12 Questions on the Past, Present, and Future of Web Accessibility Law

April 5, 2016 BY EMILY GRIFFIN
Updated: December 6, 2021

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Recent years have seen an uptick in disability discrimination lawsuits about web accessibility against higher education institutions, private corporations, and media companies.

The trend has many seeking answers about which accessibility laws apply to them, what they need to do to comply, and what happens if the laws change.

We invited a legal expert to give his insights into past, present, and possibly future web accessibility lawsuits. Retired Chief Regional Attorney at the San Francisco Office for Civil Rights, Paul Grossman, presented the webinar
The Legal Year in Review: Digital Access Cases
. He reviewed the big accessibility cases in 2015, clarified what the current expectations are for accommodations, and forecast legal challenges still to come.

His presentation was followed by a packed Q&A session with attendees. See highlights of his answers below the video recording of the webinar:

Do you anticipate that learning technology products will be viewed as a place of public accommodation, thereby creating ADA liability for manufacturers and vendors?

PAUL GROSSMAN: I don’t know if the manufacturer will ever be required to produce its product in an accessible form. But I don’t think that answers the real question.

I think that every college and university in America will be required to use accessible technology, and they will bring so much market pressure that the product producers will have no choice.

I think that every college and university in America will be required to use accessible technology, and they will bring so much market pressure that the product producers will have no choice.

And indeed, I think this is going on right now.

Product producers that weren’t particularly interested in accessibility, are now, for want of a better word, coming to heel because they understand that it’s going to become harder and harder to sell inaccessible products.

So indirectly, if not directly, I think this issue will be effectively addressed.

Do you need to have closed captions on videos that you link to or show in class?

PAUL GROSSMAN: If you have deaf or hard of hearing students in that class, that video must be captioned and the captioning must be accurate enough that the student will have an equal educational opportunity.

Are the automatic YouTube captions and transcripts considered adequate for accessibility compliance?

PAUL GROSSMAN:According to the Justice Department, they are not acceptable. They arenot accurate enough.
Now, one of the interesting questions is, however, if you have a professor who is not registering anybody for class, is not going through something organized like a MOOC, but just sort of out of the generosity of their heart is posting something on YouTube, is the university responsible for that? In other words, is the YouTube posting a program or activity of the university?

And I think that’s actually an unsettled issue of law over which we may yet see some guidance from the DOJ or DOE, or it will be litigated.

In fact, from my perspective, that’s really what’s going on right now. It’s kind of like almost everybody, I think, has decided, yes, I have a duty to make my EIT accessible.

The question will be: what’s the extent of that duty? And will it be just courses that students register for? Will it be that and MOOCs? Will it be whatever we put up on the internet, no matter how we put it up or no matter who puts it up?

I don’t think we know the answer to that yet.

Why isn’t YouTube required to caption all of their videos if Netflix must and we know that inaccurate captions are not OK? Is that considered an undue burden?

The law is changing so quickly, I won’t be shocked if a year from now, somebody sues YouTube.

PAUL GROSSMAN: So Netflix is conveying a product, right? A good and service of Netflix is the movie. YouTube is not conveying a product.
Now, I’m not saying the law will never reach YouTube. But at this point, I think there is a pretty clear distinction between YouTube and a company like Netflix.

But the law is changing so quickly, I won’t be shocked if a year from now, somebody sues YouTube.

Are faculty specifically responsible for creating accessible content in a recent settlement?

PAUL GROSSMAN: I’m not sure I can answer that question. However, there was a settlement between the Disability Rights Advocates(DRA) and the University of California at Berkeley.

In this settlement, the University of California said that it would advise all faculty members that they must submit their syllabi six weeks in advance, six weeks before the start of each semester, so that the Disabled Students Services Office would have the opportunity to in a timely and prompt fashion convert inaccessible material to an accessible format.

That agreement provided that if a faculty member was really recalcitrant about this duty, engaged in a pattern of not providing syllabi on time and in advance, of not cooperating so that alternate media could be produced, the university could sanction that individual for, in effect, interfering with the university’s ability to make their materials accessible.

Is a transcript of a video sufficient to meet legal accessibility requirements, or must the video be captioned?

PAUL GROSSMAN: The position of OCR and DOJ is that videos must be captioned.

What if a video is published online by a university, but it’s not related to a class– for example, a campus event that gets published to a YouTube channel?

PAUL GROSSMAN: Any program or activity of the university must be accessible. So if it’s a program or activity of the university, which it sounds like it is, I think it would have to be captioned.

What is considered a reasonable amount of time to provide captioning after a student in a small class makes the request?

PAUL GROSSMAN: I have supported institutions where students asked for accommodations in the middle of the semester. Because the accommodation was not easy to implement on a snap of the fingers, I gave those institutions three weeks. And the reason I gave them three weeks is because the only court decision that I ever saw on this issue gave a law school three weeks after a student asked that his law books be converted to Braille in the middle of the semester.
That’s not a definitive answer to your question, but it’s the only answer I can point to.

Would online-only schools or purely virtual classes be subject to these accessibility laws?

PAUL GROSSMAN: As long as they’re subject to Section 504 –which they very, very likely are — the answer is yes.
The extent of their duty under Title III of the ADA is a less clear question because of the debate about whether a virtual-only entity is a public accommodation.

But at least under Section 504, they’ll need to add captions.

A colleague was taking some of the videos from YouTube, captioning it, and saving it in their site and citing the source. One news channel complained to the college that that was a violation of their copyright. Was it?

How Copyright and Fair Use Impact Third Party Captioning for Educational Video How do copyright laws and captioning laws intersect?

A legal expert gives his opinion, backed solidly by case law.

Watch the recording here:

How Copyright and Fair Use Impact Third Party Captioning for Educational Video

PAUL GROSSMAN: I’m not a copyright expert, but a similar issue has been litigated in a case called Authors Guild v. HathiTrust

The HathiTrust case decision suggested that altering a material to make it accessible to a deaf or a blind individual was considered fair use, an exception to the copyright requirement. And as long as the material was only provided to people who needed it in that format, there was not a problem.

Consult your house counsel, and be sure to bring the HathiTrust decision to their attention.

In an online program, if students are submitting video assignments which will be peer-reviewed by their fellow students, do those videos have to be captioned?

PAUL GROSSMAN: So this is a course where students have registered. You know who’s in the class. If you know that one of the individuals in the class has a sensory impairment, you must take the steps necessary to make those videos accessible.

Otherwise, you don’t have to caption those videos for the heck of it. Because you know who’s in the class, you can do it on a just-in-time basis.

Now, you’ve got to be prepared to do it on a just-in-time basis. But if you have an individual in that class who’s deaf or blind, you’re going to have to make the materials accessible.

Disclaimer: this blog post does not constitute legal advice.

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