Fox & Robertson along with co-authors Claudia Center and Michelle Uzeta of the Disability Rights Education and Defense Fund and Andrew Rozynski filed an amicus brief to the Ninth Circuit urging the court to reverse decisions in Payan v. Los Angeles Community College District that (1) entered a narrow and virtually toothless injunction despite robust evidence of systemic violations of the ADA; and (2) reduced the damages awarded by the jury by over 99%. The brief was filed on behalf of DREDF and 16 other disability rights organizations.
Plaintiffs in the case were two students at Los Angeles City College (“LACC”), as well as the National Federation of the Blind and the National Federation of the Blind of California. They sued the Los Angeles Community College District (“LACCD”) under Title II of the Americans with Disabilities Act alleging that LACCD and LACC discriminated against and failed to provide accommodations to blind students.
Following a trial in May 2023, the jury found that that LACCD’s websites and LACC library resources were inaccessible to blind students, that LACCD had provided inaccessible course materials and software, that it failed to make and honor required accommodations – including note-taking and recording classes – and that it actively excluded or discouraged blind students from certain classes. Based on these violations, the jury awarded $242,500 in damages to the two individual plaintiffs.
Almost a year later, the district court took two actions that the plaintiffs and amici are challenging before the Ninth Circuit: it issued an injunction that fell far short of remedying the violations identified by the jury; and it reduced the damages to $1,650.
The Injunction Should Have Remedied All Discrimination Before the Court.
In our civil legal system, juries are responsible for assessing the evidence at trial, determining whether the defendant violated the law and, if so, how much the plaintiff was entitled to recover in damages. It is up to the judge, however, to craft an injunction — an order — designed to remedy the violations. When the judge does this, they may consider both the jury’s verdict and any other evidence in the case that does not conflict with the jury’s verdict.
In the Payan case, the jury found 14 separate violations of Title II of the ADA and the judge had before him a good deal of additional evidence that these violations were systemic. He also had evidence that LACCD had not remedied these violations despite having an ostensible policy in place for over 20 years and having put other policies in place over the course of the litigation — none of which succeeded in ensuring accessibility. Clearly, the LACCD needed the force of a court order to provide accessible materials, include blind students in classes, and train professors and staff on these requirements. The injunction actually entered by the court did very little of this.
The amicus brief urged the Ninth Circuit to reinforce that courts have “not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 873-74 (9th Cir. 2017) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)).
We also urged that court to reject the district court’s reliance on LACCD’s last minute policy changes as evidence of reform. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. . . . [I]f it did, the courts would be compelled to leave [t]he defendant . . . free to return to his old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Here, LACCD did not “return” to its old ways; it never left them. The plaintiffs provided evidence that, even in 2023, after the issuance of the most recent policy on which the district court relied in justifying its narrow injunction, LACCD’s website and student-facing software continued to be inaccessible to blind users.
The Verdict Should Not Have Been Reduced
The district court made two distinct errors when it gutted the jury’s damages verdict. It improperly extended the Cummings case to preclude emotional distress damages under Title II; and it held that the evidence of harm before the jury consisted almost entirely of emotional distress.
In our brief, Amici explained that Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022) — which held that damages for emotional distress were not available under Section 504 of the Rehabilitation Act — did not apply to Title II of the ADA. We also argued that, even if Cummings applied to Title II, the damages awarded by the jury were not for emotional distress but for lost educational opportunity.
Characterizing the harm incurred by the plaintiffs as “emotional” misconstrued and demeaned their experiences; if adopted more generally, this holding will impact the ability of students to seek full redress for education delayed or denied. The plaintiffs here were two dedicated students, interested in pursuing classes in higher education. When LACCD made those classes inaccessible or unavailable to them, it did not merely cause them to be emotional; it took from them a specific opportunity to learn and to further their lives and careers. Lost educational opportunity is far more than emotional harm.