U.S. Department of Justice sides with disabled against MIT, Harvard University
By Evan Lips | July 6, 2015, 5:00 EST
CAMBRIDGE – Higher education could soon get a schooling on disability rights from a Massachusetts federal court, which is set to determine whether to allow a lawsuit demanding closed captioning on all Harvard University and Massachusetts Institute of Technology online and educational content to proceed.
Last week, attorneys with the U.S. Department of Justice filed a 28-page statement of interest disputing MIT’s claim that the Americans with Disabilities Act does not apply to captioning online programs.
The lawsuit filed in February by the National Association for the Deaf claims that MIT and Harvard discriminate against the hearing impaired by providing electronic content without captions. The complaint accuses the schools of violating the ADA.
The DOJ statement was filed in response to MIT’s 46-page motion to dismiss filed in May, in which attorneys argued that federal anti-discrimination laws do not mandate the captioning of online content.
“Online videos and audio files – indeed the modern Internet itself – did not exist when Congress enacted Title III and Section 504,” MIT’s motion states. “Hence, the statutes themselves, and the United States Departments of Justice and Educating regulations implementing them, are silent as to whether or how such content might be made accessible.”
Not so, according to the DOJ.
“MIT is wrong on both counts,” the DOJ statement claims. “The plaintiff’s claim falls squarely within the protections afforded by the ADA.”
The DOJ statement references Section 504 of the ADA, which holds that “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under any program or activity that receives federal financial assistance.”
As for the current lawsuit filed by the NAD, the language in the complaints against MIT and Harvard is largely identical.
“While MIT claims to make this online content — which constitutes important services, privileges and advantages that it provides to the general public — “open and available to the world,” it has largely denied access to this content to the approximately 48 million — nearly one out of five — Americans who are deaf or hard of hearing,” the suit states. “Much of MIT’s online content is either not captioned, or is inaccurately or unintelligibly captioned, making it inaccessible for individuals who are deaf or hard of hearing.
“Just as buildings without ramps bar people who use wheelchairs, online content without captions excludes individuals who are deaf or hard of hearing.”
In June 2011, the NAD sued the streaming giant Netflix “for its failure to provide equal access to the fastest growing entertainment venue in the country, the Internet.”
In October 2012 the two sides signed a consent decree in which Netflix agreed to make captioning available on 100 percent of its programming within two years.
Introduced into the Netflix case was a 1996 memo penned by former Massachusetts Gov. Deval Patrick. Patrick, at that time an assistant attorney general with the DOJ, wrote the memo in response to an inquiry from U.S. Sen. Tom Harkin after the Iowa Democrat asked about how the ADA applies to online content.
“The Internet is an excellent source of information and, of course, people with disabilities should have access to it as effectively as people without disabilities,” Patrick wrote. “Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media or computerized media such as the Internet.
“Covered entities that use the Internet for communications regarding their programs, goods or services must be prepared to offer those communications through accessible means as well.”
The DOJ statement filed last week blasts MIT’s argument that making changes to its online content would be too difficult to implement.
“MIT’s heightened rhetoric that Plaintiffs’ desired remedy is impermissibly broad and unduly burdensome amounts to an assertion of fact-based defenses that MIT cannot rely on at this stage in the litigation,” the statement charges.
The DOJ also noted in its statement that it was compelled to weigh in on the lawsuit “to correct MIT’s misapplication of the primary jurisdiction doctrine and its misunderstanding of the ADA and Section 504.”
MIT’s motion does refer to the NAD’s mission to expand online learning opportunities as “laudible” but also warns that a decision in favor of the NAD could prompt a flurry of additional lawsuits.
“Indeed, beyond higher education, NAD’s “caption or remove” approach would make millions of currently uncaptioned online videos and non-transcribed audio files presumptively unlawful and subject to lawsuits,” the university’s attorneys wrote. “The chilling effect of such an approach should not be underestimated.”
Last week the case was referred to U.S. Magistrate Judge Katherine A. Robertson. Attorneys representing the schools have until July 24 to respond to the DOJ’s statement.
Contact Evan Lips at [email protected]