Special Episode: Chapter 1 - Real. Relevant. Required.

This episode is a reading of Chapter 1 from Real. Relevant. Required.: A Practitioner's Guide to ADA Title II Digital Accessibility for State and Local Government by Becky Rehorn. The ADA was signed into law in 1990 and required state and local governments to provide equal access to their programs and services. What it did not do, and could not have done, was specify what equal access looked like on a website, in a PDF, or inside a mobile application. That gap between principle and specification lasted thirty-four years. Chapter 1 traces how we got from the statute without a standard to the April 2024 final rule that changed everything. For the next several weeks, Access Brief is sharing chapters from the book. Regular episodes return in July. The book is available now at aogaccess.com.

Access Brief is produced by Accessible Organizations Group LLC.

Transcript

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You are listening to the Access Brief Podcast Edition of the Book Real Relevant Required. My name is Becky Rehorn. This is part one, Real, which explains what the rule actually is, stripped of legalese, how we got here, what the April 2024 final rule says in plain language, and what WCIG two point one double A means in practice. Chapter one thirty four years of almost The Americans with Disabilities Act was signed into law on july twenty sixth, nineteen ninety. At the signing ceremony on the South Lawn of the White House, President George H. W. Bush described the law as taking a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse but not grasp. The ADA prohibited discrimination on the basis of disability in employment, public services, public accommodations, transportation, and telecommunications. Title II, the section that governs the work of this book, required that state and local governments provide equal access to their programs, services, and activities. What Title II did not do in nineteen ninety, and could not have done, was specify what equal access looked like on a website, in a PDF, or inside a mobile application. None of those things existed in the form we now recognize. The World Wide Web had been proposed by Tim Berners Lee only the year before and it would not be publicly available until nineteen ninety one. The first version of WCAG would not be published by the World Wide Web Consortium W three C until nineteen ninety nine. In nineteen ninety, the closest thing most state and local agencies had to digital public engagement was a telephone and a mailing list. The statute, in other words, committed to a principle, equal access before the technology existed to test what that principle required. That gap between principle and specification is the story of the next thirty four years, and it is the reason the april twenty twenty four final rule exists. A statute without a standard. For most of its first two decades, Title II's application to digital content was a question answered piecemeal through individual settlements, court decisions, and guidance letters rather than by a single binding rule. Federal agencies subject to Section five hundred eight of the Rehabilitation Act had a technical standard to follow for their own digital content. State and local governments operating under Title II did not. Agencies that wanted to do the right thing often adopted WCAG informally as a target, but there was no enforceable version requirement, no clear list of what counted as digital content, and no consistent guidance on how to demonstrate compliance. That ambiguity produced two patterns I watched repeat across the public engagement work I led. The first pattern was the checklist. Agencies and their consultants defaulted to the language quoted in the introduction. Contact the ADA coordinator in advance. Not because anyone had analyzed whether the language satisfied the statute, but because it had appeared on the last notice, and the one before that, going back as far as anyone could remember, the language functioned as a ritual rather than a commitment. The second pattern was the consultant pass through. When an agency contracted with a consulting firm to produce public facing content, environmental documents, open house boards, comment portals, project websites, accessibility was often either absent from the scope of work or included as boilerplate language nobody on either side of the contract was equipped to enforce, the agency assumed the consultant had handled it. The consultant assumed the agency had a standard in mind. Neither was usually correct. Neither of these patterns was the product of bad intent. They were the predictable result of a legal obligation without a technical specification. When the standard is meaningful access and the question is does a screen reader need to be able to navigate this table of comment period milestones, reasonable people can land in different places. The courts fill the gap. While the rulemaking stalled, the courts did not. This matters for practitioners because it means the legal risk of inaccessible digital content predates the april twenty twenty four final rule. Agencies could be and were held liable before the rule existed. Throughout the two thousands and two thousand tens, federal courts worked the question case by case, largely in the context of Title III, the section of the ADA that governs places of public accommodation, rather than Title II. The most influential of these cases was Robles vs. Domino's Pizza LLC, in which a blind customer sued the pizza chain after being unable to order through its website and mobile app using a screen reader. In twenty nineteen, the U.S. Court of Appeals for the Ninth Circuit held that the ADA applied to the website an app because they were auxiliary aids to a physical place of public accommodation, and the Supreme Court declined to review the decision. The Robles case did not settle the question for Title II agencies, but it signaled, in the most visible terms yet, that federal courts were prepared to treat inaccessible digital content as a violation of the ADA, even without a regulation specifying what accessible meant. For state and local governments paying attention, the message was clear. The absence of a technical standard was not a safe harbor. It was a risk. Two decades of unfinished rulemaking. DOJ had been trying to close the specification gap for longer than most practitioners realize. In July 2010, DOJ issued an advanced notice signaling its intent to amend Title II to include web accessibility requirements. The notice generated hundreds of public comments and significant attention inside the accessibility community. It also stalled a series of delays pushed the proposed rule further into the future, and in December twenty seventeen, DOJ formally withdrew the rulemaking from its regulatory agenda, leaving the question of a binding standard unresolved. The issue returned to the agenda under the Biden administration, and in August 2023, DOJ published a proposed rule setting WCAG two point one level double A as the technical standard for Title II agencies. Public comments ran into the thousands. On april twenty fourth, twenty twenty four, the department published the final rule in the Federal Register. For the first time since nineteen ninety, a Title II agency had a specific, measurable, enforceable technical standard for the digital content it produces. Why the twenty twenty four rule had to happen? It is tempting to read the April twenty twenty four final rule as a new obligation on state and local government. It is more accurate to read it as the specification that finally accompanied a thirty four-year-old obligation. Title II has always required equal access. What changed in 2024 is the ability to answer, with reference to a common and published document, the question a working practitioner has been asking for a generation. What does accessible mean for this PDF, this comment portal, this environmental document, this mobile app? WCAG 2.1 level double A answers that question with four high level principles and 50 testable success criteria at levels A and AA combined. We will walk through what those principles and criteria require in chapter three. For now the point is this the rule is not a surprise and it is not a gotcha. It is a specification that the field has needed since the web became the primary channel through which public agencies communicate with the public. The agencies and firms that treat the April twenty twenty four final rule as the arrival of clarity rather than the arrival of a burden will adjust faster and in my experience more durably than those that treat it as an imposition. The rule arrived. The next chapter, chapter two is what it says. Four key takeaways from chapter one. What was missing until twenty twenty four was a specific, measurable technical standard for digital content. two, two patterns dominated the gap years accommodation language treated as a ritual, and consultant scopes that neither side could enforce on accessibility. three, the april twenty twenty four final rule is not a new obligation. It is the specification that finally accompanied a thirty four year old obligation. four, courts had already signaled that inaccessible digital content violated the ADA. The absence of a standard was a risk, not a safe harbor. This is the end of chapter one. Thank you for listening. In the next episode, chapter two, what the rule actually says, we set aside the history and open the rule itself, what it requires, who it covers, what exceptions exist, and the deadlines every agency needs to know. As always, keep moving forward.