Previously, I mentioned that the upcoming Supreme Court term will have two cases before it pertaining to the rights of people with disabilities. One of those cases asks the question of whether disparate impact claims exist under §504 of the Rehabilitation Act. On August 24, 2021, the Ninth Circuit over a dissent said that such claims were allowed in Payan v. Los Angeles Community College District, here. As usual, the blog entry is divided into categories and they are: facts; what happened at the district court level; majority opinion/private right of action exists for disparate impact claims; majority opinion/disparate impact should not have been applied to all claims; dissenting opinion by Judge Lee; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Facts (Taken from Opinion)
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.
What Happened at District Court Level (Taken from Opinion)
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.
Majority Opinion (Judge Tallman)/ Private Right of Action Exists for Disparate Impact Claims.
- Since 1996, the Ninth Circuit has recognized disparate impact claims in title II of the ADA cases.
- In 2001, the Supreme Court in Alexander v. Sandoval, here, held 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.
- A close read of Sandoval reveals that title VI’s limitation to only intentional discrimination is not based upon the statutory text of the Civil Rights Act. That is, Sandoval relied on two prior United States Supreme Court cases considering the scope of title VI. Accordingly, the similar statutory language in §504 and the ADA does not create an analogous limitation on disparate impact disability discrimination claims. So, Sandoval did not upset the historical understanding that §504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by thoughtless indifference or benign neglect, such as physical barriers to access public facilities.
- The ADA must be construed broadly in order to effectively implement the ADA’s fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
- Following Sandoval through the equal protection jurisprudence governing disability-based classifications, you get to the same place. That is, legal classifications based upon disability are subject only to rational basis review unlike race-based distinctions.
- Unlike title VI’s prohibition of race-based discrimination, equal protection jurisprudence surrounding disability-based classifications permits civil rights statutes to prohibit disparate impact discrimination.
- Nothing in Sandoval disturbs prior case law saying that disparate impact disability discrimination claims remain enforceable through a private right of action.
Majority Opinion (Judge Tallman)/The Disparate Impact Framework Should Not Have Been Applied to All of Plaintiff’s Disability Discrimination Claims
- Title II of the ADA prohibits public entities from discriminating on the basis of disability. §504 does the same with respect to recipients of federal funds.
- The two laws get interpreted in the same way because there is no significant difference in the analysis of rights and obligations created by the two acts.
- To state a prima facie case for violating title II of the ADA, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was either excluded from participation in or denied the benefits of a public entity’s services, program, or activities, or was otherwise discriminated against by the public entity; 3) such exclusion, denial of benefits, or discrimination was by reason of his disability.
- The elements of a prima facie case under §504 are similar with the additional requirement that a plaintiff has to prove that the program receives federal financial assistance.
- The only question at issue in this case is whether defendant’s action, practices, and policies discriminated against the plaintiffs.
- Prohibited forms of disability discrimination include, 28 C.F.R. §35.130(b)(1), denying individuals with disabilities the opportunity to participate in a program or service, providing an unequal opportunity to participate in the program or service, and providing the entity’s program or service in a way that is not effective in affording the individual with the disability an equal opportunity to obtain the same result as provided to others.
- 28 C.F.R. §35.130(b)(7)(i) requires public entities to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the making the modifications would fundamentally alter the nature of the service, program, or activity.
- Disability discrimination claims can be based on any of three different theories of liability: 1) disparate treatment, 2) disparate impact; or 3) failure to make a reasonable accommodation.
- In a footnote, the court notes that “reasonable modification,” (title II, title III), creates identical standards to the ADA’s title I term “reasonable accommodation,” and the two may be used interchangeably.
- In a disparate impact claim, a plaintiff must allege that a facially neutral government policy or practice has the effect of denying meaningful access to public services to people with disabilities.
- To state a reasonable accommodation claim, a plaintiff need not allege either disparate treatment or disparate impact.
- 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.
- Although failure to make a reasonable accommodation and disparate impact are two different theories of a title II claim, a public entity may be required to make reasonable modifications to it facially neutral policies that disparately impact people with disabilities.
- The difference between the 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.
- Ninth Circuit case law provides no justification for limiting disability discrimination claims to only the failure to accommodate theory of liability in the higher education context. That said, the district court did err in requiring plaintiffs to present all of their claims as disparate impact claims.
- Some of the claims in the complaint are true disparate impact claims, such as: 1) allegations pertaining to systemic accessibility barriers and campus websites or the library; and 2) the defendant had facially neutral practices of selecting classroom material 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’s own policies.
- 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 under the failure to reasonably accommodate framework.
- Certain claims are specific to the individual plaintiffs in the case and should have been considered through the individual failure to accommodate framework rather than through the disparate impact framework, such as those pertaining to receiving materials and accessible e-text and certain classroom accommodations.
Dissenting Opinion by Judge Lee
- 504 and title II of the ADA statutory claim language prohibits intentional discrimination only and a court must abide by Congress’ policy choice.
- The Supreme Court has suggested that the ADA and §504- like title VI of the Civil Rights Act of 1964- do not permit disparate impact claims.
- Nothing in either text remotely suggests encompassing 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, 42 U.S.C. §12132, that no qualified individual with a disability shall by reason of such disability (emphasis in the dissent), be excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
- The phrase “by reason of,” means “because of,” or “due to.” That is, title II prohibits discrimination only because of or due to disability status. Accordingly, it requires intentional discrimination based upon disability and does not contemplate disparate impact.
- 504 is an even clearer case because causation, per 29 U.S.C. §794a, is “solely by reason of.”
- The Sixth Circuit has held that §504 does not contemplate a disparate impact theory.
- When the Supreme Court has found that a statute prohibits disparate impact discrimination, it has relied on language like “otherwise adversely affect,” or “otherwise make unavailable,” both of which refer to the consequences of an action other than an actor’s intent. No such language appears in §504. So, for better or worse, Congress apparently prohibited only intentional discrimination against people with disabilities. It did not authorize a disparate impact theory and a private right of action should not be inferred.
- In Sandoval, the Supreme Court specifically left open whether a disparate impact claims survive under statute analogous to title VI or those directly depending upon it.
- In a footnote, the dissent notes that the Supreme Court has agreed to hear a case addressing the question of whether disparate impact claims are available in §504 cases or under statutes depending upon §504.
- The 10th Circuit has held that the Rehabilitation Act allows for a disparate impact claim because the Rehabilitation Act has a different aim and was enacted in different contexts from the Civil Rights Act of 1964. On the other hand, the Sixth Circuit has adopted a contrary view.
- The ADA contains an explicit mandate that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act. Indeed, the remedies for violating title II of the ADA are specifically by statute hooked into the Rehabilitation Act.
- In Sandoval, the Supreme Court held that §601 (title VI) prohibits only intentional discrimination. Therefore, §602 reveals no congressional intent to create a private right of action to enforce disparate impact regulations. In other words, if title VI does not allow a disparate impact claim, then the Rehabilitation Act cannot allow such a claim either because it derives its remedies and rights from title VI. Same goes for the ADA because title II of the ADA relies on the Rehabilitation Act for its remedies and rights. Such a domino effect is unavoidable because the Rehabilitation Act and the ADA both rely on the same statutory language in title VI for their causes of action, and the Supreme Court has held that it is beyond dispute that title VI prohibits only intentional discrimination.
- Any 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. You start by looking at the rights creating language and structure. If that does not clearly imply the cause of action, the inquiry ends even where regulations provide rights creating language.
- 504 only prohibits discrimination against an individual, “solely by reason of her or his disability.” The ADA is “by reason of his or her disability.”
- Though the ADA must be construed broadly, it cannot be construed any more broadly than the text of the statute allows.
- The majority and dissenting opinion tee up nicely the arguments on both sides as to whether title II of the ADA and §504 of the Rehabilitation Act allow for disparate impact claims.
- The majority opinion is not correct when it says that persons with disabilities are always in the rational basis class when it comes to equal protection jurisprudence. They most certainly are not per Tennessee v. Lane. In fact, it is a case by case analysis. As far as I know, persons with disabilities are the only group of people whose actual equal protection status depends upon the individual facts of the case.
- You see all the time the statement that there are no significant differences in the rights and obligations under §504 and title II of the ADA. That is only sort of correct. As noted in this opinion, causation is very different. Also, the notion of program accessibility doesn’t get the same treatment between the two laws. For example, title II of the ADA allows for program accessibility. However, depending upon the type of entity you are, under §504 of the Rehabilitation Act all of your operations may need to be meaningfully accessible to persons with disabilities. See 29 U.S.C. §794(b)(1),(2).
- The majority opinion seem to suggest that causation under §504 and title II of the ADA are the same. As the dissent notes, that isn’t the case.
- Reasonable modifications and reasonable accommodations do mean the same thing. It has always been a mystery to me why “reasonable accommodation,” appears in title I and “reasonable modification,” appears in title II and title III. That there is a difference at all, is used by the majority to suggest a reason as to why title II of the ADA allows for a disparate impact claim, which I find to be a very interesting approach.
- The majority opinion does a nice job of explaining the difference between what situations are disparate impact claims and what situations are traditional failure to accommodate claims. For a real world example, one has to look no farther than the Georgia voting bill that was signed by the governor making it a crime for other people standing in line to give food or water to another person standing in line. Such a policy, seemingly neutral on its face, definitely has a disparate impact on persons with disabilities.
- The trend is absolutely clear that failure to accommodate is a separate cause of action, though I know not all courts agree with that.
- I have absolutely no idea how the Supreme Court is going to approach the case it has before regarding whether §504 allows for a disparate impact claim. As I mentioned previously, the Supreme Court has been very good for persons with disabilities outside of the employment context. The strongest arguments I see against the allowance of disparate impact claims is the causation language in title II of the ADA and especially the Rehabilitation Act. On the other hand, the argument that the ADA and §504 have different aims and arise in different contexts than traditional title VI claims, makes intuitive sense to me as well. I look forward to reading the oral argument in the disparate impact case when it gets to the United States Supreme Court. I am not going to make a prediction on any possible outcomes.