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High Court Involvement May Raise Stakes in LACC Lawsuit

Students allege in their lawsuit that the college failed to provide textbooks, handouts, syllabi and other classroom materials in Braille or an audio format that blind students could use. The students won their case in 2019, but the LACCD appealed the decision to the 9th Circuit Court of Appeals. The college district lost that appeal as well.

The LACCD argued that what happened at City College was “unintentional discrimination,” and on that basis has resisted providing students with accommodations described in the court ruling. Some worry that taking the case to the Supreme Court could jeopardize the entire American with Disabilities Act (ADA). According to Disability Rights California (DRC), the LACCD’s petition would challenge the very foundation of disability rights.

Supporters Rally Behind Dis-

abled Cause Over 900 participants attended the “Disability Rights are Civil Rights” meeting via Zoom, hosted by the Association on Higher Education and Disability (AHEAD) on Jan. 31, 2022. Civil rights advocate Paul Grossman told attendees about the problem he says the LACCD created.

“This is the most serious matter in disability law in 20 years,” Grossman said during the meeting. “We are in a crisis.”

Grossman calls the board’s plan “an illegitimate strategy.”

“It must be dropped immediately,” he said. “If L.A. [LACCD] is successful in this matter, the damage it would do, would apply to every aspect of disability life.”

According to Grossman, the district plans to ask the Supreme Court to terminate the ability of any private parties to bring disability discrimination claims under section 504 of the ADA using the disparate theory of liability. According to the DRC, disparate impact discrimination means discrimination that is supposedly unintentional.

Title II of the ADA states that people with disabilities are protected from discrimination in services, programs and activities provided by state and local government.

Elizabeth Preger is an instructional assistant at LACC who lives with a disability. Preger attended the meeting last month. She says the district should have anticipated the need for accessibility because of the proximity of the Braille Institute to the college. She also says everyone knows students have to take general education classes to transfer, and those classes should be accessible by default.

“The fact that the board is considering going to the Supreme Court, it has already caused harm to my community,” Preger said. “They have a chance to stop that harm and try to make amends.”

Lawsuit is Not Just a ‘Disabled

Problem’ Students from San Diego City College, L.A. Valley College and Palomar College attended a Feb. 17 meeting that was also moderated by Grossman. He told them that every student club and organization has a stake in what happens to disabled students. But students are not the only ones focused on the case. The Supreme Court petition has the attention of state officials. The Collegian contacted the California Community Colleges Chancellor’s Office to ask Chancellor Eloy Ortiz Oakley how this lawsuit could affect the 116 community colleges in California.

“The State Chancellor’s Office is closely monitoring the court case and its potential consequences and urges both parties to work toward a negotiated settlement that avoids further litigation,” Vice Chancellor for Communications Paul Feist wrote in an email.

Lieutenant Governor, Judges

Criticize District Actions Judge Consuelo Maria Callahan of the 9th Circuit Court of Appeals used stern words to describe the way the LACCD complies with the ADA during an appeals hearing in February of 2021. She said it is only on paper and based on financial benefits.

“You get money for students with disabilities,” Callahan said. “The district seems to take some sort of position that they don’t really have to do anything until someone comes in and complains and I am pretty sure that the government expects a little more of you than that.”

The government does expect more. California Lt. Gov. Eleni Kounalakis warned the board against their current legal course in a letter dated Feb. 17, 2022. She urged the district to reconsider.

“The proposed petition is contrary to our state’s great traditions of civil rights and inclusion for everyone, including people with disabilities,” she wrote in the letter.

Kounalakis wrote that the district’s actions could “open the door for serious unintended consequences and challenge the very foundation of disability rights in the United States.”

For its part the Board of Trustees says it will withdraw the Supreme Court petition the moment the parties reach an agreement. LACCD Board of Trustees President Gabriel Buelna issued a statement in which the board directed the district and its legal counsel to start negotiations and find a “mutually-beneficial resolution” for the case.

According to the statement, the board supports the ADA and welcomes persons of all abilities, regardless of background or ethnicity, to enroll at any of the nine colleges in the district.

The 9th U.S. Circuit Court of Appeals held that individuals with disabilities could sue over practices that have a discriminatory effect on them even if no discrimination was intended, in an Aug. 24, 2021 hearing. However, judge Kenneth Lee dissented.

The Appeals Court judge explained his decision saying that the district did not discriminate against blind students the way Section 504 defines it.

“[Section 504] It prohibits discrimination ‘solely by reason of her or his disability,’” Lee said. “But in choosing to use PeopleSoft program, the district did not discriminate against blind students ‘solely by reason of’ or ‘because of’ or ‘due to’ their disability status.

LACCD used PeopleSoft program to operate its website. The program was not compatible with screen-reading software used by blind students.

Litigation Brings Change, Ac-

commodations LACC took steps to rectify this. Dr. Mary Gallagher was named president at L.A. City College in June 2018, two years after Payan filed suit. Even though the district handles the litigation, Gallagher has been following the case because it occurred at City College. She says the college is doing everything it can to accommodate each student individually.

“Everyone’s accommodation is different,” Gallagher said. “The challenge is that we don’t know exactly what every accommodation would be on day one. We have to have them meet with us and talk to us about what it is they need to do and then we do what we can do to accommodate. We are highly motivated and we are responsible to provide

ELENI KOUNALAKIS

LIEUTENANT GOVERNOR

Thursday, February 17, 2022

Board of Trustees Los Angeles Community College District 7700 Wilshire Boulevard Los Angeles, CA 90017

Dear Members of the LACCD Board of Trustees:

I am writing to express my concern regarding the Los Angeles Community College District’s (LACCD) plan to petition the U.S. Supreme Court in the Payan v. LACCD litigation, which could open the door for serious unintended consequences and challenge the very foundation of disability rights in the United States.

A potential petition in Payan would force the court to review the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act which prohibits unintentional forms of disability discrimination. Should the Supreme Court agree with LACCD that federal law prohibits only intentional forms of disability discrimination, more than 40 years of hard-fought-for civil rights of disabled people would be undone.

California is the birthplace of the disability rights movement, and our community college system is an essential path to education for Californians with disabilities. Blind students at LACCD are entitled to have meaningful and effective access to classroom materials, textbooks, educational platforms, and websites. Their lawyers are entitled to reasonable attorneys’ fees and costs. If there are technology problems that are difficult or expensive to solve, LACCD can commit to remediate the barriers over a period of time, or can report to the judge that it faces an undue burden or fundamental alteration.

There is no reason for LACCD to take this case to the U.S. Supreme Court and in turn risk irrevocably harming the ADA and Section 504. The proposed petition is contrary to our state’s great traditions of civil rights and inclusion for everyone, including people with disabilities. I urge you to reconsider.

Sincerely,

Ambassador Eleni Kounalakis Lieutenant Governor of California

Cc: Dr. Francisco Rodriguez, Chancellor

STATE CAPITOL, ROOM 1114, SACRAMENTO, CALIFORNIA 95814 ∙ PHONE (916) 445-8994 WWW.LTG.CA.GOV

accommodations for students.”

Gallagher says several improvements followed the litigation.

“The compliance with the requirements on our websites is really good,” she said.

According to President Gallagher, another benefit that came out of the lawsuit is that the campus hired an expert to assist the Office of Special Services (OSS) with accommodations for disabled students.

“He has certainly helped us tremendously in making sure that we have all of the technology available that will help students as well,” she said. “I think if you compare how things were in 2016 to how things are now, we do have more things in place. We do interact with the faculty more to make sure they understand that students must be accommodated.”

Gallagher says she expects to see positive changes in the math department. She also says the LACC Foundation provides tutors for students who go through the OSS on the first day of school.

Student Recalls Barriers for Disabled The National Federation of the Blind, and the National Federation of the Blind of California are also plaintiffs in the lawsuit. Roy Payan and Portia Mason are the two student plaintiffs who have since moved on from L.A. City College. However, in an article published on Oct. 12, 2016 in the Collegian, both Payan and Mason talked about the accessibility barriers they faced on campus.

Payan claimed LACC staff failed to provide class materials and software for his math class. Payan spoke about his time at City College, and why he decided to file the lawsuit against the district during a Jan. 13, 2022 podcast for edsource.org.

Payan needed math classes like algebra and statistics to transfer to a four-year college. He says the problem was the software provided by LACC to all blind students to read textbooks and classwork aloud was not compatible with the math materials.

He claims he enrolled in several math classes, but for one reason or another, he was told to drop. Payan says one math professor told him he could not enroll because he was blind, and he would slow the class down. Another professor told Payan he could not record the class, even though recording is a district-approved accommodation.

In a different class where recording was allowed, the professor did not articulate what he was writing on the board.

One day the student looked for a way to help his professor understand the struggles he faced. Payan asked the professor to sit in his place and face the back wall.

“So he sits down. I get the dry erase marker and I start writing stuff,” Payan said.

Minutes later, he asked the professor if he can tell what Payan wrote on the board.

“He goes, well, no, obviously I can’t. I can’t see it. I said, well, welcome to my world. This is my world every day.”

Payan says when he complained to the chair of the math department, the chair refused to help.

“So I asked him, why not? He said, because there’s not enough of you to warrant change,” Payan said.

“What do you mean there’s not enough? Enough blind people?” Payan asked the chair.

His response was “Yes.”

He says he then went to the dean of the department but received a similar response.

Patricia Barbosa has been Payan’s lawyer from the beginning. In 2016, she told the Collegian that there was no other solution but a lawsuit.

“We’ve done everything we’re supposed to, “ Barbosa said. “That’s why we’re suing.”

Almost six years later, Barbosa says the district is not fighting the plaintiffs’ requests, but students’ rights to make complaints.

“We filed a motion to dismiss the claim for section 504, but LACCD is not interested.” Barbosa said. “Their view is that students should have no rights to make complaints unless they can prove intentional discrimination.”

According to Barbosa, intentional discrimination is not easy to prove.

“It means that you must prove actual malice and a desire to deprive someone of a civil right by on purpose, not the neglect and ignorance shown by the OSS office and instructors at LACCD campuses,” she said.

Barbosa added that as of Feb. 18, 2021, the case is still in the same position and that the LACCD still plans to go to the Supreme Court, causing “great potential damage.”

LACCD Chancellor Francisco Rodriguez often spoke out in favor of accessibility and inclusion within the district, but the Collegian could not reach him for an interview.

Meanwhile, the clock is running down on the deadline to withdraw the petition before the Supreme Court.

“The district remains in contact with the plaintiff’s attorneys and the district continues to seek a settlement that is acceptable to both parties to resolve the matter prior to the U.S. Supreme Court filing date of March 3, 2022,” the LACCD Director of Communications William Boyer wrote in an email to the Collegian.

College administrators in the LACCD are focused on declining enrollment as the pandemic approaches its third year. The chancellor told attendees that enrollment at the colleges dropped 19 percent last year. It is a 50-year low in the history of the district.

The district is working on best enrollment practices and strategies to increase the number of students who enroll. The Los Angeles Unified School District has partnered with the nine campuses to recruit high school seniors.

“We need to create a system where we can capture a lot of the high school seniors that we’re not capturing and give them the opportunity to look at the nine colleges as potential viable options, said James Limbaugh, president of West Los Angeles College.

The number of African American students decreased at the nine campuses over the last two decades. The LACCD analyzed data going back to 1995.

“In 1995, about 18,000 of our students in our district identified as [Black] or African Americans in the fall of 2020,” said Ryan M. Cornner, vice chancellor of educational and institutional effectiveness. “That number had reduced to a little over 10,000.” To increase enrollment, the district is engaging in new strategies and using marketing tools never used before to outreach to communities of color.

A report by the Education Data Initiative states postsecondary attendance among Black or African American students was on the rise until 2010. It has been in decline ever since.

Dr. Armida Ornelas leads the non-credit department at the LACCD. She imagines ways to rebrand the program, so it is attractive to the adult working community and to students.

“This segment of the student population is severely underrepresented and underserved,” Dr. Ornelas told attendees.

“For example, the department offers citizenship and ESL courses. How do we take that a step further so that our colleges can become resources and spaces for advocacy for immigrant populations?”

Support services for faculty and students were a key component of the presentation. Many services for students are already in place with financial aid, counseling and library services. For students who need funds to buy their textbooks, the district provides support for school supplies.

“Our students have been burdened by spending hundreds and hundreds of dollars on textbooks,” Rodriguez said. “We are providing textbooks at an affordable rate and using the online educational resources and technology tools.”

Technology is a key component of the students’ future. It includes efforts to hire and retrain faculty and staff about the needs of students. Other plans include a centralized call center, which will be similar to the LACC model. Enrolled students who lack transportation will find benefits like a transit pass for the Metro. The latest content will be added to the website by the technology team around October of this year. The enrollment team has identified ways to streamline the application process for incoming students.

“We want to build on everything that we’ve been doing as a district,” the chancellor said. “This is a call to action for all of us because it’s going to take our village to bring us students back to re-engage them.”