A Federal Court Ruling on Bar Exam Accommodations in New York

With a hat tip to Prof. Chris Lasch...

This week, a federal judge issued an order, finding that the New York State Board of Law Examiners is not immune under the Eleventh Amendment in a civil action by a bar exam applicant who was twice denied testing accommodations, alleging violations of federal disability law.  T.W. v New York State Board of Law Examiners, Memorandum and Order, September 18, 2019, U.S. District Court E.D New York, Case 16-CV-3029 (J. Dearie).

According to the brief facts as stated in the court's memorandum of its order, the plaintiff failed the New York Bar Exam in her "first two tries, causing her to lose a lucrative job...and undermining her job prospects to date," although the plaintiff subsequently passed the New York bar exam when she was finally provided testing accommodations.  

The plaintiff raises two federal statutes in support of her claim that the New York bar examiners violated her rights in failing to twice provide bar exam accommodations.  First, the plaintiff asserts violation of Section 504 of the Rehabilitation Act, which, roughly speaking, prohibits discrimination by any program or activity that receives federal final assistance. Second, the plaintiff asserts violation of the Americans with Disability Act ("ADA"), which, broadly speaking and in relevant parts, prohibits discrimination by programs and activities by any public entity.

The New York bar examiners filed a motion to dismiss, contending that the federal court lacks subject matter jurisdiction over both of the plaintiff's federal statutory claims in that the State contends that the plaintiff's claims are barred by sovereign immunity under the Eleventh Amendment, which, in general, prohibits suits in federal court against states absent an exception (two of which were raised by the plaintiff in response to the defendant's motion to dismiss).  

First, with respect to the ADA statutory claim, the plaintiff asserted that Congress properly abrogated (or removed) state sovereign immunity when Congress adopted the ADA statute.  

As indicated by the Court (and as tested in law school exams and bar exams too), Congress can remove sovereign immunity provided that Congress uses unmistakably clear language and provided that Congress adopted the statute at issue pursuant to congressional power to remedy and deter constitutional violations under Congress's post-Civil War 14th Amendment Section 5 power.  

With respect to this issue, the New York bar examiners argued that Title II of the ADA was not enacted pursuant to a valid grant of constitutional authority as the commerce clause power, in and of itself, is constitutionally insufficient for Congress to abrogate state sovereign immunity.  Despite the interesting constitutional arguments over this issue, the Court did not reach the constitutional issue with respect to the ADA, explaining that the plaintiff's claim under the Rehabilitation Act was sufficient to resolve this case because the Rehabilitation Act and the ADA have the "same legal standards and remedies."  Thus, the Court focused only on whether to dismiss the plaintiff's claim under the Rehabilitation Act for lack of subject matter jurisdiction based on Eleventh Amendment immunity.

Second, with respect to the Rehabilitation Act claim, the plaintiff asserted that the State waived its constitutional right under the Eleventh Amendment to not be sued in federal court when the State accepted federal funding for some of its state court programs.  

As the Court stated in its decision, the Rehabilitation Act requires states to waive sovereign immunity as a condition of receiving federal funds for state programs for lawsuits brought in federal courts for violations of the Rehabilitation Act.  Consequently, the Court next focused on whether the state waived its constitutional rights when the New York court system received, in part, federal funding.  

In brief, the Court held that the New York bar examiners had waived sovereign immunity protections from lawsuit in federal court under the Rehabilitation Act because the New York bar examiners were organized as a sub-entity of the New York court system, which did receive federal funding, and therefore, the plaintiff's claim of violation of the Rehabilitation Act by the New York bar examiners could proceed to the next stage of litigation as the court has federal question subject matter over the plaintiff's claim.  

With respect to this issue, the decision is a bit complicated and is fact intensive, as illustrated by the Court's citations out of Wisconsin, which indicate that the Wisconsin bar examiners are distant separate entities from the Wisconsin court system.  In such cases, the particular government entity must intentional waive its sovereign immunity rights by receiving federal funding, which, apparently, the Wisconsin bar examiners did not.  

Nevertheless, with respect to New York, the Court ruled that the New York bar examiners were a sub-compnent agency of the larger state court system such that the New York bar examiners are subject to lawsuit in federal court based on the Rehabilitation Act.  As such, the Court denied the New York bar examiners motion to dismiss. Consequently, the plaintiff can proceed with a claim against the New York bar examiners in federal court for violation of the Rehabilitation Act.

For those of us in the academic support field, that raises an interesting question because, anecdotally, even in states using the identical Uniform Bar Exam (UBE), it seems as though there are wide differences with respect to granting disability testing accommodations.  But, before you counsel students to sue state bar examiners in federal court for potential violations of the Rehabilitation Act, its important to underscore that that a case in federal court might well turn on a deep analysis of the organizational and legal structure of the bar examiners, specifically, whether they are a sub-entity of a state agency that is the recipient of federal funding.  Many or some state bar examiners might not receive any federal funding and might well be independent of a state agency that does receive federal funding such that federal litigation might be precluded against state bar examiners.

Finally, for those of you working with law students (or bar exam applicants), this is a great case to raise with them because it interweaves federal civil procedure and constitutional law.  Indeed, this is a problem ripe for a bar exam question.  And, for those law students preparing for midterms in civil procedure or constitutional law, this is a great practice problem to test one's analysis.  

(Scott Johns).