Case 3:15-cv-30023-KAR Document 201-1 Filed 11/27/19 Page 2 of 16 CONSENT DECREE This action arose out of a complaint seeking injunctive relief filed by Plaintiffs National Association of the Deaf (“NAD”), C. Wayne Dore, Christy Smith, and Lee Nettles (“Plaintiffs”) alleging that Defendant President and Fellows of Harvard College (“Harvard” or “Defendant”) violated Title III of the Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation Act of 1973 by failing to provide captioning for all online audio and video content on Harvard domains and third-party web platforms. Harvard denies these allegations. Plaintiffs and Defendant (the “Parties”) have determined that there is no further need to litigate this action. With the mutual intent of increasing access to Harvard’s online audio and video content for deaf and hard of hearing people, the Parties have jointly agreed to the final disposition of this action in its entirety by Consent Decree, the terms of which are as follows: I. Jurisdiction and Venue This Court has jurisdiction over the above-captioned action pursuant to 28 U.S.C. §§ 1331 and 1343. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391 because Harvard is located in the District of Massachusetts and because the alleged events, acts, and omissions giving rise to Plaintiffs’ claims occurred in the District of Massachusetts. II. Conditions Precedent of this Consent Decree This Consent Decree is conditioned upon, and will be effective only upon, the occurrence of all of the following events: A. Motion. Plaintiffs move for, and the Court grants, an order granting approval of this Consent Decree and provisional certification of the Settlement Class for settlement purposes only. B. Fairness Hearing. A Fairness Hearing is held in accordance with Section XIII of this Consent Decree. C. Court Approval. The Court grants final approval of the Consent Decree, certification of the Settlement Class for settlement purposes only, and entry of judgment in accordance with the terms set forth herein following a Fairness Hearing. The Judgment will resolve finally all issues raised in this proceeding. The date on which the Court grants final approval is the “Effective Date.” III. Agreement to Caption A. Definitions In this Agreement: 1 Case 3:15-cv-30023-KAR Document 201-1 Filed 11/27/19 Page 3 of 16 i. “Caption” or “Captioning” means: a. in the case of video files, to overlay or externally embed synchronized visual text for speech and, consistent with WCAG 2.1 AA, provide non- dialogue audio information needed to understand the program content, including sound effects, music, laughter, speaker identification, and location on a digital media file at an accuracy rate equal to that offered by a vendor captioning service such as 3PlayMedia and in a manner consistent with industry standards regarding synchronicity, completeness, and proper placement; and b.in the case of “audio-only” files, or in the case of video files for which Harvard lacks the access required to overlay or externally embed captioning, to prepare and provide a text-only transcript and, where practicable, to place an easily identifiable link to such transcript near to or alongside the content online. ii. “Class Counsel” means the Civil Rights Education and Enforcement Center (“CREEC”), Cohen Milstein Sellers & Toll PLLC, the Disability Law Center (“DLC”), the Disability Rights Education and Defense Fund (“DREDF”), and the National Association of the Deaf Law and Advocacy Center (“NAD”). iii. “Content” means audio or video files that are posted online for general public access. iv. “Massive Open Online Course” or “MOOC” means interactive online courses that are offered by Harvard free of charge, on an open-enrollment basis, through HarvardX or any successor program to HarvardX, or directly by any of Harvard’s Schools. v. “Policy” means the Harvard University Digital Accessibility Policy, adopted April 30, 2019, as it may be amended from time to time by Harvard. vi. “Procedures” means the implementing procedures developed under the Policy, as they may be amended from time to time by Harvard. vii. “Settlement Class” includes all persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and 2 Case 3:15-cv-30023-KAR Document 201-1 Filed 11/27/19 Page 4 of 16 available for the general public that is produced, created, hosted, linked to, or embedded by Harvard. viii. “University Website” means any public-facing website or web‐based application within a Harvard-controlled domain used to conduct University Business by Harvard faculty and staff. The term “University Website” includes websites operated by all of Harvard’s Schools and Academic Departments, News Organizations, Administrative Offices, Museums and Libraries, Academic Centers, Initiatives, and Programs. ix. “University Business” includes activities carried out under the auspices of Harvard University but does not include activities organized or conducted by students or student organizations. B. Content Covered by Harvard’s Digital Accessibility Policy The parties agree that the Policy, as interpreted by the Procedures, requires captioning for — and that Harvard shall caption — the following: i. New video or audio content, created and produced at Harvard and, on or after December 1, 2019, posted on a University Website. The Policy’s use of the words “at Harvard” does not mean that the content must have been created and produced on Harvard’s campus. For example, a research video created by a faculty member in the field and later posted on a University Website would fall within the Policy. Similarly, content created or produced by a vendor at the direction of Harvard faculty or staff is content “created or produced at Harvard.” ii. Video or audio content, created and produced at Harvard and posted on a University Website prior to December 1, 2019, upon a specific request by an individual who is unable to access that specific content. Captions shall be provided within five business days of the request consistent with Section III.A.i. C. Content Beyond That Covered by Harvard’s Digital Accessibility Policy In addition to the content explicitly covered by the Policy, Harvard agrees to Caption: i. Department Sponsored Student Organization Content: New video or audio content, created and produced at Harvard by a Department Sponsored Student Organization, as defined in the Harvard College Handbook for Students, and posted on any public-facing website within a Harvard-controlled domain on or after December 1, 2019. 3 Case 3:15-cv-30023-KAR Document 201-1 Filed 11/27/19 Page 5 of 16 ii. Massive Open Online Course Content: To the extent not captured above, audio and video content posted online as part of a MOOC. iii. Certain Content on Certain Third Party Platforms: New video or audio content created and produced at Harvard and posted on/after December 1, 2019 on the official YouTube channel and, if any, the official Vimeo or SoundCloud channel for each of the Harvard schools, museums, libraries, and other units listed on Appendix A. The “official YouTube channel” or “official Vimeo or SoundCloud channel” for a unit is the principal channel maintained and curated for that unit’s University Business. If the principal channel maintained and curated for a unit’s University Business is moved to a newly-developed Third Party Platform, then the new video or audio content created and produced at Harvard and posted on such channel shall be subject to the requirements of this paragraph. iv. Legacy Content: Video or audio content created and produced at Harvard and posted between January 1, 2019 and December 1, 2019 either: (1) on a University Website; or (2) on the official YouTube channel and, if any, the official Vimeo or SoundCloud channel for the Harvard schools, museums, libraries, and other units listed on Appendix A (collectively, “Legacy Content”). Legacy Content shall be captioned as soon as practicable but no later than two years after the execution of the Agreement, or by request consistent with Section III.B.ii. v. By Request: Video or audio content created and produced at Harvard and posted prior to December 1, 2019 on the official YouTube channel and, if any, the official Vimeo or SoundCloud channel for each of the Harvard schools, museums, libraries, and other units listed on Appendix A, upon a specific request by an individual who is unable to access that specific content. Captions shall be provided within five business days of the request consistent with Section III.A.i. IV. Additional Obligations of the Parties A. Harvard shall not amend the Policy or Procedures in a manner that provides for less captioning than any prior versions of the Policy or Procedures. B. Harvard will provide industry-standard live captioning for University-wide events (such as Commencement, ceremonies for special honorands, and presidential installations), for which video and/or audio are live-streamed over the Internet. Any such video and/or audio of the University-wide event that are later posted to a University Website are subject to the Policy and to the obligations in section III.B.i, above. For any other live- 4 Case 3:15-cv-30023-KAR Document 201-1 Filed 11/27/19 Page 6 of 16 streamed event of high interest, Harvard will consider requests for industry-standard live captioning.