A federal district court in Massachusetts recently ruled against Harvard University in an ongoing lawsuit filed on behalf of disabled individuals challenging the accessibility of online video content on the university’s websites. (National Association of the Deaf v. Harvard University (D. Mass. March 28, 2019) 2019 WL 1409302, No. 3:15-cv-30023-KAR.) On the same day, the court issued a similar ruling in a companion lawsuit against the Massachusetts Institute of Technology, relying on the rationale from the Harvard University decision. (National Association of the Deaf v. Massachusetts Institute of Technology (D. Mass. March 28, 2019) 2019 WL 1409301, No. 3:15-cv-30024-KAR.)

In February 2015, the National Association of the Deaf and individual plaintiffs filed class action lawsuits against Harvard and MIT, alleging violation of federal laws governing the rights of disabled individuals, Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and Title III of the Americans with Disabilities Act (29 U.S.C. §§ 12181-12189). The plaintiffs alleged that the universities discriminated on the basis of disability by failing to make online content offered on the universities’ websites — videos, online courses, audio tracks, and other materials — accessible to deaf and hard of hearing individuals. Plaintiffs sought an order requiring the universities to provide captioning to ensure equal access, participation, and effective communication for those individuals. After initial attempts to have the lawsuits dismissed in 2016, the universities tried to settle the litigation out of court. When settlement efforts were not fruitful, Harvard and MIT again sought to have the lawsuits dismissed, this time via a motion for judgment on the pleadings. A motion on the pleadings under Federal Rule of Civil Procedure 12(b)(6) is granted when the undisputed facts pleaded in the lawsuit fail to state a claim for relief under the law.

The universities argued that their websites were not places of “public accommodation” for purposes of the ADA, and that plaintiffs failed to establish a “sufficient nexus to a good or service provided at a physical location” because websites do not have a physical “bricks and mortar” presence. Unpersuaded, the court found that a contested good or service need not be connected to a physical location” for the ADA’s protections to attach. The court further found the plaintiffs had established that the universities’ websites and online content were sufficiently connected to a physical place of public accommodation, namely Harvard’s and MIT’s classrooms, educational programs and offerings, and publicly available museums and places of interest.

The court also rejected the universities’ arguments that they should not be required to provide closed captioning of all the content hosted or published on their websites because certain content was created by third-party individuals or entities. The court concluded that without a factual record (such as a trial), it could not decide whether the universities’ websites reflected strictly third-party content that was “hosted” on the Harvard or MIT websites, or included content created by or associated with the universities themselves, such as material posted by students or faculty members. The court determined plaintiffs had sufficiently established that at least some of each university’s own online content was inaccessible to deaf and hard of hearing individuals due to inaccurate or untimely closed captioning or no closed captioning. Notably, the judge found “third party content” does not include content that is “in whole or in part” created by the university or “someone associated” with the university like individual faculty or students.

In a partial victory for the universities, the court agreed that under the federal Communications Decency Act of 1996 (42 U.S.C. § 230), the universities are not responsible for third-party websites and platforms, such as YouTube or iTunes U, that fail to make such content accessible in compliance with federal laws. Harvard and MIT argued they should not be liable for providing server space and online platforms for content posted by third parties and for embedded content the universities did not create. The universities asserted that as to some website content, the university merely “is hosting information provided by another ICP” (information content provider) and, as strictly “the publisher or speaker of that information,” should not be held liable for inaccessible material. The court opined, “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part — in other words, is publishing a third party’s content — Harvard is entitled to CDA immunity … and to judgment on the pleadings as to this aspect of Plaintiffs’ claims.”

These decisions reaffirm that educational institutions — both public and private, K-12 and higher education alike — should critically review and assess their websites and online content for accessibility by disabled individuals. Captioning may be needed to ensure equal access by hearing-impaired users, while individuals with visual or mobility disabilities may require various other accessibility measures. These companion decisions are procedural rulings; the underlying merits of plaintiffs’ claims have not been decided by a judge or jury. However, they may be viewed as a harbinger of future rulings, in these cases and others, on educational agencies’ obligations to comply with the technical accessibility requirements of the ADA, Section 504, and associated regulations of the Departments of Justice and Education.

To limit liability, school districts, charter schools, and public and private colleges and universities should work with their information-technology staff and legal counsel without delay, to review legal requirements, update software and online features, and implement best practices for website accessibility.