Nat'l Ass'n of the Deaf v. Harvard Univ.

• Decision Date: 28 March 2019
• Docket Number: Case No. 3:15-cv-30023-KAR
• Citation: 377 F.Supp.3d 49
• Parties: NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs, v. HARVARD UNIVERSITY, and the President and Fellows of Harvard College, Defendants.
• Court: U.S. District Court — District of Massachusetts

377 F.Supp.3d 49

NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs,

v.HARVARD UNIVERSITY, and the President and Fellows of Harvard College, Defendants.

Case No. 3:15-cv-30023-KAR

United States District Court, D. Massachusetts.

Signed March 28, 2019

Amy F. Robertson, Pro Hac Vice, Timothy P. Fox, Pro Hac Vice, Civil Rights Education and Enforcement Center, Denver, CO, Arlene B. Mayerson, Pro Hac Vice, Disability Rights Education and Defense Fund, Inc., Bill Lann Lee, Civil Rights Education and Enforcement Center, Berkeley, CA, Caroline Jackson, Pro Hac Vice, Marc P. Charmatz, The National Association of the Deaf Law and Advocacy Center, Silver Spring, MD, Joseph M. Sellers, Pro Hac Vice, Shaylyn Cochran, Pro Hac Vice, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Namita Gupta, Pro Hac Vice, Disability Rights Education and Defense Fund, Berkely, CA, Thomas P. Murphy, Disability Law Center, Inc., Northampton, MA, for Plaintiffs.

Andrew Kim, Pro Hac Vice, William M. Jay, Pro Hac Vice, Goodwin Procter LLP, Washington, DC, Janet Grumer, Pro Hac Vice, Davis Wright Tremaine, LLP, Los Angeles, CA, Roberto M. Braceras, Jennifer B. Luz, Timothy Kistner, Goodwin Procter, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

(Dkt. No. 140)

KATHERINE A. ROBERTSON, United States Magistrate JudgeThe National Association of the Deaf ("NAD"), on behalf of its members, and three individually named plaintiffs, C. Wayne Dore, Christy Smith, and Lee Nettles (collectively, "Plaintiffs"),¹ brought this putative class action under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), and Title III of the Americans with Disabilities Act of 1990, 29 U.S.C. §§ 12181-12189 ("Title III" or "ADA"), against Harvard University and the President and Fellows of Harvard College ("Harvard").² Plaintiffs seek declaratory and injunctive relief requiring Harvard to provide timely, accurate captioning of the audio and audiovisual content that Harvard makes available online to the general public for free. On November 3, 2016, the Honorable Mark G. Mastroianni adopted a report and recommendation denying Harvard’s Motion to Stay or Dismiss (Dkt. No. 23), which argued for dismissal on the basis of the doctrine of primary jurisdiction or, alternatively, that Plaintiffs' complaint failed to state a claim (Dkt. No. 77). The parties have since consented to this court’s jurisdiction for all purposes (Dkt. No. 125). See 28 U.S.C. § 636(c) ; Fed. R. Civ. P. 73. On June 29, 2018, Harvard filed its Motion for Judgement on the Pleadings ("Defendant’s Motion") (Dkt. No. 140), which Plaintiffs oppose. For the reasons set forth below, the court will deny Harvard’s Motion in part and grant it in part.

I. BACKGROUND

Because "any new facts contained in the answer, to which no responsive pleading by the plaintiff is required, are deemed denied," the principle relevant facts remain those asserted in the complaint. Kando v. Rhode Island State Bd. of Elections , 880 F.3d 53, 58 (1st Cir. 2018).

Harvard, an undergraduate and postgraduate school and a recipient of federal funding, controls, maintains, and administers webpages, websites, and other internet locations on which it makes available to the general public, free of charge, a vast array of content, consisting of courses and other educational and general interest materials (Compl. at pp. 1, 7, 8, ¶¶ 1, 24, 25-28). Included within the online content are thousands of audio and audiovisual files, which communicate information aurally (Compl. at p. 1, ¶ 1).³ Harvard creates and produces some, but not all, of the content (Compl. at p. 8, ¶ 28). Millions of people around the world have accessed the online audiovisual content that Harvard makes freely available (Compl. at pp. 1, 8, 12, ¶¶ 1, 28, 41-42).

Plaintiffs allege that some audiovisual content appears on websites and platforms maintained and controlled by Harvard, such as Harvard Extension School and Open Learning Initiative, Peabody Museum of Archaeology and Ethnology, Institute of Politics John F. Kennedy Jr.’s Forum, and the Woodberry Poetry Room, while some audiovisual content is presented on third party platforms such as YouTube, iTunes U, and SoundCloud (Compl. at pp. 8-9, ¶¶ 28-29). Only a fraction of the online content that Harvard makes available has timely, accurate captioning (Compl. at p. 4, ¶ 8). Some captioning is so inaccurate as to make the content inaccessible (Compl. at p. 10, ¶ 31).

On February 12, 2015, Plaintiffs filed this two-count lawsuit against Harvard. Plaintiffs claim that Harvard’s failure to provide the captioning necessary to ensure effective communication and an equal opportunity for deaf and hard of hearing individuals to benefit from its online audiovisual content violates the prohibitions against disability-based discrimination codified in Section 504 and Title III (Compl. at pp. 25-29, ¶¶ 88-102). On November 3, 2016, the court denied Harvard’s motion to dismiss, concluding that Plaintiffs had made out plausible claims for relief under Section 504 and Title III (Dkt. Nos. 50, 77). After Harvard answered Plaintiffs' complaint (Dkt. No. 82), the parties spent approximately a year in settlement talks and mediation to resolve or narrow the issues. When no agreement could be reached, Harvard filed this motion.

II. DISCUSSION

A. Statutory and Regulatory Background

The court previously set out the statutory and regulatory background that governs this case, as follows:

"It is the purpose of both the ADA and the Rehabilitation Act to provide a coherent framework and consistent and enforceable standards for the elimination of discrimination against persons with disabilities." Guckenberger v. Boston Univ. , 974 F.Supp. 106, 133 (D. Mass. 1997) (citing Thomas v. Davidson Acad., 846 F.Supp. 611, 620 (M.D. Tenn. 1994) ). Section 504 and the ADA are "frequently read in sync." Id. Section 504, which is applicable to entities that receive federal funding, "was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities." Id. (quoting Helen L. v. DiDario , 46 F.3d 325, 330 (3d Cir. 1995) ). Through the ADA, Congress "extended the non-discrimination principles required of institutions receiving federal funds by the Rehabilitation Act to a much wider array of institutions and businesses." Id. (citing Easley v. Snider , 841 F.Supp. 668, 672 (E.D. Pa. 1993), rev'd on other grounds , 36 F.3d 297 (3d Cir. 1994) ). The ADA "as a whole is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ " Olmstead v. Zimring , 527 U.S. 581, 589, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (quoting 42 U.S.C. § 12101(b)(1) ).

Section 504 provides as its general rule that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). A "program or activity" includes "all of the operations of – ... a college, university, or other postsecondary institution." 29 U.S.C. § 794(b)(2)(A). One of the explicit policies underlying the enactment of Section 504 was to ensure that "all programs, projects, and activities receiving assistance ... [are] carried out in a manner consistent with the principles of ... respect for the privacy, rights, and equal access (including the use of accessible formats), of ... individuals [with disabilities]." 29 U.S.C. § 701(c)(2).

Department of Justice⁴ ("DOJ") and Department of Education⁵ ("DOE") regulations flesh out Section 504’s general rule. The regulations forbid federal fund recipients from "directly or [indirectly,] through contractual, licensing, or other arrangements, on the basis of handicap" denying a qualified handicapped person "the opportunity to participate in or benefit from the aid, benefit, or service;" affording a qualified handicapped person "an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;" and providing a qualified handicapped person with an "aid, benefit, or service that is not as effective ... as that provided to others." 28 C.F.R. § 41.51(b)(1)(i)-(iii) ; 34 C.F.R. § 104.4(b)(i)-(iii). In line with Section 504’s goal of promoting equal access, DOJ regulations require federal fund recipients to "take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing." 28 C.F.R. § 41.51(e). DOJ regulations also require recipients of federal funds to "make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Id. § 41.53. Both sets of regulations define a "qualified handicapped person" as "a handicapped person who meets the essential eligibility requirements for the receipt of such services." 28 C.F.R. § 41.32(b), 34 C.F.R. § 104.3(l)(4).

In the ADA, Congress set forth prohibitions against disability-based discrimination in employment (Title I, 42 U.S.C. §§ 12111 - 12117 ), public services furnished by governmental entities (Title II, 42 U.S.C. §§ 12131 - 12165 ), and public accommodations provided by private entities (Title III, 42 U.S.C. §§ 12181 - 12189 ). This case concerns Title III, which provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns ... or operates a place of public accommodation." 42 U.S.C. § 12182(a). Private

...