Roy Payan, et al v. Los Angeles Community College District, et al

Central District of California, cacd-2:2017-cv-01697

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Stephen V. Wilson. (See document for details) (mrgo)

Interested in this case?

Current View

Full Text

1 Page ID #:6690 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROY PAYAN, PORTIA MASON, THE Case No.: 2:17-cv-01697-SVW-SK NATIONAL FEDERATION OF THE 12 BLIND, INC., and THE NATIONAL FINDINGS OF FACT AND 13 FEDERATION OF THE BLIND OF CONCLUSIONS OF LAW CALIFORNIA, INC., 14 15 Plaintiffs, vs. 16 17 LOS ANGELES COMMUNITY COLLEGE DISTRICT, 18 19 Defendant. 20 21 I. Introduction 22 On May 14, 2019, the Court held a bench trial in this action as to the issue of whether 23 Defendant Los Angeles Community College District ("LACCD") was liable under Title II of the 24 Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. (the "ADA" or "Title II"), and 25 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"). In advance of trial, 26 Plaintiffs Roy Payan and Portia Mason submitted declarations containing their witnesses' direct 27 testimony, as required by the Court's Standing Order for non-jury trials, while LACCD 28 submitted deficient declarations setting forth only the topics about which its witnesses intended 1 1 Page ID #:6691 1 to testify at trial. The parties presented their witnesses at trial, at which time the Court engaged in 2 its own questioning of each witnesses and allowed subsequent cross-examination and re-direct 3 questioning by the parties. Having carefully reviewed and considered the evidence presented at 4 trial, the Court issues the following findings of fact and conclusions of law pursuant to Federal 5 Rule of Civil Procedure 52(a). 6 II. Findings of Fact 7 For all findings of fact set forth below, in making any credibility determinations 8 regarding witness testimony, the Court has considered, among other things, the manner in which 9 the witnesses testified, their interest in the outcome of the case, and the reasonableness of their 10 testimony in light of all of the evidence. The Court has also considered the relevant factors in 11 Section 1.14 of the Manual of Model Civil Jury Instructions for the District Courts of the Ninth 12 Circuit (2017 Edition), located at http://www3.ce9.uscourts.gov/jury- 13 instructions/sites/default/files/WPD/Civil_Instructions_2018_9_0.pdf. 14 A. Etudes 15 In the Spring 2016 semester at Los Angeles City College ("LACC"), Plaintiff Payan 16 enrolled in Introduction to Psychology I taught by Professor Yaneli Sedghi. Professor Sedghi 17 utilized the Etudes program in her course as a means to provide students with assignments. As 18 part of the participation in the course, Professor Sedghi also divided students into study groups of 19 between 4-5 students and required each group to complete a project during the semester. For the 20 project, Professor Sedghi instructed each group to describe a concept in the psychology textbook 21 and create a video of the group acting out or recreating the psychology concept. Professor Sedghi 22 would view all videos submitted by the study groups herself, without showing the videos to the 23 class as a whole. 24 The group project necessitated that the group members maintain communication with 25 each other outside of class sessions. To facilitate these discussions, Professor Sedghi required 26 each group to communicate with each other on discussion boards embedded in the Etudes 27 program. In these discussion boards, a group member would be able to post a question or 28 comment about his or her group project or the subject of the project. Other group members 2 1 Page ID #:6692 1 would be able to comment in response to the post, and each group member's post or comment 2 would be visible by the other group members. However, students in other study groups would 3 not be able to see the posts or comments made by students outside of their study groups. In other 4 words, the discussion boards were limited to each separate study group, and the discussion 5 boards did not allow for class-wide discussions about the course materials. Professor Sedghi was 6 able to view the discussions occurring in each group's discussion board and, during class 7 sessions, Professor Sedghi provided feedback to each group to guide the group to the correct 8 topic of discussion. However, Professor Sedghi did not comprehensively explain to the class the 9 substantive discussions that had occurred on each group's Etudes discussion board. 10 One limited exception to the use of the Etudes discussion boards only for study groups is 11 the first assignment of the course that Professor Sedghi assigned during the first week of class. In 12 this first assignment, Professor Sedghi required each student in the class to post on a class-wide 13 discussion board on Etudes, the subject of which Professor Sedghi described as the students 14 "getting to know each other" and "explaining behavior." The purpose of the assignment was to 15 allow all students to read each other's responses to learn about each other at the beginning of the 16 semester-long class. Then, in the class sessions held during the first week of the course, 17 Professor Sedghi engaged in a similar class exercise designed to enable the students to become 18 familiar with each other. 19 When Professor Sedghi assigned this first assignment to post on a class-wide discussion 20 board on Etudes, Payan spoke with Professor Sedghi and informed her that Payan was unable to 21 use the Etudes program for this purpose. Professor Sedghi accommodated Payan's difficulty 22 accessing the class-wide discussion board by allowing Payan to email his response to the prompt 23 directly to Professor Sedghi. By emailing his response to Professor Sedghi directly, Payan was 24 unable to read the other students' responses and was unable to have the other students read his 25 response. 26 As the semester progressed, Payan raised his inability to access the Etudes discussion 27 board for his study group with Professor Sedghi. Professor Sedghi agreed to go to the Office of 28 Student Services ("OSS") with Payan to seek accommodations for Payan's accessibility 3 1 Page ID #:6693 1 problems. At OSS, Payan and Professor Sedghi met with Ryan Kushner. During the meeting, 2 Payan demonstrated his difficulties with Etudes, and Kushner concluded that the Etudes program 3 was too difficult for Payan to use effectively. Professor Sedghi testified that she and Kushner 4 agreed to accommodate Payan's lack of access to Etudes by establishing a group email thread 5 between Payan and his study group members, with Professor Sedghi copied on all emails, to 6 allow Payan to communicate with his group members outside of the Etudes program. Kushner 7 testified that, although he did not recall specifically discussing any discussion boards on Etudes 8 with Professor Sedghi, he did recall a "private integrated mail system" like email embedded in 9 the Etudes program, which was used for assignments generally. Kushner confirmed that he and 10 Professor Sedghi provided accommodations for Payan regarding this Etudes mail system by 11 allowing Payan to utilize his private email address for the necessary communications. 12 The Court finds the testimony of Professor Sedghi regarding Payan's accommodation to 13 be credible and supported by the testimony of both Payan and Kushner. Any statements by Payan 14 about his inability to communicate with his group members are contradicted by Professor 15 Sedghi's testimony and Kushner's recollection of the accommodations OSS provided for Payan 16 in the psychology course. 17 B. In-Class Materials 18 1. Plaintiff Payan 19 Payan testified that, in Professor Sedghi's psychology course, students were often given 20 hard-copy handouts at the beginning of class sessions, which were to be used to facilitate class 21 discussions. Professor Sedghi testified that she did not recall giving handouts to students before 22 class as part of the psychology course in which Payan enrolled. The Court finds Payan's 23 testimony to be more credible in this regard, particularly because Professor Sedghi testified that 24 she may have handed out her class syllabus to students at the beginning of the course in paper 25 format. See Pls.' Ex. 15. 26 Payan also testified that he had difficulty accessing the PowerPoint presentations taught 27 by Professor Sedghi in the psychology course. Payan stated that Professor Sedghi attempted to 28 send Payan notes about the PowerPoint slides used in the class session later the same day or the 4 1 Page ID #:6694 1 following morning. However, there is little evidence as to whether the PowerPoint notes 2 Professor Sedghi sent to Payan were in a format accessible to Payan. Professor Sedghi confirmed 3 that she used PowerPoint slides for all of her lectures, but averred that she always described all 4 images on screen through basic and descriptive words and consistently verbalized all text 5 appearing on each slide so that Payan or other sight-impaired students would be able to 6 comprehend the material contained on the slide. Professor Sedghi also stated that she sometimes 7 asked sighted students to assist with descriptions of images or other material contained on 8 PowerPoint slides for the benefit of blind students, and Professor Sedghi worked with Payan 9 specifically to explain the content of her PowerPoint presentations during class where possible. 10 2. Plaintiff Mason 11 In the Spring 2016 semester at LACC, Plaintiff Portia Mason enrolled in an Introduction 12 to Psychology course taught by Dr. April Pavlik and an Abnormal Psychology course taught by 13 Blythe Daniel. The Court will outline the facts adduced at trial for each course separately. 14 i. Dr. Pavlik 15 Mason testified that, in Dr. Pavlik's course, Dr. Pavlik provided hard-copy handouts to 16 students during class on approximately 5 occasions. Dr. Pavlik created these handouts herself 17 and used the handouts as part of the curriculum and to facilitate in-class discussions, or 18 alternatively the handouts were provided as an in-class assignment or quiz. However, Mason 19 only recalls the subject of one such handout, which was a personality test. See Pls.' Ex. 43. 20 Mason could not complete the personality test herself and had to ask for assistance from a 21 sighted student, who read each question aloud to Mason and recorded Mason's answers. Mason 22 stated that Dr. Pavlik did not provide any accommodations for Mason's inability to access any 23 in-class handouts, and Mason never received those handouts after class in an accessible format. 24 Dr. Pavlik testified at deposition that she did not recall whether she gave paper handouts to 25 students in Mason's psychology course in Spring 2016. The Court finds Mason's testimony more 26 credible in this regard and finds that Dr. Pavlik did provide students with at least one paper 27 handout in class as part of the Introduction to Psychology course. 28 5 1 Page ID #:6695 1 Mason recalled one instance where Dr. Pavlik issued a quiz to students that required 2 students to draw a neuron. Mason took this quiz to OSS's testing center for assistance, which 3 was an accommodation provided to her via her accommodations form. While attempting to 4 complete the quiz at OSS's testing center, Mason informed the exam proctor that she was unable 5 to draw a neuron as required for the quiz. Mason stated that the proctor told Mason to leave the 6 question blank and that the proctor would write a note to Dr. Pavlik explaining Mason's inability 7 to complete that portion of the quiz. After completing the quiz, Mason received her graded quiz 8 back from Dr. Pavlik, which contained handwritten grades and comments from Dr. Pavlik 9 providing feedback on Mason's performance. See Pls.' Ex. 42. Because Dr. Pavlik's comments 10 were handwritten and not accessible via JAWS, Mason was unable to read any of Dr. Pavlik's 11 feedback on her quiz. 12 Mason testified that Dr. Pavlik utilized PowerPoints throughout the semester as part of 13 her in-class lectures and for in-class discussions. Mason averred that Dr. Pavlik did not describe 14 what appeared on each PowerPoint slide in a manner that Mason could understand, because 15 Mason could not know whether there were any pictures or graphs appearing on the slides. 16 Ultimately, Mason was unable to follow along with the PowerPoint presentations during class, 17 although Mason admitted that she fell asleep in Dr. Pavlik's class on at least 4 occasions during 18 the semester. 19 After each lecture, Dr. Pavlik would upload to her class website the PowerPoint 20 presentation used in class and other information discussed in class, as a "reward" for students 21 who attended the lecture. Mason stated that she never received accessible versions of Dr. 22 Pavlik's PowerPoint presentations after class, because the digital versions provided by Dr. Pavlik 23 could not be converted properly for effective use by the JAWS speech-to-text software. 24 Specifically, Mason identified an issue with JAWS attempting to describe images used in Dr. 25 Pavlik's PowerPoint presentations. However, Mason admitted that she never spoke with Dr. 26 Pavlik about Mason's inability to understand the images used in Dr. Pavlik's PowerPoint 27 presentations, and Mason never took any documents from Dr. Pavlik's course to OSS for 28 conversions or assistance with accessibility issues. 6 1 Page ID #:6696 1 At her deposition, Dr. Pavlik testified that she attempted to format her PowerPoint 2 documents to be accessible for blind students, based on training she received from LACCD. This 3 entailed the use of "alt text" to describe pictures or graphics in words so that a screen reader such 4 as JAWS can read aloud the description when a blind student is reviewing the digital version of 5 the PowerPoint presentation. Dr. Pavlik also stated that she stopped using "random pictures" that 6 did not provide necessary narrative for the information in the PowerPoint presentation to avoid 7 accessibility issues with those pictures. Dr. Pavlik testified that she did not send any PowerPoint 8 documents or other class materials directly to OSS herself for conversions into an accessible 9 format, unless a student's accommodations form requested that Dr. Pavlik do so. Dr. Pavlik 10 routinely sent tests or quizzes to OSS as part of blind students' accommodations, and Dr. Pavlik 11 testified that she never received any testing materials back from OSS with the representations 12 that those materials were inaccessible. However, Dr. Pavlik never sent handouts or PowerPoint 13 presentations to OSS for formatting assistance, testifying that students at LACC "are encouraged 14 to be their own activists in terms of getting information and taking it [to OSS]." Dr. Pavlik 15 averred that she has never received any complaints from sight-impaired students as to the 16 inaccessibility of her digital PowerPoint presentation files provided to students after class 17 sessions. The Court finds that Dr. Pavlik's deposition testimony is credible and contradicts 18 Mason's assertions that Dr. Pavlik does not adequately explain her PowerPoint slides for the 19 benefit of blind students. 20 Mason also testified that Dr. Pavlik wrote on the chalkboard in the classroom on at least 5 21 occasions during the semester. Mason stated that Dr. Pavlik did not narrate what she was writing 22 on the chalkboard, so Mason could not follow along with what was being written. Mason 23 acknowledged that she used her own recording device to record Dr. Pavlik's lectures, but Mason 24 stated that the recording device did not sufficiently capture audio from Dr. Pavlik when she was 25 writing on the chalkboard, because Dr. Pavlik was facing away from the class while speaking. 26 ii. Professor Daniel 27 Mason testified that, in Professor Daniel's course, Mason received in-class handouts in 28 paper format at least 4 times during the semester. Mason testified that she never was informed of 7 1 Page ID #:6697 1 the material on the handouts during class; instead, Professor Daniel had students describe what 2 they saw on the paper handout. 3 Professor Daniel refuted Mason's testimony. First, Professor Daniel stated that she only 4 distributes one paper handout to students during the semester, which contains drawings made by 5 children who were victims of sexual abuse. See Pls.' Ex. 34. Second, Professor Daniel testified 6 that she orally explains the content of the handout in detail for all students prior to allowing for 7 class discussions about the pictures, and that, in total, the handout is used for approximately 15 8 minutes of class time. The Court finds Professor Daniel's testimony to be more credible than 9 Mason's testimony about the frequency and use of handouts in Professor Daniel's class. 10 Mason testified, to the best of her recollection, that Professor Daniel used PowerPoint 11 presentations in every lecture of Abnormal Psychology. On cross-examination, Mason corrected 12 her testimony by stating that she does not recall Professor Daniel utilizing PowerPoint during 13 class sessions. Professor Daniel testified that she never has, and never will, use PowerPoint 14 presentations for any course she teaches. Professor Daniel stated her strong preference for giving 15 "straight lectures" from her own notes, rather than relying on technology for assistance. The 16 Court finds Professor Daniel's testimony more credible than Mason's contradictory testimony, 17 which Mason recanted in any event. 18 Mason testified that Professor Daniel issued a handbook to all students in her Abnormal 19 Psychology course, a handbook which Professor Daniel created herself. Mason stated that the 20 handbook was only provided to students in hardcopy format, and Professor Daniel did not 21 provide Mason with an accessible version of the handout. Professor Daniel acknowledged that 22 the handbook has never been tested for accessibility, but that the handbook is only used during 23 class sessions and not for any course assignments. Professor Daniel also testified that, during 24 each class session, she thoroughly verbalized each page of the handbook relevant to that 25 discussion in a manner that blind students such as Mason could comprehend. The Court finds 26 Professor Daniel's testimony about the use of the handbook in the Abnormal Psychology course 27 to be credible. 28 8 1 Page ID #:6698 1 Mason testified that she recalled Professor Daniel writing on the chalkboard during class 2 sessions on at least 4 occasions. Mason conceded that Professor Daniel attempted to vocalize 3 whatever Professor Daniel was writing on the chalkboard so that Mason could orally internalize 4 the information. Mason utilized an audio recorder in Professor Daniel's class, but Mason stated 5 that the recorder did not adequately pick up what Professor Daniel was saying while writing on 6 the chalkboard, because Professor Daniel was facing away from the class. 7 C. LACC Website 8 The undisputed evidence adduced at summary judgment already established that Payan 9 and Mason could not access the LACC website starting sometime in the winter of 2017, when 10 LACCD released a new version of the LACC website. 11 The LACC website allowed students enrolled at LACC to access information about their 12 education and enrollment, including grades and transcripts. Students were also able to sign up for 13 classes for future semesters on the LACC website. These functions were housed in a program 14 embedded in the LACC website called PeopleSoft, a student information system used throughout 15 all of LACCD's schools. Sighted students were able to access these resources on the LACC 16 website through any computer, but Payan and Mason could not access the website through 17 JAWS. Therefore, Payan and Mason had to go to OSS or rely on other sighted individuals for 18 assistance with class enrollment and for assistance with obtaining transcripts. There is no 19 indication in the record that Plaintiffs' reliance on sighted individuals for class enrollment caused 20 Plaintiffs to be unable to enroll in any classes they wished to take at LACC. 21 In addition to these education administration resources, the LACC website also published 22 information about campus activities, including events and seminars being held on campus. Based 23 on the record presented at trial, it is unclear whether information about campus activities was 24 contained within the PeopleSoft program embedded in the LACC website, or whether such 25 information was housed on a separate page of the LACC website that did not utilize the 26 PeopleSoft software. 27 As the Court previously held, Payan and Mason could not access the LACC website and 28 the PeopleSoft program within the website due to technical issues with JAWS, as articulated in 9 1 Page ID #:6699 1 the expert of Peter Bossley, Plaintiffs' expert witness regarding technology accessibility. At trial, 2 Payan testified that, on one occasion, he was unaware of a disability seminar occurring on 3 LACC's campus until the day of the seminar, when a classmate informed him about the event. 4 Payan asked the classmate about how students were notified of the event ahead of time, and the 5 classmate responded that the information for the seminar had been posted on the LACC website.1 6 Therefore, Payan represented that he was unable to attend the seminar as desired because of his 7 inability to access the information about the seminar on the LACC website. 8 Bossley testified at trial that reasonable modifications exist to resolve blind students' lack 9 of access to the LACC website through JAWS. Specifically, Mr. Bossley testified that 10 PeopleSoft has made available different Application Programming Interfaces ("APIs") to allow 11 its customers to build a custom website or mobile application-based interface different from the 12 default interface accompanying the PeopleSoft program. Existing APIs produced by software 13 vendors are compatible with JAWS and would remedy the accessibility problems found on 14 PeopleSoft's default interface, which the records shows was the interface used by LACC on its 15 website. Furthermore, Mr. Bossley testified that LACC could create its own API on PeopleSoft 16 that would be accessible with JAWS. These solutions would allow Plaintiffs and other blind 17 students to access transcripts and other information about their grades, as well as sign up for 18 classes, without assistance from a sighted individual. 19 As to the LACC website itself, Mr. Bossley testified that LACC could revise the website 20 to make the website accessible under the Web Content Accessibility Guidelines ("WCAG"). 21 Deficiencies in the formatting of LACC's website that preclude access by text-to-speech users do 22 not conform with WCAG standards and could theoretically be remedied through changes in the 23 website's coding. LACCD offered no evidence to rebut or contradict Mr. Bossley's testimony 24 about reasonable modifications to the LACC website. 25 26 27 1 Although this statement appears to the Court to be inadmissible hearsay, neither party objected to its 28 introduction during trial. In any event, this evidence is not dispositive of any legal issues resolved in this Order. 10 1 Page ID #:6700 1 D. LACC Library Databases 2 As part of Professor Sedghi's psychology course, students were required to conduct 3 research in support of a term paper. To conduct this research, Payan went to the LACC library 4 and attempted to access the library databases acquired by LACCD. These library databases are 5 also available on the LACC website and can be accessed remotely on any computer, through a 6 program called Kentico. Payan does not recall which specific databases he attempted to use in 7 connection with research for the term paper for Professor Sedghi's course, but Payan recalls that 8 he chose to research autism as the subject of his term paper. 9 When Payan attempted to access the library databases, Payan encountered difficulties 10 determining what resources were available on a given topic of research and was required to ask 11 for assistance from a sighted person. Payan recalled speaking with Barbara Vasquez, the Library 12 Department Chairperson, regarding Payan's inability to access the library databases. Vasquez 13 does not specifically recall interacting with Payan or Mason, although she acknowledged that she 14 routinely answers any questions students might have about the library databases, including 15 accessibility issues raised by blind students. 16 Similarly, Mason was required to complete term papers for each of her psychology 17 courses with Dr. Pavlik and Professor Blythe, respectively. For Professor Blythe's term paper, 18 Mason chose to write about Attention Deficit Hyperactive Disorder. Mason had similar 19 difficulties as Payan experienced when attempting to access the available library databases on 20 this subject. Like Payan, Mason was unable to identify which particular databases she attempted 21 to access at the LACC library. 22 Vasquez testified that library databases are not tested regularly at LACC to ensure that 23 those databases are accessible through JAWS. Instead, testing is a complaint-driven process that 24 occurs whenever blind students express to library staff members that a particular database is 25 inaccessible. Vasquez recalled that in July 2017, LACC tested some of the "Gale" databases 26 through OSS, and once those databases were determined to be accessible with JAWS, Vasquez 27 assumed that the other Gale databases were also accessible. However, Vasquez does not recall 28 receiving written reports from OSS regarding any accessibility testing; the only feedback 11 1 Page ID #:6701 1 Vasquez received was "high-level" oral comments from OSS and Kushner. Other than Gale, 2 Vasquez acknowledged that some PDF documents on the databases called EBSCO or JSTOR 3 were inaccessible through JAWS, and Vasquez noted that Films on Demand, a film database, did 4 not have any audio narration of non-verbal actions in the films stored on the database. Vasquez 5 also referred to a program used at LACC called Stellarium, which LACC acquired at the request 6 of a particular professor at LACC. Vasquez noted that, since her deposition in this case in July 7 2017, Vasquez has learned that Stellarium is not accessible to blind students through JAWS. 8 Indeed, Vasquez admitted that technology and programs requested by professors are not tested 9 for accessibility with JAWS prior to acquisition by LACC. 10 Vasquez also testified that some computers at the LACC library are equipped with a 11 program called Kurzweil. Kurzweil is a text-to-speech program similar to JAWS, except 12 Kurzweil translates printed documents rather than digital ones. The record is unclear as to 13 whether it would be feasible for blind students to print out any inaccessible PDFs on the LACC 14 library databases and use Kurzweil to translate those printed documents into text format. 15 At trial, Plaintiffs presented no evidence of any reasonable modifications to the 16 inaccessibility of LACC's library resources. Mr. Bossley did not testify about the library 17 databases and did not conduct an assessment of whether those databases were accessible as part 18 of his expert report. Neither did Dr. Jon Gunderson, whose expert report was limited to Payan's 19 inaccessibility in his math courses, a subject not at issue during the bench trial. During Plaintiffs' 20 closing argument, Plaintiffs identified three categories of "modifications" that Plaintiffs asserted 21 would avoid discrimination against blind students regarding the LACC library databases: (1) 22 LACCD could conduct an audit of library resources to determine what documents on library 23 databases are inaccessible, because LACCD does not presently know the extent of any 24 accessibility issues without conducting such an audit; (2) LACCD could resolve the known 25 issues with some databases, without explaining how LACCD could do so; and (3) LACCD could 26 convert or obtain accessible alternatives to inaccessible materials, documents, or software, 27 without explaining what accessible alternatives, if any, exist. Plaintiffs also suggest that LACCD 28 12 1 Page ID #:6702 1 could ensure that the LACC library is staffed "at all times" so that blind students can receive the 2 same access to inaccessible library databases with the help of a sighted individual. 3 III. Conclusions of Law 4 For the applicable legal standards governing a public entity's liability under Title II and 5 Section 504 under a theory of disparate treatment or impact, the theory of liability which 6 Plaintiffs advance here, the Court refers the parties to the legal standards set forth in the Court's 7 prior Orders regarding Plaintiffs' motions for partial summary judgment as to liability. See Dkt. 8 155 at 13-19; Dkt. 183 at 4-6. Furthermore, the Court reminds the parties of its prior analysis of 9 the proper scope of the "program or service" at issue for each of Plaintiffs' allegations of 10 LACCD's violations. See Dkt. 183 at 1-4. 11 A. Etudes 12 As the Court previously analyzed, the proper scope of Plaintiffs' claims regarding the 13 Etudes program is whether Payan's lack of access to Etudes deprived Payan of meaningful 14 access to the benefits of Professor Sedghi's psychology course, which is the "program or 15 service" for which Etudes was used. See Dkt. 183 at 1-4, 13-14. 16 The evidence presented at trial establishes that, although Etudes was inaccessible to 17 Payan, OSS and Professor Sedghi accommodated Payan's lack of access by providing Payan 18 with an equally effective alternative to communicate with his study group members outside of 19 the Etudes program. Payan had access to emails outside of Etudes and had the opportunity to 20 contact his group members by email instead of by using the discussion board for his study group 21 on Etudes. The fact that Payan had to make time to meet with his study group after class or in 22 between classes was what Professor Sedghi intended for the study groups; the group assignments 23 were meant to be completed outside of class time and required communications outside of the 24 classroom. Therefore, because LACCD provided Payan with a reasonable accommodation for 25 Payan's lack of access to the Etudes study group discussion boards, Payan received an equal 26 opportunity to communicate with his study group members in an effective manner, and LACCD 27 did not discriminate against Payan by using Etudes in Professor Sedghi's psychology course. 28 13 1 Page ID #:6703 1 As to the first assignment of Professor Sedghi's course, where students were required to 2 post on a class-wide discussion board on Etudes, Payan's lack of access to that assignment did 3 not deprive Payan of meaningful access to the benefits of the psychology course. Professor 4 Sedghi testified that the assignment was meant to be a mechanism for students to become 5 familiar with each other, as opposed to a substantive assignment for students to gain knowledge 6 about the curriculum taught in the psychology course. Professor Sedghi also testified that she 7 conducted a similar exercise in class during the first week of the course to allow students to get 8 to know each other, undercutting the significance of the assignment to post on the Etudes 9 discussion board. Furthermore, Payan was accommodated for this assignment through the ability 10 to email his response directly to Professor Sedghi, and Payan was able to participate equally with 11 his peers during the initial in-class exercises held by Professor Sedghi. For these reasons, 12 Payan's inability to participate on the class-wide discussion board does not rise to the level of a 13 deprivation of "meaningful access" to the benefits of the psychology course, and LACCD did not 14 discriminate against Payan through the use of Etudes discussion boards for the first assignment 15 of class. 16 B. In-Class Materials 17 As the Court previously explained, the proper scope of Plaintiffs' claims regarding in- 18 class materials, including handouts and PowerPoint presentations, is whether Plaintiffs' lack of 19 access to in-class materials deprived Plaintiffs of meaningful access to the benefits of the 20 particular courses in which Plaintiffs enrolled. See Dkt. 183 at 1-4, 7-8. The Court will analyze 21 separately each course in which Plaintiffs claim they were denied access to in-class materials. 22 1. Plaintiff Payan 23 Plaintiffs have not met their burden to show by a preponderance of the evidence that 24 Payan was denied meaningful access to PowerPoint presentations during Professor Sedghi's 25 psychology course. During class sessions, Professor Sedghi explained all of the content on the 26 PowerPoint slides in a manner that Payan could comprehend, meaning that Payan was able to 27 receive the same access to the PowerPoint slides as the other sighted students in the course at the 28 time the presentations were given. Professor Sedghi also testified that she provided one-on-one 14 1 Page ID #:6704 1 assistance to Payan in class to ensure that Payan was able to understand the PowerPoint 2 materials. Payan also received electronic copies of the PowerPoint slides after class, and it is 3 unclear from the record whether sighted students were provided with these PowerPoint slides. 4 Payan has not articulated any specific difficulties when attempting to access the PowerPoint 5 slides Professor Sedghi sent to him after class. Therefore, Professor Sedghi accommodated 6 Payan's disability regarding PowerPoint slides used in class sessions, and LACCD did not 7 discriminate against Payan by using PowerPoint presentations in Professor Sedghi's psychology 8 course. 9 Plaintiffs also have not met their burden to show by a preponderance of the evidence that 10 Payan was denied meaningful access to in-class handouts in Professor Sedghi's course. Plaintiffs 11 have not identified any specific handouts that were used as part of the curriculum in the 12 psychology course; the only document identified was the syllabus for the psychology course 13 which Professor Sedghi provided to students during the first week of class, which Professor 14 Sedghi represented was also made available to students in digital format. Without a factual basis 15 to conclude that Payan was not able to have the same access to any curriculum-based in-class 16 handouts as his sighted peers, the Court holds that LACCD did not discriminate against Payan 17 regarding in-class handouts in Professor Sedghi's psychology-course. 18 2. Plaintiff Mason 19 i. Dr. Pavlik 20 Based on the findings of fact above, the Court holds that LACCD did not discriminate 21 against Mason in Dr. Pavlik's psychology course through the use of PowerPoints, in-class 22 handouts, or lectures featuring writing on the chalkboard. Plaintiffs have not met their burden to 23 establish by a preponderance of the evidence that Mason was denied meaningful access to any 24 course materials in Dr. Pavlik's class. 25 Mason received digital versions of PowerPoint slides from Dr. Pavlik, which, even if 26 inaccessible, was still usable with JAWS for all non-graphic text included on the slides. Dr. 27 Pavlik testified that she made efforts to ensure that any digital versions of PowerPoint 28 presentations accessible through JAWS, and that she ensured that all PowerPoints used during 15 1 Page ID #:6705 1 class sessions were fully explained to sight-impaired students. The Court finds Dr. Pavlik's 2 deposition testimony in this regard to be credible. To the extent that Plaintiffs' legal position is 3 that Mason cannot access graphic materials equally as sighted students, that lack of access is a 4 function of Mason's disability, not LACCD's failure to accommodate that disability. Instead, 5 LACCD submitted persuasive evidence that Dr. Pavlik made reasonable and sufficient attempts 6 to include "alt text" in all digital versions of PowerPoint slides, which adequately explained the 7 graphics used in the presentation. 8 Based on the testimony at trial, Mason was not deprived of meaningful access to any 9 paper handouts in class, because Mason was able to complete quizzes or other in-class 10 assignments in an effective manner. Although Mason received inaccessible handwritten 11 comments from Dr. Pavlik regarding a quiz Mason completed at OSS, Mason could have 12 requested for clarification directly from Dr. Pavlik regarding Mason's performance on the quiz 13 and any necessary feedback Dr. Pavlik provided to assist Mason with future quizzes or 14 assignments. Even so, Mason's inability to access handwritten comments independently in 15 connection with one quiz assigned in Dr. Pavlik's course does not mean that Mason was denied 16 meaningful access to the benefits of the psychology course as a whole. 17 Mason's inability to comprehend Dr. Pavlik's vocalization of text written on the 18 chalkboard was not a denial of meaningful access, particularly where Mason was able to ask Dr. 19 Pavlik for clarification during class and because Mason was able to record the audio of each 20 class session, even if the audio recording may not have been the best quality. The evidence 21 establishes that Dr. Pavlik provided Mason with sufficient accommodations during the 22 psychology course such that Mason maintained meaningful access to the psychology course on a 23 similar level as provided to sighted students. Therefore, LACCD did not discriminate against 24 Mason through the use of in-class material in Dr. Pavlik's psychology course. 25 ii. Professor Daniel 26 Plaintiffs have satisfied their burden to establish by a preponderance of the evidence that 27 Mason was denied meaningful access to the handbook assigned in Professor Daniel's Abnormal 28 Psychology course. While sighted students were given access to the handbook in an accessible 16 1 Page ID #:6706 1 format outside of class, Mason was given only a paper copy of the handbook without an 2 accessible digital version that was compatible with JAWS. Professor Daniel testified that she did 3 not assign any readings or assignments from the handbook outside of class, and the Court finds 4 Professor Daniel's testimony about the use of the handbook only for in-class purposes to be 5 credible. Nevertheless, Mason was deprived of the opportunity to review the handbook before or 6 after class to clarify her understanding of the material already discussed or attempt to prepare for 7 future class sessions. Even without knowing which specific sections of the handbook would be 8 discussed in any given class session, and unlike her sighted peers, Mason was unable to access 9 the handbook in any capacity outside of class, which may be necessary to allow Mason to 10 prepare for any exams in the course or otherwise beneficial to ensure that Mason is 11 comprehending the curriculum. 12 Plaintiffs have also met their burden to establish by a preponderance of the evidence that 13 reasonable modifications existed to avoid the discrimination imposed on Mason—namely, 14 LACCD could have ensured that Mason receive an accessible version of Professor Daniel's 15 handbook at the same time as sighted students received a hard-copy of the handbook. LACCD 16 was obligated under Title II and Section 504 to ensure that Mason receive the same access to the 17 same course materials at the same time as sighted students. Requiring Mason to seek assistance 18 from OSS, when both Professor Daniel and OSS know that Mason requires accommodations to 19 be able to access the handbook, deprives Mason of meaningful access to participate on the same 20 level as her peers in the course. Therefore, because Mason did not receive an accessible version 21 of Professor Daniel's handbook at the same time as sighted students, LACCD violated Title II 22 and Section 504 by discriminating against Mason in Professor Daniel's Abnormal Psychology 23 class. 24 Conversely, LACCD did not discriminate against Mason with regard to any other 25 materials used during class sessions. The evidence establishes that Professor Daniel did not use 26 PowerPoint presentations during class sessions, and Professor Daniel adequately explained and 27 verbalized the only handout distributed to students during one particular class session to allow 28 for Mason to participate in the discussion in a meaningful manner compared to her sighted peers. 17 1 Page ID #:6707 1 The Court finds Professor Daniel's testimony regarding her aversion to technological aids during 2 class sessions and her explanations of the handout used in class to be credible. As with Dr. 3 Pavlik's course, the few times that Professor Daniel wrote on the chalkboard did not deprive 4 Mason of meaningful access to what Professor Daniel was writing merely because Mason had 5 difficulty hearing Professor Daniel verbalize the information. Mason was capable of asking for 6 clarification as to what Professor Daniel wrote on the chalkboard, which not only would allow 7 Mason to comprehend the material in the short term but would allow for a clearer audio 8 recording of Professor Daniel's explanation as necessary to allow Mason to listen to the lecture 9 at a later date while studying for the course. 10 In summary, LACCD violated Title II and Section 504 by discriminating against Mason 11 through the use of an inaccessible handbook in Professor Daniel's course by failing to provide 12 Mason with an accessible version of the handbook at the same time as sighted students. 13 C. LACC Website 14 The Court previously held that the LACC website is itself a "service" offered to students 15 on campus, and that, because the website was inaccessible to blind students through JAWS, 16 LACCD discriminated against Plaintiffs by utilizing the LACC website in a manner that only 17 sighted students could access. Dkt. 183 at 18-20. The Court now holds that Plaintiffs have met 18 their burden to show by a preponderance of the evidence that reasonable modifications exist that 19 would remedy Plaintiffs' lack of access to the LACC website. 20 Mr. Bossley identified reasonable methods to make the LACC website, and the 21 PeopleSoft program embedded in the website, accessible to JAWS users. LACCD did not 22 present evidence to rebut Mr. Bossley's conclusions, but to the extent that LACCD argues that 23 Plaintiffs were sufficiently accommodated by receiving assistance with class enrollment and 24 accessing transcripts at OSS, such accommodations do not provide Plaintiffs with meaningful 25 access to the benefits of the LACC website offered to sighted students. As noted in the Court's 26 prior Order granting partial summary judgment for Plaintiffs on the issue of LACCD's 27 discrimination against blind students through the LACC website, making the accessibility of the 28 LACC website resources contingent upon third party assistance does not allow blind students to 18 1 Page ID #:6708 1 manage their education independently in the same manner as sighted students. See Dkt. 183 at 2 19-20. 3 Therefore, LACCD discriminated against Plaintiffs by denying Plaintiffs meaningful 4 access to the LACC website, which could be avoided through reasonable modifications to the 5 LACC website or the PeopleSoft program. 6 D. LACC Library Databases 7 Similar to the LACC website, the Court previously held that the LACC library databases 8 constitute a "service" offered to students enrolled at LACC, and that therefore LACCD 9 discriminated against Plaintiffs by making available library databases that were inaccessible for 10 blind students through JAWS. See Dkt. 183 at 23-24. The Court now holds that Plaintiffs have 11 met their burden to show by a preponderance of the evidence that reasonable modifications exist 12 to remedy Plaintiffs' lack of access to the LACC library databases. 13 The evidence presented at trial confirms that Payan and Mason were unable to access 14 certain library databases when they attempted to conduct research for the term papers assigned 15 by their psychology professors, even though Plaintiffs have not identified which specific 16 databases were inaccessible. Vasquez further admitted having knowledge that some databases 17 procured by the LACC library contained documents that were inaccessible through JAWS. 18 Allowing sighted students to use these documents, while Plaintiffs could not access the 19 documents, constitutes discrimination by denying Plaintiffs meaningful access to an important 20 resource necessary for their education and completion of class assignments. 21 As previously noted, the burden is on Plaintiffs to identify any modifications to 22 LACCD's policies, practices, or procedures that are necessary to avoid or remedy the 23 discriminatory impact imposed upon blind students. 28 C.F.R. § 35.130(b)(7); see also Crowder 24 v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996). Plaintiffs' suggestion that LACCD could 25 conduct an accessibility audit of library resources does not amount to a remedy to discrimination; 26 merely identifying further accessibility issues, without more, provides no solution to granting 27 blind students access to those inaccessible resources. Nevertheless, Plaintiffs' implicit argument 28 19 1 Page ID #:6709 1 is that LACCD could simply remove all inaccessible resources it identifies from student use to 2 avoid granting resources to sighted students that blind students cannot access. 3 The Court has noted in its prior Orders on summary judgment that the ADA and Section 4 504 do not necessarily require discontinued use of inaccessible technology if blind students can 5 be accommodated for their inability to use that technology in a different manner. Here, there is 6 no indication in the record that blind students could be accommodated with respect to the 7 inaccessible documents contained in the library databases by any technological means. 8 Therefore, if no alternate accommodations exist that could allow Plaintiffs to access the benefits 9 of the inaccessible LACC library databases, it would indeed be a reasonable modification to 10 require LACCD to avoid using any inaccessible library databases it identifies until those 11 databases are proven to be accessible, a principle which the Court considers to be self-evident. 12 Therefore, despite the vagueness of Plaintiffs' arguments and the lack of specific 13 accommodations identified that could provide Plaintiffs with equal access to the library 14 databases as sighted students, the Court holds that reasonable modifications exist to LACCD's 15 policies, practices, and procedures regarding acquisition and use of LACC library databases that 16 would eliminate and avoid discrimination against blind students. 17 IV. Conclusion 18 Based on the Court's findings of fact and conclusions of law set forth above, the Court 19 holds that LACCD violated Title II and Section 504 by discriminating against Plaintiffs through 20 (1) the inaccessible handbook issued in Professor Daniel's course, (2) the inaccessible LACC 21 website, and (3) the inaccessible LACC library databases. 22 The Court acknowledges the possibility of a Jury Trial to determine whether LACCD 23 was deliberately indifferent toward blind students for the violations of Title II and Section 504 24 identified above, as well as LACCD's liability with respect to Payan's math courses as the Court 25 previously held in Plaintiffs' motion for partial summary judgment. See Dkt. 183 at 10-12, 14- 26 18. However, in light of the above findings of fact and conclusions of law, the Court ORDERS 27 the parties to file, on or before May 27, 2019, documents indicating what additional testimony 28 the parties intend to present to the jury on the issue of whether LACCD was deliberately 20 1 Page ID #:6710 1 indifferent. The parties are not to explain any evidence of Plaintiffs' damages; the Court is only 2 concerned with the facts underlying LACCD's notice of discrimination and actions taken in 3 response to that notice. Each party should either identify particular relevant portions of 4 deposition testimony for any witnesses it intends to call that were previously deposed, or, 5 alternatively, submit additional declarations for its witnesses setting forth the actual testimony of 6 those witnesses, in an admissible format with proper evidentiary foundation. The parties are not 7 to state merely the topics about which its witnesses intend to testify, but instead must provide the 8 actual testimony of those witnesses in written format. Importantly, the parties are not to re-argue 9 any findings of fact or law contained in this Order; the parties are to provide their supporting 10 evidence pertaining only to whether LACCD was deliberately indifferent with regard to any of 11 the violations of Title II and Section 504 the Court has held to date. 12 As noted on the docket on May 20, 2019, see Dkt. 266, the Jury Trial is continued to June 13 11, 2019 at 9:30 a.m. pending the parties' filings regarding the evidence intended to be presented 14 regarding deliberate indifference. 15 16 IT IS SO ORDERED. 17 18 Date: May 21, 2019 19 ___________________________________ 20 HON. STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 21