Closed Captioning Law: NAD v Harvard, NAD v MIT Update

By: Aylin Dunham
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What NAD v Harvard and NAD v MIT Tell Us About Compliance for Higher Education

Accessibility Law

Accessibility laws applicable to higher education have been in place in the United States for decades, but many schools are still not fully compliant with the laws. Part of the lag in compliance can be attributed to lenient enforcement in the early years of these laws; the Rehabilitation Act was enacted in 1973 and the Americans with Disabilities Act was enacted in 1990, but initially there were very few government investigations or enforcement actions. Over time both government agencies (such as the Office for Civil Rights) and advocacy groups (such as the National Federation for the Blind and the National Association for the Deaf) have increasingly been making efforts to enforce the provisions of these laws. Recent civil suits filed by the National Association for the Deaf (NAD) and other advocacy organizations against both Harvard and MIT suggest that now is a good time to take a hard look at your accessibility compliance efforts if you work with video in a college or university setting.

The Department of Justice (DOJ) sent a letter to all college and university presidents on the topic of accessibility for emerging technologies in 2010; it contained a useful summary of various accessibility regulations and how they apply to the education community.  Here is an overview of accessibility laws in the U.S. as they apply to higher education:

  • Under ADA Title III, individuals with disabilities must receive an equal opportunity to participate in, and benefit from, the goods and services of private colleges and universities;  they must not be provided different or separate goods or services unless doing so is necessary to ensure that access to the goods and services is equally as effective as that provided to others.
  • Under ADA Title II, qualified individuals with disabilities may not be excluded from participation in or denied the benefits of the services, programs, or activities of, nor subjected to discrimination by, public universities and colleges.
  • Both ADA Title II and ADA Section 504 require colleges and universities to afford individuals with disabilities with an opportunity to participate in or benefit from college and university benefits and services that is equal to the opportunity afforded others.
  • Similarly, individuals with disabilities must be provided with aids, benefits, or services that provide an equal opportunity to achieve the same result or the same level of achievement as others.
  • A college or university may provide an individual with a disability, or a class of individuals with disabilities, with a different or separate aid, benefit, or service only if doing so is necessary to ensure that the aid, benefit, or service is as effective as that provided to others.

Deaf and Hard of Hearing Advocacy Groups

Advocacy groups supporting the blind have used civil litigation to raise awareness of their cause for a long time, but civil litigation regarding post-production captioning in support of the deaf and hard of hearing was rare until recently. In 2011 NAD filed suit against Netflix, which resulted in a consent decree requiring Netflix to provide closed captions for 100% of its on-demand video content by 2014. NAD subsequently leveraged this result to reach agreements with Apple to caption their entire iTunes television and movie library by June of 2015, followed by a similar agreement with VUDU, Inc., a video-on-demand service owned by Walmart.

On February 12, 2015, NAD filed complaints against Harvard and against MIT, alleging that much of these higher education institutions’ online video content is “either not captioned, or is inaccurately or unintelligibly captioned.” These new suits suggest that NAD and other advocacy groups for the deaf will use the momentum from settlements with Netflix, Apple, and VUDU to ensure that all higher education organizations are fully compliant with closed captioning regulations.  Just as NAD’s success in the Netflix case provided a jumping-off point for discussions with other video providers, we expect that if NAD is successful with these complaints against Harvard and MIT, they will serve as a platform to open discussions with other schools. This is not a trend that should be ignored.

Department of Justice Guidance on Closed Captioning

Some schools have pointed out that in the summer of 2015 the DOJ is expected to release new guidance on how accessibility for websites is to be handled and they are awaiting that guidance before they step up their accessibility efforts. However, it is unlikely that these guidelines will provide much new information regarding post-production captioning, and delaying implementation to await these guidelines is just introducing further delay in compliance. The DOJ has been very clear for many years that the accessibility regulations apply to websites, and there is already legal precedent on such matters. While there are some minor technical matters that are likely to be clarified, such as which accessibility standards to use, these items are really not relevant to captioning. The simple message conveyed in both DOJ guidance and other standards such as WCAG 2 is that online videos provided by colleges and universities must be captioned.

Closed Captioning Quality

The issue of closed captioning quality has generally be left up to the provider; in other words, quality was “self-policed.” However, recent updates to FCC regulations include language about captioning quality, and the fact that quality is specifically called out in the Harvard and MIT lawsuits indicate that this may be changing. In addition, AST’s research on accuracy and intelligibility of transcription and captioning suggest that captions must be much more accurate than many people realize in order for the captions to be useful in an educational setting. Our guidance here for educators is to pay close attention to the quality of your closed captions before it becomes an issue for you.

Finally, it is clear that there is a trade-off between cost and quality of closed captioning. Every vendor and every buyer of closed captioning struggles to find the right point on this cost/quality curve; you want to find the best value for the captioning dollars that you spend, but still get a product that is consistent with the quality standards of your organization. A relentless focus on cost will only yield poor quality, and result in captioning which is neither sufficient for compliance with captioning regulations nor useful for providing access to students who need it.

It is our belief that compliance with the various accessibility regulations will come under more scrutiny for educational institutions in the coming months, and that these recent NAD lawsuits may be a watershed event with respect to this topic.  As we believe they will be important, we intend to watch them closely and offer more articles on this matter as new information becomes available.