NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES ANTHONY GUERRA; et al., No. 18-56236
Plaintiffs-Appellants, D.C. No.
2:16-cv-06796-MWF-KS
v.
WEST LOS ANGELES COLLEGE; LOS MEMORANDUM*
ANGELES COMMUNITY COLLEGE
DISTRICT,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted March 2, 2020
Submission Withdrawn March 4, 2020
Resubmitted April 30, 2020
Pasadena, California
Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.
Plaintiffs Charles Guerra, Chrystal, and Karlton Bontrager are students with
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
physical disabilities who attend West Los Angeles College (“WLAC”). They sued
WLAC and the Los Angeles Community College District, invoking Title II of the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and various
California state laws, and alleging that the termination of WLAC’s on-campus
shuttle service has restricted their access to WLAC’s programs and services. After
a six-day bench trial, the district court rendered a judgment in Defendants’ favor
on all claims. We have jurisdiction over Plaintiffs’ appeal from the judgment
under 28 U.S.C. § 1291. We reverse as to Guerra and Chrystal, vacate as to
Bontrager, and remand.
Title II and Section 504 both require a public entity to provide individuals
with disabilities “meaningful access” to its programs and services. K.M. ex rel.
Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). In
particular, “Title II emphasizes ‘program access,’ meaning that a public entity’s
programs and services, viewed in their entirety,” must be meaningfully accessible
to individuals with disabilities. Cohen v. City of Culver City, 754 F.3d 690, 694-95
(9th Cir. 2014); see 28 C.F.R. § 35.150(a).
Guerra and Chrystal have not had meaningful access to WLAC’s programs
and services since the shuttle service ended. The record belies Defendants’
assertion that Guerra and Chrystal could achieve that access by taking the Los
Angeles paratransit service from their homes to WLAC, and then traversing the
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campus using motorized scooters or on foot. First, the paratransit service is not a
viable means of getting to WLAC for those two Plaintiffs. The evidence shows
that the service is unpredictable and time-consuming because it gives riders an
imprecise pick-up window and frequently picks up and drops off other riders along
the route. The commute times for Guerra and Chrystal would therefore increase
dramatically and they would risk missing portions of class. Moreover, because
rides must be reserved at least a day in advance, Guerra and Chrystal would not
have the flexibility to adjust their schedules—for example, they would not be able
to stay late if a class runs long unexpectedly or to participate in impromptu school
activities. Requiring students with disabilities to access their education in this way
“disproportionately burdens [them] because of their unique needs.” See Rodde v.
Bonta, 357 F.3d 988, 998 (9th Cir. 2004).
Second, neither Guerra nor Chrystal can presently rely on motorized
scooters to get around campus. Guerra has obtained a scooter from the California
Department of Rehabilitation (“DOR”), but his vehicle is not equipped to transport
the scooter to and from WLAC. He is waiting on the DOR to determine whether it
will cover the substantial costs required to make the necessary modifications. And
Chrystal does not even have a scooter. Based on Guerra’s experience, it could take
Chrystal well over a year to receive one from the DOR, assuming her request is
approved. Access that is contingent on the occurrence of uncertain future events is
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not currently meaningful.
Third, the record is clear that Guerra and Chrystal cannot currently access all
relevant parts of the WLAC campus by walking. As the district court found,
Guerra struggles to walk more than fifty feet and Chrystal can only walk “several
steps” at a time due to their disabilities. Unsurprisingly, then, they have both been
forced to scale back their participation in campus life since the shuttle service
ended. For example, Chrystal had to drop a French class and Guerra could not take
part in poetry readings because those programs were held in buildings that were
difficult to reach on foot.1
Because we conclude that Guerra and Chrystal have been denied meaningful
access to WLAC’s programs and services, we reverse the judgment as to those two
Plaintiffs and remand for further proceedings consistent with this disposition.
With respect to the Title II claim, the district court should determine what
“reasonable modifications” Defendants can make to provide Guerra and Chrystal
with the requisite access. See 28 C.F.R. § 35.130(b)(7); Cohen, 754 F.3d at 695.
1
These deprivations of access are markedly more severe than those at issue
in Kirola v. City & County of San Francisco, 860 F.3d 1164 (9th Cir. 2017), and
Daubert v. Lindsay Unified School District, 760 F.3d 982 (9th Cir. 2014), the cases
on which Defendants primarily rely. In Kirola, “no [plaintiff] testified that there
were locations in the city that such [plaintiff] could not reach because of access
barriers.” 860 F.3d at 1183. And although the plaintiff in Daubert could not sit in
the bleachers of a high school football field because of his wheelchair, he was
“able to sit directly in front of the bleachers, to each side of the bleachers, and in
other areas where spectators congregate” during football games. 760 F.3d at 988.
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We are unable to discern on this record whether Bontrager has also been
denied meaningful access. The district court found that Bontrager can access all
relevant parts of WLAC on foot once he arrives at the campus bus stop. That
finding is not clearly erroneous. But Bontrager argues that it is a challenge for him
to get from his home to the campus bus stop. He has tried walking, but the route
included a steep incline that he struggled to overcome. He also testified that he
cannot rely on the Culver City bus for his commute, because “only every other
bus” on the line that stops near his home goes to the WLAC campus, and because
the bus does not always run on the posted schedule. It is not clear from this
evidence whether the infrequency and unreliability of the bus service are such that
Bontrager does not have meaningful access to WLAC. For example, we do not
know whether waiting for “every other bus” poses a minor inconvenience or is a
material impediment to Bontrager’s getting to campus at the times he needs to be
there, such that he is unable to participate in all the classes and activities he would
otherwise. We accordingly vacate the judgment as to Bontrager and remand for
the district court to resolve this evidentiary issue.
REVERSED in part, VACATED in part, and REMANDED.
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