Today’s case, Aguirre v. California School of Court Reporting-Riverside, 2016 U.S. Dist. LEXIS 167980 (C.D. Cal. December 2, 2016), comes from a publication that I subscribe to call Disability Compliance for Higher Education. It is an excellent publication geared towards the professionals that serve people with disabilities in higher education. It also will have short discussions about cases and OCR rulings. While the case of the day appears in the latest issue of that publication, I thought I could bring a different spin to it, and so here goes. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
Plaintiff was in a car accident leaving her permanently disabled. As a result, she had to find new work that she could do while seated. She applied to the defendant’s court reporting program. Later that month, a representative of the program called her to discuss the program and encouraged her to enroll by April 20, 2015 when the next session began. After that, plaintiff contacted the California Department of Rehabilitation to apply for a grant to cover costs and tuition. On April 7, 2015, a representative of the college contacted the plaintiff again to express interest in moving her through the admission process. The plaintiff responded that she was still trying to secure funding through the Department of Rehabilitation. The Department of Rehabilitation could not secure funding in time for the April 20, 2015 session, and so the plaintiff did not enroll. On May 5, 2015, the college emailed the plaintiff again to continue the admission process and informed her that the next session would begin in June. The plaintiff responded that she was still interested in the program and would enroll as soon as she obtained funding from the Department of Rehabilitation. On June 25, 2015, the plaintiff received the following email from her Department of Rehabilitation counselor (emphasis mine):
Hi Cristina. Lauren from Sage called and talked to Monica saying that they can’t take anyone from the Department of Rehabilitation because they don’t feel that they can accommodate them. We told them that we would only refer qualified and capable students and she still wouldn’t accept our payments. We didn’t mention your name. She told Monica to put Sage on the inactive vendor list.
Here’s what Monica reported to my supervisor yesterday.
“Lauren Somma Director of Sage college called me back today regarding a call I placed requesting school information for a client. . . . Ms. Somma stated today that she would like to be put on the inactive list because the school feels that they are ‘unable to accommodate anyone with a disability at this time since they are a small school.’ . . . Ms. Somma closed our conversation stating again that she would like Sage College to be on DOR’s inactive list because they do not feel they can accommodate our clients.”
After receiving this information, plaintiff began looking for other educational opportunities, including other court reporting schools. She alleged in her complaint that but for the defendant’s withdrawal from the Department of Rehabilitation vendor list, she would have completed the admission process and enrolled in the college’s court reporting program. Plaintiff brought suit under title III of the ADA, Unruh Civil Rights Act, common-law negligence, and intentional infliction of emotional distress.
In denying defendant’s motion to dismiss, the court reasoned as follows:
- The college has a duty not to adopt discriminatory policies related to the acceptance of grant money.
- While a college is not under a duty to participate in a Department of Rehabilitation program, it cannot withdraw from that program if doing so has the effect of discriminating on the basis of disability.
- A variety of statutory and constitutional provisions recognize that an entity can be liable for discriminating in the provision of a benefit or service even when it is under no duty to provide the benefit or service in the first place.
- While a college is well within its right to refuse Department of Rehabilitation funding pursuant to a general policy of refusing grant money, that is not the same thing as withdrawing from a program if the decision to withdraw has the effect of discriminating on the basis of disability.
- Since the plaintiff plausibly alleged that the college withdrew from the Department of Rehabilitation program due to a discriminatory policy, the fact that the college could have refused to participate in the program in the first place is irrelevant.
- Title III does not require a person with a disability to request an accommodation before bringing suit. For that matter, such a requirement makes no sense where the defendant engages in affirmative discrimination.
- An entity taking affirmative steps to exclude persons with disabilities cannot reasonably be expected to grant a request to accommodate those individuals. Requiring an individual to request an accommodation in such a case, contravenes Congress’ determination that a person with a disability does not have to engage in a futile gesture if that person has actual notice the entity covered by title III does not intend to comply with the provisions of title III.
- By plaintiff informing the college she was seeking Department of Rehabilitation funding, that was enough to put the college on notice that plaintiff was a person with a disability.
- It is reasonable to infer that the college knew its decision would affect the plaintiff because the Department of Rehabilitation told the college it was seeking information for a client and the college knew at the time of the conversation that plaintiff was seeking Department of Rehabilitation funding.
- The complaint reasonably alleges that the college knew its withdrawal from the Department of Rehabilitation program would prevent the plaintiff from enrolling.
- The plaintiff has standing because she actually applied for admission to the program and was denied it as a direct result of the college’s discriminatory policy.
- To establish standing, plaintiff does not have to allege that she was totally precluded from enrolling in the college, rather all she has to allege is that she was subjected to unequal treatment on the basis of her disability. So, regardless of whether the denied benefit was the financial aid program or admission into the program itself, plaintiff has stated a sufficient claim.
- When the college allegedly withdrew from the funding program it knew the plaintiff was relying upon because of its view that it was unable to accommodate anyone with a disability, it arguably denied the plaintiff an equal opportunity to participate in its educational programs.
- Since the college repeatedly reached out to her about completing the admission process, it is reasonable to infer that the college would not have encouraged the plaintiff to enroll if she was not qualified to attend the College.
- The State law claims survive a motion to dismiss because the ADA claims survive, though there was a dispute between the parties as to whether the state claims were based upon or independent of the ADA claims.
- This may be one of those cases that down the road turns into the rare victory for plaintiff on summary judgment because of the smoking gun email.
- One lesson for this case, is to perform a higher education compliance audit if you have not already done so.
- It is one thing to have a general policy of not accepting state or federal funds, it is quite another to say no to such funds because you do not want to deal with the issues of accommodating persons with disabilities.
- This also may be one of those cases where the plaintiff would be able to avoid the burden shifting of McDonnell-Douglas and rely on direct evidence vis-à-vis the email.
- When affirmative acts of discrimination are occurring, a plaintiff is under no obligation to request accommodations to remedy those acts.
- Magic words are not required to inform a defendant that the person has a disability. Some common sense is in order. Clearly, funds would not be requested from the Department of Rehabilitation if the person did not have a disability.
- Colleges and universities need to make sure that their recruiting program is in sync with the essential eligibility requirements of the particular program the prospective student is interested in.
- Interesting that the plaintiff did not sue under §504 of the Rehabilitation Act since it is probable that the college accepted federal funds. The advantage to suing under that law would be that §504 requires that nondiscrimination against persons with disabilities extend to all of the operations of an educational entity. The disadvantage to suing under §504 is that causation is solely by reason of, which is not the case for the laws the plaintiff did sue under.