The Pyrrhic Victory For The Disabled (Update)

There are few places on earth more obsessed with social justice, whatever that means for the next ten minutes, than the University of California, Berkeley. But even Berkeley must occasionally confront reality, and as every grown-up knows, reality bites.  So Berkeley had to make its choice, and its choice was to shut down free online content.

The University of California, Berkeley has announced that it may eliminate free online content rather than comply with a U.S. Justice Department order that it make the content accessible to those with disabilities.

The content in question is all free and is for the general public to use. “The department’s findings do not implicate the accessibility of educational opportunities provided to our enrolled students,” said a statement on the situation by Cathy Koshland, vice chancellor for undergraduate education.

Aren’t people with disabilities entitled to the same access to free online education as everyone else? Well yes. Maybe. And not exactly.  This has been a thrust of the DoJ, trying to make the world more socially just for all.

EdX is one of those few, those proud, those brave, those actually useful endeavors coming from the wellspring of technology that can actually contribute to the benefit of mankind.

EdX is a massive open online course provider and online learning platform. It hosts online university-level courses in a wide range of disciplines to a worldwide audience.

Some classes are free. Some cost money. But you too can go to MIT if you so choose. Well, maybe not.

EdX has entered into a settlement with the Department of Justice over allegations that the online course provider was not fully accessible to people with disabilities, in violation of federal law.

The settlement comes during a separate, ongoing lawsuit between MIT and the National Association for the Deaf (NAD) over a lack of closed captioning in online course videos and educational materials.

MIT was willing to buy it’s way out of DoJ’s crosshairs with this settlement.  And having beaten the big Kahuna, edX, DoJ was ready to take on the rest of higher ed and then the world.

“In many cases the requirements proposed by the department would require the university to implement extremely expensive measures to continue to make these resources available to the public for free,” she wrote. “We believe that in a time of substantial budget deficits and shrinking state financial support, our first obligation is to use our limited resources to support our enrolled students. Therefore, we must strongly consider the unenviable option of whether to remove content from public access.”

For every tear cried because there is someone, somewhere, whose circumstances requires special needs, there is a cost. Someone has to pay the price for every fix. Sometimes the price is quantified in dollars. Sometimes the price is quantified by the reduction of one person’s rights to increase the reach of someone else.  TANSTAAFL.

The Department of Justice found that much of this online material is in violation of the Americans With Disabilities Act, which requires colleges to make their offerings accessible to people with disabilities.

That’s accurate, the ADA requires colleges to accommodate the disabled. In a vacuum, it seems benign, fair, that colleges should not have barriers to those who endure challenges.

Berkeley released the Justice Department letter finding the university in violation of ADA. The letter outlined numerous concerns not only about issues related to those who are deaf but also those who have visual disabilities:

  • Many videos do not have captions.
  • Many videos lack “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.)
  • Many documents “associated with online courses were inaccessible to individuals with vision disabilities who use screen readers because the document was not formatted properly.”
  • Some videos that had automatically generated captions were ‘inaccurate and incomplete.”

This is true, and the list goes on. There are tons of things that go on in these free online educational courses that make them inaccessible to the disabled.  And there are fixes, time-consuming and expensive, that could correct these deficits, most of the time. So what if colleges are offering these courses for free?  The ADA isn’t limited to things people pay for, and why should the disabled be denied access to free content that is available to others?

All good questions. Except the result isn’t going to be unfettered access for the disabled. There are limits to how much colleges are willing to pay to make the accommodations necessary, and so Berkeley decided that if the DoJ wants to put a gun to its head to make its free online courses cost prohibitive, then it’s going to take the alternative path. Poof. No free online courses for anyone. Deaf or hearing. Blind or sighted. Nobody gets shit. Problem solved!

Who could have seen this coming?

The blog of Reason, a libertarian magazine, wrote: “Special thanks to the DOJ — fulfilling its role here as the Handicapper General — for ensuring equal access to public education, where ‘equal access’ is defined as ‘no access for anybody.’

And lest you think that’s where the matter dies, the ADA goes far beyond the content put out by colleges.

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, State and local government services, public accommodations, commercial facilities, and transportation.

The scope of what constitutes public accommodations and commercial facilities is left to the bureaucrats to decide. as is the scope of what constitutes a disability. The implications are endless. MIT settled with DoJ, encouraging the government to pursue its goal of recreating the socially just world at other people’s expense. Berkeley says “bite me.” A sudden warm affection for Berkeley has arisen.

Should the letter from DoJ arrive at SJ World Headquarters, I will not be nearly as polite. It’s not that I hate the disabled. Not at all. But there’s only so much I’m willing to do to provide free content for anyone who cares to read it. And that’s over the line.

Update: Walter Olson at Overlawyered is on this as well.

H/T Stephanie West Allen

33 comments on “The Pyrrhic Victory For The Disabled (Update)

  1. Nigel Declan

    I guess whether Harrison Bergeron is a nightmarish dystopia or a glorious utopia depends whether you are a member of the DoJ’s ADA beat or not.

      1. Marc Whipple

        I respectfully assert that many of them mean well, but many of them also just enjoy hurting people and ruining things. They are the sort who’d join the police force so they could beat people with impunity, but can’t stand the sight of blood.

  2. fiver

    Why is Berkely announcing that they may have to “consider” shutting down the program? Announcing that they’ve already decided to shut it down would make sense, but they haven’t. They just may have to “strongly consider” the question of whether they should possibly shut it down. Because apparently they haven’t considered it yet. They then go on to state that they are hopeful that further discussions with DOJ would avoid this path.

    Of course, if they made their announcement after they’ve seriously considered the question they might not get away with expressions like “extremely expensive,” “rather costly,” or “time consuming and expensive.” They might have to back up their assertions with some real numbers. Those numbers may show that the requested accommodations are unreasonable and therefore not enforceable. Of course, real numbers might instead show that Berkley’s complaints lack any serious substance. This seems a lot like an attempt to try the case in the court of public opinion to gain negotiating leverage and avoid losing in a real court on the merits.

    DOJ noted that Berkley already has resources available for those who wish to make their courses ADA compliant (many of its course already are), but Berkley was faulted for not making ADA compliance mandatory. How does changing voluntary to mandatory result in such ruinous cost? The resources are already available, and if all course providers under the current program voluntarily decided to make their materials ADA compliant the cost would be identical to a mandatory program.

    Moreover, why on earth would Berkley threaten to consider shutting down all programs including those that are already ADA compliant? What possible good does that do anyone including Berkley? This has all the hallmarks of a child threatening to quit and take his ball home because his conservative/libertarian feelz have been hurt.

    Ever since that famed SJW George H. W. Bush signed the ADA (later expanded under his SJW son George W. Bush), conservatives and libertarians have complained of the ADA’s ruinous consequences. Over twenty five years later, this the best they can come up with?

    1. SHG Post author

      You start with a good question, then devolve into self-serving speculation. Let’s try this with some facts. This was not the bureaucratic use to which ADA was put under those noted SJWs, Bush and Shrub. This is happening now, and they aren’t president anymore.

      The cost doesn’t have to be “ruinous,” and exaggerated speculation hardly strengthens your argument. Nor does the fact that they decided to allocate resources to their other needs mean that because they may have chosen to make accommodations elsewhere mean that making accommodations is insignificant.

      As for their “conservative/libertarian feelz” (Berkeley? Are you nuts?), compelling private parties to expend resources upon government demand to accommodate other people’s desired Utopian ideals is a bit more pragmatic. If you feel strongly, why not donate the money to Berkeley to pay for whatever needs to be done? If you won’t spend your money to do it, why should they? If they decide that their scarce resources would be better spent elsewhere, what do you say for whoever will do without because of it, or the extra tuition that students will pay to meet your ideals?

      The problem with progressive feels is that it always comes at someone else’s expense.

      1. fiver

        The University of California is not a private party. It is a state institution financed with both state and federal funds in addition to it’s heavily subsidized tuition. In other words, I do donate to Berkeley, albeit involuntarily. So do the disabled.

        Cal is also an institution with it’s own General Counsel’s office with near a hundred attorneys and is well capable of defending itself even against DOJ. If Cal has a case, let’s hear it. Let’s see the numbers. If these accommodations are unreasonable, Cal wins. If, however, it’s just someone’s freedom feelz, then I fail to see the problem in requiring a state institution to reasonably allocate funds to abide by the law. It’s resources are hardly “scarce.”

        1. SHG Post author

          You’re right, it’s a public institution. It may have a budget, which it will have to allocate between its various needs, but if putting out free online course and making them ADA compliant means one fewer course, then isn’t it worth it?

          Of course, someone will still have to pay for accommodations, which may well be reasonable as far as accommodations go, but still need to paid for by someone. But hey, as long as it’s for the good of society. And I note that your only contribution is involuntary. Even you wouldn’t dig into your pockets for this important cause.

          1. fiver

            One might also ask why we should be forced to contribute to indigent criminal defense through our taxes.

            The answer is the same: Because the law requires it.

            1. SHG Post author

              No. The Constitution requires funding indigent defense based upon the Supreme Court’s interpretation in Gideon. This is a bureaucratic “guidance” interpretation of the ADA. Nowhere does the Constitution, or even the law, say this is required.

  3. Mike

    ADA compliance has been very good to me. That’s my job…going around to places that have been sued by lawyers in wheelchairs, and making them compliant.

    And yes a lot of it is stupid: This coming from someone who has spent a little time in a wheelchair.

    I could go on, but I don’t want to bore our esteemed host or his loyal readers.

  4. fiver

    This is not merely a “bureaucratic ‘guidance’ interpretation.” At least one District Court (for the Northern District of California – just across the Bay from Berkeley) has held (in denying a 12(b)6 motion), that websites are areas of public accommodation. See National Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946 (2006). Target paid, handsomely, and fixed its website.

    Other courts have disagreed and limited public accommodation to physical spaces. This is not settled law, but unsettled law does not equate to a “bureaucratic ‘guidance’ interpretation.”

    1. SHG Post author

      Sigh. From the decision:

      In regulations implementing this section, the Department of Justice has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech. 28 C.F.R. § 36.303(c); see also Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed.Reg. 35544, at * 33, (July 26, 1991).

      Chevron deference, which has since been extended (Auer deference) to this situation. Come on. You know better than this.

      1. fiver

        Perhaps I misunderstood your point. I understood it in the context of your quite legitimate complaints regarding the “guidance” offered by Catherine Lhamon’s Dear Colleague letter which, to my knowledge, has little or no support in the regulations.

        I see a significant difference between duly promulgate regulations and some political appointee typing a letter.

        1. SHG Post author

          You started with the comparison to Gideon, which is constitutional, saying it’s the same. My response was that it was hardly the same. Now, you’re arguing over regs and guidance. Do you see how far down the rabbit hole you’ve gone from the Constitution, or will this take 10 more comments before you finally realize that you’ve gone off the deep end?

          1. fiver

            A court’s interpretation of the Constitution is valid law, but a court interpreting the A.D.A and C.F.R. is not? Come on. You know better than this. The Constitution empowered Congress to make laws, and the Administrative Procedure Act empowered agencies to make regulations. Courts interpret all of the above. There is nothing new here.

            There is also no legal rabbit hole here. What’s at issue is whether the A.D.A.’s public accommodation requirements apply to Cal’s website. There is a split of authority nationally, but that’s hardly unusual.

            Even Cal isn’t trying to defend itself on the law; it argues from a purely political perspective – as does your post. Moreover, your arguments are equally applicable against the whole of the A.D.A. and not merely this particular application to Cal’s website. They can just as easily be marshaled against requiring wheelchair access as they can be against requiring website access.

            They can also be quite easily marshaled against Gideon. The criminal justice system is:

            … a public institution. It may have a budget, which it will have to allocate between its various needs, but if putting out free online course [indigent defense] and making them ADA [it constitutionally] compliant means one fewer course [prosecution] then isn’t it worth it?

            Of course, someone will still have to pay for accommodations [indigent defense], which may well be reasonable as far as accommodations [indigent defense] go[es], but [it] still need[s] to paid for by someone. But hey, as long as it’s for the good of society.

            The answer for both opponents of the A.D.A. and opponents of Gideon is the same: If you don’t like it, change the law. Till then, it’s still the law.

            And I didn’t start out with the comparison to Gideon, I started out by pointing out the hypocrisy and weaknesses in Berkeley’s letter to the internet. Gideon was mentioned solely to point out how easily a rationale can change depending on whose ox is gored.

            (No need for ten more comments. I’ve made my points. Thanks for letting me play in your sandbox)

            1. SHG Post author

              A court’s interpretation of the Constitution is valid law, but a court interpreting the A.D.A and C.F.R. is not? Come on. You know better than this.

              Yes, the CFRs are exactly the same as the Constitution. Well, that settles it.

  5. losingtrader

    The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, State and local government services, public accommodations, commercial facilities, and transportation.

    So my ” public accommodation ED claim” against Nevada brothels may have merit?
    Ok, Ok, i know, your answer, “No, you’ll never get laid, period.”

      1. Richard G. Kopf

        losingtrader and SHG,

        I just got a hernia in a bad spot by laughing so hard at the foregoing exchange.

        By the way, I can’t figure out who’a the straight man in your comedy routine. Oh, shit, I didn’t mean to out either one of you. (Insert rainbow flag here)

        All the best.

        RGK

          1. losingtrader

            I never considered there aren’t any gay brothels in Nevada. They did have one licensed male prostitute for women, but he only “lasted” three months……before he left.
            Heidi Fleiss was going to start a male brothel in Pahrump, but she ended up running a coin-operated laundry, which is sort of a low -end version of the same thing.

  6. M. Kase

    Now, this might just be the first-year-student-recently-arrived-in-venture-capitalism-land talking, but I’m throwing a bone to the cretins over at Berkeley, so it might be reasonable. Online classes that are inaccessible should be an engineering problem with a general solution. Wait until the end of this comment to shower me with investment money, but speech to text programs are no new technology and a system to analyze and describe graphs wouldn’t be an impossible bit of programming either. It should be a simple enough matter to design a basic program that’ll run on top of anyone’s online class, listen via microphone and watch the screen, then output the accessible version of the content. Should be easy enough to charge the DoJ for it if they care so much. Worst case, I’m sure that no one in Congress could vote against the “Funding for Online learning for the Disabled Act,” so we’re safe there too.

    I mean, it’s still probably a general drain on the economy, but part of that drained money has to go somewhere, right?

      1. Mike

        And that’s why they have tactile signage. For the uninitiated, that’s a sign with a picture as well as Braille dots at the bottom.

        1. SHG Post author

          I hear the mentally challenged and alcoholics like those dots. You realize they, too, are protected by the ADA, right?

          One of my old friends is blind. He’s deeply involved in blind issues. Couldn’t give a shit about deaf people, but was downright militant about the needs of blind people. Tell him that blind people were going to lose a benefit because there was no way to also accommodate deaf people, and he’s start screaming like a banshee about those “fucking deaf nutjobs” always ruining everything for the blind people. Try figuring out a way to remake the internet to meet the needs of every disability covered in the ADA.

          1. Jyjon

            So, they’re not gonna redo the internet for the cisgendered misogynists? that’s ludicrous ALL disabilities should be accommodated. The internets need to be changed to accommodate every disabled person. And if you say being a cisgendered misogynist isn’t a disability, then why is it considered a mental illness by them?

      2. M. Kase

        That’s just opportunity knocking! A different Federally funded contract to make online classes palatable for every accessibility objection. Automated trigger warnings, memory holing improper information, rewriting pronouns to be inclusive, the sky is the limit! Even better, the way things are looking, I’m confident that it’ll be something new every year, guaranteeing future business.

  7. ShelbyC

    Given the number of times I’ve seen folks on some academic blogs refer to professors who create free online courses as “scabs”, I’d wonder whether this is really about the disabled.

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