National Association of the Deaf v. Harvard and National Association of the Deaf v. MIT

On November 8, 2019, the National Association of the Deaf (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 approved by the Court on February 27, 2020.  The Plaintiffs reached a similar settlement with the Massachusetts Institute of Technology, which was approved on July 21, 2020.

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

Background

In early 2014, Disability Law United, NAD, and the Disability Rights Education and Defense Fund approached Harvard and MIT in an amicable attempt to gain access to the speeches, talks, lectures, courses, and other important material that the universities made publicly available on their websites and platforms. For much of this content, the universities did not provide equal, effective, and timely access to the 48 million people who are deaf or hard of hearing, because many of the videos do not have auxiliary aids – such as closed captions – that would allow deaf and hard of hearing users to access the videos, and because many of the videos that do have captions have inaccurate or incoherent captions as seen in the image below. The parties negotiated for almost a year but were not able to reach resolution. 

On February 11, 2015, the NAD and the individual plaintiffs federal class action lawsuits against the universities, charging that their failure to caption online content discriminated against Deaf and hard of hearing people in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The Plaintiffs in both cases were represented by the NAD; Disability Law United; 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.

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 the agreements described above in late 2019 and early 2020.

For press coverage on the settlements, see: Forbes, Campus Technology, and The Harvard Crimson.

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

Relevant documents: