would be in there, but that seems like that, I was thinking that too, could we just do G about grades and be like, well, what if your grades are stored in a… if you’re a specific individual, password protected cause it’s your grades, that seems like specifically in the educations, it’s like, yeah, you need access to your grades.

Ken Nakata: Yeah. I don’t know whether that’s considered course content though. Again, you have to look through those 216 pages of preamble to figure that out.


Fact Sheet: Notice of Proposed Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities

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