Bar Immune From ADA Claims

The United States Court of Appeals for the Second Circuit rejected claims for relief under the ADA made by an applicant for bar admission in New York

T.W. sued Defendant-Appellee the New York State Board of Law Examiners alleging, inter alia, that the Board violated Title II of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act by denying her requests for certain accommodations on the New York State bar examination in 2013 and 2014.

The Board moved to dismiss T.W.’s complaint, asserting that the United States District Court for the Eastern District of New York (Raymond J. Dearie, District Judge) lacked subject matter jurisdiction because New York’s sovereign immunity barred T.W.’s ADA and Rehabilitation Act claims under the Eleventh Amendment. The district court denied the Board’s motion to dismiss, but this Court reversed, holding that the Board was immune from suit under Section 504 of the Rehabilitation Act and remanding for consideration of the Board’s motion to dismiss as to T.W.’s Title II claim under the ADA.

On remand, the district court granted the Board’s motion to dismiss, holding that the Board is entitled to immunity as an “arm of the state,” that Title II does not abrogate the Board’s sovereign immunity for money damages as applied to T.W.’s claim, and that T.W. could not maintain her requests for declaratory and injunctive relief under Ex parte Young.

On appeal, T.W. argues that the Board is not an arm of the state, and even if it were an arm of the state, Title II has abrogated Eleventh Amendment immunity in the context of T.W.’s claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young. We disagree and therefore AFFIRM the July 21, 2022, judgment of the district court.

Plaintiff and her bar history

T.W. is a Harvard Law School graduate who suffers from a variety of complications resulting from a severe head injury. While at Harvard, she received testing accommodations for her disabilities, including 50 percent extra time on exams, stop-clock breaks, and separate testing facilities. When she signed up for the July 2013 New York bar examination, she requested these same testing accommodations, citing her diagnosed impairments.

The Board initially denied her request for any accommodations. But after she appealed the decision, the Board granted her request in part, providing off-the-clock breaks and seating her in a smaller room, although that room included others receiving similar accommodations. T.W. did not pass the July 2013 bar exam. At the time T.W. received her results, she had started as a law clerk at a law firm, and she alleges that failing the bar hurt her standing at the firm and required her to set aside time to study for the exam again.

T.W. signed up for the July 2014 exam and again requested the accommodations that she had received at law school. This time, the Board granted her 50 percent extra time, seating in a room with others receiving similar accommodations, but no off-the-clock breaks. She again did not pass, and her law firm fired her.

In February 2015, T.W. passed the bar examination on her third attempt. This time, the Board granted her double time on the exam, an accommodation that she had requested to the extent that her initial request for off-the-clock breaks and 50 percent extra time was not granted. T.W. alleges that the Board’s failure to provide her with the accommodations that she initially requested caused her to fail the bar exam twice and resulted in her inability to find employment comparable to the position she had held at her law firm. T.W. sued the Board, its chair, and members of the Board, alleging violations of the ADA, Section 504 of the Rehabilitation Act, and the NYCHRL, seeking declaratory, compensatory, and injunctive relief.

Merits

Turning to T.W.’s complaint, we conclude that the injunctive relief she seeks is unavailable under Ex parte Young because it would not prevent an alleged continuing violation of federal law. To be sure, T.W.’s complaint alleges ongoing violations of federal law by the Board and, by extension, by the individual defendants named in their official capacities. For example, she alleges that the Board’s “acts, policies, and practices discriminate against individuals with disabilities, including those who have mental and/or cognitive disabilities and require additional time, stop-clock breaks, and/or separate, quiet testing areas.” J. App’x 31, ¶ 86. And she further alleges that the Board has “failed to make reasonable modifications to its policies and practices to ensure that Plaintiff and others with disabilities do not face [] discrimination because of their disabilities.” Id. 31, ¶ 89. In the context of her Title II claim, these allegations amount to allegations that the Board continues to violate federal law.

But what is missing from T.W.’s complaint—and why her claim for injunctive relief cannot go forward—is the necessary nexus between the injunctive relief she seeks and the continuing violations she alleges. T.W.’s requested injunctive relief does not seek to prevent the Board’s alleged “fail first policies and practices” that she alleges “discriminate against individuals with disabilities.” Id. 31, ¶¶ 86, 88. Rather, she seeks an injunction against the Board “maintaining and reporting records of Plaintiff’s examination results” and a requirement that the Board “take affirmative steps to alleviate the ongoing repercussions of the discriminatory test administration that continue to hamper Plaintiff’s search for employment.” Id. 34. This relief does not align with the alleged continuing violations of federal law, because even if a court granted T.W. the full suite of injunctive relief she seeks, the alleged federal law violations could continue.

T.W.’s complaint, we note, does not allege that the Board’s maintenance of records of her failures violates federal law. “An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997). Therefore, if T.W. had alleged that the Board’s maintenance of records violated Title II, her claim may well have survived. But T.W. makes no allegation that the Board’s maintenance of records constitutes an ongoing violation of her rights. The injunction she seeks is accordingly unavailable.

T.W. contends that expungement is available under Ex parte Young for either of two reasons. First, she argues that she “allege[s] ongoing harm as a result of [the Board’s] maintenance of bar examination records and refusal to expunge.” Reply Br. 25. This argument, however, is unresponsive to the issue here. Even if she alleges ongoing harm, injunctive relief under Ex parte Young must seek to stop ongoing “violation[s] of federal law.” Green, 474 U.S. at 68 (emphasis added).

Second, T.W. points to the Ninth Circuit’s decision in Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007), which she contends “noted that Ex parte Young was available to expunge negative information in a college student’s file that might jeopardize that student’s future employment.” Reply Br. 26. That case, to be sure, did hold that expungement of negative information from university records may be available under Ex parte Young, because “they serve the purpose of preventing present and future harm to [the plaintiff].” Flint, 488 F.3d at 825. We find this case distinguishable from the issue here. The quoted language from Flint came in the course of the court’s determination that the injunctive relief sought by the plaintiff, including expungement of records, “cannot be characterized solely as retroactive.” Id. And we do not disagree with that conclusion as it applies here—T.W.’s requested expungement relief may well be prospective in nature. But even if the relief is prospective, T.W.’s injunctive relief is unavailable under Ex parte Young because it is aimed exclusively at a past violation; it does not seek to remedy an alleged ongoing violation of federal law. We do not read Flint, 488 F.3d at 825, as having addressed this question and, in any event, we would not be bound by its holding even if it had.

(Mike Frisch)