The disappearance of the White House Accessibility Statement from the White House website on President Trump’s first day in office is more than symbolic – it signals a larger problem. The day also saw the removal of two critical Office of Management and Budget (OMB) memoranda from the White House website. This move has significant implications for government transparency and accessibility for people with disabilities.
Federal Website Accessibility: A History of Progress and Uncertainty
Section 508 of the Rehabilitation Act requires information and communication technology purchased or used by the federal government to be accessible in conformance with federal digital accessibility guidelines based on the Web Content Accessibility Guidelines 2.0 Level A and AA (WCAG). But we all know laws don’t implement themselves.
Although Section 508 had been in place since 1998, people with disabilities still face significant barriers to accessing federal digital information and services. OMB Memorandum M-24-08 required federal agencies to
- post an accessibility statement
- designate a Section 508 program manager
- assess, update, and publish their accessibility policies and procedures, and
- report on their progress.
It also required the General Services Administration and the Access Board to implement a standardized reporting process for agencies to report on their accessibility efforts and progress, to expand training on Section 508, and to explore the creation of an accessibility testing lab.
OMB Memorandum M-23-22 implemented the 21st Century Integrated Digital Experience Act by requiring federal agencies to ensure their websites, digital services, and mobile applications were, among other things, accessible to people with diverse disabilities.
- It also required federal agencies to prioritize providing forms and services through digital formats.
- It required any new or redesigned websites, services and forms to be fully accessible by March 20, 2024 and required agencies to prioritize digitization and accessibility of existing sites, services and forms.
- It provided for annual reporting of agencies’ progress.
These are more than just “memos.” Federal agencies are answerable to OMB and must follow OMB mandates.
These memoranda drove agencies to improve accessibility. After more than two decades of Section 508 being in place, federal attention to accessibility finally improved over the past two years. And the results were transparent through substantive GSA reports on the subject. A lot of work remained to be done – only 23% of the top-visited public federal websites fully conformed to the Section 508 standards.
Now, with the new administration’s apparent disinterest in continuing these initiatives, transparency and accountability are at risk. I fear all that progress will now stop if GSA, Congress, and the public are not getting insight into agencies’ status and progress. Rather than being able to rely on government self-oversight, it will fall increasingly on private individuals and organizations to enforce the law.
State and Local Government Websites: Title II in Question
Regarding the accessibility of state and local governments (including public schools and public colleges), the Department of Justice issued a final regulation making clear that Title II of the Americans with Disabilities Act (ADA) covers the websites of state and local governments and requires them to meet the Web Content Accessibility Guidelines.
We don’t know:
- Whether the new Administration will take action to revoke that rule, or
- Whether the federal government will enforce that rule when it becomes effective in a little less than two years (right now the Civil Rights Division is subject to a White House-mandated freeze on enforcement of all civil rights).
But it is difficult to revoke a rule – the administration would have to go through a full rulemaking process (drafting the rule, providing notice and accepting comments on the rule, addressing the comments, and issuing a final rule).
And state and local government entities were already covered by Title II of the ADA regardless of the rule. Title II has always required equally effective communication for people with and without disabilities. So it would require an amendment to the law to exempt state and local government websites. We don’t know whether the Trump Administration cares enough about this issue to take action to amend the law, which is even more difficult than rescinding a rule.
Private Business Websites: A Murky Future
For private business websites, the Department of Justice’s Unified Regulatory Agenda previously signaled its intent to issue a similar rule under Title III of the ADA covering private business websites. That appears very unlikely to move forward. Given the anti-regulatory approach of this Administration, it is unlikely any regulation on web access will move.
And, even without a regulation, most courts find that Title III of the ADA requires accessibility of, at least, businesses that have physical brick-and-mortar stores. The question will remain in the courts regarding whether online-only businesses are subject to Title III accessibility requirements. The Department of Justice has always said they are covered, but it hasn’t done much to enforce that requirement against online-only businesses. I expect it will be more silent on this question in the next few years. But that circuit split makes little difference, because websites are accessible nationally and can be sued in the circuits that apply the ADA to online-only businesses.
I expect the enforcement of both Title III’s existing “effective communication” requirement and Title II’s more specific regulatory requirements will continue to fall largely on private individuals and organizations in court. The Department of Justice may not do much to enforce those requirements, but that won’t stop private enforcement.
State laws also play a role, with some mandating website accessibility and offering damages, unlike Title III.
The Road Ahead
The removal of the OMB accessibility directives and the broader deregulatory agenda pose significant challenges to digital accessibility. Without government transparency and enforcement, much of the burden will fall on private citizens, advocacy organizations, and the courts to ensure the increasingly digital world is open to people with disabilities.
The fight for accessible digital spaces is far from over – and may be losing ground. Continued advocacy and vigilance will be critical to preserving and expanding the progress made over the past two decades.
About Eve Hill:
Eve Hill, one of the nation’s leading disability and civil rights attorneys, co-leads Inclusivity. She previously served as Deputy Assistant Attorney General of the U.S. Department of Justice, Civil Rights Division, where she was responsible for oversight of the Division’s disability rights enforcement and educational civil rights implementation. Her responsibilities included enforcement, regulation, and policy development regarding accessibility requirements for websites and other digital technology; Olmstead community integration requirements in employment and education; and disability rights in education, law enforcement, and health care.
About Inclusivity Strategic Consulting:
Inclusivity Strategic Consulting works to help government and private entities navigate a clear path to web accessibility to best serve all of their audiences and minimize potential liability. Inclusivity can help organizations adopt policies and procedures, priorities, and contractual requirements to make their websites and mobile apps accessible and keep them accessible into the future. Inclusivity is part of Brown, Goldstein & Levy, a leading civil rights law firm with offices in Baltimore, MD and Washington, D.C.