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UC Berkeley Responds to DOJ Pressure Over Web Accessibility

  • The US Department of Justice’s (DOJ) Civil Rights Division is doing everything that it can to make the web and information technology (IT) more accessible to people with disabilities.

    One of the most effective ways to achieve this goal is by following up on complaints submitted by citizens who feel their rights to use the internet are being denied by an organization’s inaccessible technology.

    A landscape portrait featuring Berkeley's Campanile tower in the foreground and a rainy San Francisco Bay in the background

    That’s exactly what happened when, in October 2014, the DOJ began investigating the free, public MOOC (Massive open online course) system offered by University of California, Berkeley when deaf and hard of hearing individuals complained they could not access the audio and video content on the site.

    On August 30, 2016, the DOJ submitted a 10-page letter to the administration at UC Berkeley stating that they had found the university’s MOOC content to be in violation of Title II of the Americans with Disabilities Act (ADA) which protects disabled people from discrimination.

    Legal Context: How Are MOOCs Subject to Accessibility Laws?

    The laws surrounding free online course content accessibility are not explicit.

    Navigating the Accessibility Law Venn Diagram

    Although most public and private entities are covered under the ADA, how the law applied to free online video content was essentially unmentioned for quite some time. The ADA was introduced in 1990, before the internet impacted the everyday lives of US citizens, and there has been little done to clarify the language about how the ADA impacts online content.

    However, some recent case law has essentially done that job already, paving the way for a stricter, more indisputable interpretation of the law as it applies to online video content.

    Until the landmark NAD (National Association of the Deaf) v. Netflix case of 2012, certain online video content appeared exempt from accessibility law compliance. However, the outcome of that case redefined Netflix’s online video content as a “place of public accommodation,” bringing the law up to speed with how ubiquitous internet video usage has become for the average US citizen.

    This fundamentally changed the way the ADA applies to online video offered by both private and public organizations, including institutions in higher education.

    In 2015, the NAD sued MIT and Harvard University over the inaccessible educational content offered through both their MOOC systems, citing the lack of closed captions in those courses. And because both schools receive federal funding, they are subject to Section 504 of the Rehabilitation Act, requiring that they provide necessary accommodations to students with disabilities. While the case’s ruling remains undecided, it will be the first ruling to demonstrate exactly how MOOCs are subject to accessibility law.

    UC Berkeley’s Response: The ‘All or Nothing’ Approach

    In response to the August 30th DOJ letter, UC Berkeley’s Vice Chancellor for Undergraduate Education, Cathy Koshland, released a public statement on their website.

    [T]his is one of the problems when you get into a confrontational system. People take a confrontational stance.

    Lainey Feingold
    LF Legal

    The response letter explains that while the university is doing their best to make their educational content accessible, they “might not be able to continue to provide free public content under the conditions laid out by the Department of Justice to the extent [they] have in the past.”

    In a recent webinar with internationally recognized disability rights lawyer, Lainey Feingold, UC Berkeley’s response to the DOJ’s letter was brought up. Here’s her commentary:

    I say, boo, hiss to that. That was a very unfortunate response. […] I’m not involved in the case in any way, but I have a soft spot [for Berkeley], and I know that UC Berkeley has done a lot of work, good work [for web accessibility]. So this is one of the problems when you get into a confrontational system. People take a confrontational stance.

    And I hope that that was just something that was said but not really meant, and that they will now get down to working in collaboration and leveraging the resources that they have and the good work they’ve done to meet the requirements that the DOJ has spelled out.

    Lainey, who has been following the case closely, also mentioned it could be an issue of internal compliance and enforcement:

    UC Berkeley has a good policy for accessibility, but in the Justice Department’s letter, they’re finding that the policy wasn’t enforced. And even though there’s very good resources at UC Berkeley, the people who put content connected to UC Berkeley online weren’t required to use those resources.

    UC Berkeley’s Impressive History with Accessibility

    Apparently, the DOJ does not pick favorites.

    Berkeley (and the UC system accessibility policy in general) has been a great example for universities everywhere regarding efforts to make educational technology more accessible to students with disabilities.

    In 2013, UC Berkeley completed structured negotiations with legal group Disability Rights Advocates and agreed to make their library fully accessible to students with print disabilities. The university also implemented a campus-wide policy change requiring instructors to submit their syllabi 6 weeks in advance, which allows time to convert new textbooks into an accessible format.

    Regardless, it goes to show that implementing comprehensive universal design practices, being proactive, and as Lainey puts it, “baking accessibility in” to new technologies during the design process can save organizations lots of time, trouble, and resources in the long-run.

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