Lost Opportunity Damages May Be Recovered Under ADA

Thursday, March 12, 2026

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Ninth Circuit:

Lost Opportunity Damages May Be Recovered Under ADA

Opinion Directs Reinstatement of Jury Award to Two Blind Plaintiffs Who Sued L.A. Community College, Says That Law Bars Recovery for Mental Anguish, Does Permit Awards for Other Than Out-of-Pocket Expenses

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals yesterday directed the reinstatement of jury awards—one for $218,000 and the other for $24,000—to two blind plaintiffs who alleged that a Los Angeles community college system intentionally discriminated against them by failing to ensure that promised accommodations, such as the ability to record lectures and access electronic texts, were made available to them.

Saying that a District Court judge erred in granting remittitur and reducing the damages to $1,650 for one plaintiff and eliminating any recovery for the other after determining that the award “could only be attributed to one of two impermissible sources,” the court agreed with the trial judge that emotional distress is not recoverable under Title II of the Americans with Disabilities Act but held that the law does allow plaintiffs to recoup for lost opportunities.

At issue is whether the plaintiffs were entitled to the awards under Title II of the Americans With Disabilities Act (“ADA”), which provides at 42 U.S.C. §12132:

“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Under the statutory scheme, monetary damages are only available if a plaintiff establishes that the defendant acted with discriminatory intent or deliberate indifference.

Available Damages

Circuit Judge Ana de Alba authored yesterday’s opinion, joined in by Senior Circuit Judge Jay S. Bybee, saying:

“[T]he district court in this case concluded that emotional distress damages are…not available under Title II of the ADA. We agree; but we also hold that the district court erred in failing to consider whether [the plaintiffs] were awarded other appropriate forms of relief.”

Circuit Judge Kenneth K. Lee partially dissented, remarking:

“The majority correctly concludes that the plaintiffs…may not recover emotional distress damages under Title II of the [ADA]. The majority is also right that ADA plaintiffs may still seek other pecuniary damages for opportunities lost after suffering unlawful discrimination. But I part with my colleagues over their conclusion that the plaintiffs offered sufficient evidence to prove that they suffered lost educational opportunities to the tune of $218,500.”

The question arose after Roy Payan and Portia Mason, both of whom are blind, enrolled as students at an East Hollywood campus within the Los Angeles Community College District (“LACCD”) in 2015. Accommodations were approved for both pupils, including the ability to record lectures, preferential seating, and access to electronic text materials, beginning in 2016.

Allegations in Complaint

In 2017, they filed a complaint, together with the National Federation of the Blind Inc. and its California affiliate, against LACCD, alleging violations of §12132 and seeking compensatory damages as well as injunctive relief. In the pleading, they asserted: Acknowledging that Title II of the ADA was not enacted under that constitutional grant of power, she pointed out that the law “explicitly defines its rights and remedies as those of the Rehabilitation Act, which was enacted pursuant to the Spending Clause.”

She continued:

“[W]e read the text of Title II of the ADA as making its remedies coextensive with those of the Rehabilitation Act and Title VI of the Civil Rights Act. Because emotional distress damages are unavailable under those causes of action, we likewise hold that such damages are unavailable under Title II of the ADA. Therefore, the district court correctly barred Payan and Mason from recovering emotional distress damages.”

Turning to other potential sources of support for the awards, she commented:

“Several courts post-Cummings have found that plaintiffs may still seek compensatory damages for opportunities lost as a result of a violation of their rights under federal antidiscrimination statutes. In fact, one of our sister circuits has found that, while emotional distress damages are not recoverable under Title II of the ADA post-Cummings, plaintiffs may still seek ‘compensation for lost educational benefits’ under Title II….We agree that plaintiffs may seek compensatory damages for lost educational opportunities under Title II of the ADA….We therefore find the district court erred in barring Appellants from seeking damages for lost educational opportunities.”The jurist added: “We also find that the jury’s award was consistent with the evidence presented at trial and the district court’s instructions regarding damages. During trial, Appellants presented the jury with evidence that they lost opportunities to meaningfully learn class material, engage in classroom discussions, and explore their educational interests as a result of LACCD’s violations of the ADA.”

In a footnote, she said:

“We agree with the dissent that plaintiffs seeking lost opportunity damages must prove the amount of damages with reasonable certainty….Plaintiffs in this case testified 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 experiences demonstrate how they were effectively unable to access educational opportunities or benefits, meeting the evidentiary threshold to establish the damages to which they are entitled.”

De Alba declared:

“We conclude that the district court erroneously remitted damages, and we accordingly REVERSE, VACATE, and REMAND for further proceedings…, with instructions to reinstate the jury’s damages award of $218,500 to Payan and $24,000 to Mason.”

Lee remarked:

“The plaintiffs simply did not provide any concrete evidence of lost educational opportunities that would justify an award of over $200,000. The reason is obvious: As the majority explains, the district court—incorrectly—barred them from introducing evidence of lost educational opportunities (more on that error later). The record is thus devoid of evidence about such damages.”

Saying that “Payan and Mason argued they lost some opportunities to learn class material, explore interests, or enjoy the full benefits of classroom participation,” he responded:

“[T]he evidence presented at trial amounts to little more than the parties’ feelings that they failed to receive the full value of their educational program. The record has no testimony about the reasonable value of these opportunities compared to the expected value of the parties’ educational programs. Payan testified that he felt ‘more [like] a spectator than a student,” fell behind in classes,…and was encouraged to slow the pace of his studies. But such vague testimony provides no basis for a jury to reasonably calculate the value of Payan’s losses. The evidence of damages is even skimpier for Mason: She did not point to any evidence of her lost opportunities in the record.”

Arguing that “the district court correctly found that the jury compensated the plaintiffs for the emotional impacts of discrimination,” he said:

“I would uphold the district court’s reduced award.”

The case is Payan v. Los Angeles Community College District, 24-1809.