ADA Web Accessibility Regs Likely Just A Matter of Time

Between the Kindle e-reader lawsuits, Google Apps for Education civil rights complaints, and Penn State’s recent settlement of a National Federation of the Blind (NFB) complaint about its general technology environment, the accessibility of technology in higher education to those with disabilities has become an issue of growing concern across colleges and universities. As the U.S. Department of Justice (DOJ) continues to explore potential regulations for setting web accessibility standards under the Americans with Disabilities Act (ADA), those concerns may grow significantly over the next few years.

In July 2010, DOJ posted revised regulations for ADA Titles II and III, reflecting the first major revision of accessibility standards under the ADA since the early ‘90’s. At the same time, DOJ released four “Advance Notices of Proposed Rulemaking” (ANPRMs) to announce its consideration of possible further revisions to the ADA Title II and Title III regulations and begin gathering public feedback and recommendations. One ANPRM concerns the possible establishment of web accessibility standards for state and local government entities (Title II) and places of public accommodation, such as stores, hotels, and schools (Title III). At a recent National Association of College and University Attorneys (NACUA) compliance workshop, two accessibility law attorneys jointly presented on DOJ’s possible web accessibility regulations, including the standards those regulations are likely to incorporate and the potential timeframe for institutional implementation once they are finalized.

The attorneys, Teresa Jakubowski of Barnes and Thornburg and Joshua Stein of Proskauer Rose, agreed that the case law on the applicability of ADA to web sites and the accessibility standards web sites should meet remains “unsettled,” particularly in relation to whether the web sites of private entities defined as “places of public accommodation” should have to meet any ADA Title III web accessibility requirements. However, they also agreed that DOJ interprets the ADA as applying to the information, communication, and services delivered by public entities and private sector “places of public accommodation” via the Web, and thus that the department fully intends to establish web accessibility standards for them.

It is not clear when DOJ will move from this exploratory stage to posting proposed regulations for public comment via a Notice of Proposed Rulemaking (NPRM). However, the ANPRM on web accessibility and DOJ settlements with public and private entities in recent years indicate that DOJ is likely to derive its regulatory standards for web accessibility, whenever they are published, from the Rehabilitation Act Section 508 technology accessibility standards federal agencies and contractors must meet and the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG).

The U.S. Access Board, the federal agency charged with setting accessibility standards under the Rehabilitation Act, ADA, and other relevant laws, is in the process of revising its Section 508 standards to better align them with the WCAG standards. This should simplify DOJ’s standards selection process as well as provide institutions trying to anticipate those standards with some sense of direction. While the Access Board does not anticipate completing its “refresh” of Section 508 until 2013, the fact that it is using WCAG as its reference point indicates that colleges and universities interested in “future-proofing” their web sites in relation to potential regulations should probably reference WCAG as well.

Also, the ANPRM indicates what a likely compliance schedule for any ADA web accessibility regulations would look like. Should DOJ follow the schedule currently under consideration, websites created or substantially revamped starting six months from the effective date of the final rules would have to comply with them. Likewise, new pages added to a site starting six months from the date the regulations take effect would have to comply “to the maximum extent feasible.” For existing websites, entities covered by Titles II and III (in the case of higher education, public institutions definitely, and private institutions to the extent they fall under the “places of public accommodation” definitions) would have two years from the regulations’ effective date to bring their sites into compliance.

Again, DOJ has not posted any proposed regulations setting web accessibility standards under the ADA, and it has yet to provide a timeline for when it might do so. Meanwhile, the extent to which private institutions might have to comply under Title III regulations remains to be seen. However, DOJ has clearly signaled its intent to establish web accessibility standards, and to make them as broadly applicable as possible. To the extent colleges and universities are unsure if their web sites and applications meet accessibility standards, they may wish to evaluate their web presences in relation to current Section 508 and WCAG standards and set their near- and long-term web site/services plans accordingly. While that does not guarantee sites and services will fully align with the ultimate regulatory standards, it will most likely put institutions on the best path to compliance once standards have been set.

[Please note that the factual information in this post as well as significant parts of the analysis were drawn from the following briefs provided at the NACUA Fall 2011 CLE Workshop, “College and University Compliance Programs: Organization and Key Compliance Obligations,” November 9-11, 2011:

• Teresa L. Jakubowski, “ADA Facilities and Technology Accessibility Compliance—ADA Titles II and III: Regulatory Developments and the New Frontier for Accessibility Issues”
• Joshua A. Stein, “Accessibility & Technology: Navigating the Evolving Landscape”]