Payan v. L. A. Cmty. Coll. Dist.

• Decision Date: 24 August 2021
• Docket Number: Nos. 19-56111,19-56146,s. 19-56111
• Citation: 11 F.4th 729
• Parties: Roy PAYAN; Portia Mason; National Federation of the Blind ; National Federation of the Blind of California, Plaintiffs-Appellees/Cross-Appellants, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.4th 729

Roy PAYAN; Portia Mason; National Federation of the Blind ; National Federation of the Blind of California, Plaintiffs-Appellees/Cross-Appellants,

v.LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant-Appellant/Cross-Appellee.

Nos. 19-56111

19-56146

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2021

Submission Vacated February 16, 2021

Resubmitted August 17, 2021 Pasadena, California

Filed August 24, 2021

David A. Urban (argued), Pilar Morin, Kate S. Im, and Meredith G. Karasch Liebert Cassidy Whitmore, Los Angeles, California, for Defendant-Appellant/Cross-Appellee.

Jean M. Zachariasiewicz (argued) and Joseph B. Espo, Brown Goldstein & Levy LLP, Baltimore, Maryland; Patricia Barbosa, Barbosa Group, Huntington Beach, California; for Plaintiffs-Appellees/Cross-Appellants.

William C. Hsu, Office of General Counsel, California State University, Long Beach, California, for Amicus Curiae Board of Trustees of the California State University.

Before: Richard C. Tallman, Consuelo M. Callahan, and Kenneth K. Lee, Circuit Judges.

Dissent by Judge Lee

TALLMAN, Circuit Judge:

Defendant-Appellant Los Angeles Community College District ("LACCD") appeals the final judgment and permanent injunction entered against it following bench and jury trial verdicts finding it had violated Section 504 of the Rehabilitation Act of 1973 ("Section 504") and Title II of the Americans with Disabilities Act ("ADA") by systemically discriminating against blind students at its Los Angeles City College ("LACC") campus. Because the district court erroneously limited the scope of Plaintiffs’ disability discrimination claims, we reverse, vacate, and remand for further proceedings.¹

I

We begin with a brief introduction of the parties. LACCD is a public education entity operating multiple community college campuses in Southern California, including LACC. Plaintiffs Roy Payan and Portia

Mason are blind students who took classes at LACC in 2015 and 2016. Plaintiff National Federation of the Blind, Inc. ("NFB") is a non-profit organization that advocates for inclusion of and removal of barriers to equality for blind persons, and Plaintiff National Federation of the Blind of California, Inc. ("NFB-CA") is the California affiliate of NFB.

A

Upon their enrollment at LACC, Payan and Mason each registered for disability accommodations through the college's Office of Special Services ("OSS"). Payan and Mason's approved accommodations included tape-recorded lectures, preferential seating, receiving materials in electronic text, and test-taking accommodations, and Mason received additional accommodations in the form of weekly tutoring. Both Payan and Mason use a screen reading software called Job Access with Speech ("JAWS") to read electronic text. Screen reading software allows blind users to read electronic text by converting electronic text and images into audio descriptions or a Braille display.

Despite being granted individual accommodations, Payan and Mason each encountered accessibility problems while taking classes at LACC. While some of these accessibility barriers affected Payan and Mason individually, others affected blind LACC students generally. Plaintiffs categorized these accessibility barriers into the following five general inaccessibility claim categories: (1) in-class materials; (2) textbooks; (3) educational technology; (4) websites and computer applications; and (5) research databases in the LACC library.

First, Payan and Mason each took LACC classes in which they were not provided with in-class materials, such as handouts and PowerPoint presentations, in an accessible format at the same time that their classmates received the materials. LACC has a general written Alternate Media Production Policy ("AMPP") which requires all instructional materials be made accessible to students with disabilities. Despite this written policy and being approved for individual accommodations, Payan took a philosophy course in which his professor did not provide him with class handouts in an accessible format. Similarly, Mason took a psychology course in which the professor utilized a handbook for in-class discussion, but Mason was only provided with a paper copy which she was unable to review. Mason took another psychology class in which the professor lectured using PowerPoint presentations, which Mason was able to download for review after class but which were not accessible because they were not fully compatible with screen reading software.

Second, Plaintiffs alleged they were unable to access certain textbooks required for their LACC courses. The AMPP requires that instructional materials purchased from third parties, such as textbooks, be made accessible to students with disabilities, that the college must proactively evaluate the accessibility of its instructional materials, and it establishes a process by which students with disabilities may request inaccessible materials be reproduced to them in an accessible format. Despite this policy and his individual accommodations, Payan enrolled in a math class in which he was not timely provided an accessible version of his textbook. Payan was required to take his math textbook to OSS to have it converted to an accessible format in a piecemeal manner. However, because OSS could not digitize Payan's textbook quickly enough for Payan to keep up with his course, he received his accessible assignments late and fell behind in the course as a result.

Third, despite the requirements of the AMPP and his individual accommodations, Payan took multiple LACC courses which utilized inaccessible computer programs to facilitate class work. Payan's math class required students to complete and submit homework assignments through a computer program called MyMathLab. MyMathLab was not compatible with screen reading software. Because Payan was unable to complete homework assignments using MyMathLab, and because he was not timely provided with accessible textbook assignments, he fell behind in his coursework.

Fourth, Plaintiffs identified a variety of accessibility barriers to utilizing LACC's website resources which impacted all blind students. LACC's front-facing website, as well as its internal online student portal—operated through a program called PeopleSoft—were not compatible with screen reading software. Plaintiffs put forward evidence that reasonable website programming modifications existed which could resolve these accessibility barriers, and LACCD failed to offer any evidence to rebut or contradict this evidence.

Fifth, Plaintiffs identified accessibility barriers in LACC's library research databases, many of which were not compatible with screen reading software. Despite the AMPP and her individual accommodations, Mason was unable to complete a research paper for a psychology course because the professor required use of an inaccessible research database for the assignment. Although some of the library's online databases were accessible to blind students, the library did not conduct regular accessibility checks and did not test programs for accessibility before the library acquired them, as the AMPP required. Instead, accessibility was only tested when a blind student reported an accessibility problem.

B

Plaintiffs filed their initial complaint on March 2, 2017, alleging that LACCD's individual and systemic failures to remedy accessibility barriers violated Section 504 of the Rehabilitation Act and Title II of the ADA. After several rounds of briefing, the district court granted partial summary judgment for Plaintiffs. Specifically, after the district court instructed Plaintiffs to reframe their disability discrimination arguments through a disparate impact framework only, it granted summary judgment for Plaintiffs on the claims related to Payan's access to his math textbook and MyMathLab assignments. The district court also found that LACCD discriminated against blind students as a matter of law based on the accessibility barriers present in the LACC websites and library database, but it declined to impose liability at that time because Plaintiffs had not yet met their burden to show reasonable modifications existed to remedy this discrimination.

After a two-day bench trial on liability, the district court additionally found that LACCD violated the ADA and Section 504 by providing Mason with an inaccessible handbook in her psychology class and through its use of the inaccessible LACC website and library databases. Then, after a three-day jury trial on damages, the jury found LACCD's discrimination against Payan was deliberately indifferent and awarded $40,000 in compensatory damages to Payan but no damages to Mason.

Following the bench and jury trials, the district court entered a permanent injunction and final judgment in favor of Plaintiffs. The permanent injunction requires LACCD to: (1) come into compliance with its AMPP; (2) evaluate its library databases for accessibility and establish means of alternate access to inaccessible databases for blind students; (3) designate a Dean of Educational Technology; (4) make the LACC website and embedded programs accessible to blind students; and (5) assess educational materials for accessibility before acquisition and to establish means of providing accessible alternative materials to blind students in a timely manner. LACCD appealed, and Plaintiffs conditionally cross-appealed.

II

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's interpretation of the relevant disability discrimination laws de novo. Molski v. Foley Ests. Vineyard & Winery, LLC , 531 F.3d 1043, 1046 (9th Cir. 2008) (citation omitted).

III

LACCD challenges the district court's application of a disparate impact framework to Plaintiffs’ disability discrimination claims. As an initial matter, though, we must consider whether Plaintiffs may enforce their disparate impact claims through a...