Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA. 

Allegations that an inaccessible website prevents a blind plaintiff from “learning” about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website.  While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA.  Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university’s brick-and-mortar facilities.  Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach).  Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging “the mere existence of some connection or link” between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018.  The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media.  Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Edited by Minh N. Vu and Kristina M. Launey.

Seyfarth Synopsis: Fewer online videos from UC Berkeley will be available to the public as a result of a DOJ demand that the videos have closed captioning.

Starting March 15, 2017, more than 20,000 videos of classroom lectures and podcasts on UC Berkeley’s YouTube and iTunes channels will no longer be available for public viewing, according to a recent statement by the university.  The statement explains that the decision will “partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available,” and “better protect instructor intellectual property from “pirates” who have reused content for personal profit without consent.”  UC Berkeley stated that it would focus its resources on creating new accessible online content and continue to offer free courses in accessible formats to the public through massive online open course provider, edX.

On August 30, 2016, the Department of Justice (DOJ) issued the findings UC Berkeley referenced in its recent statement, after conducting an investigation into the university’s compliance with Title II of the ADA.  DOJ concluded in the findings that that a covered entity subject to Title II has a duty to ensure content that it makes available to the public free of charge is accessible.

Similar to Title III of the ADA which applies to public accommodations (i.e., twelve categories of privately-owned entities that do business with the public), Title II of the ADA requires public universities and other covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of their services programs, or activities.  It also requires covered entities to furnish appropriate auxiliary aids and services where necessary to achieve effective communication.  A covered entity is not, however, required to take any action that would result in a fundamental alteration in the nature of its service, program or activity or in undue financial and administrative burdens.

As set forth in its findings letter, the DOJ opened its investigation after receiving complaints from the National Association of the Deaf (NAD) on behalf of two of its members that some of UC Berkeley’s online videos did not have closed captioning.  Significantly, these complainants were members of the public seeking access to free information, not students, prospective students, or faculty.  The DOJ concluded that many of UC Berkeley’s online videos did not have proper closed captions, and has threatened to file an enforcement lawsuit against the school unless it agrees to enter into a consent decree, caption all of its online content, and pay damages to individuals with disabilities who had been injured by UC Berkeley’s failure to provide accessible online videos.  This DOJ matter is still pending as no resolution or enforcement suit has been announced.

The DOJ’s position in its findings letter to UC Berkeley — that a covered entity has a duty to ensure that content that it makes available to the public free of charge is accessible — certainly pushes the boundaries of the ADA and has not been tested in the courts.  If covered entities must in fact ensure that all of the information that they put out for the world to use for free (no matter how remotely related to their central mission) or face lawsuits and DOJ investigations, there may well be a significant reduction in the amount of information provided on the web for public consumption.

A court may at some point rule on this precise question in the pending lawsuits brought by members of the NAD against Harvard University and the Massachusetts Institute of Technology (MIT) in Massachusetts federal court.  The plaintiffs there are members of the public who are asking the court to order the universities to provide captioning for tens of thousands of videos on their websites.  As we reported, the court rebuffed the universities’ efforts to dismiss the case early and President Obama’s DOJ filed briefs supporting the NAD. As the case continues, the universities will likely focus their efforts on proving that providing captioning for tens of thousands of videos is an undue burden or would fundamentally alter the nature of the videos they are providing.  We would not be surprised if these lawsuits result in these universities deciding to follow UC Berkeley’s lead and limit the amount of public access to their online videos.

Edited by Kristina Launey.

By Kristina M. Launey

E-readers should be great tools to provide access to individuals with visual disabilities due to their ability to change font sizes and be compatible with screen readers.  In theory at least, if not always in practice, as evidenced by various cases the US DOJ, National Federation of the Blind (NFB), and the American Council of the Blind (ACB), have brought and settled over the past few years against universities, school systems, and libraries involving e-readers that are allegedly inaccessible to individuals with vision impairments.

In 2009, the NFB and the ACB sued five universities alleging the universities’ pilot programs to distribute textbooks via e-reader violated the ADA because the e-reader’s text-to-speech capabilities were very limited.  Specifically, the e-reader device could read books aloud but did not read aloud the menu or other features.  Consequently, blind students could not turn on the text-to-speech feature, let alone navigate the device, without assistance.  The parties settled in 2010 for an agreement that the universities would use devices that are accessible to individuals who are blind or have low vision if they chose to deploy e-book readers in the future. 

In June 2010, the DOJ and the US Department of Education wrote a letter to university presidents cautioning against requiring the use of e-book devices in a classroom setting due to these same accessibility concerns. 

While e-readers have advanced in accessibility capability in the past few years, organizations cannot assume all e-readers are fully accessible.  Those that choose to use the technology must carefully choose e-readers that are in fact fully accessible.  The DOJ and NFB are still watching.  In January 2012, the NFB asked the DOJ to investigate a school district’s proposed acquisition of an allegedly inaccessible e-reader device. 

Most recently – just last week – the DOJ announced that it and the NFB reached a settlement with the Sacramento (California) Public Library Authority to remedy alleged violations of the ADA due the library’s use of inaccessible electronic reader devices in a patron lending program.  The settlement agreement provides that the library will not acquire any more inaccessible e-readers for patron use (i.e., lacking text-to-speech functions or the ability to access menus through audio or tactile options), that the library will acquire at least 18 accessible e-readers, and that the library will train its staff on the ADA. 

While many of the specific cases discussed above involved public entities subject to Title II of the ADA and the Rehabilitation Act, the cautionary tale is equally applicable to private institutions – such as libraries, universities, primary and secondary schools – that are subject to Title III.  If you choose to use e-readers, make sure they are fully accessible.