Recently, I talked about a decision from the 11th circuit which displayed a very good understanding of disability, in that case deafness, in a way that you do not often see in judicial decisions. Oftentimes when you are reading a case, you wonder whether a judge gets “disability,” so to speak. This particular blog entry is about one of those cases where you do wonder. In particular, consider the following statement: “the district court properly found that legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.” Such a statement seems to suggest that a person with a disability who receives accommodations is receiving an unfair advantage by getting the accommodations. Such is not the case, as I have mentioned in my book over the years, a reasonable accommodation is anything that gets the person with a disability to the same starting line and is not about giving a person with a disability an unfair advantage.
In case you were wondering where the quote above came from, it comes from the case of Turner v. Council of State Boards of Nursing, Inc., 2014 WL 1303366 (10th Cir. April 2, 2014-an unpublished decision). As usual, the entry will be divided into four sections: facts, issues, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.
Turner is a person with dyslexia and one of the common side effects of dyslexia is test taking anxiety. As a result of his dyslexia, Turner was given accommodations when taking exams in school, which included extra time, a private room, and someone to read the questions to him when necessary. Once he received his college nursing degree, he contacted the board to find out if he could take the licensing exam with those accommodations. He spoke to an individual who said that his request would be taken care of if he provided proof with school records that he suffered from dyslexia, confirmed that his college had given him the same accommodations he was seeking, and furnished a letter stating the specific accommodation requested. He then later applied to take the licensing exam, but the application did not provide a place to indicate the need of or for requesting accommodations. He contacted the individual at the board that he’d been talking to and was told that if he took the exam with accommodations and passed it, he would receive a restricted unlimited license. A month later when he tried to contact the individual again, he was told that the individual he had been talking to no longer worked at the board. Importantly, the plaintiff never alleged that he ever submitted to the board materials that the former employee of the board told him was necessary to obtain accommodations for the exam. Nevertheless, he took the the exam without accommodation and failed it. Also, he never alleged that dyslexia or resulting test taking anxiety either caused or contributed to his failure, but rather there was a problem with the administration of the specific test. After failing the exam, he then contacted both the board and the entity administering the test to see if he could appeal his test with both of them telling him that there was no point in appealing because no test result was ever changed. He then sued the board for damages alleging violations of title II of the ADA. He also sued the Council, which administers the test, alleging violation of title III of the ADA.
1. Did Congress validly abrogate the state’s sovereign immunity under title II of the ADA with respect to claims involving professional licensing examinations?
2. Can he proceed under Ex Parte Young?
3. Did the plaintiff allege enough facts to allow the case against the Council, which administers the exam, to go forward?
1. The court relied heavily on the case of Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012), a case involving a physician whose medical license was revoked based on his mental condition.
2. As we have discussed previously, sovereign immunity cases, come down to what equal protection tier a person with a disability falls into. We know with respect to employment, that persons with disabilities fall into a rational basis class as a result of Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). We also know that persons with disabilities fall into a higher class with respect to the fundamental right of access to the courts as a result of Tennessee v. Lane, 541 U.S. 509 (2004). Finally, we also know that sovereign immunity is waived if the allegations reach a level of a violation of the constitutional right, such as equal protection, under U.S. v. Georgia, 546 U.S. 151 (2006). The court relying on Guttman reiterated the view they expressed there that: the constitutional right plaintiff was asserting was of a person with a disability’s right to practice in their chosen profession, which does not merit heightened scrutiny; Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA; and with respect to the class of cases involving disability discrimination in professional licensing, the title II remedy was not congruent and proportional to the harm being redressed. In plain language, once a person with a disability is put in the rational basis class, everything else follows. That is, the title II scheme is simply too comprehensive to remedy harms of a person in the rational basis class, and accordingly, the defense of sovereign immunity prevails.
Also, I don’t know if it is dispositive that Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA. It simply could have been that it never occurred to Congress to explore that. We do know from our own blog, such as the blog entry dealing with the Louisiana State Bar, that some states have engaged in what is arguably irrational discrimination in professional licensing.
3. Legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.
As mentioned above, this statement fundamentally misunderstands what a reasonable accommodation is. That is, a reasonable accommodation is something that gets a person with a disability to the same starting line. It is not something that gives a person with a disability an unfair advantage. The court’s statement by itself would seem to suggest that either nobody should be allowed to take an exam with accommodations or that anybody who does take an exam with an accommodation gets an automatic license restriction. Again, that’s not right. The issue should be can the person perform the essential functions of the job of that the license grants him or her to do with or without reasonable accommodations. That is, in this case, could the person perform the essential functions of being a nurse with or without reasonable accommodations. That would mean knowing the essential functions of the job of being a nurse. It also means knowing whether any accommodations would either constitute an undue hardship/undue burden either in the financial or logistical sense. Finally, it would also mean knowing whether the person is a direct threat to himself or others.
1. The Ex Parte Young doctrine is an exception to 11th amendment immunity that permits suit against state officials seeking to enjoin alleged ongoing violations of federal law. It is based on the idea that when a federal court commands a state officials to do nothing more than refrain from violating federal law, he or she is not the state for sovereign immunity purposes.
2. An Ex Parte Young complaint must allege an ongoing violation of federal law and seek relief that is prospective.
3. Plaintiff did not allege any ongoing policy or conduct by the state defendants that violated the ADA, rather the allegations related solely to past conduct. Plaintiff did not ask for prospective relief, such as an order directing the defendant to admit him to retake the examination with accommodations. In fact, his counsel told the magistrate judge in an email following a scheduling conference that the plaintiff did not wish to take the exam again.
4. The amended complaint did not specify what declaratory and/or injunctive relief was being sought. Even if the plaintiff sought an injunction requiring the state defendant to allow them to appeal his failing test score, that relief would have not been prospective rather it would only have remedied the past alleged wrong and not prevented a future violation. Therefore, it would not fall within Ex Parte Young.
The court dismissed the claim against the Council as well because the plaintiff could not show that the discrimination he suffered was caused by his disability.
1. If professional licensing matters fall within the rational basis class with respect to persons with disabilities, that means that the person with a disability that suffers discrimination in violation of title II of the ADA is going to be restricted to claims for prospective injunctive relief, and it must be clear from the complaint what prospective relief is being sought.
2. There are cases out there that say the receipt of federal funds waives sovereign immunity for purposes of the Rehabilitation Act. However, pursuing a Rehabilitation Act claim means that the person with a disability would have to show that they were discriminated against solely by reason of the disability, rather than by reason of disability (the ADA standard under title II, which may or may not be the same thing as the Rehabilitation Act standard). That may be a very tough road to go on because when it comes to licensing matters the disability may play just a part in the ultimate decision of the licensing authority.
3. Since the relief requested must be for prospective injunctive relief, a plaintiff is going to be much better off filing suit earlier than later. That is, once a plaintiff realizes that there may be an automatic restriction because of taking the test with an accommodation or realizes where the professional licensing process is headed by reason of/or on the basis of his or her disability, it may make sense to bring a title II/Rehabilitation Act/Ex Parte Young claim for injunctive relief sooner than later so that the court can be convinced that the relief is prospective and not reaching back into the past. On a policy level, one wonders about forcing a plaintiff into this kind of mode because it means that the chances for completing the matter internally in a collaborative way goes down rather than increases.
4. The portion of Turner talking about how a rational basis exists to impose restrictions whenever a person takes a test with accommodations is extremely problematic if there is an interest in diversifying a group of professionals to include persons with disabilities. It also may be a view that the Department of Justice would not agree with if their reaction to the State Bar of Louisiana is any indication. Thus, if a licensing authority does have a practice of imposing restrictions whenever a person takes a test with accommodations they may want to go very slow with respect to that practice and probably even reconsider it despite what this opinion seems to suggest.
5. In dealing with an ADA/Rehabilitation Act case, you always have to be cognizant of causation. Keep in mind, that causation between title III of the ADA and title II of the ADA are arguably not the same. Also, causation with respect to title II of the ADA and the Rehabilitation Act may or may not be the same (an argument on that can be made either way).
6. This decision is unpublished and so you have to check your rules as to the precedential value of the decision. That said, the decision does rely heavily on a published decision of the 10th circuit, Guttman, 669 F.3d 1101 (10th Cir. 2012).