Arlene B. Mayerson, who led the legal team for the landmark National Association for the Deaf v. Netflix case, joined 3Play Media for an exclusive presentation about the case and its repercussions for all online video producers and distributors. She expertly addresses the legal questions about accessibility and digital inclusion that are top-of-mind for ed tech professionals around the country.
Read on for a summary of Arlene’s expert opinion. You can also watch the video above for a full recording of the webinar, Online Video and the ADA: How a Landmark Case Changed the Legal Landscape of Closed Captioning.
How will the NAD v. Netflix case impact web accessibility lawsuits in higher education?
Harvard and MIT were recently sued for violating the ADA by not providing closed captions for their online video content. This raises questions for all American colleges and universities about how the ADA applies to their course content.
The NAD brought a lawsuit again MIT and Harvard primarily about their MOOCs (Massive Online Education courses), because many of them did not have captions or had inaccurate captions.
Harvard and MIT brought motions to dismiss. Their counsel repeatedly said, “Well, we’re not Netflix,” suggesting a legal distinction between a paid, commercial enterprise and free eLearning videos.
However, unlike Netflix, Harvard and MIT are also covered by Section 504 of the Rehabilitation Act, because they receive millions of dollars from the federal government. Since they would need to comply with both 504 of the Rehabilitation Act and the ADA, you can argue very strongly that these universities must caption their videos. And that’s just what the NAD’s counsel did.
They argued that Harvard and MIT need to provide equal access — “effective communication” is the term in both laws — to people who are deaf or hard of hearing.
Harvard and MIT are very proud of sharing this high-level education, which has been always restricted to a very elite group, with the public in their MOOCs. And while that is laudable, people who are deaf or hard of hearing want (and deserve) that benefit, too.
How should people involved in publishing online video reconcile conflicting rulings in ADA lawsuits?
There has been some confusion about conflicting rulings, such as the case of Donald Cullen v. Netflix, where the 9th Circuit ruled that the ADA does not apply to Netflix closed captioning. This contradicts the ruling in NAD v. Netflix.
ADA case law is certainly mixed on the topic of captioning online video; it can go one of the three ways.
1) The Internet isn’t covered
One interpretation is that the internet is not covered by the ADA at all. The Access Now v. Southwest Airlines case in the Southern District of Florida ruled that Southwest Airlines did not have to make its website acceptable. However, that has since been overturned by Department of Transportation regulations.
Given trends in ADA case law, this interpretation is the weakest.
2) The Nexus Test
Another precedent, called “the nexus test,” was set in the 9th circuit case National Federation of the Blind v. Target. In that case, the court held that Target’s website needed to be accessible, because there was a direct nexus between what Target was selling in the store and what Target was selling on the website. The website was an extension of what they were doing in their bricks-and-mortar building.
Since the ADA covers physical spaces, and the website is directly connected to the services and products provided in the physical store, then Target’s web presence must be equally accessible to people with disabilities.
3) Posner’s Argument
The third interpretation of the ADA comes from a very famous, conservative jurist named Judge Posner. In Doe v. Mutual of Omaha Insurance Company, he argued that the core meaning of the nondiscrimination provision of Title III is that any facility that is open to the public, whether in physical space or in electronic space, cannot exclude disabled persons from entering the facility, and once in, from using the facility in the same way that the non-disabled do.
How are these different rulings possible? And how can they be resolved?
First, you need to understand a little bit about how federal courts work. Federal courts are divided into circuits that cover a certain region of states. They make independent decisions that can conflict with one another.
This can be resolved in one of two ways.
The matter might go to the Supreme Court, whose ruling is always definitive nationally. The other resolution can come from a regulatory process with the Department of Justice.
Do ADA accessibility rules apply to all institutions of higher education, regardless of size, budget, and physical vs. electronic presence?
The ADA specifically calls out private places of education as places of public accommodation. But to what extent does the ADA apply when it comes to the size and impact of the organization? For example, is a giant organization like University of Phoenix implicated more than a small e-learning website with 100 how-to videos?
Or does payment matter, e.g., someone who pays for University of Phoenix versus someone who signs up for Khan Academy, which is free?
For the answer, consider the ADA’s main overriding concept: full and equal access to a public accommodation. If you’re a place of public accommodation, you have to provide full and equal access to your offerings. If you offer it free, you have to have full and equal access to everyone who wants it. If you offer it for pay, you must provide full and equal access to anyone who wants to pay.
If you want to argue that your institution cannot provide equal access, the ADA provides two defenses: undue burden and fundamental alteration.
When a defendant claims that the ADA imposes a fundamental alteration, they’re saying that they’re being asked to do something they don’t do as part of their business. For example, you’re an educational institution being sued to provide medical care. This is a very difficult defense to use.
Undue burden is one of the standards in the ADA which takes into consideration the size and resources of the facility as an impediment to adequate accommodations. This is the more common defense in ADA lawsuits.
One would say that undue burden is easier to prove for a small entity than for a big entity, but there’s a flip side to that coin as well. If you’re a small institution, but you only have 100 videos, it’s not going to cost you a whole lot to caption those. Compare that to a larger entity with hundreds or thousands of videos. So yes, size matters, but it matters on both sides of the equation.
Do the FCC’s closed captioning quality requirements apply to ADA captioning rules, too?
One of the issues with captioning that comes up a lot has to do with quality and accuracy. For example, speech recognition can provide closed captions very inexpensively, but it averages only 70% accuracy. That can hardly produce an equivalent experience for a non-hearing person.
“The issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which a communication is actually as effective as that provided others.”
Office of Civil Rights
Part of Netflix’s defense argument was that they comply with FCC regulations for captioning online video that previously aired on TV. Netflix came to court and said: “We comply with the CVAA, which is governed by the FCC. They’re coming out with regulations. They should govern that whole field. The ADA really has nothing to do with it.”
Judge Ponsor, the judge for NAD v. Netflix, rejected that argument. The CVAA only covers online streaming content that previously aired on TV, whereas whether your content has been on television is irrelevant for the ADA. The ADA is therefore broader and covers all content being offered.
As for the issue of quality and accuracy: consider this quote from a letter from the Office of Civil Rights, US Department of Education, “The issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which a communication is actually as effective as that provided others.”
Obviously, inaccurate captioning is not as effective as hearing what the person is actually saying. The FCC defined the specific closed captioning quality requirements in 2014 that cover caption accuracy, completeness, placement, and timing. In practice, the FCC quality standards are a good guideline for measuring whether the communication is effective.
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