Disparate Impact Counts In Discrimination

We’ve all been in those classrooms where a teacher indicates information on the overhead or whiteboard by saying: “In the left hand column, data matches what’s on the right, making the coefficients multiply to the value of x and the answer is on the other side of the equals sign. Any questions or problems?”

Of course, our answer would be, yes. Now, what we can’t see what’s on the left, middle or right hand columns in the first place. Now, granted, most professors work hard to teach their subject matter. They prepared hours for their lectures and, in an auditorium full of students, they know they’re not going to answer everyone’s questions or problems. Now, put yourself in the lecture hall blind. You’re not going to see what’s in those columns, let alone take notes on what to cover in a future stop-off at the teacher assistant’s office sometime later.

It’s not an uncommon scenario for us who have attended college blind where the disabled student services and other admins that be have promised to uphold section 504 of the Rehabilitation Act (1973) and Section 2 of the Americans With Disabilities Act. (1990) Said attempts and promises are great until students find that those online platforms, web portals, and classroom overheads aren’t compatible with screen reading software. In those cases, the students have faced discrimination based on the theory of disparate impact. While a college or workplace’s attempt at discrimination wasn’t overt, the conditions had an adverse effect upon their ability to complete their coursework.

This kind of scenario, along with my intended career plans, led me to attend a small school where I could and did stop in to my professors’ offices to address accommodations and work-arounds.

Not everyone has that opportunity. Students who are disabled often request grants from Vocational Rehabilitation without which they cannot pursue their chosen degrees at a sizable campus of their choice. Many small schools don’t offer programs like computer science and electrical engineering double majors or other technically deep areas of study in the STEM subjects beyond their aim of forming you into a teacher. So, many disabled students attend larger schools hoping to learn in their preferred subject areas. Yet, when they run into accessibility difficulties, they and the offices of disability services have more administrative layers to breach before reasonable accommodations can be made.

Add in the incompatibility of online platforms and the perfect storm arises. Even the well-prepared, competent student can’t always keep up with tests and assignments necessary for passing his classes.

In 2017, Roy Payan and Portia Mason, students at a Los Angeles City College District campus,  sued their school over the inaccessibility of an online platform through which they were to download classroom materials. In addition, they received some of their adapted textbooks in a piece meal fashion such that they fell behind in their work which made the timely completion of class impossible. Joining these two students were the National Federation of the Blind and its California affiliate.

You can read the progess of this case here:

https://dredf.org › 2021/12/16 › payan-v-laccd-explainer and here:

https://www.govinfo.gov › USCOURTS-ca9-19-56146

Payan and Mason were by no means the first blind students to enroll in LACCD classes, let alone to face accessibility issues with campus online platforms in the United States. Yet, they took the needed step to confront the matter head-on. That alone makes them trailblazing targets and, dare I say, worth our respect and admiration. They took the more difficult road than letting the system’s inadequacies intimidate them out of achieving their desired academic goals.

Why does this matter now, in 2022, after the Ninth Circuit Court ruled 2-1 in their favor? In a bold move to excuse their omission, LACCD has requested the U.S. Supreme Court to hear their case that the Americans With Disabilities Act (ADA) does not consider disparate impact theory in proving discrimination. LACCD considers itself an inclusive campus, especially as it pertains to the ADA and the rights of disabled students. They have claimed to make accommodations for work-arounds where necessary and have put offices and policies in place to assist students who otherwise can’t complete their coursework.

Now, before proceeding into further legal considerations, let’s look at some practical matters. Even if the attempts are done bona fide, an adverse impact has effected students who want to complete their work. It’s not a matter of students’ unwillingness or a desire to make a name for themselves. Knowing that the harmful effects of their negligence would temper Payan and Mason’s desire to commend them to others, the campus admins should want to make reasonable changes so as to adapt their online platforms and assignments to as wide an audience as possible.

Furthermore, if they claim that disparate impact isn’t discrimination, the LACCD administration is simply trying to save face by legitimizing their oversight before our nation’s judicial system. Rather than spending finances on pro-growth measures that include as many students-disabled or not-on their campus, they’re spending money in a protectionist posture while trying to wash their hands clean. Of course, there will be a ripple effect across the disability rights community. National associations of blind students will have just cause to tell their members to more suspiciously vet campuses and workplaces who claim to be nonjudgmental toward people with disabilities. Rather than approaching each other in a spirit of cooperation, students and admissions representatives will need to clear hurdles to gain common ground even before formal acceptance to school takes place.

From a legal standpoint, Payan and Mason have just cause to speak against LACCD’s systemic inaccessibility. Because of their attempts at accommodation, they found that the web platforms the campus uses are not compatible with Job Access for Windows (JAWS) screen-reading software. No one who is blind can navigate said platforms under those conditions. So, when the Ninth Circuit Apelet  court majority’s ’s brief showed that reasonable accommodations could adapt LACCD’s web platforms, then the school is in duty bound to make said adaptations to their system.

The LACCD will bring their case before the United States Supreme Court on March 4, 2022. Aware of this and many other issues related to educational and professional equal opportunity for students who are blind or visually impaired, both the American Council of the Blind (ACB) and the National Federation of the Blind (NFB) seek Congressional assistance enacting legislation that would enforce the Department of Justice to apply the ADA’s accessibility standards to 21st century educational and professional web platforms. To prepare State affiliates for its upcoming Washington Seminar to be held from March 11-15, the ACB’s legislative and advocacy office has given attending members key points to discuss with our U.S. Congressmen. After all, we desire to build upon the wide societal scope covered by the ADA rather than to fashion a whole new wheel when advocating for our rights.

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