Justice Department Can Ease Transition To Online Education

The coronavirus pandemic has forced many brick-and-mortar colleges and universities to move their classes online for several weeks and possibly for the rest of the semester. All of a sudden, professors who have never taught an online course before must master the virtual-classes format in a matter of days. That task is more difficult that it needs to be, ever since the Department of Justice harassed a top university into taking its free online educational resources off the internet.

Up until 2017, the University of California-Berkeley and many other public institutions had uploaded videos of in-person classroom lectures to YouTube and other video-sharing platforms. These lectures, which enrolled students pay tens of thousands of dollars per year to sit in, were made available online free of charge. But in 2017, the Department of Justice forced Berkeley to take down its freely accessible video content. Berkeley’s YouTube channel is now completely empty.

The basis for the Department of Justice’s complaint was its accusation that Berkeley had not provided adequate captions and descriptions of its videos, making them inaccessible to people with vision or hearing disabilities. The Department demanded that Berkeley bring the videos into compliance with the Americans with Disabilities Act and pay “compensatory damages” to aggrieved YouTube browsers.

But Berkeley’s YouTube channel had almost 14,000 hours of content, all made available for free. Writing captions and descriptions for all those videos would have represented an enormous investment of time and money for a secondary product that was not raising any revenue. Rather than comply with the Department’s order, Berkeley understandably decided to take down the videos entirely.

The actions of the Department of Justice were intended to make Berkeley’s YouTube content accessible to everyone. Instead, they made it accessible to no one.

Fast-forward three years, and the coronavirus pandemic sees professors desperately trying to reorganize their courses around the online format, in the middle of a semester. Fourteen thousand hours of free online content from one of America’s top universities would be a useful guide. The videos could also serve as a study aid to millions of students suddenly faced with the prospect of doing all their learning from home.

The regulations surrounding the Americans with Disabilities Act state that if coming into compliance with disability law presents “undue financial and administrative burdens,” the entity can get around the law’s strictest requirements. But the responsibility to prove that those burdens are undue falls on Berkeley, and the process of battling the Department of Justice to establish that might in itself be too troublesome for the university.

To cope with the coronavirus pandemic, the Department of Justice should issue guidance stating that making universities’ free online content fully compliant with disability-law requirements would constitute an undue financial and administrative burden. This would exempt universities from the process of proving the undue burden and immediately allow Berkeley to fire up its YouTube channel again. Other universities will undoubtedly follow suit once they know that the Department of Justice will not harass them over it.

Obviously, free online videos from Berkeley should not take the place of the original course content that students are paying tuition for. Professors still need to put effort into crafting their online courses, just as they do with in-person courses, and they must make sure those courses are accessible to students with disabilities. Recorded lectures from other universities should be a supplement, not a replacement.

But the coronavirus pandemic presents higher education with an unprecedented set of circumstances. Professors and students must be able to take advantage of every online resource they can. It’s time for the Department of Justice to free the YouTube videos.