DOJ Applies ADA Public Accommodations Status to Online Educational Service

September 27, 2007. The Department of Justice's (DOJ) Civil Rights Division (CRD) entered into a settlement agreement [PDF] with Sylvan Learning Centers that imposes obligations upon Sylvan with respect to its online tutoring services, pursuant to the public accommodations title of the Americans with Disabilities Act (ADA).

The DOJ/CRD enters into many settlement agreements pursuant to the ADA's Title III, the primary purpose of which is to require public accommodations, such as restaurants, stores and movie theaters, to remove architectural barriers to access by persons with mobility disabilities. It is the statutory authority for requiring brick and mortar businesses to install curb cuts, ramps and elevators.

What is notable about this settlement agreement is that it presumes that Title III gives the DOJ/CRD authority over online activities (and hence, that there also exists a private right of action). The statute creates no such authority. Moreover, there is little basis in judicial precedent for expanding the statute to encompass online activity.

Settlement Agreement. This agreement is titled "Settlement Agreement between the United States of America and Sylvan Learning Centers, L.L.C. under the Americans with Disabilities Act". The DOJ announced the agreement in a September 27, 2007, release.

This release states that "Sylvan provides tutoring, both in person and online". The agreement states that "Sylvan provides tutoring, both in person and online, and personalized instruction to students primarily in grades pre-K through 12."

Sylvan's web page (as of October 1) for online tutoring shows a picture of a child seated in front of a computer, reading text on the monitor, while wearing a headset with a microphone. The web pages states that Sylvan provides "live, online tutoring", and that "Each student and teacher work in real time and talk to each other throughout the entire lesson".

The agreement states that the CRD initiated this proceeding against Sylvan "after it received a complaint from the mother of an individual who is deaf".

Rena Comisac, the acting Assistant Attorney General in charge of the CRD, stated in the DOJ release that "this agreement improves access to the tutoring programs and services". The agreement provides that "Sylvan will not discriminate against any individual on the basis of disability in the full and equal enjoyment of the ... services ... or accommodations of Sylvan by excluding or providing unequal treatment to persons who are deaf or hard-of-hearing."

The gist of this agreement is that since this case pertains to a deaf person, if Sylvan provides an online service by voice or audio, it must also provide "written materials ... videotext displays, or any other effective methods of making aurally delivered materials available to students with hearing disabilities."

This agreement does not address the ADA obligations of an online educational service provider when the disability is blindness. However, if the CRD were to apply the same approach to blindness that it applied to deafness, it might require the production and distribution of Braille copies of all written materials that are available for viewing through a web interface. Alternatively, the CRD might require audio versions of all written materials, or that all written materials be provided in a format that screen reader software can convert to audio.

Statutory Authority. The agreement also states that the statutory authority for treating Sylvan, including its online services, as a public accommodation with the meaning of the ADA is 42 U.S.C. 12181(7)(J).

Title III of the ADA pertains to "public accommodations". (Title I deals with disability based discrimination in employment. Title II deals with disability access to public services.) Title III is codified at 42 U.S.C. 12181-12189. This is the title that requires the removal of access barriers for persons with physical disabilities.

Section 12181 provides definitions for Title III. Subsection 12181(7) enumerates twelve categories of "public accommodations". (7)(A) includes hotels and motels. (7)(B) includes restaurants and bars. (7)(C) includes movie theaters.

(7)(J) includes schools. However, like most of the twelve categories, it adds a catch all phrase. It adds "or other place of education".

Hence, while Sylvan operates no schools, the CRD has determined that is an "other place of education". Although, Sylvan does have physical places.

What is more novel about this settlement agreement is that it writes the word "online" into the statute. Under this agreement, Sylvan online tutoring services are included within the meaning of "other place of education".

This construction of the statute is not supported by the wording of the statute. Nor is it supported by all of the judicial precedent on point. See, following story titled "Commentary: Extending ADA Public Accommodations Treatment to Online Activities".