Web Accessibility Regulations Are Poised to Be a Focal Point in Spring 2023

The U.S. Department of Justice (DOJ) included a notice in the Biden administration's Spring 2022 Unified Regulatory Agenda update regarding its intent to issue a notice of proposed rulemaking (NPRM) on new web accessibility regulations for state and local government entities under Title II of the Americans with Disabilities Act (ADA).^Footnote1 Specific information about what an NPRM would include are not publicly available at this time. The regulatory item projects that the DOJ will issue an NPRM in April 2023 and accept public comments on the proposal for a two-month period.

In the absence of any information regarding new web accessibility regulations, the higher education community may look to the agency's last regulatory action on this topic to glean potential insight into the priorities of the DOJ. That action was a supplemental advance notice of proposed rulemaking (SANPRM) issued by the DOJ in 2016, where the agency sought public feedback on possible web accessibility regulations under Title II.^Footnote2 Among other considerations, the DOJ proposed using the Web Content Accessibility Guidelines as the basis for its web accessibility regulations. EDUCAUSE led several associations in responding to the 2016 SANPRM on behalf of the higher education community and will likely use these comments as a starting point for a response to the anticipated 2023 NPRM.^Footnote3 Given the scope of Title II, only public higher education institutions would be impacted by the forthcoming regulations. However, the DOJ has used rulemaking efforts under Title II as the basis for subsequent regulatory actions for public accommodations under Title III of the ADA, which would extend to private institutions.

At the same time, the Department of Education Office of Civil Rights (OCR) announced in May that it would solicit public input on possible amendments to regulations implementing Section 504 of the Rehabilitation Act of 1973.^Footnote4 Section 504 prohibits discrimination based on disability in public and private programs and activities that receive federal financial assistance, including higher education institutions. The OCR is charged with updating and enforcing Section 504 as it pertains to its regulated community, and the department has not updated those regulations since 1977. We expect that any updates to Section 504 regulations will address IT and web accessibility, particularly given the department's recorded concerns about ensuring equitable student access to online learning during the COVID-19 pandemic. The OCR will likely issue an NPRM around Section 504 updates in the spring of 2023.^Footnote5

EDUCAUSE will continue monitoring activity from the DOJ and OCR concerning both of these regulatory items and will keep members apprised of updates as we head into 2023.

Notes

1. U.S. Department of Justice, Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments, in Office of Information and Regulatory Affairs Office of Management and Budget, Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, 1190-AA78, Spring 2022. Jump back to footnote 1 in the text.↩
2. Jarret Cummings, "EDUCAUSE Comments: ADA Web Regulations Supplemental Advance Notice," EDUCAUSE Review, October 12, 2016. Jump back to footnote 2 in the text.↩
3. "EDUCAUSE Comments: ADA Web Regulations Supplemental Advance Notice," EDUCAUSE (web site), October 11, 2016. Jump back to footnote 3 in the text.↩
4. "U.S. Department of Education Announces Intent to Strengthen and Protect Rights for Students with Disabilities by Amending Regulations Implementing Section 504," U.S. Department of Education, May 6, 2022. Jump back to footnote 4 in the text.↩
5. Nondiscrimination on the Basis of Disability, Spring 2022 Unified Agenda. Jump back to footnote 5 in the text.↩

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Kathryn Branson is a Partner with Ulman Public Policy.