The Americans with Disabilities Act (“ADA”) is one of the most far-reaching, influential pieces of legislation that exists in the United States. As a whole, the ADA is an amazing tool for individuals with disabilities to have their rights protected and respected by all kinds of institutions. However, there is one type of institution that may be able to avoid the requirements set by the ADA: State Public Colleges and Universities.
Knowing how expansive the ADA is, especially with the addition of the ADA Amendments Act in 2008, it may surprise some to learn that it still has a serious limitation to overcome. The limitation centers around a novel legal issue that courts have consistently found ways to avoid and “punt” away. That issue centers around the authority of the ADA in Title II, applying to State and local government entities. Courts have articulated the issue as whether Congress may validly abrogate sovereign immunity with respect to an action that violates Title II of the ADA. Before we tackle that question, let’s discuss an example.
John Doe, who has lived in New York his entire life, is a student at a SUNY school who has been diagnosed with a disability that severely inhibits his mobility. Does his school have an obligation to make reasonable accommodations to ensure John is not denied or excluded from services, programs, or activities offered to other students under the ADA? Absolutely! … Right? … Well, not necessarily. In this scenario, the ADA faces a massive obstacle to overcome, State immunity.
Under the Eleventh Amendment, a State and its officials (when acting in their official capacity) cannot be sued in an action for damages in federal court by one of its own citizens. The only way to bypass that shield is if the State has consented to waive its sovereign immunity, or if Congress waives it for them under their Constitutional authority. As you may expect, the State places important limitations on when it voluntarily removes its shield from law suits. As such, the Eleventh Amendment immunity is most commonly removed by Constitutional authority, namely, the Due Process Clause of the Fourteenth Amendment, or through the Spending Clause (we will discuss both later).
Title II of the ADA was enacted by Congress to protect individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. In order for this act to be able to function, it must overcome the immunity we just discussed. In other words, Congress must have the authority to waive the Eleventh Amendment Immunity. That is where the novel legal issue and uncertainty come into play.
New York courts have disagreed as to whether Congress validly waived Eleventh Amendment State immunity under Title II of the ADA, and if so, to what extent. On the one hand is a 2nd Circuit case, Garcia, where the Court held that Congress exceeded its authority under the Fourteenth Amendment by enacting Title II, but reserved its conclusion by noting that the Act could be successful in certain situations where discriminatory animus or ill will could be shown by the offender. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001). The Supreme Court weighed in five years later in United States v. Georgia, 546 U.S. 151 (2006). In that case, the Supreme Court agreed that Congress had exceeded its authority, but disagreed with the Garcia decision insofar as stating that Title II only “creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment.”
The Supreme Court decision makes sense because, as we just discussed, the 14th Amendment can waive State immunity. Although the Fourteenth Amendment Due Process Clause and Equal Protection Clause offer basic rights to Americans, the question remains as to what the implications are for disabled individuals seeking protection and recognition of their disability? The reality is that many claims under the Title II of the ADA cannot independently be premised on conduct that violates the Fourteenth Amendment. The problem is that education is not a fundamental right for purposes of Title II. Press v. State Univ. of N.Y., 388 F. Supp. 2d 127, 135 (E.D.N.Y. 2005). Therefore, discriminating against someone with a disability and infringing their right to education, does not trigger the Fourteenth Amendment waiver of State immunity. Id.
So what happens to John Doe at the SUNY School who participate in the program and services he is paying for? The Supreme Court in Georgia and the 2nd Circuit in Garcia fail to answer that question. Continued uncertainty has led to a disagreement among New York Courts in their assessment of Congress’s authority to remove the immunity shield of States under Title II of the ADA. In fact, some district courts apply the Garcia standard while others adopt the approach in Georgia.
In a very recent 2nd Circuit case, the Court had another chance to address the issue, but instead stated: “[w]e express no position as to the question of whether Congress has validly abrogated sovereign immunity in the context of discrimination in access to public education on the basis of disability.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 193-195 (2nd Cir. 2015).
One may ask, how is this possible and why has this not been a source of public debate? I believe there are two reasons. First, is because of Section 504 of the Rehabilitation Act. The Rehabilitation Act has been described by courts as imposing identical requirements and providing identical remedies as the ADA. Ross v. City Univ. of N.Y., 211 F. Supp. 3d 518, 525 (E.D.N.Y. 2016). However, the biggest difference between the two is how they attack Eleventh Amendment immunity.
Unlike the ADA, the Rehabilitation Act removes the immunity shield via the Spending Clause authority that Congress has. The Spending Clause is a simple concept: Congress provides funds to the State entity and may require that the State, as a condition of receiving those funds, waive their sovereign immunity. Ross v. City Univ. of N.Y., 211 F. Supp. 3d 518, 526-527 (E.D.N.Y. 2016). Therefore, any public school that receives funding from the Federal Government, waives their immunity from suit under the Rehabilitation Act and the ADA claim becomes an unnecessary additional claim that courts refrain from deciding on.
The second reason for the lack of public concern is that almost all State Universities have something resembling an Office for Disability Services and/or other programs that actively support the rights of disabled individuals. These services are designed to address ADA and Rehabilitation Act claims before they materialize. Whether it be because the school is subject to the Rehabilitation Act, because they realize that students are essentially valuable paying customers, or that they recognize the need to help these people, that is up for debate. Regardless, the uncertainty regarding the ultimate authority of the ADA over these types of institutions remains.
Robert Marks is a law clerk in the Litigation Department at Boylan Code LLP and a recent graduate of the Syracuse College of Law.
To read the published article in the Daily Record, click here.