DOJ and ED Issue Joint "Dear Colleague Letter" Regarding Online Accessibility

The U.S. Departments of Justice (DOJ) and Education (ED) issued a joint "Dear Colleague Letter" (DCL) on May 19 regarding online accessibility issues across higher education.^Footnote1 The DCL informs the public and regulated stakeholders about the relevant statutory framework, guidance and regulatory landscape, and recent agency enforcement actions addressing inaccessible online services. Agencies generally use DCLs to share information with the public about their interpretation of a given statute or statutory framework. However, DCLs are not legally binding and are not issued pursuant to the formal notice-and-comment rulemaking process.

The DOJ and ED DCL states that while many institutions of higher education "increasingly rely on their websites and third-party online platforms to provide services, programs, and activities to members of the public . . . ," the content "is often inaccessible to individuals with disabilities."^Footnote2 The DCL subsequently notes that colleges, universities, and other postsecondary institutions are required by the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) to provide equal opportunities to people with disabilities in all of their operations, including online services, programs, and activities.

The agencies highlight how they've used their ADA and Section 504 enforcement authority to address inaccessible online services, programs, and activities across the higher education community. The DCL lists several examples, including a consent decree between the DOJ and the Regents of the University of California requiring the University of California, Berkeley to make publicly available online content on its platforms accessible to persons with disabilities. Such content includes Berkeley courses, university websites, and all content on YouTube, Apple Podcasts, and other third-party platforms. Additionally, the DCL notes that the ED Office for Civil Rights (OCR) has resolved and monitored more than one thousand cases related to digital access. OCR launched one hundred compliance reviews in May 2022 alone and has since resolved more than fifty of them.

The release of the DCL is noteworthy as both DOJ and ED are expected to issue revised regulations on web accessibility this spring.^Footnote3 The letter reminds readers that DOJ intends to issue a notice of proposed rulemaking to amend its ADA Title II regulation. The amendment is aimed at providing technical standards to help public entities comply with their website accessibility obligations. That regulatory item is currently being reviewed by the Office of Information and Regulatory Affairs, one of the final steps before a proposed regulation is made public.^Footnote4 Similarly, the DCL notes that ED intends to publish a notice of proposed rulemaking to amend its Section 504 rules to address web accessibility. Section 504 rules have not been updated since 1977.

EDUCAUSE will keep members apprised of any developments related to the anticipated forthcoming regulations from ED and DOJ, and staff will continue to watch policy issues related to web accessibility closely.

Notes

1. Kristen Clarke and Catherine E. Lhamon, "Dear Colleague Letter," May 19, 2023. Jump back to footnote 1 in the text.↩
2. Ibid. Jump back to footnote 2 in the text.↩
3. Kathryn Branson, "Web Accessibility Regulations Are Poised to Be a Focal Point in Spring 2023," EDUCAUSE Review, December 14, 2022. Jump back to footnote 3 in the text.↩
4. Kathryn Branson, "DOJ Web Accessibility Regulations Are Imminent," EDUCAUSE Review, April 25, 2023. Jump back to footnote 4 in the text.↩

Kathryn Branson is a Partner at Ulman Public Policy.