In a previous blog entry, which I keep on my greatest hits section of my blog, I discuss what you need to do with respect to auditing your educational institution for ADA compliance. In #14 of that blog entry, I mentioned that whatever services are being offered on the Internet, the institution needs to investigate and ensure that those services and programs are accessible to people with disabilities. In another blog entry, I talked about when a private entity needs to have all of its operations accessible to persons with disabilities per the Rehabilitation Act if they take federal funds. In light of those blog entries, I am struggling to understand the approach taken by the defense team of MIT and Harvard in the MOOC accessibility cases. In identical filings, the Department of Justice in their statement of interest rebuts the claims of both Harvard and MIT. In short:
1. The doctrine of primary jurisdiction is not applicable. Primary jurisdiction is a doctrine that says the court should defer the case until proper rulemaking ensues. In this case, that would be until the Department of Justice promulgates a final title III rule regarding website accessibility standards. The Department of Justice says that doctrine should not apply for several reasons:
A. The title II regulations regarding web accessibility were scheduled for publication in spring of 2015 but is not yet published. The title III regulations applicable to web accessibility are scheduled for publication in the spring of 2016 and then a period of public comment must ensue before the final rules are issued. Finally, the scope and timing of any final rule on web accessibility is speculative and “far from imminent,” and while the title III proposed rule is currently scheduled for spring 2016 publication, there is no scheduled date for publication of the final rule (I might add that one wonders if the presidential election will affect the timing of these regulations or if the regulations will come out at all prior to the election).
B. Since title III rulemaking on the subject is not imminent, dismissing or staying the case on primary jurisdiction grounds significantly prejudices plaintiff with disabilities.
C. The effective communication provisions are something easily within the competency of the court and no specialized agency expertise is necessary to address those claims.
2. From the statement of interest, both Harvard and MIT argue two points. First, websites are not subject to title III’s barrier removal requirements nor are they subject to the Rehabilitation Act. Second, online programming does not need to be captioned because a place of public accommodation does not need to stock accessible or special goods. The Department of Justice is having none of it because:
A. MIT and Harvard, as places of education are places of public accommodations under the ADA and as such are subject to the general nondiscrimination and effective communication requirements.
B. Communication barriers need not be structural since title III facilities are required to provide auxiliary aids and services to persons with disabilities.
C. The accessible goods or inventory approach does not fly because persons with disabilities are not seeking accessible goods or a different inventory, rather they are only seeking access to the same content that the universities make available to the general public.
D. § 504 applies to anyone that is a qualified individual with a disability. Further, the final regulations implementing § 504 of the Rehabilitation Act, in particular 34 C.F.R. § 104.4, require; that a recipient of federal funds ensure qualified individuals are given the opportunity to participate in or benefit from an aid, benefit, or service equal to that afforded others; ensure that equally effective aid, benefits, and services are given so that otherwise qualified persons with disabilities have the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as persons without disabilities; and prohibits the provision of an aid, benefit, or service that is not as effective as that provided to others.
E. Since MIT and Harvard are offering its online programming to all members of the general public, plaintiffs are qualified/otherwise qualified because they meet the essential eligibility requirements for such services.
F. DOJ guidance makes clear that colleges and universities must ensure that emerging technology when it is required to be used must be implemented in a way that afforded persons with disabilities an equal opportunity to participate in and benefit from the technology.
1. Interesting that the Department of Justice mentions in its filings the 504 implementing regulations and the Rehabilitation Act, but they don’t mention what was discussed in this blog entry that talks about how a place of education that takes federal funds must have all of its operations accessible to persons with disabilities.
2. The Department of Justice point that accessible goods and a different inventory are not what is involved here, but rather accessibility to what is being offered by the University involved is, seems to me to be fairly compelling.
3. Within the definition of auxiliary aids and services under the ADA, it is pretty clear that it is just not structural barriers that are involved, but all kinds of communication barriers.
4. The effective communication regulation is a final regulation, and therefore the courts have to give it Chevron deference (hard to believe that this regulation would not satisfy the requirements for Chevron deference).
5. If the University is indeed offering a product to all members of the public, then any member of the public with a disability would be an otherwise qualified person with a disability as the only essential eligibility requirement would be being a member of the public.
6. Don’t expect web accessibility rules, particularly title III rules but perhaps title II of rules as well, anytime soon.
In short, I wonder if there is something missing from what I know from this statement of interest filing because I am really struggling with the approach that is being apparently taken by the universities.
We will have to stay tuned for further developments.