Editor’s Note: Latia Ward is a Research Librarian at the Arthur J. Morris Law Library at the University of Virginia School of Law where she teaches Advanced Legal Research. Latia serves as the Chair of the Virginia Association of Law Libraries Access to Justice Committee.

On April 24, 2024, the United States Department of Justice (DOJ) issued its final rule, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities. This matters to all libraries because the rule revises the regulation implementing Title II of the Americans with Disabilities Act (ADA) to require state and local government entities to follow standards when they provide services to the public through the web and mobile applications.

The final rule issued by the DOJ on April 24, 2024 covers public entities (private entities are covered by ADA’s Title III). While the rule took effect on June 24, 2024, public entities of 50,000 or more people are required to comply by April 24, 2026, and public entities of less than 50,000 people are required to comply by April 26, 2027. Expectations for accessible web and mobile content align with the Web Content Accessibility Guidelines (WCAG) international standard, specifically, Standard 2.1. Given this news, let’s take a look at the final rule from the perspectives of vendors, libraries, and law firms, what libraries are doing to comply, and then consider what will happen regarding the rule in the future.

What is required

Per the ADA’s rule, a public entity must make its web content and mobile applications that they use to provide services to the public compliant with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1. Web content and mobile apps that are archived web content, content posted by a third party, individualized, password-protected or otherwise secured conventional electronic documents, or preexisting social media posts are exempt from the rule. Moreover, if the public entity can demonstrate that compliance with the rule “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens,” the entity does not have to comply with the rule.

Accessibility service providers, libraries and library organizations, and law firms have all weighed in on this relatively new final rule and while each group has a different perspective, much of the literature, which consists of commentary on websites, blog posts, and articles, focuses on practical steps that public entities, including libraries, can take to comply with the rule.

Libraries and library organizations provide practical guidance to librarians who must ensure their web content is compliant with the ADA. In Serving Patrons with Disabilities in Small and Rural Libraries: A Practitioner’s Guide, the American Library Association focuses on practical compliance steps that libraries can take, such as publishing accessibility statements and adhering to POUR principles in web development. Librarians Urszula Lechtenberg and Helene Gold note the following best practices that align with POUR: using a high contrast between the color of the font and the background on which the font appears (Perceivability), using hyperlinks that describe where the link leads (Operability), using alternative text for images to explain the meaning of the image (Understandability), and using clear and descriptive titles and headings (Robustness).

In a blog post for LibTech Insights, Lisa Campbell & Brittany Kester assert that complying with the final rule “may be a lengthy but necessary undertaking for many libraries” and recommend seven simple steps to take immediately. Keith Hays, the ADA IT Coordinator at the University of Illinois Urbana-Champaign, asserts that the goal of the final rule “is to remove [the] need for persons with disabilities to ask for access to accessible online programs, services, and activities.” Hays recommends that libraries undertake best practices, such as making accessibility a required component of licensing contracts and creating or designating a Digital Inclusion Coordinator position. Accessibility audits are best conducted with both automated validation and qualitative assessment – a best practice echoed in a recent post for The Scholarly Kitchen. Katherine Klosek, one of the authors, also prepared a report entitled ADA Title II regulations: implications for libraries, which includes an overview of the rule, as well as a chart to use in analyzing whether the rule applies to a library’s collection, noting that “it will likely take time to see how the regulation and exceptions apply to library content.”

Law firms have provided commentary on the final rule and see opportunities for the government to make additional rules in the future. Seyfarth Shaw LLP, Davis Wright Tremaine LLP, and Ballard Spahr have all asserted that the DOJ is likely to promulgate a rule regarding web accessibility under Title III of the ADA in the future. Seyfarth Shaw LLP conditioned its prediction on the administration of President Joseph Biden obtaining a second term. In asserting that “the rule may foreshadow future Title III regulations, private businesses should take note of the DOJ’s position on accessibility” Ballard Spahr recommends that private businesses should comply with the more recent WCAG 2.2. While echoing predictions that the DOJ may promulgate a web accessibility rule under Title III of the ADA, Davis Wright Tremaine LLP notes that the DOJ was aware of WCAG 2.2 when it promulgated the rule, and the DOJ saw WCAG 2.1 as useful and that WCAG 2.1 was not superseded by WCAG 2.2.

What libraries are doing to comply with the final rule

Libraries are taking actions such as remediating PDFs (adding headings, alt text, etc.), implementing best practices for LibGuides, conducting training for library employees, and notifying vendors that e-resources sold to their libraries should be accessible. The Ohio State University Libraries partnered with The Arizona State University Artificial Intelligence Cloud Innovation Center (AI CIC), and Amazon Web Services (AWS) to remediate PDFs in bulk as a response to the final rule. They enlisted student workers who used AWS to remediate PDFs. Librarians have noted that SpringShare’s LibGuides “web authoring tool fully or partially supports Level AA [of WCAG 2.1] for all accessibility criteria” for creating content that complies with the final rule. In its Library Accessibility Training Portal research guide, the UIC University Library includes information and recorded webinars on how to produce compliant documents in New! ADA Title II Updates 2024. On its website, the Big Ten Academic Alliance of Libraries provides pro-accessibility language that libraries may use in contracts for e-resources with vendors. The Library Accessibility Alliance (LAA), a group of research libraries, has suggested it will not do business with vendors who do not comply with ADA Title II. On its webpage, the LAA has posted a “Dear Colleague” letter in which it requests that library vendors comply with the final rule.

Of particular concern for librarians is ensuring that local repositories as well as licensed collections are fully compliant. The final rule defines “archived web content” as that which:

1. Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H;
2. Is retained exclusively for reference, research, or recordkeeping;
3. Is not altered or updated after the date of archiving; and
4. Is organized and stored in a dedicated area or areas clearly identified as being archived.

The final rule has been codified in the Code of Federal Regulations along with its definition of “archived web content.”

Approximately three months after the DOJ issued the final rule, librarians in the Universal Accessibility Interest Group planned a discussion session on the rule with the DOJ; one question from Jerry Yarnetsky, a Web Services Librarian at Miami University Libraries, was “How would the electronic document exemption apply to archival material offered for research purposes by the university archives? For instance, scans of early campus newspapers or early board of trustees records?” In the Federal Register, the DOJ provides an example where a library makes content available that would usually be considered archived web content. Because the exhibit is “a new educational program for the members of the public,” the content must comply with accessibility requirements.

Using the DOJ’s reasoning, the answer to Yarnetsky’s question is likely, “yes.” Even if the archival records were created before the public entity was required to comply with the final rule, retained exclusively for reference, research, or recordkeeping, and not altered or updated after the date of archiving, they would still need to meet the fourth requirement , which requires being organized and stored in dedicated area(s) marked as archives. If links to the digital scans of early campus newspapers or board of trustees records are available through the library or the institution to which it is connected and are kept in a library’s publicly accessible institutional repository, which is generally not considered an archive, these materials would need to be made accessible under the rule. However, if the same material were in an archive that is clearly labelled as an archive, it would not need to be made accessible.

Lechtenberg and Gold predict that the final rule will not apply to web content that will continue to be used for reference purposes, yet is within an archive and that will not be changed. Others have reasoned that the undue burden defense could be relevant to libraries that hold texts in languages that are not well known. Klosek predicts that libraries will be able to assert an undue burden defense to having the rule enforced for items “like oral recordings or scans of texts in obscure dialects” for which the library is unable to hire a professional familiar with that language.

Two immediate steps that librarians can take

While librarians may still have questions about how the rule will be enforced, there are steps that librarians can take right now to make sure their web content complies with the rule:

1. Make sure web content complies with the final rule by auditing websites and remediating any noncompliant content. There are many automated tools on the market for this purpose (some of which are mentioned above), however, manual checks should be included as well for a more thorough audit. One way to begin this process is by using the checklist provided by WebAIM. WebAIM’s checklist allows for the display of success criteria from three different WCAG versions (2.0, 2.1, and 2.2) and for the display of three different levels within these criteria (A, AA, and AAA).
2. Draft an accessibility statement and place it in a prominent position on a page within the library’s website or review and revise a current accessibility statement on the website. An accessibility statement is important because it shows a commitment to serving everyone and provides a point of reference for library patrons who may have questions about the accessibility of services and resources. Typically, accessibility statements include a commitment to serving people with disabilities, the standard that the entity is applying to the web content, and contact information for someone who can address accessibility problems.

The final rule under Title II of the ADA is an embodiment of ALA’s position on accessibility. Libraries that are connected to public entities are taking action to comply with the final rule that the DOJ has promulgated under Title II of the ADA and such action includes remediating PDFs and implementing best practices for LibGuides. However, librarians still have questions about how the rule will be applied, especially the rule’s applicability to archived web content and what is considered archived web content. As compliance with the rule is not required until early 2026 and the rule is possibly a forerunner of a yet-to-be issued rule under Title III, there will be more information and likely more guidance in the future whether from the DOJ or in cases decided by courts as they interpret the rule if the rule remains in effect.