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National Association of Deaf v. Harvard University

United States District Court, D. Massachusetts

March 28, 2019

NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs,
v.
HARVARD UNIVERSITY, and the PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, (Dkt. No. 140)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         The 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 (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 Justice[4] (“DOJ”) and Department of Education[5] (“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(1)(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 of a 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 hard of hearing.” Id. § 36.303(b).

Nat'l Assoc. of the Deaf v. Harvard Univ., No. 3:15-cv-30023-MGM, 2016 WL 3561622, at *2-3 (D. Mass. Feb. 9, 2016).

         With this background in mind, the court turns to the contentions in Defendant's Motion.

         B. Motion for Judgment on the Pleadings

         “A motion for judgment on the pleadings bears a strong family resemblance to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and these two types of motions are treated in much the same way.” Kando, 880 F.3d at 58. The primary difference between the two is that a motion under Rule 12(c) “implicates the pleadings as a whole.” Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 54-55 (1st Cir. 2006). “[T]he court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant's behoof.” R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006). “Judgment on the pleadings should be allowed only if the properly considered facts conclusively establish that the movant is entitled to the relief sought.” Kando, 880 F.3d at 58 (citing R.G. Fin. Corp., 446 F.3d at 182). “Rule 12(c) does not allow for any resolution of contested facts; rather, a court may enter judgment on the pleadings only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment.” Aponte-Torres, 445 F.3d at 54.

         1. Title III of the ADA

         At the motion to dismiss stage, the court held that the complaint successfully stated a claim under the ADA for failure to accommodate, observing that

Plaintiffs allege that Harvard - a public accommodation - has discriminated against deaf and hard of hearing individuals by failing to provide auxiliary aids and services - specifically, captioning - necessary to ensure effective communication and equal access to its online audiovisual content. In other words, Plaintiffs' theory of disability-based discrimination under the ADA is for failure to reasonably accommodate. This theory is cognizable under the ADA….

Nat'l Assoc. of the Deaf, 2016 WL 3561622, at *10 (citing Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 145 (1st Cir. 2014)). The court characterized this suit as a “prototypical auxiliary aids case. Plaintiffs have alleged that Harvard provides a service - making online video content available to the public for free - which is inaccessible to the deaf and hard of hearing because of Harvard's failure to provide captioning.” Id., at *12. For purposes of its motion to dismiss, Harvard “‘assume[d] arguendo that Title III applie[d] to its websites.'” Id., at *4 n.5. Harvard now revokes this assumption, contending that Plaintiffs' ADA claim is inadequately pled because Harvard's websites are not themselves “place[s] of public accommodation, ” and that Plaintiffs fail to allege “a sufficient nexus with a good or service provided at a physical location” (Dkt. No. 141 at 2).

         Title III of the ADA provides that “[t]he following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce - … (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.” 42 U.S.C. § 12181(7). Harvard agrees that it is a “public accommodation” within the meaning of Title III, which sets forth a general prohibition against discrimination by public accommodations by providing 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 . . . operates a place of public accommodation.” 42 U.S.C. § 12182(a). Harvard asserts that, to give meaning to each word in the statute, a “place” of public accommodation must be an actual physical location and, to successfully state a claim, a Title III plaintiff must plead a sufficient nexus to goods or services offered to the public in a physical location, which Plaintiffs have not done. The First Circuit's decision in Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994), Harvard contends, did not discard this physical location requirement, because the First Circuit was not required to decide in Carparts whether, as some other courts have held, Title III requires a connection to goods or services offered in a public accommodation's physical location (Dkt. No. 141 at 2-8). Plaintiffs respond that no nexus is required between a public accommodation's allegedly inaccessible services and a physical location in this circuit, but, even if one is, Harvard is a physical place and its online public offerings are among its services (Dkt. No. 147 at 4).

         Carparts addressed the question of whether the ADA's prohibition on discrimination by a public accommodation on the basis of disability applied to a lifetime cap on health benefits for AIDS-related illnesses in a medical reimbursement plan offered by the defendants. Carparts, 37 F.3d at 14. Dismissing plaintiffs' claims, the district court held that Title III of the ADA only applied to public accommodations that were “actual physical structures with definite physical boundaries which a person physically enters for the purpose of utilizing the facilities or obtaining services therein.” Id. at 18 (internal quotation omitted). The First Circuit reversed the district court, holding that the “plain meaning of the terms do not require ‘public accommodations' to have physical structures for persons to enter.” Id. at 19. The court went on to observe that even if the language of Title III was ambiguous, that ambiguity, “considered together with agency regulations and public policy concerns, persuades [the court] that the phrase is not limited to actual physical structures.” Id. ...


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