For those who remember law school, the typical law school exam was a completely crazy hypothetical with thousands of issues in it. The idea was to spot all the issues and somehow mention that you knew how to deal with them within the allotted timeframe. I was reminded of that experience when I read National Association of the Deaf v. Harvard University.  In particular, the magistrate recommended that the motion to dismiss be denied. Harvard threw every possible defense they could think of at the National Association of the Deaf with none of them sticking. As is my usual practice, I have divided the blog entry into categories: facts; defenses; and takeaways. With respect to defenses, I have divided the defenses into subcategories: general thoughts; title III of the ADA; § 504 of the Rehabilitation Act; and the primary jurisdiction doctrine.



Harvard controls, maintain, and administers webpages, website, 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. It creates and produces some but not all of the content. Included within that content are thousands of audio and audiovisual files. Millions of people around the world have access to online video content that Harvard makes freely available. While some of the online video content is captioned, much of it has no captioning or has captioning that is inaccurate. As a result, the aural component is inaccessible to the plaintiffs and to those who are deaf or hard of hearing. Beginning in December 2013, plaintiffs repeatedly requested that Harvard ensure that its online video content contain timely and accurate captioning. The complaint alleged that Harvard’s failure to provide the captioning necessary to ensure effective communication and equal opportunity for the deaf and hard of hearing to benefit from the online video content violated § 504 of the Rehabilitation Act as well as title III of the ADA.



Failure to State a Claim

A. General Thoughts

1. In order to state a claim for violation of § 504 in title III of the ADA, a plaintiff must allege: 1) that he or she is disabled and otherwise qualified; 2) that the defendant receives federal funding (for § 504 purposes), and is a place of public accommodation (for ADA purposes); and 3) that the defendants discriminated against the plaintiff based on disability.

2.  There are three possibilities with respect to a plaintiff alleging disability discrimination. First, a plaintiff can assert that a disability actually motivated the defendant’s challenged adverse conduct (disparate treatment). Second, the plaintiff can assert that a defendant’s challenged conduct, even if not motivated by discriminatory animus, disparately affected the disabled (disparate impact). Third, the plaintiff can complain that the defendant refused to affirmatively accommodate his or her disability where such accommodation was needed to provide meaningful access.

B. Title III of the ADA

1. Harvard argued that title III of the ADA does not apply to websites. The court was having none of it because the allegations are that Harvard itself is a place of public accommodation as an educational institution and the websites are benefits, services, or privileges offered by it to the general public. Accordingly, it isn’t necessary to decide whether title III of the ADA applies to websites. The court did note that in the First Circuit non-physical places are subject to title III of the ADA per Carparts.

2. Harvard’s argument that the Department of Justice regulations governing building and accessibility and barrier removal under the ADA control the title III claims of the plaintiff’s because such guidelines contain no website accessibility requirements simply doesn’t fly.

3. Those specific guidelines specifically do not apply to non-physical structures, but that doesn’t mean that the ADA doesn’t apply to non-physical structures. Also, even if the architectural guidelines did apply, the ADA goes beyond requiring access to facilities since it guarantees persons with disabilities full and equal enjoyment of those facilities.

The argument that Harvard is being denied the flexibility to choose an appropriate auxiliary aid doesn’t work because the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis to base a motion to dismiss upon.

4. It is absolutely true that a place of 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. However, that particular regulation only relates to goods and not to services and it is services that are involved here.

§ 504

1. The essence of § 504 is a prohibition against discriminating against an otherwise qualified handicapped individual solely by reason of the handicap. That has been interpreted by the Supreme Court as demanding that persons with disabilities be provided with meaningful access to the benefit offered by the recipient of federal funds.

2. Meaningful access is a fact specific inquiry. That said, where the plaintiff identifies an obstacle impeding their access to a program or benefit, they likely have established a lack of meaningful access to the program or benefit.

3. Under the meaningful access standard, the focus is on whether the person with a disability is afforded evenhanded treatment in the opportunity to participate in and benefit from program receiving federal financial assistance.

4. The theory of the complaint that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content offered by Harvard to the public online fits squarely within the parameters of § 504 and such a theory has been recognized as a classic example of § 504 liability.

5. Whether a particular accommodation is a reasonable accommodation or extends into “affirmative action,” (think undue burden or fundamental alteration), is a question of fact not suitable for resolution on a motion to dismiss. In other words, striking the appropriate balance between accommodating the rights of plaintiff and not unduly burdening Harvard requires a fact intensive inquiry not suitable for resolution on a motion to dismiss.

6. Harvard’s characterization of the complaint in terms of disparate impact and disparate treatment isn’t on point because both of those claims can often be seen in the context of failure to accommodate claims. As mentioned above, failure to reasonably accommodate a person with a disability is a distinct and viable theory of discrimination under § 504 and the plaintiffs claims squarely fit within that.

7. Harvard’s argument that the plaintiff cannot base their claim on the general prohibitions of discrimination contained in 34 C.F.R. § 104.4 of the Department of Education’s regulations doesn’t fly because those regulations are consistent with the requirement of meaningful access. Since meaningful access incorporates rather than supersedes applicable interpretive regulations, the plaintiff is not precluded from litigating their claims under those regulations.

8. Harvard admits that to the extent the Department of Education regulation is applicable, it is obligated to provide meaningful access.

9. While online content is not specifically mentioned in the regulation, neither is it specifically excluded, and the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.

10. The Department of Education’s interpretation of its regulations support the requirement of meaningful access with respect to aids, benefit, and services offered online. The Department of Education has stated in guidance that equal opportunity, equal treatment, and the obligation to make modification to avoid disability-based discrimination are part of the nondiscrimination requirements of § 504 and the ADA. Therefore, they have said that all school programs or activities-whether in a brick-and-mortar online or other virtual contexts-have to be operated in a manner complying with federal disability discrimination laws.

11. The argument that the regulation is not entitled to deference doesn’t hold up because the court has to give controlling weight to an agency’s interpretation of its own ambiguous regulation unless it is plainly erroneous or inconsistent with the regulation or there is reason to suspect that the agency’s interpretation does not reflect the agencies bearing considered judgment on the matter in question. In this situation, the Department of Education’s interpretation of its existing regulations so as to apply it to emerging technology, including online content, is neither plainly erroneous nor inconsistent with the regulation. There is also no reason to suspect that the interpretation reflects anything less than fair and considered judgment on the part of the Department of Education.

12. The fact that the plaintiffs are alleging a class action does not torpedo the § 504 claims because each of the plaintiffs have pleaded a lack of meaningful access and have identified captioning as the reasonable accommodation required to gain that access.

Primary Jurisdiction Doctrine

1. The doctrine of primary jurisdiction is a doctrine that provides where there are cases raising issues of fact not within the conventional experience of judges and are cases requiring the exercise of administrative discretion, the agency created by Congress for regulating the subject matter should not be passed over. It is a doctrine that should not be invoked unless a factual question requiring both expert consideration and uniformity of resolution is present. When both are the case, the judicial process is suspended pending referral to the administrative body for review. Such a referral to the administrative agency does not deprive the court of jurisdiction, rather the court has discretion to retain jurisdiction or dismiss the case without prejudice in the event the parties would not be unfairly disadvantaged.

2. The elements of primary jurisdiction are: 1) whether the agency determination lay at the heart of the task assigned by the agency by Congress; 2) whether agency expertise was required to unravel intricate, technical facts; and 3) whether, though not determinative, the agency determination would materially aid the court.

3. On July 26 of 2010 the Department of Justice published an event notice of proposed rulemaking regarding accessibility of web information and services of state and local governmental entities and public accommodations. However, those regulations, with respect to title III of the ADA, have now been postponed until sometime in fiscal year 2018 (I might add that considering we have an election coming up, even that would be in doubt).

4. While it is certainly within the Department of Justice’s ambit to issue implementing regulations addressing website accessibility requirements for places of public accommodations, the plaintiffs are not asking the court to issue such regulations. Instead, they are seeking declaratory relief that Harvard discriminated against the deaf and hard of hearing with respect to its provision of online video content and injunctive relief requiring Harvard to provide captioning. The Department of Justice has the power to provide neither remedy.

5. The court’s determination of the issues raised by the plaintiff’s complaint do not run the risk of undermining the consistency of Department of Justice regulatory interpretation because any findings on the issue of undue burden and fundamental alteration would be specific to Harvard and the service it is alleged to be providing. For that matter, any declaratory and injunctive relief would also only applied to Harvard.

6. While it is possible and inconvenient for Harvard to possibly be held to a higher standard of accessibility than what the Department of Justice might require if it ever issues its regulations, convenience of the parties is not a relevant consideration in primary jurisdiction analysis. That is, as long as the burden imposed upon Harvard does not rise to the level of undue burden, the ADA is not violated and primary jurisdiction is not offended.

7. Consideration of the defense of undue burden and fundamental alteration does not call for any specialized expertise of the Department of Justice. In particular the question to be faced by the court include such things as: whether the service varies depending upon whether Harvard created the content; the website in issue; how the content became publicly available; the financial and administrative burdens a captioning requirement imposes upon Harvard; the availability of different technologies for captioning online content; the availability of other auxiliary aids or services; and Harvard’s resources. All of those issues are things a court is well-equipped to address.

8. Harvard offers no basis for the assertion that the Department of Justice has the expertise to unravel intricate, technical facts governing website and online video accessibility. In fact, the notice of proposed rulemaking suggested completely the opposite. That is, if the Department of Justice had such specialized technical expertise, there would be no reason to solicit it from the outside. To the extent the court needs help unraveling intricate, technical facts governing website and online video accessibility, it has the ability to hear from experts.

9. Whether proposed rules pertaining to state and local government entities of public accommodations, which DOJ is expected to issue sometime this year, would be helpful to the court, is not determinative of whether primary jurisdiction applies in this case. Even so, there is no reason why this case and the administrative process cannot both proceed simultaneously on separate tracks. That is, if DOJ ever does issue the rules for website accessibility with respect to state and local governments, the parties have the ability to bring that to the attention of the court.

10. While the proposed rules may be of some help, assuming they are issued, the court still has to consider how the proposed rules shed light on the specific question presented i.e. 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 any. Further, those rules would be just proposed rules and not final rules.

11. It is unnecessary to put everything off until regulations are issued since the Department of Justice is already involved in this case having made an appearance as an interested party. Accordingly, the court can get the Department of Justice views just from the case proceeding.

12. The prospect for timely resolution of the issue if referred to the Department of Justice are not good (that is an understatement considering they are proposing regulations in 2018 and an election is coming up). Further, there is a strong public interest in the prompt resolution of this case and therefore, it is inappropriate to defer to administrative action of uncertain aid and uncertain speed. It is impossible to know how helpful the department’s ultimate regulations might be, but it is certain that the decision will not be available soon.

13. Harvard’s claim that the plaintiff will not be injured by imposition of a stay simply doesn’t hold. That is, if Harvard is in violation of title III, then plaintiff will continue to be unlawfully harmed until the case is resolved. Extending the period of time plaintiff must wait for a possible remedy is simply prejudicial.



1.Harvard threw absolutely every defense they could think of and then some all to no avail.

2. I have said for years that while title III of the ADA does not include the qualified language, it in essence does have such a requirement because of the emphasis on undue burden and fundamental alteration. It is always nice to see when you are vindicatedJ, since in footnote 4 of this decision, the court says precisely that. That is, the court says there is little difference in the distinction that title III does not contain the word qualified individual because many of the issues arising in the qualified analysis also arise in the context of reasonable modifications or undue burden analysis.

3. The court’s reasoning in this case seems really solid to me all the way around. Considering the resources of Harvard and MIT (which was sued separately but the court denied the motion to dismiss on the same grounds), undue financial burden would seem impossible to win on as a defense. Summary judgment is going to turn upon logistical undue burden and fundamental alteration.

4. Meaningful access can be an abstract term. Here, the court comes up with a useful standard i.e. the plaintiff identifying an obstacle impeding their access to a program or benefit likely means the establishing the lack of meaningful access to the program or benefit. Similarly, it is helpful that the court also says that where a plaintiff seeks to expand the substantive scope of the program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.