EdLawConnect Blog

On August 25, 2015, we discussed the U.S. Department of Justice’s expectation for making websites accessible to disabled individuals, even in advance of the DOJ issuing any accessibility regulations. (See “Department of Justice Accelerates Expectations for Website Accessibility”) Late last year the DOJ released its Fall Statement of Regulatory Priorities. The statement announced the DOJ (1) expects to issue its Americans with Disabilities Act Title II Notice of Proposed Rulemaking on website accessibility early in 2016, but (2) has moved its anticipated rulemaking regarding website accessibility under Title III of the ADA to its “long-term action” list. Title II of the ADA applies to public services, including public educational agencies. Title III applies to “public accommodations,” which (despite the name) include most private businesses, from private schools and colleges to hotels, convenience stores, and movie theaters. Thus, public schools and colleges apparently can still expect applicable DOJ regulations in the spring of 2016, while private businesses may have to wait another two years or more. The DOJ stated this reason for delaying its Title III regulations yet again:

The Department believes that the Title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III web site accessibility NPRM. Consequently, the Department has decided to extend the time period for development of the proposed Title III web site accessibility rule and include it among its long-term rulemaking priorities. The Department expects to publish the Title III web site accessibility NPRM during fiscal year 2018.

The DOJ appears to expect the regulations for public services website accessibility to set the standard for later regulations that will apply to public accommodations. Even so, the DOJ continues to enforce requirements for website accessibility on all entities whether they are subject to Title II or Title III. The DOJ recently entered into settlement agreements requiring various entities to make their websites and mobile applications accessible under Title III. Additionally, as noted in our August update, in June the DOJ filed statements of interest in lawsuits filed by the National Association of the Deaf against Harvard University and the Massachusetts Institute of Technology challenging those entities’ online programming. In those cases, the DOJ contends as existing law (the obligation to provide effective communication) already requires such content to be accessible to the disabled, without awaiting completion of DOJ rulemaking. Both cases are still pending. Public agencies and private businesses should take all possible steps now to ensure their websites and online services provide equal access to users with disabilities. While the regulations may eventually clarify the DOJ’s expectations, accessibility is already the rule.