Suits against Harvard and MIT for failure to make websites accessible under the ADA survive motions to dismiss

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The National Association for the Deaf (NAD) filed a class action against both Harvard University and Massachusetts Institute of Technology (MIT) for failing to provide captioning for many of the online audio and audiovisual content on their websites.  Plaintiffs brought claims under both Section 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act.  The Rehabilitation Act requires that institutions that receive federal financial assistance “must not deny persons with disabilities the benefits of its programs and activities.”  Additionally, institutions that are a place of public accommodation may not offer benefits to disabled individuals that are “unequal” to those received by nondisabled persons under Title III of the ADA.

“Both the ADA and Section 504 currently obligate Harvard [and MIT] to provide effective communication to ensure equal access to its online programming services . . .

Captioning services for television programming is regulated by the Federal Communications Commission (FCC), and the Department of Justice (DOJ) is in the process of developing regulations under the ADA for website accessibility.  Both Harvard and MIT argued that the lack of captioning on their online content was due to the absence of applicable regulations from the DOJ and because the ADA and the Rehabilitation Act do not require the university to place captions on their online programming.  However, in a statement of interest filed by the DOJ, the United States stated that Harvard was “wrong on both counts.”

Federal Magistrate Judge Robertson, from the District of Massachusetts, denied both Harvard and MIT’s motions to dismiss in their entirety, finding that the absence of specific regulations on web accessibility did not preclude both of the the universities from complying with the Rehabilitation Act and Title III of the ADA.  The judge stated that, “Both the ADA and Section 504 currently obligate Harvard [and MIT] to provide effective communication to ensure equal access to its online programming services, and resolution of Plaintiffs’ claim involves a straightforward application of longstanding statutory and regulatory requirements.”  The court also found that the Plaintiffs had met their burden of proof in establishing: “(1) that he or she is disabled and otherwise qualified, (2) that the defendant receives federal funding (for Section 504 purposes) and is a place of public accommodation (for ADA purposes); and (3) that the defendant discriminated against the plaintiff based on disability.”  The universities argued that the plaintiffs in the class action had not met their burden of proof under the third element of their discrimination claim, but Judge Robertson disagreed and found that, under the Supreme Court’s Section 504 antidiscrimination rule, the plaintiffs had pleaded enough facts to show a lack of “meaningful access” under their burden of proof.

Meaningful access is a fact-specific inquiry by the court, and “where the plaintiffs identify an obstacle that impedes their access to a . . . program or benefit, they likely have established that they lack meaningful access to the program or benefit.” Additionally, “there is nothing novel about premising Section 504 liability on a federal fund recipient’s failure to provide the deaf and hard of hearing with meaningful access to aural communications. To the contrary, the theory has been recognized as a paradigmatic example of Section 504 liability” because deaf individuals are unable to “have access to activities or programs without interpretive assistance.”  The DOJ also stated that the application of the ADA and the Rehabilitation Act to online web accessibility “involves a straightforward application of longstanding statutory and regulatory requirements.”  In their statement of interest the DOJ explained that “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” finding the Plaintiffs’ claims insufficient to survive a motion to dismiss.

“[Plaintiff’s] theory is that Harvard has discriminated against them by denying them a reasonable accommodation—captioning . . .”

NAD’s argument that the universities failed to reasonably accommodate the plaintiffs in the class is distinguishable from any theories of disparate impact.  Judge Robertson stated that, “Plaintiffs’ theory is not that the deaf and hard of hearing have been disparately impacted by Harvard’s neutral provision to the general public of audiovisual online content. Rather, their theory is that Harvard has discriminated against them by denying them a reasonable accommodation—captioning—that they require in order to meaningfully access the aural component of that content.” The court also found that the application of the law to “emerging technology, including online content, is consistent with [the DOJ’s] coordinating regulations.”

Under Title III of the ADA, discrimination encompasses the failure to take steps that are necessary to make sure disabled persons are not “excluded, denied services, segregated or otherwise treated differently than other individuals.”  In order to ensure inclusion, there must be a public accommodate, which in this case would include auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result because of an absence of auxiliary aids and services.

Before filing the current lawsuit, NAD contacted MIT and Harvard to request that they provide timely, accurate captioning for their audio and audiovisual content.  Both universities provided captioning for only a fraction of the available content. The captioning that was provided allegedly did not meet the FCC’s standards for captioning quality, which requires that captioning be: accurate, synchronous, complete, and properly placed. Captioning is accurate when it “match[es] the spoken words in the dialogue and conveys background noises and other sounds to the fullest extent possible.”  For captioning to be considered synchronous it must “coincide with the . . . corresponding spoken words and sounds to the greatest extent possible and must be displayed on the screen at a speed that can be read by viewers.”  To be complete, “captions must run from the beginning to the end of the program to the fullest extent possible.”  Lastly, captions should be properly placed, meaning they “should not block other important visual content on the screen, overlap one another or run off the edge of the video screen.”

[E]ntities open themselves up to liability under the ADA (and potentially under the Rehabilitation Act) when they fail to make websites accessible. 

The ADA requires that educational institutions, such as Harvard and MIT, provide public accommodation for “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  Auxiliary aids and services are defined in the regulations to include various methods of captioning, including open captioning, closed captioning, or real-time captioning as an appropriate public accommodation to those who are deaf or hard of hearing.

The current suit is not the first web accessibility discrimination claim that has found traction in the federal courts.  This is also not the first case in which a federal judge has ruled against the argument that “there is no obligation to make websites accessible until DOJ issues regulations on the subject.”  This trend in judicial reasoning, and the statements by the DOJ in their statement of interest, suggest that entities open themselves up to liability under the ADA (and potentially under the Rehabilitation Act) when they fail to make websites accessible.  Additionally, courts “seem reluctant” to prematurely dismiss web accessibility cases, making it more likely that defendants will be subject to the increased legal costs of litigation.

The recommendation by Magistrate Judge Robertson will not become a final ruling until it is adopted by District Court Judge Mastroianni.  At that point the case will be permitted to continue with discovery, and both schools will have the “opportunity to assert various defenses later in the case.”