A few years ago, an adjunct professor and disability-rights activist named Stacy Nowak went to take a look at a college course offered online by the University of California, Berkeley. The course was called "Journalism for Social Change." Nowak is deaf. She has no connection to UC Berkeley; she teaches art at Gallaudet University. But she was displeased with the quality of the closed captioning the university provided on the course's video.
Nowak, who declined to be interviewed for this article, got hold of the National Association of the Deaf, which she's a member of. In doing so she set in motion a train of events that will come to a head on March 15. Already famous for other reasons, the Ides of March will likely stand as a signal day in the development of modern liberalism, or progressivism, as we are supposed to call it. That's when one bastion of left-wingery, UC Berkeley, will give in to the demands of another, the disability-rights movement, to deprive the rest of us of a uniquely wonderful resource of modern technology. It's not as complicated as it sounds.
Since 2012, UC Berkeley (among many other schools) has offered video and audio recordings of many of its courses to the general public, via YouTube and iTunes U. The Seussian acronym is MOOCs, for massive open online courses. Over the years Berkeley's catalogue of MOOCs has grown to more than 40,000 hours of high-end pedagogy. There are introductory courses in economics, European history, statistics, physics, geography, and pretty much everything else. More advanced courses range from "Scientific Approaches to Consciousness" and "Game Theory" to "The Planets" and "Philosophy of Language," this last taught by John Searle, the country's, and maybe the world's, greatest living philosopher. Not all of the content will be to everyone's taste, of course, and I'm sure there's something to annoy anyone sooner or later. Professor Michael Nagler's simpering "Intro to Nonviolence" makes me want to punch something. I probably wouldn't like "Journalism for Social Change," either.
But still, wandering around this digital edifice one can't help but marvel. Has the Internet ever seemed so close to fulfilling the promise of its salad days? Think of it: Anyone anywhere can take a class at UC Berkeley, at their own pace, without tests or note-taking or waking up before noon! And despite the reflexive slanders from conservatives and its well-earned reputation as a hive of left-wingers, Berkeley remains one of the great intellectual centers of the world when it's not being torched by its students. Clicking on a course that seems even vaguely interesting, a former liberal arts major will now and then feel a reawakening of the thrill and sense of elation and limitless possibility that are among the great rewards of brainy adventures. Berkeley's MOOCs constitute an expansion of intellectual opportunity unimaginable 25 years ago.
Unfortunately, that's about the time Americans saw the imposition of the Americans with Disabilities Act. The act, passed in 1990, ordered American businesses and other institutions, public and private, to make "reasonable accommodations" to employees, customers, or even random passersby, as long as federal regulators dubbed them disabled. The disability could be mental or physical. A drunkard no less than a deaf person is considered disabled for purposes of the ADA.
The law was called "bipartisan"—a word that should ring like a firebell in the ears of every lover of liberty—because it was passed by a Democratic Congress and signed by a Republican president, George H. W. Bush. Mostly, though, it was the work of the newly minted "disability-rights movement." Disability activists insisted their cause was the next stage in the same movement that brought legal liberation to African Americans. This has since become a common strategy for rent seekers of all kinds. Yet the rationale for inventing rights based on mental or physical disability bore no resemblance to the civil rights movement of earlier decades. The ADA was a brazen exercise in moral free-riding.
The only opposition to it came from a brave band of libertarians and constitutionalists who saw it as a gluttonous and unprecedented expansion of state power. The ADA gave the federal bureaucracy the authority to muscle its way into the interactions of private citizens as never before. For the first time, a civil servant in Washington could reach across the country to demand, for example, that a store owner in Spittoon, Kansas, build his grocery shelves to whatever height the bureaucrat chose. For good measure the grocer could be fined if his water fountain spouted water at the incorrect angle.
The ADA spread a feast for plaintiffs' lawyers. Its provisions are so comprehensively intrusive that no business could hope to be in perfect compliance. One federal manual, covering the single topic of "accessible design," comes to more than 275 pages. Walter Olson, author of The Litigation Explosion, has tracked many of the tens of thousands of lawsuits—from the deaf patient awarded $400,000 because his rheumatologist failed to provide a sign language interpreter, to the police dispatcher who won a settlement for discrimination after she was fired. Her disability was narcolepsy.
Beyond the fate of individual businesses, and despite the warnings of a few economists, the unconquerable American economy absorbed the expense and market inefficiencies of the ADA with only the slightest indigestion. It swallowed, burped, and moved on. By now the act's reshaping of the landscape is so pervasive as to be invisible—curb cuts on street corners, ramps jerry-rigged on old office buildings, doors that open magically of themselves, and so on. After the ADA the country was much less free but its rulers were much more pleased with themselves.
As for the unintended consequences of the act . . . well, Berkeley has just learned about those.
After Nowak notified the National Association of the Deaf of her frustration with Berkeley's MOOCs, NAD went straight to the white-hot center of the American grievance industry, the federal government's Department of Justice. The organization filed a complaint with DoJ on behalf of Nowak and a Gallaudet colleague as "aggrieved individuals." The government lawyers got to work.
UC Berkeley, needless to say, is deeply involved in the disability rights movement and has gone to great lengths to keep it satisfied. Its Division of Equity and Inclusion boasts a Disabled Students Program that offers a long list of services to accommodate disabled students, including Disability Management Counseling and disability-specific problem-solving groups. The school adheres to an accessibility policy that issues Web Content Accessibility Guidelines that are enforced by the Web Accessibility Services team. There's even a minor in disability studies.
None of this impressed the Justice Department or the aggrieved individuals or the activist organization of which they are a part. Note that the accommodations listed above are for students and faculty only. But Berkeley opened its MOOCs to the general public. Among the videos, the intrepid DoJ investigators discovered some without captions, thus discriminating against members of the general public who are deaf. Some "contain[ed] text [that] had poor color contrast," thus discriminating against Americans with visual impairments. Others contained graphs and charts in which "information was sometimes conveyed using one color alone," thus discriminating against the color-blind.
In August, Rebecca Bond, chief of DoJ's Disability Rights Section, sent a letter to UC Berkeley administrators demanding that these acts of discrimination be corrected. In addition, the school would have to "pay compensatory damages to aggrieved individuals for injuries caused by UC Berkeley's failure to comply" with the ADA.
The letter was written in the purring tones of an enforcer who loves her work. "The Department prefers to resolve this matter cooperatively through a court-enforceable consent decree," Bond wrote. "In the event that we are unable to reach such a resolution, the Attorney General may initiate a lawsuit pursuant to the ADA." And do have a nice day.
The administrators didn't need an abacus to reckon that complying with the letter and retrofitting all the MOOC videos would be prohibitively expensive. Merely providing captions for all the videos, to say nothing of adjusting their color schemes and formatting, would cost more than $1 million, one official told the East Bay Times.
The easiest course, administrators concluded, was simply to pull all the MOOCs from the Internet, so that disabled members of the general public will no longer have to be subjected to such discriminatory offenses—and, also, so that the federal government won't sue UC Berkeley. Last week Vice Chancellor Cathy Koshland announced that beginning March 15, Berkeley's vast library of online courses would no longer be publicly available. If they couldn't be accessible to a member of NAD, they won't be accessible to anyone.
"The revolution eats its own children," said Georges Jacques Danton. Too bad about the collateral damage.
Andrew Ferguson is a senior editor at The Weekly Standard.