Clarifications On UC Berkeley’s Accessibility Decision To Restrict Video Access

I had planned earlier to write a post or two on the UC Berkeley video kerfuffle but kept getting sidetracked with more articles in trade press and national media. And there have been quite a few articles, but many if not most seem to focus on the decision as a short-term transaction – DOJ ruling, UC Berkeley decision to remove videos from public – rather than understand the broader implications. Before commenting on these implications, I thought it would be useful to clarify some misconceptions that I have seen.

The BerkeleyX program (with edX) was a big part of the DOJ ruling

While most coverage has focused on the removal of YouTube videos created by lecture capture systems – automatically recorded and posted videos without post-production or packaging – the original DOJ ruling was based on two complaints, the first being usage of BerkeleyX MOOCs and second being usage of lecture capture videos.

Stacy Nowak, a member of NAD, is a professor and PhD student at Gallaudet University and she is deaf. Ms. Nowak would like to avail herself of what she believes is the increasingly frequent use of video and audio-based scholarship. Ms. Nowak teaches communication courses at Galludet, including Introduction to Communication and Nonverbal Communication. She would like to use numerous online resources related to communication in her classes, including the UC BerkeleyX course, “Journalism for Social Change,” but cannot because they are inaccessible. If UC Berkeley’s online content were accessible, she would take courses and utilize the online content in her lectures.

Glenn Lockhart, also a member of NAD, is responsible for web, print and video communications at the Laurent Clerc National Deaf Education Center (the birth-age 12 component of Gallaudet), and he is deaf. He is interested in trends and information in the communications field for both personal and professional reasons, and would like to take online classes on this subject. He tried unsuccessfully to access communications courses at UC Berkeley about a year ago, and he would be interested in such courses now if they were accessible, particularly the Media Studies 104A course.

UC Berkeley did not choose to ignore DOJ guidance on accessibility for YouTube Videos

Audrey Watters has the best description of the history of UC Berkeley’s lecture capture / open content program.

UC Berkeley developed a technical infrastructure to record and broadcast content 20 years ago. The Berkeley Internet Broadcasting System (BIBS) was a lecture-capture and webcasting system developed by the Berkeley Multimedia Research Center, which itself was founded in 1995 and run by Larry Rowe.

It wasn’t until 2010, however, that the Department of Justice and the Department of Education began interpreting the Americans with Disabilities Act (ADA) in such a way that required higher ed institutions to guarantee equivalent access to academic materials. In a Dear Colleague Letter based on ebook readers, they first put colleges on notice.

Under title III, individuals with disabilities, including students with visual impairments, may not be discriminated against in the full and equal enjoyment of all of the goods and services of private colleges and universities; they must receive an equal opportunity to participate in and benefit from these goods and services; and they must not be provided different or separate goods or services unless doing so is necessary to ensure that access to the goods and services is equally as effective as that provided to others.

Subsequently, DOJ / ED joined lawsuits against Harvard and MIT in 2015 over lack of closed captioning in edX courses (which edX resolved later while disagreeing that they were subject to title III). Also in 2015, Miami University of Ohio was sued for accessibility reasons. In a post I wrote about the 2015 cases:

The DOJ insists not only that software include capabilities for accommodation of students with disabilities but also that schools actually include the content and related metadata that is required for compliance. It is no longer enough for schools to buy software that is “ADA compliant”. Faculty or instructional designers need to include captions, alt-texts and alternate pathways for students to have equal access. [snip]

The big lesson is that higher education institutions themselves had better get ready to understand their role as content providers that must conform to disability standards. Just letting individual faculty members figure out what to do is a recipe for future lawsuits. Faculty need support, guidance and (gasp) appropriate oversight to get this right.

Thus the majority of UC Berkeley’s lecture capture webcasting came before the 2010 letter and the 2015 lawsuits. In fact (going back to Audrey’s post), UC Berkeley had already decided in 2015 to stop adding new lecture capture content to public channels.

A couple of weeks ago, The Chronicle of Higher Education reported that the University of California Berkeley will no longer post video recordings of its lectures to YouTube and iTunesU. The decision was framed in terms of “budget challenges” with a note that, as a partner with edX, Berkeley instead intends to pursue “open education” via MOOCs. (They’re “more effective,” the article argues.) The university will continue to record its classes as it currently does, but starting in the fall, that content will only be available to students on campus.

Automatic captioning was not an option to solve problem

Some discussions in social media have suggested that UC Berkeley missed an easy solution to using automatic captioning to the videos. But in both the Harvard / MIT lawsuits and in the UC Berkeley ruling, DOJ called out that inaccurate captions were part of the problem. From the announcement of Harvard / MIT suits:

“Worse still,” said attorney Timothy Fox, “a sampling of the videos available illustrates the problem with inaccurate captioning, making them confusing and sometimes completely unintelligible.”

From the UC Berkley DOJ letter:

Automatically generated captions were inaccurate and incomplete, making the content inaccessible to individuals with hearing disabilities.

Fixing the issues with past video lectures would have required a real investment of time from people who can accurately transcribe the lectures, many of which had poor audio quality.

UC Berkeley is not “deleting” video content or removing from YouTube

There is no deletion going on with respect to YouTube lecture capture videos. The process is one of changing permissions and removing public access while allowing those with berkeley.edu domain to see the YouTube channel.

The argument is that by restricting the content just to the UC Berkeley community, they can resolve any remaining issues through accommodation efforts through their disability office. From the March 1 announcement from UC Berkeley:

Since fall 2015 we have piloted publishing all of our Course Capture content behind CAS/CalNet authentication. This strategy has enhanced our ability to accommodate students and UC Berkeley community members who have demonstrated an accessibility need, and we have concluded that authentication is an intervention that is appropriately responsive to the Berkeley community.

There is no agreement between DOJ and UC Berkeley that putting videos behind authentication will resolve issue

It is unfortunate that the result of the DOJ ruling letter is that no one will have public access to the lecture capture videos; however, I do not think the issue has been settled. The announcement that UC Berkeley would remove public access was unilateral by the school. There has been no DOJ / Berkeley agreement to settle the case based on this action.

Note that the resolution for edX (Harvard and MIT) was announced as an agreement with the DOJ, as was the resolution for Miami University. In UC Berkeley’s statement of March 1, the acknowledge that the lack of resolution [emphasis added]:

As part of the campus’s ongoing effort to improve the accessibility of online content, we have determined that instead of focusing on legacy content that is 3-10 years old, much of which sees very limited use, we will work to create new public content that includes accessible features. Our public legacy libraries on YouTube and iTunesU include over 20,000 publications. This move will also partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available. Finally, moving our content behind authentication allows us to better protect instructor intellectual property from “pirates” who have reused content for personal profit without consent.

Personally I think this action itself might remain a problem, as the original complaint was a lack of reasonable access. Will the DOJ accept the answer that everyone now has a lack of access? I’m not sure, and I suspect this be a negotiation.

In the DOJ letter, their remediation requirements seem to indicate compliance with and not avoidance of existing standards.

Develop and implement procedures to ensure that UC Berkeley content on the UC Berkeley YouTube channel conforms to the WCAG 2.0 AA technical standards to the extent necessary so that individuals with vision, hearing, and manual disabilities can acquire the same information, engage in the same interactions, and enjoy the same services as individuals without disabilities with substantially equivalent ease of use.

Will the argument that the YouTube channel is now restricted access and that there will be accommodations available for students and faculty who request help be sufficient for the DOJ to sign an agreement? That’s not at all clear.

Long and short, this is an important issue to watch, but it is also important to understand the context of what is going on and to understand that the saga is not over. It will be interesting to see what agreement the DOJ and UC Berkeley end up making and to see what impact that will have on other schools.