9th Cir. Sends Bar Examinee’s Title II Claims Back for Abrogation Analysis

Allegations that the State Bar of California violated ADA Title II by failing to provide accommodations required consideration of factors announced by the U.S. Supreme Court to determine whether Title II abrogated 11th Amendment immunity as to the test-taker’s claims.

Photo by Ben Mullins on Unsplash

What happened: An attorney sued the State Bar of California, contending that the bar refused to provide him with certain test-taking accommodations in violation of ADA Title II. The District Court dismissed the claims on 11th Amendment immunity grounds, prompting the attorney to appeal to the 9th U.S. Circuit Court of Appeals, arguing that Title II abrogated the bar’s 11th Amendment immunity.

Rule of law: Under the 11th Amendment, the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Courts, including the U.S. Supreme Court, have held that the 11th Amendment immunizes states from suit in federal court by citizens and noncitizens alike.

However, Congress can abrogate this immunity if it:

(1) Makes its intention to abrogate unmistakably clear in the language of the statute.

(2) Acts pursuant to a valid exercise of its power under the 14th Amendment.

What the 9th Circuit said: The District Court needed to consider the question more carefully. According to the 9th Circuit, the text of ADA Title II spells out that a state “shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter” under 42 USC 12202. Thus, Congress made its intention to abrogate 11th Amendment immunity in the clear language of the statute.

However, the tougher question was whether Congress acted pursuant to a valid exercise of its power.

The 9th Circuit adopted an approach that other Circuits have used and followed the Supreme Court’s analysis in U.S. v. Georgia, 546 U.S. 151 (2006). The Georgia case sets out a three-part inquiry that is to be applied on a case-by-case basis:

(1) Which aspects of the state’s alleged conduct violated Title II?

(2) To what extent did such misconduct also violate the 14th Amendment?

(3) Insofar as such misconduct violated Title II but did not violate the 14th Amendment, was Congress’s purported abrogation of sovereign immunity as to that class of conduct nevertheless valid?

According to the 9th Circuit, the District Court misapplied the Georgia inquiry because it did not evaluate which aspects of the alleged conduct, if any, violated Title II before going on to the second part of the Georgia analysis to conclude that the alleged conduct did not violate the 14th Amendment.

Additionally, the 9th Circuit pointed out that the District Court did not provide reasoning supporting its conclusion that Congress did not prophylactically abrogate sovereign immunity as to the attorney’s claims because its analysis focused only on the second part of the Georgia test.

“But this part of the Georgia test cannot stand alone as a reason to dismiss a claim on sovereign immunity grounds,” the 9th Circuit wrote. “It is not enough for the district court to hold that the complaint does not allege a constitutional violation and end there.”

Takeaway: In considering whether Title II has validly abrogated sovereign immunity as to an individual plaintiff’s claims, courts must complete the three-part inquiry from the Supreme Court’s Georgia decision.

Other Circuits that have Applied the Georgia Analysis in Title II Abrogation Cases

**1st Circuit: **Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) — Held that there was no showing of a violation of Title II when a deputy sheriff fatally shot a patient of a state mental health treatment program.

**2d Circuit: **T.W. v. New York State. Bd. of L. Examiners, 110 F.4th (2d Cir. 2024) — Held that Title II of the ADA did not validly abrogate sovereign immunity in the context of professional licensing.

3d Circuit: Geness v. Admin. Off. of Pennsylvania Cts., 974 F.3d 263 (3d Cir. 2020) — Held that a detainee’s allegations regarding delays related to his hospitalization and competency proceedings in his assault case did not establish a Title II violation.

5th Circuit: Block v. Texas Bd. of L. Examiners, 952 F.3d 613 (5th Cir. 2020) — Held that the failure to waive the requirement of active practice for bar admission in Texas was not an allegation of conduct that violated Title II.

**6th Circuit: **Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016) — Held that an attorney’s claims that an office complex where she worked was inaccessible due to design defects did not state a claim under Title II because the attorney did not identify a service, program, or activity of a public entity at the complex that she sought to access.

8th Circuit: Klingler v. Dir., Dep’t of Revenue, State of Mo., 455 F.3d 888 (8th Cir. 2006) — Held that Missouri’s practice of charging a $2 fee for removable placards that permit users to park in spacers reserved for people with disabilities but that users were entitled only to injunctive and declaratory relief to the tune of the $2 annual fee “because as to the category of claims involving rational discrimination based on disability, Title II of the ADA is not an appropriate exercise of Congress’s power under” the 14th Amendment.

10th Circuit: Brooks v. Colorado Dep’t of Corr., 12 F.4th 1160 (10th Cir. 2021) — Held that a reasonable juror could determine that a corrections department’s refusal to provide adult diapers for an inmate with ulcerative colitis that caused frequent, unpredictable fecal incontinence was not a reasonable accommodation of the inmate’s disability and that the inmate could pursue a claim for damages under Title II.

11th Circuit: Miller v. King, 449 F.3d 1149 (11th Cir. 2006) — Held that a state prisoner’s claims that he the facility where he was incarcerated were not accessible when he used his wheelchair and that staff did not provide him with necessary urine catheters or assistance in using portable toilets, which caused him to urinate and defecate on himself violated Title II had to be reconsidered in light of the Georgia ruling.