A federal appeals court ruled Tuesday that two blind students have the right to use disparate impact theory -- which requires plaintiffs only to show that a policy has a disparate impact on them, not that it was intentional -- in a lawsuit against the Los Angeles Community College District.
If the ruling is upheld, a lawyer for the National Federation of the Blind, which joined the case, said it would be much easier to win discrimination cases based on disability. Joseph B. Espo, the lawyer, said, "People won't need to prove there was an intent to cause harm," and that will make cases much easier to win.
However, the ruling by the U.S. Court of Appeals for the Ninth Circuit was 2 to 1. And the dissenting judge said that disparate impact theory did not deserve consideration.
The case now returns for more arguments at the district court level.
What the Dispute Is About
The case involves two students who enrolled at Los Angeles City College in 2015 and 2016. The students, Roy Payan and Portia Mason, registered with the college's disability services division and were approved to receive tape-recorded lectures, preferential seating and materials in electronic text form.
But the appeals court found those accommodations were not sufficient for the students.
“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,” the ruling said.
There also were problems with textbooks, the appeals court said.
"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," the ruling said. "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."
Individual assignments were also problematic.
"Payan took multiple LACC courses which utilized inaccessible computer programs to facilitate class work," the appeals court said. "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."
The students argued in the lawsuit that their rights were violated under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act.
The decision, written by Judge Richard C. Tallman, said 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 in this case."
Further, he wrote, "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, Judge Kenneth K. Lee said in his dissent that the question was ultimately about what Congress set down as the rules.
"The majority today rules that Title II and Section 504 allow plaintiffs to sue based on a disparate impact theory," he wrote. "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 Los Angeles Community College District could not be reached for comment.
The issue of blind students and their rights is increasingly litigated in American higher education.