I should begin by acknowledging that this is an editorial, not news. The news is simple – Title II entities must over the next few years bring their websites and mobile apps into conformance with WCAG 2.1 AA. The question is whether requiring that is a good way to do what the ADA is supposed to do in terms of delivering equality of opportunity to those with disabilities.
In my last blog I looked at the problems associated with defining disability discrimination in terms of conformance to a technical standard that cannot in practice be consistently met by modern websites.² That problem is compounded in the new regulations by the restrictions imposed on alternate conforming versions of a web page. As DOJ explains: “conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.” Note the words “not possible,” which is to say “impossible.” Since everything is possible given money and time there is in effect no exception at all.
The rationale for this restriction is the fear that while alternate conforming versions are by definition perfectly equal to the original web page, DOJ doesn’t think Title II entities will do what this requires: Here is what DOJ says:
As WCAG 2.1 defines it, a conforming alternate version is a separate version of web content that is accessible, up to date, contains the same information and functionality as the inaccessible web content, and can be reached in particular ways, such as through a conforming page or an accessibility-supported mechanism. However, the Department is concerned that WCAG 2.1 could be interpreted to permit a segregated approach and a worse experience for individuals with disabilities. The Department also understands that, in practice, it can be difficult to maintain conforming alternate versions because it is often challenging to keep two different versions of web content up to date. For these reasons, as discussed in the section-by-section analysis of § 35.202, conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.
Let’s break this down.
First sentence – WCAG 2.1 requires that alternate conforming versions provide all the same information and functionality as the original version. In other words, an alternate conforming version provides equality of program access, which is exactly what the ADA requires for Title II entities.Providing an alternate conforming version as defined in WCAG 2.1 perfectly satisfies the ADA’s requirement of equal opportunity for those with disabilities.
The third sentence reveals DOJ’s arrogance in matters of technical regulation. WCAG 2.1 AA, including the use of alternate conforming versions, was developed by the World Wide Web Consortium, which brings together the most sophisticated and most knowledgeable institutions and people involved in web design from around the world. WCAG 2.1 AA allows alternate conforming versions precisely because the best technical minds in the world think it can be done. DOJ’s collection of lawyers and bureaucrats disagrees. Perhaps they are right, but it hardly seems reasonable for an agency like DOJ to simply throw out a possibility created by W3.
DOJ’s real problem with alternate conforming versions is found in the second sentence. DOJ is “concerned” that allowing alternate conforming versions will be interpreted to permit a “segregated approach and a worse experience.” The “worse experience” part of this sentence doesn’t make sense. If the alternate conforming version provides a “worse experience” with respect to access to content and functionality then it isn’t an alternate conforming version anymore. Equality is built into the definition of alternate conforming version. If by “worse experience” DOJ is comparing the experiences of those with and without disabilities then it doesn’t make sense at all. Those with disabilities will always have a different experience of a website than those without, but that is true of experiencing the world as a whole. I do not have the same experience of the world as a person who is blind or deaf or confined to a wheelchair. I may think their experience is “worse” than mine, but that is the kind of value judgment based on my perspective as a seeing person about the experiences of others that leads to irrational discrimination against those with disabilities. The notion of a “worse” experience only reinforces discriminatory attitudes and has to be rejected.
That brings us to “segregated approach,” which is, I think, DOJ’s real problem with alternate conforming versions. To understand this it is helpful to go back to Olmstead¹, a case in which the Supreme Court found that state and local governments could not unnecessarily segregate those with disabilities from others. In other words, you can’t just put everyone with a disability in a special facility, no matter how nice that facility might be or how much those without disabilities think it is good for those with disabilities. DOJ is concerned that sending those with disabilities to an alternate conforming version of the main web page is like sending everyone who is deaf to a special facility for the deaf, or everyone who is blind to a segregated school for the blind.
Segregation is bad and it is among the things the ADA is intended to eliminate; however, it doesn’t make any sense to think of a website as a place where people might be segregated. A website is a computer program(5) that interacts with a user using a computer. A mobile app is a computer program that interacts with a user using a mobile device. The user’s experience is delivered by what amounts to the facade of the website. For a sighted user that facade is the screen, keyboard and mouse. For a blind user it is speech from screen reading software plus the keyboard. For both, if the website functions as intended, what happens behind that facade is irrelevant to their experience. A blind user who interacts with an alternate conforming version of a web page won’t have an experience that is different in a meaningful way from their interaction with a main web page that meets WCAG 2 AA standards because they don’t, and in fact cannot, know what is happening behind the facade. The whole point of alternate conforming versions is they must, by definition, deliver the same interactive experience as the main web page to the extent the user’s disability allows it.
This point is easy to see if you compare the experience of going to a movie with the experience of seeing a movie on a website. A deaf person who goes into a theater sees the other patrons, maybe smells them as well, bumps into people who sit too close and may have to stretch to see over someone taller. The deaf person cannot hear, but with captions they can come as close as technology allows to having the same experience as everyone in the room. If that same deaf person logs in to their computer or phone to watch a movie they will see the images and can read the captions, but they will not have the experience of being in a crowd. There may be a million other people watching the same movie at the same time, but the deaf person will never see, smell or touch them. It would be wrong to segregate the deaf movie goer in the real movie theater because it would deny them as much of the shared experience as their disability permits. It doesn’t matter if they are “segregated” by having the movie delivered from one web page instead of another because there is no shared experience to lose.
DOJ’s objection to alternate conforming versions is ultimately ideological. DOJ believes that because segregation is bad, providing two doors into the same room cannot be allowed even if creating two doors is much easier and cheaper than trying to make one door that everyone can fit through. Like many decisions driven by ideology this one is more likely to diminish the usefulness of the internet for everyone than to improve its usefulness for those who are disabled. In many cases the easiest way to make a single webpage conform to WCAG requirements is to reduce its complexity and functionality, because the less it does the fewer things must be done to meet those requirements. Adopting a complex technical standard of accessibility for websites, and then denying Title II entities the option of meeting that standard in a way that the standard itself recognizes as acceptable is simply a bad way to implement the equality mandate of the ADA. The ADA was not intended to create equality by bringing everyone down to the same low level of participation in the economic and social life of the United States. It was instead to raise the ability of those with disabilities to equality with the current standards enjoyed by those who are not disabled. Alternate conforming versions do just that, and if an alternate conforming version of a web page is the simplest or cheapest way to improve access for those with disabilities, no Title II entity should be forbidden to that technique for delivering programs and services.
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¹ Olmstead v. LC, 527 U.S. 581 (1999).
² The proof of this, as I noted in my last blog, is that DOJ and the rest of the federal government have not been able to meet the WCAG 2.1 AA standard despite having had several years to implement it.
³ A blind person will never see the pictures. A deaf person will never hear the sounds.
(4) Treating the website as a “program” of the local government.
(5) That’s an oversimplification, but it is true in essence.
