March 22, 2017

Publicly Accessible Online Content May Require Closed Captioning

BY: Shawna McKee, Cathie Fields, Sharon Ormond

Beginning in 2015, the U.S. Department of Justice investigated complaints against the University of California, Berkeley, that Berkeley’s free audio and video online content was not fully accessible to individuals with disabilities. The primary complaint was filed by the National Association for the Deaf on behalf of members of the public who alleged they could not adequately access course content posted without closed captioning. In summer 2016, the DOJ issued findings indicating the lack of closed captioning on Berkeley’s Course Capture content, among other issues, violates Title II of the Americans with Disabilities Act (ADA). According to the DOJ, the ADA imposes a duty to ensure publicly available web content is accessible. The DOJ specifically identified “videos without captions that are totally inaccessible to people who are deaf or hard of hearing.”

Title II of the ADA applies to state and local government entities and protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by those entities. To ensure web accessibility to individuals with disabilities, online videos must incorporate features that make them accessible to everyone, such as audio descriptions of images to make videos accessible to people who are blind or have low vision and text captions synchronized with the video images to make videos and audio tracks accessible to people who are deaf or hard of hearing.

On March 6, 2017, the UC Berkeley administration announced a remarkable response to the DOJ’s findings: restricting public access to more than 20,000 online “legacy” classroom lecture videos and podcasts. From 2006-2015, UC Berkeley posted searchable course lecture videos and podcasts online as part of its legacy Course Capture program. In 2015, the university began publishing all new Course Capture content behind CAS/CalNet authentication, restricting access to newer content to members of the university community. UC Berkeley then suspended all access to its iTunesU course content and began moving the publicly available Course Capture YouTube content to a new channel that requires an authentication login and is restricted to members of the university community.

Rather than adding accessibility features, such as closed captioning, to Course Capture content that is 3-10 years old, UC Berkeley decided to restrict public access to that content and intends to create new public content that includes accessible features. UC Berkeley will continue to offer free courses (Massive Open Online Courses or “MOOCs”) in accessible formats to the public through the EdX platform.

UC Berkeley determined the requirements proposed in the DOJ’s findings “would require the university to implement extremely expensive measures to continue to make these resources available to the public for free,” according to a statement by Cathy Koshland, Vice Chancellor for Undergraduate Education. Koshland also noted, “moving our content behind authentication allows us to better protect instructor intellectual property from ‘pirates’ who have reused content for personal profit without consent.”

In previous posts (see here and here), we reported on the DOJ’s expectations for educational institutions to provide web-based content that is accessible to individuals with disabilities. In the meantime, the U.S. Department of Education’s Office for Civil Rights has launched investigations into the accessibility of websites operated by many California K-12 school districts and county offices of education. These investigations are likely to continue. If your institution has not been the subject of an accessibility complaint, it may be only a matter of time before your website comes under scrutiny.

To avoid, or survive, a potentially intrusive OCR or DOJ investigation into website accessibility, educational institutions should begin assessing their online content and taking steps to ensure access for disabled individuals. Closed captioning is just one element. Other identified concerns include a skip navigation link, which allows users to access content without going through a series of menus; keyboard controls to ensure access for users who are mobility impaired; and the ability of screen-reader software to make coherent use of PDF documents.

Removing massive amounts of online content, the solution announced by UC Berkeley, may not be necessary or preferred as your institution’s method of addressing accessibility expectations.

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Attorney Bio(s)

Shawna McKee

Shawna McKee

Associate

5626533200

smckee@aalrr.com

Shawna McKee regularly advises school districts and community college districts on personnel and employment law matters, including discipline and termination, compliance with leave requirements, and workplace violence policies. She has experience conducting employment-related investigations, and has represented public agencies in matters before the Public Employment Relations Board.

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cfields

Cathie Fields

Partner

949-453-4260

cfields@aalrr.com

Cathie Fields is a partner in the Irvine office of Atkinson, Andelson, Loya, Ruud & Romo. Since 1997, Ms. Fields has represented school districts, community college districts, and other educational agencies in labor and employment matters, general education issues, and governance matters. She advises clients on employment issues ranging from hiring practices, preemployment inquiries and testing, and disability/accommodation concerns to disciplinary actions, certificated and classified layoffs, leaves of absence, contract drafting and interpretation, and wage and hour law. Additionally, she frequently advises administrators and governing boards regarding public records obligations, board meeting agendas, Brown Act compliance, and conflict-of-interest issues.

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sormond

Sharon Ormond

Partner

562-653-3200

sormond@aalrr.com

Sharon Ormond is a Partner in the Cerritos and Irvine offices. She represents California public sector employers in labor relations and personnel matters. She has almost 20 years’ experience handling cases including certificated and classified discipline, reductions in force, unfair practice charges, contract grievances, and the investigation and defense of discrimination, harassment, whistleblower, and retaliation claims. Her practice also includes advice and counsel in First Amendment, search and seizure, and privacy rights; wage and hour compliance; leaves of absence; disability accommodations; and compliance with the Brown Act and the California Public Records Act. Ms. Ormond chairs the firm’s Education Law Technology group and is a member of the firm’s wage and hour and Title IX groups.

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