New Americans with Disabilities Act Title II Accessibility Requirements for Public Colleges and Universities: What In-House Counsel Should Do Now

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New Americans with Disabilities Act Title II Accessibility Requirements for Public Colleges and Universities: What In-House Counsel Should Do Now

In April 2024, the U.S. Department of Justice issued a final rule updating its regulations for Title II of the Americans with Disabilities Act (ADA) to specifically require that state and local government websites, mobile applications and other digital tools be accessible to individuals with disabilities. Public colleges and universities are now entering a decisive two‑year window for compliance with the U.S. Department of Justice’s final rule.

Specifically, the ADA’s Title II final rule requires public higher‑education institutions to bring their websites and mobile applications into conformance with Web Content Accessibility Guidelines 2.1, Level AA[1] on a staggered schedule beginning April 24, 2026 and extending to April 26, 2027, depending on the population size and the institution’s classification.

Among the most significant changes is the expectation that institutions will incorporate a proactive approach in their daily online content development routines to ensure website and mobile application access to individuals with disabilities, consistent with Web Content Accessibility Guidelines 2.1, Level AA guidelines.

Background

When the ADA was enacted in 1990, most people had not heard of the World Wide Web. As a result, the ADA’s guarantee of equal access to places of public accommodation did not contemplate website accessibility. Several years later, Section 504 of the Rehabilitation Act was amended to require entities receiving federal financial assistance to provide equal access to electronic information technologies for individuals with disabilities. As internet use became ubiquitous, the absence of a universal standard to address website accessibility grew more consequential. The World Wide Web Consortium (W3C), an international organization that establishes open web standards, developed guidelines to create a shared technical standard for digital accessibility.

Lessons from the UC Berkeley Settlement and OCR’s Notable Case Resolutions Endure

In 2022, the U.S. Department of Justice entered into a consent decree agreement with the University of California, Berkeley regarding online content that was inaccessible to individuals with disabilities. Berkeley’s free online content ––lectures, conferences, sporting events, graduation ceremonies on YouTube, Apple Podcasts, and BerkeleyX – lacked captions, transcripts, alternative text, and screen-reader compatibility. The U.S. Department of Justice claimed, as a result, that much of that content violated Title II of the ADA because it was inaccessible to individuals with hearing, vision and manual disabilities using screen readers or other assistive technology. Under the 3.5-year-consent decree, UC Berkeley agreed to make the vast majority of its existing online content accessible to people with disabilities, and revise its policies, train relevant personnel, designate a web accessibility coordinator, conduct accessibility testing of its online content and hire an independent auditor to evaluate the accessibility of its content. The settlement’s lessons endured and became a touchstone: If an institution publishes content to the public, it must be accessible to individuals with disabilities, or it must provide equally effective access.

In May 2022, the U.S. Department of Education’s Office of Civil Rights launched 100 compliance reviews examining digital accessibility across public- and student-facing websites and educational platforms at public and private colleges, universities, and other post-secondary institutions, state departments of education, school districts, charter schools, and public libraries. It also published some “notable case resolutions” on its website.[2]

Key Takeaways From DOJ’s Small Entity Compliance Guide

The U.S. Department of Justice has published a Small Entity Compliance Guide that distills the ADA’s Title II rule into plain‑English actions for covered public entities, which include public colleges and universities. In short, it confirms:

Who must comply (state and local government entities, including higher‑ed institutions and their departments).
What must be accessible (websites, web content, electronic documents, and mobile apps used to provide programs, services, or activities).
In addition, it outlines how compliance is measured (Web Content Accessibility Guidelines 2.1, Level AA)[3] and when it needs to be in place (April 24, 2026 for entities serving populations of 50,000+ and April 26, 2027 for smaller entities and special districts).
It reiterates that mobile applications distributed through publicly available app stores, like Apple and Google, are covered when they are used to deliver institutional services and it enumerates limited exceptions to the rule.

The Small Entity Compliance Guide stresses that public institutions using third‑party services and vendors to deliver programs, whether through a contract, license or other arrangement with the public institution, must evaluate those services for accessibility under the ADA Title II rule, and that institutions remain responsible for the accessibility of the platforms they choose to use. It is incumbent on the institution to inform the third party or vendor about the ADA Title II accessibility requirements or find vendors with knowledge of how to ensure compliance with Title II for the services to be provided.

Critically, the guide shifts focus from ad hoc fixes to building a sustainable compliance program. Among other things, it recommends:

Creating policies on how you will ensure your web content and mobile apps are accessible.
Creating processes for people to make accessibility requests and report accessibility issues such as posting an accessibility statement and providing an email address, accessible link, accessible web page or other accessible ways for people to contact you for assistance if there are accessibility issues with web content or mobile apps.
Training relevant staff, like a web developer, and faculty who create or publish content, and other staff members (for instance, training a procurement staff member about how the entity will buy web content and mobile apps that meet Web Content Accessibility Guidelines 2.1AA standards).

Notably, the ADA’s Title II regulations make clear that posts disseminated by a public institution on social media must conform to WCAG 2.1, Level AA guidelines, and that those institutions must use accessibility features on social media platforms to ensure their social media posts comply with the rule. Where social media platforms allow users to include alternative text or add captions, the institution must ensure that appropriate text accompanies the image so that the screen reader can access the image’s conveyed information. Also, a public entity can show that its use of other designs, methods or techniques as alternatives to these guidelines provides substantially equivalent or greater accessibility and usability of the web content or mobile app.

There is also a limited circumstance where a public entity will be deemed to have met the requirements where they can demonstrate that noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to access the same information, engage in the same interactions, conduct the same transactions or otherwise participate in or benefit from the same services, programs and activities as individuals without disabilities.

Additionally, the regulations make clear that institutions may not have two versions of the same web or mobile app content where one version is accessible, and the other is not. Public institutions may use conforming alternate versions as a substitute to inaccessible content only in very limited circumstances – when there is a technical or legal limitation that prevents inaccessible content from being made accessible.

There are narrow exceptions to the Title II rule requirements. For example, certain archived web content; third‑party content not under the institution’s control; pre-existing social media posts; certain pre-existing conventional electronic documents not currently used to apply for, gain access to or participate in the public entity’s services, programs or activities; and password-protected or secured documents about a specific individual, their property or account, do not need to meet WCAG 2.1, Level AA standards. Further, conformance to those standards is not required under Title II of the ADA where it would result in a fundamental alteration in the nature of a service, program, or activity, or would create an undue financial and administrative burden (defined as a significant difficulty or expense based on the entity’s resources). But the core expectation is that students, applicants, families, employees and the public can access and use an institution’s digital properties.

Where Some Institutions May Stumble

Accessibility issues in higher education may tend to show up in the same places. PDFs and Microsoft Office documents remain a dominant risk because they are ubiquitous across departments and often posted in formats that screen readers cannot interpret. Video and audio files may lack accurate captions or descriptions of visual content. Course materials uploaded by faculty such as slides, scanned readings, quizzes, and PDFs may be inaccessible to individuals with disabilities. Housing, dining and disability services intake forms may fail keyboard access, contrast and error-identification requirements. Mobile apps for athletics, events, safety and other tools may lag behind web remediation. Vendor tools may lack accessibility warranties. And decentralized content on social media, microsites and image-heavy communications may proliferate outside governance, without alternative text. Finally, inconsistent training on the WCAG 2.1, Level AA requirements and decentralized publishing may create unintended gaps in compliance.

Being Proactive

General counsel should take the lead in establishing the legal and governance framework for sustainable compliance. Key steps to mitigate risk:

Issue an institution-wide policy adopting Web Content Accessibility Guidelines 2.1, Level AA for websites, apps, and documents, with clear roles for IT, procurement, communications, academic affairs, disability services, and human resources.
Create an accessibility committee or task force chaired by a senior leader with budget authority and designate a web accessibility coordinator to integrate efforts to comply with the ADA Title II rule. Charge the committee or task force with a risk‑prioritized remediation plan tied to the 2026 and 2027 deadlines.
Audit your digital presence. Review your website, your most-visited pages, and your mobile apps. Pair automated scanning with manual and user testing by persons with disabilities to catch issues that automated tools may miss. Consider whether to hire an independent auditor to assess web and mobile app and content accessibility to the disabled.
Know what you have and who owns it. Create an inventory of your websites, apps and documents. For each one, identify who’s responsible for it, how high a priority it is (based on traffic or risk), and how you plan to fix it. Mandate pre‑publication checks for commonly used templates.
Regular reporting and monitoring. Maintain records of decisions, including undue burden and fundamental alteration analyses, and require quarterly reporting to the president and board on inventories, metrics and milestone progress. Monitor progress over time.
Update vendor contracts and integrate accessibility into procurement. Require vendors to conform with WCAG 2.1, Level AA guidelines for software and content, to provide credible third‑party accessibility conformance reports, remediation timelines, acceptance testing with assistive technology, indemnities for the university/college for accessibility non‑conformance, and termination rights for non‑conformance or failure to cure. Apply these requirements to renewals and new contracts and coordinate with IT to block unsupported implementations.
Communicate how you address issues. Post an accessibility statement on your website and mobile app and provide accessible contact methods for assistance in the event of an accessibility issue.

For academic content, partner with the provost and deans to embed accessibility in course design. Give faculty the tools to implement accessibility practices correctly. Provide ready-to-use templates that are already accessible, clear steps for adding captions to videos and simple checklists for posting content in the learning management system.

Partner with Human Resources

Human resources departments play a key role in compliance. Action items include:

Auditing employment systems ––career portals, applicant tracking, onboarding, benefits, timekeeping, and training modules ––for accessibility.
Reinforcing the disability accommodation processes for employees, student workers and graduate assistants. Clarify points of contact, response timelines and documentation standards.
Training supervisors, faculty and relevant staff on the interactive process, including accommodation requests involving digital tools. In unionized settings, align with collective bargaining obligations.

Prepare for scrutiny by documenting your decision‑making. Maintain a public‑facing accessibility statement that explains how users can request assistance and keep a log of requests, response times and resolutions. Develop an incident response plan for accessibility complaints that coordinates legal counsel, IT, disability services, communications and the affected unit. Track and report key metrics on accessibility compliance. These reports might include data on how quickly your institution is resolving known accessibility problems, what percentage of your video and audio content has accurate captioning, document remediation speed (how quickly your institution is fixing inaccessible documents or content) and vendor conformance with accessibility so you can demonstrate continuous improvement.

Finally, foster a culture that makes accessibility the default, not an afterthought. Provide role‑based training for content creators, developers, designers, faculty and communicators rather than generic one‑size‑fits‑all sessions. Bake accessibility into how work gets done: into design reviews, code review checklists and content management systems used to create and publish website content. Fund the tools that make it easier: captioning services; document cleanup software that helps fix accessibility problems in PDFs, Word documents and other files; ready-to-use accessible templates and equipment for testing accessibility with assistive technology.

Why Private Institutions Should Pay Attention, Too

Although Title II does not apply to private institutions, private institutions should track these developments closely as analogous obligations under the ADA and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, may present litigation risk. Title III of the ADA prohibits private undergraduate, postgraduate and other private places of education from, among other things, denying individuals with disabilities the opportunity to participate in or benefit from their goods, services, privileges, or advantages, or providing an unequal opportunity to benefit.[4]

Section 504 provides, in part, that no otherwise qualified individuals with a disability shall, solely by reason of their disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.[5] The Department of Education has noted that Section 504 requires educational institutions to provide equal access for individuals with disabilities to all educational benefits and opportunities that are provided online or in other digital formats, and that many individuals with disabilities, including those who have vision or hearing disabilities, need auxiliary aids and services to access and interact with digital content.

On May 19, 2023, the Department of Justice and the Department of Education jointly issued a Dear Colleague letter reminding colleges, universities, and other post-secondary institutions to ensure that their online services, programs, and activities are accessible to people with disabilities, including courses on learning platforms, podcasts and videos on social media, and third-party platforms like YouTube, Spotify, and Apple Podcasts. Among other things, the joint letter reiterated that Title III requires that such institutions must take appropriate steps to ensure that communications with disabled individuals are as effective as communications with others, including providing appropriate auxiliary aids and services.

Further, the letter noted that public and private colleges, universities, and other postsecondary institutions receiving financial assistance from the DOE and all their operations, including their online programs and activities, are covered by Section 504 and they need to ensure compliance. The letter advised that institutions also need to provide appropriate auxiliary aids to ensure students with disabilities are not denied benefits of the recipients’ programs or activities. It further highlighted recent web accessibility enforcement activities and technical assistance from the Department of Justice and the Department of Education’s Office for Civil Rights.

Conclusion

The ADA Title II rule provides a legally binding, globally recognized and comprehensive technical framework to ensure digital content is accessible to all users, reducing legal risk to institutions and promoting equal educational access. April 24, 2026 and April 26, 2027 are not distant dates. Although these timelines are tight, they are manageable with disciplined governance, good processes for taking inventory of your website, mobile apps and digital content accessibility, smart procurement requirements and focused remediation.

Institutions that start now with clear governance, systems for auditing the accessibility of their websites, mobile apps, and digital content, enforceable procurement processes, indemnifications, targeted remediation and disciplined documentation will meet the new requirements and reduce legal exposure. Those that delay may face a heavier lift under tighter scrutiny, particularly if essential student services remain inaccessible. Building a credible, institution‑wide program is the best defense and the surest path to delivering equal access.

Lisa M. Brauner is a partner at Whiteford in New York City where she focuses her practice on labor and employment law. She advises nonprofit organizations, for-profit businesses and social enterprises on all aspects of the employment relationship, including avoidance of litigation, wage/hour compliance, and preventing unlawful discrimination, harassment, and retaliation. She is a member of NYSBA’s Labor and Employment Section’s Workplace Rights and Responsibilities Committee.

Endnotes:

[1] “WCAG” stands for Web Content Accessibility Guidelines, which have been developed by the World Wide Web Consortium (W3C). The W3C regularly updates WCAG guidelines as digital accessibility evolves. WCAG defines three conformance levels: A (minimum), AA (recommended), and AAA (highest). W3C recommends that web-based content aim for Level AA compliance, as some content types cannot feasibly achieve AAA. WCAG standards are rooted in four main principles: perceivable, operable, understandable, and robust, often called POUR. Information must be perceivable to people using only one of their senses, so they understand all related content; the end users must be able to interact with all web page elements (i.e., the website must be operable). For instance, the website should be easily navigable with just a keyboard or voice controls for non-mouse users; understandable–end users must be able to understand web page content and functionality information; robust— the website must effectively communicate information to all users, including users of assistive technologies, and remain compatible with evolving technologies and user needs.

[2] https://www.ed.gov/laws-and-policy/civil-rights-laws/disability-discrimination/disability-discrimination-key-issues/disability-discrimination-technology-accessibility.

[3] WCAG 2.1, Level AA is an internationally recognized accessibility standard for web access. WCAG 2.1 is a version of accessibility standards that was published in 2018. The technical standard says specifically what is needed for something to be accessible. The applicable conformance level is referred to as Level AA which includes 50 success criteria or requirements for full conformance. For example, one success criterion is 1.2.2 which requires close captions for videos. WCAG 2.1, Level AA is the specific technical standard that state and local governments must follow to meet their existing obligations under Title II of the Americans with Disabilities Act for web and mobile app accessibility.

[4] 42 U.S.C. § 12182(b)(1)(A)(i) and (ii); 28 C.F.R. § 36.202(a) and (b).

[5] 29 U.S.C. § 794(a).