National Association of the Deaf v. Harvard; NAD v. MIT

On November 8, 2019, NAD and individual Plaintiffs C. Wayne Dore, Christy Smith and Lee Nettles reached a settlement with Harvard University requiring a robust regime of captioning for its publicly available online content.  The settlement, memorialized in a class action consent decree, was filed with the Court on November 27 to begin the process of notice and approval.

Background

On February 11, 2015, the National Association of the Deaf (NAD) and four deaf and hard of hearing individuals filed two federal class action lawsuits against Harvard University and the Massachusetts Institute of Technology (MIT), charging that the schools discriminate 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).

The cases, filed in U.S. District Court in Massachusetts, assert that these universities violate the Americans with Disabilities Act and the Rehabilitation Act by denying 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; “self-help” talks; entire semesters’-worth of courses; and regular podcasts such as the “HBR IdeaCast” by the Harvard Business Review. The universities boast that their content is available free to anyone with an Internet connection. Millions of people have visited the websites.

The Plaintiffs in both cases are represented by the NAD, CREEC, the Disability Rights Education and Defense Fund; the Disability Law Center , and the law firm of Cohen Milstein Sellers & Toll.

In May, 2015, the universities moved to dismiss the cases. The Department of Justice filed statements of interest in both cases supporting plaintiffs’ position that the universities’ provision of free online video content to the public discriminates against Deaf and hard of hearing individuals by failing to provide equal access in the form of captions. In decisions issued on February 16, 2016, Magistrate Judge Katherine A. Robertson recommended denial of the universities’ motions in full and included excellent language affirming the digital communication rights of people who are Deaf or hard of hearing. The court issued a lengthy decision in the Harvard case and adopted the same reasoning in the MIT case. In response to the defendants’ objections, the district judge adopted the recommendations in full.

Harvard moved to dismiss again in June of 2018, with MIT filing a similar motion in August of that year.  Judge Robertson issued a decision in March, 2019, reaffirming that content developed at and posted by the universities was covered by the anti-discrimination requirements of the ADA and Rehabilitation Act, but holding that the universities were immune — under the Communications Decency Act — from claims relating to content developed by third parties and embedded on university websites.

Settlement

Following this second round of decisions, the parties began discussing settlement.  Plaintiffs reached agreement with Harvard, which is pending approval before the Court.  The Plaintiffs also issued a press release announcing the settlement.

For press coverage on the settlement, see: Forbes, Campus Technology, New York Times, The Harvard Crimson

For press coverage on the filing of the cases, see: The New York Times, Boston Globe, Reuters, Ability Magazine, FastCompany, UPIABC News, Boston Herald, The Huffington PostThe VergeThe Chronicle of Higher Education. and Harvard’s student newspaper, The Harvard Crimson.  

(Please click here for a full video description and transcript.)