USDOJ Sides with NAD in Web Accessibility Lawsuit Against Harvard & MIT
Updated: June 3, 2019
On June 25, 2015, the United States Department of Justice filed Statements of Interest weighing in on the current disability discrimination lawsuits against Harvard and MIT. Signatories include civil rights and disability rights lawyers, the counsel of the United States Department of Education, and the US Attorney General, Loretta Lynch.
The National Association for the Deaf (NAD) filed suit against Harvard University and Massachusetts Institute of Technology in February, 2015, for alleged violations of the ADA and Section 504 by failing to provide adequate closed captioning for online educational video.
Both universities requested a Motion to Stay or Dismiss the cases on the grounds that current accessibility law doesn’t directly require universities to caption video on the web.
In no uncertain terms, the signatories of the Statements of Interest disagree.
Are Closed Captions Required by Law?
The signatories formally request that the court deny the defendants’ motion. They believe that the following defense arguments are wrong:
- Neither the ADA nor Section 504 require captions for web video.
- Any lawsuits about web accessibility should be postponed until the ADA is revised or clear regulations are in place that address specific accommodations for online video
The DOJ counters that the disability discrimination laws have clear jurisdiction over video on the internet, and that closed captions are required to make videos accessible to deaf or hard of hearing students.
The DOJ’s 2010 Advanced Notice of Proposed Rulemaking (“ANPRM”) on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations clarified the ADA’s application to online video.
They do concede that there is some cause for confusion, however, due to conflicting rulings on web accessiblity lawsuits, and that “further guidance was warranted.” New Notices of Proposed Rulemaking (NPRM) for the ADA are under way, but the DOJ insists that these NPRMs are not necessary for the lawsuit to proceed.
Highlights from the USDOJ Statement of Interest
Here are key excerpts from the Statements of Interest on this web accessibilty lawsuit:
And the Departments of Justice and Education have routinely required covered entities to ensure equal access to goods, benefits and services, electronic or otherwise, through the provision of captioning or other auxiliary aids or services.
Against this backdrop, the fact that DOJ has announced its intention to issue, at some point in the future, more specific technical requirements related to website accessibility does not support invoking primary jurisdiction.”
“The United States respectfully submits this Statement of Interest to correct Harvard’s misapplication of the primary jurisdiction doctrine and its misunderstanding of the ADA and Section 504.3.”
“The ADA applies to websites of public accommodations, and…the ADA regulations should be interpreted to keep pace with developing technologies.”
“Under Section 504, recipients of Federal funding are required to provide qualified individuals with disabilities meaningful access to the benefits they offer. In this context, a qualified individual with a disability is a person with a disability who meets the essential eligibility requirements for participating in Harvard’s online programming.
Harvard offers its online programming to the general public.
Thus all members of the general public, including Plaintiffs, are “qualified” to avail themselves of Harvard’s service.”
“The ADA and the title III regulation…have always required that public accommodations provide effective communication to persons with disabilities through the provision of auxiliary aids and services, including, where appropriate, closed captioning.”
“Harvard contends that the ADA does not require it to caption its online programming because it is not required to provide or create accessible or special goods….These arguments fail because Plaintiffs do not request different or additional content; they seek only access to the same content that Harvard makes available to the general public.”
“Harvard’s assertion that the provision of closed captions would result in a “different” good, and thus is not required, is incorrect….Providing auxiliary aids and services does not change the content of Harvard’s online programming or result in “different” online programming, but rather enables individuals with disabilities to access the content Harvard already provides.”
Essentially, the USDOJ argues that the case should proceed without delay, and that the current case law and notes for proposed rulemaking that supplement the ADA are sufficient to compel Harvard and MIT to caption their online video.
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