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Lainey’s Introduction
The first week of the new republican administration was frightening and disorienting for all of us who believe in civil and human rights, justice, equality, fairness and more. I was overwhelmed by the sheer number of actions designed to erase decades of social and political progress in the United States – a country where more — not less — progress is sorely needed. Actions designed more than anything to be a show of power, bullying, cruelty.
Last week I spent time thinking about a role this website often plays: sharing legal developments impacting digital inclusion with the non-legal accessibility and disability overlapping communities. In these dark times, how I could possibly keep up with the digital accessibility legal space both nationally, locally, and even globally as I’ve tried to do for many years.
How I could find time to write articles about the legal ramifications with the communities I love. All the while trying to adhere to my 2025 digital accessibility joy plan and not become overwhelmed by the harms this new administration brings.
In conversations with colleagues last week I hit upon a solution that is essential in these times: I need to rely more on my community.
This website contains 403 published articles, organized into topics found on the Topics Page. I wrote all of these but one. The one someone else wrote is guest article by Jutta Treviranus on the important issue of Artificial Intelligence (AI) and its potential to create social inequality.
I liked sharing Jutta’s piece. And I want to — need to — rely more on people I trust to write others. [Thank you for understanding that I do not accept unsolicited articles.]
So here is my second guest article, sharing a blog post written by Eve Hill, one of the best disability rights lawyers and digital accessibility legal specialists in the United States. (More about Eve at the end of this article.) Eve gives a no-nonsense explanation of one of this week’s executive actions and its impact on Section 508, digital accessibility generally, and people with disabilities.
Today I am also sharing a second guest article by Eve focused on a Week-One Executive Order focused on DEIA (diversity, equity, inclusion, and accessibility). And I’ve (sadly) created a new topic for the Topics Page under Accessibility Laws and Regulations titled Trump actions. In the coming year you will find articles I write along with guest articles.
I encourage you to follow Eve on LinkedIn for more of her writing. She also wrote another important piece last week titled Trump Transgender Executive Order Threatens People with Disabilities.
Federal Digital Accessibility Disappearance on Trump Day One, by Eve Hill
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(Link opens new website) (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 (Link taken from the Biden White House archives) 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(Link opens new website) 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.
Back to topState 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 to disabled people, unlike Title III. (Some of these state laws are listed here on Lainey’s Global Law and Policy page.) And the European Accessibility Act impacts accessibility of United States companies doing business in EU countries when those company’s products or services are covered by that Act and the implementing laws of member states. The federal government’s accessibility legal framework took a blow last week, but the foundation for digital accessibility in the United States and around the world is much stronger than that.
The Road Ahead
The removal of the OMB accessibility directives and the broader deregulatory agenda pose significant challenges to digital accessibility in the United States federal government. 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. She is a partner in the civil rights law firm of Brown, Goldstein, & Levy. Inclusivity, started by Eve, is the strategic consulting arm of the firm.
You can find the article posted above on Eve’s Inclusivity Blog here.
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