NAD Lawsuit Against Harvard and MIT Moves Forward, Obligation to ensure equal treatment applies in emerging technologies

November 4, 2016 — Judge Mark G. Mastroianni of the District Court of Massachusetts denied Massachusetts Institute for Technology’s (MIT) and Harvard University’s motions to dismiss the National Association of the Deaf’s (NAD) and other named plaintiffs’ complaint that the institution discriminates against deaf and hard of hearing people by failing to caption the vast and varied array of online content they make available to the general public, including massive open online courses (MOOCs). Today’s decision affirms that plaintiffs’ case will be going forward.

MIT and Harvard suffered a huge blow to their positions that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act do not require the institution to provide closed captions on its online videos that it makes open and available to the world. Plaintiffs are represented by Disability Rights Education & Defense Fund (DREDF), Civil Rights Education and Enforcement Center (CREEC), NAD, and Disability Law Center (DLC) in the lawsuit against MIT, and by CREEC, NAD, and DLC in the lawsuit against Harvard.

Arlene Mayerson, DREDF Directing Attorney, said, “I am thrilled that we have made this important inroad into ensuring that 21st century online education is accessible to all.”

Today’s decision rejected Harvard’s and MIT’s arguments that they were “entitled to statutory exemptions for accommodations that impose an unreasonable financial or administrative burden, or require a fundamental change in the good at issue.” Judge Mastroianni noted Defendants’ arguments were “inappropriate for resolution on a motion to dismiss. A motion to dismiss addresses the plausibility of a plaintiff’s claims, not the strength of a defendant’s affirmative defenses.”

Tim Fox, CREEC Co-Executive Director, said, “We are very pleased with the Court’s decision, and believe that it will pave the way for deaf and hard of hearing persons to have equal access to the lifelong learning opportunities that higher educational institutions are now offering.”

Judge Mastroianni adopted, in full, the February 2016 findings made by Magistrate Judge Katherine Robertson on both cases. Unhappy with Magistrate Robertson’s decision, Harvard and MIT had filed objections to the report and recommendations with Judge Mastrioanni.

“Access to education is paramount for all, and the Court’s order makes it possible for deaf and hard of hearing people to have access to online education,” said Howard A. Rosenblum, NAD Chief Executive Officer.

“We are very pleased that our clients will have the opportunity to establish that these world renowned institutions must ensure that individuals who are deaf or hard of
hearing are able to gain access to the same learning opportunities that everyone else has,” said Christine Griffin, Executive Director of the DLC.

The February 2016 report found, in part, that:

• “Plaintiffs’ theory of discrimination – that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content [MIT] makes publicly available online – fits squarely within the parameters of Section 504 as delineated by the Court. 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.”

• “…key principles of Federal disability discrimination law: the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment,” in the context of the use of emerging technologies.”

The report also rejected the universities’ claims that plaintiffs’ request for closed captioned videos deprives it “of the flexibility to choose an appropriate auxiliary aid [to access the aural content on the videos]. . . Here, Plaintiffs have alleged that [MIT/Harvard] is not providing effective communication and have requested captioning. The flexibility to choose an appropriate auxiliary aid does not extend so far as to allow a public accommodation to choose to provide no auxiliary aid when one is required for effective communication if a reasonable one exists.”

The cases, filed in U.S. District Court in Massachusetts, asserts that Harvard and MIT each deny deaf and hard of hearing people access to thousands of videos and audio tracks that each university makes publicly available, for free, on broad-ranging topics of general interest. These include, for example, campus talks by luminaries such as President Barack Obama and Microsoft founder Bill Gates; educational videos made by MIT students for use by K-12 students; and entire semesters’-worth of courses. The purported claim is that their content is available free to anyone with an Internet connection. Millions of people have visited the websites.

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