Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 1 of 30
CLOSED,CONSENT,STAYED
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:15−cv−30023−KAR

National Association of the Deaf et al v. Harvard University et al Date Filed: 02/12/2015

Assigned to: Magistrate Judge Katherine A. Robertson

Date Terminated: 02/27/2020

Cause: 42:1218(2) Americans with Disabilities Act

Jury Demand: None

Nature of Suit: 446 Civil Rights:

Americans with Disabilities − Other

Jurisdiction: Federal Question

Plaintiff

National Association of the Deaf

represented by Amy F. Robertson Civil Rights Education and Enforcement Center 1245 E. Colfax Ave. Suite 400 Denver, CO 80218 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703−2578 510−644−2555 Fax: 510−841−8645 Email: amayerson@dredf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee Civil Rights Education and Enforcement Center 2120 University Ave. Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers Disability Rights Education & Defense Fund 3075 Adeline Street, Suite 210 Berkeley, CA 94703 510−644−2555 Email: cmyers@dredf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson The National Association of the Deaf Law

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and Advocacy Center 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 301−587−1788 Fax: 301−587−1789 TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum National Association of the Deaf 8630 Fenton Street, Suite. 820 Silver Spring, MD 20910 310−587−1788 Fax: 310−587−1791 Email: howard.rosenblum@nad.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC 1100 New York Ave NW #500 Washington, DC 20005 (202) 408−4600 Email: jsellers@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky Civil Rights Education and Enforcement Center 2120 University Ave. Berkeley, CA 94704 510−431−8484 Email: jwilensky@creeclaw.org TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz The National Association of the Deaf Law and Advocacy Center 8630 Fenton Street, Ste. 820 Silver Spring, MD 20910 301−587−1788 Fax: 301−587−1789 Email: marc.charmatz@nad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Namita Gupta Disability Rights Education and Defense Fund 3075 Adeline Street, Ste. 210 Berkely, CA 94703 510−644−2555 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris

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Civil Rights Education and Enforcement Center 104 Broadwya, Ste. 400 Denver, CO 80203 303−757−7901 Email: smorris@creeclaw.org TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, NW Suite 500 Washington, DC 20005 202−408−4600 Email: scochran@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy P. Fox Civil Rights Education and Enforcement Center 1245 E. Colfax Ave. Suite 400 Denver, CO 80218 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin H. Parton Disability Law Center 11 Beacon Street Suite 925 Boston, MA 02108 617−723−8455 ext. 124 Fax: 617−723−9125 Email: cparton@dlc−ma.org TERMINATED: 02/21/2020 ATTORNEY TO BE NOTICED
Tatum A. Pritchard Disability Law Center 11 Beacon Street Suite 925 Boston, MA 02108 617−723−8455 Email: tpritchard@dlc−ma.org ATTORNEY TO BE NOTICED
Thomas P. Murphy Disability Law Center, Inc. 32 Industrial Drive East Northampton, MA 01060 413−584−6524 Fax: 413−584−6524 Email: tmurphy@dlc−ma.org ATTORNEY TO BE NOTICED
Plaintiff

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C. Wayne Dore

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc P. Charmatz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Namita Gupta (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE

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ATTORNEY TO BE NOTICED

Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin H. Parton (See above for address) TERMINATED: 02/21/2020 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christy Smith

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc P. Charmatz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Namita Gupta (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin H. Parton (See above for address) TERMINATED: 02/21/2020 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lee Nettles

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson

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(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Namita Gupta (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Diane Nettles

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin H. Parton (See above for address) TERMINATED: 02/21/2020 ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky

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(See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Namita Gupta (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Harvard University

represented by Andrew Kim Goodwin Procter LLP 1900 N St. NW Washington, DC 20036 (202) 346−4000 Email: andrewkim@goodwinlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Janet Grumer Davis Wright Tremaine, LLP 865 S Figueroa Street, Ste. 2400 Los Angeles, CA 90017 213−633−6866 Fax: 213−633−4231 Email: janetgrumer@dwt.com

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roberto M. Braceras Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1895 Fax: 617−523−1231 Email: rbraceras@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William M. Jay Goodwin Procter LLP 1900 N Stree N.W. Washington, DC 20036 202−346−4190 Email: wjay@goodwinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer B. Luz Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1764 Fax: 617−523−1231 Email: jluz@goodwinprocter.com ATTORNEY TO BE NOTICED

Stephen M. Hoeplinger Schlichter, Bogard & Denton, LLP Suite 1200 100 S. Fourth Street St. Louis, MO 63102 314−621−6115 Email: shoeplinger@uselaws.com TERMINATED: 05/10/2016 ATTORNEY TO BE NOTICED

Timothy Kistner Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: tkistner@goodwinprocter.com ATTORNEY TO BE NOTICED

Defendant
President and Fellows of Harvard College

represented by Andrew Kim (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 02/13/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher M. Morrison

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Jones Day (Bos) 100 High Street Boston, MA 02110 617−960−3939 Fax: 212−755−7306 Email: cmorrison@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Grumer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey R. Johnson Jones Day 51 Louisiana Avenue, S.W. Washington, DC 20001 202−879−7684 Fax: 202−626−1700 Email: jeffreyjohnson@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Naeve Jones Day 3161 Michelson Drive Suite 800 Irvine, CA 92612 (949) 851−3939 Email: rnaeve@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roberto M. Braceras (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William M. Jay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer B. Luz (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Hoeplinger (See above for address) TERMINATED: 05/10/2016 ATTORNEY TO BE NOTICED
Timothy Kistner (See above for address) ATTORNEY TO BE NOTICED
Interested Party

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The United States

represented by Charlotte L. Lanvers U.S. Department of Justice 950 Pennsylvania Ave (NYA) Washington, DC 20005 202−305−0706 Email: charlotte.lanvers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator
Judith G. Dein TERMINATED: 11/08/2019

Date Filed 02/12/2015
02/12/2015 02/12/2015 02/12/2015 02/12/2015
02/17/2015 02/17/2015 02/17/2015

# Docket Text
1 COMPLAINT Class Action for Declaratory and Injunctive Relief against All Defendants Filing fee: $ 400, receipt number 0101−5404055 (Fee Status: Filing Fee paid), filed by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form, # 3 Proposed summons, # 4 Proposed summons)(Murphy, Thomas) (Attachment 2 replaced on 2/12/2015 with category sheet in the correct PDF format) (Finn, Mary). Modified on 2/12/2015 (Finn, Mary). (Entered: 02/12/2015)
2 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Abaid, Kimberly) (Entered: 02/12/2015)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Bill Lann Lee, Julie Wilensky Filing fee: $ 200, receipt number 0101−5404497 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Certificate of Bill Lann Lee, # 2 Exhibit Signature of Julie Wilensky)(Murphy, Thomas) (Entered: 02/12/2015)
4 Summons Issued as to Harvard University. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Finn, Mary) (Entered: 02/12/2015)
5 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice Added Bill Lann Lee and Julie Wilensky. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/12/2015)
6 CORPORATE DISCLOSURE STATEMENT by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 02/17/2015)
7 MOTION for Leave to Appear Pro Hac Vice for admission of Timothy Fox, Sarah Morris Filing fee: $ 200, receipt number 0101−5410891 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Signature of Timothy Fox, # 2 Exhibit Signature of Sarah Morris)(Murphy, Thomas) (Entered: 02/17/2015)
8 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 7 Motion for Leave to Appear Pro Hac Vice Added Timothy P. Fox and Sarah M. Morris. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/17/2015)

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02/19/2015 02/19/2015 02/23/2015 02/24/2015
03/05/2015 03/05/2015 03/05/2015 03/06/2015
03/06/2015 03/06/2015 03/26/2015 05/08/2015 05/08/2015

9 AFFIDAVIT OF SERVICE Executed by Lee Nettles, National Association of the Deaf, Christy Smith, C. Wayne Dore, Diane Nettles. Harvard University served on 2/17/2015, answer due 3/10/2015. Acknowledgement filed by Lee Nettles; National Association of the Deaf; Christy Smith; C. Wayne Dore; Diane Nettles. (Murphy, Thomas) (Entered: 02/19/2015)
10 AFFIDAVIT OF SERVICE Executed by Lee Nettles, National Association of the Deaf, Christy Smith, C. Wayne Dore, Diane Nettles. President and Fellows of Harvard College served on 2/17/2015, answer due 3/10/2015. Acknowledgement filed by Lee Nettles; National Association of the Deaf; Christy Smith; C. Wayne Dore; Diane Nettles. (Murphy, Thomas) (Entered: 02/19/2015)
11 MOTION for Leave to Appear Pro Hac Vice for admission of Caroline Jackson, Marc Charmatz Filing fee: $ 200, receipt number 0101−5419419 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit M. Charmatz Signature, # 2 Exhibit C. Jackson Signature)(Murphy, Thomas) (Entered: 02/23/2015)
12 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 11 Motion for Leave to Appear Pro Hac Vice Added Marc P. Charmatz and Caroline E. Jackson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/24/2015)
13 Assented to MOTION for Extension of Time to May 11, 2015 to Respond to the Amended Complaint , Assented to MOTION for Extension of Time to File Answer re 1 Complaint,, ( Responses due by 3/19/2015) by President and Fellows of Harvard College.(Morrison, Christopher) (Entered: 03/05/2015)
14 CORPORATE DISCLOSURE STATEMENT by President and Fellows of Harvard College. (Morrison, Christopher) (Entered: 03/05/2015)
15 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Robert A. Naeve Filing fee: $ 100, receipt number 0101−5440617 by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Morrison, Christopher) (Entered: 03/05/2015)
16 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Vice Added Robert A. Naeve. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 03/06/2015)
17 NOTICE of Appearance by Christopher M. Morrison on behalf of President and Fellows of Harvard College (Morrison, Christopher) (Entered: 03/06/2015)
18 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 13 Motion for Extension of Time; granting 13 Motion for Extension of Time to Answer re 1 Complaint,, President and Fellows of Harvard College answer due 5/11/2015. (Finn, Mary) (Entered: 03/06/2015)
19 NOTICE of Change of Address or Firm Name by Julie Wilensky (Wilensky, Julie) (Entered: 03/26/2015)
20 Assented to MOTION for Leave to File Memorandum of Law in Support of Defendants' Motion to Stay or Dismiss the Complaint by President and Fellows of Harvard College.(Morrison, Christopher) (Entered: 05/08/2015)
21 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 20 Motion for Leave to File Document In Excess of Twenty Pages. Allowed, up to thirty−five pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 05/08/2015)

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05/11/2015 05/11/2015 05/11/2015 05/12/2015
05/21/2015 05/22/2015 06/11/2015 06/11/2015
06/22/2015 06/22/2015 06/23/2015
06/25/2015 06/25/2015
06/26/2015

22 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Jeffrey R. Johnson Filing fee: $ 100, receipt number 0101−5552337 by President and Fellows of Harvard College. (Attachments: # 1 Declaration of Jeffrey R. Johnson, Esq.)(Morrison, Christopher) (Entered: 05/11/2015)
23 MOTION to Stay re 1 Complaint,, or MOTION to Dismiss by President and Fellows of Harvard College.(Naeve, Robert). Added an additional relief − MOTION to Dismiss on 5/12/2015. (Finn, Mary). (Entered: 05/11/2015)
24 MEMORANDUM in Support re 23 MOTION to Stay re 1 Complaint,, or to Dismiss filed by President and Fellows of Harvard College. (Naeve, Robert) (Entered: 05/11/2015)
25 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 22 Motion for Leave to Appear Pro Hac Vice Added Jeffrey R. Johnson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 05/12/2015)
26 Assented to MOTION for Extension of Time to 06/25/2015 to File Response/Reply as to 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Wilensky, Julie) (Entered: 05/21/2015)
27 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 26 Motion for Extension of Time to File Response/Reply re 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss Responses due by 6/25/2015. (Finn, Mary) (Entered: 05/22/2015)
28 MOTION for Leave to File Excess Pages by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Fox, Timothy) (Entered: 06/11/2015)
29 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 28 Motion for Leave to File Memorandum in Excess of 20 Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 06/11/2015)
30 NOTICE of Appearance by Charlotte L. Lanvers on behalf of The United States (Lanvers, Charlotte) (Entered: 06/22/2015)
31 MOTION for Leave to File a Statement of Interest in Excess of 20 Pages by The United States.(Lanvers, Charlotte) (Entered: 06/22/2015)
32 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 31 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 06/23/2015)
33 AMICUS BRIEF filed by The United States . (Lanvers, Charlotte) (Entered: 06/25/2015)
34 Opposition re 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Appendix Appendix of Filings from Other Cases, # 2 Appendix Appendix A, # 3 Appendix Appendix B, # 4 Appendix Appendix C, # 5 Appendix Appendix D, # 6 Appendix Appendix E)(Murphy, Thomas) (Entered: 06/25/2015)
35 ELECTRONIC NOTICE issued requesting courtesy copy for 34 Opposition to Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 7/3/2015. These documents must be clearly marked as a Courtesy Copy and reflect the

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06/29/2015 06/29/2015 06/30/2015 07/20/2015 07/24/2015 08/14/2015 09/10/2015
09/29/2015
09/29/2015 11/20/2015 11/20/2015

document number assigned by CM/ECF. (Finn, Mary) (Entered: 06/26/2015)
36 Remark − Courtesy copyo of document 34 received and placed in the file. (Finn, Mary) (Entered: 06/29/2015)
37 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Katherine A. Robertson Referred for: Full Pretrial, No Dispositive Motions (ptn). Motions referred: 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss for Report and Recommendation. (Pelegano, Theresa) (Entered: 06/29/2015)
38 MOTION for Leave to File Reply Memorandum by July 24, 2015 by President and Fellows of Harvard College.(Morrison, Christopher) Modified on 6/30/2015 to correct date. (Calderon, Melissa). (Entered: 06/30/2015)
39 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 38 defendant's Motion for Leave to File Reply Memorandum by July 24, 2015. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Robertson, Katherine) (Entered: 07/20/2015)
40 REPLY to Response to 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by President and Fellows of Harvard College. (Naeve, Robert) (Entered: 07/24/2015)
41 ELECTRONIC NOTICE Setting Hearing on MOTION to Stay or Dismis (Dkt. No. 23 in 3:15−cv−30023−MGM) and MOTION to Stay or Dismiss (Dkt. No. 24 in 3:15−cv−30024−MGM) ISSUED: A Motion Hearing is set for 9/10/2015 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 08/14/2015)
42 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing re MOTION to Stay or Dismis (Dkt. No. 23 in 3:15−cv−30023−MGM) and MOTION to Stay or Dismiss (Dkt. No. 24 in 3:15−cv−30024−MGM) was held on 9/10/2015. Attorneys Present: Arlene B. Mayerson, Timothy P. Fox, Robert A. Naeve, Christopher M. Morrison and Charlotte L. Lanvers. Arguments were heard on the pending motions. This matter is taken under advisement. R&R to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 09/11/2015)
43 Transcript of Motion Hearing held on September 10, 2015, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Janice Russell at trussell31@tdsmail.com, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: No Reporter Used. Digital Recording transcribed by Janice Russell. Redaction Request due 10/20/2015. Redacted Transcript Deadline set for 10/30/2015. Release of Transcript Restriction set for 12/28/2015. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Scalfani, Deborah) (Entered: 09/29/2015)
44 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Scalfani, Deborah) (Entered: 09/29/2015)
45 NOTICE of Change of Address or Firm Name by Thomas P. Murphy for Julie Wilensky and Bill Lann Lee (Murphy, Thomas) (Entered: 11/20/2015)
46 NOTICE by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith re 34 Opposition to Motion, Notice of Supplemental Authority in Support of Opposition to Motion to Dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Murphy, Thomas) (Entered: 11/20/2015)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 16 of 30

11/24/2015
12/04/2015 02/03/2016 02/09/2016
02/10/2016 02/10/2016 02/16/2016
02/19/2016
02/19/2016 02/23/2016 03/16/2016 03/16/2016 03/16/2016 03/16/2016 03/17/2016
03/17/2016

47 NOTICE by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith re 34 Opposition to Motion, Second Notice of Supplemental Authority in Support of Opposition to Motion to Dismiss (Attachments: # 1 Exhibit 1)(Murphy, Thomas) (Entered: 11/24/2015)
48 Notice of Supplemental Authorities re 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss (Attachments: # 1 Exhibit DOJ, Statement of Regulatory Priorities (November 24, 2015))(Naeve, Robert) (Entered: 12/04/2015)
49 NOTICE of Withdrawal of Appearance by Thomas P. Murphy of Sarah Morris (Murphy, Thomas) (Entered: 02/03/2016)
50 Magistrate Judge Katherine A. Robertson: ORDER entered. REPORT AND RECOMMENDATIONS re Defendant's 23 MOTION to Stay or Dismiss. For the reasons stated, it is this Court's recommendation that the Defendant's Motion to Stay or Dismiss be denied in its entirety. See attached R&R for complete details. Objections to R&R due by 2/23/2016. (Calderon, Melissa) (Entered: 02/09/2016)
51 NOTICE of Appearance by Roberto M. Braceras on behalf of Harvard University, President and Fellows of Harvard College (Braceras, Roberto) (Entered: 02/10/2016)
52 NOTICE of Appearance by Stephen M. Hoeplinger on behalf of Harvard University, President and Fellows of Harvard College (Hoeplinger, Stephen) (Entered: 02/10/2016)
53 Assented to MOTION for Extension of Time to March 18, 2016 to File Objections to Magistrate Judge's Report and Recommendation by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) Modified on 2/17/2016 (to change the relief type of the motion to motion for ext. of time to file resp./reply. Finn, Mary). (Entered: 02/16/2016)
54 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting (53) Motion for Extension of Time to File Response/Reply re (50 in 3:15−cv−30023−MGM) RESPONSES/OBJECTIONS due by 3/18/2016. Associated Cases: 3:15−cv−30024−MGM, 3:15−cv−30024−MGM(Finn, Mary) Modified on 2/19/2016 to clean up the text. (Finn, Mary). (Entered: 02/19/2016)
55 Set/Reset Deadlines as to 50 REPORT AND RECOMMENDATIONS. Defts' Ojbections due by 3/18/2016. (Finn, Mary) (Entered: 02/19/2016)
56 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered taking under advisement 23 Motion to Dismiss; taking under advisement 50 Report and Recommendations.; taking under advisement 23 Motion to Stay (Pelegano, Theresa) (Entered: 02/23/2016)
57 SUGGESTION OF DEATH Upon the Record as to Diane Nettles by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 03/16/2016)
58 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Christopher M. Morrison (Morrison, Christopher) (Entered: 03/16/2016)
59 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Robert A. Naeve (Morrison, Christopher) (Entered: 03/16/2016)
60 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Jeffrey R. Johnson (Morrison, Christopher) (Entered: 03/16/2016)
61 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of William M. Jay Filing fee: $ 100, receipt number 0101−6025756 by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 03/17/2016)
62 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 61 Motion for Leave to Appear Pro Hac Vice Added William M. Jay. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 03/17/2016)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 17 of 30

03/18/2016 03/22/2016 03/22/2016
04/08/2016 04/08/2016 04/25/2016
04/27/2016 04/29/2016
04/29/2016 05/02/2016 05/09/2016 08/05/2016 09/23/2016
09/26/2016 11/03/2016

63 OBJECTION to 50 Report and Recommendations filed by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 03/18/2016)
64 Assented to MOTION for Extension of Time to 4/8/16 to File Response/Reply as to 63 Objection to Report and Recommendations by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 03/22/2016)
65 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 64 Motion for Extension of Time to File Response/Reply re 50 REPORT AND RECOMMENDATIONS re 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by President and Fellows of Harvard College. Pltfs' Replies due by 4/8/2016. (Finn, Mary) (Entered: 03/22/2016)
66 REPLY TO OBJECTION to 50 Report and Recommendations filed by The United States. (Lanvers, Charlotte) (Entered: 04/08/2016)
67 REPLY TO OBJECTION to 50 Report and Recommendations filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 04/08/2016)
68 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered regarding 63 Defendants Objection to Report and Recommendations, 67 Plaintiffs Reply to Objection, and 66 United States of Americas Reply to Objection. The Court wishes to clarify that it will not hold a hearing on the parties responses to the 50 Report and Recommendations. While the Court is mindful of Defendants request in their Objection to hold a hearing, the Court notes that a hearing was already held before Judge Robertson issued her Report and Recommendations. The issues before the Court are largely questions of law and, given the thorough briefing and the hearing that has already occurred in this case, an additional hearing would not assist the Court in resolving the issues. (Montes, Mariliz) (Entered: 04/25/2016)
69 MOTION for Leave to File Reply in Support of Its Objections to the Magistrate Judge's Report and Recommendation by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Proposed Reply)(Braceras, Roberto) (Entered: 04/27/2016)
70 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 69 Motion for Leave to File Reply in Support of Objections ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Montes, Mariliz) (Entered: 04/29/2016)
71 REPLY by Harvard University in support of 63 Objection to Report and Recommendations Reply In Support (Braceras, Roberto) Modified on 5/2/2016 to correct the text to reflect the document that is being filed. (Finn, Mary). (Entered: 04/29/2016)
72 NOTICE of Appearance by Jennifer B. Luz on behalf of Harvard University, President and Fellows of Harvard College (Luz, Jennifer) (Entered: 05/02/2016)
73 NOTICE of Withdrawal of Appearance by Stephen M. Hoeplinger (Hoeplinger, Stephen) (Entered: 05/09/2016)
74 NOTICE of Withdrawal of Appearance by Julie Wilensky (Wilensky, Julie) (Entered: 08/05/2016)
75 Notice of Supplemental Authorities re 50 REPORT AND RECOMMENDATIONS re 23 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by President and Fellows of Harvard College filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Appendix)(Murphy, Thomas) (Entered: 09/23/2016)
76 Response by Harvard University, President and Fellows of Harvard College to 75 Notice of Supplemental Authorities, . (Braceras, Roberto) (Entered: 09/26/2016)
77 Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the findings and ruling of the Magistrate Judge, the 50 Report and Recommendation is hereby ADOPTED in its entirety. Defendants 23 Motion to

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 18 of 30

11/14/2016 11/14/2016 11/15/2016
11/15/2016 12/09/2016 12/13/2016 12/22/2016 12/22/2016 12/23/2016
02/07/2017 02/07/2017 02/08/2017 02/08/2017 02/14/2017

Stay or Dismiss is hereby DENIED. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 11/03/2016)
78 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Andrew Kim Filing fee: $ 100, receipt number 0101−6372594 by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 11/14/2016)
79 Assented to MOTION for Extension of Time to December 9, 2016 to File Answer re 1 Complaint,, by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 11/14/2016)
80 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 78 Motion for Leave to Appear Pro Hac Vice. Added: Andrew Kim. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Calderon, Melissa) (Entered: 11/15/2016)
81 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Assented−to 79 MOTION for Extension of Time to Answer the Complaint. Answer due by no later than December 9, 2016. (Calderon, Melissa) (Entered: 11/15/2016)
82 ANSWER to 1 Complaint,, by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 12/09/2016)
83 NOTICE of Scheduling Conference. Scheduling Conference set for 1/17/2017 11:30 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint Statement due by 1/10/2017.(Finn, Mary) (Entered: 12/13/2016)
84 Assented to MOTION to Continue Scheduling Conference to Feb. 14, 15, 16, or 17 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 12/22/2016)
85 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Janet Grumer Filing fee: $ 100, receipt number 0101−6427930 by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 12/22/2016)
86 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 84 Motion to Continue the Scheduling Conference. The Scheduling Conference is reset to 2/14/2017 02:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson; granting 85 Motion for Leave to Appear Pro Hac Vice. Added Janet Grumer. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 12/23/2016)
87 Joint MOTION for Hearing by Telephone by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 02/07/2017)
88 Joint MOTION for Extension of Time to Comply with Federal Rule of Civil Procedure 26(f) and Local Rule 16.1 by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 02/07/2017)
89 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 87 Motion to Appear at the 2/14/29017 scheduling conference by telephone. Telephone conference information sent to counsel who will appear by telephone, the other counsel will appear in person. (Finn, Mary) (Entered: 02/08/2017)
90 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 88 Joint MOTION for Extension of Time to Comply with Federal Rule of Civil Procedure 26(f) and Local Rule 16.1. (Finn, Mary) (Entered: 02/08/2017)
91 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Scheduling Conference held on 2/14/2017. Attorneys Present: Thomas P.

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 19 of 30

03/31/2017 04/03/2017
05/03/2017 05/04/2017 05/05/2017 05/08/2017 05/10/2017
05/19/2017

Murphy, Timothy P. Fox (by telephone), Arlene B. Mayerson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, Jennifer Luz, William M. Jay (by telephone), and Janet Grumer (by telephone). Colloquy re: status of the case. The parties are working closely towards trying to narrow the issues and/or possible resolution. A further Scheduling Conference is set for 4/4/2017 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. A joint status report report shall be filed by no later than 3/31/2017. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 02/15/2017)
92 STATUS REPORT (JOINT) and Motion to Continue Scheduling Conference by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 03/31/2017)
93 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered re Joint Status Report (Dkt. 92 ). A further status report shall be filed by no later than 5/3/2017. The parties' request to continue has been allowed inasmuch as the Scheduling Conference shall be rescheduled. The proposed date, however, is not available. The Scheduling Conference is reset for 5/10/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. No further extensions should be anticipated. Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 04/03/2017)
94 STATUS REPORT (JOINT) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 05/03/2017)
95 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered. The parties are directed to appear on May 10, 2017 at 11:00 a.m. for a status conference to report in further detail concerning the status of potential mediation. Counsel who desire to appear by telephone at the status conference may file a motion requesting leave to do so. (Robertson, Katherine) (Entered: 05/04/2017)
96 Joint MOTION for Hearing by Telephone (Status Conference 05/10/2017) by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 05/05/2017)
97 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting (96) Motion for Certain Counsel to appear at the 5/10/2017 Status Conference by telephone in case 3:15−cv−30023−MGM; granting (96) Motion for Certian Counsel to Appear at the 5/10/2017 Status Conference by telephone in case 3:15−cv−30024−MGM. Telephone call in information e−mailed to counsel this date. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Finn, Mary) (Entered: 05/08/2017)
98 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Scheduling Conference held on 5/10/2017. Attorneys Present: Thomas P. Murphy, Caroline Jackson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, Jennifer Luz, William M. Jay (by telephone), Andrew Kim (by telephone), Janet Grumer (by telephone) and Namita Gupta (by telephone). Colloquy re: status of the case. Further deadlines were established. A status report, informing the selection of the private mediator, shall be filed by no later than 5/19/2017; a status report, notifying the timetable of the mediation schedule, shall be filed by no later than 6/2/2017; and a Status Conference is set for 8/2/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. No further deadlines were set. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 05/15/2017)
99 STATUS REPORT (JOINT) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 05/19/2017)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 20 of 30

06/02/2017 07/26/2017 07/27/2017 08/02/2017
09/21/2017 09/22/2017 09/22/2017 09/25/2017
11/21/2017 11/22/2017 11/22/2017 11/27/2017

100 STATUS REPORT (Joint) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 06/02/2017)
101 Joint MOTION for Hearing by Telephone (Status Conference 8/2/17) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 07/26/2017)
102 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 101 Motion for Certain Attorney's to Appear at the 8/2/2017 Status Conference by Telephone. Telephone Conference call in information e−mailed to counsel. (Finn, Mary) (Entered: 07/27/2017)
103 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 8/2/2017. Attorneys Present: Thomas P. Murphy, Roberto M. Braceras and Jennifer B. Luz. Attorneys on the Telephone: Caroline Jackson, Timothy P. Fox, Caitlin Parton, Stanley Eichner, William M. Jay and Janet Grumer. Colloquy re: status of the cases. Plaintiffs to respond to defendants' proposal (in 15−cv−30023) by the end of August. A brief Joint Status Report (as to both cases) shall be filed by no later than 9/22/2017. A Status Conference is set for 9/25/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) Modified on 8/8/2017 to correct date. (Calderon, Melissa) (Entered: 08/08/2017)
104 Joint MOTION for Hearing by Telephone (Status Conference 9/25/17) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 09/21/2017)
105 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 104 Motion for certain counsel to appear at the 9/25/2017 Status Conference by Telephone. Telephone Conference information e−mailed to counsel this date. (Finn, Mary) (Entered: 09/22/2017)
106 STATUS REPORT (Joint) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 09/22/2017)
107 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 9/25/2017. Attorneys Present: Thomas P. Murphy, Roberto M. Braceras and Jennifer B. Luz. Attorneys by Telphone: Caroline Jackson, Timothy P. Fox and Arlene B. Mayerson. Colloquy re: status of the case. A brief Joint Status Report shall be filed by no later than 11/27/2017 at 10:00 AM. A Status Conference is set for 11/27/2017 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 09/25/2017)
108 Joint MOTION for Hearing by Telephone (Status Conference 11/27/17) by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 11/21/2017)
109 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 108 Motion for Certain Attorney's to appear at the 11/27/2017 status conference by telephone. Telephone conference information e−mailed to counsel this date. (Finn, Mary) (Entered: 11/22/2017)
110 STATUS REPORT (Joint) by Harvard University. (Braceras, Roberto) (Entered: 11/22/2017)
111 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 11/27/2017. Attorneys Present: Timothy P. Fox and Roberto M. Braceras. Attorneys by Telephone: Caroline Jackson, Arlene B.

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 21 of 30

01/29/2018 01/30/2018 01/31/2018 01/31/2018
01/31/2018 02/22/2018 02/26/2018 03/06/2018 03/06/2018 03/06/2018

Mayerson, Stanley Eichner and Janet Grumer. Colloquy re: status of the cases. A brief joint status report shall be filed by no later than 1/30/2018. A Status Conference is set for 1/31/2018 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 11/30/2017)
112 Joint MOTION for Hearing by Telephone (Status Conference 1/31/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 01/29/2018)
113 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 112 Parties Motion for Certain Attorneys' to Appear at the 1/31/2018 Status Conference by telephone. Telephone call in information e−mailed to counsel this date. (Finn, Mary) (Entered: 01/30/2018)
114 STATUS REPORT (Joint) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 01/31/2018)
115 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 1/31/2018. Attorneys Present: Thomas P. Murphy, Timothy P. Fox (by telephone), Arlene B. Mayerson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, William M. Jay (by telephone), and Janet Grumer (by telephone). Colloquy re: status of the cases. A Status Report in 15−cv−30023−MGM shall be filed by 2/22/2018. An Initial Scheduling Conference is set for 3/7/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. A Status Report in 15−cv−30024−MGM shall be filed by 3/26/2018. A Status Conference is set for 3/28/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 02/06/2018)
116 ELECTRONIC NOTICE of Hearing ISSUED: A Scheduling Conference is set for 3/7/2018 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 02/08/2018)
117 STATUS REPORT (Joint Status Report) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 02/22/2018)
118 NOTICE of Scheduling Conference ISSUED: A Scheduling Conference ia set for 3/7/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint Statement due by 3/6/2018. See attached Notice for complete details. (Calderon, Melissa) (Entered: 02/26/2018)
119 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: Due to anticipated winter weather and after conferring with counsel, the Scheduling Conference is reset to 3/9/2018 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint Statement due by 3/8/2018. (Calderon, Melissa) (Entered: 03/06/2018)
120 MOTION for Leave to Appear Pro Hac Vice for admission of Amy Farr Robertson Filing fee: $ 100, receipt number 0101−7038014 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Affidavit signature page)(Murphy, Thomas) (Entered: 03/06/2018)
121 Joint MOTION for Hearing by Telephone (Scheduling Conference 3/9/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) Modified on 3/7/2018 to change the relief type to MOTION for Miscellaneous Relief. (Finn, Mary). (Entered: 03/06/2018)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 22 of 30

03/06/2018
03/07/2018 03/08/2018 03/09/2018 03/09/2018
03/14/2018 03/15/2018
04/05/2018 04/17/2018 04/18/2018

122 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting (120) Motion for Leave to Appear Pro Hac Vice. Added Amy Farr Robertson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. in case 3:15−cv−30023−MGM; granting (117) Motion for Leave to Appear Pro Hac Vice. Added Amy Farr Robertson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. in case 3:15−cv−30024−MGM Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Finn, Mary) (Entered: 03/06/2018)
123 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 121 Motion for Certain Attorneys' to Appear at the 3/9/2018 Scheduling Conference by Telephone. Telephone call in information e−mailed to counsel this date. (Finn, Mary) (Entered: 03/07/2018)
124 JOINT SUBMISSION pursuant to Local Rule 16.1 and Federal Rule of Civil Procedure 26(f) by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 03/08/2018)
125 CONSENT by all parties to Jurisdiction by US Magistrate Judge by Harvard University, President and Fellows of Harvard College.. (Braceras, Roberto) (Entered: 03/09/2018)
127 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Scheduling Conference held on 3/9/2018. Attorneys Present: Timothy P. Fox and Roberto M. Braceras. Attorneys by Telephone: Caroline Jackson, Stanley Eichner, Amy F. Robertson, Caitlin Parton, William M. Jay and Janet Grumer. Colloquy re: status of the case. A schedule was established. Scheduling order to issue. If the parties would like to participate in court−sponsored mediation, a joint notice requesting an ADR conference should be filed. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 03/15/2018)
126 ELECTRONIC NOTICE of Reassignment. Magistrate Judge Katherine A. Robertson added. (adminn, ) (Entered: 03/14/2018)
128 Magistrate Judge Katherine A. Robertson: ORDER entered. SCHEDULING ORDER: Motions for Leave to Amend the Pleadings to add claims, defenses, or parties due by 5/8/2018. Motions for Judgment on the Pleadings due by 5/18/2018. Oppositions to any Motion for Leave to Amend the Pleadings due by 6/8/2018. Oppositions to Motions for Judgment on the Pleadings due by 6/18/2018. Replies to Motion for Leave to Amend the Pleadings due by 6/22/2018. Replies to Motions for Judgment on the Pleadings due by 7/2/2018. Non−Expert Discovery to be completed by 1/31/2019. Expert Depositions to be completed by 5/17/2019. Motion for Class Certification due by 5/31/2019. Oppositions to Motion for Class Certification due by 7/1/2019. Reply to Motion for Class Certification due by 7/15/2019. (Finn, Mary) (Entered: 03/15/2018)
129 Disclosure pursuant to Rule 26 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 04/05/2018)
130 Joint MOTION to Amend 128 Scheduling Order,,,, Set Scheduling Order Deadlines,,,, Set Motion and R&R Deadlines/Hearings,,, by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Robertson, Amy) (Additional attachment(s) added on 4/18/2018: # 1 Correct Main Document, # 2 A) (Finn, Mary). Modified on 4/18/2018 to separate Exhibit A from the main document and to add it as an attachment. (Finn, Mary). (Entered: 04/17/2018)
131 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties 130 Joint Motion to Amend the Scheduling Order. A Revised Scheduling Order will issue. (Finn, Mary) (Entered: 04/18/2018)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 23 of 30

05/04/2018 05/21/2018
05/21/2018
05/22/2018
05/22/2018
06/20/2018 06/21/2018 06/21/2018 06/29/2018 06/29/2018 07/23/2018 07/24/2018

132 Magistrate Judge Katherine A. Robertson: ORDER entered. REVISED SCHEDULING ORDER ISSUED: Motions for Judgment on the Pleadings due by 6/22/2018; Oppositions due by 7/30/2018; and Replies, if any, due by 8/20/2018. See attached order for complete details. (Calderon, Melissa) (Entered: 05/04/2018)
133 MOTION for Leave to Appear Pro Hac Vice for admission of Joseph M. Sellers Filing fee: $ 100, receipt number 0101−7147959 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Appendix)(Murphy, Thomas) (Main Document 133 replaced on 5/21/2018) (Finn, Mary). (Additional attachment(s) added on 5/21/2018: # 2 Exhibit A − Certificate of Joseph M. Sellers) (Finn, Mary). Modified on 5/21/2018 to separate Exhibit A from the Main Document and to add it as an attachment. (Finn, Mary). (Entered: 05/21/2018)
134 MOTION for Leave to Appear Pro Hac Vice for admission of Shaylyn C. Cochran Filing fee: $ 100, receipt number 0101−7148007 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Main Document 134 replaced on 5/21/2018) (Finn, Mary). (Additional attachment(s) added on 5/21/2018: # 1 Exhibit A − Certificate of Shaylyn C. Cochran) (Finn, Mary). Modified on 5/21/2018 to separate Exhibit A from the main document and to add it as an attachment. (Finn, Mary). (Entered: 05/21/2018)
135 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 133 Motion for Leave to Appear Pro Hac Vice Added Joseph M. Sellers. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 05/22/2018)
136 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 134 Motion for Leave to Appear Pro Hac Vice Added Shaylyn Cochran. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 05/22/2018)
137 Assented to MOTION for Extension of Time to File Motions for Judgment on the Pleadings by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 06/20/2018)
138 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 137 the Defendant's Assented to Motion to Alter the Briefing Schedule set forth in the existing Scheduling Order to adopt the parties' Proposed Revised Deadlines. Motions for Judgment on the Pleadings due 6/29/2018. Oppositions due 8/6/2018. Replies due 8/27/2018. (Finn, Mary) (Entered: 06/21/2018)
139 Set/Reset Deadlines: Motions for Judgment on the Pleadings due by 6/29/2018. Responses due by 8/6/2018. Replies due by 8/27/2018. (Finn, Mary) (Entered: 06/21/2018)
140 MOTION for Judgment on the Pleadings by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 06/29/2018)
141 MEMORANDUM in Support re 140 MOTION for Judgment on the Pleadings filed by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 06/29/2018)
142 Assented to MOTION for Extension of Time to File Response/Reply to August 29, 2018 to File Opposition to Motion for Judgment on the Pleadings by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) Modified on 7/24/2018 to change the relief type to MOTOION for Extension of Time to file Response/Reply (Finn, Mary). (Entered: 07/23/2018)
143 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' Assented to 142 Motion for Extension of Time to File Response/Reply re 140 MOTION for Judgment on the Pleadings . Plaintiffs' response due by 8/29/2018. Defendants' Reply due and extended to 9/28/2018. (Finn, Mary) (Entered:

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 24 of 30

07/25/2018 08/27/2018 08/28/2018
08/29/2018 09/10/2018 09/11/2018 09/26/2018 09/27/2018
09/28/2018 10/30/2018
10/30/2018 11/02/2018

07/24/2018)
144 STIPULATION re Protective Order by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Sellers, Joseph) (Entered: 07/25/2018)
145 Assented to MOTION for Leave to File Excess Pages by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Robertson, Amy) (Entered: 08/27/2018)
146 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 145 Motion for Leave to File Excess Pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 08/28/2018)
147 Opposition re 140 MOTION for Judgment on the Pleadings filed by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Amy F. Robertson Declaration and Exhibit)(Robertson, Amy) (Entered: 08/29/2018)
148 ELECTRONIC NOTICE Setting Hearing on Defendants' 140 MOTION for Judgment on the Pleadings ISSUED: After conferring with counsel, a Motion Hearing is set for 11/8/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 09/10/2018)
149 ELECTRONIC NOTICE Resetting Hearing on Defendants' 140 MOTION for Judgment on the Pleadings ISSUED: After conferring with counsel, the Motion Hearing is reset to 10/30/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 09/11/2018)
150 MOTION for Leave to File Excess Pages of a Reply Memorandum by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 09/26/2018)
151 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 150 Motion for Leave to File a Reply Memorandum in Excess of Pages re: 140 Motion for Judgment on the Pleadings. The Memorandum is not to exceed 15 pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 09/27/2018)
152 REPLY to Response to 140 MOTION for Judgment on the Pleadings filed by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 09/28/2018)
154 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing held on 10/30/2018 re Defendants' MOTION for Judgment on the Pleadings (140 in 3:15−cv−30023−KAR) and Defendants' MOTION for Judgment on the Pleadings (148 in 3:15−cv−30024−KAR). Attorneys Present: Joseph M. Sellers, Arlene B. Mayerson, Thomas P. Murphy, Andrew Kim, Roberto M. Braceras and William M. Jay. Arguments heard. This matter is taken under advisement. Order to issue. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.) (ASL Interpreter: Jane Hecker−Cain & CART Reporter: Jonathan Young. Associated Cases: 3:15−cv−30023−KAR & 3:15−cv−30024−KAR. (Calderon, Melissa) (Entered: 11/03/2018)
156 Motions Taken Under Advisement: Defendants' MOTION for Judgment on the Pleadings (140 in 3:15−cv−30023−KAR) and Defendants' MOTION for Judgment on the Pleadings (148 in 3:15−cv−30024−KAR). Associated Cases: 3:15−cv−30023−KAR, 3:15−cv−30024−KAR (Calderon, Melissa) (Entered: 11/07/2018)
153 MOTION to Consolidate Cases by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Robertson, Amy) (Entered: 11/02/2018)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 25 of 30

11/05/2018 11/15/2018
11/15/2018
11/16/2018 11/19/2018 11/20/2018
11/20/2018 11/27/2018 12/19/2018
12/20/2018 12/21/2018 12/26/2018 01/10/2019

155 Magistrate Judge Katherine A. Robertson: ORDER entered. STIPULATED PROTECTIVE ORDER. See attached order for complete details. (Calderon, Melissa) (Entered: 11/05/2018)
157 Transcript of Motion Hearing held on October 30, 2018, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kathleen Silva at kathysilva@verizon.net Redaction Request due 12/6/2018. Redacted Transcript Deadline set for 12/17/2018. Release of Transcript Restriction set for 2/13/2019. Associated Cases: 3:15−cv−30024−KAR, 3:15−cv−30023−KAR(Scalfani, Deborah) (Entered: 11/15/2018)
158 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm Associated Cases: 3:15−cv−30024−KAR, 3:15−cv−30023−KAR(Scalfani, Deborah) (Entered: 11/15/2018)
159 Opposition re 153 MOTION to Consolidate Cases by Harvard and MIT filed by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 11/16/2018)
160 Assented to MOTION for Leave to File Reply in Support of Motion for Consolidation by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Sellers, Joseph) (Entered: 11/19/2018)
161 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiff's Assented to 160 Motion for Leave to File a Reply Memorandum in support of their 153 Motion to Consolidate. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 11/20/2018)
162 REPLY to Response to 153 MOTION to Consolidate Cases filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit)(Sellers, Joseph) (Entered: 11/20/2018)
163 MOTION for Leave to Appear Pro Hac Vice for admission of Arlene Mayerson; Namita Gupta Filing fee: $ 200, receipt number 0101−7428312 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Certificate of Arlene B. Mayerson, # 2 Exhibit Certificate of Namita Gupta)(Murphy, Thomas) (Entered: 11/27/2018)
164 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 163 Motion for Leave to Appear Pro Hac Vice Added Arlene B. Mayerson and Namita Gupta.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) Modified on 12/19/2018 Correct spelling of Counsel (Figueroa, Tamara). (Entered: 12/19/2018)
165 Joint MOTION to Amend Scheduling Order by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 12/20/2018)
166 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 165 the parties' Joint Motion to Amend Scheduling Order. A revised scheduling order will issue. (Robertson, Katherine) (Entered: 12/21/2018)
167 Set/Reset Deadlines: Non−Expert Discovery to be completed by 5/31/2019. Motion for Class Certification due by 9/30/2019. (Finn, Mary) (Entered: 12/26/2018)
168 Magistrate Judge Katherine A. Robertson: ORDER entered. REVISED SCHEDULING ORDER: (Figueroa, Tamara) (Entered: 01/11/2019)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 26 of 30

02/01/2019 02/01/2019 02/07/2019
02/13/2019 03/28/2019
04/15/2019 04/15/2019 05/10/2019 05/10/2019 06/03/2019 06/07/2019 06/10/2019
06/10/2019 07/29/2019 07/30/2019

169 ELECTRONIC NOTICE of Hearing ISSUED: A Telephone Conference is set for 2/7/2019 at 9:30 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. The clerk shall inform counsel of the procedures to follow in order to participate by telephone. (Calderon, Melissa) (Entered: 02/01/2019)
170 Remark: Telephone conference information sent to counsel by email. (Calderon, Melissa) (Entered: 02/01/2019)
172 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Telephone Conference held on 2/7/2019. Attorneys Present: Amy F. Robertson, Thomas P. Murphy, Janet Grumer, Roberto M. Braceras and William M. Jay. Counsel heard on discovery letters filed with the Court. Harvard's response to interrogatories shall be deferred until 4/29/2019, for the reasons stated in open court. Non−expert discovery shall be completed by 5/31/2019. The Court did not rule on Plaintiffs' request for an additional ten (10) interrogatories, for the reasons stated. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 02/19/2019)
171 NOTICE of Appearance by Timothy Kistner on behalf of Harvard University, President and Fellows of Harvard College (Kistner, Timothy) (Entered: 02/13/2019)
173 Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Defendant's 140 MOTION for Judgment on the Pleadings. For the foregoing reasons, the court DENIES in part and GRANTS in part Harvard's Motion. See attached Memo & Order for complete details. (Calderon, Melissa) (Entered: 03/28/2019)
174 MOTION to Withdraw as Attorney by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Jackson, Caroline) (Entered: 04/15/2019)
175 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 174 Motion to Withdraw as Attorney. Attorney Caroline Jackson terminated as counsel for the Plaintiffs'. (Finn, Mary) (Entered: 04/15/2019)
176 Joint MOTION to Stay Proceedings by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 05/10/2019)
177 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 176 Motion to Stay the Case until 5/31/2019. (Finn, Mary) (Entered: 05/10/2019)
178 Set/Reset Deadlines: Parties' Joint Status Report due by close of business on 6/7/2019. (Finn, Mary) (Entered: 06/03/2019)
179 Joint MOTION to Stay re 178 Set/Reset Deadlines by C. Wayne Dore, Lee Nettles, Christy Smith.(Sellers, Joseph) (Entered: 06/07/2019)
180 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 179 Motion to Stay proceedings through 7/31/2019, with a Joint Status Report concerning the negotiation to be filed by close of business on 7/29/2019. The Parties' should not anticipate any further extensions of the Stay. (Finn, Mary) (Entered: 06/10/2019)
181 Set/Reset Deadlines: Parties' Status Report concerning the status of negotiation due by 7/29/2019. (Finn, Mary) (Entered: 06/10/2019)
182 STATUS REPORT (Joint) by Harvard University, President and Fellows of Harvard College. (Braceras, Roberto) (Entered: 07/29/2019)
183 Magistrate Judge Katherine A. Robertson: ELECTRONIC ENDORSEMENT re 182 Status Report filed by President and Fellows of Harvard College, Harvard University. The Stay of the Case is extended through 9/30/2019 for the purposes of Further Settlement Negotiations. A Status Conference will be held on 9/30/2019 at 11:00 A.M. (Finn, Mary) (Entered: 07/30/2019)

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 27 of 30

07/30/2019 08/23/2019 08/23/2019 08/23/2019 08/23/2019 08/27/2019 08/28/2019
10/02/2019 10/24/2019
11/08/2019
11/26/2019 11/26/2019 11/26/2019

184 Set/Reset Hearings: Status Conference set for 9/30/2019 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 07/30/2019)
185 Joint MOTION for Order Referring Case to Mediation by Harvard University, President and Fellows of Harvard College.(Braceras, Roberto) (Entered: 08/23/2019)
186 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties Joint 185 Motion to Refer the Case to Magistrate Dein for Mediation and to Extend the Stay of the Case. The Case is STAYED until 11/29/2019. The Status Conference is reset to 12/5/2019 at 11:00 A.M. (Finn, Mary) (Entered: 08/23/2019)
187 Set/Reset Hearings: Case is STAYED through 11/29/2019. Status Conference is reset to 12/5/2019 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 08/23/2019)
188 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered. ORDER REFERRING CASE to Alternative Dispute Resolution to Magistrate Judge Judith Dein.Associated Cases: 3:15−cv−30023−KAR, 3:15−cv−30024−KAR(Finn, Mary) (Entered: 08/23/2019)
189 Notice of assignment to ADR Provider. Judge Judith G. Dein Appointed(Belpedio, Lisa) (Entered: 08/27/2019)
190 ELECTRONIC NOTICE OF AND ORDER REGARDING ADR CONFERENCE: By agreement of counsel, mediation before Magistrate Judge Dein set for Thursday, October 24, 2019, at 10:00AM in Courtroom #15 on the 5th Floor in BOSTON. Counsel are directed to be present with their clients or representatives thereof with full settlement authority. No later than three business days before the conference, each party shall submit (by mail or hand delivery addressed to Judge Dein, or by email to Jolyne_Dambrosio@mad.uscourts.gov) a brief memorandum marked "Confidential − Not for Docketing" addressing the party's position on the merits of the case and on settlement. If you use a standard form settlement agreement, please bring a copy with you. If you believe the case is not ripe for mediation at this time, please notify opposing counsel and the court as soon as possible. (Dambrosio, Jolyne) (Entered: 08/28/2019)
191 NOTICE of Appearance by Tatum A. Pritchard on behalf of C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith (Pritchard, Tatum) (Entered: 10/02/2019)
193 INTERIM ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: On October 24, 2019, I conducted a mediation in this case. All parties were represented by counsel, and were present in person, by telephone or by authorized corporate officer. Progress was made, and the mediation will continue on Thursday, November 7, 2019, at 10:00AM in Courtroom #5 on the fifth floor. (Dambrosio, Jolyne) (Entered: 10/24/2019)
195 FINAL ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: On October 24 and November 7, 2019, I conducted a mediation in this case. All parties were represented by counsel, and were present in person, by telephone or by authorized corporate officer. The case was settled. No later than November 27, 2019, the plaintiffs will move for an order seeking preliminary approval of the Consent Decree and approval of a Joint Notice Plan pursuant to Fed. R. Civ. P. 23. (Dambrosio, Jolyne) (Entered: 11/08/2019)
196 MOTION for Leave to Appear Pro Hac Vice for admission of Howard Rosenblum Filing fee: $ 100, receipt number 0101−7988528 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 11/26/2019)
197 Joint MOTION for Hearing by Telephone by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 11/26/2019)
198 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' 196 Motion for Leave to Appear Pro Hac Vice. Added Howard Rosenblum. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 28 of 30

11/26/2019 11/27/2019 11/27/2019
12/05/2019

to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 11/26/2019)
199 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the parties' Joint 197 Motion for Certain Counsel to Appear at the 12/5/2019 Status Conference by Telephone. Telephone Conference call in Information e−mailed to counsel this date. (Finn, Mary) (Entered: 11/26/2019)
200 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Sellers, Joseph) (Entered: 11/27/2019)
201 MEMORANDUM in Support re 200 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sellers, Joseph) (Entered: 11/27/2019)
205 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference and Motion Hearing held on 12/5/2019 re Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement (in 3:15−cv−30023−KAR). Attorneys Present: Thomas P. Murphy and Roberto M. Braceras. Attorneys Present (by telephone): Amy F. Robertson, Joseph M. Sellers, Shaylyn Cochran, Tatum A. Pritchard and Janet Grumer. Colloquy re: status of 15−cv−30024−KAR. The parties are very close to finding a resolution and asked for 45 days. The parties were heard on the pending motion in 15−cv−30023−KAR. Memorandum and Order issued. (See Dkt. No. 202 ). The Court set the following deadlines:

&nbsp a. Plaintiffs will issue the Notice to the Class by December 16, 2019;

&nbsp b. The deadline to submit Objections to the Settlement in accordance with the Instructions in the Notice is February 10, 2020;

&nbsp c. Responses to Objections will be submitted by February 17, 2020; and

&nbsp d. A Fairness Hearing is set for 2/25/2020 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson.

12/09/2019

(Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−KAR & 3:15−cv−30024−KAR. (Rivera, Melissa) (Entered: 12/12/2019)
202 Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered re: Plaintiffs' Motion to Certify Class − 200 . For the reasons set forth, the Court GRANTS the Plaintiffs' Motion to Certify the Class − 200 . 1. The following class is certified for settlement purposes:All persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard. 2. The Court Appoints named Plaintiffs, C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives. 3. The Court Appoints the following lawyers as Class Counsel: Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy, Tatum A. Pritchard, and Caitlin Parton of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Namita Gupta of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 29 of 30

12/09/2019 12/11/2019 01/15/2020 01/23/2020 01/23/2020
01/31/2020
02/17/2020 02/19/2020 02/20/2020 02/21/2020 02/21/2020 02/25/2020

4. The Proposed Consent Decree is preliminarily approved. 5. The Proposed Notice and the Jointly Proposed Plan for Dissemination of the Proposed Notice is approved. 6. The Court sets the following deadlines: a. Plaintiffs will issue the Notice to the Class by December 16, 2019; b. The deadline to submit Objections to the Settlement in accordance with the Instructions in the Notice is February 10; 2020;c. Responses to Objections will be submitted by February 17, 2020; and d. A Fairness Hearing will be held on February 25, 2020 at 11:00 a.m. It is so ordered. (Finn, Mary) (Entered: 12/09/2019)
203 Set/Reset Hearings: A Fairness Hearing is set for 2/25/2020 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 12/09/2019)
204 NOTICE of Change of Address or Firm Name by Amy F. Robertson (Robertson, Amy) (Entered: 12/11/2019)
206 NOTICE of Withdrawal of Appearance by Namita Gupta (Gupta, Namita) (Entered: 01/15/2020)
207 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Carly A. Myers Filing fee: $ 100, receipt number 0101−8067905 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 01/23/2020)
208 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' 207 Motion for Leave to Appear Pro Hac Vice. Added Carly A. Myers. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 01/23/2020)
209 MOTION for Attorney Fees and Costs by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Declaration of Arlene Mayerson, # 2 Declaration of Bill Lann Lee, # 3 Declaration of Howard Rosenblum, # 4 Declaration of Joseph Sellers, # 5 Declaration of Thomas Murphy, # 6 Declaration of Timothy Fox)(Robertson, Amy) (Entered: 01/31/2020)
210 Assented to MOTION for final approval of class action settlement and response to objections by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit)(Sellers, Joseph) (Entered: 02/17/2020)
211 MOTION to Withdraw as Attorney by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Parton, Caitlin) (Entered: 02/19/2020)
212 Joint MOTION for Hearing by Telephone (Fairness Hearing 2/25/20) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 02/20/2020)
213 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' 212 Motion for certain counsel to appear at the 2/25/2020 Fairness Hearing by Telephone. Telephone Conference Call In Information e−mailed to counsel this date. (Finn, Mary) (Entered: 02/21/2020)
214 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' 211 Motion for Attorney Caitlin H. Parton to Withdraw as Attorney. Attorney Caitlin H. Parton terminated as counsel for the Plaintiffs. (Finn, Mary) (Entered: 02/21/2020)
215 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Fairness Hearing held on 2/25/2020. Present (in the courtroom): Atty Thomas P. Murphy, Plaintiff Lee Nettles and Atty Roberto M. Braceras. Attorneys Present (by telephone): Amy F. Robertson, Carly A. Myers, Howard Rosenblum, Joseph M. Sellers, Shaylyn Cochran, Tatum A. Pritchard, Janet Grumer and William M. Jay. Colloquy re: status of the case. Objections to the fairness hearing were discussed. No substantive objections were made. No one was present at the hearing. Consent decreed approved and will be entered as final judgment in the case. The unopposed motion for attorneys fees was allowed, for the reasons stated in open court.

Case: 3:15-cv-30023 As of: 05/27/2020 01:03 PM EDT 30 of 30

02/26/2020 02/26/2020 02/26/2020
02/26/2020

Order to issue. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (American Sign Language Interpreter: LeWana Clark.) (Rivera, Melissa) (Entered: 02/25/2020)
216 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Plaintiff's Response to Objections and 210 MOTION for Final Approval of Class Action Settlement, for the reasons stated in open court. (Rivera, Melissa) (Entered: 02/26/2020)
217 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered finding as moot 153 Motion to Consolidate Cases, in light of the fact that the case was stayed for a period of time and has now settled. (Finn, Mary) (Entered: 02/26/2020)
218 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered GRANTING 209 Plaintiffs' Unopposed Motion for Award of Fees and Costs in the amount of $1,575,000. The petition for fees and costs is for an amount that was negotiated with the assistance of a Magistrate Judge of this court. An award in this amount is not opposed by the defendant. The court carefully reviewed the plaintiffs' fee submission and supporting declarations and finds that an award in this amount is fair and reasonable. The plaintiffs' motion for fees and costs is granted for all of the reasons stated in court at the fairness hearing, which are incorporated herein by reference. (Robertson, Katherine) (Entered: 02/26/2020)
219 Magistrate Judge Katherine A. Robertson: ORDER entered. CONSENT DECREE AND FINAL JUDGMENT in favor of National Association of the Deaf, C. Wayne Dore, Christy Smith, Diane Nettles, Lee Nettles against Harvard University, President and Fellows of Harvard College entered.(Finn, Mary) (Entered: 02/27/2020)

 
 Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, on behalf of its members, C. WAYNE DORE, CHRISTY SMITH, LEE NETTLES, and DIANE NETTLES, on behalf of themselves and a proposed class of similarly situated persons defined below,

CIVIL ACTION NO.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

v.

HARVARD UNIVERSITY, and the PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

Defendants.

Plaintiffs, the National Association of the Deaf, on behalf of its members, and C. Wayne

Dore, Christy Smith, Lee Nettles, and Diane Nettles, on behalf of themselves and a proposed

class defined below, by and through undersigned counsel, file their Class Action Complaint for

Declaratory and Injunctive Relief and respectfully allege as follows:

INTRODUCTION

1.

Defendants Harvard University and the President and Fellows of Harvard College

(collectively “Harvard”) make available a variety of online content on websites that have

received, to date, millions of visitors. Harvard makes 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. With only a few keystrokes, anyone can access videos ranging

from one of the most popular courses in Harvard’s history, Michael Sandel’s Justice; to

archaeological and ethnographical talks on Mesoamericans; to regular podcasts such as the

Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 2 of 31

“HBR IdeaCast” by the Harvard Business Review and the Harvard Kennedy School PolicyCast;

to archives of famous poets reciting their poetry; to “self-help” lectures on such topics as

identifying your personal style of learning and novel approaches to self-improvement; to

Massive Open Online Courses (“MOOCs”) on topics such as China..

2.

While Harvard claims that its online content – which constitutes important

services, privileges and advantages that it provides to the general public – is 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,”1

Harvard has largely denied access to this content to the approximately 48 million – nearly one

out of five – Americans who are deaf or hard of hearing. Many of these individuals require captioning to meaningfully access the audio component of online audiovisual and audio content.2

Much of Harvard’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. Just as

buildings without ramps bar people who use wheelchairs, online content without captions

excludes individuals who are deaf or hard of hearing.

1

Harvard University, Online Learning, http://online-learning.harvard.edu/about

(accessed February 9, 2015).

2

See, e.g., Resolution Letter in Case No. 15-13-6001 from U.S. Dep’t of Educ.,

Office for Civil Rights, Region XV, to Santa J. Ono, President, at 9-10 (Dec. 18, 2014),

http://www2.ed.gov/documents/press-releases/university-cincinnati-letter.pdf (“Captioning for

the audio portion of a video is important, as individuals who are deaf or hard of hearing may not

be able to hear the auditory content. Synchronized captioning is also necessary so that a person

reading captions can watch the speakers on a video and associate relevant body language and

actions with the speech.”); World Wide Web Consortium (W3C)’s Web Content Accessibility

Guidelines (“WCAG”) 2.0, Understanding Success Criterion 1.2.2,

http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-captions.html

(documenting that captions enable people who are deaf or hard of hearing to watch media).

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 3 of 31

3.

Harvard is fully aware that captioning is necessary to make online content

accessible to deaf and hard of hearing people. Indeed, Harvard, through its Provost’s Office, has

recognized that “captioning . . . can help reduce barriers to accessing information for individuals with disabilities.”3

4.

Plaintiffs the National Association of the Deaf (“NAD”), on behalf of its

members, and C. Wayne Dore, Christy Smith, Lee Nettles, and Diane Nettles, all on behalf of

themselves and a proposed class defined below, bring this civil rights action against Harvard to

enforce the requirement of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) that an

educational institution receiving federal financial assistance – such as the millions of dollars in

federal financial assistance that Harvard receives each year – must not deny persons with

disabilities the benefits of its programs and activities, an obligation that applies to “all of the

operations of . . . a college, university, or other postsecondary institution . . . .” 29 U.S.C.

§ 794(b)(2)(A).

5.

Plaintiffs also seek to enforce Title III of the Americans with Disabilities Act

(“Title III”), which requires, among other things, that a public accommodation: (1) not deny

persons with disabilities the benefits of its services, facilities, privileges and advantages; (2) not

provide such persons with benefits that are unequal to those provided to nondisabled persons; (3)

provide auxiliary aids and services – including captioning – where necessary to ensure effective

communication with individuals with a disability, and to ensure that such persons are not

excluded, denied services, segregated or otherwise treated differently than other individuals; and

(4) utilize administrative methods, practices and policies that provide persons with disabilities

3

Harvard University, Guidelines for Using Social Media,

http://provost.harvard.edu/files/provost/files/social_media_guidelines_vers_2_0_eff_081814.pdf

(accessed February 9, 2015).

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 4 of 31

equal access to its online content. Under Title III, places of accommodation include an

“undergraduate, or postgraduate private school, or other place of education.” 42 U.S.C. §

12181(7)(J).

6.

Because Harvard receives federal financial assistance and is a place of public

accommodation, it is subject to Section 504 and Title III.

7.

By not providing captioning, Harvard deprives 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. As the Department of Justice has stated,

“[b]eing unable to access websites puts individuals at a great disadvantage in today’s society, which is driven by a dynamic electronic marketplace and unprecedented access to information.”4

8.

Despite requests by the NAD to Harvard to ensure that its online content has

timely, accurate captioning, Harvard has done so only with regard to a fraction of such content,

and even then inadequately.

9.

Harvard’s denial of much of its publicly available online content to deaf and hard

of hearing persons violates Section 504 and Title III. Remedying these violations is critical to

these statutes’ goal of ensuring that people with disabilities have the same access that others take

for granted.

10. 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.

4

U.S. Dep’t of Justice, Statement of Eve L. Hill Before the Senate Comm. on

Health, Educ., Labor & Pensions, at 3 (May 14, 2013), available at

http://www.justice.gov/iso/opa/ola/witness/05-14-13-crt-hill-testimony-re-the-americans-with-

disabilities-act-and-entertain.201372314.pdf.

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 5 of 31

JURISDICTION AND VENUE

11. The claims alleged arise under Section 504 and Title III such that the jurisdiction

of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction

over Plaintiffs’ claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and

2202 and Rule 65 of the Federal Rules of Civil Procedure.

12. Venue over Plaintiffs’ claims is proper in the District of Massachusetts because

Harvard resides in the District of Massachusetts within the meaning of 28 U.S.C. § 1391, and

because the events, acts, and omissions giving rise to Plaintiffs’ claims occurred in the District of

Massachusetts.

13. Assignment to the Western Division is appropriate pursuant to Rule 40.1(D) of

the Local Rules of the United States District Court for the District of Massachusetts.

PARTIES

14. Plaintiff the NAD is the nation’s premier civil rights organization of, by, and for

deaf and hard of hearing individuals. The NAD is organized as a non-profit corporation under

the laws of the State of Maryland and has its national headquarters in Silver Spring, Maryland.

The NAD’s membership includes individuals and associations from all fifty states and

Washington, D.C. The NAD is also the United States member of the World Federation of the

Deaf, which comprises more than 120 national associations of deaf people.

15.

The NAD’s mission is to preserve, protect and promote the civil, human and

linguistic rights of deaf and hard of hearing people in the United States of America. This

mission includes ensuring that important tools of daily life – such as websites conveying useful

and educational information to the general public – are accessible to deaf and hard of hearing

people.

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16. The NAD furthers this mission in a variety of ways. For example, the NAD provides guidance about effective captioning on its website and administers the Described and Captioned Media Program (“DCMP”) through a cooperative agreement with the U.S. Department of Education. The DCMP promotes equal access to communication and learning through described and captioned educational media. The DCMP provides services designed to support and improve the academic achievement of students who are blind, visually impaired, deaf, hard of hearing, or deaf-blind. The DCMP has a library of more than 4,000 titles of described and captioned educational media available for loan to teachers, parents, and students who are deaf, blind, hard of hearing, visually impaired, or deaf-blind.
17. Additionally, the NAD works for passage of legislation guaranteeing equal access and effective communication for individuals who are deaf and hard of hearing. For example, the NAD has been instrumental in the passage of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), P.L. No. 111-260.
18. The NAD also devotes resources to educating its members and members of the public regarding their right to access educational programs by publishing position papers on its website.
19. Further, the NAD has strongly advocated for access to online video content through captioning of audio and audiovisual material in all distribution methods, including internet streaming and downloading. The NAD filed suit against Netflix, alleging that the company’s failure to provide closed captioning on its streaming video content violated the ADA, which resulted in a consent decree requiring Netflix to provide captions on 100% of its on-demand streaming content by September 30, 2014. Nat’l Ass’n of the Deaf v. Netflix, Inc., No. 11-cv-30168-MAP (D. Mass. Oct. 11, 2012) (Dkt. No. 88). Similarly, in June 2013, NAD
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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 7 of 31
announced that it was working with Apple on captioning of Apple’s iTunes library of television and movie offerings to ensure that every title in the iTunes library will contain closed captioning or subtitles by June 2015. More recently, the NAD reached an agreement with VUDU, Inc., for VUDU to caption 100% of its online content by January 16, 2015, and all newly acquired content thereafter.
20. Plaintiff C. Wayne Dore is a resident of Amherst, Massachusetts. Mr. Dore is substantially limited in the major life activity of hearing, and he requires materials to be in an accessible format – including captioning – to be able to participate in and receive the benefit of Harvard’s online content.
21. Plaintiff Christy Smith is a resident of Colorado and is substantially limited in the major life activity of hearing. Ms. Smith requires materials to be in an accessible format – including captioning – to be able to participate in and receive the benefit of Harvard’s online content.
22. Plaintiff Lee Nettles is a member of NAD and is a resident of Westfield, Massachusetts. Mr. Nettles is substantially limited in the major life activity of hearing, and he requires materials to be in an accessible format – including captioning – to be able to participate in and receive the benefit of Harvard’s online content.
23. Plaintiff Diane Nettles is a member of NAD and is a resident of Westfield, Massachusetts. Ms. Nettles is substantially limited in the major life activity of hearing, and she requires materials to be in an accessible format – including captioning – to be able to participate in and receive the benefit of Harvard’s online content.
24. Defendant Harvard University is the oldest institution of higher education in the United States. Defendant Harvard University is a corporation incorporated and with a principal
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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 8 of 31

place of business in Massachusetts.

25. Defendant President and Fellows of Harvard College is a governing board of

Harvard University.

26. On information and belief, Harvard has received at all times relevant hereto, and

continues to receive, significant federal financial assistance. 29 U.S.C. § 794(a)-(b).

27. As an “undergraduate, or postgraduate private school,” Harvard is a place of

public accommodation under the ADA. 42 U.S.C. § 12181(7)(J).

FACTS APPLICABLE TO ALL CLAIMS

I. Harvard’s Online Content.

28. Harvard creates and produces online content that is made available for free to the

general public, and also controls, maintains and/or administers webpages, websites and other

Internet locations (“Harvard Platforms”) on which online content is made available to the general

public. For years now, Harvard has made available to “learners throughout the world” this

online content, which consists of courses, as well as other educational and general interest content.5 Millions of people across the globe now access the online content produced and/or

made available by Harvard.

29. Harvard Platforms include without limitation:

a. Harvard on YouTube;

b. Harvard on iTunes U;

c. Harvard on SoundCloud;

d. Harvard@Home;

5

Harvard University, Online Learning, http://online-learning.harvard.edu/about

(accessed February 9, 2015).

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 9 of 31

e. Harvard Extension School, including but not limited to the Extension

School’s Open Learning Initiative;

f. Peabody Museum of Archaeology and Ethnology;

g. Harvard Museum of Natural History;

h. Chandra X-ray Observatory podcasts;

i. Harvard’s Great Teachers;

j. The Institute of Politics John F. Kennedy Jr. Forum;

k. Harvard’s Life Sciences Outreach Program;

l. Woodberry Poetry Room; and

m. edX / HarvardX.

30. Public comments on some of Harvard’s Platforms reveal the breadth of the

audience benefitted by these videos and how enthusiastic that audience is for the opportunity to

access the content. For example, public comments on a personal improvement course on

HarvardX state, “The gradual unfolding of what lies beneath my own reactions to day-to-day life

has been nothing less than enlightening”; “Week 11 into the course, I just want to say how much

I'm enjoying et [?] getting ‘richer’ from the course . . . . And a special mention too to the great

teaching team . . . creating this opportunity and useful conversation for our benefit”; and one commenter begs to be permitted to enroll in the course after enrollment closed.6 Public

comments on one of Harvard’s most popular courses, “Justice,” state, “I wish I had the

opportunity to be his student when I was young. Would have made me a lot more thoughtful and

probably smarter.”; “A lecture for every American!”; “I wish every college student would be first

6

Reviews for GSE1.1x: Unlocking the Immunity to Change: A New Approach to

Personal Improvement, https://www.coursetalk.com/edx/gse11x-unlocking-the-immunity-to-

change-a-new-approach-to-personal-improvement-c3?#tab-reviews (accessed February 9, 2015).

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exposed to philosophy by Professor Sandel. I first took a class in philosophy from a local college where the professor spent the first half of the semester attempting to prove their [sic] was no God, and the second half yelling at students for asking questions that interrupted his convoluted lectures. Personal beliefs aside, I didn't learn anything about the actual subject of philosophy. I was totally turned off by the subject until I watched the first lecture by Mr. Sandel, and I was hooked. Definitely worth your time, I'm currently in a political philosophy class, and I've found that some of these lectures have given me great insight into other courses. Probably the best lecture series on iTunes at the moment.”; “Studying engineering, it’s still interesting for me to watch this, to understand how our societies are built.”; “It should be mandatory and essential viewing for everyone, brilliant, if only a president could think and act this way.”7 Public comments on Sheryl Sandberg’s graduation address to the Harvard Business School Class of 2012 state, “Speech from 2 yrs ago but still very inspiring.”; “watch it. Worth every minute of your time!”; “Brilliant speech! Must watch!”; and “Great speech, even it has been from 2 yrs ago, still need to keep focusing on unconventional changes.”8
31. However, much of the online content produced by Harvard, and/or made available on Harvard Platforms, has no captioning, or has captioning that is so inaccurate as to make the content inaccessible to deaf or hard of hearing individuals.
32. Harvard has frequently failed to provide accurate captioning to online content that it creates and/or produces.

7

iTunes Preview – Justice by Harvard University,

https://itunes.apple.com/us/course/justice/id566636297 (accessed February 9, 2015); additional

comments may be found through iTunes U.

8

Harvard Business School, Sheryl Sandberg Addresses the Class of 2012 (May 24,

2012), https://www.youtube.com/watch?v=2Db0_RafutM (accessed February 9, 2015).

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33. Further, on information and belief, Harvard uses administrative methods, practices, procedures and policies which result in online content that it creates and/or produces failing to have accurate captioning.
34. Also on information and belief, Harvard fails to have in place administrative methods, practices, procedures and policies that ensure that online content that it creates and/or produces has accurate captioning.
35. Harvard has also frequently failed to ensure that online content made available on Harvard Platforms has accurate captioning.
36. On information and belief, Harvard uses administrative methods, practices, procedures and policies which result in online content lacking accurate captioning being made available on Harvard Platforms (regardless of whether that content was produced or created by Harvard).
37. Harvard also on information and belief fails to have in place administrative methods, practices, procedures and policies that ensure that online content made available on Harvard Platforms has accurate captioning.
38. For example and without limitation, on information and belief, Harvard has not attempted to require that online content created by Harvard personnel or professors be accurately captioned as a condition of that content being made available on Harvard Platforms.
39. In addition, Harvard often makes uncaptioned or inaccurately captioned online content available on its Platforms without itself first adding accurate captioning.
40. A review of some examples of Harvard’s publicly available online content reveals the breadth of content available, the benefit that content confers to members of the general
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public, and that much of the benefit of that content is denied to deaf and hard of hearing persons because it does not have accurate captioning.
A. Harvard on YouTube 41. Harvard makes online content available through a number of channels on YouTube. For example, Harvard University’s YouTube channel has, as of February 2015, more than 204,000 subscribers, over 29 million views, and more than 1,900 videos.9 Harvard has at least 17 other Harvard-sponsored channels on YouTube, each with their own subscribers and additional videos that together total in the thousands, such as Harvard Business Review’s channel, which has, as of February 2015, 234 videos, more than 99,000 subscribers, and more than 6.2 million views.10 These figures, and Harvard’s reach to a global audience, are growing daily. 42. Deaf and hard of hearing persons, however, are denied the benefit of many of these videos. For example, Harvard has posted on YouTube 39 videos in a public lecture series titled “Science and Cooking,” which has more than 146,600 views—most of which are entirely uncaptioned;11 a 2013 Q&A with Bill Gates with 924,292 views that is not captioned;12 and

9

Harvard University YouTube Channel – About,

https://www.youtube.com/user/Harvard/about (accessed February 9, 2015).

10 Harvard Business Review YouTube Channel – About, https://www.youtube.com/user/HarvardBusiness/about (accessed February 9, 2015).

11 Harvard University, Science and Cooking Playlist, https://www.youtube.com/playlist?list=PL546CD09EA2399DAB (accessed February 9, 2015). See, e.g., Harvard University, Explorations of Chocolate Textures | Lecture 4 (Oct. 3, 2012), https://www.youtube.com/watch?v=Tt9g2se1LcM (accessed February 9, 2015); Harvard University, The Science of Paella | Lecture 6 (Oct. 18, 2012), https://www.youtube.com/watch?v=dp_ye3sTE_c (accessed February 9, 2015).

12 Harvard University, William H. Gates III COL ’77, LLD ’07 Q&A | The Harvard Campaign Launch (Sept. 24, 2013), https://www.youtube.com/watch?v=cBHJ-8Bch4E (accessed

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 13 of 31
Sheryl Sandberg’s graduation address to the Harvard Business School Class of 2012, which is inaccurately captioned.13
B. Harvard on iTunes U 43. Harvard offers a variety of content on iTunes U, much of which is entirely uncaptioned, such as a symposium on Julia Child to celebrate her legacy on the centenary of her birth; a series of short presentations by Harvard Medical School faculty, alumni, and leadership volunteers called “MED-EDs” that are “built to share and inspire new ideas” on such topics as sleep deficit, stem cell research, and the Affordable Care Act; uncaptioned videos in the public lecture series on “Science and Cooking,” which contains additional videos beyond those posted in this same series on YouTube; a weekly podcast called “HBR IdeaCast” by the Harvard Business Review featuring uncaptioned audio tracks on such topics as former Senator Russ Feingold speaking on campaign finance reform, “Sally Ride on Breaking Ground in Aerospace and Education,” and a career strategist discussing job hunting; and uncaptioned audio tracks of morning prayers from Harvard’s Memorial Church.14
C. Harvard on SoundCloud 44. “Harvard University’s SoundCloud channel shares audio content about life and learning that takes place here on campus and around the world.”15
February 9, 2015). 13 Harvard Business School, Sheryl Sandberg Addresses the Class of 2012 (May 24,
2012), https://www.youtube.com/watch?v=2Db0_RafutM (accessed February 9, 2015). 14 Of these examples, videos are available of all but some of the Science and
Cooking tracks and all of the HBR IdeaCast and morning prayers tracks. 15 Harvard University SoundCloud Channel, https://soundcloud.com/harvard
(accessed February 10, 2015).
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45. Harvard University has more than 355,000 followers on SoundCloud, with approximately 1,400 audio tracks and more than 40 playlists. As with YouTube, there are also a multitude of sub-channels related to Harvard, each with their own followers and tracks, including but not limited to Harvard Business Review’s IdeaCast (boasting more than 627,000 followers and more than 400 tracks), Harvard University Press, and Harvard Divinity School.16
46. Harvard University’s content on SoundCloud includes tracks that are not accompanied by transcripts, such as tracks in the series “Lectures from the Shorenstein Center,” which comprises 139 tracks totaling more than 135 hours of “[l]ectures and discussions on a wide range of topics, including coverage of race, women, media, politics, and technology;” and tracks from the Harvard Kennedy School PolicyCast, which bills itself as 86 tracks and over 20 hours of “weekly 15-20 minute discussions . . . with prominent thought leaders, researchers and decision makers.”17
D. Harvard@Home 47. “The mission of Harvard@Home is to provide the Harvard community and the broader public with opportunities for rich in-depth exploration of a wealth of topics through Web-based video programs of the highest caliber. Harvard@Home enables [users] to experience some of the exciting teaching, cutting-edge research, and noteworthy events that define and
16 HBR IdeaCast SoundCloud Channel, https://soundcloud.com/hbrideacast (accessed February 10, 2015); Harvard Press SoundCloud Channel, https://soundcloud.com/harvard-press (accessed February 10, 2015); Harvard Divinity School SoundCloud Channel, https://soundcloud.com/harvard-divinity-school (accessed February 10, 2015).
17 Harvard University, Shorenstein Center SoundCloud Playlist, https://soundcloud.com/harvard/sets/shorenstein-center/ (accessed February 10, 2015); Harvard University, Harvard Kennedy School PolicyCast SoundCloud Playlist, https://soundcloud.com/harvard/sets/policycast (accessed February 10, 2015).
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distinguish the University today—right from [their] desktop.”18 As of February 2015, Harvard@Home offered more than fifty programs, on topics from the arts to social sciences, from history to current affairs, and from literature to science and math. Harvard@Home presentations are designed to “bring [users] inside the Harvard classroom to hear current, reallife lectures or provide [them] with a front-row seat at recent University panels, Alumni College forums, and other special events. Harvard@Home is free and open to the public.” 19
48. Harvard@Home features videos such as a 2003 visit by the Dalai Lama to Harvard and a program commemorating the 50th anniversary of Brown v. Board of Education introduced by then-Dean of Harvard Law School Elena Kagan.20 None of these videos contain captions.
E. Additional Harvard Online Content 49. Harvard Extension School’s Open Learning Initiative offers free, noncredit courses open to the public via the Internet. Topics include World War Two history, Shakespeare, and Greek civilization.21 Many courses are available both in video and in audio-only tracks, but

18 Harvard@Home, About Us and Our Mission, http://athome.harvard.edu/about.html (accessed February 10, 2015).

19

Id.

20 Harvard@Home, His Holiness the Dalai Lama Visits Harvard, http://athome.harvard.edu/programs/dlv/ (accessed February 10, 2015); Harvard@Home, Brown v. Board: Looking Back, Looking Forward, http://athome.harvard.edu/programs/bvb/ (accessed February 10, 2015).

21 Harvard Extension School, World War II History: An Open Harvard Course, http://www.extension.harvard.edu/open-learning-initiative/world-war-history (accessed February 10, 2015); Harvard Extension School, Online Shakespeare Course: Shakespeare After All, http://www.extension.harvard.edu/open-learning-initiative/shakespeare-after-all-later-plays (accessed February 10, 2015); Harvard Extension School, The Hero in Ancient Greek Civilization, http://www.extension.harvard.edu/open-learning-initiative/ancient-greekcivilization (accessed February 10, 2015).

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videos include those that lack captions, and audio includes those that lack transcription.
50. Harvard’s Peabody Museum of Archaeology and Ethnology posts videos and audio tracks of lectures and talks, topics of which include the science of prediction; happiness; the anthropology of waste; the specter of the Internet and the death of writing; and various lectures on the Maya, the Aztec, and Peru.22 These include videos that are inaccurately captioned and audio tracks that are not transcribed.
51. Harvard’s Museum of Natural History sponsors dozens of public lectures each year by Harvard faculty and other scientists and naturalists, videos of which are posted online. Many of these videos lack captions, such as videos of lectures on elm tree culture in the U.S., biodiversity and the future of cities, and the history and future of New England forests.23
52. NASA’s Chandra X-ray Observatory was launched and deployed by Space Shuttle Columbia in July of 1999. Its website, hosted by Harvard, features a monthly podcast that details recent discoveries and updates of the Chandra mission in video and audio formats.24 This website offers uncaptioned videos and audio tracks without rolling transcripts, which deny the benefits of this content to deaf and hard of hearing persons.
22 Peabody Museum of Archaeology & Ethnology at Harvard University, Peabody Museum Multimedia, https://peabody.harvard.edu/node/806 (accessed February 10, 2015).
23 Harvard Museum of Natural History, Lecture Videos, http://hmnh.harvard.edu/past-lecture-videos (accessed February 10, 2015); Harvard Museum of Natural History, A Great Green Cloud: The Rise and Fall of the City of Elms, http://hmnh.harvard.edu/file/282076 (accessed February 10, 2015); Harvard Museum of Natural History, Designing the Urban Ark: Biodiversity and the Future of Cities, http://hmnh.harvard.edu/file/282116 (accessed February 10, 2015); Harvard Museum of Natural History, Challenges and Choices: The History and Future of New England Forests, http://hmnh.harvard.edu/file/284826 (accessed February 10, 2015).
24 Chandra X-ray Observatory, Podcasts, http://www.chandra.harvard.edu/resources/podcasts/ (accessed February 10, 2015).
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53. Harvard’s Great Teachers profiles Harvard faculty from a student perspective, via
classroom discussions, lectures, interviews and performances, and posts those profiles as videos online—without captions.25
54. The Institute of Politics John F. Kennedy Jr. Forum contains an archive of videos
featuring world leaders, diplomats, government officials, celebrities, and political strategists discussing issues affecting politics around the globe.26 Forum topics, with available, uncaptioned
online video, include a 1988 JFK retrospective given by his brother Senator Edward Kennedy, a
discussion of the 1992 election among presidential historians such as Doris Kearns Goodwin, a 2003 lecture on corporate social responsibility, and a 2008 60th anniversary commemoration of the Universal Declaration of Human Rights featuring Paul Farmer and Amartya Sen.27
55. Harvard’s Life Sciences Outreach Program contains numerous “scientist lecture
videos,” which are uncaptioned, such as lectures on HIV, intelligent design, and the obesity
25 Harvard Great Teachers, About This Project, http://greatteachers.harvard.edu/about-project (accessed February 10, 2015); see, e.g., Harvard Great Teachers, Lisa Randall, http://greatteachers.harvard.edu/videos/harvards-great-teacherslisa-randall (accessed February 10, 2015).
26 Harvard Institute of Politics, Past Forums, http://forum.iop.harvard.edu/pastforums/all/all/all (accessed February 10, 2015).
27 Harvard Institute of Politics, JFK: In His Own Words, http://forum.iop.harvard.edu/content/jfk-his-own-words (accessed February 10, 2015); Harvard Institute of Politics, Putting the Election in Perspective: A Conversation with Presidential Historians, http://forum.iop.harvard.edu/content/putting-election-perspective-conversationpresidential-historians (accessed February 10, 2015); Harvard Institute of Politics, The Intersection of Corporate and Social Responsibility, http://forum.iop.harvard.edu/content/intersection-corporate-and-social-responsibility (accessed February 10, 2015); Harvard Institute of Politics, Sixty Years of Human Rights: The Idea and the Reality, http://forum.iop.harvard.edu/content/sixty-years-human-rights-idea-and-reality (accessed February 10, 2015).
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epidemic.28 56. Harvard’s Woodberry Poetry Room possesses “a landmark collection of audio
recordings,” including reading and discussion of poems, available online, but untranscribed, via a Vocarium and a Listening Booth.29 Among the poets whose poetry is posted in the Listening Room are Wallace Stevens, Adrienne Rich, Ezra Pound, and Seamus Heaney. The Vocarium “offers a virtual experience of the Poetry Room’s multi-author programs, including panels, seminars, oral histories and performances.” The Vocarium’s postings include roundtables on contemporary American poetry, an event on poetry and comics, and a speaker on “The Battle over Language at Ground Zero.”
F. edX / HarvardX 57. Harvard, along with The Massachusetts Institute of Technology (“MIT”), founded the edX learning platform, a non-profit online initiative that “offers interactive online classes and MOOCs [massive open online courses] from the world’s best universities,” including Harvard.30 “Through the edX learning platform . . . anyone with an Internet connection can gain access to courses from Harvard” and other of its partner institutions.31 Via edX, Harvard and its partners

28 Life Sciences Outreach Program at Harvard University, Scientist Lecture Videos, http://outreach.mcb.harvard.edu/videos.htm (accessed February 10, 2015).

29 Woodberry Poetry Room, About, http://hcl.harvard.edu/poetryroom/about/ (accessed February 10, 2015); Woodberry Poetry Room, The Listening Booth, http://hcl.harvard.edu/poetryroom/listeningbooth/index.cfm (accessed February 10, 2015); Woodberry Poetry Room, The WPR Vocarium, http://hcl.harvard.edu/poetryroom/vocarium/ (accessed February 10, 2015).

30
2015).

edX, How It Works, https://www.edx.org/how-it-works (accessed February 10,

31 Harvard University, Frequently Asked Questions: Free Courses, http://www.harvard.edu/faqs/free-courses (accessed February 10, 2015).

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“aim to extend their collective reach to build a global community of online learners and to improve education for everyone.”32
58. Harvard publishes its edX courses on an edX platform titled HarvardX. HarvardX is “a University-wide effort to support faculty innovation in teaching and learning, [and] has engaged more than 70 faculty from across 10 schools, producing online learning experiences that have reached more than 1,000,000 students from 195 countries around the world.”33
59. HarvardX’s offerings include general interest courses, such as a course on developing your personal theory of learning, a course on Emily Dickinson’s poetry, multiple courses on China, and a course on the “immunity to change” approach to self-improvement, an approach lauded by Oprah Winfrey.34
60. Upon information and belief, HarvardX includes courses that are uncaptioned or contain inaccurate captioning. II. Harm to the Plaintiffs.
61. NAD has standing to sue as an association on behalf of its members. NAD members, including Mr. and Mrs. Nettles, would have standing to sue as individuals because they have been, and continue to be, harmed by Harvard’s discriminatory actions, as set forth herein. Moreover, as set forth above, advocating on behalf of its members on this issue is

32 Harvard University, Frequently Asked Questions: Distance Learning, http://www.harvard.edu/faqs/distance-learning (accessed February 10, 2015).

33 Harvard University, Harvard at a Glance, http://www.harvard.edu/harvard-glance (accessed February 10, 2015).

34
2015).

edX, HarvardX, https://www.edx.org/school/harvardx (accessed February 10,

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germane to the NAD’s interests of ensuring that important tools of daily life, such as websites and online educational courses, are accessible to people who are deaf or hard of hearing.
62. Because NAD seeks only declaratory and injunctive relief, individual participation by NAD members is not required.
63. Plaintiff C. Wayne Dore, motivated both by his personal interests and in his role as a tester in this case, has attempted to use Harvard’s website(s). Because of Harvard’s failure to provide accurate captioning, he was unable to understand, and thus denied the benefit of, many of the videos he tried to watch.
64. Mr. Dore has tried to access the following platforms of Harvard, but found uncaptioned or erroneously captioned content on each of them: Harvard on YouTube, Harvard on iTunes U, Harvard on SoundCloud, Harvard@Home, Harvard Extension School’s Open Learning Initiative, Harvard Museum of Natural History, Chandra X-ray Observatory, Harvard’s Great Teachers, Institute of Politics John F. Kennedy Jr. Forum, Harvard’s Life Sciences Outreach Program, and Woodberry Poetry Room.
65. In the future, Mr. Dore would like to, and intends to, attempt to access Harvard’s online content.
66. Plaintiff Christy Smith, motivated both by her personal interests and in her role as a tester in this case, has attempted to use Harvard’s website(s). Because of Harvard’s failure to provide accurate captioning, she was unable to understand, and thus denied the benefit of, many of the videos she tried to watch.
67. Ms. Smith has tried to access the following platforms of Harvard, but found uncaptioned or erroneously captioned content on each of them: Harvard on YouTube, Harvard on iTunes U, Harvard on SoundCloud, Harvard@Home, Harvard Extension School, Peabody
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Museum of Archaeology and Ethnology, Harvard Museum of Natural History, Chandra X-ray Observatory, Harvard’s Great Teachers, The Institute of Politics John F. Kennedy Jr. Forum, Harvard’s Life Sciences Outreach Program, and Woodberry Poetry Room.
68. In the future, Ms. Smith would like to, and intends to, attempt to access Harvard’s online content.
69. Plaintiff Lee Nettles, motivated both by his personal interests and in his role as a tester in this case, has attempted to use Harvard’s website(s). Because of Harvard’s failure to provide accurate captioning, he was unable to understand, and thus denied the benefit of, many of the videos he tried to watch.
70. Mr. Nettles has tried to access the following platforms of Harvard, but found uncaptioned or erroneously captioned content on each of them: Harvard on YouTube, Harvard on iTunes U, Harvard on SoundCloud, Chandra X-ray Observatory, Harvard’s Great Teachers, Institute of Politics John F. Kennedy Jr. Forum, Harvard’s Life Sciences Outreach Program, and Woodberry Poetry Room.
71. In the future, Mr. Nettles would like to, and intends to, attempt to access Harvard’s online content.
72. Plaintiff Diane Nettles, motivated both by her personal interests and in her role as a tester in this case, has attempted to use Harvard’s website(s). Because of Harvard’s failure to provide accurate captioning, she was unable to understand, and thus denied the benefit of, many of the videos she tried to watch.
73. Ms. Nettles has tried to access the following platforms of Harvard, but found uncaptioned or erroneously captioned content on each of them: Harvard on YouTube, Harvard on iTunes U, Harvard on SoundCloud, Chandra X-ray Observatory, Harvard’s Great Teachers,
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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 22 of 31
Institute of Politics John F. Kennedy Jr. Forum, Harvard’s Life Sciences Outreach Program, and Woodberry Poetry Room.
74. In the future, Ms. Nettles would like to, and intends to, attempt to access Harvard’s online content.
75. All Plaintiffs have been, and in the absence of an injunction will continue to be, injured by Harvard’s failure to provide timely, accurate captioning of its publicly available online content. III. Prior Notice to Harvard
76. Harvard has long known that captioning is necessary to make its online content accessible to deaf and hard of hearing persons, and that it was legally responsible to provide such captioning.
77. In 2010, the United States Department of Education Office of Civil Rights and the United States Department of Justice Civil Rights Division issued a joint “Dear Colleague Letter” (“DCL”) to university colleges and presidents, making clear that “the general requirements of Section 504 and the ADA reach equipment and technological devices when they are used by . . . places of public accommodation as part of their programs, services, activities, goods, advantages, privileges, or accommodations.”35 (The Department of Education and the Department of Justice are the two federal agencies with Section 504 and ADA enforcement responsibilities.)
35 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html.
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78. In 2011, the Department of Education issued a “FAQ” document discussing the DCL, and explaining that it reflected “long-standing law,” “key principles of Federal disability discrimination law,” and “long-standing requirements.”36
79. The Department of Education also made clear that the DCL applies to all forms of emerging technology and that “all school programs or activities—whether in a ‘brick and mortar [classroom],’ online, or other ‘virtual’ context—must be operated in a manner that complies with Federal disability discrimination laws.”37
80. Beginning in December 2013, the NAD repeatedly approached Harvard to request that Harvard ensure that its online content has timely, accurate captioning.
81. Despite Harvard’s knowledge that captioning is crucial to provide deaf and hard of hearing persons access to its online content, and despite its knowledge that regulatory agencies believe that captioning is required by law, and despite NAD’s request on behalf of its members that Harvard make its online content accessible, only a fraction of Harvard’s online content has accurate captioning.
CLASS ACTION ALLEGATIONS 82. Plaintiffs Dore, Smith, Lee Nettles, and Diane Nettles (the “Representative Plaintiffs”) bring this action on behalf of themselves and on behalf of a class defined as follows: individuals who are deaf or hard of hearing who have been, or in the future will be, denied the full and equal enjoyment of online content for the general public produced or created by

36 U.S. Dep’t of Educ., Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter, at 1 (May 26, 2011), http://www2.ed.gov/about/offices/list/ocr/docs/dclebook-faq-201105.pdf.

37

Id. at 4.

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 24 of 31
Harvard, and/or made available to the general public by Harvard on Harvard Platforms, because that content is not accurately captioned.
83. Joinder of all members of the proposed class would be impracticable because, without limitation, the class consists of numerous individuals who are geographically diverse, these individuals are very difficult to identify, and they are unlikely to be able to bring individual suits.
84. There are numerous common questions of law and fact, including but not limited to:
a. Whether provision of online content constitutes a service, facility, privilege or advantage of Harvard;
b. Whether provision of online content constitutes a program or activity of Harvard; c. Whether Section 504 and/or Title III require Harvard to caption its online content
so that deaf and hard of hearing individuals are not denied the benefits of its services, facilities, privileges, advantages, programs and/or activities; d. Whether Section 504 and/or Title III require Harvard to caption its online content so that deaf and hard of hearing individuals are not provided with benefits that are unequal to those provided to nondisabled persons; e. Whether captioning constitutes an auxiliary aid or service under Section 504 and/or Title III; f. Whether Section 504 and/or Title III require Harvard to caption its online content to ensure that deaf and hard of hearing individuals are provided with effective communication;
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g. Whether Harvard has policies or practices that result in uncaptioned or inaccurately captioned online content;
h. Whether Harvard fails to have in place policies or practices to ensure that online content is accurately captioned;
i. Whether Harvard has failed to make reasonable modifications in policies, procedures, and practices that are necessary to provide persons with hearing disabilities meaningful, effective access to its online content.
85. The claims of the Representative Plaintiffs are typical of the claims of the class because they arise from the same course of conduct engaged in by Harvard, are based on the same alleged violations of the same statutes and regulations, and seek the same relief.
86. The Representative Plaintiffs will fairly and adequately represent the interests of the class. The Representative Plaintiffs have no interests adverse to the interests of other members of the class. Further, the attorneys they have retained include counsel who have been appointed as class counsel in, and have successfully litigated, numerous disability rights class actions across the country.
87. Finally, certification under Rule 23(b)(2) is proper here because Harvard has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or declaratory relief with respect to the class as a whole.
FIRST CLAIM FOR RELIEF Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. 88. Plaintiffs incorporate by reference each and every allegation herein. 89. Section 504 of the Rehabilitation Act of 1973 provides in pertinent part: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,
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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).

90. Harvard is a recipient of federal financial assistance sufficient to invoke the

coverage of Section 504, and has received such federal financial assistance at all times relevant

to the claims asserted in this Complaint.

91. The Rehabilitation Act defines “program or activity” to “mean[] all of the

operations of . . . a college, university, or other postsecondary institution.” 29 U.S.C. §

794(b)(2)(A); 34 C.F.R. § 104.3(k). Harvard is a “college, university, or other postsecondary

institution.” 29 U.S.C. § 794(b)(2)(A); 34 C.F.R. § 104.3(k). Harvard’s publicly available

online content is therefore a “program or activity” of Harvard within the meaning of the

Rehabilitation Act.

92. Harvard has engaged in illegal disability discrimination, as defined by the

Rehabilitation Act, including without limitation:

•

directly or through contractual, licensing or other arrangements, denying

opportunities for deaf and hard of hearing people to participate in or benefit from its aids,

benefits, or services;

•

directly or through contractual, licensing or other arrangements, affording deaf

and hard of hearing people opportunities to participate or benefit from its aids, benefits and

service that are not equal to, or effective as, those afforded others;

•

directly or through contractual, licensing or other arrangements, limiting deaf or

hard of hearing people in the enjoyment of rights, privileges, advantages, and/or opportunities

enjoyed by others receiving Harvard’s aids, benefits, or services;

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 27 of 31

•

utilizing methods of administration (i) that have the effect of subjecting deaf or

hard of hearing people to discrimination on the basis of handicap, and (ii) that have the purpose

or effect of defeating or substantially impairing accomplishment of the objectives of Harvard’s

programs and activities with respect to deaf and hard of hearing people;

•

failing to provide an auxiliary aid or service where necessary to ensure that deaf

or hard of hearing people are not denied effective communication and are not excluded, denied

services or otherwise treated differently than others; and/or

•

failing to make reasonable modifications in policies, practices or procedures

where necessary to afford its services, privileges, advantages or accommodations to deaf or hard

of hearing persons.

93. Harvard has violated the Rehabilitation Act by, without limitation, failing to

provide accurate captioning for its online content, thereby denying deaf and hard of hearing

persons the benefits of that online content, providing them with a benefit that is not equal to that

provided others, and denying them effective communication.

94. Harvard has further violated the Rehabilitation Act by, without limitation,

utilizing administrative methods, practices and policies that allow its online content to be made

available without accurate captioning.

95. Harvard’s ongoing and continuing violations of Section 504 have caused, and in

the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

SECOND CLAIM FOR RELIEF Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq.

96. Plaintiffs incorporate by reference each and every allegation herein.

97. Title III requires 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,

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 28 of 31

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); 28 C.F.R. § 36.201(a).

98. Harvard operates an “undergraduate, or postgraduate private school, or other place

of education,” which is a place of public accommodation pursuant to 42 U.S.C. § 12181(7)(J).

99. Harvard has engaged in illegal disability discrimination, as defined by Title III,

including without limitation:

•

directly, or through contractual, licensing, or other arrangements denying

opportunities for deaf and hard of hearing people to participate in and benefit from its aids,

benefits, and services;

•

directly, or through contractual, licensing, or other arrangements affording deaf

and hard of hearing people opportunities to participate in and benefit from its aids, benefits, and

services that are not equal to, or effective as, that afforded others;

•

utilizing methods of administration (i) that have the effect of discriminating on the

basis of disability; or (ii) that perpetuate the discrimination of others who are subject to common

administrative control;

•

failing to provide auxiliary aids and services where necessary to ensure that deaf

or hard of hearing people are not denied effective communication and are not excluded, denied

services or otherwise treated differently than others; and/or

•

failing to make reasonable modifications in policies, practices or procedures

where necessary to afford its services, privileges, advantages or accommodations to deaf or hard

of hearing people.

100. Harvard has violated Title III by, without limitation, failing to provide accurate

captioning for its online content, thereby denying deaf and hard of hearing persons the benefits

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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 29 of 31

of that online content, providing them with a benefit that is not equal to that provided others, and denying them effective communication.
101. Harvard has further violated Title III by, without limitation, utilizing administrative methods, practices and policies that allow its online content to be made available without accurate captioning.
102. Harvard’s ongoing and continuing violations of Title III have caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request judgment as follows:

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.

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Respectfully Submitted,
NATIONAL ASSOCIATION OF THE DEAF, C. WAYNE DORE, CHRISTY SMITH, LEE NETTLES, and DIANE NETTLES
By their Attorneys,
/s/ Thomas P. Murphy Thomas P. Murphy, Esq., Board of Bar Overseers no. 630527 DISABILITY LAW CENTER, INC. 32 Industrial Drive East Northampton, Massachusetts, 01060 (413) 584-6337 / (800) 222-5619 Voice tmurphy@dlc-ma.org
Christine M. Griffin, Esq., Board of Bar Overseers no. 564420 Stanley J. Eichner, Esq., Board of Bar Overseers no. 543139 Richard M. Glassman, Esq., Board of Bar Overseers no. 544381 DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, MA 02108 (617) 723-8455 / (800) 872-9992 Voice cgriffin@dlc-ma.org seichner@dlc-ma.org rglassman@dlc-ma.org
Timothy P. Fox* Sarah M. Morris* CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 757-7901 tfox@creeclaw.org smorris@creeclaw.org
Bill Lann Lee* Julie Wilensky* LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com
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Case 3:15-cv-30023-MGM Document 1 Filed 02/12/15 Page 31 of 31 Caroline E. Jackson, Esq.* Marc P. Charmatz, Esq.* THE NATIONAL ASSOCIATION OF THE DEAF LAW AND ADVOCACY CENTER 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 TTY: (301) 587-1789 caroline.jackson@nad.org marc.charmatz@nad.org Attorneys for Plaintiffs and Proposed Plaintiff Class Dated: February 12, 2015 * Application for admission pro hac vice forthcoming
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 Case 3:15-cv-30023-MGM Document 33 Filed 06/25/15 Page 1 of 28
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE )

DEAF, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

HARVARD UNIVERSITY and the

)

PRESIDENT AND FELLOWS OF

)

HARVARD COLLEGE,

)

)

Defendants.

)

________________________________________

Civil Action No. 3:15-cv-30023-MGM
Leave to File Memorandum in Excess of 20 Pages Granted on June 23, 2015.

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

Case 3:15-cv-30023-MGM Document 33 Filed 06/25/15 Page 2 of 28
I. INTRODUCTION Plaintiffs, individuals who are deaf or hard of hearing and the National Association of the Deaf (“NAD”), allege that Harvard University (“Harvard”) has violated title III of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by denying individuals who are deaf or hard of hearing equal access to Harvard’s thousands of free online videos and audio files (“online programming”), which includes courses, educational lectures, and topics of general interest. (Complaint at ¶¶ 1, 2, 28). Like most colleges and universities, Harvard relies on websites and other Internet related technologies in the administration of its services to students and, increasingly, to members of the public. Indeed, Harvard characterizes its online educational services as “part of [its] commitment to equity,” which “calls on [Harvard] to create effective, accessible avenues for people who desire to learn but who may not have an opportunity to obtain a Harvard education.”1 Plaintiffs claim that despite requests that Harvard provide closed captions on its online programming, Harvard has failed to make its content accessible and has impermissibly denied Plaintiffs and other individuals with hearing disabilities equal access to these valuable educational opportunities. (Complaint at ¶ 8). Harvard has moved to stay or dismiss the case on jurisdictional grounds or, alternatively, to dismiss Plaintiffs’ Complaint for the failure to state a claim. Harvard first argues 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. Alternatively, should this
1 See Complaint at ¶ 2; Harvard University’s “About Harvard Online Learning Portal,” http://onlinelearning.harvard.edu/about (last visited June 25, 2015).
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Case 3:15-cv-30023-MGM Document 33 Filed 06/25/15 Page 3 of 28
Court retain jurisdiction, Harvard argues that neither the ADA nor Section 504 require the provision of captions on its online programming.
Harvard is wrong on both counts. The primary jurisdiction doctrine does not support dismissal or stay of this matter, and Plaintiffs’ claim falls squarely within the protections afforded by the ADA and Section 504. Both the ADA and Section 504 currently obligate 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. For more than two decades, federal courts have resolved effective communication claims brought under the ADA and Section 504 in a wide range of contexts, including claims alleging unequal access to goods, benefits and services provided through websites or other electronic media. And the Departments of Justice and Education have routinely required covered entities to ensure equal access to goods, benefits and services, electronic or otherwise, through the provision of captioning or other auxiliary aids or services. Against this backdrop, the fact that DOJ has announced its intention to issue, at some point in the future, more specific technical requirements related to website accessibility does not support invoking primary jurisdiction. As to Harvard’s Rule 12(b)(6) assertions, Plaintiffs’ Complaint alleges sufficient facts to plead violations of the ADA and Section 504. Further, Harvard’s heightened rhetoric that Plaintiffs’ desired remedy is impermissibly broad and unduly burdensome amounts to an assertion of fact-based defenses that Harvard cannot rely on at this stage in the litigation.
Because Harvard’s Motion to Dismiss directly implicates the United States’ rulemaking agenda and the interpretation and application of regulations already promulgated by the Department of Justice under title III of the ADA and by the Department of Education under
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Section 504, the United States has a substantial interest in this matter.2 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 504.3
II. STATUTORY AND REGULATORY BACKGROUND
A. Title III of the Americans with Disabilities Act of 1990.
Title III of the ADA prohibits discrimination by public accommodations, prescribing
generally that no 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, leases (or leases to), or operates a
place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). A public
accommodation includes an “undergraduate, postgraduate private school, or other place of
education,” such as Harvard. 42 U.S.C. § 12181(7)(J). Title III prohibits public
accommodations from denying individuals with disabilities the opportunity to participate in or
benefit from goods, services, privileges or advantages or from affording individuals with
disabilities an unequal opportunity to participate and benefit from the goods, services, privileges
2 Both the Departments of Justice and Education are entitled to deference in their interpretation of the regulations they promulgate – title III regulations of the ADA for Justice and Section 504 regulations for Education. Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 196 (2011) (court must defer to “an agency’s interpretation of its own regulation . . . unless that interpretation is ‘plainly erroneous or inconsistent with the regulation’”) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)); Olmstead v. L.C., 527 U.S. 581, 598 (1999) (“The well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”) (internal quotation marks omitted); K.M. v. Tustin, 725 F.3d 1088, 1100 (9th Cir. 2013)(“[w]e afford ... considerable respect” to the DOJ's interpretation of the ADA effective communication regulation, as expressed in its amicus brief to this court (quoting M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir.2012)). 3 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any . . . district in the United States to attend to the interests of the United States in a suit pending in a court of the United States . . . .” The Department of Justice (“Department” or “DOJ”) is the federal agency with primary responsibility for enforcing title III of the ADA and its implementing regulation. 42 U.S.C. § 12188(b).
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or advantages afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(i) and (ii); 28 C.F.R. §§ 36.202(a) and (b).
Title III imposes specific statutory and regulatory requirements to ensure that persons with disabilities are not excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. Under these provisions, public accommodations must furnish appropriate auxiliary aids and services where necessary for effective communication, 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); 28 C.F.R. § 36.303. Auxiliary aids and services include qualified interpreters, notetakers, computer-aided transcription services, written materials, open and closed captioning, and accessible electronic and information technology, among other methods. 28 C.F.R. § 36.303(b).
B. The Department’s Rulemaking Under the ADA.
The ADA charges the Attorney General with promulgating regulations to implement title III of the ADA. 42 U.S.C. § 12186. Pursuant to this charge, and following notice and comment rulemaking, DOJ issued its original title III regulation in 1991 and a revised title III regulation in 2010. In that same year, the Department issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, announcing the Department’s interest in developing more specific requirements or technical standards for website accessibility. 75 Fed. Reg. 43,460 (July 26, 2010). In the ANPRM, the Department reaffirmed its longstanding position that the ADA
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applies to websites of public accommodations, and reiterated, consistent with the preamble to the 1991 regulations, that the ADA regulations should be interpreted to keep pace with developing technologies. Id. at 43,464 (“The Department has also repeatedly affirmed the application of title III to Web sites of public accommodations.”). The Department recognized, however, that in light of inconsistent court decisions on website-related obligations and differing technical standards for determining web accessibility, further guidance was warranted. Id.
Through the ANPRM, the Department sought to explore whether rulemaking would be helpful in providing guidance as to how covered entities could meet preexisting obligations to make their websites accessible and in determining specific requirements or technical standards that could be adopted to provide the disability community consistent access. Id. at 43,464, 43,467. The comment period was open for 180 days after publication in the Federal Register on July 26, 2010. In response to the ANPRM, the Department received approximately 440 public comments. The Department is currently working on separate Notices of Proposed Rulemaking (NPRM) under titles II and III.4 The title II NPRM, applicable to services, programs, and activities of public entities, was scheduled for publication in Spring 2015 but is not yet published. Id. The title III NPRM, applicable to public accommodations such as Harvard, is scheduled for publication in Spring 2016. Id. After an NPRM is issued, the Department must solicit public comment and consider those comments in promulgating a final rule.
C. Section 504 of the Rehabilitation Act of 1973. Section 504 provides 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
4 See Office of Information and Regulatory Affairs, Office of Management and Budget, Reginfo.gov, Unified Agenda, Spring 2015 Agency Statements of Regulatory Priorities (Department of Justice), title II, http://go.usa.gov/3XjKe and title III, http://go.usa.gov/3XjkV.
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benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Harvard is a recipient of Federal financial assistance from the U.S. Department of Education. Section 504 defines “program or activity” to “mean[] all of the operations of … a college, university or other postsecondary institution.” 29 U.S.C. § 794(b)(2)(A); 34 C.F.R. § 104.3(k)(2)(i). Therefore, Harvard’s online programming is part of a “program or activity” covered by Section 504. Id.
Under Section 504, recipients of Federal funding are required to provide qualified individuals with disabilities meaningful access to the benefits they offer. See Alexander v. Choate, 469 U.S. 287, 301 (1985). In this context, a qualified individual with a disability is a person with a disability who meets the essential eligibility requirements for participating in Harvard’s online programming. 34 C.F.R. § 104.3 (l)(4). Harvard offers its online programming to the general public. Thus all members of the general public, including Plaintiffs, are “qualified” to avail themselves of Harvard’s service. 34 C.F.R. § 104.3(l)(4).
As a recipient of federal funding, Harvard has a duty to provide meaningful access to its online programming to individuals with disabilities.5 This duty requires Harvard to ensure that qualified individuals with disabilities are afforded the opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded to others. 34 C.F.R. § 104.4(b)(1)(ii). In addition, Harvard is prohibited from providing qualified individuals with disabilities with an aid, benefit, or service that is not as effective as that provided to others. 34 C.F.R. § 104.4(b)(1)(iii). Harvard must ensure that equally effective aids, benefits, and services afford qualified individuals with disabilities the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement. 34 C.F.R. § 104.4(b)(2). Section 504
5 The terms “individuals with disabilities” and “qualified individuals with disabilities” are used interchangeably in this motion.
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also requires the provision of aids and services that are necessary to ensure individuals with disabilities have an equal opportunity to participate in Harvard’s programs or activities.
III. DISCUSSION A. The Primary Jurisdiction Doctrine Does Not Support a Stay or Dismissal.
Defendant argues that the primary jurisdiction doctrine dictates that this Court should dismiss Plaintiffs’ Complaint or stay the action until DOJ promulgates a final title III rule concerning website accessibility standards. (Motion at 9-10). But application of the doctrine is not warranted in this case, as Plaintiffs’ Complaint alleges violation of existing and longstanding statutory and regulatory requirements to provide effective communication, and courts routinely decide these types of effective communication matters. Primary jurisdiction is further inappropriate given that the scope and timing of any final rule on web accessibility is speculative and far from imminent; although the title III proposed rule, or NPRM, is currently scheduled for a Spring 2016 publication, there is no scheduled date for publication of a final rule.
While there is no fixed formula for applying the primary jurisdiction doctrine, United States v. Western Pacific Railroad Co., 352 U.S. 59, 64 (1956), the central inquiry is whether a court presented with an otherwise jurisdictionally-proper claim should nonetheless deferentially refer the matter to an administrative agency because the agency’s input would provide required specialized expertise or ensure uniformity in a comprehensive regulatory scheme. See, e.g., Am. Auto. Mfrs. Ass'n v. Massachusetts Dept. of Envt'l Prot., 163 F.3d 74, 80-82 (1st Cir. 1998); U.S. Pub. Interest Research Grp. v. Atl. Salmon of Maine, LLC, 339 F.3d 23, 34 (1st Cir. 2003). Primary jurisdiction is not applicable simply because a claim or issue may conceivably fall within an agency’s purview. See, e.g., Brown v. MCI WorldCom Network Services, Inc., 277
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F.3d 1166, 1172 (9th Cir. 2002). Rather, courts must also weigh the advantages of invoking primary jurisdiction against the potential harm from judicial forbearance. Am. Auto., 163 F.3d at 81-82. For these reasons, courts caution that primary jurisdiction should be invoked sparingly. See, e.g., U.S.P.I.R.G., 339 F.3d at 34; Locust Cartage Co. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 340 n.5 (1st Cir.), cert. denied, 400 U.S. 964 (1970); Palmer Foundry, Inc., v. Delta-Ha, Inc., 319 F.Supp.2d 110, 112 (D. Mass. 2004).
In the First Circuit, courts consider the following factors to determine if primary jurisdiction should be invoked: (1) whether the agency determination lies at the heart of the task assigned the agency; (2) whether agency expertise is required to unravel intricate, technical facts; and (3) while not determinative, whether the agency determination would materially aid the court. See Rymes Heating Oils Inc. v. Springfield Terminal Ry. Co., 358 F.3d 82, 91 (1st Cir. 2004); see also Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir. 1995). These factors are interrelated, and in this case strongly weigh against a stay or dismissal.
First, contrary to Harvard’s assertion, at the heart of this case is a straightforward claim that Harvard failed to provide auxiliary aids or services necessary to ensure effective communication and equal access to Harvard’s online programming. The determination of Plaintiffs’ claim lies with the Court, not with DOJ, which has no authority to administratively adjudicate the parties’ dispute. Second, resolution of Plaintiffs’ claim does not require the Court to “unravel intricate, technical facts,” but rather involves consideration of facts within the conventional competence of the courts, e.g., whether Harvard offers online programming; whether Plaintiffs can access that programming; whether Harvard furnished appropriate auxiliary aids or services to afford access to the online programming; and, if asserted, whether Harvard can establish a fundamental alteration or undue burden defense. And because the title III
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rulemaking on website accessibility is not imminent, dismissal or stay of this case on primary jurisdiction grounds would not materially aid this Court and would significantly prejudice Plaintiffs and similarly situated persons with disabilities.
1. Primary Jurisdiction is Not Appropriate Because This Court is WellEquipped to Apply the Current Law to Plaintiffs’ Claim.
The primary issue before this Court – whether Harvard is required to provide auxiliary aids and services, such as captions, to its online programming to ensure equal access to individuals with disabilities – directly implicates the existing statutory requirements of title III and its longstanding regulation, which courts are well-placed to resolve. As set forth above, the ADA and the title III regulation, since their enactment and promulgation, have always required that public accommodations provide effective communication to persons with disabilities through the provision of auxiliary aids and services, including, where appropriate, closed captioning. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. See, e.g., Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 675 (9th Cir. 2010) (reversing district court finding that closed captioning and descriptive narration are not required), Feldman v. Pro Football, Inc., 419 Fed. Appx. 381, 391-92 (4th Cir. 2011) (affirming district court decision requiring a football stadium to provide auxiliary aids such as captions to ensure that plaintiffs have full and equal access to music lyrics); Ball v. AMC Entertainment, Inc., 315 F.Supp.2d 120, No. Civ. A.00-867 (D.D.C. May 3, 2004) (approving class settlement alleging a failure to provide reasonable accommodations including captioning). And DOJ has similarly enforced title III’s effective communication requirement, including, more recently, as to Internet and webbased goods and services.6 The requirement to provide effective communication applies to
6 Statement of Interest of the United States, Nat’l Assoc. of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012), www.ada.gov/briefs/netflix_SOI.pdf (addressing captioning of online streaming video service); Consent
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Harvard’s online programming. As Congress expressly stated when passing the ADA, “…the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times[,]” and that technological advances “may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.” See H.R. Rep. No. 485, pt. 2, at 108 (1990).
Moreover, since the ANPRM was issued in 2010, this Court and other courts have allowed litigation of title III claims alleging the failure to provide equal access to the web-based services of a public accommodation. See Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 205 n.2 (D. Mass. 2012); Nat’l Fed’n of the Blind v. Scribd, Inc., 2015 U.S. Dist. LEXIS 34213 *26 (D. Vt. March 19, 2015). The fact that the regulatory process is pending does not support Harvard’s claim that its online programming is not currently covered by title III requirements. (Motion at 11). Directly to the contrary, and as explained in the Department’s ANPRM: “The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically addresses access to Web sites. But the statute’s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web
Decree, Nat’l Fed. of the Blind, et al., United States of America v. HRB Digital LLC and HRB Tax Group, Inc., No. 1:13-cv-10799 (March 25, 2014), www.ada.gov/hrb-cd.htm (addressing the accessibility of H&R Block’s website); Settlement Agreement, The United States of America and Ahold U.S.A., Inc. and Peapod, LLC (November 14, 2014), http://www.ada.gov/peapod_sa.htm (addressing the accessibility of Peapod’s website); Settlement Agreement, The United States of America and edX, Inc. (April 2, 2015), http://www.ada.gov/edx_sa.htm (addressing the accessibility of an online learning platform); Statement of Interest of the United States, New v. Lucky Brand Dungarees Stores, Inc.,51 F.Supp.3d 1284 (S.D. Fla. 2014),www.ada.gov/briefs/lucky_brand_soi.pdf (addressing the effective communication requirements of the ADA to point-of-sale devices); Agreement Between the United States and Walt Disney World Co. (January 17, 1997), www.ada.gov/disney-sa.htm (requiring Walt Disney World to provide auxiliary aids and services necessary for deaf and hard of hearing individuals to enjoy its programs and services, including captioning).
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sites over the Internet.” 75 Fed Reg. 43,460, 46,463 (emphasis added). See also Netflix, 869 F. Supp. 2d at 200 (excluding web-based services would “run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.”) (quoting Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12, 20 (1st Cir. 1994)). This Court is thus wellequipped to resolve Plaintiffs’ legal claim, and should therefore reject Harvard’s attempt to convert a clear-cut ADA claim into something dependent on future rulemaking.
In another title III effective communication claim, one district court, in analyzing a primary jurisdiction challenge, rejected its application because the relevant ADA determinations were within the conventional competence of the courts and because there was no administrative proceeding to which to refer the parties. See Arizona ex rel. Goddard v. Harkins Amusement Enterprises., 2011 U.S. Dist. LEXIS 127682 *12 (D. Ariz. Feb. 8, 2011). In Harkins, plaintiffs alleged violations of the ADA against a movie theater chain that did not provide auxiliary aids and services, including closed captioning. 603 F.3d 666, 668 (9th Cir. 2010). The movie chain argued that the case should be stayed under the primary jurisdiction doctrine, pending the promulgation of DOJ regulations regarding captioning at movie theaters. Harkins, No. 0700703, 2011 U.S. Dist. LEXIS 127682 at *4. The district court disagreed, finding “there is no administrative proceeding to which [the court] can refer the parties; the parties will not directly participate in the DOJ’s rulemaking; the parties will be forced to wait an indefinite duration for the DOJ NPRM and final rule; the DOJ is not capable of resolving the parties’ entire dispute; and Courts routinely decide ADA cases involving accommodations and undue burden.” Id. at *12. The court held that “[a]lthough the DOJ is responsible for issuing regulations for the ADA, this
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alone does not invoke primary jurisdiction.” Id. at *7-*8. The Harkins Court’s reasoning is equally applicable to this case, and Harvard’s primary jurisdiction contention should be rejected.
Likewise, other cases cited by Harvard equally support that this Court should retain jurisdiction because the legal claim at issue is one that the Court is fully able to resolve. In Massachusetts v. E*Trade Access, Inc., this Court denied defendant’s motion for judgment on the pleadings on grounds that even though the desired remedy on inaccessible ATMs, voiceguidance technology, was not specifically required by current DOJ regulations, the plaintiffs had put forward a legally sufficient claim that the ATMs were not accessible or independently usable by individuals who are blind and that a remedy was required. No. 03-11206, 2005 U.S. Lexis 22621 *11-12 (D. Mass, Feb. 22, 2005). This Court stated, “Although their preferred remedy is not available under the existing regulations, the Plaintiffs can seek the necessary modifications to the ATMs … [E*Trade] operates…, so that blind people may have access to and independently use these ATMs.” Id. Similarly, in this case, Plaintiffs have put forth a legally sufficient claim that Harvard’s online programming is inaccessible, and Plaintiffs can avail themselves of the current effective communication regulation to challenge their exclusion.
Harvard’s reliance upon United States v. National Amusements, Inc., 180 F. Supp. 2d 251, 258 (D. Mass 2001) is also unavailing. In National Amusements, plaintiffs alleged that stadium-style theaters denied equal access to individuals who used wheelchairs and therefore violated the general nondiscrimination provisions of the ADA. Defendants argued that Congress intended the ADA to be enforced through a specific regulatory framework rather than through the broad language of the general prohibitions in the statute, and that since they had complied with the specific regulatory provision at issue, plaintiffs could not state a claim under the general prohibitions. This Court agreed with defendants and held that compliance with the specific
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regulations for new construction was sufficient to satisfy the title III requirements of the ADA. As in National Amusements, in this case there is a preexisting specific regulation that imposes obligations upon Harvard to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. § 36.303(c)(1). However, unlike this Court’s determination in National Amusements, Harvard has not satisfied the specific regulatory provision at issue in this case. Thus, the pending status of the website accessibility rule does not preclude the enforcement of the current specific requirement.
Moreover, the absence of administrative adjudication authority under the ADA, and thus of any potential redress for Plaintiffs in an alternate forum, further weighs against a stay or dismissal on primary jurisdiction grounds. Harvard appears to argue that DOJ’s pending rulemaking on web accessibility is a “determination” that lies at the heart of the task assigned to the agency by Congress and that this favors primary jurisdiction. However, most of the cases Harvard cites in support of this proposition are inapplicable because, in those cases, the “determination” at issue was, in fact, the agency’s ability to resolve the pending dispute through an administrative adjudicative process.7 DOJ enforces title III and promulgates the title III regulation, but has no adjudicative procedures or authority.
The few cases Harvard cites that address pending rulemaking are also distinguishable. In Netflix, this Court ordered a stay with respect to the FCC’s pending first-time regulation implementing a new statute, the Twenty-First Century Communications and Video Accessibility Act (“CVAA”), because the issuance of the final regulation was imminent. No. 11-30168, 2011 U.S. Dist. LEXIS 130443, at *2-*3 (D. Mass. Nov. 10, 2011) (noting that court assumed the
7 See, e.g., Mass v. Blackstone Valley Elec. Co, 67 F.3d 981, 992-93, Am. Tel & Tel. Co. v. IMR Capital Corp., 888 F. Supp. 221, 244-45 (D. Mass 1995) and Clark v. Time Warner Cable, 523 F.3d 110 (9th Cir. 2008).
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regulation would be issued within two months of stay). The plaintiffs alleged that the failure to provide closed captioning on Netflix’s on demand web-based video service violated the ADA. The rule implementing the CVAA explained, for the first time, the requirement to caption certain content made available on Netflix. Thus, waiting two months for the CVAA final rule materially aided this Court because knowing the CVAA requirements allowed the Court to determine whether the application of title III to Netflix was also necessary to provide captioning on other content not covered by CVAA to ensure equal access.8 Moreover, a stay of two months was minimal and was not prejudicial to plaintiffs. There is no equivalent issue in this case. Similarly, in Kappelmann v. Delta Air Lines, Inc., appellants asked the court to rule that a new law, the Hazardous Materials Transportation Act of 1975, required airlines to warn passengers when a plane was carrying radioactive materials. 539 F.2d 165, 169-71 (D.C. Cir. 1976). In Kappelmann, the D.C. Circuit invoked primary jurisdiction because the case involved a new law, for which the agency was setting a new regulatory scheme. Here, in contrast, the ADA and its implementing regulations have been in effect for over two decades; and, relying on this established authority, courts have construed the ADA to require equal access to services provided online.
2. No Specialized Agency Expertise is Necessary to Address Plaintiffs’ Claim. Resolution of Plaintiffs’ ADA claim does not require specialized expertise beyond the knowledge of federal courts. Applying a long-established civil rights law to the facts here does not require a specialized expertise typical of the agencies to which courts have deferred jurisdiction. For example, in Kappelmann, the court lacked the requisite expertise to apply a new
8 In 2012, this Court denied a motion for judgment on the pleadings in the Netflix case alleging the failure to provide closed captions on a web-based video service. See Netflix, Inc., 869 F. Supp. 2d at 205 n.2.
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law prior to the issuance of its implementing regulation and therefore deferred to the Federal Aviation Administration because its pending rule would explain for the first time, what constituted unsafe radioactivity levels. Id. In contrast, in this matter, this Court can determine what auxiliary aids and services are necessary to ensure effective communication. As explained above, courts routinely decide the extent to which auxiliary aids and services, such as closed captioning, are required under the ADA and whether a title III entity can show that providing auxiliary aids and services constitutes a fundamental alteration or an undue burden. To be sure, the web accessibility rule under development will provide additional guidance and technical standards for web accessibility. However, the projected publication date for the notice of proposed rulemaking is a year away, and the requirements will not become final until a final rule is published after an additional comment period. The title III statute and existing regulation apply to Plaintiffs’ claim. Of course, in the absence of specific technical standards, the obligation to provide auxiliary aids and services to ensure effective communication is flexible and is dependent on the facts particular to the claim, not the agency’s expertise. See 28 C.F.R. Part 36, App. C, § 36.303 (“The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication.”); see also Statement of Interest of the United States at 8-9, New v. Lucky Brand Dungarees Stores, Inc.,51 F.Supp.3d 1284 (S.D. Fla. 2014), www.ada.gov/briefs/lucky_brand_soi.pdf. Such a determination falls squarely within this Court’s purview.
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Other federal courts, under analogous circumstances, have declined to exercise primary jurisdiction.9 For example, in Disability Rights Council of Greater Wash. v. Wash. Metro. Area
Transit Auth., a district court declined to invoke primary jurisdiction when considering whether
paratransit services satisfied the ADA. 239 F.R.D. 9, 20 (D.D.C. 2006). The court reasoned that
“Whether or not a practice limits the availability of a public service, particularly when
availability is measured from the perspective of the user – as it must be measured here – is a
question that can be answered by reference to the knowledge and experience of lay persons,
including judges” and that “requires no particular technical, policy, or administrative expertise.”
Id. Similarly, this Court need only consider whether Plaintiffs are being provided equal access to
Harvard’s online programming and whether Harvard can avail itself of a defense to the provision
of auxiliary aids and services. Such fact-based determinations are well within the conventional competence of the courts.10
In sum, Plaintiffs’ claim does not require specialized agency expertise to unravel
intricate, technical facts because the requirement to furnish auxiliary aids and services is flexible
9 See e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 at 580-81 (declining to invoke the primary jurisdiction doctrine where the matter was not “so technical as to be beyond the understanding of judges or juries,” even where some consultation with experts was required); Harkins, 2011 U.S. Dist. LEXIS 127682 *12 (D. Ariz. Feb. 8, 2011) (declining to invoke primary jurisdiction because the parties will be forced to wait an indefinite duration for the DOJ final rule and courts routinely decide ADA cases involving accommodations and undue burden); Nader v. Allegheny Airlines, 426 U.S. 290, 305-06 (1976) (referral to the FAA was inappropriate because fraudulent misrepresentation claims “are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the applications of these standards to the facts of the case”). 10All of the cases upon which Harvard relies in support of its argument that agency expertise is required are inapposite because they address referral to an agency’s adjudicative process; as explained above, DOJ does not have such a process. See Nader e.g., 426 U.S. at 305-07 (court addressed whether referral to the FAA for adjudication was appropriate); see also Blackstone Valley Elec. Co., 67 F.3d at 992-93 (referred case to the EPA for an administrative determination); N. Cnty. Comms. Corp. v. Cal. Catalog & Tech., 594 F.3d 1149, 1162 (9th Cir. 2010) (referred case to the FCC for an administrative determination); American Tel. & Tel. Co v. IMR Capital Corp. 888 F. Supp. 221, 245 (D. Mass 1995) (same).
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and is within the conventional competence of the courts. Moreover, Plaintiffs have a legitimate and important claim now under the current law, which requires equal access in the absence of a defense, and this Court is well-equipped to address Plaintiffs’ civil rights claim. Accordingly, the Court should deny the motion to stay or dismiss the case.
A. Plaintiffs State a Claim Under the ADA and Section 504. “The sole inquiry under Rule 12(b)(6) is whether, construing the well-pleaded facts of the
complaint in the light most favorable to the plaintiffs, the complaint states a claim for which relief can be granted.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). A complaint must provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests” (Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted)) and must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
1. Harvard’s Provision of Online Programming is Subject to Title III of the ADA. Plaintiffs’ Complaint sufficiently pleads a violation of title III of the ADA. In moving to dismiss Plaintiffs’ claim, Harvard appears to ask this Court to ignore the express statutory and regulatory obligation under title III to provide auxiliary aids or services when necessary to ensure equal access to individuals with disabilities. Alternatively, Harvard asks this Court to find, as a matter of law, that these obligations do not apply to Harvard’s online programming services. In support, Harvard makes two arguments. First, Harvard contends that the only ADA statutory and regulatory provisions applicable to Harvard’s online programming are the title III barrier removal requirements, which do not address websites and therefore, do not require Harvard to remove the “barriers” Plaintiffs allegedly encountered. Second, Harvard argues that it is not
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required to caption its online programming because title III does not require public accommodations to stock accessible or special goods. Both arguments fail.
a. Specific Rules Governing Facility Construction, Alteration, and Barrier Removal Neither Apply to Nor Limit Plaintiffs’ Request for Relief.
Contrary to Harvard’s assertions, the inaccessible online programming at issue in this matter is not a structural or architectural barrier subject to the ADA’s new construction, alteration and barrier removal requirements; rather, it is a service provided by Harvard, a public accommodation, subject to title III’s general nondiscrimination and effective communication requirements. Harvard’s confusion on this point appears to stem from a misreading of the First Circuit’s discussion and holding in Carparts, which held that a public accommodation under title III of the ADA is not limited to physical structures. 37 F.3d at 19. The Court specifically analyzed a “travel service,” which is identified in the statute as a public accommodation, and concluded that Congress clearly intended to “include providers of services which do not require a person to physically enter an actual physical structure.” Id. The Carparts holding goes only to establishing coverage under the ADA and certainly does not dictate, as Harvard argues, that online services are subject to the ADA’s construction requirements for physical facilities. (Motion at 29, n.15.) Here, of course, there can be no genuine dispute that Harvard, as a private educational institution, is a public accommodation and thus subject to all applicable title III requirements, including the obligation to provide auxiliary aids and services to individuals with disabilities to ensure equal access to online programming.11
11 Neither is there any support for Harvard’s argument that Plaintiffs’ claims implicate communications barriers of a structural nature subject to Title III’s barrier removal rules. (Motion at 30, n.15). Communication barriers that are "structural in nature" are barriers that are an integral part of the physical structure of a facility, such as conventional signage, which generally is inaccessible to people who have vision impairments, and audible alarm systems, which are inaccessible to people with hearing impairments. See Title III Technical Assistance Manual §III-4.4100. In contrast, the provision of auxiliary aids and services, including captioning, “is not a communication barrier that is structural in nature.” Id.
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b. The Provision of Appropriate Auxiliary Aids Does Not Alter the Content of the “Goods or Services” Provided by a Public Accommodation.
Harvard contends that the ADA does not require it to caption its online programming because it is not required to provide or create accessible or special goods. (Motion at 33). In support of this position Harvard makes two related arguments: 1) the ADA does not require covered entities to change the content of their services or create a different good; and 2) the title III regulation’s “inventory exception” at 28 C.F.R. § 36.307 does not require Harvard to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. (Motion at 33). These arguments fail because Plaintiffs do not request different or additional content; they seek only access to the same content that Harvard makes available to the general public.
Harvard first relies on a line of insurance cases in which individuals with disabilities challenged the scope of their insurance policies. Courts rejected plaintiffs’ claims that the ADA requires insurance companies to alter or modify the content of the insurance services. See, e.g., Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d. Cir. 1998); McNeil v. Time Ins. Co, 205 F.3d 179, 188 (5th Cir. 2000); Doe v. Mut. Of Omaha Ins. Co., 179 F.3d 557, 559-60 (7th Cir. 1999). These cases are inapposite because they are about altering the substantive content of insurance policies, e.g., the amount of coverage available for a certain condition; they are not about the provision of auxiliary aids that would allow an individual with a disability access to the same content, e.g., providing an individual the insurance policy in an alternative format, as in the matter before this Court.
Moreover, Harvard’s assertion that the provision of closed captions would result in a “different” good, and thus is not required, is incorrect. In Harkins, 603 F.3d at 671, the Ninth
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Circuit rejected a similar argument where a defendant movie theater claimed it did not have to provide closed captioning because the ADA did not, in its view, require public accommodations to “offer different goods or services, just nondiscriminatory enjoyment of those that are provided.” The Ninth Circuit held that defendant’s cramped interpretation would effectively eliminate the duty of a public accommodation to provide auxiliary aids and services. Id. at 672 (quoting Harkins 548 F. Supp. 2d 723, 727-28 (D. Ariz. 2008)). As the court further explained, “[b]y its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled. For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing that everyone – including [individuals who use wheelchairs] – has equal access to the steps. And an office building could not avoid having to put Braille numbering on the buttons in its elevator by arguing that everyone – including [individuals who are blind] – has equal access to the written text.” Id. As the Harkins decision demonstrates, providing auxiliary aids and services does not change the content of Harvard’s online programming or result in “different” online programming, but rather enables individuals with disabilities to access the content Harvard already provides.
Second, Harvard misapplies title III’s regulatory “inventory exception,” at 28 C.F.R. § 36.307, to its online programming services. Section 36.307 provides that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. This regulatory provision is meant to excuse a retailer from stocking variations of a good for every conceivable disability because such a requirement would change the nature of the retailer’s business. See, e.g. 28 C.F.R. Part 36, App. C § 36.302 (“the rule enunciated in § 36.307 is consistent with the ‘fundamental alteration’ defense to the reasonable modifications requirement of § 36.302”).
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DOJ’s interpretive guidance on this provision explains that the purpose of the ADA’s public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. 28 C.F.R. Part 36, App. C § 36.307. See Title III Technical Assistance Manual §III-4.2500 (“The ADA does not require the bookstore to expand its inventory to include large print books or audio tape.”) (emphasis added). The inventory exception does not limit a public accommodation’s obligation, however, to provide auxiliary aids and services under 28 C.F.R. § 36.303. A bookstore, for example, would not have to stock Brailled versions of books under § 36.307, but if the bookstore were hosting an author lecture on its website, it would have to provide auxiliary aids and services to participants who are deaf, such as closed captioning.
The cases relied on by Harvard to support application of § 36.307 are distinguishable. In those cases, plaintiffs wanted to stock a particular kind of good in addition to what the retailer ordinarily provides. See, e.g., Karczewski v. K Motors, Inc., No. 14-2701, 2015 U.S. Dist. LEXIS 45226 *7-*8 (S.D. Cal. March 23, 2015) (“. . . a car dealership does not have to alter its inventory to include vehicles with special modifications for disabled drivers.”). By contrast, Plaintiffs here are not asking Harvard to create additional online programming; they are asking Harvard to provide appropriate auxiliary aids and services so that they can access the same content that Harvard makes available to individuals without disabilities.
3. Section 504 Requires that Harvard Provide Meaningful Access to Its Online Programming.
Without auxiliary aids and services, Plaintiffs cannot meaningfully access Harvard’s online programming. Under Section 504, “Where the plaintiffs identify an obstacle that impedes their access . . . they likely have established that they lack meaningful access to the
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program or benefit.” Am. Council of the Blind v. Paulson, 525 F.3d 1257, 1267 (D.C. Cir. 2008). In 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; see also, Alexander v. Choate, 469 U.S. 287, 306 (1985) (plaintiffs not entitled to greater substantive privileges by eliminating the durational limit on inpatient coverage); Am. Council of the Blind v. Astrue, 2008 U.S. Dist. LEXIS 86524 *16 (N.D. Cal. April 23, 2008) (denying motion to dismiss because plaintiffs were not challenging the substance of their benefits, they were challenging “only the methods through which individuals are notified of all manner of notices from [defendants]”).12 In this case, Plaintiffs do not seek more online programming than that provided to individuals without disabilities; they seek meaningful access to the same online programming provided to individuals without disabilities. In moving to dismiss Plaintiffs’ Section 504 claim, Harvard argues: (1) that it is only required to provide meaningful access to students with disabilities, not the general public; and (2) that the Section 504 regulation does not apply to website accessibility. As explained below, both arguments fail.
Harvard’s argument that Section 504 does not govern Plaintiffs’ claim is unsupported by the plain language and application of the Section 504 regulation and ED’s interpretation of its
12 As explained above, Harvard cannot rely on a fact-based defense such as fundamental alteration at this stage of the litigation. Accordingly, Harvard’s reliance on Wynne v. Tufts University School of Medicine, 932 F.2d 19, 27-28 (1st Cir. 1991) (en banc) is misplaced. In Wynne, the First Circuit remanded a decision granting summary judgment to a university because it had failed to demonstrate that there was no reasonable way to accommodate a student’s disability. Here, the parties have not engaged in discovery and Harvard’s fact-based defenses are prematurely raised at this stage of the case. Moreover, even if captioning certain programming would result in a fundamental alteration, Harvard would still be obligated to provide auxiliary aids and services for online programming to the extent it would not result in a fundamental alteration. Additionally, Harvard’s reliance on Board of Education v. Rowley, 458 U.S. 176 (U.S. 1982) is misplaced. Rowley involves a claim brought pursuant to the Individuals with Disabilities Education Act, which only applies to elementary and secondary schools and has no application to universities, including Harvard.
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regulation. Harvard incorrectly argues that Section 504 applies only to students, relying on the Section 504 postsecondary education rules in Subpart E, which, indeed, apply to students with disabilities.13 (Motion at 21). 34 C.F.R. §§ 104.41-47. Harvard fails to recognize, however, that non-students are also ensured meaningful access to online programming under ED’s Section 504 general antidiscrimination provision, which applies to qualified individuals with disabilities, and is not limited to students with disabilities. 34 C.F.R. § 104.4 (emphasis added).
Specifically, § 104.4 requires that with respect to qualified individuals with disabilities, Harvard must: (1) ensure they are afforded the opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded to others (34 C.F.R. § 104.4(b)(1)(ii)); (2) ensure that equally effective aids, benefits, and services afford such individuals the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement (34 C.F.R. § 104.4(b)(2)); and (3) prohibit the provision of an aid, benefit, or service that is not as effective as that provided to others (34 C.F.R. § 104.4(b)(1)(iii)). Where, as here, Harvard offers its online programming to all members of the general public, Plaintiffs are “qualified” to avail themselves of Harvard’s service because they “meet[] the essential eligibility requirements for the receipt of such services.” 34 C.F.R. § 104.3(l)(4). In sum, ED’s Section 504 regulatory provision, 34 C.F.R. § 104.4, applies to all individuals with disabilities who wish to participate in Harvard’s online programming.
Harvard’s argument that Plaintiffs cannot rely on the nondiscrimination requirements of § 104.4 because the provision does not specifically address “website accessibility or captioning
13 Harvard also incorrectly argues that the facilities access rules, 34 C.F.R. §§ 104.21-23, which apply to physical structures, apply to Plaintiffs’ claims. While Harvard devotes considerable argument (Motion at 20-21) to the interpretation and application of ED’s facilities access rule, Plaintiffs do not allege such a violation.
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online video content” is equally flawed. (Motion at 25). The absence of the term “website
accessibility or captioning online video content” from the regulation (which was promulgated
nearly forty years ago, well before the Internet) does not support that such programming is
excluded from Section 504 coverage. ED’s interpretation of its regulation, as reflected in both
its guidance and administrative enforcement, supports that Section 504 applies to online
programming. Specifically, ED’s guidance makes clear that when colleges and universities
require the use of emerging technology, they must ensure that the technology is implemented in a
way that affords persons with disabilities an equal opportunity to participate in and benefit from the technology.14 Relying on 34 C.F.R. § 104.4, ED explained that requiring use of a certain
technology that is inaccessible to individuals with disabilities is discrimination under Section 504
and the ADA, unless individuals with disabilities are provided accommodations or modifications
that permit them to receive all the educational benefits provided by the technology in an equally
effective and equally integrated manner. The guidance documents do not only address devices,
as Harvard suggests, but instead address the considerations at play when devices are used “as
part of the[] programs, services, activities, goods, advantages, privileges or accommodations”
14 See e.g., U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html; U.S. Dep’t of Educ., Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter, at 1, 4 (May 26, 2011), http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.pdf (“The principles in the DCL apply to the online programs that are part of the operations of the school, i.e., provided by the school directly or through contractual or other arrangements.”). In addition, Harvard mischaracterizes the meaning of the guidance when it argues that FAQ 12 “explicitly eschews a ‘caption or remove’ approach” because schools may provide “traditional alternative media as an accommodation to provide equal access to educational opportunities and benefits provided to all students.” (Motion at 26). Significantly, Harvard omits that FAQ 12 addressed circumstances where a school uses emerging technology for students without disabilities but wants to avail itself of traditional alternative media for a student with a disability. In such a circumstance, “the alternative media must provide access to the benefits of technology in an equally effective and equally integrated manner.” Id. at 7. Thus, FAQ 12 has no bearing on the circumstances at issue here, where Harvard provides its service – online programming – through emerging technology and provides very limited access to Plaintiffs.
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of the colleges or universities; and address the general requirements of colleges and universities with respect to individuals with disabilities and emerging technology.15
Further, in its enforcement of Section 504, ED’s Office for Civil Rights (“OCR”) has interpreted 34 C.F.R. § 104.4 to apply to online programs and activities available to the general public. OCR has consistently applied § 104.4 in its Letters of Finding and Resolution Agreements and in response to OCR’s Compliance Reviews to require equal access for individuals with disabilities, and not solely students with disabilities, to recipients’ websites and online programming.16 In sum, Harvard’s argument that Section 504 does not govern Plaintiffs’ claim is unsupported by case law requiring meaningful access, the plain language of the regulation, and ED’s interpretation and enforcement of its regulation. See Choate, 469 U.S. at 301; Am. Council of the Blind v. Paulson, 525 F.3d at 1267; 34 C.F.R. §104.4. Plaintiffs’ Complaint sufficiently pleads a violation of Section 504 and its implementing regulation, and this action should not be dismissed under Section 504.
IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court consider this Statement of Interest in this litigation and deny Defendant Harvard’s Motion to Stay or Dismiss.
15 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html (emphasis added).
16 See, e.g., OCR Letters and Resolution Agreements: University of Cincinnati (December 18, 2014), http://go.usa.gov/3XbQw and http://go.usa.gov/3XbQB (university’s websites must be accessible to persons with disabilities, including students, prospective students, employees and visitors); Youngstown State University (December 12, 2014), http://go.usa.gov/3XbnJ and http://go.usa.gov/3XbQY (same); and South Carolina Virtual Charter Schools (March 20, 2014), http://www2.ed.gov/documents/press-releases/south-carolina-charter-schoolletter.doc and http://www2.ed.gov/documents/press-releases/south-carolina-charter-school-agreement.doc (schools’ external websites and schools’ online learning websites must be accessible).
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Respectfully submitted this 25th day of June, 2015.

LORETTA E. LYNCH Attorney General for the United States

CARMEN M. ORTIZ United States Attorney District of Massachusetts

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division

/s/Jennifer A. Serafyn JENNIFER A. SERAFYN STEPHEN P. HEYMANN Assistant United States Attorneys District of Massachusetts John Joseph Moakley Federal Courthouse One Courthouse Way, Suite 9200 Boston, MA 02210 Telephone: (617) 748-3188 jennifer.serafyn@usdoj.gov

EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
REBECCA B. BOND Chief Disability Rights Section
KATHLEEN P. WOLFE Special Litigation Counsel Disability Rights Section

AMANDA L. MAISELS Deputy Chief Disability Rights Section

JAMES COLE, JR. General Counsel United States Department of Education
FRANCISCO LOPEZ MICHELLE TUCKER Attorneys United Stated Department of Education Office of General Counsel 400 Maryland Ave, S.W. Washington, D.C. 20202

/s/ Charlotte Lanvers CHARLOTTE LANVERS Trial Attorney Disability Rights Section Civil Rights Division Washington, D.C. 20202 United States Department of Justice 950 Pennsylvania Avenue, N.W., (NYA) Washington, D.C. 20530 Telephone: (202) 305-0706 charlotte.lanvers@usdoj.gov

Counsel for the United States

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CERTIFICATE OF SERVICE I hereby certify that Statement of Interest, filed through the CM/ECF system on this 25th day of June, 2015, will be sent electronically to the registered participates as identified on the Notice of Electronic Filing (NEF). I am not aware of any non-registered participants, so electronic filing is the sole means of service of this document.
Respectfully submitted, /s/ Charlotte Lanvers CHARLOTTE LANVERS Trial Attorney Disability Rights Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. (NYA) Washington, D.C. 20530 Telephone: (202) 305-0706 charlotte.lanvers@usdoj.gov Counsel for the United States of America
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 Case 3:15-cv-30023-MGM Document 50 Filed 02/09/16 Page 1 of 45

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, )

et al.,

)

Plaintiffs,

)

)

v.

)

)

HARVARD UNIVERSITY,

)

et al.,

)

)

Defendants.

)

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

REPORT AND RECOMMENDATION REGARDING DEFENDANTS’ MOTION TO STAY OR DISMISS
(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 this content.

Invoking the doctrine of primary jurisdiction, Harvard has filed a motion seeking to

dismiss the action or stay it until the Department of Justice (“DOJ”) issues regulations on

Case 3:15-cv-30023-MGM Document 50 Filed 02/09/16 Page 2 of 45
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 its entirety.
II. The Complaint 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 activity of hearing; in order to receive the benefit of the online video content Harvard makes
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. 4 n.1).
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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 the non-discrimination
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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 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 of handicap”
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).
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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. §
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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
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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).
B. Motion to Dismiss 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 actionable legal
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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 must allege (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 to provide
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 the handicapped.”).
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‘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 is a
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 court disagrees.
1. Section 504
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 Deaf v. 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 in particular). 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).
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“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 Island Pub. 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).
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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 504 liability. Paulson, 525 F.3d at 1268 (“For instance, … deaf individuals lack meaningful access to … activities or programs without the provision of interpretive assistance.”); United States v. Bd. of Tr. for Univ. of Alabama, 908 F.2d 740, 748 (11th Cir. 1990) (“In the case of a deaf student, however, all access to the benefit of some courses is eliminated when no sign-language interpreter is present. In the context of a discussion class held on the third floor of a building without elevators, a deaf student with no interpreter is as effectively denied meaningful access to the class as is a wheelchair bound student.”). Examples of cases in which the theory has been pursued abound. See, e.g., Argenyi, 703 F.3d at 451 (finding a genuine issue of material fact as to whether the defendant denied a hearing-impaired student meaningful access when it refused to provide real-time transcription for lectures and a cued speech interpreter for labs); Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (agreeing with the district court’s assessment of the evidence as showing that a hearing-impaired inmate lacked meaningful access to prison medical care, educational training, and participation in disciplinary and classification proceedings where the defendants failed to provide a sign language interpreter); Rothschild v. Grottenthaler, 907 F.2d 286, 292-93 (2d Cir. 1990) (affirming the judgment of the district court that deaf parents were denied meaningful access to certain school activities under Section 504 when the school refused to provide sign language interpreters). While the alleged facts on which Plaintiffs seek
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to premise Section 504 liability may be new (i.e. a university’s provision of online video content to the public), the failure to accommodate theory is not.
Harvard raises a number of arguments in an effort to undermine the validity of Plaintiffs’ Section 504 claim. Harvard characterizes the captioning Plaintiffs seek as “affirmative action,” which the Court in Davis held Section 504 does not require (Dkt. No. 24 at pp. 18-20; Dkt. No. 40 at pp. 10-11). However, an examination of Davis and its progeny shows that whether a particular accommodation amounts to unnecessary “affirmative action” or a required “reasonable accommodation” is a question of fact not suitable for resolution on a motion to dismiss.
The question before the Davis Court was whether the defendant college had violated Section 504 when it denied a hearing-impaired applicant who relied on lip reading for effective communication admission into its nursing program. Id., 442 U.S. at 400-04. Based on the record from the district court bench trial, the Court found that the college had established that the ability to understand speech without lip reading was necessary for participation in the clinical phase of its program. Id. at 407. The Court rejected the plaintiff’s argument that Section 504 required the college to accommodate her by providing individual supervision for clinical courses and dispensing with certain required courses altogether, thereby obviating the need for effective oral communication. Id. The Court reasoned that the “extensive modifications” sought by the plaintiff crossed the line between “the evenhanded treatment of qualified handicapped persons,” which Section 504 requires, and “affirmative efforts to overcome the disabilities caused by handicaps,” which it does not. Id. at 410. Accordingly, the defendant had not violated Section 504 by denying the plaintiff admission into its program. Id. at 413.
Subsequently, in Alexander, the Court clarified the pivotal distinction it had drawn in Davis, stating that “it is clear from the context of Davis that the term ‘affirmative action’ referred
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to those ‘changes,’ ‘adjustments,’ or ‘modifications’ to existing programs that would be ‘substantial,’ 442 U.S. at 410, 411 n.10, 413, or that would constitute ‘fundamental alteration[s] in the nature of a program …,’ id. at 410, rather than to those changes that would be reasonable accommodations.” Alexander, 469 U.S. at 300 n.20. See also Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 24 (1st Cir. 1991) (“The arguably absolutist principle[] of Davis – … there is no affirmative action obligation on an institution – w[as] meaningfully qualified by the Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court signalled [sic] its awareness of criticism that the Davis pronouncement on ‘affirmative action’ obscured the difference between ‘a remedial policy for the victims of past discrimination’ and ‘the elimination of existing obstacles against the handicapped.’ Id. at 300 n.20. It then distinguished ‘substantial’ and ‘fundamental’ changes (affirmative action) from ‘changes that would be reasonable accommodations.’ Id.”); Guckenberger, 974 F. Supp. at 146 (“The lesson of Davis (and its progeny) is that ‘while a grantee need not be required to make “fundamental” or “substantial” modifications to accommodate the handicapped,’ under Section 504 and the ADA, ‘it may be required to make “reasonable” ones.’”). An accommodation is reasonable if it does not impose “undue financial and administrative burdens.” Davis, 442 U.S. at 412. The Davis Court acknowledged, however, that “the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons [will not] always … be clear,” and noted that technological advances could be expected to shift the line over time by reducing the burden imposed by available accommodations. Id.
Thus, after Davis and Alexander, the question boils down to “the rather mushy one of whether some ‘reasonable accommodation’ is available to satisfy the legitimate interests of both the grantee and the handicapped person.” Wynne, 932 F.2d at 24 (quoting Brennan v. Stewart,
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834 F.2d 1248, 1262 (5th Cir. 1988)). Harvard may be correct that the captioning Plaintiffs seek would be so onerous a requirement as to fall on the unnecessary affirmative action side of the line, and Harvard is entitled to raise undue burden as an affirmative defense. Paulson, 525 F.3d at 1266 (identifying undue burden as an affirmative defense); Randolph, 170 F.3d at 858 (same). However, striking the appropriate balance between accommodating the rights of Plaintiffs and not unduly burdening Harvard requires a fact intensive inquiry that is not suitable for resolution on a motion to dismiss. Nunes, 766 F.3d at 146 (affirming summary judgment where “no reasonable factfinder could find the department’s accommodations were not a reasonable means of providing [the plaintiff] with meaningful access to his medication”); Fulton v. Goord, 591 F.3d 37, 44 (2d Cir. 2009) (noting that the determination of what is reasonable is a question of fact requiring inquiry “not only into the benefits of the accommodation but into its costs as well”) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995))); Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) (noting that “the reasonableness of any proposed accommodations” and “whether any proposed accommodations or auxiliary services would constitute an ‘undue burden’” are not part of the analysis on a motion to dismiss); Nathanson v. Med. Coll. of Pennsylvania, 926 F.2d 1368, 1386 (3d Cir. 1991) (“A district court’s estimate of what is reasonable ‘rests in large part upon factual determinations’” (quoting Bd. of Trs. for Univ. of Alabama, 908 F.2d at 750)).
Next, Harvard characterizes Plaintiffs’ claim as a “paradigmatic example of the type of ‘boundless-disparate impact showing’ against which the Supreme Court warned” in Alexander (Dkt. No. 24, at pp. 18-20; Dkt. No. 40, at pp. 10-11). But Plaintiffs’ theory is not that the deaf and hard of hearing have been disparately impacted by Harvard’s neutral provision to the general public of audiovisual online content. Rather, their theory is that Harvard has discriminated
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against them by denying them a reasonable accommodation – captioning – that they require in
order to meaningfully access the aural component of that content. As the First Circuit has noted,
reasonable accommodation claims “can be seen as bearing many of the indicia of disparate
impact or disparate treatment,” Nunes, 766 F.3d at 145, because, “[w]hen a disabled person is
denied a reasonable accommodation, that person lacks opportunities possessed by similar non-
disabled people on account of disability,” id. at 145 n.7. Notwithstanding any facial similarities,
however, failure to reasonably accommodate is a distinct and viable theory of discrimination
under Section 504, and Plaintiffs’ claim fits neatly with it.7 Id. at 144-45 (citing Henrietta D.,
331 F.3d at 273–76).
Harvard argues that Plaintiffs cannot base their claim on the general prohibitions against
discrimination contained in 34 C.F.R. § 104.4 of DOE’s regulations.8 Contrary to Harvard’s
assertion, the general provisions of DOE’s regulations also support Plaintiffs’ theory of
discrimination. Section 104.4 prohibits federal fund recipients from denying qualified
handicapped persons the opportunity to participate in or benefit from provided aids, benefits, and
7 Harvard’s reliance on Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414 (9th Cir. 2014) (“GLAAD”), to characterize Plaintiffs’ claim as one for disparate impact is inapposite (Dkt. No. 40 at p. 20-21). In GLAAD, the plaintiff brought a claim not under Section 504, but under California’s Unruh Civil Rights Act in connection with CNN’s policy of displaying online video programming without captioning. Id. at 420-21. Because the Unruh Act contemplates “willful, affirmative misconduct on the part of those who violate the Act,” the court held that a plaintiff must “allege, and show, more than the disparate impact of a facially neutral policy.” Id. at 425 (quoting Koebke v. Bernardo Heights Country Club, 115 P.3d 1212, 1228-29 (2005)). Because CNN’s policy applied equally to all CNN.com visitors, hearing impaired or not, it could not form the basis for an Unruh Act claim even if hearing-impaired individuals bore the brunt of the neutral policy. Id. at 426. In contrast to the Unruh Act, Section 504 encompasses claims for failure to reasonably accommodate and disparate impact, in addition to intentional discrimination. Nunes, 766 F.3d at 144-45. 8 Harvard also argues that Plaintiffs cannot state a claim under DOE’s rules regarding facilities access, see 34 C.F.R. § 104.21 - 104.23, or postsecondary education, see id. §§ 104.41-104.47, but Plaintiffs have disavowed reliance on either of those sets of regulations (Dkt. No. 34 at p. 18). Accordingly, the court need not, and does not, address them.
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services; affording qualified handicapped persons an unequal opportunity to participate in or benefit from provided aids, benefits, or services; and providing qualified handicapped persons with aids, benefits, or services that are not as effective as those provided to others. 34 C.F.R. § 104.4(b)(1)(i)-(iii). For aids, benefits, and services to be “equally effective,” they “must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement.” Id. at § 104.4(b)(2). In other words, these regulations are consistent with the requirement of “meaningful access,” and, as set forth above, Plaintiffs have adequately pleaded a lack of meaningful access. Cf. K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (“[T]he ‘meaningful access’ standard incorporates rather than supersedes applicable interpretative regulations, and so does not preclude [plaintiffs] from litigating their claims under those regulations.”). Indeed, even while arguing that § 104.4 does not support Plaintiffs’ theory, Harvard acknowledges that, to the extent the regulation is applicable, it obligates Harvard to provide “meaningful access” (Dkt. No. 40 at pp. 10-11).
The court declines to draw any inference from the fact that § 104.4 does not explicitly address the responsibilities of federal fund recipients vis-á-vis website accessibility. Online content may not be specifically mentioned in the regulation, but neither is it specifically excluded. Cf. Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200-01 (D. Mass. 2012) (observing that the ADA was passed in 1990 and could not have explicitly included webbased services, but that “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology”). Moreover, DOE’s interpretation of its regulation supports the requirement of meaningful access with respect to aids, benefits, and services offered online. DOE has stated in guidance that “equal opportunity, equal treatment, and the obligation to make modifications to avoid disability-based discrimination – are part of the general
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nondiscrimination requirements of Section 504 and the ADA,” and, therefore, “all school programs or activities – whether in a ‘brick and mortar,’ online, or other ‘virtual’ context – must be operated in a manner that complies with Federal disability discrimination laws.” U.S. Dep’t of Educ., Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter (2011) (“FAQ”). In offering this guidance, DOE was addressing the obligations of postsecondary institutions in connection with their use of electronic book readers that were inaccessible to blind or low vision students. Id.; U.S. Dep’t of Justice & U.S. Dep’t of Educ., Joint “Dear Colleague” Letter: Electronic Book Readers (2010) (“DCL”). Thus, while not directly on point, the DCL and the FAQ nevertheless affirm “key principles of Federal disability discrimination law: the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment,” in the context of the use of emerging technologies. Id.
Harvard dismisses DOE’s interpretations expressed in the DCL and the FAQ as “nonregulatory general pronouncements … not entitled to deference” (Dkt. No. 40, at p. 13). While DOE’s non-regulatory interpretations are not eligible for Chevron deference, it does not follow that they are entitled to no deference whatsoever.9 Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir. 1996) (“[L]ess formal agency determinations may be accorded something less than full Chevron deference.”). To the contrary, a court must give controlling weight to an agency’s interpretation of its own ambiguous regulation,10 even if expressed in a legal brief, unless it is
9 In Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), the Court held that if a statute is ambiguous and the implementing agency’s construction of the statute in a regulation is reasonable, federal courts must accept the agency’s construction. Id. at 843-44. 10 When a regulation is not ambiguous, no deference ensues because, otherwise, “adopting the agency’s contrary interpretation would ‘permit the agency, under the guise of interpreting a
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“‘plainly erroneous or inconsistent with the regulation,’” or there is “reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer v. Robbins, 519 U.S. 452, 461-62 (1997)). An agency’s judgement may be called into doubt when the interpretation conflicts with one it advanced earlier, id. (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)), or it appears to be “nothing more than a ‘convenient litigating position,’” id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988)), or a “post hoc rationalizatio[n] advanced by an agency seeking to defend past agency action against attack,” id. (quoting Auer, 519 U.S. at 462).
DOE’s interpretation of its existing regulations as applying to emerging technology, including online content, is neither plainly erroneous nor inconsistent with the text of 34 C.F.R. § 104.4. Nor is there any reason to suspect that DOE’s interpretation reflects anything less than the agency’s fair and considered judgment. Both the DCL and the FAQ are “significant guidance documents” as defined by the Office of Management and Budget (OMB) Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (January 25, 2007). As such, DOE was required to follow certain procedures to ensure that the documents were developed with appropriate review and public participation and were of high quality. Id. at 3443. Thus, the court is justified in granting Auer deference to DOE’s interpretation. Cf. Doe v. Univ. of Massachusetts-Amherst, No. 14-30143-MGM, 2015 WL 4306521, at *7 and n.3 (D. Mass. July 14, 2015) (noting the requirement that the court accord “appreciable deference” to DOE’s
regulation, to create de facto a new regulation.’” Chase Bank USA, N.A., v. McCoy, 562 U.S. 195, 211 (2011) (quoting Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)). The word “discrimination” is “inherently” ambiguous. Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 592 (1983).
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interpretation expressed in a Dear Colleague Letter of what actions schools are to take in response to allegations of sexual violence in order to comply with Title IX (quoting Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993))); Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 92-93 (D. Conn. 2010) (deferring to DOE’s interpretation of its own regulation as expressed in a Dear Colleague Letter). Even if Auer deference is inapplicable, however, the court nevertheless would accept DOE’s proposed interpretation as reasonable and consistent with the goal of Section 504 to ensure that “all programs, projects, and activities receiving assistance … [are] carried out in a manner consistent with the principles of … (2) respect for the privacy, rights, and equal access (including the use of accessible formats) of … individuals [with disabilities].” 29 U.S.C. § 701(c). To hold otherwise at a time when the internet has become “central to every aspect of the ‘economic and social mainstream of American life,’” Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575 (D. Vt. 2015) (quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001)), would run directly counter to that goal.
The court also accords some weight to DOJ’s interpretation expressed in its Statement of Interest filed in this case. While 34 C.F.R. § 104.4 is not DOJ’s regulation, all of DOE’s regulations must be consistent with DOJ’s coordination regulations, which require, among other things, that federal fund recipients “take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired … hearing,” 28 C.F.R. § 41.51(e), and “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. The court finds that DOJ’s interpretation of § 104.4 as applicable to emerging technology, including online content, is consistent with its coordinating regulations.
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Moreover, it is neither plainly erroneous nor inconsistent with the regulation itself nor any earlier interpretation advanced by DOJ, and DOJ is not a party to this case, leaving the court no reason to suspect that the interpretation advanced by it is a “convenient litigating position,” or a “post hoc rationalization.” United States v. Hoyt Cinemas Corp., 380 F.3d 558, 567 (1st Cir. 2004) (finding it proper to give some weight to DOJ’s interpretation of its ADA regulation “even though the Department’s gloss is offered only in a brief rather than in some more formal manner (e.g., an interpretative ruling)” (citing Auer, 519 U.S. at 461-62 and Bowen, 488 U.S. at 213)). Accordingly, Plaintiffs’ claim is cognizable under the statute, as well as the general prohibitions against discrimination contained in 34 C.F.R. § 104.4.
Finally, the fact that Plaintiffs seek captioning as an accommodation for themselves and a class of similarly situated deaf and hard of hearing individuals, as opposed to on an individual basis, does not mandate dismissal of their claim as Harvard argues (Dkt. No. 40, at pp. 12-13). The four individually-named Plaintiffs each have averred that they require Harvard’s online video content to be captioned in order to meaningfully access it, and they seek relief on behalf of themselves and a proposed class of deaf or hard of hearing individuals “who have been, or in the future will be, denied the full and equal enjoyment of [Harvard’s] online content … because that content is not accurately captioned” (Dkt. 1, at p. 23 ¶ 82). In other words, Plaintiffs have pleaded a lack of meaningful access and have identified captioning as the reasonable accommodation they require to gain that access. This is sufficient to state a claim. See, e.g., Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006). Any “flexibility [Harvard may have] to provide [some] reasonable accommodation [other than captioning] is an affirmative defense and not an appropriate basis upon which to dismiss the action.” Id. Consideration of questions implicated by the defense, such as whether captioning
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would provide deaf and hard of hearing individuals with meaningful access to Harvard’s online audiovisual content, whether captioning would impose an undue burden on Harvard, and whether any other reasonable accommodations exist that do not impose an undue burden, require a developed factual record. Harvard’s insistence that such accommodation-related questions always must be answered on an individualized basis is wrong.11 Were Harvard correct, class actions under Section 504 would be categorically impossible, and such is not the case. See, e.g., Paulson, 525 F.3d at 1259 (affirming the district court’s grant of partial summary judgment where the plaintiffs had demonstrated that millions of visually impaired individuals lacked meaningful access to U.S. paper currency, the denominations of which, due to their uniformity to the touch, they could not ascertain without assistance from others or the use of expensive electronics and where the defendant had failed to meet its burden of proving that each accommodation identified by the plaintiffs – relating to color, size, and shape, as well as the addition of durable tactile features – would impose an undue burden).
In sum, Plaintiffs’ allegations that much of Harvard’s online video content is inaccessible to millions of deaf and hard of hearing individuals, and their identification of captioning as a reasonable accommodation that would afford them the meaningful access millions of nonhearing impaired individuals already enjoy, are sufficient to state a claim under Section 504.
2. Title III of the ADA Under the ADA, the obligation to reasonably accommodate arises from the statutory language itself. Title III states that discrimination includes “a failure to take such steps as may
11 Even while arguing that individualized inquiry is necessary, Harvard implicitly acknowledges the possibility of accommodating the deaf and hard of hearing as a group when it touts that it “already has made its Massive Open Online Courses accessible to individuals with hearing impairments,” (Dkt. No. 48 at p. 3), by providing rolling transcripts (Dkt. No. 24 at p. 15).
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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). Regulations promulgated by DOJ implementing Title III require public accommodations to provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). Captioning is a recognized auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. Id. at § 36.303(b)(1).
Again, Harvard’s argument for dismissal is premised on the claim that Plaintiffs’ theory of discrimination is not cognizable under the ADA. 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, as well as Section 504.12 Nunes, 766 F.3d at 145.
12 The conclusion that the claim is tenable under both statutes should come as no surprise. In enacting the ADA, Congress stated that “[e]xcept as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or the regulations issued by Federal agencies pursuant to such title,” 42 U.S.C. § 12201(a), and federal courts routinely treat Section 504 and the ADA “as imposing parallel requirements” that are “interpreted substantially identically,” Bercovitch, 133 F.3d at 151 n.13 (citing E.E.O.C. v. Amego, Inc., 110 F.3d 135, 143 (1st Cir. 1997) and quoting Katz, 87 F.3d at 31 n.4).
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The court does not accept Harvard’s argument that DOJ’s regulations governing building accessibility and barrier removal under the ADA – found in the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”), 36 C.F.R. Pt. 1191, App. B – control Plaintiffs’ Title III claim and doom it because the ADAAG contain no website accessibility requirements. Harvard premises the applicability of the ADAAG on the First Circuit decision in Carparts. But the limited holding of Carparts – that the phrase “public accommodation” is not “limited to actual physical structures,” id., 37 F.3d at 19, – does not mean ipso facto that the ADAAG govern the accessibility of non-physical structure public accommodations. The Carparts court certainly drew no such conclusion, as the ADAAG were not at issue in the case. Moreover, the ADAAG belie any such application to non-physical structures, given their stated purpose of providing “scoping and technical requirements for accessibility to sites, facilities, buildings, and elements [i.e. physical structures] by individuals with disabilities.”13 36 C.F.R. Pt. 1191, Appendix B, § 101.1. Even if the ADAAG did apply, “the ADA ‘guarantees the disabled more than mere access to … facilities; it guarantees them “full and equal enjoyment.”’” Argenyi, 703 F.3d at 449 (quoting Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012)).
While acknowledging that some courts evaluate website accessibility under Title III’s auxiliary aids standard, Harvard insists that the ADAAG must apply because of holdings like the one from this court in Netflix (Dkt. No. 24 at 39 n.15). Harvard misapprehends this court’s holding in Netflix. The Netflix court denied the defendant’s motion for judgment on the
13 The ADAAG define these terms as follows: a “site” is “[a] parcel of land bounded by a property line or a designated portion of a public right of way;” a “facility” is “[a]ll or any portion of buildings, structures, site improvements, elements, and pedestrian routes or vehicular ways located on a site;” a “building” is “[a]ny structure used or intended for supporting or sheltering any use or occupancy;” and an “element” is “[a]n architectural or mechanical component of a building, facility, space, or site.” 36 C.F.R. Pt. 1191, Appendix B, § 106.5.
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pleadings in connection with the plaintiffs’ Title III claim arising from the defendant’s failure to provide closed captioning for its online streaming video content. Id., 869 F. Supp. 2d at 199. The court relied on Carparts to conclude that online businesses, such as the defendant’s, could qualify as public accommodations despite not being actual physical structures, not because they are the equivalent of actual physical structures, as Harvard claims (Dkt. No. 24 at p. 29 n.15). Id. at 200. In fact, after finding that the defendant was a public accommodation because it fell within one or more of the general categories enumerated in the ADA, the court treated the plaintiffs’ claim as arising under the auxiliary aids standard of the ADA, not under the ADAAG. Id. at 204 (“If the court finds that Defendant has a duty to provide closed captioning under the ADA, it may itself consider the appropriate time line for compliance, taking into account the technological and economic burdens on Defendant, under the ADA’s ‘undue burden’ analysis after further discovery.” (citing 42 U.S.C. § 12182(b)(2)(A)(iii))). Thus, the court concludes that Plaintiffs’ Title III claim is neither governed, nor foreclosed, by the ADAAG.
The court is similarly unpersuaded that Plaintiffs’ Title III claim must be dismissed because it deprives Harvard of the flexibility to choose an appropriate auxiliary aid. DOJ has identified the “auxiliary aid requirement [a]s a flexible one,” insofar as the “public accommodation can choose among various alternatives as long as the result is effective communication.” Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, 35566 (July 26, 1991). Here, Plaintiffs have alleged that Harvard is not providing effective communication and have requested captioning. The flexibility to choose an appropriate auxiliary aid does not extend so far as to allow a public accommodation to choose to provide no auxiliary aid when one is required for effective communication if a reasonable one exists. Moreover, as discussed above in connection with
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Plaintiffs’ Section 504 claim, “the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis upon which to dismiss the action.” Target, 452 F. Supp. 2d at 956. “After [P]laintiffs state a claim – by alleging that [Harvard’s online audiovisual content] is not accessible to the [deaf] – the burden then shifts to [Harvard] to assert, as an affirmative defense, that [it] already provide[s] the information … in another reasonable format….” Id. See also Noll v. Int’l Business Machs. Corp., 787 F.3d 89, 98 (2d Cir. 2015) (affirming summary judgment in favor of the defendant employer where the factual record established that it already provided the deaf plaintiff with several “plainly reasonable” accommodations that resulted in effective communication with regard to intranet video and audio files, including on-demand access to ASL interpreters, transcripts upon request, and some captioning, thus dispensing with the need to consider the plaintiff’s requested accommodations, consisting of captioning of all intranet videos and transcripts of all intranet audio files).
Finally, the court rejects Harvard’s argument that Plaintiffs’ theory of discrimination would run afoul of DOJ’s “accessible or special goods” implementing regulation, which provides that a public accommodation is not required “to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” such as “Brailled versions of books, books on audio cassettes, closed-captioned video tapes, special sizes or lines of clothing, and special foods to meet particular dietary needs.” 28 C.F.R. § 36.307(a), (c). Plaintiffs have alleged that Harvard provides the service of making audiovisual content publicly available for free online. Section 36.307 relates to goods, not services. Ball v. AMC Entm’t, Inc., 246 F. Supp. 2d 17, 24 (D.D.C. 2003) (finding DOJ’s “accessible or special goods” regulation inapplicable to the plaintiffs’ Title III claim arising from the defendant movie theater operators’ failure to show closed captioned first run movies because the defendants provide the
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“service” of screening first run movies, not a “good”). Harvard’s reliance on the fairly recent decision in Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC (RNBx), 2014 WL 1920751 (C.D. Cal. May 14, 2014), to support application of the “accessible or special goods” exception to Plaintiffs’ claim is, therefore, unavailing. The Jancik court held only that closed-captioned DVDs available for rent from self-service kiosks were “accessible” goods within the meaning of 28 C.F.R. § 36.307, and, therefore, not mandated by the ADA. Id. at *14. DVD’s, like video tapes, which are expressly identified in the regulation, are goods. The holding in Jancik does not apply to the service alleged in this case.14
Harvard argues that § 36.307 applies to both goods and services, but the two cases it cites do not support the claim (Dkt. No. 40 at pp. 18-19). In Doe v. Mut. of Omaha, Ins. Co., 179 F.3d 557 (7th Cir. 1999), the court held that “section 302(a) [of the ADA, 42 U.S.C. § 12182(a),] does not require a seller to alter his product to make it equally valuable to the disabled and to the nondisabled, even if the product is insurance.” Id. at 563. Consequently, the court found that the defendant insurance company’s policy caps on AIDS and AIDS-related conditions did not violate Title III. Id. The court did not rely on the “accessible or special goods” exception, however; the single mention it made of the exception was the observation that, by its terms, it exempts stores from altering inventory to stock specially designed goods, such as Braille books. Id. at 559. Rather, the court analyzed the issue before it by interpreting the general Title III prohibition on discrimination, 42 U.S.C. § 12182, which, by its terms, applies to both “goods”
14 The Jancik court did not address whether a captioning requirement with respect to the defendant’s internet-only streaming video programming would implicate 28 C.F.R. § 36.307, because it held that the streaming service was not a place of public accommodation in line with Ninth Circuit precedent limiting the definition of “place of public accommodation” to “actual, physical places.” Id. at *8 (citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000)). As discussed, this is not the law in the First Circuit. Carparts, 37 F.3d at 19; Netflix, 869 F. Supp. 2d at 200.
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and “services” of public accommodations. Id. at 559-61. The observation that Title III overall applies to both goods and services does not mean that the DOJ’s “accessible or special goods” exception also applies to both goods and services.
Harvard also relies on a Ninth Circuit decision in another insurance case, Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), but Weyer also does not stand for the proposition that DOJ’s “accessible or special goods” exception applies to both goods and services. Weyer did address the “general rule that public accommodations do not have to provide different services for the disabled,” but the Ninth Circuit has explained that “the requirement that establishments provide auxiliary aids and services limits” that general rule. Arizona ex rel. Goddard v. Harkins Admin. Enters., Inc., 603 F.3d 666, 672 (9th Cir. 2010) (discussing Weyer)). In other words, the auxiliary aid requirement functions as an exception to the general “accessible or special goods” rule because, “[b]y its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled.” Id. (emphasis added).
Harvard argues that this case does not present the appropriate circumstances for the general rule that public accommodations need not provide different services for the disabled to give way to Title III’s auxiliary aids standard, as described in Harkins, because it is not an auxiliary aids case (Dkt. No. 40 at p. 19). The court disagrees; this is 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.15 The inapplicability of the “accessible or special
15 The court does not disagree with Harvard’s observation that Title III does not require it to create or publish accessible online videos per se (Dkt. No. 24 at p. 34). But that observation does not go far enough. If Harvard chooses to make videos available online as a service to the
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goods” exception does not mean that Harvard must provide captioning as a matter of law. Harvard nevertheless may be able to demonstrate that providing captioning, or any other available auxiliary aid or service, “would fundamentally alter the nature” of its service or result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii). These, however, are questions of fact, unsuitable for resolution at the motion to dismiss stage. E.g., Harkins, 603 F.3d at 675.
Thus, neither Title III nor the DOJ implementing regulations foreclose Plaintiffs’ theory of liability as a matter of law.
C. Primary Jurisdiction Doctrine Having concluded that Plaintiffs’ claims are not subject to dismissal for failure to state a claim, the court turns to Harvard’s request for dismissal or a stay under the doctrine of primary jurisdiction.
1. The Legal Framework The Supreme Court “recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge.” Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68 (1970) (citing Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907)). Accordingly, the doctrine of primary jurisdiction developed to “promot[e] proper relationships between the courts and administrative agencies charged with particular regulatory duties.”16 United States v. W. Pac. R.R. Co., 352 U.S. 59, 63
general public, then it cannot discriminate against deaf and hard of hearing individuals in the “full and equal enjoyment” of that service. 42 U.S.C. § 12182(a). 16 While the doctrine is referred to under the label “primary jurisdiction,” “[t]he problem, strictly speaking, is not one of jurisdiction. Indeed it comes into play only when both the court and the agency have jurisdiction over at least portions of the dispute. Rather the problem is one of harmony, efficiency, and prudence.” Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 n.1 (1st Cir. 1979).
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(1956). “Broadly speaking, the doctrine, informed by principles of deference to agency decisionmaking, gives effect to the eminently sensible notion that ‘in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.’” Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir. 1995) (quoting Far East Conference v. United States, 342 U.S. 570, 574-75 (1952)). See also Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 580 (1st Cir. 1979) (noting that the doctrine “primarily serves as a means of coordinating administrative and judicial machinery,” in order to “promote uniformity and take advantage of agencies’ special expertise” (citations omitted)). “The doctrine … should seldom be invoked unless a factual question requires both expert consideration and uniformity of resolution.” Locust Cartgage Co. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 340 n.5 (1st Cir. 1970). When it is, “the judicial process is suspended pending referral … to the administrative body for its views.”17 W. Pac. R.R. Co., 352 U.S. at 64 (citing Gen. Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940)). Referral to the administrative agency does not deprive the court of jurisdiction; the court has discretion either to retain jurisdiction, or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Reiter v. Cooper, 507 U.S. 258, 268-69 (1993) (citations omitted); Am. Auto. Mfrs. Ass’n v. Massachusetts Dep’t of Envtl. Prot., 163 F.3d 74, 82 (1st Cir. 1998).
17 As this court has recognized, however, “‘[r]eferral’ is generally a misnomer because few statutes allow a court ‘to demand or request a determination from [an] agency; that is left to the adversary system.’” Palmer Foundry, Inc. v. Delta-HA, Inc., 319 F. Supp. 2d 110, 113 (D. Mass. 2004) (quoting Reiter v. Cooper, 507 U.S. 258, 268 n.3 (1993)). “Instead, a court invokes the doctrine … by staying its proceedings to allow one of the parties to file an administrative complaint seeking resolution of a particular issue.” Id. (citing Reiter, 507 U.S. at 268 n.3).
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“No fixed formula exists for appl[ication of] the doctrine ….” W. Pac. R.R. Co., 352 U.S. at 64. Rather, “[i]n every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. See also PHC, Inc. v. Pioneer Healthcare, Inc., 75 F.3d 75, 80 (1st Cir. 1996) (“The primary jurisdiction rubric is less an organized doctrine than a set of precedents that guide courts in deciding when an issue should be resolved in the first instance by an agency that has special competence to address it.” (citing W. Pac. R.R. Co., 352 U.S. at 64)); Brown v. Sec’y of Health & Human Servs., 46 F.3d 102, 114 (1st Cir. 1995) (“The doctrine[] of … primary jurisdiction … [consists of] judge-made rules to be applied on a case-by-case basis, taking into account the purposes of the doctrine[].” (citations omitted)). Notwithstanding the lack of a fixed formula, the First Circuit has “synthesized Supreme Court doctrine by identifying three principal factors which a court should consider in determining whether to defer: ‘(1) whether the agency determination lay at the heart of the task assigned the agency by Congress; (2) whether agency expertise was required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court.’” New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 172 (1st Cir. 1989) (quoting Mashpee Tribe, 592 F.2d at 580-81).
The first factor reflects the doctrine’s goals of avoiding disruption of an agency’s regulatory regime and promoting uniformity in regulatory interpretation. It manifests the courts’ respect for executive agencies’ power to perform their core functions as assigned by Congress. The second two factors reflect the doctrine’s goal of promoting judicial economy through an efficient allocation of courts’ and agencies’ overlapping duties. These factors ask, essentially, whether and how the court might benefit from an agency’s fact-finding abilities.
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In re Colgate-Palmolive Softsoap Antibacterial Hand Soap Mktg. and Sales Practices Litig., No. 12-md-2320-PB, 2013 WL 1124081, at *3 (D.N.H. March 18, 2013) (citing United States v. Philip Morris USA Inc., 686 F.3d 832, 837 (D.C. Cir. 2012)). “These factors, however, must be balanced against the potential for delay inherent in the decision to refer an issue to an administrative agency.” Am. Auto. Mfrs. Ass’n, 163 F.3d at 81 (citing PHC, Inc., 75 F.3d at 8081). Because of the “added expense and delay” attendant to invocation of the doctrine, it “is to be ‘invoked sparingly.’” Alpharma, Inc., v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005) (quoting Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474, 477 (8th Cir. 1988)). Cf. Palmer Foundry, 319 F. Supp. 2d at 112 (noting that the case presented a “rare instance” when invocation of the doctrine was appropriate). “In cases where the potential for delay is found to be too great to justify a straightforward referral, the court may, in its discretion, … choose not to refer the matter to the agency, or take such other action as it deems appropriate,” such as referring a matter while “explicitly providing … that if the agency fails to rule within a reasonable amount of time, the court [will] … vacate the referral order and decide the matter itself ….” Am. Auto. Mfrs. Ass’n, 163 F.3d at 81-82.
2. Application of the Framework to this Case Harvard premises its primary jurisdiction argument on DOJ’s publication on July 26, 2010, of an Advanced Notice of Proposed Rulemaking (“ANPRM”) on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. 75 Fed. Reg. 43,460-01 (July 26, 2010). In the ANPRM, DOJ announced its consideration of revising its Title III regulations to “establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with
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disabilities,” as well as its Title II regulations to establish “requirements for making the services, programs, or activities offered by State and local governments to the public via the Web accessible.” Id. Harvard seeks dismissal of this action, or, alternatively, a stay pending either DOJ’s issuance of proposed Title III requirements, which DOJ now anticipates occurring sometime in fiscal year 2018, or DOJ’s issuance of proposed Title II requirements, which DOJ anticipates occurring in the first quarter of 2016.18 See U.S. Dep’t of Justice, Statement of Regulatory Priorities (2015).
Based on consideration of the factors identified by the First Circuit, the court concludes that this case does not present one of those rare instances when the primary jurisdiction doctrine should be invoked. Neither of the twin purposes underlying the doctrine – the promotion of desirable uniformity in determining administrative questions and the resort to the specialized expertise of an agency in resolving highly technical questions of fact – would be aided by application of the doctrine in this case. On the other hand, the potential for a delay of unknown duration while the federal administrative rulemaking process proceeds on is great.
(a) Does agency determination lie at the heart of the task assigned to DOJ by Congress?
DOJ’s mandate with respect to Title III of the ADA is “to issue implementing regulations, see 42 U.S.C. § 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, § 12206(c), and to enforce Title III in court, § 12188(b).” Bragdon v. Abbott, 524 U.S. 624, 646 (1998). As such, it is certainly within DOJ’s ambit to issue implementing regulations addressing website accessibility requirements for
18 The latter stay – pending DOJ’s issuance of proposed Title II requirements – is essentially a fallback position Harvard assumed after oral argument, when Plaintiffs notified the court that DOJ had again pushed back the time when it expected to issue its proposed Title III regulations (Dkt. Nos. 47 and 48).
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public accommodations, which, as evidenced by the ANPRM, it is considering doing. But Plaintiffs are not asking this court to issue broadly applicable implementing regulations. Plaintiffs seek declaratory relief that Harvard has discriminated against the deaf and hard of hearing in its provision of online video content and injunctive relief requiring Harvard to provide captioning. DOJ has the power to provide neither. Rather, DOJ, like Plaintiffs, must turn to the courts for enforcement. 42 U.S.C. § 12186 (b)(1)(B) (“Potential Violation – If the Attorney General has reasonable cause to believe that – (i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against under this subchapter and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court.”). Whether a case is brought by a private citizen or the Attorney General, it is the function of the court to decide whether a particular defendant has violated the ADA’s prohibition against disability-based discrimination. This includes a determination of “the extent to which accommodations are required under the ADA and when such accommodations constitute an undue burden on [a particular defendant].” Arizona ex rel. Goddard v. Harkins Admin. Servs., No. CV-07-00703-PHX-ROS, 2011 U.S. Dist. LEXIS 127682, at * 8 (February 8, 2011) (“Referral to the DOJ will not resolve the question presented in this case: to what extent, if at all, the ADA … require[s] these Defendants install captioning and video description devices in their movie theaters. If and when the DOJ issues a final rule, the Court must still determine at what point, if at all, installing captioning and video description devices imposes an undue burden on these Defendants.” (emphasis in original)). Thus, determination of the issues raised by Plaintiffs’ complaint does not lie at the heart of the task assigned to DOJ by Congress. Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691-92 (3d Cir. 2011) (concluding that the matter
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before the court was not particularly within the discretion of the New Jersey Department of Environmental Protection (NJDEP) where neither the Resource Conservation and Recovery Act nor the Clean Water Act charged the agency with enforcement, instead authorizing federal courts to address environmental issues in citizen suits).
Nor would the court’s determination of the issues raised by Plaintiffs’ complaint and Harvard’s potential defenses run the risk of undermining the consistency of DOJ’s regulatory interpretation. Findings on the issues of undue burden and fundamental alteration would be specific to Harvard and the service it is alleged to be providing. Any declaratory and injunctive relief would apply only to Harvard. Compare U.S. Pub. Int. Research Grp. v. Atl. Salmon of Me., LLC, 339 F.3d 23, 34 (1st Cir. 2003) (noting that “the necessary focus upon the actions of two particular companies” weighed against referral on primary jurisdiction grounds), Mashpee Tribe, 592 F.2d at 581 (“The resolution will not affect rights of others than the parties except in the traditional legal effect that our opinion will have as precedent.”), and Heightened Indep. & Progress v. Port Auth. of New York and New Jersey, No. 07-2982 (JAG), 2008 WL 5427891, at *5 (D.N.J. December 30, 2008) (“This case involves whether elevators should have been installed at one particular PATH station, so there is no broad implication for the overall ADA regulatory scheme.”), with Blackstone Valley, 67 F.3d at 992-993 (referring to the EPA the question of whether ferric ferrocyanide constituted a “hazardous substance” within the meaning of the CERCLA statute, as the answer would have significant implications at facilities across the country), Figy v. Amy’s Kitchen, Inc., 37 F. Supp. 3d 1109, 1113 (N.D. Cal. 2014), judgment set aside by, No. C 13-03816-SI, 2014 WL 3362178, at *4 (N.D. Cal. July 7, 2014) (referring to the FDA the question of whether organic evaporated cane juice was the common or usual name of the ingredient in issue, a determination which would apply to every food product containing the
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ingredient), and Palmer Foundry, 319 F. Supp. 2d at 114 (referring to OSHA the question of “whether the alkyd resin, by way of its active ingredient linseed oil, was an ‘oxidizer’ pursuant to OSHA regulations” because “the resin’s active ingredient—linseed oil—is widely sold, distributed, and used” and a regulatory classification from the court “could generate inconsistency and disrupt ongoing commercial practices,” whereas a determination by OSHA “would insure national uniformity”).
Even if the court ultimately were to impose captioning or other auxiliary aid or service obligations on Harvard that turn out to be more exacting than DOJ’s eventual implementing regulations, it would not undermine the uniformity of DOJ’s regulatory interpretation.19 “The issue is not how much more time or how many more resources [Harvard] may or may not be required to expend as a result of an injunctive order by this court. Extra burden is not what the doctrine is meant to circumvent; additional obligation is not incompatible with nor does it undermine the agency-driven process.” Maine People’s Alliance v. Holtrachem Mfg. Co., LLC, No. Civ. 00-69-B-C, 2001 WL 1602046, at *8 (D. Me. Dec. 14, 2001). See also Baykeeper, 660 F.3d at 692 (“In light of agency inaction … over the last several years, we see little danger of a court-ordered remediation conflicting with NJDEP directives. Moreover, in the event the District Court orders remediation that imposes an additional burden on [the defendant], ‘a more stringent remediation standard … is not a reason to invoke the primary jurisdiction doctrine.’” (quoting Interfaith Cmty. Org. Inc. v. PPG Indus., 702 F. Supp. 2d 295, 312 (D.N.J. 2010))). While it might be inconvenient for Harvard to be held to a higher standard of accessibility than the DOJ requires if it ever issues its regulations, convenience of the parties is not a relevant
19 Of note, this potentiality is what Harvard identifies as the worst possible outcome of this court’s deciding this case (Dkt. No. 24, at p. 26).
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consideration in the primary jurisdiction analysis. Fontan-de-Maldonado v. Lineas Aereas Costarricenses, S.A., 936 F.2d 630, 632 (1st Cir. 1991) (citing Distrigas of Massachusetts Corp. v. Boston Gas Co., 693 F.2d 1113, 1117-19 (1st Cir. 1982)). As long as the burden imposed on Harvard in the court’s issuance of injunctive relief does not rise to the level of undue, it would not run afoul of the ADA.
Because determination of the issues raised by Plaintiffs’ complaint does not lie at the heart of the task assigned to DOJ by Congress, this factor weighs against a stay.
(b) Is DOJ expertise required to unravel intricate technical facts? Harvard’s argument for invocation of primary jurisdiction is premised largely on the consequences that ostensibly would result from the court’s imposition of a captioning requirement, and its assessment of the courts as being ill-equipped to unravel intricate technical facts relating to website accessibility that are necessary to fashion appropriate relief. As an initial matter, consideration of any possible remedy at the motion to dismiss stage is premature. Should the court find that the deaf and hard of hearing lack meaningful access to Harvard’s online video content, there will be ample opportunity, after discovery, for Harvard to show that providing captioning will be so burdensome a task that it threatens scholarly use of the internet, under the ADA’s “undue burden” and “fundamental alteration” analyses. Nevertheless, looking ahead, consideration of these defenses will not raise factual issues that call for any specialized expertise of the DOJ. These may include issues such as: the nature of the service Harvard provides, including whether that service varies depending on whether Harvard created the content or not, which website is in issue (e.g. websites under central administrative control versus third party websites), or how the content became publicly available (e.g. posted under central administrative control or by faculty, students, or alumni); the financial and administrative
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burdens a captioning requirement would impose on Harvard, including how those burdens might vary based on all of the same factors; the availability of different technologies for captioning online audiovisual content; the availability of other auxiliary aids or services; and Harvard’s resources. The court is well-equipped to address these questions. Compare Mashpee Tribe, 592 F.2d at 581 (“[T]he facts in this case, though developed and interpreted in part with the expert help of historians and anthropologists, are not so technical as to be beyond the understanding of judges or juries.”), and Romano v. SLS Residential Inc., 246 F.R.D. 432, 443 (S.D.N.Y. 2007) (“[T]he underlying factual questions, such as what treatment was given, and abuse suffered by the plaintiffs, are certainly within this Court’s ability to evaluate, and would not be illuminated by the expertise of the [Office of Mental Health].”), with Blackstone Valley, 67 F.3d at 992 (“The judicial machinery is ill-suited to fashioning a workable rule for determining whether the substance [ferric ferrocyanide] by virtue of its chemical, structural, functional, and other qualities, falls within the properly conceived definition of ‘cyanides.’ That determination is much better left to the EPA.”), and Figy, 37 F. Supp. 3d at 1113 (noting that the determination of whether “organic evaporated cane juice” was the common or usual name of the ingredient at issue involved technical questions, including “ECJ’s method of production, the differences between ECJ and other sweeteners, and its basic characterizing properties”), and Palmer Foundry, 319 F. Supp. 2d at 114 (referring to OSHA the “highly technical question” of whether the alkyd resin was an “oxidizer” pursuant to OSHA regulations).
Harvard maintains that “DOJ has the expertise to ‘unravel intricate, technical facts’ governing website and online video accessibility” (Dkt. No. 24, at p. 25), but Harvard proffers no basis for the assertion, and there is no inherent reason for concluding that DOJ has any specialized technical expertise regarding internet accessibility. Moreover, the ANPRM counsels
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the opposite conclusion. In it, DOJ seeks input from “experts in the field of computer science, programming, networking, assistive technology, and other related fields” to assist it in formulating regulations addressing website accessibility. 75 Fed. Reg. at 43,464. If DOJ had specialized technical expertise, it would not need to solicit it from the outside. Even if the DOJ has acquired some measure of expertise based on input from outside experts in response to the ANPRM issued nearly 6 years ago, “[t]he doctrine does not require that all claims touching on an agency’s expertise first be decided by the agency.” See County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1251 (9th Cir. 2009), rev’d on other grounds, Astra USA, Inc. v. Santa Clara Cnty., 563 U.S. 110 (2011). To the extent that the court needs help unraveling intricate, technical facts governing website and online video accessibility, it, too, can hear from experts.
Should the court reach the point of considering injunctive relief, it is not limited to requiring Harvard to caption every audiovisual file posted on every Harvard-related website identified by Plaintiffs for the foreseeable future. There may be shades of gray, which the court is as capable of considering as DOJ. See, e.g., Rothschild, 907 F.2d at 293 (finding it reasonable to limit the requirement that the defendant provide a sign-language interpreter for deaf parents to school-initiated conferences incident to the academic and/or disciplinary aspects of their child’s education, but not at the child’s graduation or the plethora of extra-curricular activities their child might engage in). The court might consider such options as limiting injunctive relief to only certain websites or to content made available only by certain means, creating a timeline for compliance, and treating certain existing material under a grandfather clause. E.g., Netflix, 869 F. Supp. 2d at 204 (“If the court finds that Defendant has a duty to provide closed captioning under the ADA, it may itself consider the appropriate time line for compliance, taking into account the technological and economic burdens on Defendant, under the ADA’s ‘undue burden’
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analysis after further discovery.”). The court may even consider the possibility of instituting injunctive relief that “provide[s] adequate flexibility to coordinate its decision with subsequent regulatory action.” Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 419 (5th Cir. 1976) (citing Otter Tail Power Co. v. United States, 410 U.S. 366, 375-76 (1973) (noting that the injunctive decree of the district court included language that “‘[t]he defendant shall not be compelled by the Judgment in this case to furnish wholesale electric service or wheeling service to a municipality except … under terms and conditions which are filed with and subject to approval by the Federal Power Commission,’” and had an “open end by which th[e] court retain[ed] jurisdiction ‘necessary and appropriate’ to carry out the decree or ‘for the modification of any of the provisions’”)).
Because no specialized technical expertise of the DOJ is required to unravel intricate technical facts, this factor also weighs against a stay. Having found that there is no “factual question [that] requires both expert consideration and uniformity of resolution,” the court concludes that this is not an appropriate case for invocation of the doctrine of primary jurisdiction. Locust Cartgage Co., 430 F.2d at 340 n.5. Nevertheless, the court will address the remaining factors.
(c) Would DOJ determination materially aid the court? DOJ’s issuance of its proposed rules pertaining to state and local government entities or public accommodations may be of some aid to the court. However, this possibility is not determinative of the primary jurisdiction analysis. New England Legal Found., 883 F.2d at 172 (quoting Mashpee Tribe, 592 F.2d at 580). Further, there is no reason that this case and the administrative process cannot proceed simultaneously on separate tracks. Should DOJ issue
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either set of proposed rules while this case is still pending, the parties can bring them to the attention of the court so that the court can have the benefit of whatever aid they may offer.
Moreover, while the proposed rules may be of some aid, that aid is likely to be quite limited. Even if DOJ issues proposed rules, they will be just that – proposed. The court would still have to consider how the proposed rules might shed light on the specific questions presented in this case – whether Harvard has violated the ADA’s prohibition against disability-based discrimination and the extent to which Harvard is required to provide accommodations under the ADA, if at all.
Additionally, the court already has access to the views of DOJ to an appreciable extent. DOJ has filed an appearance as an interested party on behalf of the United States. See TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 74 (2d Cir. 2002) (“Amicus briefs from an agency can serve much of the interest in consistency and uniformity of law that underlies the doctrine of primary jurisdiction, while avoiding some of the delay that sometimes results from dismissing on the ground of primary jurisdiction.”). In its Statement of Interest, DOJ reiterates its long-standing position that “the ADA applies to the Internet and web-based goods and service providers,” which it expressed beginning as far back as two decades ago. Scribd, 97 F. Supp. 3d at 574 (citing Letter from Deval L. Patrick, Assistant Att'y Gen., to Senator Tom Harkin (Sept. 9, 1996) (“Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet.”); Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites: Hearing before the House Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong., 2d Sess. 65–010 (2000) (“It is the opinion of the Department of Justice currently that the accessibility requirements of the Americans with
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Disabilities Act already apply to private Internet Web sites and services.”); 75 Fed. Reg. 43460– 01 (July 6, 2010) (“The Department believes that title III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of ‘public accommodations,’ as defined by the statute and regulations.”)). DOJ has not wavered from its view that the ADA’s “broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web sites over the Internet.” 75 Fed. Reg. 43,460-01, 43,463. The plain language of Title III mandating “‘full and equal enjoyment’ requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via Web sites.” Id. Given the consistency with which DOJ has expressed its views, the court does not view the DOJ’s position that Plaintiffs have stated a claim under existing Title III statutory and regulatory requirements as being “tailored to and articulated specifically for purposes of this particular litigation.” Blackstone Valley, 67 F.3d at 991.
Indeed, the impetus for the ANPRM was not because the DOJ viewed the ADA as not already mandating website accessibility for the disabled. Rather, as DOJ explained in the ANPRM, “[i]t has been the policy of the United States to encourage self-regulation with regard to the Internet wherever possible and to regulate only where self-regulation is insufficient and government involvement may be necessary.” 75 Fed. Reg. 43,460-01, 43,463 (citation omitted). While “[v]oluntary standards have generally proved to be sufficient where obvious business incentives align with discretionary governing standards as, for example, with respect to privacy and security standards designed to increase consumer confidence in e-commerce,” “[i]t is clear that the system of voluntary compliance has proved inadequate in providing Web site accessibility to individuals with disabilities.” Id. at 43,463-64 (citations omitted). By way of
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example, DOJ identified “Web videos and other multimedia presentations that do not have captions,” as inaccessible to the deaf. Id. at 43462.
Thus, the court credits the views of the DOJ as expressed in this case. Further, the DOJ’s consistently stated position cannot be squared with the notion that, until DOJ issues specific regulations governing website accessibility, if it ever does, public accommodations such as Harvard may discriminate against the disabled in connection with the goods, services, facilities, privileges, accommodations, and advantages they offer via the internet.
(d) What are the prospects for a timely resolution if the issue is referred? The prospects for timely action by DOJ are not good. DOJ has announced that it does not anticipate publishing its Notice of Proposed Rulemaking (“NPRM”) regarding public accommodations under Title III until fiscal year 2018, two years away.20 See U.S. Dep’t of Justice, Statement of Regulatory Priorities (2015). This is not a case where agency action is imminent such that concerns of delay can be considered minimal. Nat’l Ass’n of the Deaf v. Netflix, Inc., No. 11-cv-30168-MAP, 2011 WL 5519883, at *1 (granting a three-month stay pending imminent rule-making action by the FCC). In response to this development, Harvard suggests that the court nevertheless should stay this matter until DOJ issues its NPRM for websites operated by state and local government entities covered by Title II, which DOJ has slated to occur in the first quarter of 2016. Harvard’s argument that this court should issue a stay pending the DOJ’s issuance of proposed rules, which, even if they are ever enacted, would not apply to Harvard because they “should go a long way” toward addressing the validity of Plaintiffs’ Title III claim, is attenuated (Dkt. No. 48 at p.
20 This timeframe is not guaranteed.
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3). These circumstances do not present an appropriate case for delaying resolution of claims Plaintiffs have properly brought before this court. There is a “‘strong public interest in the prompt resolution’ of the case,” and it would be inappropriate to “defer to administrative action of uncertain aid and uncertain speed.” Mashpee Tribe, 592 F.2d at 581 (“[W]e cannot be sure how helpful the Department’s ultimate decision might be. We can, however, be certain that the decision will not be available soon. The court was right to respect the ‘strong public interest in the prompt resolution’ of the case and not defer to administrative action of uncertain aid and uncertain speed.”).
Harvard acknowledges that there is uncertainty as to when DOJ will act, but claims that federal courts have applied the doctrine of primary jurisdiction even where there is uncertainty as to the timing of agency action. Harvard relies on Heinrichs v. Wells Fargo Bank, N.A., No. C 13-05434 WHA, 2014 WL 2142457 (N.D. Cal. Apr. 15, 2014), where the district court granted a stay until the earlier of 6 months or the Federal Communication Commission’s taking action on two petitions pending before it that would be dispositive on the issue of whether the plaintiffs had a viable theory of liability. Id. at *2. Heinrichs, however, counsels against a stay in these circumstances. Six months after implementing the stay, the Heinrichs court dissolved it after determining that the FCC would not be issuing a final decision on the two petitions within the 6month stay period and further, that the FCC was unable to predict when it might reach a final decision. See Heinrichs v. Wells Fargo Bank, N.A., No. C 13-05434 WHA, Dkt. No. 62, Order Lifting Stay and Setting Case Management Conference (issued October 16, 2014). At least two subsequent courts have declined to issue stays based, in part, on Heinrichs. See Abrantes v. Northland Grp., Inc., No. 14-cv-05311-YGR, 2015 WL 1738255, at *4 (N.D. Cal. April 13,
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2015); Jordan v. Nationstar Mortg., LLC, No. 14-cv-00787-WHO, 2014 WL 5359000, at *1
(N.D. Cal. October 20, 2014).
Finally, the court does not accept Harvard’s claim that Plaintiffs will not be injured by
imposition of a stay. If Harvard is in violation of Title III as Plaintiffs allege, then Plaintiffs will
continue to be unlawfully harmed until this case is resolved. Thus, extending the period of time
Plaintiffs must wait for a possible remedy through imposition of a stay would be prejudicial.
Compare PHC, Inc., 75 F.3d at 80 (noting in declining to defer based on primary jurisdiction
concerns that when a plaintiff’s claim is for trademark infringement, there is “often some
urgency” because “[o]ngoing business conduct is likely to be involved and harm, possibly
irreparable, may be accruing), with Blackstone Valley, 67 F.3d at 993 n.16 (noting that, in
remanding the case to the district court for entry of a stay and referral to the Environmental
Protection Agency, the Commonwealth’s interests were protected because the defendant had
placed the amount sought in damages in an interest bearing trust account).
IV. Conclusion
For these reasons, it is this court’s RECOMMENDATION that Defendant’s Motion to Stay or Dismiss be denied in its entirety.21
21 The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P. 59(b), any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within fourteen (14) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof.
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DATED: February 9, 2016

/s/ Katherine A. Robertson_____ KATHERINE A. ROBERTSON United States Magistrate Judge

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 Case 3:15-cv-30023-KAR Document 173 Filed 03/28/19 Page 1 of 29

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

HARVARD UNIVERSITY, and the

)

PRESIDENT AND FELLOWS OF

)

HARVARD COLLEGE,

)

)

Defendants.

)

Case No. 3:15-cv-30023-KAR

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

ROBERTSON, U.S.M.J.

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

1 On March 16, 2016, the court was notified of the death of Diane Nettles, one of the original individual plaintiffs (Dkt. No. 57). 2 Plaintiffs’ complaint names as defendants Harvard University and its governing board, the President and Fellows of Harvard College (Compl. at p. 1, ¶ 1). In its answer, the defendant states that the legal name of Harvard University is “President and Fellows of Harvard College” (Answer at p. 5, ¶ 25).

Case 3:15-cv-30023-KAR Document 173 Filed 03/28/19 Page 2 of 29

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

3 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. Plaintiffs’ request for relief as to audio content does not differ in a material way from its request as to audiovisual content, at least for purposes of this motion.
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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

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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 Justice4 (“DOJ”) and Department of Education5 (“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
4 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. 5 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).
4

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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
5

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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., Case 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
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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
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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
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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. This pronouncement was not dicta because the good or service to which the Carparts plaintiffs sought access – an insurance plan structured so that it did not discriminate against an HIV-positive individual – was a good or service unconnected to any physical location operated by the defendants.
The Second and Seventh Circuits have similarly interpreted Title III’s general rule against disability discrimination as reaching beyond physical locations of public accommodations. In 1999, citing Carparts, the Second Circuit rejected the defendant insurance company’s argument that Title III was only intended to ensure that the disabled have physical access to an insurance company’s offices, not freedom from discrimination in its underwriting. The statute, the court held, “was meant to guarantee … more than mere physical access.” Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999), opinion amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000). That same year, the Seventh Circuit held that the “core meaning” of Title III’s general rule against disability discrimination was
plainly enough, . . . that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space, . . .) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.
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Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (citing Carparts, 37 F.3d at 19).
Other circuits have parted company with the First, Second, and Seventh Circuits, concluding that the phrase “place of public accommodation” in Title III requires “some connection between the good or service complained of and an actual physical place.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). Accord Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530, 534 n.23 (5th Cir. 2016) (“In following the Third, Sixth, and Ninth Circuits, we acknowledge our departure from the precedents of the First, Second, and Seventh Circuits, which have interpreted the term “public accommodation” to extend beyond physical places.”); Ford v. Schering-Plough Corp., 145 F.3d 601, 613–14 (3d Cir. 1998) (noting that by following Sixth Circuit precedent, the Third Circuit “parted company” with the First Circuit, which had held that “Title III is not limited to physical structures”); Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995).6 See also Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 388-393 (E.D.N.Y. 2017) (describing circuit split).
This split in the circuits is premised to some extent on the invocation of competing canons of statutory construction. There are twelve “public accommodation” categories in the statute. See 42 U.S.C. § 12181(7). Category F includes an illustrative list of service
6 In Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002), the Eleventh Circuit concluded that the plaintiffs had successfully pled a Title III claim when they alleged an “intangible” barrier, i.e. an eligibility requirement or screening policy, that prohibited their full access and enjoyment of a good or service (a gameshow) at a place of public accommodation. District courts in the Eleventh Circuit have cited this decision as support for the rule that there must, at minimum, be some connection alleged between an online service and an actual physical location operated by the defendant. See, e.g., Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1348 (S.D. Fla. 2017).
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establishments, those being “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” § 12181(7)(F). The First, Second, and Seventh Circuits, viewing the list of service establishments in conjunction with agency regulations, legislative history, and the broad policy goals of the ADA, concluded that the inclusion of “travel service” in the list of service establishments meant that Congress “contemplated that ‘service establishments’ include[d] providers of services which do not require a person to physically enter an actual physical structure.” Carparts, 37 F.3d at 19. Accord Pallozzi, 198 F.3d at 32–33; Mut. of Omaha Ins. Co., 179 F.3d at 558–59. The Third, Fifth, Sixth, and Ninth Circuits, relying on the principle of noscitur a sociis (“known by its associates”), concluded that because “[e]very term listed in § 12181(7) and subsection (F) is a physical place open to public access,” a place of public accommodation must be, or have a connection to, a physical place. Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997). Accord Magee, 833 F.3d at 534–35; Weyer, 198 F.3d at 1114; Ford, 145 F.3d at 613–14.
Harvard does not dispute that Carparts is binding on this court, nor does Harvard dispute that some services offered online are subject to Title III’s general rule prohibiting discrimination by public accommodations. Relying on cases decided by district courts in other circuits that have held that website accessibility claims rise or fall depending on whether the challenged website has a nexus to a service provided in a public accommodation’s bricks and mortar location, see, e.g., Gil, 257 F. Supp. 3d at 1348, Harvard argues that a nexus to a physical place is required by Title III and contends that Carparts did not consider and, thus does not rule out, such a nexus requirement. Harvard’s argument falls short. The contention that Carparts did not
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discard a nexus requirement is meaningless on its own and incorrect in context. Only “circuits that have concluded that places of public accommodation must be physical spaces have held that the goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA.” Id. Further, Harvard fails to acknowledge that the First Circuit’s broad pronouncement that to “limit the application of Title III to physical structures which persons must enter to obtain good and services would run afoul of the purposes of the ADA,” Carparts, 37 F.3d at 20, was made in the context of considering whether plaintiff had stated a disability discrimination claim when that claim had no nexus to any physical location operated by the defendants. Harvard’s argument echoes the reasoning of the appeals courts that have “parted ways” with the First Circuit, see, e.g., Parker, 121 F.3d at 1014 (stating that “[t]o interpret these terms as permitting a place of accommodation to constitute something other than a physical place is to ignore the text of the statute”), which this court cannot do.
Even assuming arguendo that such a nexus is required, then, drawing all reasonable inferences in Plaintiffs’ favor, they have pled such a nexus sufficiently to defeat Defendant’s Motion. Harvard operates in a bricks and mortar location (Dkt. No. 141 at 10). Plaintiffs allege that online content Harvard has made available to the general public but failed to make accessible to deaf and hard of hearing individuals includes Harvard@Home presentations designed to “‘bring [users] inside the Harvard classroom to hear current, real-life lectures or provide [them] with a front-row seat at recent University panels, Alumni College forums, and other special events’” (Compl. at p. 15, ¶¶ 47-48); free, noncredit courses offered through the Harvard Extension School (Compl. at pp. 15-16, ¶ 49); and videos with aural content in the archives of Harvard’s Peabody Museum of Archaeology and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Jr. Forum, Harvard’s Life Sciences
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Outreach Program, and Harvard’s Woodberry Poetry Room (Compl. at pp. 16-18, ¶¶ 50-51, 5456). It may be inferred that this online content is the same as a good or service that is, or was, also available at one or more physical locations at Harvard. See Gil, 257 F. Supp. 3d at 1349. Contrary to Harvard’s contention, Plaintiffs have pled the existence of inaccessible content on websites that has “a nexus with on-campus activities” (Dkt. No. 141 at 12 n.5). Carparts and the contents of the complaint do not leave room for Harvard’s argument.
The court has already rejected Harvard’s contention that Plaintiffs have failed to state a claim under the ADA insofar as their complaint extends to content that Harvard “merely hosts” (Dkt. No. 141 at 23). As it did before, Harvard relies on cases involving movie theater captioning, see, e.g., Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010), and the general principle that “the ADA ‘does not require provision of different goods or services, just nondiscriminatory enjoyment of those that are provided.’” Id. at 671 (quoting Weyer, 198 F.3d at 1115). Harkins held that Weyer did not limit the Title III requirement “that a public accommodation provide auxiliary aids and services; the requirement that establishments provide auxiliary aids and services limits Weyer’s general rule that public accommodations do not have to provide different services for the disabled.” Id. at 672. See Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *12. The DOJ regulations state as a general principle regarding the provision of auxiliary aids and services that:
[a] public accommodation shall take those steps that 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 public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
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28 C.F.R. §36.303(a). The regulations further provide, in provisions that govern the obligations of movie theaters to provide auxiliary aid and services, that “[a] public accommodation shall ensure that its movie theater auditoriums provide closed movie captioning and audio description whenever they exhibit a digital movie that is distributed with such features.” 28 C.F.R. § 36.303(g)(2). A movie theater’s obligation in the auxiliary goods and services arena is governed by a specific provision that controls over the more general obligation of public accommodations to “take those steps that may be necessary to ensure that no individual with a disability is excluded,” § 36.303(a), from availing him or herself of goods and services offered by a public accommodation. Cf. Bloate v. U.S., 559 U.S. 196, 207 (2010) (stating that, as a matter of statutory interpretation, a specific provision will apply over a provision of more general application). Neither Harkins nor the DOJ regulations can be read to state the general principle – argued for by Harvard – that a public accommodation has no obligation to make content that originates with a third party accessible to disabled individuals. The DOJ regulations simply do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. This “does not mean that Harvard must provide captioning as a matter of law. Harvard … may be able to demonstrate that providing captioning, or any other available auxiliary aid or service, ‘would fundamentally alter the nature’ of its service or result in an undue burden.” Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *12 (quoting 42 U.S.C. § 12182(b)(2)(A)(iii)). This is, however, a question of fact unsuitable for resolution on the pleadings. See Harkins, 603 F.3d at 675.
For the reasons set forth above, the court declines to grant Harvard judgment on the pleadings on Plaintiffs’ ADA claim for the reasons advanced in Defendant’s Motion.
2. Section 504
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In its motion for judgment on the pleadings, Harvard reiterates its assertion, rejected on its motion to dismiss, that the complaint fails to state a claim under Section 504’s implementing DOE regulations, which state that federal fund recipients may not deny qualified handicapped individuals, “directly or through contractual, licensing, or other arrangements,” the opportunity to participate in or benefit from aids, benefits, and services provided by a federal funds recipient. See 34 C.F.R. § 104.4(b)(1)(i).
As Plaintiffs point out, this court has ruled that: [T]he general provisions of DOE’s regulations . . . support Plaintiffs’ theory of discrimination. Section 104.4 prohibits federal fund recipients from denying qualified handicapped persons the opportunity to participate in or benefit from provided aids, benefits, or services; … and [from] providing qualified handicapped persons with aids, benefits, or services that are not as effective as those that are provided to others. … In other words, these regulations are consistent with the requirement of “meaningful access,” and . . . Plaintiffs have adequately pleaded a lack of meaningful access.
Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *7. For reasons explained at length, the court “decline[d] to draw any inference from the fact that § 104.4 does not explicitly address the responsibilities of federal fund recipients vis-á-vis website accessibility.” Id.
Pointing to the identically phrased DOJ regulations promulgated under Title II of the ADA, Harvard contends that the “aids, benefits, and services” language in § 104.4 of the DOE’s regulations implementing Section 504 covers a narrower range of functions than does the statute’s broad “program or activity” language. Relying on Noel v. New York City Taxi & Limousine Commission, 687 F.3d 63 (2d Cir. 2012), and Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015), vacated as moot sub nom. Ivy v. Morath, 137 S. Ct. 414 (2016), Harvard argues that it merely furnishes websites or platforms on which third parties post content that Harvard does not
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provide or control and that this content is not an aid, benefit, or service of Harvard (Dkt. No. 141 at 14).
In Noel, the plaintiffs sued the New York City administrative agency that was responsible for licensing and regulating taxis on the grounds that most taxicabs were inaccessible for the wheelchair-bound. The Second Circuit concluded that while Title II of the ADA, which addresses discrimination by public entities, prohibited the defendants from “refusing to grant licenses to persons with disabilities who are otherwise qualified,” it did “not assist persons who are consumers of the licensees’ product.” Noel, 687 F.3d at 69. Similarly, in Ivy, the Fifth Circuit held that because driver education was not a service of the state entity responsible for licensing private driver education schools, the licensing entity could not be held liable for discriminatory conduct by the driver education schools. Ivy, 781 F.3d at 256. The courts in Noel and Ivy relied in significant part on the DOJ’s Title II Technical Assistance Manual (“TAM”), which provides that “[t]he State is not accountable for discrimination in the employment or other practices of XYZ company [an entity which the State licenses], if those practices are not the result of requirements or policies established by the State.” TAM, § II-3.7200, available at https://www.ada.gov/taman2.html#II-3.7200 (last visited Mar. 20, 2019). See Ivy, 781 F.3d at 256; Noel, 687 F.3d at 69-70.
Harvard’s reliance on these cases is not persuasive. Plaintiffs have not alleged that Harvard functions as a regulator of its websites and platforms. Plaintiffs allege that some unquantified amount of the inaccessible content on Harvard’s websites and platforms is created or produced directly by Harvard, not by a third party (Compl. at p. 10, ¶¶ 9-10). And, in the absence of a factual record, the role Harvard plays in connection with content that Harvard itself may not create or produce is a matter of conjecture. Moreover, Plaintiffs allege, as to all of
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Harvard’s online content, that Harvard “uses administrative methods, practices, procedures and policies” that result in a lack of captioning or inaccurate captioning (Compl. at p. 11, ¶¶ 33-39). The DOJ, in TAM, as well as the courts in the Noel and Ivy cases, recognize that public entities may not establish requirements or policies governing the activities of the private actors they regulate that would result in discrimination against individuals with disabilities. TAM, § II3.7200; Ivy, 781 F.3d at 256 (stating that “a public entity cannot ‘discriminate directly or through contractual, licensing, or other arrangements’” (quoting 28 C.F.R. § 35.130(b)(1)); Noel, 687 F.3d at 687 F.3d at 70 (stating that TAM provides that licensing standards are covered by Title II although the licensee’s activities themselves are not covered). Plaintiffs allege, albeit on information and belief, that Harvard has done so.
Moreover, the regulations DOE has promulgated under Section 504 do not express the limits on responsibility that Harvard claims exist. The DOJ Title II ADA regulations that set forth the general prohibition against discrimination include the limitation that a public entity may not discriminate against a qualified handicapped individual in the administration of a licensing or certification program but “[t]he programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” 28 C.F.R. § 35.130(b)(6). DOE Section 504 regulations lack a parallel provision. Instead, the general prohibition against discrimination provides without limitation that a federal aid recipient may not discriminate in providing any aid, benefit or service to a disabled individual “directly or through contractual, licensing, or other arrangements.” 34 C.F.R. § 104.4(b)(1)(i)-(vii). In the absence of any persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to the disabled under Section 504, Harvard’s contentions in its motion for judgment on the pleadings fail. For the reasons previously stated, see Nat’l Assoc. of the
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Deaf, 2016 WL 3561622, at *5-10, and those stated herein, Plaintiffs have sufficiently alleged their claim under Section 504.
3. Third-Party Websites The complaint extends beyond Harvard’s own websites and platforms to websites hosted by third parties, including Harvard on YouTube, Harvard on iTunes U; and Harvard on SoundCloud (Compl. at p. 9, ¶ 29(a)-(c)). Harvard asserts that even if Harvard’s websites qualify as places of public accommodation under Title III (which it does not concede), it cannot be responsible under Title III or Section 504 for content posted on these third-party websites (Dkt. No. 141 at 20-21). Implementing regulations applicable to Title III and Section 504 prohibit disability discrimination by a public accommodation or a federal fund recipient “directly or through contractual, licensing, or other arrangements.” 28 C.F.R. § 36.202(b); 34 C.F.R. § 104.4(b)(1). Forbidden discrimination extends to denial of participation in “any program or activity” of an entity that receives federal assistance, 34 C.F.R. § 104.4(a), or the “goods, services, facilities, privileges, advantages, or accommodations” of a place of public accommodation. 28 C.F.R. § 36.202(a). The complaint alleges violations of Title III and Section 504 by Harvard as to content on these third-party websites. It may be that Harvard does not arrange for inaccessible content to appear on these platforms, or that Harvard lacks control over how content is displayed on third-party websites, or that captioning would not provide meaningful access to content on third-party websites for deaf and hard of hearing individuals, or that requiring captioning would fundamentally alter the nature of the service or result in an undue burden. Those are questions raised by Harvard’s affirmative defenses. The court cannot make such determinations in the absence of a more developed factual record. See Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *12.
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C. Communications Decency Act Immunity Finally, Harvard argues that it is entitled by the Communications Decency Act of 1996, 47 U.S.C. § 230 (“Section 230” or “CDA”), to immunity as to so much of Plaintiffs’ complaint as seeks an accommodation with respect to content created by third parties that is posted on Harvard’s websites and platforms or embedded in content posted on Harvard’s websites and platforms but hosted elsewhere on the Internet.
1. The Legal Framework Section 230 provides, in pertinent part: (c) Protection for ‘Good Samaritan’ blocking and screening of offensive material
(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Section 230(c)(1) “shields website operators from being ‘treated as the publisher or speaker’ of material posted by users of the site, 47 U.S.C. § 230(c)(1), which means that ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.’” Jane Doe No. 1. v. Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The CDA defines an interactive computer service (“ICS”) as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including … such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2) (emphasis supplied). See Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, 318 (1st Cir. 2017). An “information content provider” (“ICP”) is defined, in turn, as “any person or entity that is responsible, in whole or in part, for the creation or development of
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information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). “This is a broad definition, covering even those who are responsible for the development of content only ‘in part.’” Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007). “A key limitation in Section 230 … is that immunity only applies when the information that forms the basis for the … claim has been provided by ‘another information content provider.’ … Thus, an interactive computer service provider remains liable for its own speech.” Id. (quoting 47 U.S.C. § 230(c)(1); citing Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006)). “[T]here may be several information content providers with respect to a single item of information (each being ‘responsible,’ at least ‘in part,’ for its ‘creation or development’).” Fed. Trade Comm’n v. Accusearch Inc., 570 F.3d 1187, 1197 (10th Cir. 2009).
“Congress enacted [the CDA] partially in response to court cases that held internet publishers liable for defamatory statements posted by third parties on message boards maintained by the publishers.” Backpage.com, 817 F.3d at 18. “In specific statutory findings, Congress recognized the Internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’” Zeran, 129 F.3d at 330 (quoting section 230(a)(3)). “Congress made a policy choice … not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” Id. at 330-31. Accordingly, “[t]here has been near universal agreement that section 230 should not be construed grudgingly.” Backpage.com, 817 F.3d at18 (citing Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Lycos, 478 F.3d at 419; Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321-22 (11th Cir. 2006); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,
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1123 (9th Cir.2003)). The broad construction accorded to Section 230(c) has resulted in the recognition by courts across the country that “‘many causes of action might be premised on the publication or speaking of what one might call ‘information content.’’” Id. at 19 (quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009)).
Thus, courts have invoked the prophylaxis of section 230(c)(1) in connection with a wide variety of causes of action, including housing discrimination, see Chic. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671-72 (7th Cir. 2008), negligence, see Doe, 528 F.3d at 418, Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir. 2003), and securities fraud and cyberstalking, see Lycos, 478 F.3d at 421-422. Id. See also Sikhs for Justice, Inc. v. Facebook, Inc., 697 Fed. App’x. 526, 526 (9th Cir. 2017) (“[W]e have found no authority, and [plaintiff] fails to cite any authority, holding that Title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded to [defendant] under the CDA.”). Under Lycos, for Harvard to avail itself of the immunity set forth in Section 230(c)(1), “‘(1) [Harvard] must be a provider or user of an [ICS]; (2) the Plaintiffs’ claim [must be] based on information provided by another [ICP]; and (3) the claim [must] treat [Harvard] as the publisher or speaker of that information.’” Small Justice, LLC, 873 F.3d at 318 (quoting Lycos, 478 F.3d at 418). If Plaintiffs’ claims treat Harvard in the capacity of an ICS publishing a third party’s content, then, “as the publisher of a particular posting, immunity applies not only for [Harvard’s] decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally.” Lycos, 478 F.3d at 422.
2. CDA Immunity and This Case The complaint defines “Harvard’s Online Content,” which is the basis of Plaintiffs’ claims, as online content that Harvard produces and/or makes available on its platforms and seeks to hold Harvard responsible regardless of whether Harvard creates or produces the content
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that either completely lacks captioning or lacks accurate captioning (Compl. at pp. 10-11, ¶¶ 28, 36). Harvard argues that it is entitled to CDA immunity to the extent Plaintiffs seek to hold Harvard liable for providing server space and websites and platforms for content posted by third parties and for embedded content for which Harvard’s websites and platforms merely provide enabling tools that display others’ content (Dkt. No. 141 at 17). Plaintiffs respond, first, that CDA immunity only applies to the content of online material and has no application to the failure to accommodate that is the basis of their claims, and, second, that the CDA does not provide immunity for an entity like Harvard that controls who can post on its websites and platforms (Dkt. No. 147 at 18).
Plaintiffs have not pointed to any support for their claim that the CDA does not apply when a plaintiff claims disability discrimination based on a lack of access rather than on the content of speech, and the court has found none. The CDA exempts certain laws from its reach. Federal and state antidiscrimination statutes are not exempted. See 47 U.C.S. § 230(e) (providing that the CDA has no effect on criminal law, intellectual property law, communications privacy law, sex trafficking laws, or state laws that are consistent with the CDA). The Seventh Circuit considered and rejected an argument similar to the argument made by Plaintiffs. In its suit against Craigslist, the plaintiff Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) argued that “‘nothing in § 230’s text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed § 230.’” Chicago Lawyers’ Comm. for Civil Rights Under Law, 519 F.3d at 671. The Seventh Circuit acknowledged the absence of evidence that Congress considered the Fair Housing Act or the CDA’s possible effect on housing discrimination when it passed the statute,
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but it rejected the Lawyers’ Committee’s contention, reasoning that, in enacting the CDA, Congress intentionally passed a general statute and that “[t]he question [wa]s not whether Congress gave any thought to the Fair Housing Act, but whether it excluded § 3604(c) [the Fair Housing Act prohibition against discrimination] from the reach of § 230(c)(1).” Id. (citing Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-127 (1974)).
Plaintiffs’ plea for access to aural content available on the Internet is compelling. So were the claims made by the victims of sex trafficking in Backpages.com, as the First Circuit recognized. Backpage.com, 817 F.3d at 15. Just as the plaintiffs in Backpages.com could point to the Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. §§ 1591, 1595, as a congressional acknowledgement of the evils of sex trafficking and their right to protection, Backpage.com, 817 F.3d at 15, Plaintiffs in the instant case can point to Section 504 and Title III as an acknowledgement of the vital importance of equal access to goods and services for individuals with disabilities, including deaf and hard of hearing individuals. As the First Circuit observed in Backpages.com, “[t]hese laudable legislative efforts do not fit together seamlessly, and this case reflects the tension between them.” Id. In Backpages.com, faced with this tension, the First Circuit reaffirmed the view it expressed in Lycos about the breadth of the immunity conferred by Section 230. That view, which is binding on this court, does not leave room for Plaintiffs’ contention that the CDA simply does not apply to discrimination claims seeking accommodation for the disabled.7
7 Plaintiffs’ reliance on the Seventh Circuit opinions that decline to read Section 230 as providing broad immunity for website operators is misplaced (Dkt. No. 147 at 21) in view of the First Circuit’s controlling pronouncements. See, e.g., Backpage, 817 F.3d at 19; Lycos, 478 F.3d at 415 (“In Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress has granted broad immunity to entities … that facilitate the speech of others on the Internet.”).
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Turning to the three-part inquiry set out in Lycos, Plaintiffs allege that Harvard “controls, maintains and/or administers webpages, websites, and other Internet locations (‘Harvard Platforms’) on which content is made available to the general public,” (Compl. at p. 8, ¶ 28) and that Harvard’s websites and platforms “enable[] computer access by multiple users to [the] computer server[s]” on which the content that is the subject of Plaintiffs’ complaint is hosted (Compl. at p. 20, ¶¶ 63-74). Harvard acknowledges that it hosts platforms to which online content may be uploaded (Answer at pp. 2, 6, ¶¶ 2, 28). Congress chose to include educational institutions in its definition of ICS providers. 47 U.S.C. § 230(f)(2). Congress did not, as Plaintiffs suggest in passing, limit its definition of the term “interactive computer services” as that term is applied to libraries and educational institutions (Dkt. No. 147 at 19 n.23). “‘[W]hen [a] statute’s language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms.’” Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)). Plaintiffs allege that Harvard hosts a vast array of online content addressing a wide range of topics. It is not absurd to treat Harvard as an ICS provider under the CDA. The pleadings and the statute support Harvard’s contention that it functions as an ICS provider “within the meaning of Section 230.” Lycos, 478 F.3d at 419 (a website operator is a provider of interactive computer services).
Plaintiffs seek relief as to online content that Harvard creates and/or produces and other online content that it makes available on its websites and platforms (Compl. at p, 29). Harvard states in its answer that “in many instances it does not create or control the online content” on its platforms (Answer at p. 2, ¶ 2). To the extent Harvard provides platforms on which third parties post content that Harvard does not create, produce, or substantively alter, see Doe No. 1 v.
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Backpage, LLC, Civil Action No. 17-11069-LTS, 2018 WL 1542056, at *1 (D. Mass. March 29, 2018), Harvard is hosting information provided by another ICP. A fair reading of the complaint is that, while Plaintiffs are seeking relief in connection with content created or produced by Harvard, they are also seeking relief as to content that is created or produced by third parties but is available on a Harvard platform or website, (Compl. at pp. 10, 11 ¶¶ 31, 36, 39), thereby satisfying the second part of the inquiry as to some undefined portion of Harvard’s online content.
Whether Section 230 applies “does not depend on the form of the asserted cause of action; rather, it depends on whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another.” Backpage, 817 F.3d at 19. To prevail on their Title III and Section 504 claims, Plaintiffs will be required to prove that Harvard discriminated against them by failing to affirmatively accommodate deaf and hard of hearing individuals where an auxiliary aid was necessary to provide such individuals with meaningful access to online content, Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *4 (citing Nunes, 766 F.3d at 144), that is created or developed by Harvard or that is created or developed by a third party. This case is a classic auxiliary aids case, and Plaintiffs have adequately alleged liability under Title III and Section 504. Cases decided by the First Circuit and other circuits, and Congress’s decision to include educational institutions in the CDA’s definition of ICS providers, however, support the conclusion that holding Harvard liable for the inaccessibility of online content created or developed by a third party when Harvard does not alter that content
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would impermissibly “involve treating [Harvard] ‘as the publisher’ of ‘information provided by another information content provider.’” Lycos, 478 F.3d at 422.8
That Harvard is alleged to control who can post on its websites and platforms would not divest it of Section 230 immunity. “‘[L]awsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.’” Backpage.com, 817 F.3d at 18 (quoting Zeran, 129 F.3d at 330). The CDA relieves ICS providers from liability when they exercise control such as “blocking and screening of third-party content.” Id. See also Craigslist, 519 F.3d at 669 (recognizing that Section 230 relieves ICSs from liability whether or not they filter third-party postings). In Lycos, the First Circuit closed the door on the argument that an ICS’s control over the “construct and operation” of a website could be a basis for liability when a claim treats the ICS as the publisher of third-party content. Lycos, 478 F.3d at 422. Harvard’s “choices about what [third party] content can appear on [its] website[s] and in what form, are editorial choices that fall within the purview of traditional publisher functions” protected by Section 230. Backpage.com, 817 F.3d at 21; see also Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014) (rejecting the argument that Facebook did not qualify as an ICS because it could control the content posted on its website; “[t]he short answer is that Congress did not write that additional limitation into the [CDA]”).
The remaining question is whether CDA immunity entitles Harvard to any relief on its motion for judgment on the pleadings. “Preemption under the Communications Decency Act is
8 Plaintiffs’ claims under the ADA and Section 504 also remain subject to Harvard’s affirmative defenses that providing captioning or another auxiliary aid or service would result in an undue burden or fundamentally alter the nature of its online services. See Nat’l Assoc. of the Deaf, 2016 WL 3561622, at *12 (citing Harkins, 603 F.3d at 675).
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an affirmative defense, but it can still support a motion to dismiss if the statute’s barrier to suit is evident from the face of the complaint.” Id. at 1357 (citing Jones v. Bock, 549 U.S. 199, 215 (2007); Jones v. Horne, 634 F.3d 588, 600 (D.C. Cir. 2011)). “Where a court grants a Rule 12(b)(6) or Rule 12(c) motion based on an affirmative defense, the facts establishing that defense must: (1) be ‘definitively ascertainable from the complaint and other allowable sources of information,’ and (2) ‘suffice to establish the affirmative defense with certitude.’” Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (quoting Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006)). A plaintiff is “not required to anticipate and plead around affirmative defenses raised by [a defendant].” Dennett v. Archuleta, 982 F. Supp. 2d 166, 169 (D.R.I. 2013) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). Harvard asks for partial judgment on the pleadings on the basis of Section 230 immunity as to third-party content that Harvard hosts9 and content embedded in Harvard’s audiovisual content that is hosted elsewhere on the Internet.10 Harvard defines third-party content that it hosts – as opposed to creates or develops or that is embedded – to include content posted by students, individual faculty members, and other scholars (Dkt. No. 141 at 6). Plaintiffs contend that Harvard is entitled to no relief because the complaint adequately alleges that all content posted on Harvard’s websites,
9 Hosting content accessible via the Internet requires “(1) static IP (Internet protocol) addresses through which the web sites may be reached …; (2) a high-speed physical connection through which communications pass between the Internet’s transmission lines and the web sites; and (3) storage space on a server (a computer and hard disk that are always on) so that the content of the web sites can be accessed reliably.” Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). 10 Embedding an image on a webpage requires using a code that allows the individual posting content to incorporate an image hosted on a third-party server into a posting. See Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 587 (S.D.N.Y. 2018). “An embedded image will . . . hyperlink (that is, create a link from one place in a hypertext document to another in a different document) to the third-party website. The result: a seamlessly integrated [posting], a mix of text and images, although the underlying images may be hosted in varying locations.” Id.
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webpages and other platforms is “Harvard’s Online Content” and that Harvard is not entitled to CDA immunity for online content created by individuals such as faculty members and students who are closely associated with Harvard (Dkt. No. 147 at 17-18).
With one exception addressed below, Harvard’s invocation of CDA immunity is premature. Plaintiffs, who were not required to anticipate Harvard’s affirmative CDA immunity defense in their complaint, have broadly alleged that Harvard is responsible for the content that is hosted on its websites and platforms (e.g., Compl. at pp. 8, 11, 15, ¶¶ 28, 33, 48). As Plaintiffs point out, Harvard seeks immunity from liability for a “vast array of content” that is wholly undefined in the record before the court (Dkt. No. 147 at 20). The court cannot determine as a matter of law that Harvard is not in some measure a content provider as to information on its platforms that originates with students, faculty members, or other scholars. See, e.g., Blackstone Realty LLC v. Fed. Deposit Ins. Co., 244 F.3d 193, 197 (1st Cir. 2001) (stating that, “for dismissal to be allowed on the basis of an affirmative defense, the facts establishing the defense must be clear ‘on the face of the plaintiffs’ pleadings’” (quoting Aldahonda -Rivera v. Parke Davis & Co., 882 F.2d 590, 591 (1st Cir. 1989))); see also 47 U.S.C. § 230(f)(3) (defining an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”).
Even at this stage, however, it is apparent that the CDA will shield Harvard from liability for offending content (i.e., content that is uncaptioned or is otherwise inaccessible to a deaf or hard of hearing individual) that is merely embedded within online content produced or created by Harvard, however “Harvard” is defined for these purposes. By definition, embedded content is content hosted on a third-party server that is hyperlinked in its existing form to content that is
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hosted on a Harvard platform or website. See Goldman, 302 F. Supp. 3d at 587. To the extent such content is not content that was created or developed in whole or in part by Harvard, Harvard cannot be an information content provider as to embedded content. See 47 U.S.C. § 230(f)(3); see also Small Justice, LLC, 873 F.3d at 322 (concluding that, where the defendant did not alter the content posted by the third party, the defendant could not “be said to have been ‘responsible for … create[ing] or develop[ing]’ that content by reason of having actually authored it, whether in whole or in part”). Even if Plaintiffs can show that the construction and operation of Harvard’s platforms and websites limit in some way the content that can be embedded in postings on Harvard’s platforms and websites, Harvard would remain a publisher under the CDA as to embedded content. See Backpage.com, 817 F.3d at 20. Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part – in other words, is publishing a third party’s content – Harvard is entitled to CDA immunity, see id. at 20-23, and to judgment on the pleadings as to this aspect of Plaintiffs’ claims. See Klayman, 753 F.3d at 1357.
III. CONCLUSION For the foregoing reasons, the court DENIES in part and GRANTS in part Harvard’s Motion for Judgment on the Pleadings.

Dated: March 28, 2019

/s/ Katherine A. Robertson KATHERINE A. ROBERTSON United States Magistrate Judge

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 Case 3:15-cv-30023-KAR Document 202 Filed 12/09/19 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

HARVARD UNIVERSITY, and the

)

PRESIDENT AND FELLOWS OF

)

HARVARD COLLEGE,

)

)

Defendants.

)

Case No. 3:15-cv-30023-KAR

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ ASSENTED-TO MOTION TO CERTIFY THE CLASS FOR SETTLEMENT PURPOSES AND FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Dkt. No. 200)

ROBERTSON, U.S.M.J.

I.

INTRODUCTION

Plaintiffs National Association of the Deaf (“NAD”), C. Wayne Dore, Christy Smith, and

Lee Nettles (collectively, “Plaintiffs”) commenced this putative class action in February 2015.

On behalf of a proposed class of deaf and hard of hearing individuals, Plaintiffs asserted that the

defendants, Harvard University and the President and Fellows of Harvard College (collectively,

“Harvard”) were in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

and Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, because of an

alleged lack of close captioning or unintelligible captioning of videos and audio tracks made

publicly available by Harvard. Following lengthy negotiations, the parties have reached a

settlement and executed a proposed consent decree. Before the court is the Plaintiffs’ Assented-

to Motion to Certify the Class for Settlement Purposes and for Preliminary Approval of Class

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Action Settlement (“Plaintiffs’ Motion”). For the reasons set forth below, the court GRANTS Plaintiffs’ Motion.
II. CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF CONSENT DECREE Before certifying a class for purposes of settlement and preliminarily approving a class settlement agreement, the court must be satisfied that: (A) the proposed class should be certified for the purpose of settlement; (B) the settlement is fair, reasonable, and adequate; and (C) the proposed notice and notice plan satisfy due process requirements. See Fed. R. Civ. P. 23(e).
A. The Proposed Class Should be Certified i. The Requirements of Rule 23(a)
Plaintiffs propose to certify the following class: [A]ll persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard (Dkt. No. 201-1 at 4). First, the court finds, as Plaintiffs contend, that the class is sufficiently large that joinder is impracticable. See New Eng. Carpenters Health Benefits Fund v. First Databank, Inc., Civil Action No. 05-cv-11148-PBS, Civil Action No. 07-10988-PBS, 2009 WL 10703302, at *2 (D. Mass. Mar. 30, 2009). The threshold for numerosity is not high. See Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 292 (D. Mass. 2011). The online content at issue in this case is publicly available and of interest to a wide range of individuals. There is a substantial population of individuals in this country who are deaf or hard of hearing, any one of whom may have sought
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access during the relevant period to audio or audiovideo content that Harvard makes available to the general public on one of Harvard’s websites or on an official channel hosted by a third party platform such as YouTube. Moreover, Plaintiffs represent that discovery established that dozens of NAD members sought access to Harvard’s online web materials before and during the course of this litigation.1 This information is a sufficient basis for finding that the numerosity requirement is satisfied, and the court so finds.
The court also finds that the commonality and typicality requirements are satisfied. See Connor B., 272 F.R.D. at 292-93 (stating that the commonality and typicality requirements tend to merge) (citing Gen’l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Commonality is, again, not a high bar. See id. at 293. Here, all members of the proposed class are in the same position legally vis-à-vis the accessibility of Harvard’s online content. As the proposed class is defined, all of its members are deaf or hard of hearing and have been unable to access Harvard’s online content because it was not captioned or it was captioned unintelligibly. “The third requirement of Rule 23(a) requires that the named Plaintiffs’ claims be typical of the absent class members. The claims of the entire class need not be identical, but the class representatives must generally ‘possess the same interests and suffer the same injury’ as the unnamed class members.” Id. at 296 (quoting Falcon, 457 U.S. at 156). Plaintiffs allege that each named class representative and each member of the proposed class has been denied access to the same
1 As of December 6, 2019, Harvard’s YouTube channel had 1.05 million subscribers. See Harvard Univ. (Dec. 6, 2019), youtube.com/user/Harvard?app=desktop). On the same date, Harvard represented that more than 20 million individuals have enrolled in online courses offered without charge through edX, a nonprofit organization started by Harvard and the Massachusetts Institute of Technology with a mission of bringing education to everyone, everywhere. See About edX (Dec. 6, 2019), edx.org/about-us. These numbers illustrate the wide appeal of Harvard’s online offerings.
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uncaptioned material pursuant to the same general practices of Harvard, thus satisfying the requirements of a common interest and a common injury.
Fourth, the requirement for fair and adequate representation of the proposed class is satisfied. “[A] named plaintiff is adequate if his ‘interests … will not conflict with the interests of any of the class members,’” Brito v. Barr, 395 F. Supp. 3d 135, 147 (D. Mass. 2019) (quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985)) (alteration in original), if common legal questions apply to the claims of the named plaintiffs and members of the proposed class, id. at 148, and if the attorneys representing the class are qualified and competent. Connor B., 272 F.R.D. at 297 (citing Andrews, 780 F.2d at 130). As noted above, the interests of the named plaintiffs and those of members of the proposed class are the same, as are the legal questions raised by their claims. Counsel for all parties in this case have provided representation of the very highest caliber, vigorously and thoughtfully advocating for their clients. For their part, Plaintiffs have ensured that they are represented by experienced advocates who specialize in litigating disability rights class actions. Plaintiffs are represented by Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy, Tatum A. Pritchard, and Caitlin Parton of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Namita Gupta of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf. Plaintiffs’ counsel report that they have invested substantial time and resources in litigating this case, have conducted an extensive investigation into questions related to the captioning of Harvard’s online content, and that the legal team includes lawyers who have a deep familiarity with the needs of individuals who are deaf or hard of hearing and with the state-of-
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the-art technology that can serve their needs (Dkt. No. 201 at 15-16). The requirements of Rule 23(a) are satisfied.
ii. The Requirements of Rule 23(b)(2) “In addition to satisfying the four elements of Rule 23(a), Plaintiffs must demonstrate that they also meet one of the requirements set forth in Rule 23(b). Here, Plaintiffs assert that they have satisfied the requirements of Rule 23(b)(2), which applies when ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.’” Connor B., 272 F.R.D. at 297 (quoting Fed. R. Civ. P. 23(b)(2)). This is a quintessential Rule 23(b)(2) case. See Reid v. Donelan, 297 F.R.D. 185, 193 (D. Mass. 2014) (stating that “civil rights actions like this one, where a party charges that another has engaged in unlawful behavior toward a defined group, are ‘prime examples’ of Rule 23(b)(2) classes”) (quoting Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 614)). In alleging a lack of access to Harvard’s publicly available online content, Plaintiffs, on their own behalf and on behalf of the potential class, have advanced a common contention in this litigation “generally applicable to all members of the class.” Id. Plaintiffs seek injunctive relief that sets standards for access to Harvard’s online content for individuals who are deaf or hard of hearing and do not “request any damages that have the potential to muddy the analysis.” Id. Harvard has assented to Plaintiffs’ Motion and does not dispute that Plaintiffs have shown that the class meets the requirements of Rule 23(b)(2) and that class treatment is appropriate. For the foregoing reasons, the court will certify the proposed class as defined above for settlement purposes, appoint plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives, and appoint Plaintiffs’ proposed counsel as counsel for the class. B. Preliminary Approval of the Proposed Consent Decree
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A court may approve a class settlement only if the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The factors by which a proposed settlement is judged are whether: (i) the class representatives and class counsel adequately represented the class; (ii) the proposed settlement was negotiated at arm’s length; (iii) the relief obtained for the class is adequate; and (iv) the proposed settlement treats class members equitably relative to each other. Id. Judged by these factors, the court finds that the proposed Consent Decree is fair, reasonable, and adequate.
i. Plaintiff’s Class has been Admirably Represented “The duty of adequate representation requires counsel to represent the class competently and vigorously and without conflicts of interest with the class.” In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 36 n.12 (1st Cir. 2009). The court must be satisfied that the interests of the class representatives do not conflict with the interests of any of the class members, Andrews, 780 F.2d at 130, and that Plaintiffs’ counsel are qualified and experienced and provided vigorous representation during the course of the case. Id. As is set forth above, the interests of C. Wayne Dore, Christy Smith, and Lee Nettles, the named plaintiffs, are consistent with the interests of the members of the proposed class. All share a common interest in access to Harvard’s online content as defined in the proposed Consent Decree (Dkt. No. 201-1). Because the class representatives seek “the same remedy . . . based on an identical theory” as the rest of the class, there is no conflict between the class representatives and other members of the proposed class. See Reid, 297 F.R.D. at 191. The class representatives have actively participated in this litigation, regularly attending substantive hearings held by the court and consulting with counsel about the management and direction of the litigation. NAD, one of the plaintiffs, is the leading national civil rights organization
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advocating for deaf and hard of hearing individuals and is uniquely positioned to represent the interests of the class. Plaintiffs have retained qualified and highly skilled attorneys with a demonstrated record of success in cases similar to this one (Dkt. No. 201 at 15-16, 18 n.3). This case was filed when pre-suit discussions between Plaintiffs’ counsel and Harvard did not result in an agreement about access to Harvard’s online content for members of the general public who are deaf and hard of hearing. Settlement was reached after four years spent alternately litigating and negotiating. Plaintiffs’ counsel investigated the factual and legal bases for the class claims, opposed two dispositive motions, engaged in extensive discovery and analysis of the information received from Harvard, and negotiated long and hard seeking the best outcome for their clients. The court has no doubt that Plaintiffs’ counsel have vigorously and competently represented their clients in reaching the proposed settlement. See Connor B., 272 F.R.D. at 297.
ii. The Proposed Consent Decree Results from True Arm’s Length Negotiations A settlement is presumed to be reasonable when it is achieved by arm’s length negotiations conducted by experienced counsel. In re Pharm. Indus., 588 F.2d at 33; Roberts v. TJX Cos., Inc., Civil Action No. 13-cv-13142-ADB, 2016 WL 8677312, at *5-6 (D. Mass. Sept. 30, 2016). The proposed settlement is the product of extended negotiations that began even before the litigation was filed. The settlement has been extensively negotiated among counsel and during multiple sessions in formal mediation, first with Linda Singer, a private mediator, and then with Magistrate Judge Judith Dein of this court. It is obvious to the court that Plaintiff’s counsel have invested substantial time and resources to advance the interests of the settlement class. In the court’s view, settlement is an eminently reasonable choice. The court has twice ruled that Plaintiffs’ complaint states claims under the Rehabilitation Act and Title III of the ADA. At the same time, because the case raises complex and unresolved issues under Title III
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and the Communications Decency Act of 1996, 47 U.S.C. § 230, it is difficult to predict the outcome of this case. Further, Harvard acknowledges the importance of access to its publicly available online content, has expressed a commitment to accessibility, and recently enacted its Digital Accessibility Policy (“Policy”) addressing this issue. In view of these factors, the court has been of the view that a negotiated settlement might be possible and would serve the interests of all parties. The settlement the parties have negotiated achieves positive results for class members beyond those available under Harvard’s recently adopted Policy (which Harvard may have been motivated to adopt in response, at least in part, to this litigation). See Bacchi v. Mass. Mut. Life Ins. Co., Civil Action No. 12-11280-DJC, 2017 WL 5177610, at *2 (D. Mass. Nov. 8, 2017). The court is informed that “[t]he parties reached full agreement on the injunctive relief before beginning to negotiate attorneys’ fees and costs,” The Civil Rights Educ. & Enf’t Ctr. v. RLJ Lodging Tr., Case No. 15-cv-0224-YGR, 2016 WL 314400, at *2 (N.D. Cal. Jan. 25, 2016), a further indication that counsel placed their clients’ interests firmly in first place.
For the foregoing reasons, the court will grant preliminary approval of the proposed consent decree and will hear further argument for or against the decree at the fairness hearing, which will be held on February 25, 2020. See In re P.R. Cabotage Litig., 269 F.R.D. 125, 142 (D.P.R. 2010).
III. PROPOSED NOTICE AND NOTICE PLAN The parties have shown the court that it will likely be able to approve the proposed
consent decree and certify the class for purposes of judgment on the proposal. See Fed. R. Civ. P. 23(e)(1)(B)(i) and (ii). Accordingly, the court must “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1)(B).
Class members are entitled to receive “the best notice practicable” under the circumstances. Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (citing Fed. R.
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Civ. P. 23(c)(2)). Notice is satisfactory “if it generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.” Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal citation and quotation marks omitted). “The hallmark of the notice inquiry … is reasonableness.” Lucas v. Kmart Corp., 234 F.R.D. 688, 696 (D. Colo. 2006) (citing Sollenbarger v. Mountain States Tel. & Tel. Co., 121 F.R.D. 417, 436 (D.N.M. 1988)); see also, e.g., Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988). The Civil Rights Educ. & Enf’t Ctr., 2016 WL 314400, at *11 (alteration in original). The parties have conferred and agreed upon a proposed notice and a proposed notice plan. Having reviewed the proposed notice, the court finds that it satisfies the notice standard. The proposed notice includes a clear and comprehensive summary of the provisions of the proposed settlement. It defines the relevant terms, explains what content will be captioned, when the captioning will occur, and “explains to class members their right to object and be heard in open court.” Id., at *12. The jointly crafted notice plan provides that Plaintiffs’ counsel will create a website where a copy of the notice in English and American Sign Language will be posted. The Civil Rights Education Center, the Disability Law Center, the Disability Rights Education and Defense Fund, and NAD will post a link to the notice page on their respective websites; the organizations will email an accessible copy of the notice to their members; class counsel will email an accessible copy of the notice to other organizations who may provide services to class members; and, for six weeks, Harvard will post a link to an accessible copy of the notice on six Harvard web pages. The court is satisfied that this electronic publication is “the most reasonable manner to ensure that class members receive word of the settlement.” Id., at *12; see also Colo. CrossDisability Coal. v. Abercrombie & Fitch Co., Civil Action No. 09-cv-02757-WYD-KMT, 2015 WL 5695890, at *2 (D. Colo. Sept. 29, 2015) (finding that a similar notice plan satisfied Rule 23(e) and Due Process). Online publication of the notice is particularly appropriate here because
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the class, by definition, consists of individuals who access online content and have at least some
familiarity with the Internet. Accordingly, the court will approve the form of notice and the
jointly proposed notice plan as the best form of notice in the circumstances of the case.
IV. CONCLUSION
As set forth above, the court holds as follows:
1. The following class is certified for settlement purposes:
All persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard.
2. The court appoints named plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives.
3. The court appoints the following lawyers as class counsel: Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy, Tatum A. Pritchard, and Caitlin Parton of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Namita Gupta of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.
4. The proposed Consent Decree is preliminarily approved.
5. The proposed notice and the jointly proposed plan for dissemination of the proposed notice is approved.
6. The court sets the following deadlines:
a. Plaintiffs will issue the notice to the class by December 16, 2019; b. The deadline to submit objections to the settlement in accordance with
the instructions in the notice is February 10; 2020; c. Responses to objections will be submitted by February 17, 2020; and
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d. A fairness hearing will be held on February 25, 2020 at 11:00 a.m.

It is so ordered.

Dated: December 9, 2019

/s/ Katherine A. Robertson KATHERINE A. ROBERTSON United States Magistrate Judge

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