By 2016, the University of California, Berkeley had made it a habit to post many videos of its conferences, lectures, sporting events, graduation ceremonies, and other events on its website, YouTube, Apple Podcast channels, and other platforms along with its courses at UC BerkeleyX platform. But in August of that year, the US Department of Justice claimed that significant portions of this online content were inaccessible to those with hearing, visual or hand disabilities. Because this violated Title II of the Americans With Disabilities Act, the government required the university to implement procedures to make its online content accessible.
Rather than comply with the accessibility order, Berkeley began removing more than 20,000 video and audio lectures from the public domain.
This week, the Justice Department announced that it had reached a proposed consent decree with the university to resolve the 2016 allegations. If a judge approves the agreement, Berkeley will “make all future and the vast majority of its existing online content accessible to people with disabilities.”
Although the Americans With Disabilities Act was signed into law in 1990, the Justice Department has been working out in real time how the law applies at the intersection of higher education and technology. High-profile cases like this one with Berkeley can often help raise awareness of the challenges people with disabilities face in an increasingly digital world. Although disability rights advocates generally welcome the news of the consent decree, many feel it is long overdue. The news follows a pandemic surge in access to digital courseware, which some fear may be lost as people return to their pre-pandemic behavior.
“Why did UC Berkeley spend all this time and energy fighting accessibility requirements when the consent decree essentially reflects what they likely would have gotten in structured negotiations [the Civil Rights Education and Enforcement Center] 2014?” Christian Vogler, director of the Technology Access Program at Gallaudet University, wrote in an email. “By fighting it, they unnecessarily prolonged accessibility and also did great harm to disabled communities in the process.”
Stephanie Kerschbaum, Associate Professor and Director of the Writing and Public Speaking Program at the University of Washington, author of Disability Negotiation: Disclosure and Higher Education (University of Michigan Press, 2017) and a self-proclaimed deaf academic, agrees.
“It took a lawsuit for them to do what they should have done all along,” Kerschbaum wrote. “I hope that the resources they are dedicating to this will meaningfully change expectations and practices across higher education, and not just at Berkeley.”
UC Berkeley officials did not respond to a request for comment.
To date, much of Berkeley’s online content lacked captions and transcripts, making it inaccessible to the deaf, and such content was published without alternative text describing visual imagery for the blind, according to the Justice Department’s announcement. In many cases, the formatting has also not allowed people with disabilities to use screen readers or other assistive technology to access the content.
“Technology is changing the way everyone learns,” wrote Stacy Nowak, associate professor in Gallaudet’s communications studies program, adding that accessibility shouldn’t be reserved for people without disabilities. “People with disabilities need to be included and have full access at every step.”
Since the original allegations in 2016, COVID-19 has been declared a pandemic, which has significantly improved digital accessibility in higher education. During the early pandemic shift to emergency distance learning, many students with disabilities and their advocates found that digital access to equitable education was being abandoned. Then, over time, higher education experienced a pandemic boost from digital courseware.
“Accessibility awareness is better today than it was in 2017, and captions have become even more popular, especially among Gen-Z,” Vogler wrote. “But now that people are returning to face-to-face work, we are also seeing relapses.”
This week’s consent decree reaffirms universities’ legal obligation to offer closed captioning “regardless of fallback and regardless of whether an accessibility feature is popular,” Vogler wrote. “The decree also covers requirements for blind access, which are much less visible to the mainstream than closed captioning, but no less important.”
The agreement also requires the university to “revise its policies, train relevant staff, appoint a web accessibility coordinator, conduct accessibility testing of its online content, and hire an independent auditor to verify the accessibility of its content,” the announcement said to rate”.
“Most institutions have yet to commit to systemic change that true accessibility requires,” Chris Danielson, public relations director at the National Federation of the Blind, wrote in an email, noting that his organization is still committed to the agreement checking, but always happy to see progress.
The Justice Department characterizes the development as a win for digital access for people with disabilities.
“Through this consent decree, the Department of Justice is demonstrating its commitment to ensuring compliance with the [Americans With Disabilities Act] by providing people with disabilities a full and equal opportunity to participate in UC Berkeley’s services, programs and activities and enjoy the benefits to the same extent as people without disabilities,” said Stephanie M. Hinds, U.S. Attorney for the Northern District of California in a statement.
Some advocates remind that change can be driven by good intentions in addition to the law.
“Rather than think of accessibility as a tedious check-the-box compliance exercise, think of it as something that both affirms a civil right and maximizes your audience,” Vogler said. “The time and money spent fighting a losing battle for access would be much better invested in establishing a one-stop shop to help university content creators make all course offerings accessible.”
As professionals in disability service offices in Berkeley and beyond, they work to build capacity and resources for inclusive, college-based and college-originated learning, and some offer wisdom from experience.
“There is no quick fix, and there is no single tool, resource, or practice that magically makes everything accessible to everyone,” Kerschbaum wrote.