§504

Anybody Remember Sean Elliott?

May 28, 2019 by William Goren Leave a Comment

I have long been interested in the ADA and how it applies to sports. In the very first edition of my book in 2000, I talked about the hypothetical of what would happen if Sean Elliott, who underwent a kidney transplant from his brother in 1999, was given grief when he returned to professional basketball. For those of us who don’t know about Sean Elliott, he had an absolutely fabulous career at the University of Arizona, where believe it or not, says Wikipedia anyway, he is still the leading scorer after all these years. He then went on to an excellent career in the NBA where he won championships and made numerous All-Star teams. He spent his career with San Antonio at first, then Detroit, and then back to San Antonio. Currently, he is a game analyst for the San Antonio Spurs. In my original edition of Understanding the ADA, I talked about how to analyze the situation where a professional basketball player had one functioning kidney and was given grief. That got into a discussion of playing time, direct threat, among other things. Now, history repeats itself with the case of the day, Hammond v. University of Southern Mississippi, a November 2018 decision from the Southern District of Mississippi. As usual, the blog entry is divided into categories, and they are: facts, court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff was a student and football player at the University of Southern Mississippi, and he only has one kidney. According to Plaintiff, USM’s football staff enticed him to transfer to USM by offering a full scholarship if he worked his way onto the team’s two-deep roster. After Plaintiff transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Plaintiff had only one kidney but cleared him to play without restrictions.

During a team practice, Plaintiff mentioned to one of the trainers that he only had one kidney. The trainer immediately removed Plaintiff from practice and took him to the team physician. The physician did not clear Plaintiff to play, citing the potential liability to USM if he were injured. Plaintiff sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. Plaintiff also offered to execute a waiver of liability, but USM would not allow him to play. Plaintiff filed this lawsuit against USM in the United States District Court for the Middle District of Louisiana. He asserted, among other things, claims of discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Defendant filed a Motion to Dismiss.

Court’s Reasoning Denying the Motion to Dismiss The §504ClaimAndTitleIIClaim

Under 42 U.S.C. §§12102(1),(3)(A), for a regarded as claim, a plaintiff is only required to establish that the defendant knew of the impairment and withheld public services or benefits because of it.
A person with one functioning kidney has a physical impairment as contemplated by the ADA.
The allegations, which must be accepted as true at the motion to dismiss stage, are sufficient to satisfy that burden. In particular: 1) the head athletic trainer removed the plaintiff from practice after learning he had only one kidney; 2) defendant’s team physician would not clear him to play football because he only had one kidney; 3) the head athletic trainer continued to hold him from practice after receiving the report from his nephrologist because the head athletic trainer believed that playing football with one kidney posed a liability issue for the school and a danger to plaintiff’s health; and 4) defendant’s athletic department told other school that he did not pass the physical because he only had one kidney so the plaintiff had trouble landing somewhere else.
University of Southern Mississippi also claimed sovereign immunity, but the court was having none of it because the plaintiff also alleged §504 violations. If an entity receives federal funds, that entity waives sovereign immunity in a suit for damages under §504 of the Rehabilitation Act. So, since the two laws (§504 and title II of the ADA), are virtually identical except for causation, it is not necessary to address the question of whether sovereign immunity applies to the title II claim when it doesn’t to the §504 claim.

III

Takeaways

If one tries to give a hypothetical as to what a regarded as case would look like, you can’t do much better than this one.
Certainly, a person with one functioning kidney has a physical impairment. A person with a one functioning kidney operates in the same way pretty much as a person with two. It would be an interesting question as to whether such a person would have an actual disability. It is certainly possible that is the case, but it wasn’t necessary to visit that question here.
The seminal case on direct threat is Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). In that case, the Supreme Court said that any direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions.
DOJ’s title II regulations, 28 C.F.R. §35.139, essentially adopt the Chevron formulation. However, unlike the EEOC regulations on direct threat, the title II and title III direct threat regulations put out by DOJ only apply to direct threat to others and not to self. So, in this case, University of Southern Mississippi appears to have not only regarded the plaintiff as having a disability but also made a determination that the person was a direct threat to himself. That presents a problem because the DOJ regulations do not factor in direct threat to self; they only factor in direct threat to others. It certainly does not seem like the plaintiff was a direct threat to others.
Even assuming a title II anything can argue that the ADA would exclude someone from participating in its programs if they were a direct threat to self, there seems to be a question of fact here as to whether the University of Southern Mississippi relied on the most current medical knowledge and/or the best available objective evidence when making its determination. Again, it is certainly not a foregone conclusion, that the direct threat to self defense even exists because the University of Southern Mississippi is a title II entity, and this is not an employment situation.
Colleges and Universities have been fighting tooth and nail that their division I men’s football and basketball athletes are not employees. Here, if the plaintiff was an employee, that would activate the direct threat to self-defense. On the other hand, it would create all kinds of problem for the college or university that they probably don’t want to deal with.
Liability risk isn’t the issue, rather the issue is whether the plaintiff is a direct threat to self or others (if title I), or whether they are a direct threat to others (title II and title III). In a way, this case reminds me of the case, which we discussed here, where the company had a 1% rule with respect to whether a person would be able to do a job with respect to future injuries being possible. The ADA and Rehabilitation Act do not work that way. They both require an individualized analysis using the most current medical knowledge and/or the best available objective evidence before reaching a conclusion that a person is a direct threat.
The case is now finishing up the discovery stage. I am sure the defendant’s motion for summary judgment will be coming before too long.
If I am the plaintiff, I would move to exclude any evidence about direct threat to self since this is a title II case, and therefore, not relevant. It bears noting that the original direct threat case was a Rehabilitation Act case involving direct threat to others and not to self.

Repeated Violations Doctrine

May 20, 2019 by William Goren 1 Comment

This is a situation I see all the time. Let’s say you are at a university. A student goes to disability services, gets an accommodation plan, even gives it to the teacher. The teacher resists. The student may or may not try to fix it until later in the semester figuring that something will develop. Or, I have also seen this, disability services doesn’t have much influence at another one of the University’s schools. That is, disability services focuses on undergraduate programs but the professional schools do their own things regardless of what disability services says. How does a student deal with such a situation and what are the problems? An excellent blog entry discussing all of this can be found here. The question I want to address is a bit different. That is, when does the statute of limitations begin to run. Let’s take a different situation, but analogous. A person with a disability repeatedly notifies a municipality that it is out of compliance with the ADA. Municipality doesn’t do anything to fix the problem. Despite the person’s best efforts, nothing happens. Eventually, the person sues. However, the person sues more than two years after first notifying the City of the problem. The City never fixed the problem. Does the plaintiff lose on statute of limitations grounds. In case you are thinking that this kind of fact pattern is familiar, it is. We discussed that situation here. Turns out that case went up on appeal to the 10^th Circuit, and on May 15, 2019, a panel of the 10^th Circuit came down with a unanimous opinion adopting the repeated violations doctrine, which definitely bears discussing. Since I have simplified the fact pattern above and also have talked about it extensively in my prior blog entry discussing this case, I am going to dispense with the facts. So, the blog entry is going to be divided into court’s reasoning and takeaways. The reader, of course, is free to focus on any or all of the categories, but probably will wind up reading the whole thing. I want to thank Garret DeReus of Bizer & DeReus in New Orleans for sending the case along to me. I actually had breakfast with Garret when I was attending the Federal Bar Association’s Civil Rights Etouffee in New Orleans. His firm does title II and title III ADA plaintiff work around the country. Congratulations to him on his victory.

Court’s Reasoning

A public entity commits a new violation and the qualified person with the disability experiences a new injury each day when the public entity fails to act. In essence, the statute of limitations functions as a look back by restricting a plaintiff’s right to relief for injury suffered during the limitation period immediately prior to filing suit and while the suit is pending.
A public entity violates title II of the ADA and §504 of the Rehabilitation Act every day it fails to remedy a noncompliant service, program, or activity. Therefore, the statute of limitations limits a plaintiff’s right to relief to injuries for the period during the limitation period counting backwards from the day he or she filed the lawsuit and for any injury sustained while the lawsuit is pending.
The doctrine of repeated violations and the doctrine of continuing violation are different animals entirely. The continuing violation doctrine takes a bunch of different occurrences and combines them into one. On the other hand, the repeated violation doctrine takes each occurrence as a separate matter with a separate statute of limitations attaching to each. If you are a visual person, the court discusses this visually in the opinion. I am definitely not a person who learns by diagrams.
On appeal, the plaintiff argued only for the repeated violation doctrine and let go of the continuing violation doctrine even though both were argued at the District Court level. It turns out that was a very wise move on part of the plaintiff.
A qualified individual with a disability is excluded from participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity of the public entity the day that person is deterred from utilizing them due to its noncompliance. Only when the public entity remedies the noncompliant service, program, or activity or when the plaintiff no longer evidences an attempt to utilize it, does the limitation period end. So, this means the statute of limitation bars recovery only for those injuries incurred outside of the limitation period immediately preceding the day of suit. It also does not bar recovery for injuries incurred within the limitation period or after plaintiff files suit.
Both the language of title II of the ADA, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794, are phrased in the present tense. That suggests a qualified individual currently experiencing discrimination under either law suffers an injury. The phrasing also suggests a qualified individual suffers new discrimination and a new injury each day she cannot utilize a noncompliant service, program, or activity even where the barriers giving rise to the claim are ones encountered before.
Assuming sidewalks and curb cuts are a service, program, or activity of a public entity (the court specifically expresses no opinion on that and remands that question back to the lower court for consideration), a qualified individual with a disability is still excluded from utilizing any given sidewalk or curb cut each day it remains noncompliant.
In a footnote, the 10^th Circuit points out that numerous regulations implementing the ADA are also phrased in the present tense.
The United States Supreme Court has recognized that failure to accommodate persons with disabilities often has the same practical effect as outright exclusion, and therefore, title II imposes an affirmative obligation on a public entity to accommodate persons with disabilities.
The duty to accommodate contained both in title II of the ADA and in §504 of the Rehabilitation Act clearly and unambiguously convey that noncompliant services, programs, or activities, give rise to repeated violations. Therefore, failing to act in the face of an affirmative duty equals liability. Also, that means if the entity under the affirmative duty to act fails to act while the underlying problem remains not fixed, then every day’s inaction amount to a new violation.
In a footnote, the court noted that the analogy is to temporary nuisance claims. The continuance of a nuisance is a new nuisance every day. So, as long as the temporary nuisance continues unabated, a plaintiff brings suit effectively on day one of the new limitation period. So, here, where an injury repeatedly occurs so long as the service, program, or activity remains noncompliant and the qualified person with a disability is aware and deterred from utilizing it.
Congressional goals of full participation, inclusion, and integration for qualified individuals with disabilities is also consistent with and strongly suggest that the repeated violation doctrine is the proper one to follow. After all, a qualified individual can’t fully participate or be fully included in a service, program, or activity if the person cannot utilize it in a similar way as a person without a disability. Further, that fact doesn’t change simply because he or she would deterred from utilizing the service, program, or activity many times before.
The key question is whether the qualified individual with a disability can fully participate now (emphasis is in the court’s opinion), in the service, program, or activity. The repeated violation doctrine is perfect for this reality, and it also encourages public entities to comply with their affirmative and ongoing obligation to accommodate a qualified individual with a disability by giving that person the ability to seek relief any time he or she cannot fully participate or is not fully included in the service, program, or activity of the public entity.
In the findings section of the ADA (42 U.S.C. §§12101(a)(8), 12101(b)(4)), Congress used terms such as “continuing existence,” and, “faced day to day by people with disabilities.” Similarly, in the Rehabilitation Act findings, 29 U.S.C. §701(a)(5), it uses the phrase, “individuals with disabilities continually encounter various forms of discrimination.” This kind of language demonstrate that Congress understood a public entity can repeatedly cause a qualified individual with a disability to suffer an injury from the same service, program, or activity and nothing in the text of title II or §504 suggests otherwise.
Congress did not design the ADA or to Rehabilitation Act to allow a public entity to forever prevent a qualified individual with a disability from utilizing a service, program, or activity.
Title II and §504 clearly and unambiguously require application of the repeated violation doctrine.
In a footnote, the court noted that applying the repeated violation doctrine to title II and §504 claims serves the interest of efficiency because more than just the rights of the plaintiff before the court are involved. In fact, many other qualified individuals with disabilities also benefit from a ruling favorable to the plaintiff. So, if the repeating violation doctrine were not to apply, then a basically identical lawsuit but timely suit brought by a different plaintiff would land in the court’s lap soon thereafter.
In these kind of cases, injunctive relief is even more important than damages.
The repeated violation doctrine means that a defendant cannot brandish the statute of limitations as a shield to fully protect themselves from suit. However, they can wield the statute of limitations as a sword to chop off damages arising before the limitation period comes in the play.
The repeated violation doctrine does not eviscerate statute of limitations. Instead, it limits the plaintiff’s ability to recover damages to only those injuries incurred during the limitation period immediately preceding suit as well as to any damages for any injuries incurred after filing suit. So, if a plaintiff first discovers a city’s noncompliant sidewalk and curb cuts in 1996 but still bring suit in October of 2016, that plaintiff does not get damages for every injury sustained throughout those 20 years. Instead, the damages would be restrictive than those injury suffered before October of 2014. Similarly, the court noted in a footnote, that if a plaintiff conceded that in 2016 the public entity completely and entirely remedied the problem, then plaintiff’s claims would be entirely barred even with the repeated violation doctrine.
When it comes to damages under title II of the ADA and §504, Supreme Court precedent rules out punitive damages. Also, any damages have to be intentional. The requirement that damages have to be intentional, is an additional limitation on the public entity’s liability under title II and §504.
The court doesn’t have a problem with the repeated violation doctrine meaning that public entities are on the hook for injunctive relief as the years go by. That doesn’t raise any red flags because Congress was quite specific in demanding full participation, inclusion, and integration in society for those with disabilities. Further, this give public entities and incentive to remedy noncompliant services, programs, or activities in a reasonable and efficient manner to ensure full participation. Finally, public entities can moot the whole problem by simply making their program, services, and activities accessible for persons with disabilities.
As we have talked before in our blog, another limitation that a plaintiff has to deal with with respect to injunctive relief, is that they no longer suffer an injury once they stop asserting an intent to return to where the violations are occurring. So, if a plaintiff were to move away and had no intent to return, any such injury disappears. Finally, the doctrine of laches can also come into play when it comes to injunctive relief.

III

Takeaways

This is the first Circuit that I know of adopting the repeated violation doctrine. The repeated violation doctrine has important differences from the continuing violation doctrine, which is almost impossible to get a federal court to apply.
I expect this decision to have a big impact on title II entities and on entities taking federal funds, particularly colleges and universities. It isn’t unusual at all for a plaintiff dealing with either to run into a brick wall.
The grammatical tense used by the disability antidiscrimination laws and their final implementing regulations do, in my opinion, give support to the repeated violation doctrine. I also find the congressional findings discussion and the temporary nuisance analogy persuasive. The repeated violation doctrine also takes into account the day-to-day realities faced by people with disabilities.
Repeated violation doctrine is not an open-ended situation for statute of limitations. Think of it as a look back. So, if a person deals with a two-year statute of limitations, then the claims that are in play are those arising during the years prior to the filing of the suit.
The case given strong credence to the argument that a failure to accommodate is an adverse action.
This also means that failing to fix the problem creates a new beginning of a statute of limitation timeframe for every day that the problem is not fixed.
Especially at the college and university level, when a student runs into t hat brick wall with the school not carrying out the disability services accommodations, they often have to leave. Having gone through such a crazy experience, the student may not want to return at all. One of the jobs, and not an easy one, of the plaintiff advocate is convincing the student that they should return if given the opportunity because injunctive relief is definitely a plaintiff lawyer wants to have in his or her quiver at the case proceeds.
Under title III of the ADA, damages are not a possibility. All you get is attorney fees and injunctive relief. Under title II of the ADA, damages are possibility if you can show intentional discrimination. Same goes for §504 of the Rehabilitation Act. What this court doesn’t address, it is just what is intentional discrimination. That may vary from jurisdiction to jurisdiction. One of the leading cases discussing this question is from the 11^th Circuit, and we discussed that case here. So, in addition to the lower court having to decide whether sidewalks, curbs, and ramps are a program (we did talk about sidewalks previously here as well as here), the lower court is also going to have to figure out just what is intentional discrimination.
For those who do not know, laches is a doctrine that can come into play when seeking equitable remedies, which includes an injunction. That doctrine means that the plaintiff has to come to the matter with clean hands.
The repeated violation doctrine also incentivizes prompt handling of reasonable accommodation requests.

National Association of the Deaf v. Harvard Redux

April 15, 2019 by William Goren Leave a Comment

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Harvard University. That particular blog entry talked about the magistrate judge denying Harvard’s motion to dismiss. Subsequently, Harvard filed a motion for judgment on the pleadings. On March 28, 2019, the magistrate judge, Katherine Robertson, denied and granted Harvard’s motion for judgment on the pleadings. Since the facts of the case have already been discussed in my previous blog entry, we don’t have to worry about that particular category. So, the blog entry is divided into three categories and they are: court’s reasoning ADA; court’s reasoning Communications Decency Act (CDA) Immunity; and takeaways. The reader, of course, free to focus on any or all of the categories.

Court’s Reasoning ADA

As a preliminary matter, the primary difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion for judgment on the pleadings implicates the pleadings as a whole. Such motions are treated similarly as to a motion to dismiss. Accordingly, the court views the facts contained in the pleading in the light most favorable to the nonmoving party and has to draw all reasonable inferences in favor of the nonmoving party. Judgment on the pleadings is only allowed where the facts conclusively establish that the movant is entitled to the relief sought.
The court goes into considerable detail over whether a place of public accommodation under title III of the ADA has to be a physical place. Ultimately, it concludes that the court has no choice but to follow the controlling law in its Circuit, which holds that a physical place is not necessary per Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1^st 1994).
Regardless of whether or not the Supreme Court ultimately makes the decision that a physical place is required for an entity to be subject to title III of the ADA, the magistrate found that a sufficient nexus between a physical place and the plaintiff existed in this case anyway. In particular: 1) Harvard operates a brick and mortar location; 2) the online content Harvard makes available to the general public but does not make accessible to the deaf and hard of hearing community includes Harvard@Home Presentations, which are designed to bring users inside the Harvard classroom to hear current, real-life lectures or provide them with a front row seat to University panels, alumni college forums, and other special events; 3) Harvard through its extension school offers free, noncredit courses; and 4) videos with spoken content appear in the archives of Harvard’s Peabody Museum of Art and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Junior forum, Harvard’s Lifesciences Outreach program, and Harvard’s Woodberry Poetry Room. Since it can be inferred that all of this online content is the same as a good or service that is, or was, also available at one or more of the physical locations at Harvard, plaintiffs have sufficiently pled the existence of inaccessible content on websites having a nexus with on-campus activities. So, when it comes to the applicability of title III, title III is applicable regardless of whether a nexus to a place of physical accommodation is required or not.
DOJ regulations do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. That said, Harvard possibly could be able to demonstrate that providing captioning, or any other available auxiliary aid or service, fundamentally alters the nature of its service or results in an undue burden.
504 regulations prohibit a recipient of federal aid from discriminating in the providing any aid, benefit or service to a person with a disability directly or through contractual, licensing, or other arrangements. 34 C.F.R. §104.4(b)(1)(i)-(vii). Also, there is no persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to persons with disabilities under §504.
With respect to Harvard’s internet site containing content posted on third-party websites, that becomes a matter of Harvard showing whether the fundamental alteration or undue burden affirmative defense applies. That requires a factual record to be developed.

Court’s Reasoning Communication Decency Act of 1996 Immunity (47 U.S.C. §230)

47 U.S.C. §230(c)(1) (§230 of the Communication Decency Act) provides protections for a “Good Samaritan,” that blocks and screens offensive materials. In particular, it says that, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The effect of 47 U.S.C. §230(c)(1) is that lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content- are prohibited.
The CDA defines an interactive computer service as, “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including… systems operated or services offered by libraries or educational institution.” 47 U.S.C. §230(f)(2).
The CDA defines an information content provider as, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. §230(f)(3).
The immunity under this section only applies when the information forming the basis of the claim has been provided by another information content provider. That is, an interactive computer service provider is liable for its own speech.
Near universal agreement exists that §230 must be construed liberally. Therefore, the section operates to prohibit many causes of action premised on the publication or speaking of information content.
No authority exists holding the title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded by the CDA.
In order to be covered by the immunity provision of the CDA, three things have to be shown: 1) Harvard must be a provider or user of an interactive computer service; 2) the claim of the plaintiffs have to be based upon information provided by another information content provider; and 3) the claim must treat Harvard as the publisher or speaker of that information.
No support exists for plaintiff’s claims that the CDA does not apply when a plaintiff claims disability discrimination is based upon a lack of access rather than on the content of speech.
Federal and state antidiscrimination statutes, see 47 U.S.C. §230(e), are not exempted from the immunity provided by the CDA.
Citing to a case from the Seventh Circuit, the court noted that the Seventh Circuit held that §230 operated to preclude Fair Housing Act claims. Citing to a case from the First Circuit, the court noted that the CDA operated to preclude a claim under the Trafficking Victims Protection Reauthorization Act of 2008.
Since Harvard acknowledges that it hosts platforms to which online content may be uploaded, it isn’t absurd to treat Harvard as an interactive computer service.
Since Harvard, to some extent, provides platforms in which third parties post content that Harvard does not create, produce or substantively alter, Harvard is hosting information provided by another Internet content provider.
Since numerous cases include educational institutions in the CDA’s definition of Internet computer services providers, that means that Harvard gets a get out of jail free card with respect to the inaccessibility of online content created or developed by a third party that is not altered by Harvard.
The CDA relieves interactive computer service providers from liability whenever they exercise control, such as blocking and screening of third-party content.
Harvard’s choices about what third-party content can appear on its website and in what form, are editorial choices falling within traditional publisher function protected by §230.
While §230 immunity is an affirmative defense, a motion to dismiss still works if the dismissal is evident from the face of the complaint.
The court at this point is unable to determine as a matter of law whether Harvard is not in some matter a content provider at the information on its platforms originating with student, faculty members, or other scholars.
Harvard does get a get out of jail free card with respect to inaccessible content that is merely embedded online content (i.e. content hosted on a third-party server that is hyperlinked in its existing form content that is hosted on a harbor platform or website), produced or created by Harvard because Harvard remains a publisher under the communication decency act as to embedded content.
Would you like to be confused? Try understanding this paragraph: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings.”

III

Takeaways

The court properly notes that when it comes to whether title III of the ADA only applies to places of public accommodation that are physical spaces, is something that is very much a debate. We have discussed the issue on our blog numerous times. As I discussed in this blog entry, it is very possible that when the Supreme Court ultimately get to this issue, they will hold that a physical place is not necessary.
It probably would not be all that hard to find a nexus to a physical place with respect to online content appearing on a university’s website since colleges and universities are places of education. As a place of education, disseminating information is a critical part of what they do on their brick-and-mortar campus.
This case is another example of how §504 and the ADA are not always identical. Sometimes, §504 goes further than the ADA. Sometimes, it works the other way around.
One of the reasons I enjoy practicing in the area of the rights of people with disabilities, is that it interacts with all kinds of laws. You would not think of the CDA and disability accessibility going together, but in this case, it does. It also means that practicing in this area can be a bit daunting because you never know where a related law is going to come from.
47 U.S.C. §230 provides for broad immunity. After this decision, look for colleges and universities in particular that are being sued for inaccessibility of their web content to rely on this case as a matter of course. In fact, it will probably be legal malpractice for colleges and universities not to do so.
It is really unclear just how far the immunity goes. For example, I link to things all the time when I do my blog. However, ¶ 20 above, where the court stated: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings,” is really unclear. The reason this paragraph is so confusing is that most certainly students and faculty will put things up with links. Those links are not college or university’s responsibility under this decision. Does the answer change with respect to anything the college or university posts as a result of a license that it has? Does the answer change with respect to anything it puts up through the fair use doctrine? What if there is content beyond the link posted on Harvard’s site? It seems from ¶ I 6 above that Harvard is on the hook for that inaccessibility absent a showing of fundamental alteration or undue burden. However, it also seems per ¶ II 14, it may or may not have immunity for such claims.

§504

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