MESSAGE
| DATE | 2017-03-13 |
| FROM | Ruben Safir
|
| SUBJECT | Re: [Hangout-NYLXS] One step forward,
|
In my adult lifetime the three most egregious laws ever passed have been
the DMCA, the ADA and the Obamacare act.
U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
1For hand delivery:
Disability Rights Section
1425 New York Avenue, NW
Washington, DC 20005
August 30, 2016
VIA U.S. AND ELECTRONIC MAIL
Chancellor Nicholas B. Dirks
University of California, Berkeley
Office of the Chancellor
200 California Hall, #1500
Berkeley, CA 94720-1500
Mr. Christopher M. Patti
Chief Campus Counsel &
Associate General Counsel
Mr. David Robinson
Associate Campus Counsel
Office of Legal Affairs
200 California Hall, #1500
Berkeley, CA 94720-1500
Re: The United States’ Findings and Conclusions Based on its
Investigation Under Title II of the Americans with Disabilities Act of
the University of California at Berkeley, DJ No. 204-11-309
Dear Chancellor Dirks, Mr. Patti, and Mr. Robinson:
The United States Department of Justice (the Department) investigated
the University of California at Berkeley (UC Berkeley) under title II of
the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C.
§§ 12131-12134, and the regulation implementing the ADA, 28 C.F.R. Part
35. UC Berkeley is a public entity subject to the ADA and its
regulation. 42 U.S.C. § 12131(1)(B); 28 C.F.R. § 35.104. The ADA
prohibits discrimination against qualified individuals with disabilities
by public entities. The Department is authorized to investigate
compliance with the ADA and issue findings. 42 U.S.C. § 12133;
28 C.F.R. § 35.172. The Department investigated the accessibility of UC
Berkeley’s free audio and video content available to the public on UC
Berkeley’s YouTube channel and iTunes U platform as well as its Massive
Open Online Courses (MOOCs) offered on the edX learning management
platform (UC BerkeleyX); collectively, we refer to audio and video
content and MOOCs as “online content.”
The ADA’s nondiscrimination mandate states that no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of services, programs, or
activities of a public entity, or be subjected to discrimination by a
public entity. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). The
Department is authorized to file a civil action in federal court if the
Attorney General finds a violation of the ADA. 42 U.S.C. § 12133; 28
C.F.R. Part 35, Subpart F.
The Department opened its investigation of UC Berkeley based on a
complaint alleging that UC Berkeley’s free, publically available online
content is inaccessible to individuals who are deaf or hard of hearing.
As part of its investigation, the Department spoke with representatives
for the National Association of the Deaf (NAD), the complainant in this
matter, as well as Stacy Nowak and Glenn Lockhart, individuals who are
deaf and would like to use UC Berkeley’s online content if it were
accessible, but who cannot fully use it because it is largely
inaccessible. The Department also reviewed UC Berkeley’s policies and
practices relating to the provision of accessible online content to
individuals with hearing, vision and manual disabilities and interviewed
UC Berkeley administrators and staff with accessibility expertise. The
Department conducted an extensive review of UC Berkeley’s online
content, including 26 MOOCs, 30 lectures on YouTube, and 27 courses on
iTunesU. Based on this review, the Department has determined that
significant portions of UC Berkeley’s online content on UC BerkeleyX,
its YouTube channel and its iTunes U platform are not accessible to
individuals with hearing, vision or manual disabilities. The problems
identified by the Department – for instance, videos without captions
that are totally inaccessible to people who are deaf or hard of hearing
– mean that individuals with disabilities are denied the full and equal
enjoyment of UC Berkeley’s services.
The Department appreciates the cooperation it has received from UC
Berkeley during the investigation, as well as UC Berkeley’s ongoing
efforts to improve the accessibility of its online content. Set forth
below are the Department’s findings of fact regarding the accessibility
of UC Berkeley’s online content, the Department’s conclusions of law,
and the steps UC Berkeley must take to comply with the ADA.
I. Findings of Fact
a. Aggrieved Individuals
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.
b. UC Berkeley’s Online Content
UC Berkeley is one of nine universities within the University of
California system and is based in Berkeley, California. UC Berkeley
makes thousands of courses, lectures, and other campus events available
in video and audio formats through its MOOCs and on its YouTube channel
and its iTunesU platform.
i. UC BerkeleyX
Since May 2012, UC Berkeley, in partnership with edX, an online learning
platform, has made MOOCs available online through UC BerkeleyX. MOOCs
are courses of study available online to the public, for free. UC
Berkeley shares with edX “the educational missions of increased access,
excellence in instruction, and the support of research to make online
learning more effective and understand its role in the overall
educational mission.”1 UC Berkeley offers a wide range of MOOCs on UC
BerkeleyX, such as writing (Principles of Written English, Academic and
Business Writing, English Grammar and Essay Writing, and Journalism and
Social Change) and math and science (Introduction to Statistics,
Artificial Intelligence, Electronic Interfaces, Engineering Software as
a Service, and Quantum Mechanics and Quantum Computation). UC BerkeleyX
courses are offered on a semester basis or on a self-paced basis
(available at any time).
UC Berkeley’s faculty creates and publishes courses for the public on UC
BerkeleyX. Faculty developing UC BerkeleyX courses can, but are not
required to, develop courses in collaboration with the Berkeley Resource
Center for Online Education (BRCOE). BRCOE follows best practices in
design for accessibility and also has a quality assurance process that
includes deploying various accessibility evaluators; remediating layout,
page structure, downloadable or styling accessibility barriers; and
obtaining transcripts of all audio and video files associated with a
course.
Prior to July 1, 2015, UC Berkeley also allowed faculty and instructors
to design, develop and publish courses through a self-service model,
which did not include support from BRCOE. Beginning July 1, 2015, UC
Berkeley advised the Department that all faculty using the self-service
model will be asked to sign off on a list of accessibility resource
reviews prior to publishing the course. The sign-off statements include:
1. I have reviewed and implemented edX’s “Guidelines for Creating
Accessible Content.”2
2. All PDFs attached to my course follow the University of California
Office of the President recommendations.3
3. I have reviewed and implemented applicable guidelines into my course
from the Web Accessibility team’s resource “Top 10 Tips for Making your
Website Accessible.”4
4. All mp3 and mp4 files in my course have been submitted for
transcripts for SubRip Text (SRT) files.
5. All video and audio in my course have accurate captioning available
to users through the edX HTML5 player.
Between March and April 2015, the Department reviewed the sixteen MOOCs
then available to the public on UC BerkeleyX. None of the courses
reviewed were entirely accessible. For each course reviewed, it would
be difficult for an individual with a hearing, vision, or manual
disability to understand the content conveyed to course participants.
Examples of barriers to access found across most course content included
the following:
1. Some videos did not have captions. As a result, the audio content in
the video was inaccessible to people with hearing disabilities.
2. Some videos were inaccessible to people with vision disabilities for
several reasons. First, many videos did not provide an alternative way
to access images or visual information (e.g., graphs, charts,
animations, or urls on slides), such as audio description, alternative
text, PDF files, or Word documents. Second, videos containing text
sometimes had poor color contrast, which made the text unreadable for
those with low vision. Finally, information was sometimes conveyed
using color alone (for instance, a chart or graph would differentiate
information only by color), which is not accessible to individuals with
vision disabilities.
3. Many documents were inaccessible to individuals with vision
disabilities who use screen readers because the document was not
formatted properly. For instance, headings were sometimes neither
defined nor arranged in a logical order; page structure was not always
defined, contained empty elements or was incorrectly defined; some
tables did not have row and column headers defined; math equations were
not always defined in a comprehendible way. Many PDFs either did not
have a tag structure defined or the tag structure was incorrect.
Individuals with vision disabilities who use screen readers would have a
difficult time understanding and navigating the content.
4. Some links were not keyboard accessible and did not indicate whether
they were expandable or collapsible, so individuals with vision
disabilities who use screen readers may not understand the purpose of
the links and individuals with manual disabilities would not be able to
use the links.
5. Websites and materials that were integrated into the course material
were not fully accessible.
In January of 2016, the Department reviewed ten new and archived courses
available on UC BerkeleyX. The Department observed some improvement in
new and archived courses, including the addition of closed captions on
some content, but in general, the new courses had most of the previously
reported accessibility issues and the archived courses were still
inaccessible. Specifically, the Department found that both new and
archived courses are inaccessible because many have incorrect
alternative text, videos without captions, undefined headings, a lack of
color contrast, inaccessible PDFs, and inaccessible keyboard links.
ii. UC Berkeley YouTube and iTunes U
UC Berkeley offers thousands of free audio and video files, including
lectures, events, and other video content on YouTube and on iTunes U.
UC Berkeley faculty are invited to participate in UC Berkeley’s lecture
capture program, which involves recording and publishing select UC
Berkeley courses on YouTube or iTunes U. In December 2015, UC Berkeley
reported that its YouTube channel had about 9,600 hours of course video
and 4,200 hours of events and other video content on its YouTube
channel. Its iTunes U platform had 10,400 hours of course video, 800
hours of events video, 18,000 hours of course audio, and 225 hours of
events audio. About 75 percent of the same video content on YouTube is
also available on iTunes U. In May 2015, UC Berkeley informed the
Department that for “budget reasons,” beginning in the Fall 2015, UC
Berkeley would limit access to new online content on YouTube and iTunes
U to enrolled UC Berkeley students taking specific courses.
UC Berkeley’s Educational Technology Services (ETS) unit is available to
staff and faculty to provide closed captioning for UC Berkeley’s online
content made available to the public on YouTube and iTunes U. Upon
request, ETS works with the Disabled Students Program, UC Berkeley
faculty, staff or students sponsoring the video to provide transcription
and upload transcripts of audio content. ETS does not field requests
from the public about the accessibility of online content.
The Department found that of the 543 videos it could identify on the
YouTube channel, 75 had manually generated closed captions. Of the
remainder, many had automatic captioning generated by YouTube’s speech
recognition technology. In March 2015, the Department selected 30
videos – 15 with manually generated closed captions, 15 without – for
review. The lectures were selected across a sample of subjects and
based on popularity. Examples of barriers to access on UC Berkeley
YouTube channel content included the following:
1. Automatically generated captions were inaccurate and incomplete,
making the content inaccessible to individuals with hearing disabilities.
2. Approximately half the videos did not provide audio description or
any other alternative format for the visual information (graphs, charts,
animations, or items on the chalkboard) contained in the videos. For
example, in one video lecture, a professor pointed to and talked about
an image and its structure without describing the image, making it
inaccessible to individuals with vision disabilities.
3. Some visual content presented in the slide presentations had low
color contrast. For example, two video lectures referenced computer
code on the screen that had insufficient color contrast, making it
difficult for an individual with low vision to discern. Another video
lecture used different colored lines on a graph, but the colors could
not be differentiated by an individual with low vision.
The Department also reviewed 99 lectures from 27 of the UC Berkeley
courses available on iTunes University. The Department selected a
sample of courses across disciplines and based on course popularity.
Examples of barriers to access found on UC Berkeley iTunesU online
content included the following:
1. None of the videos reviewed had closed captions.
2. None of the videos reviewed had audio description or any other
alternative format for the visual information contained in the videos.
c. UC Berkeley’s Policy Addressing Web Accessibility
Since September 2013, UC Berkeley has been subject to the University of
California Office of the President’s Information Technology
Accessibility Policy (Accessibility Policy), requiring that the
“University seek[] to deploy information technology that has been
designed, developed, or procured to be accessible to people with
disabilities, including those who use assistive technologies.”5 The
policy further states:
The University of California is committed to supporting an information
technology (IT) environment that is accessible to all, and in particular
to individuals with disabilities. To this end, the University seeks to
deploy information technology that has been designed, developed, or
procured to be accessible to people with disabilities, including those
who use assistive technologies. An accessible IT environment generally
enhances usability for everyone. By supporting IT accessibility, the
University helps ensure that as broad a population as possible is able
to access, benefit from, and contribute to its electronic programs and
services.6
The Accessibility Policy sets forth technical standards and adopts the
Web Content Accessibility Guidelines (WCAG) 2.0 at level AA success
criteria.7 The policy places specific requirements on UC Berkeley to:
Adhere to the UC IT Accessibility Requirements, including the
establishment of an IT Accessibility Program.
Develop, purchase and/or acquire, to the extent feasible, hardware and
software products that are accessible to people with disabilities.
Promote awareness of this policy to all members of the University
community, particularly those in roles that are responsible for
creating, selecting, or maintaining electronic content and applications.
UC Berkeley’s Web Accessibility Services team helps ensure that UC
Berkeley websites and products are accessible to individuals with
disabilities, including those who use assistive technologies such as
screen readers. The Web Accessibility Services team is available to
meet and consult with UC Berkeley community members to review and test
websites for accessibility and to provide recommendations for
improvement.8
The Accessibility Policy also notes that new development and purchases
must receive higher priority over the retrofit of existing information
resources. The Accessibility Policy provides for some exceptions,
noting that conformance to technical standards “may not always be
feasible due to the nature of the content, the purpose of the resource,
the lack of accessible solutions, or an unreasonably high administrative
or financial cost necessary to make the resource accessible.”
Nonetheless, the Accessibility Policy notes that difficulties conforming
to technical standards “do not relieve the University programs or
services from their IT accessibility obligations.” 9
II. Conclusions of Law
Discrimination on the basis of disability by public entities, including
universities, is prohibited by title II of the ADA. Title II mandates
that no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity. 42 U.S.C. § 12132; 28
C.F.R. § 35.130(a). The title II regulation, set out at 28 C.F.R. pt.
35, reflects and implements the statute’s nondiscrimination mandate. 42
U.S.C. § 12134 (directing the attorney general to promulgate regulations).
Under title II, public universities must afford individuals with
disabilities an equal opportunity to participate in or benefit from any
aid, benefit, or service provided to others. See 28 C.F.R. §
35.130(b)(1). UC Berkeley is required to take appropriate steps to
ensure that communications with individuals with disabilities are as
effective as communications with others. 28 C.F.R. § 35.160(a)(1). UC
Berkeley is also required to furnish appropriate auxiliary aids and
services where necessary to afford qualified individuals with
disabilities an equal opportunity to participate in, and enjoy the
benefits of its services programs, or activities.
28 C.F.R. § 35.160(b)(1). UC Berkeley is not, however, required to take
any action that it can demonstrate would result in a fundamental
alteration in the nature of its service, program or activity or in undue
financial and administrative burdens. 28 C.F.R. § 35.164. Finally, UC
Berkeley may not utilize methods of administration that have the effect
of defeating or substantially impairing accomplishment of UC Berkeley’s
objectives with respect to individuals with disabilities.
28 C.F.R. § 35.130(b)(3)(ii).
Based on our findings of accessibility barriers, we conclude that UC
Berkeley is in violation of title II because significant portions of its
online content are not provided in an accessible manner when necessary
to ensure effective communication with individuals with hearing, vision
or manual disabilities. In addition, UC Berkeley’s administrative
methods have not ensured that individuals with disabilities have an
equal opportunity to use UC Berkeley’s online content. While the
University of California’s Information Technology Accessibility Policy
adopts the WCAG 2.0 AA technical standard, which provides clear
parameters for ensuring online content is accessible to individuals with
disabilities, UC Berkeley has not ensured compliance with its policy.
For instance, we appreciate that the Berkeley Resource Center for Online
Education is available to assist faculty in developing accessible
courses, but UC Berkeley does not require faculty to work with the
center. Similarly, Berkeley’s Educational Technology Services is
available to provide captions for YouTube and iTunes U content, but
there is no routine practice of doing so. Moreover, while UC Berkeley
has taken steps to ask faculty “to sign off on” the accessibility of UC
BerkeleyX courses published through the self-service model, our review
of UC Berkeley’s online content demonstrated that this request has not
resulted in the development of accessible courses. Thus, UC Berkeley
has not met the goal of its own policy requiring it “to seek[] to deploy
information technology that has been designed, developed, or procured to
be accessible to people with disabilities.”10,11 Finally, UC Berkeley
has not established that making its online content accessible would
result in a fundamental alteration or undue administrative and financial
burdens. As indicated below, the Department would prefer to resolve
this matter cooperatively.
III. Remedial Measures
To remedy the violations discussed above, UC Berkeley must at least take
the following steps:
1. Develop a system to monitor compliance with the technical standards
adopted in the University of California’s Information Technology
Accessibility Policy, WCAG 2.0 AA.
2. Develop and implement procedures to ensure that courses on UC
BerkeleyX conform 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.
3. 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.
4. Develop and implement procedures to ensure that UC Berkeley content
on the UC Berkeley iTunes U platform 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.
5. Develop mechanisms and implement procedures for UC Berkeley to
solicit, receive and respond to feedback regarding any barriers to
access to the online content on UC BerkeleyX, UC Berkeley’s YouTube
channels or iTunesU platform, as well as feedback on how to improve the
accessibility of that content.
6. Pay compensatory damages to aggrieved individuals for injuries caused
by UC Berkeley’s failure to comply with title II.
IV. Conclusion
We hope to work together with you to resolve our concerns regarding the
accessibility of UC Berkeley’s online content. The Department prefers
to resolve this matter cooperatively through a court-enforceable consent
decree that brings UC Berkeley into compliance with the ADA. 28 C.F.R §
35.173. In the event that we are unable to reach such a resolution, the
Attorney General may initiate a lawsuit pursuant to the ADA. 42 U.S.C.
§ 12133; 28 C.F.R § 35.174. Please contact Charlotte Lanvers at (202)
305-0706 or charlotte.lanvers-at-usdoj.gov or Elisabeth Oppenheimer at
(202) 616-3653 or elisabeth.oppenheimer-at-usdoj.gov within two weeks of
the date of this letter if you are willing to resolve this matter
voluntarily or if you have any questions regarding this letter.12
Sincerely,
Rebecca B. Bond
Chief
Disability Rights Section
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www2.mrbrklyn.com/resources - Unpublished Archive
http://www.coinhangout.com - coins!
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
_______________________________________________
hangout mailing list
hangout-at-nylxs.com
http://www.nylxs.com/
|
|
