Second Circuit Rejects Bar Applicant's Disability Claim Citing State Sovereign Immunity

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled that the New York State Board of Law Examiners didn't waive state sovereign immunity under the federal Rehabilitation Act, even though certain state courts of original jurisdiction did. As a result, a bar applicant who was denied an accommodation could not sue the Board for monetary damages.

The case, T.W. v. New York State Board of Law Examiners, began when the Board denied T.W. a requested accommodation for the bar exam. T.W. sued under the Rehabilitation Act, but the Board argued that it enjoyed state sovereign immunity under the Eleventh Amendment. The Board claimed that it didn't waive immunity under the Rehabilitation Act, because it didn't receive federal funding and it wasn't a "program or activity" of a "department, agency . . . [or] instrumentality" that had received funding. (The Rehab Act conditions the receipt of federal funds on waiver of state sovereign immunity.)

The Second Circuit agreed with the Board. The court first rejected T.W.'s claim that the Board received federal funding (and thus waived state sovereign immunity) because other state agencies provide reimbursement to bar applicants for the applicants' own out-of-pocket exam fees. "No money from [the other state agencies] ever gets paid to the Board; the money gets paid directly to the candidate after she has paid her examination fees." Moreover, "[t]he Board is, at most, an indirect beneficiary of the federal funding that [the other state agencies] receive, but this alone does not waive the Board's immunity."

Next, the court held that while some state trial courts received federal funding, the Board wasn't part of those courts. The court acknowledged that some state specialty trial courts received federal funding. It held that the relevant "department or agency" that received federal funding was therefore the state courts of original jurisdiction (and not the state's overall Unified Court System). But because the Board isn't part of the state's courts of original jurisdiction, the Board didn't waive immunity.