NOT FOR PUBLICATION FILED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Argued and Submitted March 2, 2020 Submission Withdrawn March 4, 2020 Resubmitted April 30, 2020 Pasadena, California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

2 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

3 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.

4 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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