Payan v. Los Angeles Community College District, No. 19-56111 (9th Cir. 2021)
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Blind students, Payan and Mason, took classes at LACC, a Southern California community college. Upon their enrollment, each registered for disability accommodations through the college’s Office of Special Services (OSS). Their approved accommodations included tape-recorded lectures, preferential seating, receiving materials in electronic text, and test-taking accommodations. Mason also received weekly tutoring. Each uses a screen reading software to read electronic text. Despite these accommodations, each encountered accessibility problems at LACC, relating to in-class materials, textbooks, educational technology, websites and computer applications, and research databases in the LACC library.
Plaintiffs filed suit, alleging that individual and systemic failures to remedy accessibility barriers violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. The district court granted partial summary judgment for Plaintiffs, after instructing them to reframe their disability discrimination arguments through a disparate impact framework only. A jury found the discrimination against Payan was deliberately indifferent and awarded Payan $40,000 in compensatory damages but no damages to Mason.
The Ninth Circuit vacated. Despite acknowledging the individual accommodations to which OSS determined the Plaintiffs were entitled, the district court erroneously rejected these claims as failure to accommodate claims because it found that the Plaintiffs did not adequately put LACC on notice that they required specific accommodations. On remand, the court must reconsider Plaintiffs’ individual claims under either the disparate impact framework or the individual failure to accommodate framework, depending on the nature of the claim.
Court Description: Disability Discrimination. On an appeal and a cross-appeal in a case in which the district court entered a permanent injunction and final judgment in favor of two blind students and two non-profit organizations that advocate for blind persons (collectively, “Plaintiffs”), the panel reversed, vacated, and remanded for further proceedings. The district court entered the injunction and judgment against Defendant Los Angeles Community College District (“LACCD”) following bench and jury trial verdicts finding that LACCD had violated Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act by systemically discriminating against blind students at its Los Angeles City College campus. The panel first held that the Supreme Court’s holding in Alexander v. Sandoval, 532 U.S. 275 (2001), does not disturb this court’s historical recognition that disparate impact disability claims are enforceable through a private right of action. The panel then addressed LACCD’s argument that the district court erred in applying a disparate impact framework to all of Plaintiffs’ disability discrimination claims. Under Title II and Section 504, disability discrimination claims may be based on one of three theories of liability: disparate PAYAN V. LOS ANGELES CMTY. COLLEGE DIST. 3 treatment, disparate impact, or failure to make a reasonable accommodation. The panel explained that the important difference between the latter two theories is that a reasonable accommodation claim is focused on an accommodation based on an individualized request or need, while a reasonable modification in response to a disparate impact finding is focused on modifying a policy or practice to improve systemic accessibility. LACCD argued that the district court erred in applying a disparate impact framework to Plaintiffs’ claims because the accessibility of higher education is fundamentally an issue of individualized reasonable accommodations rather than systemic barriers. The panel wrote that this court’s case law provides no justification for limiting disability discrimination claims to only the failure to accommodate theory of liability in the higher education context, and held that the district court erred in requiring Plaintiffs to present all of their claims as disparate impact claims. The panel wrote that some of Plaintiffs’ claims are true disparate impact claims. Allegations of systemic accessibility barriers in campus websites or the library are claims that impact all blind users, not just the two individual plaintiffs, and are appropriately considered under the disparate impact framework. The panel cited as examples (1) that Plaintiffs identified LACCD’s facially neutral practice of operating its student web portal through a program that was not compatible with screen reading software as having a disparate impact on blind students, as to which Plaintiffs presented evidence of a remedy through reasonable modifications to the underlying website programming; and (2) Plaintiffs’ allegations that LACCD had facially neutral practices of selecting classroom materials from third parties and only evaluating the 4 PAYAN V. LOS ANGELES CMTY. COLLEGE DIST. accessibility of those materials on an ad hoc, complaint- driven basis rather than in compliance with the campus’ Alternate Media Production Policy. The panel wrote, however, that certain claims specific to the individual plaintiffs should have been considered through the individual failure to accommodate framework. The panel noted that the individual plaintiffs were each approved to receive individual accommodations through the college’s Office of Special Services, and presented evidence of specific instances in which those accommodations were denied. The panel held that the district court erred by rejecting these claims on the ground that the individual plaintiffs did not adequately put LACCD on notice that they required specific accommodations, consequently limiting the scope of evidence it permitted Plaintiffs to present on these claims. The panel wrote that certain allegations in the operative complaint thus went underdeveloped despite apparently presenting cognizable failure to accommodate claims. The panel instructed the district court on remand to reconsider Plaintiffs’ individual claims under either the disparate impact framework or the individual failure to accommodate framework, depending on the nature of the specific claim, and to permit Plaintiffs to introduce evidence to support these claims under either framework. The panel resolved remaining claims on appeal in a concurrently filed memorandum disposition. Dissenting, Judge Lee disagreed with the majority’s holding that Title II and Section 504 allow plaintiffs to sue based on a disparate impact theory. He wrote that the statutes’ plain language bars intentional discrimination only, PAYAN V. LOS ANGELES CMTY. COLLEGE DIST. 5 and the Supreme Court has suggested that the Americans with Disabilities Act and Section 504 do not permit disparate impact claims.
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