Before getting started on the blog entry for the week, if anybody is interested in the journey I took to get to my law and consulting practices, I discussed that journey in this article.

 

This week’s blog entry is an update on a case that we previously blogged on here, Payan v, Los Angeles Community College District. Since that blog entry, it was sent back down to the trial court where a trial occurred and was then subsequently appealed back to the Ninth Circuit after that with the Ninth Circuit issuing a published decision on March 11, 2026, here. In the interest of full disclosure, I personally know many of the attorneys on the plaintiff side, including co-presenting with two of them- Jessie Weber and Andrew Rozynski-, and  corresponding with Maria Uzueta from time to time as well.

 

As you will blog entry is divided into categories and they are: facts; court’s reasoning that emotional distress damages are not allowed under Title II of the ADA; court’s reasoning that damages for lost educational opportunities are allowed under Title II of the ADA; dissenting opinion of Judge Lee; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories as well.

 

I

Facts

 

On remand from the first decision in this case from the Ninth Circuit, the District Court specified that the plaintiffs could try their claims under one of three theories of potential liability under Title II of the ADA: disparate impact, reasonable accommodation, or disparate treatment. While the decision doesn’t say so explicitly, from reading the opinion, it seems that the parties tried the case on a combination of reasonable accommodation and disparate treatment (it is hard to tell from the opinion if there actually was a single theory the case was tried on at trial).

 

On retrial, the jury found Los Angeles Community College District liable on 14 of the 19 factual allegations. They also found intentional discrimination as well on nine of the factual allegations, including: accessibility issues pertaining to the website; library resources; class management software program; textbooks; accommodation letters; testing accommodations; and the refusal to permit Payan to attend a math class. The jury then awarded $218,500 plus attorney fees to Payan and $24,000 plus attorney fees to the other named plaintiff (Mason).

 

Defendant filed a motion for remittitur, which District Court granted the following year. It reduced the damage it to $1650 for Payan and $0 for Mason, finding that the record only supported an award for out-of-pocket expenses. The District Court based its remittitur on its belief that Title II of the ADA does not allow for emotional distress damages per Cummings, which we discussed here. It also subsequently fashioned injunctive relief on just a few of the issues. The plaintiffs appealed the District Court’s grant of remittitur and its injunctive order.

 

II

Court’s Reasoning That Emotional Distress Damages Are Not Allowed Under Title II of The ADA

 

  1. While Title II of the ADA is a Non-Spending Clause antidiscrimination law, it explicitly defines its rights and remedies as those of the Rehabilitation Act, which is Spending Clause legislation.
  2. Title II of the ADA explicitly states that the remedies, procedures, and rights for violations of Title II of the ADA are the remedies, procedures, and rights set forth in the Rehabilitation Act. The Rehabilitation Act establishes that it’s remedies, procedures, and rights are those set forth in Title VI of the Civil Rights Act of 1964. So, following the chain of incorporation articulated in the statutes, the scope of remedies available under Title II of the ADA is determined by Title VI’s remedial scheme.
  3. That the Rehabilitation Act is Spending Clause and Title II of the ADA is not is of no relevance because the Supreme Court in Barnes v. Gorman, here, explicitly rejected that distinction when it held that punitive damages are not available under §504 of the Rehabilitation Act as well as under Title II of the ADA.
  4. The Supreme Court specifically stated that the ADA could not be clearer that the remedies, procedures, and rights of Title II of the ADA are the same as the remedies, procedures, and rights set forth in the Rehabilitation Act.
  5. Taking Cummings and Barnes together, means that the remedies for violating Title II of the ADA are the same as those of the Rehabilitation Act and Title VI of the Civil Rights Act. Accordingly, emotional distress damages are not recoverable under Title II of the ADA.

 

III

Court’s Reasoning That Damages For Lost Educational Opportunities Are Allowed Under Title II of the ADA

 

 

  1. A jury verdict must be upheld unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.
  2. Several courts post-Cummings have found that plaintiffs may still seek compensatory damages for opportunities lost as a result of a violation of the rights under federal antidiscrimination statutes. In fact, the court cited to an 11th Circuit decision from 1992, that found plaintiffs could seek compensation for lost educational benefits/opportunities under Title II of the ADA.
  3. Federal courts may use any available remedy to make good the wrong done.
  4. The jury’s award was consistent with the evidence presented at trial and the District Court’s instruction regarding damages. During trial, plaintiffs presented the jury with evidence that they lost opportunity to meaningfully learn class material, engage in classroom discussion, and explore their educational interest as a result of the defendant’s violations of the ADA. Such testimony also included Payan recounting how he was deprived of the opportunity to participate at the same level of participation as the rest of the students, and that he was unable to participate in aspects of his math and psychology courses because they used inaccessible software programs.
  5. The jury instruction broadly allowed the jury to compensate the plaintiff’s for any injury they found was caused by the defendant’s violations of the ADA.
  6. Taking the jury instructions literally, which contained the phrase “you can consider the testimony of the plaintiffs regarding the expenses they incurred,” the use of the term “can,” reasonably indicated to the jury that it has permission to or may consider out-of-pocket expenses, but that is not at all the same thing as saying that the jury instruction limited the jury to only (the court emphasized the term “only,” in its opinion), considering out-of-pocket expenses.
  7. Since the plaintiffs presented evidence of the educational opportunities they lost and because of the general nature of the damages instructions, the jury could have reasonably calculated damages to be the amount awarded the trial.
  8. In a footnote, the court said that it agreed with the dissent that a plaintiff seeking lost opportunity damages must prove the amount of damages with reasonable certainty, but disagreed with the dissent’s ultimate conclusion. That is, plaintiffs did establish those damages with reasonable certainty when they testified that they were unable to avail themselves of the educational opportunities they paid for, including being deterred from taking certain classes, being unable to access critical educational materials, and being unable to participate in necessary educational assessments, such as homework and online classroom discussions. Those experiences demonstrate how the plaintiffs were unable to access educational opportunities or benefits, and thereby meets the evidentiary area threshold to establish the damages they are entitled to.
  9. Accordingly, the court abused its discretion by granting the remittitur when it failed to consider whether the jury’s award was based on the legally viable basis of lost educational opportunities.

 

IV

Dissenting Opinion of Judge Lee

 

  1. Judge Lee agrees that Title II of the ADA does not allow for emotional distress damages. He also agrees with the majority that plaintiffs can still seek other pecuniary damages for opportunities lost after suffering unlawful discrimination. However, he does not agree that the plaintiffs offered sufficient evidence to prove that they suffered lost educational opportunities to the tune of the award they received from the jury, especially because the District Court incorrectly barred the plaintiffs from introducing evidence of lost educational opportunities.
  2. The evidence presented at trial amounts to little more than the parties feelings they failed to receive the full value of their educational program. Such testimony provides no basis for a jury to reasonably calculate the value of the plaintiffs losses.
  3. Plaintiff did not appeal the District Court’s error in barring evidence of lost educational opportunities, and it is implausible that the jury calculated the value of any lost opportunities to exceed $200,000 given the record.

 

 

 

 

V

Thoughts/Takeaways

 

  1. The evidence supporting lost opportunity damages came primarily from the plaintiffs’ own testimony about the educational opportunities they lost. Plaintiffs did not present additional economic analyses or expert testimony quantifying the financial value of those lost opportunities.
  2. Plaintiffs’ testimony alone can support significant damages awards for their lost opportunities. The court rejected the notion that plaintiffs must present complex economic or expert evidence to prove the value of educational opportunities they lost. It will be interesting to see if other courts agree that a plaintiff does not have to present complex economic or expert evidence to prove the value of lost opportunities.
  3. In Cummings, the Supreme Court explicitly stated that they were not deciding whether emotional distress damages were prohibited by Title II of the ADA. The problem for plaintiffs is that for the Supreme Court to decide that Title II of the ADA allows for emotional distress damages, they will somehow have to distinguish and/or overrule Barnes v. Gorman. Of course, I have absolutely no idea how the Supreme Court will ultimately rule on whether emotional distress damages are allowed under Title II of the ADA. You have to figure, though you never know, that there will be three Justices saying emotional distress damages are allowed under Title II of the ADA, but the question will be where the other two votes will come from. The problem with getting two other Justices to agree that emotional distress damages are allowable under Title II of the ADA is the literal language of Title II’s remedies section and Barnes v. Gorman.
  4. Lost opportunities may be a suitable substitute for emotional distress damages. Definitely look for more plaintiff attorneys to take that approach going forward after this decision, which is published and thereby precedent.
  5. The specific wording of the jury instruction played a significant role in the court’s analysis. So, expect lots of fighting over jury instructions in Title II matters going forward.

 

I would be remiss if I don’t end with good luck on the upcoming baseball season and enjoy the rest of the NCAA tournament.