don't really have to do anything until someone comes in and complains and i'm pretty sure that the government expects a little more out of you than that if you can you tell me that you know that just doesn't that you know i think on some level why you lost in front of the jet he and why you walk partially in front of a jury because that's it's not a very appealing argument in terms that you get this money no you're going to have s  vice president level position that was left until the responsibility for which was to determine the level of accessibility of all college resources to the disabled and the school to the school for whatever reason just left the office vague which suggests that the district court was correct that the college had sort of a devil may care attitude with regard to compliance with with the disabled student to sort of be their own africa when the college had agreed to establish a position that should have been advocating for disabled you're honored response your jury you know you have to you know you have two different you have a bench trial you have a jury trial no one really thought that the district get a good job here now there's a lot of interesting legal issues that are involved here and i tell you that but i don't you know you're not worth me my heart here by telling me you know that the district if it looks like the district just has a practice of waiting for someone to come flying using that money for whatever they want to use it for i don't know and then they come up with the things they come up with are if you don't get things right away say you already you're starting out with you can't see so it's kind of probably hard to get into the office then you get in the office you tell them what you need they don't get it right away and then so then you're already behind you can't participate in class and hopefully these people i think that they're probably pretty smart so they were able to actually get through this but then there was some covert system that you have to do your homework a certain way in a program and it wasn't accessible to blind students so then if you don't do your homework you don't get credit for your homework and then you get behind  gatekeeper are you going to let it in so how is what really happened here any different in a bench trial the judge the witnesses were called they were crossed examination after the judge heard them decided well i think  characterized as a sham declaration which if i understand was shown declarations are looks like a sham declaration of meaning so how if that's the state of the record how were you harmed by the district court district of wild will for not making their educational materials more accessible and meeting the needs for accommodation the blinds were on the experts ones into specific gum  survives stand of all i know that there are claims that there was no policy or practice and therefore it can withstand bad and that's why i was asking so what is the policy of happens if i what i understand the practice to be is you wait until someone complains what is does that have to be a written or can it be there's have to be a written policy or practice might circuit cases applying disparate impact to cases like this so the position that we're in is could we even even what's assumed that we agree with you that if we even do that your answer to this question on this program the problem with your position is that it completely eliminates unintentional discrimination against the disabled which even the supreme court has recognized and a perfect example of that is physical access barriers and it may very well be that when a public building was constructed nobody gave any thought to accessibility by someone in a wheelchair but we now know that there are lots of public buildings out there are other places of public accommodation that can't allow people in wheelchairs to access the premises because they don't  course we've got a lot of cases in the th circuit that have recognized claims just those kinds of claims by individual disabled persons who couldn't get access because the counter was too high or their transaction what you wanted to do are that that's just what happened there were other that that you know the facts in this case that they did go in and then the question is what they were given whether if that was really was was that was that really did that really put them in any position that they would be entitled to if you can't do your homework on if you if you get the materials much later and i think it's i don't think it's out of the question for people to think that if you have a disability it might take you a little bit longer to do your work so giving you a delayed delayed access to your work does and does not help you and that situation it hurts you more that no blind person comes in and asks for anything isn't a good policy or practice i mean wouldn't there be certain things that you could have available or wouldn't there be certain software that you could purchase if to do their homework on or it seems like with that's what you're getting the money for isn't it that's what you get the position for it can be a little brick proactive about it your one hundred dollars knots an important point and the young one of them running out of time the one pretty well we're asking you questions so i'll give you a little rebuttal time accessibility problem for the disabled isn't that what the record shows the driver for the for the library the record did show into the process of testing for exams ability was was requested slash and money that the district except for i'm pretty sure that you can't say something costs too much if it's required by the law because what happens if they take all your money you're not writing right so say we agree with you and is too broad and we said that the for that it's not supported by the evidence so we choose to strike that part of it my understanding of wave of the cross appeal and my understanding of the cross appeal if they don't get a straight across the berm even if we just crossed out a couple of words there stand there and give us our jury trial another well give us are a trial in there is no reading of it if i read it correctly is they're saying if you don't affirm across the board then we then look at our process and decide our cross appeal and it looks to me like they would be entitled to a jury trial and so then i have to give the jury trial and even though i might x out certain things on the injunction but that's still a blow the whole thing and then we have to start we're back to square one i think over something for the courts careful deliberation but i think that if there were a significant change to the injunction injunction would be gone we would go back for a jury trial that's when and if it's this is going to be injunctions significant i'm going to come back and give you some rebuttal time but think about it after we've talked to you and after you listen when we talk to the other side and i'm going to ask them about it too i noticed this there was no real mediation in this case because obviously maybe the sides thought that they were going to walk away and win here i think everyone spent quite a bit of money and if it's reversed and it starts over again that's quite a bit of money but i'm sure that the attorneys fees alone if you don't prevail you have to pay their attorneys community certainly well i just think it think about i know that it probably didn't appeal to anyone before but after you've endured our questions for a period of time then we'll come back you're  injunction addresses the whole question of accessibility of the library's entire database and then orders any database that cannot be made contemporaneously accessible to disabled students cannot even be used for non disabled students and that seems to me to be based on a theory of disparate impact not necessarily on whether you're too individual have very good policies on the books about accessibility of software about purchasing software about the technology it uses in class for student access the problem is they don't implement those policies they don't and i'm telling you i have a problem with paragraph two and i think that's over broad and so i would have to probably say something about that i don't know how my colleagues feel and my question is if if i thought everything else was fine except for that start from the beginning that's not a small part of the injunction it deals with and i are databanks of the library and i assume that the pretty significant amount of information i think that's what mr urban was getting  problem well let's just take let's just take the sentence that says within one year of the date of this order the district shall evaluate the city colleges integrated library system website and all library databases available to students enrolled that at the college to determine whether the library resources are fully accessible the blinds to the district so either discontinue the any inaccessible library databases which means that nobody gets to access inaccessible documents containing library databases or other inaccessible library resources available to students enrolled at the college or established alternative means of providing access to the equivalent benefits of the inaccessible library resources to blind students in a timely manner i e prior to or at the same time cited students or might access those library resources including outside of the class or that's alternative means of access it doesn't the shutting it off is the only way to do it and there has been no discussion at any point in this case nor has there ever been evidence that l a p d has tried alternate means of timely  stablished alternative means of providing access to the equivalent function so the only option isn't to turn it off and that was my question the right question was one of evidence and if and if i correct me if i misheard your answer but i heard your answer to be the only evidence that supports it is that the district didn't conduct a study to determine when girls were like the other evidence and that the individual claims test both experience accessibility what i mean you might as well just add in world peace here you know and then bam bam will just round out this injunction and you must achieve world peace it's kerry you know i just have to speak for myself and i'm only for myself but it's very broad i would argue it's an inappropriate motion seeking to introduce evidence before this court that was never put before the district court as to what the what and who know and so while i understand that it seems there and brought i also think we're we're that provision that says if students cannot or disabled students cannot equal to or before access by a non disabled student then everybody has to be forbidden from using that particular database can't we say as a matter of law that that fundamentally alters the nature of the service program or activity as twenty eight c f r section thirty five point one three and i don't additional checking make something accessible to a screen reader so there are alternate means and without i hesitate to stray too far from within the record but i think that i think he does have an opportunity to be creative and think about it too much to shut down the databases which i think we would understand of course then is there a way to have someone available at the way other students have constant access so that if a bl that it developed the district court ended up doing some things that should have been delegated to the jury on the th amendment in the term in y ability then it issued what i will call of blunderbus injunction and i think paragraph two is probably the worst offender in the injunction and you're telling me that that there wasn't really much evidence offered by the defense to show that this would constitute a fundamental alteration but it doesn't sound like there's an awful lot of evidence to justify the requirement in the st place simply because there may have been one or more databases that your clients had trouble access and so the district court sort of teed off that particular point and then came up with this very broad requirement that as i read that threatens to shut down a part of the library which strikes me as just being wrong as i can't be what the law requires i mean this thing is just a mess and i don't even know where to begin in trying to unravel the mess that is case for them your honor we agree that  with the with the library the library and admitted that she knew there were some accessibility problems there when testimony that no one had ever done and accessible in the chapter the library databases writing questionnaire who works that  not an expert in this job is not to have software he had he knew that some of the database and had problems because they'd heard from one student before he knew some of them were an expert inaccessible and yet there was the office and where a student when they had a problem had to go and tell them there was a problem and try to get an individual combination and i wasn't sure what would you say ok i was asking mr urban what would you say how would you describe their policy what has to happen before they need to respond what is the policy there's not a written policy correct we are under a few different policies that do cover this area so there is no alternative media production  alternative media production policy is about what to do about sort of physical material like handouts that you might get in class or textbooks so that there is a policy on that and how to have them readily assist in ensuring that they follow their own procurement policies about being aware of accessibility making sure things are accessible legs those are the policies what is going to practice what is just the evidence shows that the practice  inaccessible student information system there's no way to fix those for one student so l a p d has claimed throughout the day that this either just is use a reasonable accommodation but there are no individual accommodation that will remedy the here we could try and figure out if we're going to send his kids back to the district court how to instruct the district court as to where it occurred and how it needs to proceed which may very well require a do over pretty much of the entire case and at the end of the day we might end up with a much better injunction than what we have before us but our alternative to that would be for the two of to sit down with a mediator and fashion relief here that will address the concerns that you have articulated which i grieve seems to be embodied in the policies that are wri but we might need to include some provisions of meaningful enforcement if the district doesn't in the future comply with the policies in the way that you would like to study and it just strikes me that this is the kind of a case that would that resolution would be better if it were hammered out by the party and then if a judge tried to fashion it and tell you what's going to work what would your client be willing to sit down with the privileged but the point and i think you've answered it enough is we've got like somewhere between two dollars thirty cents in fees alone on this case and what we're suggesting here is going to be a lot less expensive than doing a real a do over of the case and you're going to just be back in front of us again because either side or both of you were going to be unhappy with the result i'm offering a quick and less expensive way know that's what we're here that's what we're here for but that could also mean that then it goes back and then it's then a one million more and at the end of that if plaintiffs when you get your face right yes or no and so all that and then they pay mr urban too and so i guess all of that money comes back doesn't help any students right yes your honor anyway and i think it's clear from the going to help one student's not going certainly not going to help other citizens either that's our position so well mr ritter i think i haven't had a chance at the for with my colleagues but you know we're not insensitive to the cost of compliance with the goes and and i think part of my point and just wanting i think both of you have some vulnerabilities not in terms of and both of you have had some experience with support that i would  heard things judge lady and judge tom and i are not social workers i mean where we would like to think that we're legal experts and make we may not get agreement from all the people that we've ruled against throughout the years but that being said i mean that's how we're going we have we have legal combine that so we've taken you over as well but are there decided that that's the order we're going to do what we would do is we would vacate submission we would order it to mediation if mediation doesn't work out it comes back to the you know we've had oral argument and then we decide the case on the legal both legal issues that are before incidental to the vast injunction they originally sought or we would hope jury trial for that reason the court correctly identified findings on the library got to bases you know to quit when asked about reasonable modification the district court said  but didn't have the backing of any evidence so there's a total failure of proof on that point a last point i want to adventure for the court for the two bright one rules those really are perspectives those really decide because there's no basis for those two