Accessibility in the Spotlight: Department of Justice Regulations

On June 24, 2024, the Department of Justice (DOJ) issued its final rule revising the regulation implementing Title II of the Americans with Disabilities Act (ADA).

The new regulation establishes specific requirements, including the adoption of specific technical standards, for making the services, programs, and activities offered by state and local government entities to the public through the web and mobile applications accessible.

This rule, which currently covers only public universities and colleges, went into effect on June 24, 2024, with compliance expected in the next two to three years, depending on the size of the total population the institution serves. We anticipate, however, that these regulations will eventually serve as a template for further action by the DOJ and the Department of Education, which would also apply to private institutions.

Background – Ensuring Equal Access

The rule came about, in part, as a recognition of the increasing reliance on web and mobile content as well as the challenges, such as lack of independence and privacy, that can stem from accessibility barriers to this content. Additionally, the rule recognizes that accessible digital spaces benefit everyone. Finally, voluntary compliance with accessibility guidelines has not resulted in equal access for individuals with disabilities; accordingly, organizations urged the Department to take regulatory action to ensure web content and mobile app accessibility. According to the Department of Justice, this rule is necessary to help public entities understand how to ensure that individuals with disabilities will have equal access to the services, programs, and activities that public entities provide or make available through their web content and mobile apps.  

Updates Made in the Regulation

This rule adds a new subpart (H) to the Title II ADA regulation, 28 CFR part 35, that sets forth technical requirements for ensuring that web content and mobile apps that state and local government entities, including public universities and colleges, provide or make available, directly or through contractual, licensing, or other arrangements, are readily accessible to and usable by individuals with disabilities. The rule applies one consistent standard to both web content and mobile apps (including social media platforms) to ensure clarity and reduce confusion. Additionally, the rule preempts state laws affecting entities subject to the ADA only to the extent that those laws provide less protection for the rights of individuals with disabilities.  

The Department of Justice has adopted the internationally recognized accessibility standard WCAG 2.1 Level AA success criteria and conformance requirements (including for captioning). Public entities are expected to adhere to this standard unless they comply by conforming their web content to WCAG 2.2 Level AA, which provides equivalent or greater accessibility.

The rule emphasizes that public entities are responsible for complying with their ADA obligations even when their services, programs, or activities are offered through contractors such as learning management system companies, content from publishers, YouTube videos, social media, and the institution’s mobile app. Thus, institutions are now responsible for the accessibility of any vendor that provides services related to their websites or mobile presence.

There are, however, five very limited compliance exceptions.

1. Archived web content that is not currently being used. However, in order to be exempted this content must meet four additional requirements. WCET and SAN have reviewed those requirements and believe that it will be very difficult for institutions to meet them.
2. Pre-existing conventional electronic documents such as word processing, presentation, PDF, or spreadsheet files, unless those documents are used to apply for, gain access to, or participate in the public entity’s services, programs, or activities.
3. Content posted by a third party if the third party is not controlled by, or acting for, the entity.
4. Individualized password-protected documents about a specific individual, their property, or their account. Note that this does not include password-protected content, such as instructional content in a learning management system.
5. Preexisting social media posts made by an institution before the date the institution must comply with the rule.

Compliance Timeframe

The date by which institutions must be compliant with the new rule is based on the population served by the public entity:

• Large entities, those institutions serving a total population of 50,000 or more, must comply by April 24, 2026.

• Small entities, those institutions serving a total population of less than 50,000, must comply by April 26, 2027.

Note that the total population is not the population of the institution; rather, it is the population of the area that the institution serves. For example, the total population of a public state university would be the total population of that state. The total population of a community college would be the total population of the district that it serves. WCET and SAN believe that this means that almost all four-year and two-year institutions would be considered large entities and must comply by April 24, 2026.

WCET will focus on accessibility during the month of August with a special emphasis on these regulations. Here is some of what we have planned:

• Frontiers posts from accessibility experts in the field.
• Newly announced Closer Conversation event about the regulations for members to discuss their institutional challenges and concerns and share how they plan to address these regulations. Seats are limited! Register now.
• A new, member-only resource: Access for All: New Accessibility Rules For Public Entities. This brief outlines the regulations in greater detail and includes a flowchart highlighting key questions to guide an institution’s processes to ensure compliance. This resource is only available to WCET and SAN members. Click the links below to download.

Post authored by Van Davis and Judith Sebesta

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