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DOJ vs. UC Berkeley: Forcing Online Content to Be Accessible

UC Berkeley is figuring out what to do next as the U.S. Department of Justice tells it to make its online audio and video content accessible.

The University of California, Berkeley is the latest school that the U.S. Department of Justice has investigated for a lack of accessibility in online learning content. As enforcement of the Americans with Disability Act continues to increase, higher education institutions have a choice: Comply with the law or face lawsuits.

On Aug. 30, Rebecca B. Bond, the chief of the disability rights section of the U.S. Department of Justice's Civil Rights Division, sent a 10-page letter to Chancellor Nicholas B. Dirks and campus counsel representatives that laid out the conclusion of a Title II Americans with Disability Act investigation. The investigation came after the Civil Rights Education and Enforcement Center filed a complaint in October 2014 with the U.S. Department of Justice on behalf of the National Association of the Deaf.  This complaint said deaf or hard-of-hearing individuals could not access UC Berkeley's audio and video content that is available to the public online at no cost. 

Title II of the act prohibits public entities including colleges and universities from excluding or denying the benefit of their programs, goods or services to people with disabilities. The U.S. Department of Justice and the U.S. Education Department both have authority to enforce this law through their civil rights' divisions, and they have filed at least 15 lawsuits since 2003 against colleges that don't comply. The National Federation of the Blind also has filed at least nine lawsuits.

The Department of Justice has said before that the law does cover Web accessibility, even though it's not explicitly stated in the law or the department's regulations about communication, notes an article for the National Association of College and University Attorneys from two university general counsel staff members. The department found that UC Berkeley violated Title II in three ways in its review of 26 massively open online courses, 30 lectures on YouTube and 27 courses on iTunesU:

  1. Large swaths of its online content are not accessible for those with hearing, vision or manual disabilities
  2. UC Berkeley's Information Technology Accessibility Policy adopts the Web Content Accessibility Guidelines 2.0 that provide a shared technical standard for universities and others to make Web content accessible. But that policy has not been enforced.
  3. The university has not shown that making this online content accessible would be an undue financial and administrative burden or a fundamental alteration
To address the violations, UC Berkeley would need to do the following:

  • Develop a system to monitor the WCAG 2.0 standards
  • Develop and implement procedures to make sure that UC Berkeley massively open online courses, the YouTube channel and the iTunes U platform content meets those standards
  • Develop mechanisms and implement procedures for UC Berkeley to ask for feedback on accessibility issues with these platforms and ways to improve
  • Pay damages to individuals affected by this Title II violation
In a September 14 statement about the letter, Vice Chancellor for Undergraduate Education Cathy Koshland said the university might be forced to eliminate access to its no-charge online content on the edX platform, YouTube and iTunes University for financial reasons, even though the investigation did not find proof of that. It also said the regulations are not clear.

However, UC Berkeley did say that it would "exhaust every available option" to make sure the online content would be freely available. A team of university leaders including campus counsel, deans and faculty are working together to figure out how they will respond to the letter. In the meantime, they did let the U.S. Department of Justice know that they received the letter and are reviewing it.

"We're going to be very diligent and take the best course possible for everyone," said Roqua Montez, a spokesman for the university. "We are all looking for the very best result, and these things take time."

As of December, the university reported to investigators about 9,600 hours of course video on YouTube and 10,400 hours of course video on iTunes U, along with 18,000 hours of course audio. That doesn't include other types of non-course content. It costs about $1 a minute to transcribe and close caption these types of resources, though large volumes of transcription like this could be priced lower, said Karl Groves, a Web accessibility consultant and Web developer who uses these types of services.

Groves took UC Berkeley to task in a strongly-worded blog post, saying that accessibility is not a financial hardship for the university, and it has no excuse for not following the 1990 law and the Web Content Accessibility Guidelines. 

"It's absurd for Berkeley to act as if this is new information," Groves said in an interview. "The reality is that — from an outsider's perspective — they clearly, willfully have chosen not to comply with the requirements."

This isn't the first time that UC Berkeley has had problems with accessibility. It faced a print accessibility lawsuit from Disability Rights Advocates on behalf of its clients David Jaulus, Brandon King and Tabitha A. Mancini. That resulted in a settlement in 2013 requiring the university to make major changes to accommodate students with print disabilities. 

UC Berkeley is also the third top-tier university that's been investigated for Web accessibility in the last year as both Harvard and MIT are facing class action lawsuits from the National Association of the Deaf over their Massively Open Online Course content on the platform edX. The U.S. Department of Justice sided with the association in both of these cases by filing statements of interest. The platform itself that the two universities created as a nonprofit faced a lawsuit and settled with the U.S. Department of Justice in 2015, agreeing to make changes over the next four years that will bring it into compliance with the law.  

This seems to be the pattern in accessibility cases from the U.S. Department of Justice against universities over the years: They start with a letter asking universities to work with them to fix the accessibility problems. Sometimes the two parties agree to fix the issues, but when universities don't cooperate, the situation escalates into a lawsuit.

"It is far easier and less painful and less expensive to be proactive about accessibility rather than reactive," Groves said. With a lawsuit, "there really truly is one outcome — and this is proven historically. The outcome is you'll fix your stuff." 

That's why it's important to build in accessibility when course content is developed instead of addressing it later, said Pat James, executive director of the California Community Colleges' Online Education Initiative. If it's not accessible, it shouldn't be online. 

As she sees it, the main problem is that massively open online courses are not the same as regular online education, and because they're more experimental, they may not always be subject to the accessibility procedures that traditional online classes might go through. Because these courses are available at no cost online, UC Berkeley has to decide whether it's financially worth it to retrofit past course content so it will be accessible.

Whatever the outcome of this investigation, the U.S. Department of Justice has made its position clear: Course content needs to be accessible.

"It is a strong message, and it is one we have to listen to," James said. "We certainly are."