New DOJ Guidance on Web Content Accessibility

Host: Hello, and welcome to Prevention and Protection, the United Educators risk management podcast. Today, Josh Richards, a Partner at Saul Ewing Arnstein and Lehr; Jesse Krohn, an Associate at Saul Ewing; and Melanie Bennett, Senior Risk Management Counsel at United Educators, will discuss the new Department of Justice guidance on web content accessibility.

Before we begin, a quick reminder, you can find other episodes of the Prevention and Protection podcast, as well as risk management resources, on our website,

This and all podcast episodes are also available on Apple Music.

Now, here’s Melanie.

Melanie Bennett: Thank you. I’m very pleased to have Josh and Jesse speaking with me today. They, along with their colleagues, wrote a helpful alert, highlighting the new DOJ guidance to higher education institutions. That alert is linked on this podcast’s page. Hi, Josh.

Josh Richards: Hey Melanie, how are you?

Bennett: Great, thank you. And welcome, Jesse.

Jesse Krohn: Thank you. I’m so happy to be here.

Bennett: We are very happy to have both of you. And now to start, Josh, I’ll mention that in March of 2022, the Department of Justice [DOJ] released website accessibility guidance. So what is this new web accessibility guidance, and how is it different from earlier guidance?

Richards: This DOJ guidance isn’t, I don’t think, primarily interesting for any significant departure from prior DOJ or other agency guidance around web accessibility. The pieces that they emphasize — captions for videos, alt text for images, keyboard navigation, those sorts of things — are features of guidance that we’ve seen for a long time from government agencies enforcing the ADA.

The really interesting thing about this guidance, to us, was the way that it highlighted higher ed as a priority for enforcement. The blog post itself actually literally says web accessibility for people with disabilities is a priority for the Department of Justice. This is about as explicit as you can get when you’re the government trying to broadcast to industry what your enforcement priorities are going to be. And if you look through the list of exemplar matters that DOJ chooses to highlight in this list, you’ll notice that three of them are education-related, and that should be, I think, of particular interest to the listeners of today’s podcast.

Bennett: So Jesse, when schools are considering what standards they should be using to review their accessibility, I know in the past we’ve heard that they might want to use WCAG 2.0. And for anyone unfamiliar, WCAG stands for web content accessibility guidelines. They were put out by W3C, World Wide Web Consortium. Are these the correct guidelines? If not, are there some other standards that they should be using?

Krohn: In the guidance, the DOJ concedes that it does not have a regulation setting out detailed standards that apply to web accessibility, which we know is a continuing source of frustration. Sticking with what we know — and the DOJ says in the guidelines that they actually use WCAG 2.0 — you should still be pretty confident that is a good way to go.

Bennett: Great. And some schools are going to be coming into this for the first time. They may have never reviewed their website’s accessibility. So knowing that WCAG 2.0 is good to be looking at, what other first steps should they be looking at when reviewing their website accessibility?

Krohn: So institutions really need to think about this as a cross-institution issue. It can’t just be something that is owned by IT or by communications or by disability services. You need to have all of those groups in together. And you also have to have a representative in the office of the provost or whoever your Chief Academic Officer is that actually has some authority, because without the buy-in of faculty, particularly when it comes to content that relates to course platforms and shells, you are going to be in a difficult position.

I would start by setting a standard of no new inaccessible content, that going forward, anything that we post that is new is going to be accessible. That may cause a little bottleneck in the short term because we know that people are going to have to learn skills, make sure that they’re examining their work to make sure that it meets the standard, but that is really the most important place to start.

Then you want to go backwards and start retrofitting. Start with the pages that you know are the most important, admissions, financial aid, applications for employment, and then you can start with those and then go back to fix the rest.

Bennett: Great. Thank you for that guidance, not only for new institutions, but really for all institutions. Josh, so I’m going to ask you about the opposite. So I know there are a lot of institutions that have spent years on these web accessibility projects, sometimes they’ve brought in outside vendors to do this work. For institutions that are more savvy about this issue, what guidance do you have for them now that DOJ has released this new guidance?

Richards: For institutions who have already spent a lot of time looking at this issue and have sort of done the things that Jesse was talking about a moment ago, with respect to new content, going back, retrofitting for historical content and bringing folks sort of up to training, there isn’t an opportunity here under DOJ’s guidance, I don’t think, to sort of rest on your laurels.

There are a few different issues that I think institutions need to be concerned about. And of course, this is a podcast about risk, and so to us, the greatest risk, even to a highly compliant institution, is going to be outside content. When it comes to vendors that the institution is retaining to provide services or run a platform, what have you done to ensure that those vendors are also providing an accessible platform or accessible content?

And beyond that, if as an institution you’ve gone through the process of making sure new content is accessible and you’ve retrofitted that older content, what else have you done to set up internal controls around making sure that those things continue to be the case and that everybody understands their level of accountability?

Bennett: Your alert says that even products purchased from third-party vendors, such as a LMS [learning management system], should be assessed for accessibility. How can schools ensure that purchased products meet the DOJ’s accessibility requirements?

Richards: Yeah, Melanie, that’s right. And in one of the best examples of the external services and platforms that I was talking about in response to your last question are LMSs. And we don’t have to speculate that DOJ is interested in this topic. One of the resolutions that DOJ talks about in the guidance is with Miami University, and that resolution specifically included an external vendor. So I think what we want to do here is operationalize a number of steps to make sure that we’re reducing risk along this line.

First, we want to ask all of our vendors to represent, preferably in the vendor contract, that it has updated its product to conform to accessibility standards. DOJ talks about voluntary product accessibility templates. Those are a great idea to sort of get an initial sense that your vendors are not putting you at risk through their products.

After you get those representations from the vendors, you still want to independently test the product. And you can use automated testing technology, expert testing, user testing, to go through and verify that product meets the vendor’s representations and your expectations with respect to, again, how outside vendors provide services to your students and to the public.

I will here readily acknowledge that for small institutions this is a lot to do. Often, we’re asked in the business office to get a new platform as fast as possible, and particularly in light of COVID, to pivot very quickly in terms of how we’re delivering educational services, how we’re communicating with the outside world. And so, the idea, this aspiration that for each contract, we are going to get these representations, we are going to independently test them, may not be practical, we know, in all circumstances. But here we’re not looking, necessarily, for perfection. We’re looking for risk reduction.

Really what we want to do here is think about, “Do we have a policy or a procedure for building this assessment into the procurement process? If not, let’s sit down and talk about preparing one of those. Are individuals who have the knowledge and the expertise to do this at the table when it comes to creating that policy, but also for the procurement process itself? Do we have people who are qualified to assess whether or not these vendors are actually providing what they’re saying they’re providing? And finally, do we have a process in place to maintain accountability in that process with the vendor, either as part of the retention agreement or otherwise?”

I think all of those things are going to sort of push us toward, again, what Jesse talked about, maybe not instantaneous, total compliance, but sort of a progressive movement toward reducing the risk in this area and staying out of DOJ’s crosshairs.

Bennett: So we have a series of steps we can take to either start the process or continue a process that we’ve already started to make websites accessible. That’s great to know moving forward.

And to end this conversation, we have seen now that the Department of Justice is interested in this topic. Is there a reason to believe that they will continue to release guidance here? And Jesse, more specifically, do you think the Department of Education is also interested in this topic and going to release future guidance?

Krohn: More attention, I think we can definitely expect. There’s been a sort of relaxation of enforcement under the Trump administration that the Biden administration is signaling to us is really not going to continue. The same goes with sort of a relaxation related to the pandemic pivot to online instruction and some of those products and services that Josh was mentioning, that I think that relaxation is unlikely to continue. In terms of more guidance, I’m not sure. There’s a number of areas where enforcement is high, but specific guidance is a little bit wanting. But OCR did just announce Section 504-related rulemaking, so it’s possible that some of the regulations that come out of that may include more concrete standards and guidelines for institutions to follow. And we’ll be keeping a close eye on that.

Bennett: And that’s the end of the episode. Josh and Jesse, thank you for joining me today.

Richards: Thanks so much for having us, Melanie.

Krohn: Thank you very much.

Host: From United Educators insurance, this is the Prevention and Protection podcast.

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