ROY PAYAN; PORTIA MASON; NATIONAL FEDERATION OF THE BLIND; NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA v. LOS ANGELES COMMUNITY COLLEGE DISTRICT
Nos. 19-56111, 19-56146
United States Court of Appeals for the Ninth Circuit
Filed August 24, 2021
D.C. No. 2:17-cv-01697-SVW-SK; Argued and Submitted February 12, 2021; Submission Vacated February 16, 2021; Resubmitted August 17, 2021, Pasadena, California
Before: Richard C. Tallman, Consuelo M. Callahan, and Kenneth K. Lee, Circuit Judges. Opinion by Judge Tallman; Dissent by Judge Lee
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
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
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 prаctice 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
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 аccommodations 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 frаmework, 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
COUNSEL
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, Offiсe of General Counsel, California State University, Long Beach, California, for Amicus Curiae Board of Trustees of the California State University.
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
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 organizatiоn 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.
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 Pоlicy (“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
Second, Plaintiffs alleged they were unable to access certain textbooks required for their LACC courses. The AMPP rеquires 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 thе 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
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 wеbsite 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 рroblem.
B
Plaintiffs filed their initial complaint on March 2, 2017, alleging that LACCD‘s individual and systemic failures to remedy accessibility barriers violated
After a two-day bench trial on liability, the district court additionally found that LACCD violated the ADA and
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
II
The district court had jurisdiction pursuant to
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 private right of action. We recently questioned whether our historical recognition of privately enforced disparate impact disability discrimination claims remains good law in light of the Supreme Court‘s holding in Alexander v. Sandoval, 532 U.S. 275 (2001). See Schmitt v. Kaiser Found. Health Plan of Wash., 965 F.3d 945, 953–54 (9th Cir. 2020) (questioning but not deciding whether a private right of action to enforce disparate impact disability discrimination claims survives Sandoval). Due to this uncertainty, we requested that the parties in this case file supplemental briefing on the question whether a private right of aсtion exists to enforce disparate impact discrimination regulations under Title II of the ADA and
Our consideration of disparate impact claims in the disability discrimination context begins with the Supreme Court‘s 1985 decision in Alexander v. Choate, 469 U.S. 287.2 When the state of Tennessee proposed cutting its Medicaid services from covering 20 days of inpatient hospital stays per year to only 14 inpatient days, a class of people with disabilities brought a disparate impact disability discrimination claim under
We later considered disparate impact claims in the ADA Title II context in Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). We relied on both the text of the ADA and prior interpretation of
When a [public entity‘s] policies, praсtices or procedures discriminate against the disabled in violation of the ADA, Department of Justice regulations require reasonable modifications in such policies, practices or procedures “when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”
Id. at 1485 (quoting
B
As noted by the Schmitt court, though, it remains an open question whether disparate impact disability discrimination
In 2001, the Supreme Court held in Sandoval that no private right of action exists to enforce the disparate impact discrimination regulations promulgated under Title VI of the Civil Rights Act of 1964. 532 U.S. at 293. LACCD and the dissent argue that Sandoval applies with equal force to the ADA and
However, a closer read of Sandoval reveals that Title VI‘s limitation to only intentional discrimination is not based
Sandoval unequivocally states that Title VI prohibits only intentional discrimination. But this limitation, the sеcond “given aspect” of Title VI, is not created by the statutory language of Title VI. Instead, Sandoval supports this proposition by relying on two prior Supreme Court cases which considered the scope of Title VI. Id. at 280–81 (citing Guardians Ass‘n v. Civil Serv. Comm‘n of New York City, 463 U.S. 582 (1983); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)). In turn, these two cases both rely on Washington v. Davis, 426 U.S. 229 (1976), as the authority supporting the proposition. Guardians, 463 U.S. at 589–90; Bakke, 438 U.S. at 289 n.27.
Davis considered a disparate impact racial discrimination claim brought by a class of unsuccessful
It is this line of reasoning that leads to Sandoval‘s conclusion that Title VI of the Civil Rights Act could reach only intentional discrimination, not disparate impact discrimination. 532 U.S. at 280–81. Because this limitation is not based on the statutory text of the Civil Rights Act, the similar statutory language in
If we follow Sandoval through the equal protection jurisprudence governing disability-based classifications, the outcome remains the same. Unlike race-based distinctions, which are “inherently suspect and thus call for the most exacting judicial examination,” Bakke, 438 U.S. at 291, legal classifications based on disability are subject only to rational basis review. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–43 (1985); Hibbs v. Dep‘t of Human Res., 273 F.3d 844, 855 (9th Cir. 2001). In fact, the Supreme Court in Cleburne specifically declined to define disability as a quasi-suspect class because the state has a legitimate interest in affirmatively legislating to provide for people with disabilities, reasoning that legal “special treatment” for people with disabilities “is not only legitimate but also desirable” to remedy past discrimination. 473 U.S. at 444. Unlike Title VI‘s prohibition of race-based discrimination, the equal protection jurisprudence surrounding disability-based classifications permits civil rights statutes to prohibit disparate impact discrimination.
We therefore reject LACCD‘s invitation to limit the enforceability of disparate impact disability discrimination claims based on inapplicable reasoning found in cases
IV
Having concluded that Plaintiffs may bring disparate impaсt disability discrimination claims, we move to LACCD‘s argument that the district court erred in applying a disparate impact framework to all of Plaintiffs’ disability discrimination claims. We hold that it did.
A
Title II of the ADA prohibits public entities from discriminating on the basis of disability.
Title II‘s implementing regulations prohibit disability discrimination in a number of forms. See
A disability discrimination claim may be based on “one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.” Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016) (citation omitted); see also McGary, 386 F.3d at 1265–66. To assert
Although disparate impact and failure to accommodate are distinct theories of liability, they share some overlap. If a public entity‘s practices or procedures deny people with disabilities meaningful access to its programs or services, causing a disparate impact, then the public entity is required to make reasonable modifications to its practices or procedures. Crowder, 81 F.3d at 1485 (citing
The important difference between these two theories is that a reasonаble 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. Compare McGary, 386 F.3d at 1265–66 (considering reasonable accommodation claim against city over its failure to grant individual disabled plaintiff additional time to clean his yard before enforcing nuisance abatement code), and Updike v. Multnomah County, 870 F.3d 939, 949–53 (9th Cir. 2017) (considering reasonable accommodation claim against
B
LACCD argues 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. While LACCD overstates the law, it correctly argues that the district court erroneously categorized some of Plaintiffs’ claims. Our case law provides no justification for limiting disability discrimination claims to only the failure to accommodate theory of liability in the higher education context. But here, the district court erred in requiring Plaintiffs to present all of their claims as disparate impact claims.
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 in this case. To consider an example in the Title II framework, Plaintiffs identified LACCD‘s facially neutral practice of operating its student web portal through the PeopleSoft program as having a disparate impact on blind students because the program was not compatible with screen reading software. This accessibility barrier denied blind students an equal opportunity to manage their education independently by
The same goes for Plaintiffs’ allegations that LACCD had facially neutral practices of selecting classroom materials from third parties and only evaluating the accessibility of those materials on an ad hoc, complaint-driven basis rather than in compliance with the campus’ AMPP. Systemic barriers call for systemic reasonable modifications. Where a plaintiff challenges a program‘s policy or practice of failing to remedy systemic barriers, rather than the individual‘s experience with requesting accommodations to address those barriers, this type of claim is more appropriately evaluated under the disparate impact framework than the failure to reasonably accommodate framework.
However, LACCD correctly argues that certain claims specific to the individual plaintiffs in this case should have been considered through the individual failure to accommodate framework. Payan аnd Mason were each approved to receive individual accommodations through OSS, including receiving materials in accessible e-text and certain classroom accommodations. They also presented evidence of specific instances in which those accommodations were denied, including Payan‘s experience of being unable to timely receive his math textbook in e-text format and Mason‘s experience with only being provided a paper copy of her psychology classroom handouts. Because these claims focused on individual accommodations, they
Despite acknowledging the individual accommodations to which OSS determined Payan and Mason were entitled, the district court rejected these claims as failure to accommodate claims because the district court found that Payan and Mason did not adequately put LACCD on notice that they required specific accommodations. This was error. And because the district court erroneously rejected the failure to accommodate framework early in the litigation, it consequently limited the scope of evidence it permitted Plaintiffs to present on these claims. Thus, certain allegations in the operative complaint, such as LACCD‘s alleged failures to provide test-taking accommodations or an in-class notetaker, went underdeveloped through the course of the case, despite apparently presenting cognizable failure to accommodate claims. Because these allegations concern discrete instances in which Payan and Mason were denied specific individualizеd accommodations, the district court should have evaluated these claims under the failure to accommodate framework.
On remand, the district court is instructed 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.
V
Having concluded that the district court erroneously limited Plaintiffs’ claims to the disparate impact framework only, we REVERSE, VACATE, and REMAND for further proceedings consistent with this opinion and corresponding
LEE, Circuit Judge, dissenting:
This case presents a perplexing legal issue fraught with public policy implications: Do Title II of the American with Disabilities Act (ADA) and
On the one hand, as the majority points out, disabled individuals often face obstacles because of “benign neglect,” not intentional discrimination. Ruling out disparate impact claims could limit the remedies sought by plaintiffs. On the other hand, many facially neutral laws disproportionately affect the disabled. And adopting a disparate impact theory here could “lead to a wholly unwieldy administrative and adjudicative burden,” as the Supreme Court cautioned. Alexander v. Choate, 469 U.S. 287, 298 (1985).
Faced with this difficult question, the majority today rules that Title II and Section 504 allow plaintiffs to sue based on a disparate impact theory. While I respect the majority‘s careful analysis, I still must dissent. The statutes’ plain language bars intentional discrimination only, and we must abide by Congress’ policy choice. The Supreme Court has also suggested that the ADA and Section 504 — much like Title VI of the Civil Rights Act of 1964 — do nоt permit disparate impact claims. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
We need to start, as we must, with the statutory text of Title II and Section 504. The plain language makes clear that the statutes only forbid intentional discrimination. Nothing in the text remotely suggests that it encompasses a disparate impact theory, which holds that even facially neutral laws are discriminatory if they have an unintended disproportionate effect on certain groups.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Section 504 of the Rehabilitation Act makes this even clearer. It prohibits discrimination “solely by reason of her or his disability.”
For better or worse, Congress apparently barred only intentional discrimination against the disabled. It did not permit a disparate impact theory, and we should not infer a private right of action that Congress did not authorize. Cf. Lampf, Plea, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365, 111 S.C. 2773, 115 L.Ed.2 321 (1991) (Scalia, J., concurring in part and concurring in judgment) (“Raising up statutory causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.“).
II. The Supreme Court in Sandoval suggested that a disparate impact theory is unavailable under Section 504 and Title II.
But as the majority notes, we are not writing on a clean slate. Despite the plain language of Title II and Section 504,
But the Supreme Court gets the last word on federal law, not us. And in Alexander v. Sandoval, 532 U.S. 275, 280 (2001), the Supreme Court rejected a private cause of action for disparate impact under Title VI of the Civil Rights Act of 1964. The Court‘s Sandoval decision left open whether a disparate impact claim survives under statutes analogous to Title VI or those directly depending on it. As the majority notes, last year we identified this persistent open question of whether Sandoval effectively overruled Crowder v. Kitagawa. Maj. Op. 13–14 (citing Schmitt v. Kaiser Found. Health Plan of Wash., 965 F.3d 945, 953–54 (9th Cir. 2020)). We, however, did not address it because it was unnecessary to resolve the case.2
Similarly, most circuits have danced around this issue,3 or, confusingly, have not addressed the effect of Sandoval in
On the other side of the ledger, the Sixth Circuit provided a detailed and persuasive opinion holding that Sandoval precludes disparate impact claims under Section 504. See Doe v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235, 240–242 (recognizing that “Title VI . . . doesn‘t prohibit disparаte-impact discrimination . . . It‘s unlikely that Title IX, which was patterned on Title VI, does so either . . . [And thus] § 504 [of the Rehabilitation Act] does not prohibit disparate-impact discrimination“) (internal citations omitted). The Fifth Circuit in unpublished opinions has also reached a similar conclusion. See, e.g., Kamps v. Baylor Univ., 592 Fed.App‘x. 282, 285 (5th Cir. 2014) (“[t]he [analogous Age Discrimination Act of 1975] does not
To understand how Sandoval applies, we need to trace the cascading relationship among the ADA, Rehabilitation Act, and Title VI of the Civil Rights Act. As we noted in Crowder, the ADA contains an “explicit mandate . . . that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act.” Crowder, 81 F.3d at 1484. Indeed, the statute states that “[t]he remedies, procedures, and rights set forth in [section 794a of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of . . . this title.”
Relying on the Court‘s Alexander decision, we announced in Crowder that “[i]t is . . . clear that Congress intended the ADA to cover at least some so-called disparate impact cases of discrimination.” Crowder, 81 F.3d at 1483. But the Court in Sandoval held that it is “beyond dispute . . . that § 601 [of title VI] prohibits only intentional discrimination,” that the “authorizing portion of § 602 reveals no congressional intent to create a private right of action [to enforce disparate-impact regulations],” and, finally, “that no such [private] right of action [to enforce disparate-impact regulations] exists.” Sandoval, 532 U.S. at 280–293.
The majority argues that the Supreme Court‘s decision in Sandoval “is not created by the statutory language of Title VI,” and analyzes several older Supreme Court cases cited in Sandoval. While I do not necessarily disagree with the analyses of those cited cases, I think ultimately our answer lies in Sandoval‘s clear guidance on how to determine whether a statute confers a private right of action: “[T]he interpretive inquiry begins with the text and structure of the statute . . . and ends once it has become clear that Congress did not provide a cause of action.” Id. at 288 n.7. We start with the “rights creating” language and structure, and, if that does not clearly imply the cause of action, then we end our inquiry. This is so even when regulations provide rights-creating language. Id. at 291 (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not“). And by its text, Section 504 only prohibits discrimination against an individual “solely by reason of her or his disability.”
The Supreme Court told us that the text embodies Congress‘s intent, and “[h]aving sworn off the habit of venturing beyond Congress‘s intent, we [should] not accept [Plaintiffs‘] invitation to have one last drink.” Sandoval, 532 U.S. at 287.
I respectfully dissent.