ADA: Harvard got it wrong with Website Accessibility

Written by Thomsen Young and you can follow him @
Yes, you heard that right. The Department of Justice wrote a Statement of Interest on June 23, 2015 and the National Association of the Deaf sealed a significant ally which will have real world implications if the Courts sides with them on website(s) accessibility for colleges and universities. NAD is taking their case against Harvard University to the United States District Court of District of Massachusetts and they have the Department of Justice on their side. In a fascinating read, the Department of Justice Statement of Interest smacked Harvard University on the head and told them that their defense 1) “that pursuant to the primary jurisdiction doctrine the action should be stayed or dismissed until the Department of Justice issues regulations under the ADA on website accessibility” and 2) [Harvard] argues that neither the ADA nor Section 504 require the provision of captions on its online programming” and told them they were wrong. Their exact words were: Harvard is wrong on both counts.

Then the Department of Justice smacked them again; this time on the other side of the head. They quoted, “Both the ADA and Section 504 currently obligate Harvard to provide effective communication to ensure equal access to its online programming services…involves a straightforward application of longstanding statutory and regulatory requirements. Not only did the court have to tell Harvard they were wrong; they had to re-educate Harvard in the most belittle way imagined. And boy, does it even get better. Read this part: “Accordingly, the United States respectfully submits this Statement of Interest to correct Harvard’s misapplication of the primary jurisdiction doctrine and its misunderstanding of the ADA and Section 504”. Harvard just got schooled by the Department of Justice and that was only in the introduction.

Thus, within their Statement of Interest they hope that the Courts will deny Harvard’s Motion to Stay or Dismiss.

While this is an awesome ally for NAD and the four plaintiffs, it is however, not yet over. Harvard does have the option to appeal their case if they want to if they lose. However, it is highly doubtful. The most likely option for Harvard and the most wise one would be to settle.

According to NAD Prayer for Relief, they are asking for four things:

  1. A declaration that Harvard’s conduct as alleged here has violated, and continues to violate, Section 504 of the Rehabilitation Act of 1973, Title III of the Americans with Disabilities Act of 1990, and the regulations promulgated under those statutes;
  2. Issuance of a permanent injunction requiring Harvard to provide timely, effective communication through comprehensive and accurate captioning of the online content that it creates and/or produces, as well as the online content that it makes available on Harvard Platforms, and to ensure that such violations do not occur in the future, as well as providing for appropriate interim injunctive relief;
  3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and
  4. Such other relief as the Court finds just and proper.

Harvard has two cards to play here: settle and get with the 21st century or be prepared for a embarrassing mockery by Chief Justice Roberts and Judge Ruth Ginsburg if you decide to appeal all the way. 

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