And What It Means for Online Education

Background: University’s Online Courses Deemed Inaccessible

On August 30, 2016, the Department of Justice informed University of California, Berkeley (UC Berkeley) that large segments of UC Berkeley’s free, publicly available online content was not accessible to individuals with hearing, vision, or manual disabilities. The DOJ’s letter to university administration stated that UC Berkeley’s courses were in violation of the Americans with Disabilities Act of 1990, which prohibits discrimination against qualified individuals with disabilities by public entities.

UC Berkeley’s experience with making online content accessible to people with disabilities is not unique. In recent years, many universities have been making learning available on the web, most popularly through MOOCs, massive open online courses, which often attempt to translate the experience of taking college classes to a format available through web browsers and other online formats. In addition to offering web-based education to the public, universities use the web to augment traditional courses through assignments, additional reading, online quizzes, lecture supplements, and other ways in which university lecturers can add dimensions beyond the traditional classroom lecture or laboratory experience.

Berkeley Web Accessibility Response Cites Expense, Lack of Clarity—and Garners Criticism

UC Berkeley responded to the DOJ by stating that, in the “absence of clear regulatory guidance,” it attempted to bring free online content to the public; but given the “extremely expensive measures” that would be required to continue to make these resources available to the public, they now “must strongly consider the unenviable option” of removing the free, online content from public access.

Many commentators (including the Cato Institute and Simple Justice: A Criminal Defense Blog) latched onto UC Berkeley’s reasoning and suggested that the DOJ, in its effort to make everything perfect, was the enemy of the good. Was it worth the many losing free access to Berkeley’s courses, just because they weren’t available to the few?

Web accessibility consultant Karl Groves had one of the more direct responses to Berkeley’s threat to simply remove the courses rather than make them accessible. Groves points out, in rather powerful language, that there is a long history of web-accessibility-related litigation and settlements and if Berkeley did not know this and made online content available without making it accessible, “that’s their fault, plain and simple.” While such comments may focus on what the university knew or should have known about accessibility requirements, it does not adequately address the question of the expense and complications involved in making content accessible and whether the university community may now be forced to make a decision to deny public access to some materials rather than make them accessible to all.

The DOJ points out that there is ample infrastructure at UC Berkeley to support faculty members in making online material accessible. UC Berkeley, the university system, and edX (a MOOC hosting platform provider) all provide guidance in how to make courses accessible to those with disabilities. In addition, before making a course available online, faculty members are asked to sign a statement that states that they have reviewed and implement guidelines for creating accessible content; PDFs follow recommendations; their course website follows accessibility guidelines; their video and audio files have been submitted for captioning; and captioning is accurate.

At UC Berkeley, the DOJ seems to say, there is a policy to make online learning accessible; there are tools and guidelines to help UC Berkeley make online learning accessible; the delivery mechanisms that UC Berkeley uses (such as edX) are designed to enable accessibility; faculty is made aware that the courses need to be made accessible; and, moreover, the DOJ interprets federal law as mandating that online learning is accessible. The DOJ notes, however, that what is missing is UC Berkeley’s consistent application of its own resources and policies to ensure compliance with accessibility standards.

[Note: See our Accessible Elearning Development page and Accessibility in Elearning: Why It’s Worth It for additional information on accessible online learning.]

Consideration 1: Affected University Content Spans Multiple Media Types and Channels

The broad definition of “online learning” in a university environment complicates the matter of making online courses accessible.

The DOJ notes that at UC Berkeley, online learning consists of “thousands of courses, lectures, and other campus events available in video and audio formats,” on platforms ranging from edX MOOCs (UC BerkeleyX), YouTube, and iTunesU. The content includes videos, audio files, documents, and websites. Any material that is available online and is used for the course, from recorded lectures or audio recordings, handouts to articles for reading, and websites designed to be integrated into the course, would be considered online learning.

This means that it is not enough to make a course website accessible or training material accessible; all supporting materials must meet accessibility criteria.

Consideration 2: Accessibility Outcomes May Be Fairly Straightforward, but Each Content Type Takes Special Treatment

Each format needs specific actions in order to bring course material into compliance.

For example, a person with a hearing disability could watch a video of a lecture; however, the information would be unavailable to them unless the audio was transcribed and available as captions, ideally presented in real time.

A person with a disability related to vision would not be able to see a PDF course handout or reading assignment. They could use a screen reader to hear it; but the screen reader could only read it to them if the PDF was organized appropriately and semantically tagged to identify the elements and order of the document’s content.

A person who could not use a mouse would not be able to click through a course website to access information. The website, then, must be properly designed so that the keyboard tab and arrow keys could be used to navigate the website in an understandable manner.

[Note: The UC Berkeley case involves Department of Justice directives. To learn more about how schools from K-12 to colleges are being impacted by the U.S. Department of Education Office of Civil Rights, see OCR Website Accessibility Complaints Hit Schools and Universities.]

Consideration 3: University Web Accessibility Guidelines and Outcomes Are Clear, and Resources Are Available

How does a university know what, precisely, needs to be done? And how does the institution know whether the courses meet the criteria? In the case of UC Berkeley, the DOJ pointed out two standards.

One, the DOJ notes that Title II of the ADA requires that “public universities must afford individuals with disabilities an equal opportunity to participate in or benefit from any aid, benefit, or service provided to others.”

In addition, the DOJ notes that UC Berkeley is required to follow “the University of California Office of the President’s Information Technology Accessibility Policy (Accessibility Policy), requiring that the ‘University seek[s] to deploy information technology that has been designed, developed, or procured to be accessible to people with disabilities, including those who use assistive technologies.’” The Accessibility Policy, in turn, sets forth technical standards. These standards are found in Web Content Accessibility Guidelines (WCAG) 2.0; UC Berkeley adopts the WCAG level AA success criteria. (For more on WCAG, see the full WCAG 2.0 specifications.)

Neither of these explain, nor establish, precisely how material is to be made accessible. Rather, they describe how success will be measured. For example, information present in a PDF must be made perceivable for a non-sighted user. How it is made perceivable is left up to the author.

Specific guidance is present in many areas. WCAG itself offers non-required techniques. Other organizations offer methods to tag PDFs, or how to write useable descriptive captions.

Berkeley, as DOJ points out, has internal resources to help. The Berkeley Resource Center for Online Education is a place where authors can refer to and draw on as a resource to make their material accessible. Berkeley’s Educational Technology Services can provide captions. However, in the Berkeley web accessibility instance, the DOJ noted that these resources are only recommended rather than required. Outside of the institution, there are third-party vendors who can assist with video transcription and audio description, website design, and PDF remediation.

Consideration 4: Retrofitting University Online Courses Is No Small Feat

The bottom line is that if materials are available from UC Berkeley for some, they must be make accessible to those with disabilities. UC Berkeley, and other entities in the same position, is facing the daunting task of retrofitting “thousands” of courses. In approaching a task of this magnitude, it is easy to sympathize with Berkeley’s weighing the costs and relative merits of removing the courses from publicly available platforms.

Perhaps, then, a key takeaway from Berkley’s dilemma is it is best to design accessibility in from the beginning. It is far easier to address access requirements for courses one at a time, as they are developed, instead of remediating them all after the fact.

Conclusion: Where There’s a Will, There’s a Way (and a Proactive Defense against Litigation)

Measurable criteria against which to judge accessibility exists, and the technical knowledge that is required to ensure that different formats meet the criteria is fairly widely available. Indeed, in many cases, the knowledge is present in the institutions of higher education themselves. What often is lacking is the will to properly enforce accessibility and ensure that online material is available to all, regardless of disability.

The DOJ letter to Berkeley mandates accessibility of online material, not as a matter of choice, but as a matter of law. Having a policy in place, and even accessibility knowledge and resources, isn’t enough if those aren’t applied to online materials that are offered. While the costs in time, diligence, and know-how are certainly factors in whether or not university administrations commit to providing accessible materials, the costs of building in accessibility during development are less than the costs of remediating large amounts of content after the fact. Furthermore, with each lawsuit and each demand letter an organization receives, legal costs also come into play, making online accessibility an even greater burden. To meet legal and ethical accessibility requirements, institutions of higher education should not only review their accessibility policies and practices and examine current online content for accessibility, but, as a cost-effective approach to meeting them, ensure and enforce accessibility requirements as a part of the course development process.

Make Sure Your Online Training Meets Accessibility Standards

Microassist can help you create compliant, accessible elearning, evaluate existing elearning for compliance, and remediate elearning to meet accessibility standards. Our instructional design teams are well versed in Section 508, WCAG 2.0, and many state laws such as Texas Administrative Code, Title 1, Chapters 206 and 213. They can guide teams through the process of designing accessible elearning. Visit our Accessible Elearning Development page to learn more or contact us for any questions about how we can support your organization.

Additional Accessibility Information

Microassist Accessibility Services

Microassist Accessibility Services: Barrier-Free Digital Development provides background on Microassist expertise and the various offerings available for digital content and platforms. Services cover accessible elearning, website, and application development, audit and remediation services, and accessibility testing across various formats.

Digital Accessibility Digest

One of our three industry blogs, Microassist’s Digital Accessibility Digest is the “umbrella” for much of our accessibility content. It features commentary, guidance, curated news, and event information. Accessibility in the News is a regular feature of the Digital Accessibility Digest.

This article adapted from the October 2016 issue of Mealey’s™ Litigation Report: Cyber Tech & E-Commerce. Mealey’s is a subscription-based information provider and a division of LexisNexis.

Copyright © 2016 by Kevin Gumienny. Any commentary or opinions do not reflect the opinions of Microassist or LexisNexis, Mealey’s.

Image Credit: Yahoo!: Adam Pantozzi/Times Alliance | Attribution 2.0 Generic (CC BY 2.0)