We at AFB are thrilled that the U.S. Department of Justice (DOJ) published its final rule on website and mobile application accessibility this week. This rule is the culmination of decades of advocacy and rulemaking and marks a significant step in ensuring that the digital environment is fully accessible to people who are blind, have low vision, or are deafblind.
Getting this rule on the books has been one of AFB’s top policy priorities over the past several years, and in October 2023 we submitted lengthy comments on the proposed rule. In those comments, we cited numerous recent AFB research studies that demonstrate both the prevalence of digital accessibility barriers and the resulting human and institutional consequences. We also argued for the rule to be strengthened by removing all of the exceptions. We did not prevail on all points, but these comments and our leadership and collaboration with the Consortium for Constituents with Disabilities did result in the most egregious exceptions being removed.
As noted in our press release earlier this month, we are incredibly grateful to the staff and leadership at DOJ and in the Biden administration for their work in bringing this rule across the finish line. We are also deeply grateful to the 264 local, state, and national disability organizations that collaborated on cohesive, disability-community comments on this rulemaking.
Core Elements of the Rule
This final rule applies to state and local governments and certain other governmental entities (referred to as public entities) and implements Title II of the Americans with Disabilities Act (ADA). These public entities include city councils, public schools and colleges, transit authorities, public utilities, and even the National Railroad Passenger Corporation, better known as Amtrak. Although this rule applies only to public entities, we expect that this rule will be influential for future rulemakings, including those covering private businesses and recipients of federal funding.
The rule requires public entities to make all of their websites and mobile apps conform to the Web Content Accessibility Guidelines (WCAG) 2.1, Levels A and AA, within either 2 or 3 years. The timeline for each entity is determined by the size of the community it serves, with large entities (those serving more than 50,000) needing to comply by April 2026 and other entities complying by April 2027. In the meantime, public entities must still ensure that people with disabilities have access to websites and mobile apps either through accessible design or by providing reasonable accommodations and modifications as needed.
The DOJ has also established five exceptions for when web content and mobile apps do not have to conform to the WCAG standard. Public entities must still meet other requirements of the ADA which may include providing other means of accessing this content or providing accessible versions on request. The five exceptions cover:
- Certain archived web content that is unmodified, created before the compliance date, and used for research, recordkeeping, or reference, especially digitized versions of physical media like paper documents or old video recordings.
- Some PDFs, word processing documents, presentation files, and spreadsheets that were or will be created before the compliance date.
- Content posted by a third-party on a public entity website, unless the public entity has an arrangement with the third-party to post that content.
- PDFs and some other document types that are personalized to an individual or their property and are accessed through a secure portal, such as bills or PDFs of patient information.
- Social media posts that are created prior to the compliance date.
Changes Made in Writing the Final Rule
Given the advocacy of AFB, individual commenters, and other disability organizations, DOJ opted to remove 3 proposed exceptions. In the proposed rule, the DOJ planned to exempt educational content that was accessed through a secure portal from this accessibility rule. We and many others were extremely disappointed in this proposal because of the outsized importance of educational accessibility for students with disabilities. In the end, citing AFB’s Access and Engagement research, the DOJ removed the two exceptions for public educational content from the final rule!
One other exception that covered external content linked on public entity websites or apps was also removed. While we are somewhat disappointed that DOJ clarifies that entities are not bound to ensure that all external content to which public entities link must be accessible, they do state that any content that is linked to as part of a contract, licensing agreement, or “other arrangement” must be accessible. In practice this means that if a school links to a digital textbook that it has purchased, that linked content must be accessible. However, if a tourism agency links to a number of external restaurants that are not affiliated with the public agency in any way, then the public entity is not responsible for ensuring those external sites are accessible.
Other Limitations
The DOJ outlines other limited situations in which public entities may be excused from full conformance to the WCAG standard. These situations include web content that cannot technically or legally be made fully accessible and when entities cannot make specific content accessible given budgetary or programmatic limitations. This might occur when a very small town has a large online exhibition of sound recordings contributed by the community but no staff who could make the entire collection accessible within three years.
Entities may also be excused from 100% compliance with the WCAG standard if the noncompliance has no real effect on access. Importantly, the DOJ clarifies that people with disabilities must still be able to access content with “substantially equivalent timeliness, privacy, independence, and ease of use” as a person without a disability would. The intention is to ensure that people with disabilities can use public entity websites and mobile apps fully while acknowledging that websites are always changing and that the standard may be more specific than necessary in limited circumstances. One example might be a link color with slightly less color contrast than dictated in the standard that does not affect how people with low vision or colorblindness interact with the link. This provision should ensure access without unnecessarily penalizing public entities for an unimpactful mistake.
We are excited to see this provision added to the final rule because it pairs the technical standard with a functional definition of accessibility. AFB has been advocating for this concept in the Websites and Software Applications Accessibility Act.
First Impressions
In general, we are pleased with the rule DOJ has published. This rule sets a high bar for website and mobile app accessibility for public entities and should substantially improve access to public services for people who are blind or have low vision. While we might wish for a shorter compliance time or fewer exceptions, we are grateful that DOJ finalized a rule that incorporates feedback from the disability community. And, the DOJ will likely achieve its stated goal: Most web content created on or after the compliance date will have to be made accessible to people with disabilities, and over time, less and less information posted on public entity websites and apps will be inaccessible to people with disabilities.
For our part, we will be spreading the word, so that entities and individuals alike know what is to be expected when the rule goes into effect. And, we will continue advocating for digital accessibility in other environments as well, most notably for regulations that cover public accommodations under Title III of the ADA.
