Payan v LACCD Explainer

Payan v. Los Angeles Community College District is a case brought by blind students against the Los Angeles Community College District (LACCD). The students want the textbooks, handouts, websites, and other technology they use at school to be accessible to them. They sued in federal court under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

The students are represented by nationally recognized disability rights lawyers who focus on achieving remedies in cases of systemic discrimination.

Yes. In 2019, the students proved to the federal district court that textbooks, handouts, websites, databases, and computer applications were not accessible to them because they did not function properly with screen-reading software. The federal judge ordered LACCD to take make its materials, websites, and software accessible to blind students, and to remedy barriers in its library databases.

The judge specifically ruled that LACCD is not required to do anything “if doing so amounts to an undue financial or administrative burden or would result in the fundamental alteration[.]” This is because the ADA and Section 504 balance the needs of people with disabilities and those of covered entities like LACCD.

LACCD appealed to the Ninth Circuit Court of Appeals. In its appeal, LACCD did not argue that their programs and services are accessible to blind students, or that providing the access fixes would cause an undue burden or a fundamental alteration. Instead, LACCD argued that plaintiffs should not be allowed to bring claims under the ADA or Section 504 using the “disparate impact” theory of discrimination. “Disparate impact” discrimination means discrimination that is supposedly unintentional, such as when there is a neutral policy or practice that harms or excludes disabled people.

The plaintiffs won again. The appellate court rejected LACCD’s argument that the ADA and Section 504 do not apply to unintentional discrimination. The majority ruled that “Section 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.”

But one appellate judge, Judge Kenneth K. Lee, dissented. Judge Lee said that the ADA and Section 504 only prohibit intentional discrimination. Judge Lee was appointed to the Ninth Circuit in 2019 by President Trump.

On November 17, 2021, lawyers for LACCD told the federal trial court that it should “stay” or put a hold on the case because LACCD plans to ask the U.S. Supreme Court to take the case and decide whether disabled plaintiffs can bring claims under the ADA or Section 504 for “disparate impact” or unintentional discrimination. The lawyers for LACCD cited to Judge Lee’s dissent in support of their request to stay the case.

On January 3, 2022, lawyers for LACCD reiterated to the court their plan to seek the harmful Supreme Court ruling. They also opposed the blind students’ request to voluntarily drop the Section 504 claim because it “could have the effect of impairing the chances of the U.S. Supreme Court granting the petition for writ of certiorari.” In other words, instead of fixing its access barriers, LACCD is doing everything it can to get this case to the Supreme Court even on claims that the students are no longer pursuing in a bid to shield itself from the longstanding requirements of federal civil rights laws.

If LACCD is successful, the Supreme Court will rule that the ADA and Section 504 do not prohibit “disparate impact” or unintentional discrimination. But this is very often how disability discrimination happens! The prohibition on this kind of discrimination is at the heart of the ADA and Section 504.

For more than four decades, Congress has agreed that our disability laws prohibit unintentional forms of discrimination. In 1977, Congress reviewed and approved the original Section 504 regulations which prohibited unintentional discrimination. And then in 1990, Congress explicitly incorporated these standards into Title II of the ADA.

But LACCD plans to argue that the ADA and Section 504 do not prohibit any form of disparate impact discrimination and only protect disabled people from discrimination that is intentional. LACCD plans to ask the Supreme Court to make this the rule for the entire country. This would eviscerate the ADA and Section 504.

In most cases, disability discrimination does not happen because of an intent to hurt people with disabilities. Most discrimination against people with disabilities happens because of how society has been organized and built, and due to thoughtlessness about how to make sure disabled people are included. Some examples include:

• Failing to provide accessible spaces with ramps and elevators;
• Using trains or buses in public transit that are not wheelchair accessible;
• Launching websites and mobile apps that are unusable by blind people and people with other disabilities;
• Policies that seem neutral but that actually function to exclude people with disabilities.

The only reason we have made progress is because the ADA and Section 504 require businesses and government to do things differently regardless of what anyone “intended.”

LACCD says that it does not discriminate against people with disabilities, and that it complies with the ADA. The Chancellor’s Office sponsors an annual Disability Summit to “share strategies for institutions of higher education to ensure they are providing an inclusive and equitable environment for students and employees with disabilities.”

On December 17, 2021, in response to the concerns of the disability community about the case, the LACCD trustees issued a statement that LACCD is “committed to diversity, equity, inclusion and access for all,” and “fully supports the Americans with Disabilities Act.” But these words are meaningless as the trustees continue to pursue their dangerous threat to use the Supreme Court to weaken the rights of people with disabilities, including the blind students who attend LACCD and face barriers in classroom materials, textbooks, educational platforms, and websites.

The LACCD trustees also committed to mediating a resolution with LACCD between now and the deadline, but the lawyers for LACCD seem most focused on the Supreme Court petition.

The irony is that LACCD already has all of the tools it needs to comply with federal laws and meet its institutional needs. As the trial judge already ruled, the law does not require LACCD to take steps that would impose an undue burden or a fundamental alteration. If there are technological barriers, the trial court can consider them in its orders. And if LACCD needs additional funds to implement necessary access changes, it can work with the Los Angeles County legislative delegation to secure additional resources.

Similarly, the law only permits reasonable attorneys’ fees. If the fees cannot be resolved through negotiation, the trial judge will review the bills and cut any amounts that are unreasonable.

There is no reason for LACCD to ask the Supreme Court to eviscerate the ADA and Section 504.

Please sign our petition telling LACCD to BACK OFF.