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Closed Captioning Regulations: Updates from Departments of Justice, Education

By: Art Morgan
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Earlier this year we wrote about the National Association of the Deaf’s lawsuits against Harvard and MIT, and the potential implications for colleges and universities. At the time a spokesperson from Harvard said that they were expecting new regulations from the Department of Justice this summer. Harvard and MIT subsequently filed motions to dismiss the cases.  While the DOJ has since made it clear that specific new regulations are not imminent, several U.S. government agencies issued a joint Statement of Interest in the case that goes a long way toward clarifying the positions of the DOJ and Department of Education with regards to current closed captioning regulations and video accessibility requirements for the deaf and hard of hearing.

The Statement of Interest (SOI) was issued on June 23, 2015, and was signed by attorneys from the Department of Education, the Department of Justice, the U.S. Attorney General, and United States Attorneys from the District of Massachusetts. The Statement of Interest asserts that “both the ADA and Section 504 currently obligate [Harvard and MIT] to provide effective communication to ensure equal access to its online programming….”

Section 504 of the Rehabilitation Act

The SOI cites Section 504 of the Rehabilitation Act, stating that Harvard and MIT must “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.”  The SOI goes on to state that the case is a straightforward claim that Harvard and MIT “failed to provide auxiliary aids or services necessary to ensure effective communication and equal access…” and that resolution of the claim does not require the court to “unravel intricate, technical facts.”

Title III of the Americans with Disabilities Act

Similarly, the SOI cites Title III of the ADA, which prohibits colleges and universities from providing “an unequal opportunity to participate and benefit from the goods, services, or advantages afforded to other individuals.” There are potential exceptions to these requirements, for example by demonstrating that providing closed captions would “fundamentally alter the nature” of the online video programming, or that doing so would constitute an undue burden for the school, but the SOI asserts that determination of whether or not these exemptions are applicable is well within the scope of the courts, without a need for further web accessibility rules or regulations from the Department of Justice.

Open Issues

While the NAD lawsuits mention problems with “inaccurately or unintelligibly captioned” video content, the government SOI does not address closed captioning quality issues. The implication is that the courts should be able to determine what level of accuracy and completeness constitutes effective communication and equal access. While that may be true in the NAD cases, as we have written in the past assessing closed captioning accuracy and intelligibility is not always as straightforward as it might seem.  Our prediction is that at some point the Department of Justice will issue closed captioning quality rules that are similar to FCC rules governing captioning quality.