In recent years, an increasing number of institutions have publicly offered university-level courses online for free. Elite institutions such as Harvard and Yale have recorded a number of their undergraduate courses and posted them online. Specialized providers of massive open online course (MOOC) have also emerged, ranging from for-profit organization such as Coursera, and nonprofit groups like edX. MOOCs offer the potential to expand access to higher learning while simultaneously reducing the cost to students. Harvard proclaims that its “commitment to equity calls on us to create effective, accessible avenues for people who desire to learn but who may not have an opportunity to obtain a Harvard education.” However, the move from brick-and-mortar institutions to online platforms does not mean that universities no longer have to deal with a range of legal issues.
As sexual assault policies and Title IX compliance of universities come under close examination, the prospect of dealing with similar issues online is unfortunately becoming a reality. In October, a woman using MIT’s online education course filed a sexual harassment complaint against Walter Lewin, a popular physics professor. Following an internal investigation, MIT found Lewin had violated the university’s sexual harassment policies and removed his lectures from online platforms. It is unclear if MIT took additional disciplinary actions against the retired professor. Though Lewin appears to be an isolated incident, the possibility of online sexual harassment is an issue that universities must deal with. While universities have a clear legal obligation to protect their students, it is unclear what duty they owe, if any, to online users who do not qualify as students. While federal and state laws against cyberstalking exist, critics have argued that these may be difficult to enforce given the nonphysical nature of online harassment.
Another area that online platforms must address is discrimination against disabled persons. This is not a novel legal issue. As far back as 2010, the Department of Justice and the Department of Education expressed concerns in a letter to university administrators that the use of technology may create inaccessibility for disabled students. For example, the use of electronic readers, many of which lack text-to-speech functions, limit the ability of those with visual impairments to learn.
In December of last year, the National Association of the Deaf (NAD) filed a class action lawsuit against Harvard and MIT for lack of captioning for their online courses. The plaintiffs allege that many courses either lack captioning completely or have unintelligible captioning. The main statutes behind the lawsuit are Title III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. Title III prohibits discrimination against disabled persons by a public accommodation, while Section 504 prohibits universities that receive federal funding from denying disabled persons from participating in and benefiting from university activities. The underlying legal rationale behind the lawsuit is virtually identical to the 2010 DOJ and DOE letter. However, it remains to be seen whether the court will consider open online courses to be public accommodations. As universities expand their presence through online platforms, they may have incurred additional legal obligations toward members of the public that have difficulties accessing these opportunities.
Given the relative novelty of online education platforms, it is not surprising that new legal issues have emerged. Moreover, for nonprofit organizations especially, the cost of legal compliance with various federal and state regulations could limit their future development. Moving forward, it is up to various federal agencies and departments to issue clear guidelines to help higher education institutions address the legal troubles that come with moving online.
