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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Sunday
Jul142019

A Solution for One Benefits Many: The Case for Closed Captioned Online Video

As a librarian, life-long reader, and PhD student, I prefer to read rather than watch videos. However, when watching a video for academic purposes, I turn on closed captions and read as I watch. My preference demonstrates inclusive design principles which advocate for user-centered design that seeks out and designs for exclusions. The second principle states, “Designing for people with permanent disabilities actually results in designs that benefit people universally.” Including closed captions in educational videos benefits all students, not only students who are deaf or hard of hearing. This matter is of interest to me because I have two hearing loss conditions: tinnitus, which affects about 15% of Americans, and a rare condition known as “cookie-bite” hearing loss.

The National Association of the Deaf(NAD) filed federal lawsuits in the U.S. District Court for the District of Massachusetts against Harvardand M.I.T. on February 12, 2015 claiming that the universities violated the American with Disabilities Act (ADA) by “denying deaf and hard of hearing people access to thousands of videos and audio tracks that each university makes publicly available, for free, on broad-ranging topics of general interest.” Not only do some of Harvard and M.I.T.’s videos lack closed captions, but also some videos contain inaccurate captions.          

According to the U.S. Department of EducationTitle II of the ADA prohibits discrimination against people with disabilities, and Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities by institutions that receive federal funding. Title II requires public entities to provide “auxiliary aids and services” to people with disabilities so that they have “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” Although Harvard and M.I.T. are private universities, both accept federal research grants, thus, they must comply with both ADA and Section 504. Both Harvard and M.I.T. are members of the Association of American Universities (AAU) which represents the top 60 U.S. universities that earn the majority of federal research grants.  

In 2012, The Federal Communications Commission (FCC) established rules regarding closed captioning for online videos in response to the 21stCentury Communications and Video Accessibility Act of 2010 (CVAA). Any person or organization that makes video programming available directly to end users online is responsible for adhering to these rules. The rules include a provision for an exemption from the closed captioning rule in cases where it would be economically burdensome to implement.

The Civil Rights Education and Enforcement Center’s summary of actions taken in the lawsuits against Harvard and M.I.T. noted that both universities requested the legal proceedings halt until the Department of Justice (DOJ) issued website accessibility regulations. Harvard’s attorneys claimed that captioning these materials is an undue burden. On February 9, 2016, Magistrate Judge Katherine A. Robertson stated that “striking the appropriate balance between accommodating the rights of Plaintiffs and not unduly burdening Harvard requires a fact intensive inquiry” and that “online content may not be specifically mentioned in the regulation, but neither is it specifically excluded.” All university programs whether offered in a physical building or online must comply with federal laws. In response to M.I.T.’s motion, Robertson stated that “at the heart of this case is a straightforward claim that M.I.T. failed to provide auxiliary aids or services,” thus the court, not the DOJ, has authority over the matter. Agreeing with Robertson, Judge Mark G. Mastroianni denied Harvard’s motion on November 3, 2016 and denied M.I.T.’s motion on November 4, 2016. Both universities attempted, but failed, to settle their cases through mediation, and court dates have been set for 2019. 

In response to a 2018 request from Congress, the DOJ refused to draft website accessibility regulations. Congress had expressed concerns about ADA Title III lawsuits which increased from 2,722 in 2012 to 7,663 in 2017. In Level Access’s analysis, the DOJ letter asserted that “the ADA applies to websites” and the “lack of regulations doesn’t release anyone from the need to make their websites accessible.” 

Any reasonable person would expect universities to provide students with barrier-free access to course-related videos. Approximately 48 million Americans, about 20%, are deaf or hard of hearing. As universities increasingly offer more online courses and as 58% of faculty and counting “flip the classroom,” about 20% of enrolled students will require closed captions on video lectures. Susan deMaine urged faculty to apply user-centered design principles to create accessible online courses, and concluded that: 

When we use principles of universal design to guide the creation of online materials that everyone can use, the end result is a more holistic approach that gives shape and meaning to the technical standards. Not only does the purpose of the standards come through more clearly, but the standards are also enriched with a more design-centered focus that seeks effectiveness in form as well as function.

Although the Harvard and M.I.T. lawsuits are about public accessibility to online videos, and not about student accessibility, universities that receive federal funding must comply with federal laws and owe a duty to everyone for barrier-free access to publicly available videos. Waiting for the DOJ or Congress to act is not necessary. Including closed captions in online videos benefits all people, not only the 20% of Americans who are deaf or hard of hearing. 

This is a guest post from Kathy M. Irwinirwin1km@cmich.edu, Dean of University Libraries at Central Michigan University and a PhD student in CMU’s Educational Leadership program.  

Sunday
Jul142019

Is Optional Practical Training (OPT) Really an Option Anymore?

What would you do if you landed a dream internship at Facebook but couldn’t accept it because of delays in processing your work authorization? This is exactly the situation for one student at Dartmouth College, and he’s not the only one. It seems these days that Optional Practical Training(OPT) is becoming less of an option for international students, with a 91% increase in processing times for immigration cases since the 2014 fiscal year. 

The transition for international students in the United States from full-time study in higher education to employment can be a challenging one, as there are limited legal means to change seamlessly from student to employee. OPT functions as a bridge to allow F1 visa-holding international students to begin their careers in the United States through either permitting a summer internship or extending legal stay for up to one year after graduation. Employers may decide to sponsor their OPT employees for the H1B visa, which grants foreign nonimmigrants work authorization for up to six years. However, there is currently a cap on H1B availability at 65,000 per year.

The demand for this pathway from higher education to employment for international students is evidenced by the nearly 200,000 H1B applications received for the 2018 fiscal year. The Department of Homeland Security also responded to the demand for this pipeline by extending the possible length of stay for STEM graduates from 12 months to 29 months in 2008. The rationale was to limit disruption to U.S. STEM employers who were struggling to obtain H1B visas for their employees due to the high volume of applicants and low cap. The 2008 extension was challenged in Washington Alliance of Technology Workers v. DHS in 2015. The plaintiffs, a labor union focused on preserving the interests of American workers, argued that DHS had exceeded its statutory authority and acted capriciously in modifying OPT regulations. Although the court agreed with the DHS’s reasonableness in issuing the extension, they found that DHS had committed a procedural violation by not inviting public comment on the change before issuing it. DHS later corrected the issue, and in 2016 extended the available period even further for STEM graduates to 36 months.

Although no cases have yet been heard over the recent wave of OPT processing delays, this is not the first time administrative issues have plagued U.S. Citizenship and Immigration Services. In 2007, the State Department issued a visa bulletin that signified eligibility for visa application for a large number of immigrants only to reverse itself a few weeks later. The American Immigration Law Foundation responded by threatening to file a legal complaint against U.S. Citizenship and Immigration Services and the Department of State (DOS); after much pressure, the DOS accepted the applications. Another threat of a class-action lawsuit against the Department of Homeland Security emerged from a similar situation. The plaintiffs claimed they spent thousands of dollars in preparation for their application, including legal fees, medical exams, and preparing documentation.

The delays in processing time and administrative faux paus described here represent significant barriers to international students and workers building stable, happy, and prosperous lives in the United States. The current inefficiencies in the way work authorizations are processed do a great disservice to international students in higher education. Optional Practical Training should truly be an option, as advertised.  

This post was guest authored by Jennifer Majorana, a Ph.D. student in Educational Leadership at Central Michigan University and works with international students in higher education.

Sunday
Jul142019

Federal Laws Banning Familial Donations to Universities Gut the Heart of Giving

The nation’s largest higher education admission scandal to date, commonly known as the Varsity Blues Scandal, recently led to dozens of indictments and documents outlining years of the wealthy elite bribing their children’s way into acceptance. With many stumped as to how this legal form of favoritism and bribery can continue, some have proposed that the government should play a more direct role in the monitoring of how funds are given to institutions. Recently, U.S. Senator Ron Wyden announced plans to introduce a bill that would prohibit colleges and universities from accepting donations from parents of currently enrolled students or those about to engage in the admissions process. At first glance this may appear as a way to curb the immediate concern of legal but unethical donations, it also would continue to hurt the millions of students immersed in higher education today. 

For decades, higher education institutions have faced declining enrollment and lower state and federal support, which has increased the cost of student tuition upwards of 300%. Institutions are relying on the support of donors to continue operations and academic and co-curricular upgrades. While substantial gifts impact the bottom line of institutions but are smaller in number, a large piece of the pie falls on non-alumni donations, specifically families that contribute smaller amounts of $25-$50. These amounts are adding up to large chunks of budgets that supplement scholarships and public service efforts

            Additionally, since federal oversight of donations typically lays most heavily with the tax benefit to donors, states are left to manage laws regarding institutional giving. States like Ohioallow the option of donors, for non-political affiliated purposes, to remain anonymous throughout the process. Under this logic, institutions do not have provide specific data to lawmakers or the public unless there is reason to suspect foul play. While most institutional professionals may claim to not know about admission scandals similar to those exposed earlier this year, those taking “second looks” at applicants could easily be vailed under the donor anonymity framework. 

            Furthermore, it is important to recognize that the admissions scandal has less to do with a select few wealthy individuals and more to do with a culture of elitist disregard for the admissions process. Saying parents and families are unable to donate to their children’s institution would easily lend way to other naturally developing loopholes. Parents could make donations a decade before their child’s application, to foundations that serve the institution without oversight, or continue to give to coaches and private organizations aimed at aiding students throughout the process. 

            While there may never be a sure-fire way to fix some individuals abusing the system to create “advantages” for their students, one potential solution may be to better provide support to and monitoring of the admission process. A recent article in The Atlantic provides insight that the entire admission system may not be an individualized process but more a machine aimed at efficacy, not accuracy. Applicant reviews of only 10-20 minutes leaves little time to explore the different motives and fact checking needed to verify accurate status of an applicant’s background. Providing more uniformity and structure to this process could allow for a strengthen framework to catch those abusing legal giving and illegal practices. While not perfect, admissions oversight serves as a potential alternative to a national legal overhaul of all familial donations that mainly aim to support ethically admitted student success. 

This post was guest authored by Jennifer Drevon, a doctoral student in Educational Leadership at Central Michigan University. 

Wednesday
Apr102019

Article On Motivations For State Campus Speech Law In The Conversation

I wrote about my view on the continuing trend of proposed and enacted legislation around campus speech laws for The Conversation. The article is available here.

Tuesday
Mar052019

Eighteen State Attorneys General Oppose Due Process Protections in Title IX Proceedings that They Must Observe in Every Other Civil or Criminal Proceeding

The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

The Attorneys General of 18 states collectively submitted an extensive 72-page commentopposing rules proposed by the Department of Education for Title IX.  

Led by the Commonwealth of Pennsylvania (Josh Shapiro), California (Xavier Becerra), and New Jersey (Gurbir S. Grewal), these chief legal officers of their respective states have gone on record attacking some of the most fundamental due process protections that are otherwise the norm for defendants in the civil and criminal justice system.

The practical effect of the position they advocate would be to create a unique space -- college campuses -- and a unique class of alleged victims and accused – students in higher education -- to whom tried and true procedures for deciding guilt in cases of serious allegations do not apply.  

The Attorneys General would do away with the presumption of innocence, as Connor Friedersdorf of the Atlantichas pointed out.  This maxim is written into the United Nations’ Universal Declaration of Human Rights (Article 11).  The Attorneys General consider it expendable for Title IX.  

It is not uncommon for activists to take such positions.  It is very unusual to hear it coming from the chief legal officers of states that account for almost 40% of the United States’ population.  

At least for university Title IX actions, these Attorneys General would dispense with several other fundamental principles that apply everywhere else in the US justice system.  

They argue that schools should not have to provide evidence to accused students that the school deems “irrelevant.”  

They oppose cross-examination because it might prove too expensive to implement and on the grounds that it may “harass[] the respondent, retraumatiz[e] the complainant, and further deter[] survivors from filing formal complaints.”  

No doubt, few ever find cross-examination pleasant.  Yet our civil and administrative justice system provides for cross-examination in every other analogous context, including K-12 education.  

For example, no similar movement is gathering steam to cancel due process rights in state expulsion statutes.  Laws have long protected K-12 students who face expulsion, and they generally include at least some form of cross examine right, the right to notice, the right to evidence, and the right to an attorney.  This is not controversial.[1]  

The National School Boards Association also submitted a comment to the proposed Title IX rules. School Boards argue for flexibility to adapt cross examinations to the K-12 setting, but they do not categorically condemn its application.  One reason may be that cross examination in K-12 expulsion hearings is already required by statutes such as the laws of Pennsylvania, California, and New Jersey, whose Attorneys General now oppose cross examination rights in the Title IX context.[2]  

Title IX is also universally compared to Title VI and Title VII of the Civil Rights Act in which due process rights are not generally controversial.  These laws prevent discrimination by employers (VII) and by recipients of federal funding (VI).

The Attorneys General take the reasonable position that the preponderance of evidence standard holds for these civil-rights laws, so why not Title IX?  Under “preponderance,” it is enough that proof of guilt is only 50.001% convincing or “more likely than not.” 

But the Attorneys General go further.  They argue that the Department of Education “has no authority to depart from the usual allocation of risk between parties to grievance proceedings” in other kinds of civil rights disputes.  They are silent as to why this objection does not apply to the presumption of innocence, cross examination, or other due process rights in grievance proceedings that protect the civil rights of Americans.

It is a fair argument that Title IX standards should not be more lax than standards used to enforce Title VI and VII.  Yet when other civil rights are in jeopardy, institutions like the United States Equal Employment Opportunity Commission do not jettison cross-examinationor other fundamental due process protections. 

Many young women or men enter the workforce directly after high school.  Title VII (making discrimination by employers illegal) does not view them to be too harassed or traumatized to withstand cross-examination; but the Attorneys General and other advocates would bestow such status on college students of the same age.

The Attorneys General add their considerable authority to social movements advocating for a rollback of due process rights in Title IX.  On close inspection, the only practical effect would be to roll back protections for college and university students in higher education.

Federal courts are increasingly rejecting these rollbacks as students seek the help of attorneys and challenge universities and colleges in court.  The reason is that they compromise victims no less than accused students.

 


[1]See for example, Connecticut law on expulsion hearings, which guarantees the right to cross examination and places the burden of proof on the school to prove guilt, that is, presumes the student innocent until proven guilty.  https://portal.ct.gov/-/media/SDE/Digest/2018-19/Expulsions-Guidance-August-2018.pdf

[2]For Pennsylvania, 22 PA Code 12.8, https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/Pennsylvania%20School%20Discipline%20Laws%20and%20Regulations.pdf;
for California, Cal. EDC 49818, https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/California%20School%20Discipline%20Laws%20and%20Regulations.pdf;
for New Jersey, NJAC 6A:16-7.3 https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/New%20Jersey%20School%20Discipline%20Laws%20and%20Regulations.pdf.