UC Berkeley may be forced to scrap free online content over ADA provisions

UC Berkeley might not be able to continue to provide free public content under the conditions laid out by the Department of Justice. | Contributed photo

A leading West Coast university may be forced to scrap its mainly free online content and courses after being told it may not comply with the country’s landmark disability act.

UC Berkeley is pondering whether to stop providing the content after being told by the Department of Justice it has to comply with accessibility requirements of the Americans with Disabilities Act.

It is the latest salvo in an ongoing debate over accessibility for those with disabilities and the internet, one still unresolved by the courts.

Walter Olson, a senior fellow at the Cato Institute, said the problem facing Berkeley has been building for some time.

“Regarding online offerings, the Department of Justice has taken a line that many universities see as an intransigent one,” Olson told the Higher Education Tribune. “The likely result is withdrawal of many of the offerings.”

This content does not affect enrolled students, but is an added offering by Berkeley and other universities.

“The universities are not financially dependent on this; it’s generally for public benefit, is good for the image, provides goodwill,” Olson said. “But it’s not critical to the running of the university, does not bring in the funding, research grants.”

As such, universities have to balance whether it is worth paying the expense to update systems that will allow accessibility, or argue by legal action that they are abiding by the provisions of the ADA.

“That takes money and is it worth three years and all the legal fees to be proved right,” Olson said.

In recent years, disability action groups have been backed strongly by the Department of Justice, which takes the view that this access is covered by the ADA and those with disabilities have to be provided with accommodations to access the content.

Yet, the courts did rule against the arguments the internet and all of its content -- particularly that provided by educational institutions and businesses -- are covered by accessibility provisions in the ADA. In more recent years, other courts have ruled the other way, in favor of arguments made by the Justice Department and disability advocates.

It is certainly not decided, Olson said, and it may have to go before the U.S. Supreme Court at some point in the future.

UC Berkeley Vice Chancellor for Undergraduate Education Cathy Koshland issued a statement Sept. 13 announcing the possibility that free course and lecture content may not be available to non-enrolled students. And that means to all.

“The university has long been committed to ensuring equal access to students, faculty and staff with disabilities,” Koshland wrote. "Despite the absence of clear regulatory guidance, we have attempted to maximize the accessibility of free, online content that we have made available to the public. Nevertheless, the Department of Justice has recently asserted that the university is in violation of the Americans with Disabilities Act because, in its view, not all of the free course and lecture content UC Berkeley makes available on certain online platforms is fully accessible to individuals with hearing, visual or manual disabilities.”

UC Berkeley, in its statement, said that due to current financial constraints, “We might not be able to continue to provide free public content under the conditions laid out by the Department of Justice to the extent we have in the past.”

“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,” Koshman wrote. “Therefore, we must strongly consider the unenviable option of whether to remove content from public access.”

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