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Analysis: Experts Say ADA Case Has Merit

By Tyler S. B. Olkowski, Crimson Staff Writer

UPDATED: March 1, 2015, at 3:07 a.m.

After the National Association of the Deaf filed lawsuits against Harvard and MIT alleging that the universities’ online content discriminates against the deaf and hard of hearing, some legal experts said they believe the suit has merit.

Filed earlier this month, the complaint alleges that by not captioning its online content, including content on edX, a virtual education platform founded by Harvard and MIT in 2012, the schools violate the Americans with Disabilities Act of 1990, which requires that places of public accommodation are accessible to all.

While experts acknowledge that virtual places of accommodation—typically defined as any place used by the public—have little legal precedence, most said they believe that the ADA will extend to publicly accessible digital areas.

“I actually think that the plaintiffs are on very solid ground in saying that the online courses that are provided by Harvard serve as a place of public accommodation,” said Samuel R. Bagenstos, a law professor at the University of Michigan and an expert in disability law.

However, some still consider spaces in the virtual world a “gray area,” according to Rachael A. Stafford, a project director for the Rocky Mountain ADA Center and a lawyer.

Stafford questioned whether institutions providing online content were “acting as hosts of information” or as “part of a program or curriculum” that is “required viewing” material for students. She said that if the online content is serving as curriculum, it must be accessible to all students, but if the university is simply hosting information, there may be less precedence from previous ADA disputes.

Harvard Law School professor Martha A. Field disagreed with Stafford, arguing that in either case the university is required to caption the materials.

“It’s not a gray area,” she said. “It’s explicit in the ADA act that universities are covered.”

While institutions can claim that providing accommodations is too costly, Bagenstos said that this will not likely be the case for Harvard.

“Honestly, when you have a university like Harvard, with the endowment it has, it’s not going to be in a very strong position to say that providing captioning is too much of a burden,” he said.

Although some disability law experts said that the plaintiff's case is strong, Field said that she believes Harvard will put up captioning before the suit makes it to court.

“The university has to start captioning,” she said. “They’ll be silly if they litigate it all the way [to court].”

For Haben Girma, a 2013 graduate of Harvard Law School and disabilities advocate who is deaf and blind, the suit will provide  much needed access to many.

“I’m thrilled that the [NAD] is working to make Harvard and MIT more accessible,” she wrote in an email. “Students, faculty, and other community members who are deaf deserve access to the wealth of information Harvard and MIT place online.”

After declining to comment on the lawsuit in an email, Jeff Neal, a spokesperson for the University, wrote in an email that Harvard expects the U.S. Department of Justice to issue proposed rules in June for accessibility to virtual education and provide “much needed guidance in this area.” The University will “fully comply” with these rules, he wrote.

—Staff writer Hannah Smati contributed to the reporting of this story.

—Staff writer Tyler S. B. Olkowski can be reached at tyler.olkowski@thecrimson.com. Follow him on Twitter @OlkowskiTyler.

This article has been revised to reflect the following correction:

CORRECTION: March 1, 2015

An earlier version of this article incorrectly miscontextualized a quote from Haben Girma. In fact, Girma refered to the National Association of the Deaf's legal action against Harvard and MIT, not the National Disability Authority's.

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