Harvard Ramping Up Captioning Efforts with NAD Settlement

• By Dian Schaffhauser
• 12/04/19

After four years of fighting in court, Harvard University and the National Association of the Deaf (NAD) have come to agreement on captioning of videos and online broadcasts — a decision that could have ramifications for all colleges and universities producing and publishing video and audio content.

Beginning this month, according to the consent decree, the university must begin adding captions for all online resources, including school-wide events that are live-streamed, content from department-sponsored student organizations and any new university-created audio or video hosted on media platforms such as YouTube, Vimeo and SoundCloud. The institution must also cover attorney fees for the plaintiffs, which totaled nearly $1.6 million.

The agreement also covers legacy content. Any video or audio created and produced at Harvard and posted between Jan. 1, 2019 and Dec. 1, 2019 on the school website or official school channels needs to be captioned within the next two years. And captioning needs to be added to any additional content even older than that when the institution receives a "specific request by an individual"; those captions need to be completed within five business days of the request.

The federal class action lawsuit was filed against Harvard in November 2015 by NAD on behalf of three deaf and hard of hearing individuals. The basic argument: The schools discriminated against deaf people by failing to add captions (or using inaccurate captions) on the "vast and varied array of online content they make available to the general public, including massive open online courses." NAD was joined by Civil Rights Education and Enforcement Center, the Disability Rights Education & Defense Fund; the Disability Law Center and the law firm of Cohen Milstein Sellers & Toll. A similar suit filed against MIT at the same time is still ongoing.

Harvard took a preemptive step toward improving its captioning practices. In April 2019, the university adopted a "digital accessibility policy," notifying all of its website "owners" that any new digital content "needed to conform" to the accessibility standards developed by the Worldwide Web Consortium and shared in its Web Content Accessibility Guidelines version 2.1 with conformance at the AA (or middle) level. "Where conformance with the standards is not technically feasible," the institution told site owners, they needed to "consider how to make the content available in an alternative format to individuals with a disability."

Harvard adopted the new policy only after failing twice in its efforts to have the case dismissed. Even in the consent decree Harvard denied the allegations.

According to NAD, the settlement is "the most comprehensive set of online accessibility requirements in higher education and ensures for the first time that Harvard will provide high-quality captioning services for online content."

"As Harvard learned through this lawsuit, universities and colleges are on notice that all aspects of their campus including their websites must be accessible to everyone," said NAD CEO Howard Rosenblum, in a statement. "Captioning video content is a basic form of access that opens up academic learning to not only deaf and hard of hearing people but the world. The National Association of the Deaf asks all who develop video content for the internet to ensure access through quality captioning."

"This settlement means greater access for current and future deaf and hard of hearing learners to the vast universe of Harvard's online content," added Amy Robertson, co-executive director of the Civil Rights Education and Enforcement Center. "Ensuring accessibility is not something that can be considered a bonus — it is a fundamental right that everyone deserves. We're pleased that Harvard will finally be treating all learners with the same standard of respect."

In a statement issued by Harvard and quoted in a Harvard Crimson article about the settlement, university spokesperson Nate Herpich said the institution was "pleased to confirm the amicable resolution of the lawsuit brought by [NAD] regarding online captioning for video and audio content. The settlement is grounded in Harvard's commitment to diversity, inclusion and belonging." He added, "Our websites provide a wealth of opportunities for our community members to communicate and to share ideas, and we want these websites to be available to everyone who wishes to access them. This agreement with the NAD builds on the university's longstanding work toward ensuring a campus that is accessible and welcoming."

The Harvard-NAD consent decree will only go into effect once it has been accepted by the court where it was filed.