Today’s case, Glueck v. National Conference of Bar Examiners illustrates the perils of proceeding pro se. The case is certainly worth appealing to the Fifth Circuit. However, the plaintiff is now proceeding with a constitutional challenge to various statutes, which I don’t think will go anywhere. At any rate, the case bears discussing and it also bears discussing why I believe the case should be appealed. So, the blog entry as usual is divided into categories and they are: facts; court’s reasoning national conference of bar examiners; court’s reasoning title II; court’s reasoning title III; why the case should be appealed; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts:

The plaintiff is a third-year law student with ADHD, reading and comprehension impairments, and dyslexia. He received accommodations while pursuing a graduate degree and on law school exams. However, when it came time to take the multistate professional responsibility examination, the national conference of bar examiners, which administered the exam, denied his request for time-and-a-half, audio CD, and a non-Scantron answer sheet. Nevertheless, he took the exam anyway and failed. He ran into a similar issue with the Texas bar, which also denied him accommodations. He brought suit under titles III and V against the National Conference Of Bar Examiners and under title II,III, and V against the Texas Board of Law Examiners.

 

II

Court’s Reasoning against National Conference of Bar Examiners

 

With respect to the interference and retaliation claims, the court said that plaintiff made no factual allegations as to how the National Conference Of Bar Examiners retaliated or interfered with his exercise or enjoyment of his rights. For that matter he didn’t state any allegations at the Hollywood discriminated against because he opposed any act or practice of the National Conference Of Bar Examiners. Accordingly, the complaint failed under Iqbal and Twombly. However, the court said that the §12189 (the portion of the ADA that goes to discrimination in standardized examinations), claim survived.

III

Court’s Reasoning Against the Texas Board of Law Examiners

  1. The right to practice law is not a fundamental right and so Tennessee v. Lane does not apply.
  2. Reickenbacker v. Foster, 274 F.3d 974 (5th 2001), is the applicable case. That case said that title II of the ADA outside of fundamental rights, exceeds the enforcement clause of the U.S. Constitution and therefore, does not forcibly abrogate sovereign immunity.
  3. The court acknowledged the issue of sovereign immunity and title III is an open question since title III cases usually involve private entities. Nevertheless, the possibility of sovereign immunity does apply since a governmental entity is administering the exam. Again, since a fundamental right is not involved, title III of the ADA goes beyond the enforcement clause of the 14th amendment, and therefore, sovereign immunity cannot be forcibly waived.
  4. The court allowed the title V claim to proceed saying that it was not aware of any case law saying that Congress invalidly abrogated sovereign immunity in enacting title V of the ADA

IV

Why the Case Should Be Appealed

  1. The court’s reliance on Reickenbacker makes little sense. That case was decided three years before Tennessee v. Lane and five years before United States v. Georgia.
  2. Tennessee v. Lane used a variety of language, fundamental right being just one of them, to talk about how persons with disabilities were in a higher equal protection class when it came to the court system. At no point did it say that the decision only applied to fundamental rights. In fact, it said title II sovereign immunity with respect to persons with disabilities was on a case by case basis.
  3. No mention whatsoever is made in the opinion of United States v. Georgia, which held that if a situation rose to the level of a constitutional violation, then sovereign immunity was waived, but that case specifically did not address the question as to what would happen if there was disability discrimination that did not rise to the level of a constitutional violation. There are many cases out there (see ¶ 1 of takeaways § below), that say sovereign immunity has been validly waived even though fundamental rights are not involved.

V

Takeaways:

  1. The case should definitely be appealed. The court’s analysis of Tennessee v. Lane and its omission of United States v. Georgia are particularly troublesome. Also, sovereign immunity can be forcibly waived even where fundamental rights are not involved, such as in this case: Association for Disabled Americans v. Florida International University, 405 F.3d 954 (11th 2005). Finally, sovereign immunity does not apply to injunctive and declaratory relief actions.
  2. To my mind, this was a case that the plaintiff should have been able to get pass sovereign immunity on, or at least make a solid argument on. What it illustrates is the danger of proceeding pro se. Considering the nature of my practice, I am fully aware of how difficult it is for persons with disabilities to get competent representation considering the resources they often lack. That leaves persons with disabilities having to turn to law schools, non-profit disability rights organizatons, protection and advocacy organizations (which vary widely in what they do and how they do), and pro bono departments of large firms to vindicate their rights.

3 Responses to Sovereign Immunity and Title II and III of ADA: This Case Should be Appealed

Great blog, as usual. I was under the impression that in the ADA context sovereign immunity was a dead issue. Interesting to see a judge willing to consider the validity of the waiver.

There is a brand new (i.e. yesterday) decision from the W.D.Oklahoma, Reininger v. State of Oklahoma (No. CIV-16-1241-D) holding that the 10th amendment is validly abrogated in a Title II case relating to the Oklahoma legislature’s refusal to provide captioning for Internet broadcasts of legislative proceedings. Stein & Vargas, the NAD, and the Oklahoma Disability Law Center represent the plaintiff.

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