Takeaways from UC Berkeley’s Consent Decree with the DOJ
After an eight year investigation into the accessibility of UC Berkeley’s online content, the university and the Department of Justice (DOJ) finally came to an agreement: UC Berkeley will ensure its free online content is accessible to learners with a range of disabilities. A consent decree was approved on December 2, 2022, effective immediately.
While the DOJ’s investigation began with a complaint around a lack of closed captions, it expanded to address media and web accessibility for all learners. Read on to learn more about the background of the investigation and the far-reaching impact of the consent decree.
Catch Up Quick
The DOJ agreement is the outcome of a 2014 complaint submitted by the National Association of the Deaf (NAD) alleging that many of the school’s online courses, lectures, and other content were inaccessible to people who are D/deaf or hard of hearing due to a lack of closed captions. At the time, massive open online courses (MOOCs) were gaining in popularity at universities across the country; however, many universities were not considering accessibility in their online content.
The NAD argued that UC Berkeley violated Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability by public entities. The government determined that the complaint was valid and notified UC Berkeley that it needed to address and eliminate its ADA violations.
In response to the government’s Letter of Findings on August 30, 2016, UC Berkeley disagreed with the verdict and maintained that the school had “invested substantially in improving the accessibility of its online content.” Rather than complying with the accessibility order, UC Berkeley began removing more than 20,000 video and audio lectures from public view in 2017. By 2021, the DOJ said that UC Berkeley had still not addressed many of its accessibility barriers.
UC Berkeley’s poor web accessibility may come as a surprise to those who are aware of its revolutionary history. The Rolling Quads, a community of quadriplegic students in the 1960s, transformed UC Berkeley into one of the most physically accessible college campuses in the country. The Rolling Quads also established the independent living movement, which expanded into a national effort that included the Section 504 sit-in and resulted in improved rights for the American disability community.
However, as many other lawsuits have shown, compliance with the ADA or other disability rights laws for physical structures do not prevent an organization from being sued for an inaccessible digital presence.
Multiple other universities have been sued under remarkably similar circumstances for inaccessible online content. Cases like NAD v. MIT and NAD v. Harvard were triggered by the universities’ inaccurate auto captioning on their free online programming and platforms, such as YouTube, iTunesU, [email protected], and MIT OpenCourseWare. Both MIT and Harvard eventually reached settlements with the NAD that strengthened digital accessibility policies and required accurate captions.
The Consent Decree
What began as an investigation into closed captions for UC Berkeley’s online content now has a much wider scope, going beyond captions and addressing accessibility measures that account for learners who are blind, d/Deaf or hard of hearing, and have mobility disabilities.
The DOJ agreement applies to UC Berkeley-controlled online content that falls into these three categories:
- Publicly accessible websites on berkeley.edu and subdomains
- BerkeleyX online courses
- Content published by UC Berkeley on third-party platforms such as YouTube, Spotify, or Apple Podcasts
To comply with WCAG 2.0 Level AA and ensure equal access for individuals with a range of disabilities, UC Berkeley must implement closed captions, audio description, alternative text, and other accessibility best practices.
UC Berkeley will also be required to implement updated accessibility procedures, designate a web accessibility coordinator, conduct annual accessibility testing and training, and hire an external auditor to review the accessibility of its content. UC Berkeley must report to the DOJ every six months about its compliance with the decree.
Implications for Educational Institutions
1. YouTube’s auto captions alone are not accurate enough for accessibility.
UC Berkeley’s YouTube channel, which houses thousands of videos spanning a range of topics, was deemed inaccessible because they either lack captions or rely solely on YouTube’s auto-generated captions. “Although UC Berkeley can remediate inaccurate or incomplete automatic captioning rendered by YouTube,” said the DOJ, “UC fails to do so.” The consent decree reinforces the importance of accurate captions and the problems that arise when auto captions aren’t remediated.
YouTube’s auto captions are notoriously inaccurate, which makes them inaccessible and detrimental to educational content. While inaccurate captions can prevent a student who is d/Deaf or hard of hearing from comprehending content, they can also impact hearing students: 80% of people who use captions aren’t d/Deaf or hard of hearing. Students use captions to improve learning comprehension and retention and stay engaged with lessons. Students with and without hearing loss rely on accurate captions as they learn material; reading inaccurate information makes learning difficult and sometimes impossible.
2. The DOJ will continue to conduct investigations and push WCAG as the national standard for web accessibility.
The COVD-19 pandemic pushed much of our lives online, including education. Though WCAG and other accessibility standards have been around for years or sometimes decades, their enforcement has increased exponentially in recent years. The pandemic has cemented online learning material as a significant part of the educational landscape and led to increased awareness of accessible online content.
The Biden administration has demonstrated a growing focus on web accessibility and contributed to its enforcement. The administration released a statement declaring their dedication to web accessibility:
Our ongoing accessibility effort works towards conforming to the Web Content Accessibility Guidelines (WCAG) version 2.1, level AA criteria. These guidelines not only help make web content accessible to users with sensory, cognitive and mobility disabilities, but ultimately to all users, regardless of ability.
The administration has led by example, redesigning Whitehouse.gov to make it more accessible by introducing features like dark mode and font size options. The DOJ has also made updates to its ADA.gov website to make it more user friendly. The DOJ is using WCAG 2.1 level AA and WCAG 2.0 level AA as its accessibility standard.
3. Compliance with one accessibility requirement doesn’t protect organizations from other disability rights litigation.
The original investigation into UC Berkeley was concerned with a lack of captions for people who are d/Deaf or hard of hearing. The agreement expanded to include general web accessibility for people with physical disabilities or who are blind or low vision, in addition to those with hearing loss.
While UC Berkeley’s online content is inaccessible for folks with a range of disabilities, any organization that captions its content is not protected from, for example, litigation requiring audio description, or vice versa. Accessibility measures must take into account the needs of all users, including those with different disabilities.
4. The ADA includes podcast accessibility.
The consent decree specifically mentions that UC Berkeley’s podcasts must conform to WCAG 2.0 Level AA, which means audio-only content must be transcribed. Litigation around podcast accessibility has been steadily growing, and the consent decree includes podcast transcription under the ADA as required by WCAG 2.0 Level AA.
5. The sooner you begin your accessibility journey, the easier and less litigious it will be.
Because UC Berkeley failed to implement accessibility measures before the government got involved, the school has a substantial backlog of inaccessible content. UC Berkeley’s now sizable accessibility project provides a tale of caution to organizations that are prolonging or avoiding accessibility.
If you find yourself in this situation, there are resources for you. Certain media accessibility providers, such as 3Play Media, are well suited to handle large archives of content. An effective captioning and audio description vendor will help you get up to speed by providing you with a navigable platform, great support, and a high quality output.
The consent decree between the DOJ and UC Berkeley provides a framework for what’s expected under Title II of the ADA for online educational content, but it also has far-reaching implications for private schools under Title III of the ADA. This expansive settlement is a big step forward for web accessibility in higher education. Online learning materials are constantly evolving and growing, and it’s imperative that everyone has equal access.
This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney.
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