Reviving Negotiated Rulemaking for an Accessible Internet

Abstract

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking process for web accessibility in 2010, only to terminate it seven years later without issuing a rule—leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA’s protections apply to the internet, the business and disability communities should come together through negotiated rulemaking to build consensus on web accessibility.