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Harvard Consent Decree Review: Details of the Settlement

By: Aylin Dunham
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A Closer Look at the Harvard Consent Decree

On December 19 we published a blog post about the recently settled legal battle between Harvard and the National Association of the Deaf (NAD). Harvard and NAD were able reach an agreement that will require Harvard to provide closed captioning and transcription for all of Harvard’s public online content, including MOOCs, with certain legacy content provisions. A proposed Consent Decree was released that details the accessibility requirements under this agreement, subject to final approval by a judge.

While this consent decree applies specifically to Harvard content, it does set a precedent for future legal cases, with important implications for the accessibility practices of all educational institutions. If your institution currently has an open case with the Office of Civil Rights (OCR), you will undoubtedly want to learn more about this important case. Similarly, if you are thinking about how to improve your accessibility practices, this consent decree could be a useful point of reference for reaching your goals.

Overview and Definitions

The consent decree provides an overview of important definitions that apply to video accessibility practices at Harvard. Most importantly, it defines what “captioning” means, and qualifies compliant captioning.

Under this consent decree Harvard is required to provide captioning and transcription for both video and audio content, to follow WCAG 2.1 Level AA guidelines, and to ensure that the quality and accuracy of the captions is consistent with industry standards.

“…in the case of video files, to overlay or externally embed synchronized visual text for speech and, consistent with WCAG 2.1 AA, provide nondialogue audio information needed to understand the program content, including sound effects, music, laughter, speaker identification, and location on a digital media file at an accuracy rate equal to that offered by a vendor captioning service…and in a manner consistent with industry standards regarding synchronicity, completeness, and proper placement…” (see page 2 of CD) 

This definition reveals a number of important implications. First and foremost, providing captioning and transcription for your video and audio content is crucial to ensuring that content is accessible. Not only should institutions caption their content, they must also ensure that the captions are created in a manner that is consistent with industry standards. This means that quick-fix solutions like automatic speech recognition (ASR) and ASR with crowd-sourced editing are unlikely to meet this standard. Furthermore, while not explicitly mentioned in the paragraph above, WCAG 2.1 Level AA also includes an Audio Description requirement. Institutions looking to comply with WCAG 2 standards should also use a professional-quality audio description solution.

Another important facet of the definitions in this consent decree is that it also provides guidance for “audio-only files.” Some may think that providing captioning for videos is sufficient, but it is important to take a look at your audio-only media as well. The Consent Decree emphasizes the importance of providing a transcript for audio files in an easy-to-access location.

“…in the case of “audio-only” files, or in the case of video files for which Harvard lacks the access required to…embed captioning, to prepare and provide a text-only transcript and, where practicable, to place an easily identifiable link to such transcript near to or alongside the content online…” (page 2 of CD)

This excerpt illustrates that for audio-only files, or for video on platforms that don’t provide the ability to add captions, you need to provide at least a transcript, with an “easily identifiable link… near to or alongside the content online.” It’s important to note that some video/audio players don’t display captions or transcripts, and some don’t have very many accessibility features. Apart from captions and transcriptions, institutions should also research the capabilities of the media player displaying your content.

For example, institutions looking for a more accessible media player might be interested in the AST Smart Player. This player has a number of innovative accessibility features, including an interactive transcript feature that allows viewers to see the entire text transcript, support for audio description results, and keyboard accessible playback controls.

What Needs Captioning?

The CD indicates that the outlined captioning and transcription requirements apply to all public online content, including Massive Open Online Courses (MOOCs), with certain legacy content provisions. Any new video or audio created by Harvard on or after December 1, 2019, now requires captioning and transcription. The implication here is that for new public content, captions should be created and released concurrently with the video.

Furthermore, video or audio created or posted between January 1 and December 31, 2019, needs to be captioned “as soon as practicable,” but no later than two years after execution of the agreement. And if there is a request for captioning on specific videos, it must be captioned within five days. Audio/visual content published prior to January 1, 2019 only needs to be captioned on request.

University-wide live events such as Commencements and “presidential installations” that are live-streamed over the internet should also now be captioned using “industry-standard live captioning.” As in the case of post-production captioning and transcription, ASR or ASR supported by crowd-sourced editing is not an acceptable standard for live captioning events. In addition to this, if a video from a live captioning event is later posted publicly, then these videos must also be captioned with the same quality standards as for post-production content.

While this consent decree does not explicitly require pro-active captioning for content behind an LMS that is only available to paying students, it makes sense to put in place, and leverage, the same “captioning infrastructure” that you put in place for your public content and MOOCs. You need to have a plan in place that allows you to caption large amounts of content quickly, and accurately when deaf or hard of hearing students enroll in your classes.

These timelines, while applicable to Harvard, provide a framework for other institutions to use when evaluating their accessibility practices. Accessibility stakeholders might want to use similar timelines in their own plans. In order to build an effective plan, it’s important to note that approximately over five percent of the population are deaf or hard of hearing — and with this increased publicity, it’s only a matter of time before your institution has one or more students who need hearing accommodations.

Process and Procedures

Another important facet of the Consent Decree (CD) is the video accessibility process that it implements. In this case, the court has the ability to ensure compliance  and enforce the CD at Harvard for a term of 3.5 years (page 8 of CD), and there is a lot that needs to be implemented at the beginning.

A precursor to beginning the process of implementing captioning is that Harvard must “strongly urge” community members to caption videos at the time they are produced, and to post content on “accessible third-party platforms” (page 5 of CD).

We’ve spoken about this type of “timely accessibility” before. It’s important to provide accessible content for your users, but it’s also crucial to provide accessible content ahead of time. If institutions are providing captioning services, they should encourage departments and units within their institution do to the same, and to do so with ample planning. This will help to ensure that everyone has access to the material before it will be used online or in class. Similarly, ensuring that content is posted with accessible video players like the AST Smart Player will further ensure that access is provided ahead of time.

The Consent Decree also requires that Harvard must establish and make available immediately a “Public Request Process” that allows members of the public to submit captioning requests. In addition to this, all websites should include a link to the request process and the “cure process,” a procedure which allows the public to be able to report a) missing captions, and b) captioning that contains “material errors.”

“…Harvard will establish, implement, and make available to the public a process (the “Cure Process”) by which any member of the public, including any Plaintiff, may inform Harvard in writing that any content required to be Captioned under this Consent Decree has not been Captioned; that any Captioning required under this Agreement contains material errors; or that any University Website does not include a link to the Policy or the Public Request Process…” (page 6 of CD) 

The Cure Process outlined above should be integrated with the Public Request Process, and missing or inaccurate captions must be “cured” within 10 days to avoid violating the CD. One way to cure is to remove the content from public view, but before removing such content, Harvard must “engage in a good-faith effort to Caption content before removing it” (page 6 of CD). In other words, the UC Berkeley solution of simply taking down content is not acceptable. 

Another important part of the process will be that Harvard has to train the “Harvard Community” on how to provide captioning for video content (page 6 of CD). This requirement is a step beyond encouraging faculty and staff to caption, requiring Harvard to also provide the resources they need to implement a video accessibility workflow easily and seamlessly.

Professional captioning vendors may offer support articles that may be useful in this respect. At AST, we provide training webinars, a comprehensive support website with over 200 useful articles, and a ticketing system that allows users to submit tickets for any questions or concerns they may have. The best part is that these features are part of the set of included services that we offer to large customers. 

Final Thoughts & Implications for Higher Ed 

While the outcome of this case is a huge step forward for the improvement of video accessibility practices, it also poses a few challenges for educational institutions. As the case has now settled, it now sets a precedent for future legal investigations. If you are a higher ed institution, even if you’re not as large or as famous as Harvard, you should be implementing similar policies as soon as possible in order to prevent similar compliance issues.

As part of your video accessibility workflow, we would also recommend including a process for requesting Audio Description in your request process, and have it available within a time frame of five days, if possible. This case was initiated by the National Association of the Deaf (NAD) on behalf of deaf and hard of hearing individuals, but the population of blind and vision impaired individuals is similar in size, and the National Federation of the Blind (NFB) and other advocacy organizations for blind people have undoubtedly been following this case closely.

The Office of Civil Rights (OCR) and the Department of Justice (DOJ) are likely to use this consent decree as a template for future resolution agreements that involve digital content. If you have received a OCR complaint but have not yet reached a resolution, the timelines and processes in this consent decree provide a good rule of thumb. In fact, if you implement these practices proactively, you might even be able to get a fast-track resolution for your OCR complaint by using the OCR’s Rapid Resolution Process (see Section 110). 

Finally, this case helps bring awareness to the some of the most important changes happening in the captioning industry. In conclusion to the overview of this Consent Decree (CD), three factors stand out: 

  • Delaying accessibility is no longer acceptable: Higher Ed institutions must begin implementing video accessibility practices as soon as possible. If you’re part of an OCR complaint, defenses such as “we have too much content,” “we are waiting for clarification on the standards,” and “it is difficult or impossible for us to identify video needing captioning” are no longer going to be accepted by the courts. In order to comply with the law, you’ll need to provide a high-quality captioning and audio description workflow for your institution. Note that Audio Description is now a requirement under Harvard’s Digital Accessibility Policy, which lists WCAG 2.1 Level AA requirements as its accessibility standard, covering both captioning and transcription, and audio description.

  • Accuracy matters: If you have a captioning workflow in place, you’ll need to ensure that the results are accurate. ASR or crowd sourcing are not going to be acceptable shortcuts, as the higher error margins associated with these solutions cause results to be unintelligible. In an academic environment, accuracy is critical as students are assessed based on retention of information, including when presented in video. Information on accuracy and comprehension in captioning solutions is available on our website.

  • Responsiveness Matters: Consider whether your vendor can respond to volume requests in a timely fashion. As in Harvard’s case, you’ll want to provide captions as soon as possible. For new content, captioning results should be released concurrently with the audio/video, and a captioning provider with quick turnaround options will be useful for this. At AST, we provide a scalable service and we are able to caption large volume amounts without delay.

Working with a high-quality vendor that specializes in working with educational organizations is critical to compliance, and AST wants to help you address your compliance and video accessibility needs. Making Video Truly Accessible is not just a matter of providing captioning but also ensuring that your results are in compliance and that they are high quality. To help you, we can provide compliant and fully accessible captioning, audio description and live captioning results for your content.

If you have any questions regarding the Harvard settlement, this Consent Decree (CD), or you are interested in learning more about video accessibility, please feel free to reach out to us. We look forward to hearing from you!