Captioning Part 1 - 1194.24(c)

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Mark

Doug, can I interject a question?

Doug

Absolutely.

Mark

One of the questions that arose from campuses, and I think it's a good one, is rather or not there is relevance to the material being a copy of something that the student has already participated in. So, if a lecturer wishes to record their lecture, that a student presumably, or should have been in attendance for in the first place, and make it available as a downloadable podcast, it does not supplement, it is a duplicate for material for which they presumably already received in accommodation, need the campuses necessarily provide transcripts for those audio files, or if it was videoed, then caption the video.

Doug

Wow. These are the kinds of questions that we would sit around and debate.

Deborah

It's a 508 question, but it's also a 504 question.

Doug

Right. Part of it is, does the access feature need to be built into the product when it is archived? I guess that's what you'd call it right?

Mark

Well, the bottom line is, is professors are saying, if it's just a copy of what I've already said, why do I have to provide a transcript, why do I have to post a transcript along with a recording?

Doug

It would seem to me that the answer would be, because the people who are going to be listening to it, are probably not the ones who caught it the first time around.

Deborah

Yeah, why have it be available at all if it has no value to anybody? But if it has value to anybody, then it needs to have value to students with disabilities too.

Mark

Let me complicate things a little bit. Let's say that the accommodation...I mean I agree, just I'm looking for backing in this...this is a slightly more complicated question though, what if the student who has hearing loss made use of an accommodation during the lecture of captioning, and they received a transcript, and they were the only ones who were entitled to that transcript, and the professor doesn't want a transcript, a word for word transcript, available to everybody, but wants the lecture to be available, you know auditorily available, for those who wish to review it, say on their iPod or what have you?

Tia

Why wouldn't he want the transcript available to everybody?

Mark

Professors tend to be very, very uncomfortable.

Deborah

It's a published copyright.

Speaker 5

And they want students to work for it too, you know they want them taking notes and going over it.

Mark

So let's talk off the table, why, why the professor feels that way and let's just say, you know the professor will say, the only student who needed it got it, why does the transcript have to be posted for everybody?

Doug

Once he posts it and it becomes available to everybody, then the deaf people who want to know what professor so and so said, who didn't take that particular course, don't have a transcript.

Mark

Let's say its being uploaded to a portion of a campus website that's only available to students registered for that class. Let's say the learning management system, for example.

Doug

So only people who could take that class.

Mark

Yeah, so the one person who needed the transcript got it, at the time of accommodation, and the professor is saying, "So why, if I'm putting the audio up, and the one person who needed the transcript got it why does there have to be a transcript, or let's say it was a video for the sake of keeping it relevant to this, that the captions, why is that necessary? And that one I struggled a little bit with, as far as coming up with a justification.

Deborah

What'd you come up with?

Mark

Bottom line was, I said that this is one of those situations where I wouldn't have minded if there had been a loophole, unfortunately there wasn't one, you're going to have to make a risk management decision about whether or not you're comfortable being non-compliant. At the end of day, campuses, to the best of my knowledge, have never been sued for 508 non-compliance, they tend to get in trouble for 504/ADA.

Deborah

It's not a 504 violation, it's a technical 508 violation.

Mark

And that's why they are then taking that as a loophole, even though I didn't say, Use it as a loophole, what I was pointing out was that I didn't see a profound risk management issue there, but I couldn't give guidance that said, as a matter of policy...

Doug

That you didn't have to do it. Like the guy that I told that he didn't have to audio describe his film on how to rig an oil rig.

Mark

What's your take on that situation? Would you have said something different?

Doug

No, I would've said exactly what you said. I'd say, Look, you know that if you don't do it, if you look at it absolutely technically, yes, it's a 508 violation. However, the easiest thing to do is if you get a request for a transcript from somebody who you know is in your class you needs a transcript, like they lost it or something, I'd make darn sure I had it ready.

Deborah

But legally, under 504, a student can file a complaint with the office of civil rights or go to court. The student has legal standing to file a complaint. Under 508, its my understanding, the only entity that has standing to file a complaint is a competitor to the company that got the business.

Doug

Or a student.

Deborah

A student? Who do they file the complaint with?

Doug

The offending agency. If you look in the rule itself, near the end, it says, employees, with disabilities, who believe that an agency is not following the 508 requirements may file a complaint following the 504 procedures set up by that agency.

Deborah

And so the results of that complaint though, is what?

Doug

Well, first of all, if its handled internally, hopefully, the thing gets settled.

Deborah

If the violation were to be found, what would be the relief?

Doug

The relief is, OK, come on Debbie, you can help me out on this...what do you call a relief when you don't get any money? But the situation is fixed.

Deborah

An injunction.

Doug

No, there's another term for it. Where the judge says, We find for the plaintiff and therefore, I order that the university...

Deborah

A writ of mandamus. Mandatory relief. But the mandatory relief is only you should comply. It isn't like 504, where the consequence is you might lose your federal funding. And I don't know what the relief is under state law for a violation of 508. I don't think its much.

Doug

Yeah, I know...

Deborah

It's really 504 that has the legal teeth and the legal ramifications for the system. I don't think a 508 violation, by itself, there a very few situation where you would have a 508 violation, but not a 504 violation.

Doug

The 508 violation might be where, I mean here, it probably wouldn't happen, but a group of people are attending a presentation by HR, HR hands out, has a sign language interpreter, thinks that 504 compliant and the tape is not captioned. Turns out, two or three of the people don't know sign language well enough to stay with it, they can file a 508 complaint. They can file a 504, but they are on solid ground to file a 508.

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