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Access Denied

A group of scholars object to a decision by the University of California, Berkeley, to remove many video and audio lectures from public view as a result of a Justice Department accessibility order.

April 18, 2017
 
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In August 2016, the Department of Justice sent a letter to the University of California, Berkeley, asking it to implement procedures to make publicly available online audio and video content accessible to people who are deaf, hard of hearing, deaf and blind, and blind. Rather than comply with this request, the university took the outrageous step of ending public access to those valuable resources, which include over 20,000 audio and video files, to avoid the costs of making the materials accessible.

We, the undersigned, strongly object to Berkeley’s choice to remove the content, and its public statement that disability access requirements forced the decision. That is not the case. Berkeley has for years systematically neglected to ensure the accessibility of its own content, despite the existence of internal guidelines advising how to do so. Further, the Justice Department letter left room for many alternatives short of such a drastic step. It was never the intent of the complainants to the department, nor of the disability community, to see the content taken down.

The public response to Berkeley’s announcement -- and to Inside Higher Ed’s reporting -- has been disheartening. While some commenters have acknowledged the need for accessible e-learning content, others have cast blame on those seeking access, accusing people with disabilities of putting their own interests first. Many have suggested that calls for access, such as captioning and audio description for video content, deprive the broader public of these resources. Many misrepresent this issue as one where the needs of the many outweigh the needs of the few.

In fact, people who depend on the accessibility of online course content constitute a significant portion of the population. There are between 36 and 48 million individuals in the United States with hearing loss, or about 15 percent of the population. An estimated 21 million individuals are blind or visually impaired. Altogether, about one in five adults in the United States has a functional disability.

The prevalence of disability increases significantly after the age of 65: more than one in three older adults have hearing loss, and nearly one in five have vision loss. Refusing to provide public access to online content negates the principle of lifelong learning, including for those who may eventually acquire a disability. Moreover, many individuals without hearing and vision disabilities benefit from accessible online course content.

Despite the large number of people who stand to gain from accessible content, changes to existing practice are rarely made voluntarily and typically occur through the enforcement of disability civil-rights laws. Those laws, including the Americans With Disabilities Act and its 2008 amendment, were passed unanimously or with overwhelming bipartisan majorities in both the U.S. House of Representatives and the U.S. Senate.

Once disability civil-rights laws are passed and implemented, the broader public stands to gain. As laid out by “The Curb Cut Effect,” the installation of curb cuts -- a direct consequence of the unanimously passed 1968 Architectural Barriers Act -- permitted diverse public access that has nothing to do with wheelchairs: baby strollers, shopping carts, bicycles, roller skates, skateboards, dollies and so forth. Today, curb cuts are so ubiquitous that we do not usually think about their existence anymore, yet we cannot imagine our country without them. In fact, Berkeley, often considered the birthplace of the civil-rights movement, led the way in curb cut implementation.

Captions are often referred to as digital curb cuts. As with physical curb cuts, widespread digital captioning originates from civil-rights legislation, including the 21st Century Communications and Video Accessibility Act of 2010. About 30 percent of viewers use captions, according to Amazon, 80 percent of whom are not deaf or hard of hearing. A 2011 Australian survey revealed similar numbers, and a 2006 British study found that 7.5 million people in Great Britain had used captions to view television, including six million, or 80 percent, with no hearing loss. On Facebook, 85 percent of viewers consume video without sound, and captioning has increased user engagement. And an October 2016 study found that about 31 percent of hearing respondent college students “always” or “often” use closed captions when they are available, and another 18 percent sometimes use captions.

It was never the intention of the complainants or their allies to have course content removed from public access. With the recent mirroring of 20,000 public lectures, the net outcome is that we are back to square one with inaccessible content, now outside of the control of Berkeley. (We wish to emphasize that we have no quarrel with the decision to mirror the content, and affirm the right to freedom of speech in the strongest terms.)

The Department of Justice’s letter did not seek the removal of content, either. Indeed, Berkeley’s peer institutions have affirmed that they will continue to make their materials publicly available while striving to make them accessible as well.

The letter cannot have come as a surprise to Berkeley. In February 2013, seven months after the university announced its partnership in edX with the Massachusetts Institute of Technology and Harvard University, faculty and staff members on Berkeley’s now-dismantled Academic Accommodations Board met to discuss how to “make sure students with disabilities have access” in “online education, including MOOCs.” There, board members warned that the university needed strong and immediate plans for disability access in its MOOCs.

In April 2014, the Civil Rights Education and Enforcement Center, on behalf of the complainants, contacted Berkeley and offered to engage in structured negotiation -- a successful method of dispute resolution that has been used with some of today’s biggest champions of captioned online video content. When the offer of structured negotiations went nowhere, the center filed with the Department of Justice in October 2014.

The Justice Department letter issued in August 2016 found that Berkeley had failed to enforce the accessibility of such content, resulting in few of their video or audio files being accessible. The department asked that the university strengthen its procedures to enforce accessibility guidelines. In response, rather than make the suggested changes, Berkeley publicly threatened to withdraw content and then went ahead with its March 2017 announcement to remove content.

We acknowledge that remedial accessibility work -- after-the-fact efforts to make content accessible -- can be costly. Such work requires not only the addition of captions and audio descriptions but also checking to ensure that documents and materials can be read by screen readers or accessed on a variety of devices. That is why it is so important that leadership enforce accessibility policies from the beginning. The ADA contains an undue-burden defense that protects public entities that cannot afford to make accessibility changes. But it is difficult to see how this applies here, since Berkeley was offered the option to make content accessible over a longer period of time to keep the cost manageable.

The fact that the online content is free is immaterial. Civil-rights justice and access are built on the premise that everyone, with or without a disability, should be able to participate. Online educational content has become a key ingredient of community participation, irrespective of whether it is free or paid. Moreover, Berkeley created the content at the outset -- which means taxpayers, including taxpayers with disabilities, partially funded it.

Barriers to accessing the educational materials of a respected university hinder community participation by people with disabilities. Most of the signatories to this article experience such barriers on a very personal level. The removal of digital access barriers is a crucial endeavor for a society that continues to revise its aspiration of justice for all. We urge the university to reconsider its decisions.

Bio

Christian Vogler is an associate professor and director of the Technology Access Program at Gallaudet University.

Others Undersigned (Institutional affiliations are provided for identification purposes only):

Robert M. Anderson, professor emeritus of economics and mathematics, University of California, Berkeley
Teresa Burke, associate professor of philosophy, Gallaudet University
Patrick Boudreault, associate professor of interpretation and translation, Gallaudet
Claudia Center, adjunct professor of disability rights law at Berkeley Law School and senior staff attorney at National ACLU's Disability Rights Program
Mel Y. Chen, associate professor of gender and women's studies, Berkeley
Mel Chua
Geoffrey Clegg, faculty specialist I, Western Michigan University
Lawrence Cohen, professor of anthropology and South and Southeast Asian studies, Berkeley
Marianne Constable, professor of rhetoric, Berkeley
Adam Cureton, assistant professor of philosophy, University of Tennessee
Philip Kan Gotanda, professor of theater, dance and performance studies, Berkeley
Alastair Iles, associate professor of environmental policy and societal change, Berkeley
Stephanie L. Kerschbaum, associate professor of English, University of Delaware
Raja Kushalnagar, associate professor and director, Information Technology Program, Gallaudet
Celeste Langan, associate professor of English, Berkeley
Arlene Mayerson, adjunct professor of disability rights law, Berkeley Law School; directing attorney, Disability Rights Education and Defense Fund
Karen Nakamura, Robert and Colleen Haas Distinguished Chair in Disability Studies and professor of anthropology, Berkeley
Stacy Nowak
Stephen A. Rosenbaum, John & Elizabeth Boalt Lecturer, visiting researcher scholar, Haas Institute, Berkeley
Leslie Salzinger, associate professor of gender and women’s studies, Berkeley
Susan Schweik, professor of English, Berkeley
Katherine Sherwood, professor emerita of art practice and disability studies, Berkeley
Charlotte Smith, faculty lecturer, University of California, Berkeley, School of Public Health
John F. Waldo, counsel to the Association of Late-Deafened Adults, Washington State Communication Access Project and Oregon Communication Access Project
Lisa Wymore, associate professor of theater, dance and performance studies, Berkeley

American Council of the Blind -- Eric Bridges, executive director
Association of Late-Deafened Adults -- Sharaine Roberts, president
Communication Service for the Deaf -- David Bahar, director of public policy and government affairs
Faculty Coalition for Disability Rights at the University of California, Berkeley -- Georgina Kleege, president
Hearing Loss Association of America -- Barbara Kelley, executive director

Telecommunications for the Deaf and Hard of Hearing Inc. -- Claude Stout, executive director

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