March 31, 2015Client Alert

The National Association of the Deaf Sues Harvard and M.I.T. over Inadequate Captioning of Online Materials

In February 2015, the National Association of the Deaf filed class action lawsuits in the U.S. District Court for the District of Massachusetts, Western Division, against Harvard and the Massachusetts Institute of Technology (“M.I.T.”) claiming the lack of adequate captioning in their online course materials violates federal antidiscrimination laws. The complaints, NAD v. Harvard (3:15-CV-30023) and NAD v. MIT (3:15-CV-30024), equate the two universities’ current captioning to buildings without ramps for people who use wheelchairs. The complaints request a permanent injunction requiring the universities to provide closed captioning for all of their online materials.

Online content, such as lectures, courses and podcasts, are playing an increasingly important role in higher education. Harvard and M.I.T. have been leaders among colleges and universities in providing course and other educational materials online. The two universities are co-founders of edX, a nonprofit organization that provides free online courses to students worldwide. Nonetheless, the complaint alleges that “much of Harvard’s online content is either not captioned or inaccurately or unintelligibly captioned, making it inaccessible for individuals who are deaf or hard of hearing.” Both complaints allege that the universities are violating the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973.

The universities have indicated that they hope to make their materials more accessible, but are continuing to seek guidance on technical best practices. A Harvard spokesperson indicated that the university looks forward to receiving “much-needed guidance in this area” from the U.S. Department of Justice (“DOJ”) in soon-to-be issued proposed rules on this subject. M.I.T. announced plans to include captioning with all new online content. Until then, colleges and universities should proceed with caution in fashioning solutions for technology-based content that is compliant with state and federal disability laws.

The clear legal trend is that the ‘auxiliary aids and services’ requirements of the ADA and Rehabilitation Act will be applied beyond ‘brick and mortar’ places of public accommodation.  This means services provided via electronic devices or over the internet are being scrutinized against the same accessibility standards as physical structures and services. In 2008, Target settled a class action lawsuit alleging its website was inaccessible to people who are blind or visually impaired. In 2010, the DOJ entered into agreements with several universities that were piloting e-book reader programs. The agreements prohibit the universities from purchasing, recommending, or promoting e-books or e-book readers unless they are fully accessible to visually impaired students. In 2012, the National Association of the Deaf sued Netflix for failing to provide closed captioning with all of its streaming content. The DOJ is seeking to codify this trend through website accessibility regulations for public accommodations, which it plans to release in June 2015.

The recent lawsuits against Harvard and M.I.T. represent the next chapter in the trend to require accessibility in technology-based services or online content. While the use of technology is making higher education more innovative, colleges and universities should ensure that their technology is accessible and complies with state and federal disability laws. Colleges and universities should remain aware of the technology in use by their faculty and work with content and technology providers to ensure there are viable assistive technology alternatives available to students with disabilities.

Colleges and universities should continue to monitor legal developments in this evolving area, including the upcoming proposed regulations for online materials from the DOJ, and review practices to ensure compliance with state and federal disability laws.

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