On October 2, the Center for Democracy & Technology (CDT) submitted a comment to the Department of Justice in response to its notice of proposed rulemaking on enhancing the accessibility of web and application-based information and services under Title II of the Americans with Disabilities Act (ADA).
CDT commends the Department of Justice both for requesting comments on this subject, as well as for identifying WCAG (Web Content Accessibility Guidelines) technical standards as the primary method of compliance with accessibility requirements. WCAG standards are rightfully well-regarded due to the expertise of those who participate in the creation of the guidelines, as well as the specificity and clarity of those guidelines.
However, WCAG has released new standards more frequently than the Department has updated Title II in the past; as a result, adhering to an older standard may eventually prove counterproductive to the rule’s accessibility goals. Indeed, WCAG 2.2 will likely be published before the rule is finalized, and newer versions are likely forthcoming. CDT recommends that the Department instead require covered entities to adhere to the most recent WCAG standard. This will benefit disabled individuals by ensuring that they are able to access services that adhere to the most up-to-date accessibility guidelines, as well as the state and local governments who are covered under the rule, enabling them to more easily find vendors and consultants (who may provide services against current standards).
To ensure that compliance with new standards is as seamless as possible, the final rule could provide for a process for expedited administrative review of new Recommendations, and confirmation that the rules apply to the more recent published standards. In particular, future minor versions, which are additive and backwards-compatible with WCAG 2.1, should be adopted for Title II compliance as a matter of course, without requiring an additional lengthy rulemaking process.
We believe that requiring covered entities to comply with the most recent WCAG standards, and providing processes to do that easily, rather than codifying WCAG 2.1 as the final standard for accessibility compliance, will enhance the efficacy and longevity of the rule. We look forward to the Department’s final rule, and the positive impact that it will have on people with disabilities in digital spaces.