By 2016, the University of California, Berkeley, had adopted a habit of posting 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 on the UC BerkeleyX platform. But in August of that year, the U.S. Justice Department alleged that significant portions of that online content were inaccessible to individuals with hearing, vision or manual disabilities. Since that violated Title II of the Americans With Disabilities Act, the government asked the university to implement procedures to make its online content accessible.
Rather than complying with the accessibility order, Berkeley began removing more than 20,000 video and audio lectures from public view.
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.”
Though 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 such as this one with Berkeley can often help raise awareness about the challenges people with disabilities face in an increasingly digital world. Though disability rights advocates widely welcome news of the consent decree, many consider it long overdue. The news comes on the heels of a pandemic boost in digital course materials access, which some fear could be lost as people return to pre-pandemic behaviors.
“Why did UC Berkeley spend all this time and energy to fight accessibility requirements, when the consent decree essentially mirrors what they probably would have gotten in structured negotiations with [the Civil Rights Education and Enforcement Center] back in 2014?” Christian Vogler, director of the Technology Access Program at Gallaudet University, wrote in an email. “By fighting this, they needlessly dragged out providing accessibility and in the process of doing so also did great harm to disability communities.”
Stephanie Kerschbaum, associate professor and director of the writing and rhetoric program at the University of Washington, author of Negotiating Disability: Disclosure and Higher Education (University of Michigan Press, 2017) and a self-identified deaf academic, agrees.
“It took a lawsuit for them to do what they should have been doing all along,” Kerschbaum wrote. “My hope is that the resources they put toward this meaningfully shift expectations and practices across higher education and not just at Berkeley.”
Officials at UC Berkeley did not respond to a request for comment.
To date, much of Berkeley’s online content has lacked captions and transcripts, which makes it inaccessible to those who are deaf, and such content has been posted without alternative text describing visual images for those who are 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 how everyone learns,” Stacy Nowak, instructor in the communication studies program at Gallaudet, wrote, adding that accessibility should not be reserved for individuals without disabilities. “People with disabilities must be included and have full access every step of the way.”
Since the original 2016 allegations, COVID-19 was declared a pandemic, which has brought digital accessibility in higher education into sharp relief. During the early-pandemic move to emergency remote teaching, many students with disabilities and their advocates found that digital access to equitable education was abandoned. Then, as time passed, higher education experienced a digital course materials pandemic boost.
“Awareness of accessibility 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 also have started to see backsliding.”
This week’s consent decree affirms universities’ legal obligations to offer captions “irrespective of backsliding, and irrespective of whether an accessibility feature is popular,” Vogler wrote. “The decree also covers blind access needs, which are much less visible to the mainstream than captions, but no less important.”
The agreement will also require the university to “revise its policies, train relevant personnel, designate a web accessibility coordinator, conduct accessibility testing of its online content and hire an independent auditor to evaluate the accessibility of its content,” according to the announcement.
“Most institutions have not yet made the commitment 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 reviewing the agreement but is always glad to see progress.
The Justice Department is characterizing the development as a higher ed digital access win for people with disabilities.
“Through this consent decree, the Department of Justice demonstrates its commitment to ensuring compliance with the [Americans With Disabilities Act] by providing individuals with disabilities a full and equal opportunity to participate in and enjoy the benefits of UC Berkeley’s services, programs, and activities in equal measure with people without disabilities,” Stephanie M. Hinds, U.S. attorney for the Northern District of California, said in a statement.
Some advocates offer reminders that change may be driven by good intentions, in addition to the law.
“Instead of viewing accessibility as an onerous check-the-boxes compliance exercise, look at it as something that both affirms a civil right and as maximizing your audience,” Vogler said. “The time and money spent fighting a losing battle about access would be far better invested into setting up a one-stop place that helps university content creators make all course offerings accessible.”
As professionals in disability services offices at Berkeley and beyond work to build capacity and resources for inclusive learning that takes place at and emanates from colleges, some offer wisdom gleaned from experience.
“There’s no quick fix, and there’s no single tool or resource or practice that will make everything magically accessible to everyone,” Kerschbaum wrote.