Publishing Fact or Fiction: Getting Ready for ADA Title II

In this episode, Alli DeMan is in conversation with Michael Johnson, Vice President of Content for Benetech. They review some facts and myths about the requirements that publishers need to be aware of pertaining to Title II of the Americans with Disabilities Act, which becomes effective in April 2026.

Transcript

[00:06] Nicole Tomassi: Welcome to Westchester Words Education, edtech and Publishing.

[00:10] I'm Nicole Tomassi, and in this episode my colleague Alli Deman will be speaking with Michael Johnson of Benetech.

[00:17] Michael has appeared on several of our podcasts and webinars, and as Vice President of Content for Benetech, he works with publishers to keep them informed about what they need to be aware of when they're creating digital content that is fully accessible.

[00:30] For the record, Westchester is a Benetech Global Certified Accessible Vendor, and we have been pleased to work with Michael and the rest of the Benetech team over the last several years to support publishers with providing content for their readers that meets accessibility standards.

[00:44] Today's discussion is going to focus on Title II of the Americans with Disabilities Act.

[00:49] As with any new or updated legislation, there is some confusion out there about who is affected and the potential liabilities, so Ali and Michael are going to sort through several facts and fictions to help you better understand what you need to be doing now in order to be fully prepared.

[01:05] Alli, welcome to Westchester Words.

[01:08] Alli DeMan: Thanks Nicole. I'm excited to be here. Michael, welcome back to the podcast. I'm looking forward to our conversation today.

[01:14] Before we get started, I hear you were named an Accessibility Ally Coach in the new one EdTech Plus WCET plan to deliver Accessibility Workshop series.

[01:23] Congratulations.

[01:24] Michael Johnson: Thank you. I'm excited about that opportunity. They're a great organization and we're looking to do a lot of good for a lot of their members and most importantly for the students they serve.

[01:33] Alli DeMan: Before we go through some of the truths and myths that are out there about ADA Title II, could you give listeners a brief overview about the legislation?

[01:41] Michael Johnson: Sure. The American with disabilities act is 30 plus years old, so it's been around for a long time, and it continues to adapt to changes in technology.

[01:49] Originally the focus was on physical disabilities, mobility issues, curb cuts, ramps instead of stairs, things like that, Braille on doorways and bathrooms.

[01:59] But as technology continues to advance,

[02:02] there are additional requirements in the American with Disabilities act,

[02:06] like closed captioning and things such as that. The current iteration is all about getting all digital information all within public institutions, including schools and libraries, county governments and things like that, to be fully accessible from a digital perspective so that the legislation is in place and has been in some place for some time.

[02:29] And it comes into effect starting just in a few months in April of 2026 for any institution which serves an audience larger than 50,000 people.

[02:39] Alli DeMan: Thanks, Michael. That's certainly important for everybody to know.

[02:42] Let's start our Fact or Fiction with this situation,

[02:44] a university press might say, our university press is part of a private college, so we don't need to worry about Title two, right?

[02:51] Michael Johnson: Yeah. So that would be a fiction. Because if the private college serves the public,

[02:57] then they are most likely held bound. This is not about receiving money from the federal government or the state government. This is about delivering public services.

[03:05] Now, I'm not a lawyer, and nothing I say today should be construed as legal advice,

[03:10] nor am I able to offer anyone legal protection.

[03:12] But in general, if you are serving the public,

[03:15] then you are held bound by these regulations.

[03:18] And the university press, most often in its structure, is part of the university itself. And the university would also be held bound. And anything the university press would do would put the university itself at risk.

[03:30] Alli DeMan: Okay, how about the scenario? I work for a trade publisher, and my company isn't involved in education or government services, so this doesn't affect me. Right.

[03:39] Michael Johnson: It would still affect your website, but it might not affect you directly.

[03:44] Perhaps it will affect the people you sell to. Right. You say you're not involved in education, but if you're selling books through a distributor or through your own distribution to universities or public libraries or schools,

[03:57] then you might be the cause of one of your customers being sued.

[04:01] So it is possible there might be some indirect protection because of your content not causing that problem, but your website would be still impacted.

[04:11] Alli DeMan: There's a lot of nuance to that. Thanks for clearing that up.

[04:14] Is it true that organizations that have to comply with Title II have an extra year if the population of their service area is less than 50,000 people?

[04:23] Michael Johnson: So the population is anybody who lives there. So it's not how many students or how many patrons you have in your public library. If you're a state university as an example, then you by definition serve everybody in your state.

[04:36] So there are no states in the United States that have less than 50,000 people. So that wouldn't hold up. It really depends on who you're offering service to. So if the entire community that you're offering service to is less than 50,000 people,

[04:50] then you have until April of 27.

[04:53] But again, if you're a state university or community college or public library or something, and the base of people you serve, it's also the population. Right. So it's just not how many students are there, it's how many people live in the area where you deliver the service.

[05:08] Alli DeMan: So if you're a trade publisher, for.

[05:10] Nicole Tomassi: Example, and just your customer base and who they serve is in excess of 50,000 individuals, then you have to be compliant by the end of April 2026.

[05:21] Michael Johnson: So the publishers themselves might not be held directly to account on this, but the people they serve would be. And so more and more buyers, whether they're schools, libraries, universities, county governments, whoever they are, are beginning to put into their procurement details,

[05:41] you will comply and indemnify me against getting sued.

[05:46] Alli DeMan: Another question I had. Archive digital content is exempted from the requirements, right?

[05:51] Michael Johnson: So this is one where I'm really like double extra, not a lawyer.

[05:55] If it's archived and it's not available for sale, then yes,

[05:59] if it's archived and it is part of a sale, then we're going to find that out on the first court case. And I wouldn't want to be the person involved in the first court case.

[06:08] So that's a muddy answer and I apologize, but there hasn't been enough investigation on that piece. My advice is with archive material, the same as my advice is with Backlist, which is really think about why you still have it.

[06:21] And if there's a business reason to still have it, well, then you should make it accessible. If there's not a business reason to still have it, then Jeff Bezos doesn't need any more money for your AWS server lights going off and on, so you should probably not have it anymore.

[06:34] Alli DeMan: Great answer. Here's one more for you,

[06:36] really a therapeutic question, but let's say somebody was to ask. I work in educational content and our books and files are distributed to schools, libraries, online platforms and more.

[06:48] We've got things in so many different formats. We have print, web PDFs, some fixed layout, epubs, audio files, video files.

[06:55] Where do I start and how do I build a plan to address these different kinds of needs?

[07:00] Michael Johnson: Wow. Well, you should come over and sit on my psychiatrist couch here so I can work you through the mental impact of that question.

[07:07] I would start with the things which sell the best. And I don't mean that to be a crass commercial answer, but that's the reality,

[07:15] because the more you sell something, the higher the risk is.

[07:17] And then I would work your way down. And just like with the backlist, I would encourage you to make sure anything you have on offer for sale is really, quote, unquote, worth it.

[07:27] Right?

[07:28] And anything you're going to have for sale should be in compliance now, having things be fully digital compliant,

[07:34] they're better products anyway, so you're making better product. And so it's a good path to go through to get everything up to speed as far as formats go.

[07:43] I strongly Caution everyone away from any type of fixed layout, whether it's a fixed layout, epub, whether it's a PDF or whatever,

[07:50] because fixed layout is not possible to make accessible in the true fashion the meaning of the word.

[07:55] So you want to work towards reflow.

[07:57] The key action item here is stop doing the wrong things and start doing the right things right away and then work backwards from there.

[08:05] Alli DeMan: That's some great advice. So to end this off nicely, can you tell us something people should know about Title II that we maybe haven't discussed already?

[08:14] Michael Johnson: You know, that's a great question, and I get asked some form of that question almost every time I do one of these.

[08:19] I would point you to the Title II legislation, which is available on the Department of Justice website, so you can read through that if you're having trouble sleeping.

[08:26] The issue which is probably more impactful is not actually Title ii.

[08:31] It's all the states that are passing what is typically more aggressive legislation.

[08:36] So if you're doing business in states like Missouri, Maryland,

[08:40] Colorado,

[08:41] Texas,

[08:42] starting now in California and apparently soon in Oregon, in those kinds of states,

[08:47] those legislative issues are much more strict and the punishments are much higher than in the federal circumstance. I would also say it's not so bad if you or your customer gets the federal government showing up on your doorstep to say you're out of compliance,

[09:04] because they will work with you in a much more gentle fashion.

[09:07] A private lawsuit brought by anybody who lives in that service area is going to be a lot more difficult because those lawyers understand the law and they're coming for blood and money, blood and treasure, as we used to say.

[09:21] And the reality of the situation is there are no gray areas in this legislation.

[09:27] Typically with the people who bring the suit, they will bring somebody with a visual impairment and they'll ask them straight up, maybe even in the courtroom,

[09:34] can you read this content? And if the answer is no, then it's not accessible. That's oversimplification, but we don't have a lot of time.

[09:40] So I would say state legislation is something you need to dig into and understanding that the real legal danger, and that should not be your motivation here. Your motivation should be building better content and provider better service.

[09:53] But if, when you're focused on the legislation, as we are in this podcast,

[09:58] private litigation from anybody who lives in that service area.

[10:01] So as an example,

[10:03] I'm not a student. I'm not a staff member of a public library or a university or a K 12 school district.

[10:09] I don't have a print disability,

[10:11] but I live in a service area of plenty of those types of institutions. And I could, if I sensed a violation,

[10:17] sue any of them. As a, as a person just saying, hey, you're violating the law. And that is a whole ‘nother aspect of legal jeopardy than waiting for the federal government to come after you.

[10:28] Now don't be confused either. The federal government is still coming after people quite regularly and they have actually have a website of everybody they're currently investigating. So there, there's a lot going on around that.

[10:38] So I didn't directly answer your question, Allie, but I think it was still useful.

[10:41] Alli DeMan: I hope it was definitely useful.

[10:44] Thanks so much for being here to help people understand Title II and what steps need to be taken.

[10:49] Nicole, I'm going to toss it back to you.

[10:51] Nicole Tomassi: Thanks, Allie. Michael, it sounds like from what you're saying that the state legislation may be more stringent than the ADA Title 2 and the EAA. Did I hear that right?

[11:03] Michael Johnson: You are quite correct. There, there, there's two main aspects. I'll give you two examples. In the state of Maryland,

[11:08] state funded institutions cannot buy anything that is not certified accessible.

[11:15] And if they feel they really need to buy something that's not certified accessible,

[11:19] they have to go to the Department of Education to get a waiver to buy that product.

[11:24] That could be a textbook, that could be a reading book,

[11:27] that could be a math program, whatever it is.

[11:30] So they are no longer allowed to buy products which have not been certified accessible.

[11:35] In Colorado, it's anything you're going to buy and everything you have already bought. So in Colorado, again, if you're getting state funding,

[11:44] you have to examine everything you already own to ensure that it complies.

[11:50] Nicole Tomassi: That is food for thought right there.

[11:52] Michael Johnson: Yeah, they're not messing around. You're a state legislature. You got people in your neighborhood who are students or parents or blind people or whatever. And you got to look at those.

[12:01] You know, you interact with those people all day, every day. In the federal legislation, you still have those people. But how often does somebody actually see their senator or whatever?

[12:09] And the local voices are much stronger obviously in a, in a state than they would be on a national level.

[12:15] Maryland has, I don't remember the exact title, but in the governor's cabinet in Maryland is somebody like the Director of Disability. It's a cabinet office in the governor's cabinet. So these people are not fooling around.

[12:27] You got a big block of very active voters called parents. They are sick and tired of having their kids denied a decent education for something that's not their fault. They have dyslexia.

[12:40] That's not the kid's fault, that's not the parents fault, that's not anybody's fault. It's not. There's not even a fault to it. It just is just the way some people have blue eyes,

[12:46] some people have brown eyes, some people have one eye of each color which has its own special name. I can't remember the name of it. So yeah, so the states are not fooling around.

[12:55] And of course now everybody wants to be seen as the more protective, energetic state.

[13:01] Look, when Texas, which doesn't care about anything, starts passing legislation like this, then you got something going on. We have a huge project going on, which I can't tell you about, but I will tell you about soon.

[13:10] As soon as the people we're doing it for say we could talk about it going on specifically because of the legislation in Texas. And they came to us and said, look, we know you can't offer us legal protection, but if we have one of those Michael Johnson ponytail shiny stickers,

[13:21] we think we're going to be okay.

[13:27] Nicole Tomassi: Thank you for listening to this episode of Westchester Words. If you're looking for previous episodes or want to read additional content that has been shared by some of our guests, please Visit our websites westchesterpublishingservices.com and westchestereducationservices.com for an international perspective, check out our sister podcast, Westchester Words UK and International,

[13:49] available on the Westchester Education UK website,

[13:52] Westchester education.co.uk or wherever you stream podcasts.

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[14:21] edtech and publishing communities.

[14:23] Until then, stay safe, be well and stay tuned.