Miami, Harvard and MIT: Disability discrimination lawsuits focused on schools as content providers

In the discussions at Google+ based on last week’s post about the Miami University of Ohio disability discrimination lawsuit[1], George Station made two important points that deserve more visibility.

It’s been a-coming for several years now. Cal State has some pretty strong rules in place for compliance with ADA and state-level disability laws. Still, [Universal Design for Learning] UDL is a little-known acronym on any campus you care to visit, and staff support is probably one person in an office, except for Miami of Ohio as of this week, I guess…

Add the recent edX settlement with the US Department of Justice, and the whole direction of edtech changes…

Put another way, it should come as no surprise that the US Department of Justice is ramping up its enforcement of disability discrimination regulations in the education world. Captioning service provider CaptionSync has an excellent summary of the field, written before the DOJ intervention at Miami.

Accessibility laws applicable to higher education have been in place in the United States for decades, but many schools are still not fully compliant with the laws. Part of the lag in compliance can be attributed to lenient enforcement in the early years of these laws; the Rehabilitation Act was enacted in 1973 and the Americans with Disabilities Act was enacted in 1990, but initially there were very few government investigations or enforcement actions. Over time both government agencies (such as the Office for Civil Rights) and advocacy groups (such as the National Federation for the Blind and the National Association for the Deaf) have increasingly been making efforts to enforce the provisions of these laws. Recent civil suits filed by the National Association for the Deaf (NAD) and other advocacy organizations against both Harvard and MIT suggest that now is a good time to take a hard look at your accessibility compliance efforts if you work with video in a college or university setting.

The Department of Justice (DOJ) sent a letter to all college and university presidents on the topic of accessibility for emerging technologies in 2010; it contained a useful summary of various accessibility regulations and how they apply to the education community.

In February, the National Association of the Deaf (NAD) filed suit against Harvard and MIT based on their MOOCs using edX. It is worth noting that the lawsuit is against the schools, not the MOOC provider. In the announcement:

Many videos simply aren’t captioned at all.  For example, a Harvard program on the 50th anniversary of Brown v. Board of Education, a 2013 Harvard Q&A with Bill Gates and a 2013 MIT discussion with MIT professor Noam Chomsky about the leaks attributable to Chelsea (formerly Bradley) Manning all lack closed captions.

“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.”

The issue is not that there is no capability for captioning, but that those producing the content (Harvard and MIT) do not provide captions or do some with many errors. Subsequently, the DOJ and edX settled out of court based on the following:

5. Following the compliance review, the United States determined that www.edx.org and the Platform were not fully accessible to some individuals with disabilities in violation of Title III of the ADA.

6. EdX disputes the findings set forth above and denies that www.edx.org, its mobile applications, and the Platform are covered by or are in violation of Title III of the ADA.

In the settlement, both parties go out of their way to clarify that edX is a software provider and that the schools are content providers. The DOJ settlement calls on edX within 18 months to conform with the Web Content Accessibility Guidelines (“WCAG”) 2.0 AA, published by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”). More importantly, however, the agreement stipulates that edX within 90 days provide guidance to content providers (schools).

27. Develop a guide for Content Providers entitled Accessibility Best Practices Guidance for Content Providers (“Accessibility Best Practices Guidance”) and distribute a copy to each Content Provider with instructions for redistribution among individuals involved in producing Course Content. The Accessibility Best Practices Guidance shall describe steps and resources on how Course Content may be made to conform with WCAG 2.0 AA for Participants with disabilities using the CMS and inform Content Providers that the following resources may assist them in producing accessible Course Content: UAAG 1.0, ATAG 2.0, WAI-ARIA, WCAG2ICT, EPUB3, DAISY, and MathML.

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.

The origin of the Miami U lawsuit and the DOJ intervention is based on blind students, but the issues are the same. Repeatedly the DOJ referred to edtech “as implemented by Miami University”. As noted by reader Brian Richwine, the original lawsuit does reference Sakai (the LMS at the time of lawsuit), but the focus is still on how the content was provided.

Going back to the CaptionSync blog post:

Some schools have pointed out that in the summer of 2015 the DOJ is expected to release new guidance on how accessibility for websites is to be handled and they are awaiting that guidance before they step up their accessibility efforts.

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.

Beyond the regulations and frameworks listed in the DOJ documents, schools should also increase their understanding and use of the UDL framework and guidelines that George referenced in his comments.

The goal of education in the 21st century is not simply the mastery of content knowledge or use of new technologies. It is the mastery of the learning process. Education should help turn novice learners into expert learners—individuals who want to learn, who know how to learn strategically, and who, in their own highly individual and flexible ways, are well prepared for a lifetime of learning. Universal Design for Learning (UDL) helps educators meet this goal by providing a framework for understanding how to create curricula that meets the needs of all learners from the start.

The UDL Guidelines, an articulation of the UDL framework, can assist anyone who plans lessons/units of study or develops curricula (goals, methods, materials, and assessments) to reduce barriers, as well as optimize levels of challenge and support, to meet the needs of all learners from the start. They can also help educators identify the barriers found in existing curricula.

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  1. Insert joke here about G+ and its hundreds of active users. []

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About Phil Hill

Phil is a consultant and industry analyst covering the educational technology market primarily for higher education. He has written for e-Literate since Aug 2011. For a more complete biography, view his profile page.
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