Travis Gilly (Real Safety AI Foundation) has posted The Accessibility Paradox: Method-of-Administration, Disparate Impact, and the Recursive Failure of Disability Rights Enforcement Architecture on SSRN. Here is the abstract:
On April 17, 2026, seven days before the compliance deadline for the 2024 Title II web accessibility rule was scheduled to take effect, the United States Department of Justice published an Interim Final Rule extending that deadline by one year. The action was taken without the notice-and-comment process ordinarily required by the Administrative Procedure Act, marking the first use of an Interim Final Rule to modify disability accessibility regulation in the history of the Americans with Disabilities Act. The sequence of events is not an isolated regulatory episode. It is a particular instance of a general pattern that has characterized the enforcement architecture of Section 504 of the Rehabilitation Act and of ADA Title II since both statutes entered force. This Article argues that the cumulative procedural complexity of disability rights enforcement in the United States, together with the pattern of regulatory retreat exemplified by the April 2026 Interim Final Rule, constitutes a method of administration that disparately impacts the population the statutes exist to protect. The analysis distributes across three statutory pathways with different targets: Section 504 of the Rehabilitation Act reaches the Department of Justice and other executive agencies under 29 U.S.C. § 794(a), with methods-of-administration obligations implemented at 28 C.F.R. § 39.130(b)(3) for DOJ’s own programs and activities; ADA Title II reaches the state and local public entities whose implementation of federal guidance produces downstream disparate impact, with methods-of-administration obligations at 28 C.F.R. § 35.130(b)(3); and Administrative Procedure Act review reaches discrete final agency actions, including Interim Final Rules, under 5 U.S.C. §§ 702, 706. Federal agencies are not “public entities” within the meaning of ADA Title II; the argument against DOJ’s own conduct proceeds exclusively under Section 504 and the APA. The three pathways run in parallel and reinforce each other. The Article identifies three structural features of current enforcement architecture that produce this disparate impact: overlapping statutory pathways with inconsistent procedural requirements, regulatory carve-outs not grounded in statutory text (with the guaranty exemption at 28 C.F.R. § 41.3(e)(3) as the principal case study), and procedural complexity that imposes differential cognitive, temporal, and financial cost on a protected class whose defining characteristics include, for many of its members, reduced capacity to absorb that cost. The Article develops the doctrinal basis for relief under Alexander v. Choate’s meaningful-access standard, situates the argument within the post-Loper Bright administrative law environment, and identifies injunctive relief targeting the enforcement architecture itself as the appropriate remedy. Part VII includes a reflexive disclosure concerning the publication venues that house disability rights scholarship, which are themselves recipients subject to Section 504 and whose own enforcement architecture is subject to the analysis developed here. The Article concludes by identifying the pathways through which the framework can be developed: administrative complaint, declaratory judgment action, and the incorporation of method-of-administration claims into existing Section 504 litigation as a generally applicable second count.
Recommended!