Roy Payan v. Los Angeles Community College District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY PAYAN ; PORTIA M ASON ;
NATIONAL F EDERATION OF THE
BLIND ; NATIONAL FEDERATION OF
THE BLIND OF CALIFORNIA ,
Plaintiffs-Appellees/Cross-
Appellants,
v.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT ,
Defendant-Appellant/Cross-
Appellee.
Nos. 19-56111
19-56146
D.C. No.
2:17-cv-01697-
SVW-SK
OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 12, 2021
Submission Vacated February 16, 2021
Resubmitted August 17, 2021
Pasadena, California
Filed August 24, 2021
Before: Richard C. Tallman, Consuelo M. Callahan, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge Lee

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SUMMARY*
Disability Discrimination
On an appeal and a cross-appeal in a case in which the
district court entered a permanent injunction and final
judgment in favor of two blind students and two non-profit
organizations that advocate for blind persons (collectively,
“Plaintiffs”), the panel reversed, vacated, and remanded for
further proceedings.
The district court entered the injunction and judgment
against Defendant Los Angeles Community College District
(“LACCD”) following bench and jury trial verdicts finding
that LACCD had violated Section 504 of the Rehabilitation
Act of 1973 and Title II of the Americans with Disabilities
Act by systemically discriminating against blind students at
its Los Angeles City College campus.
The panel first held that the Supreme Court’s holding in
Alexander v. Sandoval, 532 U.S. 275 (2001), does not
disturb this court’s historical recognition that disparate
impact disability claims are enforceable through a private
right of action.
The panel then addressed LACCD’s argument that the
district court erred in applying a disparate impact framework
to all of Plaintiffs’ disability discrimination claims. Under
Title II and Section 504, disability discrimination claims
may be based on one of three theories of liability: disparate
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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treatment, disparate impact, or failure to make a reasonable
accommodation. The panel explained that the important
difference between the latter 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.
LACCD argued that the district court erred in applying a
disparate impact framework to Plaintiffs’ claims because the
accessibility of higher education is fundamentally an issue
of individualized reasonable accommodations rather than
systemic barriers. The panel wrote that this court’s case law
provides no justification for limiting disability
discrimination claims to only the failure to accommodate
theory of liability in the higher education context, and held
that the district court erred in requiring Plaintiffs to present
all of their claims as disparate impact claims.
The panel wrote 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, and are appropriately considered under the
disparate impact framework. The panel cited as examples
(1) that Plaintiffs identified LACCD’s facially neutral
practice of operating its student web portal through a
program that was not compatible with screen reading
software as having a disparate impact on blind students, as
to which Plaintiffs presented evidence of a remedy through
reasonable modifications to the underlying website
programming; and (2) Plaintiffs’ allegations that LACCD
had facially neutral practices of selecting classroom
materials from third parties and only evaluating the

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accessibility of those materials on an ad hoc, complaint-
driven basis rather than in compliance with the campus’
Alternate Media Production Policy.
The panel wrote, however, that certain claims specific to
the individual plaintiffs should have been considered
through the individual failure to accommodate framework.
The panel noted that the individual plaintiffs were each
approved to receive individual accommodations through the
college’s Office of Special Services, and presented evidence
of specific instances in which those accommodations were
denied. The panel held that the district court erred by
rejecting these claims on the ground that the individual
plaintiffs did not adequately put LACCD on notice that they
required specific accommodations, consequently limiting
the scope of evidence it permitted Plaintiffs to present on
these claims. The panel wrote that certain allegations in the
operative complaint thus went underdeveloped despite
apparently presenting cognizable failure to accommodate
claims.
The panel instructed the district court on remand to
reconsider Plaintiffs’ individual claims under either the
disparate impact framework or the individual failure to
accommodate framework, depending on the nature of the
specific claim, and to permit Plaintiffs to introduce evidence
to support these claims under either framework.
The panel resolved remaining claims on appeal in a
concurrently filed memorandum disposition.
Dissenting, Judge Lee disagreed with the majority’s
holding that Title II and Section 504 allow plaintiffs to sue
based on a disparate impact theory. He wrote that the
statutes’ plain language bars intentional discrimination only,

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and the Supreme Court has suggested that the Americans
with Disabilities Act and Section 504 do not permit disparate
impact claims.
COUNSEL
David A. Urban (argued), Pilar Morin, Kate S. Im, and
Meredith G. Karasch Liebert Cassidy Whitmore, Los
Angeles, California, for Defendant-Appellant/Cross-
Appellee.
Jean M. Zachariasiewicz (argued) and Joseph B. Espo,
Brown Goldstein & Levy LLP, Baltimore, Maryland;
Patricia Barbosa, Barbosa Group, Huntington Beach,
California; for Plaintiffs-Appellees/Cross-Appellants.
William C. Hsu, Office of General Counsel, California State
University, Long Beach, California, for Amicus Curiae
Board of Trustees of the California State University.

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OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Los Angeles Community College
District (“LACCD”) appeals the final judgment and
permanent injunction entered against it following bench and
jury trial verdicts finding it had violated Section 504 of the
Rehabilitation Act of 1973 (“Section 504”) and Title II of
the Americans with Disabilities Act (“ADA”) by
systemically discriminating against blind students at its Los
Angeles City College (“LACC”) campus. Because the
district court erroneously limited the scope of Plaintiffs’
disability discrimination claims, we reverse, vacate, and
remand for further proceedings.1
I
We begin with a brief introduction of the parties.
LACCD is a public education entity operating multiple
community college campuses in Southern California,
including LACC. Plaintiffs Roy Payan and Portia Mason are
blind students who took classes at LACC in 2015 and 2016.
Plaintiff National Federation of the Blind, Inc. (“NFB”) is a
non-profit organization that advocates for inclusion of and
removal of barriers to equality for blind persons, and
Plaintiff National Federation of the Blind of California, Inc.
(“NFB-CA”) is the California affiliate of NFB.
1 This opinion addresses only LACCD’s claims that the district court
erroneously permitted Plaintiffs to pursue disparate impact disability
discrimination claims. We resolve the remaining claims on appeal in a
memorandum disposition filed concurrently with this opinion.

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A
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

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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

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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.
B
Plaintiffs filed their initial complaint on March 2, 2017,
alleging that LACCD’s individual and systemic failures to
remedy accessibility barriers violated Section 504 of the
Rehabilitation Act and Title II of the ADA. After several

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rounds of briefing, the district court granted partial summary
judgment for Plaintiffs. Specifically, 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

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in a timely manner. LACCD appealed, and Plaintiffs
conditionally cross-appealed.
II
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court’s interpretation of the relevant
disability discrimination laws de novo. Molski v. Foley Ests.
Vineyard & Winery, LLC, 531 F.3d 1043, 1046 (9th Cir.
2008) (citation omitted).
III
LACCD challenges the district court’s application of a
disparate impact framework to Plaintiffs’ disability
discrimination claims. As an initial matter, though, we must
consider whether Plaintiffs may enforce their disparate
impact claims through a private right of action. We recently
questioned whether our historical recognition of privately
enforced disparate impact disability discrimination claims
remains good law in light of the Supreme Court’s holding in
Alexander v. Sandoval, 532 U.S. 275 (2001). See Schmitt v.
Kaiser Found. Health Plan of Wash., 965 F.3d 945, 953–54
(9th Cir. 2020) (questioning but not deciding whether a
private right of action to enforce disparate impact disability
discrimination claims survives Sandoval). Due to this
uncertainty, we requested that the parties in this case file
supplemental briefing on the question whether a private right
of action exists to enforce disparate impact discrimination
regulations under Title II of the ADA and Section 504 of the
Rehabilitation Act. We now hold that it does.

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A
Our consideration of disparate impact claims in the
disability discrimination context begins with the Supreme
Court’s 1985 decision in Alexander v. Choate, 469 U.S.
287.2 When the state of Tennessee proposed cutting its
Medicaid services from covering 20 days of inpatient
hospital stays per year to only 14 inpatient days, a class of
people with disabilities brought a disparate impact disability
discrimination claim under Section 504, arguing that the
proposal would disproportionately harm people with
disabilities. Id. at 289–91. The Court considered whether
the plaintiffs could state a disparate impact claim and
rejected the argument that federal law prohibits only
intentional discrimination against people with disabilities.
Id. at 295 (“Discrimination against the handicapped was
perceived by Congress to be most often the product, not of
invidious animus, but rather of thoughtlessness and
indifference—of benign neglect.”). And indeed, “much of
the conduct that Congress sought to alter in passing the
Rehabilitation Act would be difficult if not impossible to
reach if the Act were construed to proscribe only conduct
fueled by a discriminatory intent.” Id. at 296–97. However,
the Court reasoned that disparate impact claims in this
context had to strike a balance between “the need to give
effect to the[se] statutory objectives and the desire to keep
§ 504 within manageable bounds.” Id. at 299. The Court
thus assumed without deciding “that § 504 reaches at least
2 Although Choate predates enactment of the ADA, we note that the
ADA and Section 504 are interpreted coextensively because “there is no
significant difference in the analysis of rights and obligations created by
the two Acts.” K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d
1088, 1098 (9th Cir. 2013) (citation omitted).

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some conduct that has an unjustifiable disparate impact on
the handicapped.” Id.
We later considered disparate impact claims in the ADA
Title II context in Crowder v. Kitagawa, 81 F.3d 1480 (9th
Cir. 1996). We relied on both the text of the ADA and prior
interpretation of Section 504, including Choate, to recognize
that disparate impact claims are cognizable as authorized by
Title II’s implementing regulations:
When a [public entity’s] policies, practices or
procedures discriminate against the disabled
in violation of the ADA, Department of
Justice regulations require reasonable
modifications in such policies, practices or
procedures “when the modifications are
necessary to avoid discrimination on the
basis of disability, unless the public entity
can demonstrate that making the
modifications would fundamentally alter the
nature of the service, program, or activity.”
Id. at 1485 (quoting 28 C.F.R. § 35.130(b)(7)). Following
both Choate and Crowder, we have continuously recognized
disparate impact disability discrimination claims. Rodde v.
Bonta, 357 F.3d 988 (9th Cir. 2004); K.M. ex rel. Bright v.
Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013); Doe
v. CVS Pharm., Inc., 982 F.3d 1204 (9th Cir. 2020), cert.
granted, No. 20-1374, ___ S. Ct. ___, 2021 WL 2742790,
*1 (July 2, 2021).
B
As noted by the Schmitt court, though, it remains an open
question whether disparate impact disability discrimination

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claims remain enforceable through a private right of action
in the wake of Sandoval. Schmitt, 965 F.3d at 953–54.
In 2001, the Supreme Court held in Sandoval 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. 532 U.S. at 293. LACCD and the
dissent argue that Sandoval applies with equal force to the
ADA and Section 504 because these statutes share statutory
language and derive remedies from each other: Section 504
derives its remedies from Title VI of the Civil Rights Act,
29 U.S.C. § 794a(a)(2), and Title II of the ADA, in turn,
derives its remedies from Section 504, 42 U.S.C. § 12133.
All three statutes also share operative language declaring
that the relevant category of protected persons shall not “be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination” by the relevant covered
entity. 42 U.S.C. § 2000d (Title VI of the Civil Rights Act);
29 U.S.C. § 794 (Section 504); 42 U.S.C. § 12132 (Title II
of the ADA). LACCD and the dissent argue that if this
statutory language was insufficient to create a private right
of action to enforce disparate impact claims under Title VI
of the Civil Rights Act, as Sandoval held, then it is similarly
insufficient to create a private right of action to enforce
disparate impact claims under either Section 504 or Title II
of the ADA.3
However, a closer read of Sandoval reveals that Title
VI’s limitation to only intentional discrimination is not based
3 The dissent argues that the dictionary definition of the phrase “by
reason of,” meaning “because of” or “due to,” limits the statute to
intentional discrimination. But the dissent’s reasoning jumps to this
conclusion. Disparate impact discrimination, or accidental
discrimination, is still discrimination that occurs “because of” or “due
to” an individual’s protected status.

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on the statutory text of the Civil Rights Act. Before
considering the availability of a private right of action to
enforce disparate impact claims under Title VI of the Civil
Rights Act, Sandoval lays out “three aspects of Title VI
[which] must be taken as given.” 532 U.S. at 279. “First,
private individuals may sue to enforce § 601 of Title VI and
obtain both injunctive relief and damages.” Id. “Second, it
is similarly beyond dispute . . . that § 601 prohibits only
intentional discrimination.” Id. at 280. Third, the Court
assumed without deciding that the Department of Justice’s
disparate impact discrimination regulations promulgated
pursuant to § 602 of Title VI were permissible under § 601.
Id. at 281–82. With these understandings in mind, the Court
proceeded to reason that because the Title VI § 602 disparate
impact regulations could only be privately enforced to the
extent authorized by § 601, and because § 601 was limited
to claims for intentional discrimination, the disparate impact
regulations exceeded the scope of the congressionally
authorized private right of action. Id. at 288–93.
Sandoval unequivocally states that Title VI prohibits
only intentional discrimination. But this limitation, the
second “given aspect” of Title VI, is not created by the
statutory language of Title VI. Instead, Sandoval supports
this proposition by relying on two prior Supreme Court cases
which considered the scope of Title VI. Id. at 280–81 (citing
Guardians Ass’n v. Civil Serv. Comm’n of New York City,
463 U.S. 582 (1983); Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978)). In turn, these two cases both rely on
Washington v. Davis, 426 U.S. 229 (1976), as the authority
supporting the proposition. Guardians, 463 U.S. at 589–90;
Bakke, 438 U.S. at 289 n.27.
Davis considered a disparate impact racial
discrimination claim brought by a class of unsuccessful

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applicants to the District of Columbia metropolitan police
who alleged that the department’s qualifying exam
disproportionately disqualified black applicants. 426 U.S.
at 232–33. Although this disparate impact claim was
asserted under the Fifth Amendment’s Due Process Clause,
the Court considered the claim within the scope of equal
protection jurisprudence. Id. at 239–48. And that
jurisprudence has “not embraced the proposition that a law
or other official act, without regard to whether it reflects a
racially discriminatory purpose, is unconstitutional [s]olely
because it has a racially disproportionate impact.” Id. at 239.
Following this equal protection analysis, the Court later held
in Bakke that “Title VI must be held to proscribe only those
racial classifications that would violate the Equal Protection
Clause or the Fifth Amendment.” 438 U.S. at 287. And
Justice White’s opinion in Guardians connects the dots
between these cases by recognizing “that in Bakke five
Justices, including myself, declared that Title VI on its own
bottom reaches no further than the Constitution, which
suggests that, in light of Washington v. Davis, Title VI does
not of its own force proscribe unintentional racial
discrimination.” 463 U.S. at 589–90 (internal citation and
footnote omitted).
It is this line of reasoning that leads to Sandoval’s
conclusion that Title VI of the Civil Rights Act could reach
only intentional discrimination, not disparate impact
discrimination. 532 U.S. at 280–81. Because this limitation
is not based on the statutory text of the Civil Rights Act, the
similar statutory language in Section 504 and the ADA does
not create an analogous limitation on disparate impact
disability discrimination claims. Sandoval, therefore, does
not upset the historical understanding that Section 504 and
the ADA were specifically intended to address both
intentional discrimination and discrimination caused by

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“thoughtless indifference” or “benign neglect,” such as
physical barriers to access public facilities. See Choate,
469 U.S. at 295; Crowder, 81 F.3d at 1484; Cohen v. City of
Culver City, 754 F.3d 690, 694 (9th Cir. 2014). And, as we
have previously recognized, “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.”
McGary v. City of Portland, 386 F.3d 1259, 1268 (9th Cir.
2004) (citation omitted).
If we follow Sandoval through the equal protection
jurisprudence governing disability-based classifications, the
outcome remains the same. Unlike race-based distinctions,
which are “inherently suspect and thus call for the most
exacting judicial examination,” Bakke, 438 U.S. at 291, legal
classifications based on disability are subject only to rational
basis review. City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 442–43 (1985); Hibbs v. Dep’t of Human Res.,
273 F.3d 844, 855 (9th Cir. 2001). In fact, the Supreme
Court in Cleburne specifically declined to define disability
as a quasi-suspect class because the state has a legitimate
interest in affirmatively legislating to provide for people
with disabilities, reasoning that legal “special treatment” for
people with disabilities “is not only legitimate but also
desirable” to remedy past discrimination. 473 U.S. at 444.
Unlike Title VI’s prohibition of race-based discrimination,
the equal protection jurisprudence surrounding disability-
based classifications permits civil rights statutes to prohibit
disparate impact discrimination.
We therefore reject LACCD’s invitation to limit the
enforceability of disparate impact disability discrimination
claims based on inapplicable reasoning found in cases

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interpreting Title VI. Instead, we hold that Sandoval does
not disturb Choate and Crowder, and disparate impact
disability discrimination claims remain enforceable through
a private right of action. Plaintiffs here may therefore assert
their disparate impact disability discrimination claims under
Title II of the ADA and Section 504 and their implementing
regulations.
IV
Having concluded that Plaintiffs may bring disparate
impact disability discrimination claims, we move to
LACCD’s argument that the district court erred in applying
a disparate impact framework to all of Plaintiffs’ disability
discrimination claims. We hold that it did.
A
Title II of the ADA prohibits public entities from
discriminating on the basis of disability. 42 U.S.C. § 12132.
Section 504 similarly prohibits disability discrimination by
recipients of federal funds. 29 U.S.C. § 794. The two laws
are interpreted coextensively because “there is no significant
difference in the analysis of rights and obligations created by
the two Acts.” K.M., 725 F.3d at 1098 (citation omitted).
To state a prima facie case for a violation of Title II, “a
plaintiff must 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, programs,
or activities, or was otherwise discriminated against by the
public entity; and (3) such exclusion, denial of benefits, or
discrimination was by reason of his disability.” Duvall v.
County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as
amended on denial of reh’g (Oct. 11, 2001) (citation
omitted). The elements of a prima facie Section 504 claim
are similar, with the additional requirement that the plaintiff

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prove that “the program receives federal financial
assistance.” Id. (citation omitted). The only element in
dispute in this case is whether LACCD’s actions, practices,
and policies discriminated against Plaintiffs.
Title II’s implementing regulations prohibit disability
discrimination in a number of forms. See 28 C.F.R.
§ 35.130. These regulations “should be given controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.” K.M., 725 F.3d at 1096 (citation
omitted). Prohibited forms of disability discrimination
include denying individuals with disabilities the opportunity
to participate in a program or service, providing an unequal
opportunity to participate in the program or service, or
providing the entity’s program or service in a way that is not
effective in affording the individual with a disability an
equal opportunity to obtain the same result as provided to
others. 28 C.F.R. § 35.130(b)(1). The regulations further
require 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 making the
modifications would fundamentally alter the nature of the
service, program, or activity.”4 Id. § 35.130(b)(7)(i).
A disability discrimination claim may be based on “one
of three theories of liability: disparate treatment, disparate
impact, or failure to make a reasonable accommodation.”
Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016) (citation
omitted); see also McGary, 386 F.3d at 1265–66. To assert
4 “Although Title II of the ADA uses the term ‘reasonable
modification’ rather than ‘reasonable accommodation,’ these terms
create identical standards” and may be used interchangeably. McGary,
386 F.3d at 1266 n.3 (citation omitted).

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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. K.M., 725 F.3d at 1102 (citing Crowder,
81 F.3d at 1484). “A plaintiff need not allege either disparate
treatment or disparate impact in order to state a reasonable
accommodation claim.” McGary, 386 F.3d at 1266
(citations omitted).
Although disparate impact and failure to accommodate
are distinct theories of liability, they share some overlap. 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. Crowder, 81 F.3d at 1485 (citing 28 C.F.R.
§ 35.130(b)(7)). Thus, 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 its facially neutral
policies which disparately impact people with disabilities.
Id. at 1484–85.
The important difference between these 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. Compare McGary,
386 F.3d at 1265–66 (considering reasonable
accommodation claim against city over its failure to grant
individual disabled plaintiff additional time to clean his yard
before enforcing nuisance abatement code), and Updike v.
Multnomah County, 870 F.3d 939, 949–53 (9th Cir. 2017)
(considering reasonable accommodation claim against

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 21
county over its denial of an ASL interpreter and auxiliary
aids to individual deaf pretrial detainee), with Crowder,
81 F.3d at 1485–86 (considering reasonable modifications to
Hawaii law requiring 120-day quarantine of all dogs entering
the state, which was found to have a disparate impact on
blind users of guide dogs), and Rodde, 357 F.3d at 995–98
(considering disparate impact claim against county over
proposal to close county hospital providing rehabilitation
and medical services to people with chronic disabilities).
B
LACCD argues that the district court erred in applying a
disparate impact framework to Plaintiffs’ claims because the
accessibility of higher education is fundamentally an issue
of individualized reasonable accommodations rather than
systemic barriers. While LACCD overstates the law, it
correctly argues that the district court erroneously
categorized some of Plaintiffs’ claims. Our case law
provides no justification for limiting disability
discrimination claims to only the failure to accommodate
theory of liability in the higher education context. But here,
the district court erred in requiring Plaintiffs to present all of
their claims as disparate impact claims.
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.
To consider an example in the Title II framework, Plaintiffs
identified LACCD’s facially neutral practice of operating its
student web portal through the PeopleSoft program as
having a disparate impact on blind students because the
program was not compatible with screen reading software.
This accessibility barrier denied blind students an equal
opportunity to manage their education independently by

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22 PAYAN V . LOS ANGELES CMTY. COLLEGE DIST .
reviewing their grades or registering for classes through the
student portal. 28 C.F.R. § 35.130(b)(ii). And Plaintiffs
presented evidence that this accessibility barrier could be
remedied through reasonable modifications to the
underlying website programming. This claim was
appropriately considered under the disparate impact
framework.
The same goes for Plaintiffs’ allegations that LACCD
had facially neutral practices of selecting classroom
materials 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’
AMPP. 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, LACCD correctly argues that certain claims
specific to the individual plaintiffs in this case should have
been considered through the individual failure to
accommodate framework. Payan and Mason were each
approved to receive individual accommodations through
OSS, including receiving materials in accessible e-text and
certain classroom accommodations. They also presented
evidence of specific instances in which those
accommodations were denied, including Payan’s experience
of being unable to timely receive his math textbook in e-text
format and Mason’s experience with only being provided a
paper copy of her psychology classroom handouts. Because
these claims focused on individual accommodations, they

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 23
should have been evaluated under the failure to
accommodate framework.
Despite acknowledging the individual accommodations
to which OSS determined Payan and Mason were entitled,
the district court rejected these claims as failure to
accommodate claims because the district court found that
Payan and Mason did not adequately put LACCD on notice
that they required specific accommodations. This was error.
And because the district court erroneously rejected the
failure to accommodate framework early in the litigation, it
consequently limited the scope of evidence it permitted
Plaintiffs to present on these claims. Thus, certain
allegations in the operative complaint, such as LACCD’s
alleged failures to provide test-taking accommodations or an
in-class notetaker, went underdeveloped through the course
of the case, despite apparently presenting cognizable failure
to accommodate claims. Because these allegations concern
discrete instances in which Payan and Mason were denied
specific individualized accommodations, the district court
should have evaluated these claims under the failure to
accommodate framework.
On remand, the district court is instructed to reconsider
Plaintiffs’ individual claims under either the disparate
impact framework or the individual failure to accommodate
framework, depending on the nature of the specific claim,
and to permit Plaintiffs to introduce evidence to support
these claims under either framework.
V
Having concluded that the district court erroneously
limited Plaintiffs’ claims to the disparate impact framework
only, we REVERSE, VACATE, and REMAND for further
proceedings consistent with this opinion and corresponding

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24 PAYAN V . LOS ANGELES CMTY. COLLEGE DIST .
memorandum disposition. Each party is to bear its own
costs.
LEE, Circuit Judge, dissenting:
This case presents a perplexing legal issue fraught with
public policy implications: Do Title II of the American with
Disabilities Act (ADA) and Section 504 of the Rehabilitation
Act of 1973 allow plaintiffs to sue based on a disparate
impact theory of discrimination?
On the one hand, as the majority points out, disabled
individuals often face obstacles because of “benign neglect,”
not intentional discrimination. Ruling out disparate impact
claims could limit the remedies sought by plaintiffs. On the
other hand, many facially neutral laws disproportionately
affect the disabled. And adopting a disparate impact theory
here could “lead to a wholly unwieldy administrative and
adjudicative burden,” as the Supreme Court cautioned.
Alexander v. Choate, 469 U.S. 287, 298 (1985).
Faced with this difficult question, the majority today
rules that Title II and Section 504 allow plaintiffs to sue
based on a disparate impact theory. 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 Supreme Court
has also suggested that the ADA and Section 504 — much
like Title VI of the Civil Rights Act of 1964 — do not permit
disparate impact claims. See Alexander v. Sandoval,
532 U.S. 275, 280 (2001).

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 25
I. The plain language of Title II and Section 504 bars
only intentional discrimination.
We need to start, as we must, with the statutory text of
Title II and Section 504. The plain language makes clear
that the statutes only forbid intentional discrimination.
Nothing in the text remotely suggests that it encompasses 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 that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132 (emphasis added). The phrase “by reason of”
means “because of” or “due to.” Merriam-Webster
Dictionary, available at https://www.merriam-
webster.com/dictionary/by%20 reason%20of. Put another
way, Title II bars only discrimination “because of” or “due
to” disability status. It thus requires intentional
discrimination based on disability and does not contemplate
disparate impact.
Section 504 of the Rehabilitation Act makes this even
clearer. It prohibits discrimination “solely by reason of her
or his disability.” 29 U.S.C. § 794a (emphasis added). That
cannot include disparate impact. So, for example, the Los
Angeles Community College District’s use of the PeopleSoft
program to operate its web portal may have a
disproportionate effect on blind students because PeopleSoft
is not compatible with screen-reading software. But in
choosing to use the PeopleSoft program, the District did not
discriminate against blind students “solely by reason of” —
or “because of” or “due to” — their disability status.

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26 PAYAN V . LOS ANGELES CMTY. COLLEGE DIST .
The Sixth Circuit similarly held that Section 504 does
not contemplate a disparate impact theory. Doe v. BlueCross
BlueShield of Tennessee, Inc., 926 F.3d 235, 240–242 (6th
Cir. 2019). After noting that the statutory language requires
intentional discrimination, it contrasted Section 504 with
other statutes that permit disparate impact: “[W]hen the
Court has found that a statute prohibits disparate-impact
discrimination, it has relied on language like “otherwise
adversely affect” or “otherwise make unavailable,” which
refers to the consequences of an action other than an actor’s
intent. That language is missing from § 504.” Id. at 242.1
For better or worse, Congress apparently barred only
intentional discrimination against the disabled. It did not
permit a disparate impact theory, and we should not infer a
private right of action that Congress did not authorize. Cf.
Lampf, Plea, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 365, 111 S.C. 2773, 115 L.Ed.2 321 (1991)
(Scalia, J., concurring in part and concurring in judgment)
(“Raising up statutory causes of action where a statute has
not created them may be a proper function for common-law
courts, but not for federal tribunals.”).
II. The Supreme Court in Sandoval suggested that a
disparate impact theory is unavailable under Section
504 and Title II.
But as the majority notes, we are not writing on a clean
slate. Despite the plain language of Title II and Section 504,
1 But see Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys.
Project, Inc., 135 S. Ct. 2507, 2526–27 (2015) (Thomas, J., concurring)
(stating that the foundation for the “disparate-impact regime . . . is made
of sand” because the phrase “otherwise adversely affect” does “not
eliminate [the statute’s] mandate that the prohibited decision be made
‘because of’ a protected characteristic.”).

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 27
courts have hesitated to give meaning to the unambiguous
text. In Alexander v. Choate, the Supreme Court “assume[d]
without deciding that § 504 [of the Rehabilitation Act]
reaches at least some conduct that has an unjustifiable
disparate impact upon the handicapped.” 469 U.S. 287, 299
(1985). Our court relied on that language to allow disparate
impact claims under § 504. See Crowder v. Kitagawa,
81 F.3d 1480 (9th Cir. 1996) (applying disparate impact
analysis for Section 504 claims).
But the Supreme Court gets the last word on federal law,
not us. And in Alexander v. Sandoval, the Supreme Court
rejected a private cause of action for disparate impact under
Title VI of the Civil Rights Act of 1964. 532 U.S. 275, 280
(2001). The Court’s Sandoval decision left open whether a
disparate impact claim survives under statutes analogous to
Title VI or those directly depending on it. As the majority
notes, last year we identified this persistent open question of
whether Sandoval effectively overruled Crowder v.
Kitagawa. Maj. Op. 13–14 (citing Schmitt v. Kaiser Found.
Health Plan of Wash., 965 F.3d 945, 953–54 (9th Cir.
2020)). We, however, did not address it because it was
unnecessary to resolve the case.2
Similarly, most circuits have danced around this issue,3
or, confusingly, have not addressed the effect of Sandoval in
2 Last December, we failed to reach this question a second time in
Doe v. CVS Pharmacy, Inc., 982 F.3d 1204 (9th Cir. 2020). We relied
heavily on Crowder in holding that disparate impact applies but did not
acknowledge Sandoval or the question flagged in Schmidt. The Supreme
Court has since granted writ of certiorari in that case.
3 See, e.g., CG v. Pennsylvania Dept. of Educ., 734 F.3d 229, 236
n.13 (3d. Cir. 2013) (assuming the existence of a disparate impact cause

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28 PAYAN V . LOS ANGELES CMTY. COLLEGE DIST .
relying on pre-Sandoval case law.4 Only one circuit appears
to have affirmatively held that the Rehabilitation Act still
allows a disparate impact claim, despite Sandoval, because
the Rehabilitation Act has a “different aim” and was enacted
in a “different context” from the Civil Rights Act of 1964.
Robinson v. Kansas, 295 F.3d 1183, 1186–87 (10th Cir.
2002), abrogated on other grounds as recognized by
Arbogast v. Kansas, Dept. of Lab., 789 F.3d 1174 (10th Cir.
2015). Perhaps because Sandoval had been issued after the
parties had briefed the case and the defendants there did not
argue that Sandoval barred disparate impact claims under the
Rehabilitation Act, the Tenth Circuit did not provide a
lengthy analysis. See id.
On the other side of the ledger, the Sixth Circuit provided
a detailed and persuasive opinion holding that Sandoval
precludes disparate impact claims under Section 504. See
Doe v. BlueCross BlueShield of Tennessee, Inc., 926 at 240–
242 (recognizing that “Title VI . . . doesn’t prohibit
disparate-impact discrimination . . . It’s unlikely that Title
IX, which was patterned on Title VI, does so either . . . [And
thus] § 504 [of the Rehabilitation Act] does not prohibit
disparate-impact discrimination”) (internal citations
omitted). The Fifth Circuit in unpublished opinions has also
reached a similar conclusion. See, e.g., Kamps v. Baylor
Univ., 592 Fed.App’x. 282, 285 (5th Cir. 2014) (“[t]he
[analogous Age Discrimination Act of 1975] does not
of action in denying plaintiffs’ meaningful access challenge to
Pennsylvania’s school funding formula, but did not decide the issue).
4 See, e.g., Valencia v. City of Springfield, 883 F.3d 959 (7th Cir.
2018) (stating that disparate impact claims are permissible under the
Rehabilitation Act without mentioning the impact of Sandoval).

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 29
prohibit policies that have a disparate impact”). I believe
they got it right.
To understand how Sandoval applies, we need to trace
the cascading relationship among the ADA, Rehabilitation
Act, and Title VI of the Civil Rights Act. As we noted in
Crowder, the ADA contains an “explicit mandate . . . that
federal regulations adopted to enforce the statute be
consistent with the Rehabilitation Act.” Crowder, 81 F.3d
at 1484. Indeed, the statute states that “[t]he remedies,
procedures, and rights set forth in [section 794a of the
Rehabilitation Act] shall be the remedies, procedures, and
rights this subchapter provides to any person alleging
discrimination on the basis of disability in violation of . . .
this title.” 42 U.S. C. § 12133. In turn, § 794 of the
Rehabilitation Act provides that “[t]he remedies,
procedures, and rights set forth in title VI of the Civil Rights
Act of 1964 (42 U.S.C. 200d et seq.) . . . shall be available
to any person aggrieved by any act or failure to act by any
recipient of Federal assistance or Federal provider of such
assistance under section 794 of this title.” 29 U.S.C.
§ 794(a)(2).
Relying on the Court’s Alexander decision, we
announced in Crowder that “[i]t is . . . clear that Congress
intended the ADA to cover at least some so-called disparate
impact cases of discrimination.” Crowder, 81 F.3d at 1483.
But the Court in Sandoval held that it is “beyond dispute . . .
that § 601 [of title VI] prohibits only intentional
discrimination,” that the “authorizing portion of § 602
reveals no congressional intent to create a private right of
action [to enforce disparate-impact regulations],” and,
finally, “that no such [private] right of action [to enforce
disparate-impact regulations] exists.” Sandoval, 532 U.S.
at 280–293.

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30 PAYAN V . LOS ANGELES CMTY. COLLEGE DIST .
In other words, there is a domino effect: If Title VI does
not allow a disparate impact claim, then the Rehabilitation
Act cannot (because it derives its remedies and rights from
Title VI), and the ADA cannot either (because it, in turn,
relies on the Rehabilitation Act for its remedies and rights).
This 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, interpreting its own precedent, held that
it is “beyond dispute . . . that [Title VI] prohibits only
intentional discrimination.” Sandoval, 532 U.S. at 281.
The majority argues that the Supreme Court’s decision
in Sandoval “is not created by the statutory language of Title
VI,” and analyzes several older Supreme Court cases cited
in Sandoval. While I do not necessarily disagree with the
analyses of those cited cases, I think ultimately our answer
lies in Sandoval’s clear guidance on how to determine
whether a statute confers a private right of action: “[T]he
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.” Id. at 288 n.7. We start
with the “rights creating” language and structure, and, if that
does not clearly imply the cause of action, then we end our
inquiry. This is so even when regulations provide rights-
creating language. Id. at 291 (“Language in a regulation may
invoke a private right of action that Congress through
statutory text created, but it may not create a right that
Congress has not”). And by its text, Section 504 only
prohibits discrimination against an individual “solely by
reason of her or his disability.” 29 U.S.C. § 794a (emphasis
added). Though “the ADA must be construed broadly,” we
cannot construe it more broadly than the text allows.
McGary v. City of Portland, 386 F.3d 1259, 1268 (9th Cir.
2004) (citation omitted). And the ADA only prohibits

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PAYAN V . LOS ANGELES CMTY. COLLEGE DIST . 31
discrimination “by reason of such disability.” 42 U.S.C.
§ 12132 (emphasis added).
The Supreme Court told us that the text embodies
Congress’s intent, and “[h]aving sworn off the habit of
venturing beyond Congress’s intent, we [should] not accept
[Plaintiffs’] invitation to have one last drink.” Sandoval,
532 U.S. at 287.
I respectfully dissent.

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