Judge rules accessibility lawsuit against Harvard University can proceed

Insider Education has reported that a judge in a federal district court in Massachusetts has allowed an accessibility lawsuit against Harvard University to proceed.

    The National Association of the Deaf last year sued Harvard over online content rendered inaccessible for learners with disabilities due to a lack of closed captions. Harvard had sought to dismiss or stay the lawsuit until the U.S. Department of Justice issued new rules on how the Americans With Disabilities Act of 1990 applies to websites, but the court dismissed that motion, saying that such a decision could keep the plaintiffs waiting for years.

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Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by state and local government entities, including colleges and universities. Title III of the ADA likewise prohibits disability discrimination by private educational institutions. Accessology, a national consulting company on accessibility issues, has been warning public as well as private entities that private litigation as well as Department of Justice Reviews (DOJ) are increasing. Specifically, Accessology has been documenting a number of lawsuits against Universities.

Recently, a comprehensive settlement agreement was reached with the University of Alabama at Birmingham to resolve a complaint filed by a UAB student who alleged that various buildings and parking lots on campus were inaccessible to individuals with mobility impairments, in violation of the ADA. And, an Ohio University recently settled a lawsuit with a former student who claimed the University did not accommodate her disability. Aleeha Dudley who is blind filed the lawsuit against Miami University. According to the National Federation of the Blind, which assisted Dudley, the complaint, originally filed in January of 2014, alleges that Miami University violated Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 by deliberately failing to make necessary modifications for Ms. Dudley so that she could complete her coursework.

The Harvard lawsuit was brought by The National Association of the Deaf (NAD) and four individually named plaintiffs, C. Wayne Dore, Christy Smith, Lee Nettles, and Diane Nettles for failure to provide equal access for deaf and hard of hearing individuals to much of the audio and audiovisual content that Harvard makes available online to the general public for free by not providing captioning. Although Harvard sought to dismiss the claim, the United States disagreed and filed a statement of interest in opposition to Harvard’s motion.

From the complaint:

    According to Plaintiffs, Harvard has long known that captioning is necessary to make its online video content accessible by the deaf and hard of hearing. Moreover, beginning in December 2013, Plaintiffs repeatedly requested that Harvard ensure that its online video content had timely, accurate captioning Plaintiffs claim that Harvard’s failure to provide the captioning necessary to ensure effective communication and an equal opportunity for the deaf and hard of hearing to benefit from the online video content violates the prohibitions against disability-based discrimination codified in Section 504 and Title III of the ADA.

Section 504 provides as its general rule that “[n]o otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….

A “program or activity” includes “all of the operations of – … a college, university, or other postsecondary institution.” One of the explicit policies underlying the enactment of Section 504 was to ensure that “all programs, projects, and activities receiving assistance … [are] carried out in a manner consistent with the principles of … respect for the privacy, rights, and equal access (including the use of accessible formats), of …individuals [with disabilities].”

In their statement of interest, the United States asserted:

    Both the ADA and Section 504 currently obligate Harvard to provide effective communication to ensure equal access to its online programming services, and resolution of Plaintiffs’ claim involves a straight forward application of longstanding statutory and regulatory requirements. For more than two decades, federal courts have resolved effective communication claims brought under the ADA and Section 504 in a wide range of contexts, including claims alleging unequal access to goods, benefits and services provided through websites or other electronic media. 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.

And this rule does not just apply to Harvard students, as the United States writes in their statement of interest:

    Harvard incorrectly argues that Section 504 applies only to students, relying on the Section 504 postsecondary education rules in Subpart E, which, indeed, apply to students with disabilities…Harvard fails to recognize, however, that non-students are also ensured meaningful access to online programming under ED’s Section 504 general antidiscrimination provision, which applies to qualified individuals with disabilities, and is not limited to students with disabilities.

Adding that, “The absence of the term “website accessibility or captioning online video content” from the regulation (which was promulgated nearly forty years ago, well before the Internet) does not support that such programming is excluded from Section 504 coverage.”

Harvard had argued that the court should delay an opinion in the matter until the Department of Justice (DOJ) issued its Notice of Proposed Rule Making (NPRM) for websites operated by state and local government entities covered by Title II, which DOJ has slated to occur in the first quarter of 2016, but the court disagreed writing:

    The court does not accept Harvard’s claim that Plaintiffs will not be injured by imposition of a stay. If Harvard is in violation of Title III as Plaintiffs allege, then Plaintiffs will continue to be unlawfully harmed until this case is resolved. Thus, extending the period of time Plaintiffs must wait for a possible remedy through imposition of a stay would be prejudicial.

On February 16, 2016 United States Magistrate, Judge Katherine A. Robertson recommended that Harvard’s motion to stay or dismiss the claim by the plaintiffs be denied.

NOTE: Accessology assists public entities including Universities, school districts and municipalities in the assessment and development of their ADA compliant Transition Plans. Our team of experts can identify compliance risks that make agencies vulnerable to litigation. If you would like to speak with an accessibility consultant, contact Accessology at 972-434-0068 or by visiting our website http://www.accessology.com .

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