United States Districtcourt District Ofmassachusetts

UNITED STATES DISTRICTCOURT DISTRICT OFMASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF,)

etal.,)

Plaintiffs,)

)

v.)Case No.3:15-cv-30023-MGM

)

HARVARDUNIVERSITY,)

et al.,)

)

Defendants.)

REPORT AND RECOMMENDATION REGARDING DEFENDANTS’ MOTION TO STAY ORDISMISS

(Dkt. No.23)

ROBERTSON,U.S.M.J.

I.Introduction

The National Association of the Deaf (“NAD”) and four individually named plaintiffs, C. Wayne Dore, Christy Smith, Lee Nettles, and Diane Nettles (collectively, “Plaintiffs”), bring 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 its governing board, the President and Fellows of Harvard College (collectively, “Harvard” or “Defendants”), for failure to provide equal access for deaf and hard of hearing individuals to much of the audio and audiovisual content that Harvard makes available online to the general public for free by not providing captioning. Plaintiffs seek declaratory and injunctive relief requiring Harvard to provide timely, accurate captioning of thiscontent.

Invoking the doctrine of primary jurisdiction, Harvard has filed a motion seekingto dismiss the action or stay it until the Department of Justice (“DOJ”) issues regulationson

website accessibility under the ADA (Dkt. No. 23). Alternatively, Harvard seeks dismissal of both counts of Plaintiffs’ complaint for failure to state a claim (id.). Plaintiffs oppose Harvard’s motion (Dkt. No. 34). The United States has filed a statement of interest in opposition to Harvard’s motion as well (Dkt. No. 33). Having reviewed all of the pleadings relating to this motion (Dkt. Nos. 1, 23, 24, 33, 34, 40, 46, 47, and 48) and having heard the parties at oral argument, for the reasons set forth below, the court recommends that Harvard’s motion be denied in itsentirety.

II.TheComplaint

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 (Dkt. No. 1 at p. 1 ¶1, p. 7 ¶24, p.8

¶¶25-28). Harvard creates and produces some, but not all, of the content (Dkt. No. 1 at p. 8 ¶28). Included within it are thousands of audio and audiovisual files, which communicate information aurally (Dkt. No. 1 at p. 1 ¶1).1 Millions of people around the world have accessed the online video content that Harvard makes freely available (Dkt. No. 1 at p. 1 ¶1, p. 8 ¶28, p. 12¶¶41-42).

NAD is a non-profit organization that advocates on behalf of the deaf and hard of hearing in the United States (Dkt. No. 1 at p. 5 ¶¶14-15, p. 6 ¶¶16-19). Plaintiffs C. Wayne Dore, Christy Smith, Lee Nettles, and Diane Nettles are individuals who are limited in the major life activityofhearing;inordertoreceivethebenefitoftheonlinevideocontentHarvardmakes

1 While Plaintiffs’ complaint contains allegations and claims regarding both audio and audiovisual files, the court will follow the convention employed by the parties and will primarily refer to the audiovisual content as shorthand for both. Harvard has acknowledged that NAD’s request for relief as to audio content does not differ in any material way from its request as to audiovisual content, at least for purposes of this motion (Dkt. No. 24 at p. 4n.1).

available, it must be in an accessible format, including captioning (Dkt. No. 1 at p. 7 ¶¶20-23). While some of the online video content is captioned, much of it has no captioning or has captioning that is inaccurate (Dkt. No. 1 at p. 2 ¶ 2, pp. 10-11 ¶¶ 31-39). As a result, the aural component is inaccessible to Plaintiffs and the approximately 48 million Americans who, like Plaintiffs, are deaf or hard of hearing (Dkt. No. 1 at p. 2 ¶2, p. 10 ¶31).

According to Plaintiffs, Harvard has long known that captioning is necessary to make its online video content accessible by the deaf and hard of hearing (Dkt. No. 1 at p. 22 ¶76).

Moreover, beginning in December 2013, Plaintiffs repeatedly requested that Harvard ensure that its online video content had timely, accurate captioning (Dkt. No. 1 at p. 23 ¶ 80). Plaintiffs claim that Harvard’s failure to provide the captioning necessary to ensure effective communication and an equal opportunity for the deaf and hard of hearing to benefit from the online video content violates the prohibitions against disability-based discrimination codified in Section 504 and Title III of the ADA (Dkt. No. 1 at pp. 25-29 ¶88-102).

III.Discussion

A.Statutory and Regulatory Background

“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 thenon-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 (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.” 29U.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 Justice2 (“DOJ”) and Department of Education3 (“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 ofhandicap”

2 DOJ is responsible for coordinating the implementation of Section 504 among the various federal agencies that extend financial assistance. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980). It has issued regulations in furtherance of that responsibility. See 28 C.F.R. §§ 41.1 – 41.58.

3 DOE has issued regulations implementing Section 504 as to the programs and activities to which it provides assistance. See 34 C.F.R. §§ 104.1 – 104.61. DOE’s regulations must be consistent with the DOJ’s coordination regulations. 28 C.F.R. §41.4(a).

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 schools, including undergraduate and postgraduate institutions, and other places of education, are public accommodations. Id.§

12181(7)(J). Title III prohibits public accommodations from discriminating against the disabled by, “directly, or through contractual, licensing, or other arrangements,” denying individuals on the basis of disability the opportunity “to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity,” or providing them with an “opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” Id. § 12182(b)(1)(A)(i)- (ii). See also 28 C.F.R. §36.202(a)-(b).

Among the various discriminatory effects Congress intended the ADA to remedy were those resulting from communication barriers faced by individuals with communication disabilities, including hearing, vision, and speech impairments. 42 U.S.C. § 12101(a)(5). The ADA uses the term “auxiliary aids and services” to refer to the means or methods by which public accommodations can effectively communicate with people who have communication disabilities. Id. § 12103(1). See also 28 C.F.R. § 36.303. The ADA establishes that it is discriminatory for a public accommodation to fail “to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii). See also 28 C.F.R. § 303(a). DOJ implementing regulations equate “undue burden” with “significant difficulty or expense.”28

C.F.R. § 36.303(a). The regulations further provide that “[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). Even where the “provision ofa

particular auxiliary aid or service by a public accommodation would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or in an undue burden, i.e., significant difficulty or expense, the public accommodation [still must] provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation.” Id. § 36.303(g). The regulations define the term “auxiliary aids and services” to include, among other things, “open and closed captioning, including real-time captioning; … or other effective methods of making aurally delivered information available to individuals who are deaf or hardof hearing.” Id. §36.303(b).

B.Motion toDismiss

To survive a motion to dismiss, a complaint must “‘state[ ] a claim to relief that is plausible on its face,’ accepting the plaintiff’s factual allegations and drawing all reasonable inferences in the plaintiff’s favor.” Maloy v. Ballori-Lage, 744 F.3d 250, 252 (1st Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The complaint will survive as long as it pleads sufficient facts to warrant recovery on any cognizable theory of the case.” Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 93 (1st Cir. 2000) (citing Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992)). See also Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (“Dismissal for failure to state a claim is appropriate if the complaint fails to set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionablelegal

theory.’” (quoting Centro Médico del Turabo, Inc., v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005))).

In order to state a claim for violation of Section 504 and Title III, a plaintiff mustallege

(1) that he or she is disabled and otherwise qualified,4 (2) that the defendant receives federal funding (for Section 504 purposes) and is a place of public accommodation (for ADA purposes); and (3) that the defendant discriminated against the plaintiff based on disability. Argenyi v. Creighton Univ., 703 F.3d 441, 447 (8th Cir. 2013) (citing Mershon v. St. Louis Univ., 442 F.3d 1069, 1076-77 (8th Cir. 2006)); el Kouni v. Trs. of Boston Univ., 169 F. Supp. 2d 1, 2-3 (D. Mass. 2001) (citing Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996)). There are three discrete theories available to a disability discrimination plaintiff. “First, a plaintiff can assert disparate treatment on account of disability, i.e., that the disability actually motivated the defendant’s challenged adverse conduct.” Nunes v. Massachusetts Dep’t of Corr., 766 F.3d 136, 144 (1st Cir. 2014) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 52–53 (2003)). Second, a plaintiff can assert disparate impact, i.e. that a defendant’s challenged conduct, even if not motivated by a discriminatory animus, disparately affects the disabled. Id. at 145. “Finally, a plaintiff can pursue a third path, claiming that [the defendant] has refused to affirmatively accommodate his or her disability where such accommodation was needed toprovide

4 While Title III of the ADA does not use the “qualified individual” language that Titles I and II and Section 504 use, the First Circuit has found “little difference in this distinction.”Bercovitch

v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir. 1998). This is so because “many of the issues that arise in the ‘qualified’ analysis, also arise in the context of the ‘reasonable modifications’ or ‘undue burden’ analysis. … [I]f more than reasonable modifications are required of an institution in order to accommodate an individual, then that individual is not qualified for the program.” Id. See also Alexander v. Choate, 469 U.S. 287, 299 n.19 (1985) (“[T]he question of who is ‘otherwise qualified’ and what actions constitute ‘discrimination’ under the section would seem to be two sides of a single coin; the ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of thehandicapped.”).

‘meaningful access ….’” Id. (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 273–76 (2d Cir. 2003)).

Plaintiffs’ complaint in the instant case recites the requisite elements. Plaintiffs allege (1) that they are deaf or hard of hearing and qualified to participate in Harvard’s online content as members of the general public to whom Harvard makes that content available (Dkt. No. 1 at p.1

¶ 1, pp. 5-7 ¶¶ 14-19, p. 7 ¶¶ 20-23, p. 8 ¶ 28), (2) that Harvard receives federal funding and isa

public accommodation (Dkt. No. 1 at pp. 3-4 ¶¶ 4-6, pp. 7-8 ¶¶ 24-27, p. 26 ¶ 90, p. 28 ¶ 98),and

(3)that Harvard discriminates against them on the basis of disability by denying them access or providing them unequal access to its online audio and audiovisual content (Dkt. No. 1 at p. 10 ¶ 31, pp. 25-29 ¶¶ 88-102). Harvard does not seriously contest that Plaintiffs have adequately pleaded the first two elements.5 Rather, Harvard argues that Plaintiffs have not put forth a theory of discrimination that is cognizable under either Section 504 or Title III.6 The courtdisagrees.

1.Section504

5 Harvard alludes to some doubt as to whether Plaintiffs can prove the requisite public accommodation based on its apparent disagreement with the First Circuit’s holding in Carparts Distribution Center v. Auto Wholesaler’s Ass’n of New England, 37 F.3d 12 (1st Cir. 1994),that public accommodations are not limited to actual physical structures (Dkt. No. 24 at p.29).

Nonetheless, Harvard “assumes arguendo that Title III applies to its websites” for purposes of the present motion” (id.). Whether the Carparts holding has any applicability to Plaintiffs’ Title III claim in this case is not clear; Plaintiffs suggest that it does not because they are not alleging that Harvard’s websites are public accommodations, but rather that Harvard itself is a public accommodation, and its websites are benefits, services, or privileges offered by it to the general public (Dkt. No. 34 at pp. 27-28). This court need not grapple with this distinction at this time, however, given that Harvard is not raising it in this motion, and, in any event, whether Harvard agrees with it or not, Carparts is binding precedent in this Circuit. Nat’l Ass’n of the Deafv.

Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (extending the reasoning of Carparts to reject the defendant’s argument that Title III does not apply to websites generally or to the defendant’s “Watch Instantly” service on its website inparticular).

6 Even while challenging the viability of Plaintiffs’ theory of discrimination, Harvard acknowledges that “[d]igital media and the Internet have not yet provided universal and immediate access to content by individuals with disabilities” (Dkt. No. 24 at p.5).

“The essence of section 504 is a single sentence forbidding discrimination under federally assisted programs [or activities] against ‘otherwise qualified’ handicapped individuals ‘solely by reason’ of their handicap.” Rhode Island Handicapped Action Comm. v. Rhode IslandPub.

Transit Auth., 718 F.2d 490, 494 (1st Cir. 1983). The Supreme Court has interpreted Section 504’s antidiscrimination rule as requiring that “otherwise qualified handicapped individual[s] … be provided with meaningful access to the benefit that the grantee offers.” Alexander v. Choate, 469 U.S. 287, 301 (1985) (discussing Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1979)). “[T]o assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made.”Id.

While what constitutes “meaningful access” is a fact-specific inquiry, the cases addressing the standard reflect a general pattern. “Where the plaintiffs identify an obstacle that impedes their access to a … program or benefit, they likely have established that they lack meaningful access to the program or benefit.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1267 (D.C. Cir. 2008). Indeed, the First Circuit has noted that this type of “exclusionary situation may fairly be described as the primary target of section 504.” Ruskai v. Pistole, 775 F.3d 61, 79 (1st Cir. 2014) (citing Alexander, 469 U.S. at 297). “By contrast, where the plaintiffs seek to expand the substantive scope of a program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.” Paulson, 525 F.3d at 1267. Under a “meaningful access” standard, the focus is on whether handicapped individuals are afforded “evenhanded treatment and the opportunity … to participate in and benefit from programs receiving federal assistance,” though Section 504 creates no guarantee of “equal results.” Alexander, 469 U.S. at 304 (citing Davis, 442 U.S. at 410).

Plaintiffs’ theory of discrimination – that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content Harvard makes publicly available online – fits squarely within the parameters of Section 504 as delineated by the Court. There is nothing novel about premising Section 504 liability on a federal fund recipient’s failure to provide the deaf and hard of hearing with meaningful access to aural communications. To the contrary, the theory has been recognized as a paradigmatic example of Section 504liability.