Driving the news:
In 2023, the U.S. Department of Justice (DOJ) advanced the goal of digital accessibility for all though numerous notable actions.
The DOJ, through its Civil Rights Division, plays a key role in enforcing disability laws and protecting civil rights. Under Title II of the Americans with Disabilities Act (ADA), it acts as a forum for determining accessibility complaints involving state and federal government agencies. It also has the authority to investigate non-governmental accessibility issues and bring lawsuits against those violating federal disability rights laws if needed.
In addition to the DOJ’s enforcement actions in 2023, for the first time in the 33-year history of the ADA, the Department proposed regulating digital accessibility. The latest Notice of Proposed Rulemaking (NPRM) under Title II of the ADA is a significant move in the right direction. The objective was clear: ensure web and mobile applications of state and local government entities are universally accessible, especially for people with disabilities.
Key takeaways:
- In 2023, the DOJ was active in securing access to physical and online voting for individuals with disabilities. There is no indication that this will not continue to be of interest for the DOJ.
- In the context of digital accessibility, DOJ settlements tend to require compliance with WCAG 2.1 Level AA success criteria, the appointment of an ADA Coordinator,
implementation of testing, auditing, a digital accessibility policy, feedback and complaint system, ADA compliance training for staff, and submission of periodic written reports. - The DOJ takes notice of documents not in a digitally accessible format, and requires remediation.
Recent DOJ actions to enforce and protect digital accessibility rights:
Voting:
The DOJ has been active in addressing accessibility issues related to voting. The DOJ brought a lawsuit against Los Angeles County over physical accessibility to voting sites, and participated in litigation over allegations that Georgia’s Senate Bill 202 fails to provide people with disabilities an equal opportunity to vote.
Additionally, in November 2023, the DOJ sent Letters of Findings to Runnels County, Smith County, Colorado County, and Upton County in Texas. The counties were informed their election websites contained barriers to access for individuals with disabilities, and did not provide effective communication. These deficiencies in their websites mean they fell short of the requirements of Title II of the ADA.
These counties were encouraged to work with the DOJ and the US Attorney’s Office to remedy the alleged civil rights violations identified with the following actions:
- Ensuring websites were in compliance with WCAG 2.1 Level AA;
- Developing compliance monitoring measures;
- Implementing procedures for gathering and reviewing complaints and feedback on the websites;
- Adopting written nondiscrimination policies;
- Appointing a qualified ADA Title II coordinator to monitor compliance, train employees, and conduct investigations;
- Training staff; and
- Providing DOJ with written status reports on the progress of implementing measures to remedy the alleged Title II violations.
Oklahoma’s OK Mobile ID App:
November 2023 also saw the DOJ issue Findings of Fact and Conclusions of Law stating that Oklahoma’s OK Mobile ID App failed to meet Title II accessibility requirements. On January 22, 2024, the DOJ and Service Oklahoma entered into a Consent Decree to settle this issue. This requires Service Oklahoma to bring the app into compliance with WCAG 2.1 Level AA guidelines within 6 months.
The app, developed by third-party vendor IDEMIA and distributed by the state agency Service Oklahoma, allowed users to create digital versions of their ID cards and driver’s licenses, as well as start a REAL ID application.
The DOJ found significant barriers to access by individuals with disabilities, such as requiring taking pictures of the front and back of physical IDs and connecting on-screen dots using only eye and head movements.
The Consent Decree also requires Service Oklahoma to:
- Implement processes for accepting accessibility feedback, complaints, and requests;
- Appoint an ADA coordinator;
- Provide its staff with accessibility training;
- Monitor compliance; and
- Submit reports to the DOJ.
Arizona’s Department of Corrections, Rehabilitation, and Reentry:
This past November, the DOJ reached a settlement with Arizona’s Department of Corrections, Rehabilitation, and Reentry (ADCRR) over several alleged Title II violations, including failure to provide equally effective communication to individuals with disabilities and denying individuals with disabilities equal opportunity to participate in or benefit from ADCRR’s services, programs or activities.
ADCRR allegedly failed to provide individuals with vision disabilities necessary auxiliary aids and services or reasonable modifications, such as providing documents in an accessible digital format compatible with screen reading software.
The settlement between DOJ and ADCRR seeks to remediate these issues over the course of three years through, among other things, modifying ADCRR’s policies and providing assistive technology, aids, and services to those who need it.
Higher education:
- A December 2022 Consent Decree the DOJ obtained against UC Berkeley, required the university to make its website and online platforms accessible, including online courses, videos and podcasts. The Consent Decree also requires that UC Berkeley revise its policies, train personnel, appoint a web accessibility coordinator, conduct accessibility testing of its online content, and hire an independent auditor.
- In May 2023, the DOJ and the Department of Education’s Office of Civil Rights (OCR) sent a joint “Dear Colleague Letter” to colleges, universities, and other postsecondary institutions, emphasizing the importance of digital accessibility and highlighting recent enforcement activity. This included the OCR initiating compliance reviews against over 1,000 public and private post-secondary institutions in recent years.
Looking forward:
In 2023, the DOJ took numerous steps to address digital accessibility issues in several sectors, from voting to higher education and beyond. The DOJ and OCR will continue to actively investigate digital assets belonging to higher education institutions and initiate action against those not in compliance with ADA Title II, Title III, and Section 504 of The Rehabilitation Act. Those who are found not to be in compliance will be required to take several measures, including auditing, remediation, and monitoring with the goal of bringing websites into compliance with WCAG 2.1 AA.
There was a significant amount of DOJ activity in 2023, with no indication of a slowdown in 2024. Actions may increase as the DOJ works through establishing Title II regulations.
