Cohen Milstein, and co-counsel: Disability Rights Education & Defense Fund (DREDF), Civil Rights Education and Enforcement Center (CREEC), and the Disability Law Center (DLC), represent the National Association of the Deaf, C. Wayne Dore, Christy Smith, Lee Nettles, and others in two similar putative class actions filed against Harvard  and, separately, MIT for alleged violations of the Americans with Disabilities Act and the Rehabilitation Act by failing to provide closed captioning in their online lectures, courses, podcasts and other educational materials.

The two putative class actions were each originally filed on February 12, 2015 before the United States District Court for the District of Massachusetts. The Honorable Katherine A. Robertson presides over both cases.

Case Background

Plaintiffs allege in both cases that Harvard and MIT make available a variety of online content on their websites that have received, to date, millions of visitors. The institutions make thousands of videos and audio tracks publicly available for free to anyone with an Internet connection, on broad-ranging topics of educational or general interest.

Plaintiffs further allege that while Harvard and MIT claim that their respective  online content – which constitutes important services, privileges and advantages that it provides to the general public – is, in Harvard’s case part of its “commitment to equity” which “calls on [it] to create effective, accessible avenues for people who desire to learn but who may not have an opportunity to obtain a Harvard education,” and in MIT’s case is “open and available to the world,” both institutions have  largely denied access to this content to the approximately 48 million Americans who are deaf or hard of hearing, many of whom require captioning to meaningfully access the audio component of online audiovisual and audio content. Specifically, plaintiffs claim, much of Harvard and MIT’s online content is either not captioned, or is inaccurately or unintelligibly captioned, making it inaccessible for individuals who are deaf or hard of hearing.

By not providing captioning, plaintiffs allege, Harvard and MIT deprive deaf and hard of hearing individuals the benefits of its online content, benefits afforded to nondisabled individuals, thereby increasing the sense of isolation and stigma that Title III, as well as Section 504, were meant to redress for individuals with disabilities.

Accordingly, plaintiffs seek injunctive and declaratory relief to ensure that deaf and hard of hearing individuals have equal, effective, and timely access to Harvard’s publicly available online content.

On June 25, 2015 the U.S. Department of Justice filed a statement of interest in both putative class actions against Harvard and MIT, supporting plaintiffs’ position that the universities’ provision of free online video content to the public discriminates against Deaf and hard of hearing individuals, “Plaintiffs’ claim falls squarely within the protections afforded by the ADA and Section 504. Both the ADA and Section 504 currently obligate (MIT and Harvard) to provide effective communication to ensure equal access to its online programming services, and resolution of Plaintiffs’ claim involves a straightforward application of longstanding statutory and regulatory requirements.”

In February 2016, Magistrate Judge Katherine A. Robertson denied both of the universities’ motions to stay the lawsuits pending the DOJ’s issuance of regulations governing website accessibility, stating that such a stay would only further compromise the ability of plaintiffs to access and use their websites.

The case names are:

National Association of the Deaf et al. v. Harvard University et al.; Case No. 3:15-cv-30023; U.S. District Court for the District of Massachusetts, Western Division

National Association of the Deaf et al. v. Massachusetts Institute of Technology, et al.; Case No. 3:15-cv-30024; U.S. District Court for the District of Massachusetts, Western Division