Obama Disability Demands Raise Serious Free Speech Issues

In March, the University of California at Berkeley began removing 20,000 college lectures from the Internet. It did so in response to the Justice Department telling Berkeley that posting the lectures violated the Americans with Disabilities Act, because they were not fully accessible to the blind and deaf.

The Americans with Disabilities Act says that services do not have to made accessible to the disabled if doing so would impose an “undue burden” on the provider. The Obama Justice Department paid only lip service to this provision in its August 30, 2016, letter telling Berkeley that it was in violation of Title II of the Americans with Disabilities Act. It claimed there was no “undue burden” in forcing Berkeley to make all of those lectures available to the blind and deaf, even though the cost apparently would have exceeded $1 million, a prohibitive amount for a free web site that does not make a profit.

Moreover, it claimed there was no “fundamental alteration” of the service required, even though the Justice Department’s demands for accessibility required more than just verbatim captioning or transcription, effectively requiring Berkeley to create new content. This gave short shrift to limits on the reach of the ADA, which does not require regulated entities to “fundamentally alter” their programs and services to accommodate the disabled.

In response, Berkeley announced that it will:

...cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities…On March 15, the university will begin removing the more than 20,000 audio and video files…a process that will take three to five months -- and require users sign in with University of California credentials to view or listen to them.

A third-party digital library copied the lectures from Berkeley’s web site, and plans to make them available to the public on its web site, but it remains to be seen whether this will trigger intellectual-property takedown demands or lawsuits.

As the Cato Institute’s Walter Olson noted last year, such removals of internet content could harm disabled people with mobility impairments: “Even if the welfare of disabled persons is treated as the only important outcome, the application of the ADA is probably going to do harm, because online alternatives to classroom instruction are particularly valuable to disabled persons, notably those with impaired mobility.”

SOURCE