Webinar Series: Video Accessibility Legal Update

By: Art Morgan

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In this webinar we provide a video accessibility legal update.

Note: The following video should be considered an alternative to the Annotated Transcript, which contains descriptions of visual references in the media. Also, the pages listed in the Resources section are primarily text-based, and will be useful to those who do not have access to the visual content.

Annotated Video Transcript

Hello everyone.  In this webinar we’re going to provide a legal update, reviewing relevant legislation, cases, and settlements, and talking about what’s on the horizon from a legal perspective, related to closed captioning and video accessibility.

My name is Art Morgan, and as you may know I’ve been sharing the presenting duties for this webinar series with Kevin Erler, one of the founders of AST.  My role is VP of Partner development, which means that most of my job has to do with working with video platform providers and other educational technology providers to integrate captioning services into their offerings. I’ve been in the software and technology field for most of my career, and I’m definitely not a lawyer.

Given that background you might justifiably ask, “how is this person qualified to give a legal update?” The short answer is that in most respects I am not as qualified as a lawyer to give a legal update, and you should certainly not consider anything we discuss here today to constitute legal advice.

The more nuanced explanation is this. I’ve been interested in American history and government for as far back as I can remember, and the area of history that captured my attention the most, and that I’m proudest of as a U.S. citizen, is our progress during the course of our history in the area of civil rights.  I rarely admit this to people, but for a brief period of time when I was in high school I actually considered pursuing a career as a civil rights lawyer.  The event that changed the course of my career was a present I received from my parents on my 17th birthday: an Apple II computer. That machine captured my attention even more thoroughly than the study of civil rights, and it at least temporarily changed my focus in terms of career goals.

My hope though, is that my technology industry experience, combined with my passion about civil rights, helps me offer a unique perspective on the delicate balance that’s required when we talk about web accessibility.  On the one hand, we should utilize technology whenever we can to help make our lives better, but on the other hand we need to be cognizant of where and how humans and professionals fit into the equation, when providing the equal access that other humans and professionals need, and have a right to, under the law. I’m showing a scale of justice image here, in the balanced position, to reinforce that concept of balance.

So the objectives then are to review the relevant statutes and enforcement actions related to civil rights for people with disabilities, and to discuss pending legislation, rules, lawsuits and investigations, with an emphasis on those that relate to video accessibility.

The two most relevant federal statutes are first, the Rehabilitation Act of 1973, which was amended in 1998.  This is the law that includes the well-known Section 508 and Section 504 provisions. The other relevant law is the Americans with Disabilities Act, which was enacted in 1990 and amended in 2008.  I’m showing a logo from the ADA’s 25th anniversary which happened in 2015, with the text “Advancing Equal Access!”

Next, I want to mention several advocacy organizations that have been active over the years in pushing for enforcement of these laws.  The first is the National Federation of the Blind, or NFB, which for many years was the primary advocate for many of the cases that we’ll touch on in a moment. In recent years though, the National Association of the Deaf, or NAD, has been following the lead of the NFB, and they have been advocating strongly for the rights of the deaf and hard of hearing. I’m showing here a set of logos from the NAD, along with the Disability Rights Education Defense Foundation and the Civil Rights Education and Enforcement Center. These organizations have partnered on some of the recent cases supporting the rights of people who are deaf or hard of hearing.

I’ll touch briefly on several complaints and settlements over the last 16 years.  The first was at North Carolina State University in 2000.  The settlement here was based on findings from a set of complaints filed with the Office of Civil Rights of the Department of Education.  I mention this one in part because it was perhaps the start of a trend that’s accelerated in more recent years, and also because in my opinion this is a great example of how a complaint and investigation can thoroughly transform a higher ed organization in a way that can be sustained over a long period of time.

Several years later the NFB filed a complaint with the OCR regarding Penn State University.  Most of you have probably heard about that one, and the settlement agreements that resulted from that complaint.

The period from 2011 to 2016 was interesting in that during this period the National Association of the Deaf and other advocacy organizations that I mentioned reached settlements with companies that provide video content, including Netflix, iTunes, and Hulu.  These companies all agreed to institute policies that ensured that all of their video content would include closed captioning.

I’m showing a football stadium here, because there have been several cases in recent years where alumni and students brought successful lawsuits against universities to provide captioning in the stadiums.  This illustrates a couple trends. First, that it’s not enough to just provide accessible educational materials to students; students and alumni want to be included in campus life and the events that happen on campus, regardless of any disabilities that they might have.  And related to that, many people would prefer not to have to request an accommodation for every lecture or event that they attend. This is an example of how it’s always better for everyone if you can follow universal design principles, and build accessibility into your content and events.

So what’s on the horizon? First I’ll mention a bill that was introduced in congress last fall. It’s called the Accessible Instructional Materials in Higher Education Act, or AIM-HEA.  In the House it’s known as H.R. 6122, so you can Google that and read the details if you’re interested.  It doesn’t provide much in the way of specific guidelines at this point, but what it would do is establish a commission of 19 members who would make recommendations on standards and acceptable solutions for higher education instructional materials.  The commission needs to include faculty members, students, and professionals with expertise in accessibility.  So if you’re interested in making your voice heard in that area, or you know someone who would be a good fit for the commission, contact one of your Senators or Representative to put your name in the running.

It’s just a bill at this point, but it may come up for a vote during this session of Congress.  I’m showing here a screenshot from an episode of Schoolhouse Rock called “I’m just a bill.” It was a cartoon that explained for kids how a bill becomes a law, and was actually one of my favorite cartoons when I was in elementary school in the 1970s.  That shows you again what a nerd I am about this stuff.

What’s coming on the rules front? First, on January 18th the U.S. Access Board published a final rule that updates the requirements for information and communication technology under Section 508.  This is known as the Section 508 ICT Refresh, and it basically attempts to harmonize the Section 508 guidelines with the W3C’s Web Content Accessibility Guidelines, or WCAG 2.0.  This is another sign that WCAG 2.0, and in particular WCAG 2.0 Level AA, is becoming the de-facto “gold standard” for accessibility guidelines.

Similarly, last year the Department of Justice issued what’s called a Supplemental Advance Notice of Proposed Rulemaking for web accessibility guidelines under Title II of the ADA, and they also signaled their intent to follow WCAG 2.0 Level AA guidelines, with a few exceptions and clarifications.

As far as what this means in terms of closed captioning and video accessibility, the three specific guidelines to familiarize yourself with are Success Criteria 1.2.2 and 1.2.4, which deal with captioning of live video and pre-recorded video, and Success Criterion 1.2.5, which deals with audio description.  All three are required in order to be fully compliant with Level AA of WCAG 2.0.  I won’t go into these in detail unless there are questions, but we’ve included a link in the Resources section to the WCAG 2.0 quick reference.  The WCAG site is constantly evolving and improving, and it includes important definitions and examples of techniques that can be used to comply with the standards. On this slide I’m showing the logos of the Department of Justice, the W3C, and the US Access Board, which are the three bodies responsible for codifying these rules.

In terms of what’s coming in the way of pending lawsuits and settlements, there are two that I want to mention that are particularly relevant to video accessibility.  First is the NAD lawsuits against Harvard and MIT. We’ve written about these suits several times on our blog, and we’re including these links in the Resources section. The important thing to note on these cases is that the NAD and the other plaintiffs complained not just about lack of captioning on many Harvard and MIT videos, but also the poor quality of captioning on videos that did have captioning.  The Department of Justice weighed in on these cases with a Statement of Interest that said in effect “yes, captioning is required in these cases and here’s why,” and also that quality matters, citing various statutes and cases that supported those claims.

The more recent case is with U.C. Berkeley, and this involves their online courses, or MOOCs. The DOJ sent a letter of findings to UC Berkeley in late August of last year, and it specifically outlines examples where Berkeley was using videos that did not have captioning, or had poor captioning.  It also cited videos that needed audio description to be compliant with WCAG 2.0 Level AA.  Essentially the letter said that Berkeley had good policies in place, but that they were not enforcing those policies and not doing enough to ensure that those policies are implemented across the board. As far as I know, a settlement has not yet been reached on this case.

Finally, what comes next in this area? Certainly the federal government is in a state of flux right now. But if you’re involved with accessibility that’s no reason to slow down. Here are a few reasons to believe that things will continue to progress in the area of accessibility.  First, disability rights legislation has historically been very bipartisan.  And in fact, if you recall the dates that I mentioned for when the ADA and the Rehabilitation Act were enacted and amended those were mostly years when there was a Republican in the White House, and in all cases the bills received very strong bipartisan support.

Next, as we’ve described, accessibility awareness has grown rapidly over the last several years, and advocacy organizations supporting these issues have a lot of momentum.  There’s no reason to believe that they will slow down now, even if the DOJ or OCR get pulled in different directions for some period of time.

Finally, if all of that’s not enough to convince your administrations to push forward, you can always try to appeal to their sense of what I might call “opportunistic idealism.” In other words, campuses that push forward with video accessibility initiatives and get ahead of the curve will stand out. Just like with North Carolina State University as I mentioned near the beginning of this presentation, if your campus pushes forward toward creating a more diverse and inclusive environment, even in the face of challenges, that can become a differentiator that will help attract, and retain, more students.

So that’s want we wanted to cover today. Here are some of the resources that I mentioned, and links to these, and several others, are included on the Resources section of the blog page for this webinar.