Graduated Student and Sovereign Immunity

As promised, I am back. For my Jewish brethren, I want to wish everyone a happy new year and a good fast, Yom Kippur starts tonight. Today’s case comes to me courtesy of my friend and colleague from Dallas, Texas, Richard Hunt passed along the case of Ross v. City University of New York, 2016 WL 5678560 (E.D. N.Y. September 29, 2016). It has two issues that are of interest. First, does a university potentially have to accommodate a student that has graduated who desires to return to the campus to participate in a variety of activities? Second, does the receipt of federal funds waive sovereign immunity per the Rehabilitation Act? Not addressed in this opinion is whether a public place of higher education forcibly waives its sovereign immunity with respect to a title II ADA case. For the answer to that question, you want to check out this case, Toledo v. Sanchez, out of the First Circuit.



The plaintiff while attending Queens College as a student tried to access numerous architectural features but encountered numerous barriers that hindered her ability to access its services and programs offered there. Nevertheless, she graduated. She resides in Queens County and as an alumni and community member,  plans to return to Queens College in the near future to utilize a variety of programs and activities administered there but could not do so due to a variety of physical barriers to access. She sued seeking: a declaratory judgment that a violation of title II of the ADA and §504 the Rehabilitation Act existed; an injunction requiring the University to make all readily achievable alterations; an award of compensatory damages; and attorneys’ fees and costs.  The City University of New York defended on two grounds. First, the plaintiff lacked standing since she was no longer a student there. Second, the suit was precluded by sovereign immunity.


Court’s Reasoning regarding Standing and Prima Facie Case

  1. In an ADA action seeking injunctive relief, the Second Circuit has found standing where: the plaintiff alleged past injury under the ADA; it was reasonable to infer the discriminatory treatment would continue; and it was reasonable to infer, based upon the past frequency of plaintiff’s business and the proximity of the University to plaintiff’s home, that plaintiff intended to return to the University.
  2. Although graduation may reduce frequency of visit to a university, a student’s graduation alone does not necessarily preclude standing to bring a title II ADA or a Rehabilitation Act claim against the University.
  3. The complaint included concrete allegations of past injury.
  4. There was no indication from the complaint that the University intended to remedy the alleged violations. Therefore, it was reasonable to infer that those conditions will continue to persist.
  5. Although no longer a student there, the plaintiff lives in close proximity to the University and alleged an intent to return to campus as an alumna for programs and activities and to attend public events. Indeed, she already returned to the University Center post graduation for a Thanksgiving potluck and encountered barriers to access.
  6. The argument of the defendant that even if the plaintiff has standing, she lacks standing to seek an injunction for the entire campus doesn’t work because the argument challenges the scope of the relief sought not whether she has standing to sue in the first instance.
  7. To establish a prima facie case of violating the ADA or Rehabilitation Act, a plaintiff has to show: she is a qualified individual with a disability; the University is an entity subject to the ADA and the Rehabilitation Act; plaintiff was denied the opportunity to participate in or benefit from the University’s services, program, or activities, or the university otherwise discriminated against her by reason of her disability.
  8. Plaintiff alleged numerous architectural barriers that would prevent her from having meaningful access to the University’s services and activities including: inability to access certain areas of the main library; difficulty in using bathroom due to inadequate door width, sinks with exposed pipes, absent grab bars, and amenities too high off the floor; inability to access emergency kiosks on campus due to lack of clear floor space; inability to access campus shuttle buses because they lacked the ability to serve passengers with disabilities; an inability to access seating in the student union or dining hall.


Sovereign Immunity with Respect to the Rehabilitation Act.

  1. Both parties to the litigation agreed that the University consented to be sued under the Rehabilitation Act because it receives federal funding. That is, Congress has the ability to require that the states, as a condition of receiving those funds, waive their sovereign immunity.
  2. The Second Circuit has held that §504 the Rehabilitation Act constitutes a clear expression of congressional intent to condition acceptance of federal funds on the state’s waiver of its 11th amendment immunity.


Sovereign Immunity with Respect to the ADA

  1. While the United States Supreme Court has held in U.S. v. Georgia, that Congress forcibly waived sovereign immunity of the states under title II of the ADA where those claims also violated the 14th amendment to the U.S. Constitution, it specifically left open the question whether sovereign immunity was forcibly waived with respect to violations of title II of the ADA that not rising to constitutional violations, and the Second Circuit has not spoken on the matter.
  2. Since sovereign immunity does not bar claims under the Rehabilitation Act, the court has subject matter jurisdiction over the action regardless of whether University is immune from the ADA claim. Furthermore, the remedies available to the plaintiff under title II of the ADA and the Rehabilitation Act are identical. Therefore, as a practical matter, the case proceeds on the same course regardless of whether the University may later be found immune from the plaintiff’s ADA claim and the motion to dismiss based upon sovereign immunity fails.





  1. One lesson from this case is that if you are suing a public college or University you want to allege both a §504 of the Rehabilitation Act claim as well as a title II of the ADA claim so that if for some reason the title II of the ADA claim gets knocked out, you still have the Rehabilitation Act claim.
  2. As the court mentioned, and we have noted before, the remedies for violating II of the ADA are the same as those for violating §504 the Rehabilitation Act. However, as we have also noted before, causation is different (Rehabilitation Act being “solely by reason of,” and the ADA being, “by reason of). Accordingly, on the plaintiff’s side, it still pays to fight to include the ADA claim, and using Toledo v. Sanchez would the way to go there.
  3. Another point with respect to causation, I am beginning to see cases confuse causation between §504 the Rehabilitation Act and title II of the ADA both ways. That is, I am seeing cases that say the standard for causation for both is “solely by reason of,” and this case talks about the standard for both being, “by reason of.” Both points of view are incorrect, as mentioned above.
  4. You be surprised who makes the claim that if a person is not a student, no obligations to accommodate the person with a disability exists. This case says that standing is the key and not whether a person is still enrolled is not the question.


Does the Department Of Justice Have Standing to Sue or Intervene to Enforce Title II of the ADA

Before we get started on the blog entry of the day, a couple of housekeeping matters are in order. First, you may be wondering why my website/blog site and my professional email went down last week. The company that was hosting my website was bought out by another company, and there were some mechanical things that had to happen in order to make the switch. It was my understanding that I had some more time to do those things, but things moved faster than I thought. At any rate, the website and professional e mail are back up. My site was never suspended, rather that was the result of the site being linked to the old company when it is actually being hosted by a new company. Second, next week is the Jewish holiday of Rosh Hashanah, and I am going to have family in for that week as well. So, I want to wish all of my Jewish brethren reading this blog a healthy and happy new year. Also, want to let you know that you shouldn’t be surprised if you don’t see a blog next week.

This week’s blog entry explores the issue of whether the Department of Justice has standing to sue to enforce title II of the ADA either on its own behalf or in intervention. It is actually two separate cases. As is usual, my blog entry is divided into categories: does the DOJ have standing to sue on its own behalf to enforce title II of the ADA?; if DOJ intervenes rather than sues on its own behalf, does that make a difference?; and takeaways. The reader is free to focus on any or all of the categories.



Does the DOJ Have Standing to Sue on Its Own Behalf to Enforce Title II of the ADA?

In C.V. v. Dudek, the Southern District of Florida in an opinion by Judge Zloch was faced with the question whether DOJ had standing to sue on its own behalf with respect to a claim of violation of title II when it came to the State of Florida’s administration of its Medicaid program with respect to how it treated medically complex and fragile children. Judge Zloch on his own motion raised the question of whether DOJ had standing to sue on its own behalf to enforce title II of the ADA. His conclusion was that no such standing existed. He reasoned as follows:

  1. The Supreme Court of the United States has made it clear that when an agency acting in its governmental capacity is meant to have standing, Congress says so.
  2. Title II’s enforcement section refers to certain remedies, procedures and rights to any person alleging discrimination on the basis of disability in violation of §12132 of the ADA. When looked at side to side with the enforcement provisions of title I and III of the ADA, title II does not confer standing on the Attorney General and the department is not a “person alleging discrimination.”
  3. Unlike title II of the ADA, where the enforcement provision refers to “persons alleging discrimination,” title I and III of the ADA quite explicitly confer standing upon the Attorney General to initiate litigation.
  4. With respect to title I, it provides that the powers, remedies and procedures set forth in title VII of the Civil Rights Act of 1964 are the powers, remedies, and procedures provided to the EEOC or to any person alleging discrimination on the basis of disability in violation of any provision of the ADA concerning employment. Further, title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief.
  5. With respect to title III of the ADA, the ADA specifically grants the Attorney General authority to commence a civil action in any appropriate United States District Court if the Attorney General has reasonable cause to believe that: any person or group of persons is engaged in a pattern or practice of discrimination; any person or group of persons had been discriminated against and such discrimination raises an issue of general public importance.
  6. When Congress confers standing on a particular actor in one section of a statutory scheme, but not in another, which is the case with the ADA, that silence has to be read to preclude standing.
  7. In a legislative scheme of the sort like the ADA, when Congress wants the Attorney General to have standing, it says so.
  8. The Department of Justice is not a “person alleging discrimination,” as there is a long-standing interpretive presumption that “person,” does not include the sovereign. This particular principle is not just limited to the regulatory sweep of the statute, but also extends to those provisions defining who may be plaintiffs under the statute and those who have standing. Therefore, absent an affirmative showing of statutory intent to the contrary, “person,” does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.
  9. Title I of the ADA extends remedial authority, including authority to commence civil suit, to the EEOC, the Attorney General, or to any person alleging discrimination on the basis of disability. On the other hand, title II grants remedial authority only to “persons alleging discrimination.” Therefore, if the Attorney General is not a “person,” under title I of the ADA, then the Attorney General is not a “person,” under title II of the ADA either.
  10. The court disagreed with the Department of Justice’s view that whether the Attorney General was a person under the statute is besides the point, rather the court believed that who is a person under the statute is precisely the point. That is, qualified individuals with a disability are the intended beneficiaries of title II of the ADA, and private parties alleging discrimination is the mechanism by which those guarantees are enforced. The court is simply not free to ignore the statutory text to come up with a contrary conclusion.
  11. The normal rule of statutory interpretation is that identical words in different parts of the same act are intended to have the same meaning.
  12. The cardinal rule of statutory interpretation is that no provision should be construed to be entirely redundant. If the Attorney General were a “person alleging discrimination,” under title II of the ADA, then any reference to her in title I would be redundant. If not redundant, the term “person,” would have different meanings in title I and II, which to the court’s view, is absolute nonsense. That is, in both title I and title II of the ADA, the Attorney General it is not a, “person alleging discrimination.”
  13. Another Canon of statutory construction, expressio unius, also supports the view that a “person,” under title II of the ADA does not include the Attorney General. This particular Canon of statutory construction says that the provision of one method of enforcement suggests that Congress intended to preclude others. By authorizing suits by individuals, Congress intended to bar administrative agencies, such as the Department of Justice, from enforcement by litigation.
  14. Title II’s remedial scheme contains no authority for the Department of Justice to commence civil litigation. That remedial scheme incorporates remedies under §504 of the Rehabilitation Act of 1973 and makes them available to any person alleging discrimination under title II of the ADA.
  15. Remedies for title II of the ADA are tied into the Rehabilitation Act, which is tied into title VI of the Civil Rights Act of 1964. Under title VI, there is no statutory cause of action for Attorney General enforcement and therefore, none exist under title II of the ADA. Title VI does not authorize suits by the Attorney General, but instead allows enforcement of conditions attached to federal funding by any other means authorized by law, which are typically actions brought by the DOJ for breach of contract.
  16. Congress did not incorporate all remedies, procedures, and rights available under title VI of the Civil Rights Act, rather it incorporated only those remedies, procedures, and rights that may be exercised by a “person alleging discrimination.”
  17. Title VI of the Civil Rights Act, the Rehabilitation Act, and title II of the ADA each authorize suits by private individuals, including those for injunctive relief and damages.
  18. The ADA’s structure as a whole supports the conclusion that title II of the ADA incorporates only enforcement rights exercised by private parties. In particular, title I of the ADA bestows specific rights on the EEOC, the Attorney General, as well as any person alleging discrimination. Similarly, in title III of the ADA, specific provisions exist for the Attorney General to intervene in litigation at the court’s discretion. As is the case in title I, title III of the ADA quite explicitly sets forth the who and how of its remedial scheme.
  19. Considering how precisely who may be involved in suits are crafted under title I and title III of the ADA, title II’s failure to name the Attorney General or her rights under title VI is hardly an afterthought.
  20. The decision to limit enforcement of title II to suit by private parties makes a lot of sense and is not a surprise. Title II reaches into many areas traditionally the province of the states. Therefore, that imposes significant federalism costs by subjecting state run public services to federal judicial review. Title II by specifically limiting itself to private enforcement, avoids compounding those federalism costs by requiring judicial review be at the behest of recipients of those public services and not the federal government.
  21. While it is true that 12134(b) of the ADA directs the Attorney General to promulgate regulations implementing titles II with an instruction that such regulations are consistent with the Department of Health, Education, and Welfare’s regulations implementing the Rehabilitation Act. That consistency mandate does not incorporate the Rehabilitation Act’s regulations into the ADA or direct the Attorney General to promulgate identical regulations for title II of the ADA. That means the consistency mandate is to ensure that title II’s standards are analogous to those under the Rehabilitation Act. That is quite a different thing than saying that the regulations are directed to include the Rehabilitation Act’s remedies or go so far as to adopt them.
  22. The attorney fees provision of title I or title III of the ADA does not help the Department of Justice as those provisions are limited to those titles.
  23. The DOJ argument that without recourse to judicial remedies, the federal government has no effective ability to bring about compliance ignores that the proper question is whether the federal government is the proper party to affect compliance with title II of the ADA at all. Title II of the ADA, like other civil rights statutes, is using the concept of a private Attorney General (private parties empowered by a fee shifting provision), to affect compliance through litigation.
  24. In a footnote, the court said that Title VI of the Civil Rights Act’s remedies are not superfluous because title II of the ADA only incorporates from title VI of the Civil Rights Act those rights may be exercised by a private party.
  25. The decision whether to utilize private enforcement or public enforcement lies with Congress alone since it is the proper body to weigh the benefits and burdens associated with each kind of enforcement regime.
  26. There is nothing absurd in the view that Congress might elect to withhold from the federal agency a boundless discretion to sue state and local governments.
  27. The Department of Justice does have the ability under a variety of other laws to commence litigation, though admittedly those laws may set high standards for such involvement, such as seen in the civil rights of institutionalized persons act for example). Recognizing the DOJ authority to bring suit under title II of the ADA would allow for an end run around the civil rights of institutionalized persons act more stringent requirements.
  28. A statute’s purpose may not be used to add features that achieve the statutory purpose more effectively, rather that is for Congress to do.
  29. While the Attorney General does not have the ability to bring suit under title II of the ADA, it was empowered by the ADA to set the regulatory standards defining disability discrimination under title II. No role could be more central to a statute’s enforcement. In this case, the court borrowed from a football analogy by saying that the Department of Justice is demanding not only to draw up the plays, but to carry the ball as well. That is, the withholding of agency authority is as significant as the granting of and the court had no right to play favorites between the two.
  30. The DOJ view that appropriate action includes resort to department initiated litigation failed to distinguish between the concept of the scope of an agency’s authority and the scope of a court’s jurisdiction.
  31. Court’s owe no deference to an agency’s understanding of a court’s jurisdiction.
  32. Language in regulations may invoke a private right of action that Congress statutory text created, but it cannot create a right Congress has not created. That is, administrative agencies may not confer standing on private plaintiffs by regulation nor may they confer standing upon themselves. An administrative agency’s ability to seek judicial relief has to come from the statute itself. So, it is inappropriate for a court to defer to an agency’s position on whether the agency has standing to bring suit.
  33. The ADA is neither silent nor ambiguous with respect to the litigation authority of the Department of Justice. Title I and III of the ADA allow for DOJ involvement in explicit terms, while title II of the ADA provides otherwise.
  34. Contrary to the DOJ view, it is extremely significant that title II of the ADA fails to mention the Attorney General in its enforcement section. Title I and title III mention the Attorney General because the Attorney General has different rights and responsibilities than private parties under those titles. There is no reason to assume that Congress would be so deliberate in title I and title III, which sets forth both the what and whom, and yet so reckless in title II, which only sets forth the what. A court must focus on permissible statutory constructions and not ingenious academic exercises of what is possible.
  35. A cause of action brought by the Department of Justice must come from title II itself.
  36. An executive order allowing the Attorney General to fully enforce title II of the ADA is of no help for two reasons. First, it isn’t for the executive branch to say that it has the authority to enforce title II through litigation. Second, the executive order refers to cooperative efforts with states in alternative dispute resolution, not litigation.
  37. In another footnote, the court refuses to look at legislative intent because the concept as a practical matter doesn’t exist, and certainly not in the places that court’s often look to.
  38. In another footnote, the court notes that while it is absolutely true that the Department of Justice has entered into several settlement agreements and consent decrees addressing title II violations, that has nothing to do with whether the statute authorizes the department to sue.
  39. Constitutional principles of federalism erect limits on the federal government’s ability to direct state officers or interfere with the functions of state governments. In areas where Congress grants the power to alter federal-state relations, the Supreme Court requires that such intention has to be unmistakably clear. Similarly, when conditions are attached to federal funding or sovereign immunity is forcibly waived, such intention must be unequivocal.
  40. When Congress has authorized litigation by federal agencies against state and local government, that authorization has come in clear terms and often with strict conditions.



So, No Standing for DOJ to Sue on Their Own Behalf, but What about Intervention?


In Steward v. Abbott, the Department of Justice did not bring suit on its own behalf, but rather intervened in the litigation. Does intervention v. bringing suit on their own behalf make a difference? Judge Garcia of the United States District Court of the Western District of Texas says it does for the following reasons:


  1. An intervenor seeking no relief beyond that sought by the plaintiff in the underlying case does not need to possess independent standing. In that situation, the intervention is into a subsisting and continuing article III case or controversy and the ultimate relief sought by intervening party is also being sought by at least one subsisting party having standing to do so.
  2. The complaint of the Department of Justice in this case is seeking injunctive relief and declaratory relief that is substantially the same ultimate relief sought by the original plaintiffs in the case.
  3. Where intervening plaintiffs seek the same ultimate relief as the original plaintiffs but advance a different legal theory, the intervening plaintiff’s create no jurisdictional obstacles for the court.
  4. Providing a case or controversy exists, it is immaterial to the court’s jurisdiction whether an intervening party, proceeding alone, can satisfy the requirements of article III.
  5. A governmental agency’s capacity to intervene and raise claims within the scope of the original plaintiff’s complaint is not limited to the agency’s capacity to institute an independent action on its own behalf.
  6. The whole idea of adding Federal Rules of Civil Procedure 24 (b)(2) was to go in the direction of allowing intervention liberally so that governmental agencies and officers seeking to speak for the public interest could do so.
  7. The interests of the United States in the enforcement of title II of the ADA and the Rehabilitation Act provide a sufficient basis for the United States to raise claims that do not exceed the scope of the original complaint, as is the case here. Accordingly, it isn’t necessary to consider whether the United States could go further than that.
  8. In a footnote, the court said that Texas acknowledged that title II of the ADA and the Rehabilitation Act authorized the Attorney General to sue because: United States has an interest in title II of the ADA; both title II in the Rehabilitation Act allow for enforcement determination or refusal to grant federal funding or by any other means provided by law; and courts interpret “any other means provided by law,” to authorize DOJ enforcement by federal court action.




  1. I would expect that every time the Department of Justice either brings a suit on its own behalf or intervenes to enforce title II of the ADA, V. v. Dudek will be trotted out by the public entity being sued by the Department of Justice. Ultimately, one wonders whether a Circuit Court split will not occur at some point in time and this will not go before the United States Supreme Court, though admittedly, this could be years down the road. Alternatively, Congress could amend title II of the ADA to specifically allow for Attorney General enforcement, but considering how polarized politics is in America at the moment and the likely control of Congress being split after November, such an amendment would be extraordinarily unlikely.
  2. If indeed private attorney general is the only way to go under title II of the ADA, things just got a lot more complicated for persons with disabilities. You see many private attorneys working in title I of the ADA and you see more private attorneys of late working in title III of the ADA. With respect to the latter, it used to be mainly disability rights groups doing title III litigation, but now you are seeing more private attorneys get involved. It is far less typical to see many private attorneys involved in title II of the ADA cases. Even in those situations, having DOJ on board can even up the odds for a plaintiff. On an economics of law practice level, that makes sense for two reasons: Damages for title II of the ADA must satisfy a deliberate indifferent standard; and often times it isn’t damages that a title II plaintiff is after. Accordingly, that makes contingency fee litigation very difficult to assess accurately. All that said, if it is strictly a matter of private attorney general enforcement for title II matters, one wonders whether attorneys affiliated with the National Employment Lawyers Association may want to think about branching out their practice. After all, they are used to taking on governmental entities. Admittedly, the rules are different as are the standard for damages, but with proper training maybe it could work.
  3. The footnote in Steward saying that Texas admitted that the Department of Justice had the ability to sue on its own behalf is interesting considering such an omission may not have been necessary in light of C.V. (see §I 18 for example above). Also, the reasoning of this footnote was specifically rejected by the C.V. court (see §I 15 above).
  4. With respect to DOJ intervening in a suit, the two cases discussed here are in conflict. Compare §I 18 above with §II.
  5. As it currently stands, the person does not have to exhaust administrative remedies before proceeding with a title II or title III suit. Of course, if this case becomes the law of the land, there would be absolutely no reason to file with the DOJ at all with respect to a title II matter. Also, if this decision becomes the law of the land, how DOJ decides to spend its resources and set up its bureaucracy will radically change. For example, it will no longer be able to bring suits on its own behalf to enforce title II. It may also be not able to bring suits intervening on title II matters. Finally, there would be no reason whatsoever for a person to file a claim with the Department of Justice with respect to discrimination by public entities even if they had the desire to do so.

Just When Does The Statute of Limitations Begin to Run in a Failure to Accommodate Claim and Other Issues

As everyone knows, my blog entries usually go up on Monday of a given week. Obviously, I missed last week. Last week my daughter was on break and my wife also took the week off. So, lots of family things going on. We also have out-of-town company in for an extended weekend, but I am getting a moment to myself. So, here goes. Today’s case discusses the issue of whether the failure to repeatedly provide reasonable accommodations to a student is a continuing violation or a series of discrete acts for purposes of the statute of limitations beginning to run with respect to the ADA and the Rehabilitation Act.

The case of the day is Keith-Foust v. North Carolina Central University, a decision from the U.S District Court of the Middle District of North Carolina that came down on August 11, 2016. As is usual, my blog entry is divided into categories: facts; court’s reasoning with respect to the statute of limitations involving claims against the law school; court’s reasoning regarding the Masters of Public Administration program; court’s reasoning regarding retaliation; court’s reasoning with respect to suits against individuals in their individual and official capacities; and (a huge amount of), takeaways. The reader is free to focus on any or all of the categories.



Keith-Foust, the plaintiff, is visually impaired, legally blind, as a result of glaucoma that she had while she was in her early 20s. Even so, she obtained two undergraduate degrees, business administration and also double majors in psychology and political science, from North Carolina Central University. In the spring of 2013, she applied for admission to North Carolina Central University’s School of Law. Despite her accomplishments and grade point average of 3.70, the school did not offer her unconditional admission even though it offered unconditional admission to non-disabled students with comparable credentials. Instead, they admitted her into its performance-based admission program, a program set up for those who show promise of success in law school but do not qualify for unconditional admission. That program is a two week program during which students attend class and then are evaluated for admission into the law school based upon their academic performance and professionalism during the program. Since 2008, the plaintiff had always required and utilized reasonable accommodation during her enrollment at North Carolina Central University and had met with the Office of Disability Services prior to the start of each semester. So, she did the same thing prior to starting the performance-based admission program. When meeting with the Office of Disability Services, she requested several different accommodations including: special seating in the front of the classroom; access to a table for her equipment; recorded lectures (for which she would provide the device); use of her personal laptop equipment; absences for medical appointments; electronic copies of handouts/class materials via email sent before class; an oral description of video shown in class as needed; a personal assistant in class to provide reader services; extended time on exams/tests (double time); separate setting for all exams/tests; use of the laptop to access assistive technology on tests; and extended time on assignments as needed (two additional days). North Carolina Central University did not object to any of the accommodations and orally agreed that the plaintiff was entitled to these accommodations during the performance-based admission program. North Carolina Central University determined that these accommodations were reasonable to afford the plaintiff equal access during the performance-based admission program and included the accommodations in an accommodation plan. The Director of Student Disability Services told the plaintiff that the accommodation plan was the official plan that would be used during her enrollment in the program and that she would be provided all of the accommodations under the plan. Further, although not among her requested accommodation, the Director Of Student Disability Services also told her that she would be provided a CCTV, but then took that away due to administrative issues and it was not included in the plan. Both the Director of Student Disability Services, on May 29, 2013, and the plaintiff, on May 31, 2013, signed the accommodations plan.

On May 30, 2013, the Associate Dean for Academic Affairs at the School of Law emailed the plaintiff a memorandum in which he explained how some but not all of her accommodations would be implemented. He did not mention the accommodations for providing for an oral description of video shown in class, access to a table for equipment, or providing for extended time on assignments. Further, unbeknownst to the plaintiff at the time, he responded to an email from one of her instructors stating that he purposely omitted from his memorandum the accommodation of extended time on assignments because he considered that to be an impractical request. He stated that it would be better to discourage her from the idea of receiving extended time on assignments so that it would not be an expectation later. He went on to say that if the plaintiff insisted on being provided the extended time on assignments, he would be forced to tell the plaintiff that he did not believe she was being realistic about what would be expected of her and that law school was not the route for her. It wasn’t until one year later that the plaintiff first learned of this email.

Once enrolled in the program, North Carolina Central University failed to accommodate her as it had agreed. More specifically: they did not provide her with special seating in the front of the class thereby requiring her to arrive earlier than other students in order to get preferential seating. She also had to ask classmates on occasion to relocate; the class was held in the moot court courtroom, which only had stadium seating, and the school failed to make available to her access to a table substantial enough in size to hold her equipment; professor did not consistently email her class materials before class, instead sometimes providing the material by a flash drive almost immediately before the start of class leaving little to no time to upload the materials and sometimes not even providing class material beforehand at all; during mandatory tutoring sessions, her tutor told her that they were not aware they needed to accommodate a blind student and conducted the sessions using class materials in an inaccessible format; she was required to complete a final oral argument during which she, like other students, was allowed to use notes. However, to do that, she required access to her personal equipment but the school failed to provide access to a table to hold her equipment, access to an electrical outlet in front of the classroom during her argument, and extended time to complete her oral argument; although she used a laptop for her exams as required under the plan, performance-based admission faculty transcribed the exams via handwriting so as to protect anonymity because other participants handwrote their exams. However, the staff members carelessly and inaccurately transcribed their answers and made costly grammatical errors not present in her typed exam answers.

Frustrated that the school did not provide her required accommodation during the program despite her diligent efforts, she met with the Chancellor of the School on or about Jun 20, 2013 to discuss her accommodation. She said that she needed access to a CCTV but the Office of Student Disability Services failed to provide it. About a week later, she received a letter from the Assistant Dean of Admissions at the School of Law informing her that she had been denied admission to the school of law based on the valuation from the performance-based submission program. That same day, the plaintiff emailed the associate Dean for Academic Affairs at the School of Law and the Chancellor of the school and requested a hearing and copy of her evaluation. The Associate Dean for Academic Affairs at the School of Law replied that there was not a formal appeal process or hearing from the decision not to admit her to the School of Law after her participation in the program and copied in the Chancellor, and the Dean of the School of Law, and the Assistant Dean of Admissions of the School of Law on that correspondence.

She then enrolled in the fall program of the school’s Masters of Public Administration. The school determined that she required various accommodation, including being provided electronic copies of class materials on a jump drive before the start of each class. Nevertheless, the school failed to provide the class materials until the plaintiff notified it on four separate occasions that she was not being provided the accommodation. Further, despite assurances to the contrary, a CCTV was not provided until months into the fall semester. Things didn’t get better when after taking leave during the fall of 2013, she reenrolled for the fall of 2014. She was supposed to receive several different accommodations, but was not provided with those accommodations as required until three weeks after the start of classes. She then took a medical leave on October 8, 2014, and did not return to the Masters of Public Administration program. She brought suit alleging violations of the ADA, §504 the Rehabilitation Act, retaliation, tortious interference with contract; fraud, negligence, negligent misrepresentation, and unfair and deceptive trade practices. The court wound up dismissing all of the claims except for the ADA and §504 claims.


Court’s Reasoning: Statute of Limitations Law School

  1. The most applicable statute of limitations for the ADA in North Carolina is the Person with Disability Protection Act. That act provides a two-year statute of limitation for non-employment claims.
  2. A civil rights claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.
  3. In the Fourth Circuit, a defendant’s failure to accommodate constitutes a discrete act rather than an ongoing omission for purposes of the statute of limitations.
  4. It would have been readily apparent to the plaintiff that North Carolina Central University was discriminating against her each time it failed to accommodate her. Therefore, each discrete act starts a new time period for that act.
  5. The parties did not argue whether a failure to accommodate occurred each day during the performance-based omission program that North Carolina Central University failed to provide various accommodations in the accommodation plan or whether a failure to accommodate occurred only when the plaintiff renewed her request for an accommodation that was not being provided and the school subsequently failed to provide the accommodation. That is, for the action to accrue must the plaintiff have renewed her request for an accommodation in order to trigger a possible failure to accommodate?
  6. The parties also did not argue that if the plaintiff was required to renew her request for accommodation and, if so, to whom much she had made that request to so that North Carolina Central University would be responsible for subsequent failure to accommodate.
  7. Parties also did not argue that if a renewed request was required, whether both renewed request and the subsequent failure to provide the accommodation must occur on or after June 11, 2013 or whether it was sufficient that the subsequent failure to provide the accommodation occurred on or after June 11, 2013.
  8. The memorandum from the Assistant Dean of the law school did not purport to change the accommodation plan and in any event, the plaintiff did not know until after she began the program what if any accommodation were not being provided, which of course turned out to be more than just the three accommodations missing from the memorandum. Further, the plaintiff did not allegedly learn of the email to her writing instructor until one year later. Accordingly, the intentional discriminatory act allegations stemming from the letter of the Assistant Dean was timely.


Court’s Reasoning MPA Program

  1. Proving a case of discrimination under title II of the ADA or the Rehabilitation Act (assuming federal funds, which is the case here), involves showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified to receive the benefits of a public service, program, or activity; and 3) plaintiff was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.
  2. With respect to the third prong, the Fourth Circuit has recognized three distinct grounds for relief and they are: disparate treatment; disparate impact; and failure to make reasonable accommodations.
  3. More than enough facts were alleged to show that the school may be subject to a failure to accommodate claim. In particular, receiving materials immediately prior to class inhibited her ability to participate meaningfully in the class; she was unable to view course materials written on the board without the assistance of a CCTV, and since she was not provided with appropriate magnification equipment she suffered unnecessary strain on arise thereby requiring her to take leave from school during the fall of 2013. The failure at the start of both the fall 2013 and fall 2014 semester to provide electronic copies of course materials before class created an intolerable environment for the plaintiff and resulted in a medical leave from the program. The school’s failure to provide a CCTV until months into the fall 2013 semester prevented the plaintiff from doing much of the course material during that time and caused additional unnecessary strain on her eyes that caused her to take leave in the fall 2013.


Court’s Reasoning Retaliation

  1. The court held that the facts as alleged did not rise to the level of retaliation because such conduct was not of the level that would deter a reasonable student from asserting her rights.



Court’s Reasoning regarding Suits against Defendants in Their Individual or Official Capacities

  1. The ADA and the Rehabilitation Act do not provide causes of action against individual defendants in their individual capacities.
  2. The plaintiff was not seeking injunctive relief from individuals in their official capacity, and therefore, the official capacity claims must fail.



  1. I am a big believer in utilizing the Office of Civil Rights of the Department Of Education whenever possible. The thing to keep in mind with OCR is that they have a six-month statute of limitations. There are many advantages to utilizing the Office of Civil Rights process. First, it isn’t litigation but much more administrative in focus. Second, it gives you an excellent chance to assess the strengths and weaknesses of your case as well as the strengths and weaknesses of the other side all for little cost. Third, it is essentially free discovery. Fourth, schools take Office of Civil Rights investigations very seriously. Finally, if the Office of Civil Rights does get involved it completely changes the dynamic of the case as now the federal government is involved rather than just a plaintiff with a disability whose resources are often not substantial. It seems to me, that a filing with the Office of Civil Rights would have been in order right after she was formally dismissed from the performance-based admission program. Same could be said for when she had to leave the Masters of Public Administration program.
  2. The allegations, if proven, are fairly egregious and so one wonders whether the plaintiff does not have a good shot at proving deliberate indifference so as to be able to get damages (see this blog entry).
  3. The plaintiff was very upfront about her disability and tried to get on top of it from the get go; a strategy that I highly recommend for students with disabilities. It isn’t a bad idea if such a person is running into obstacles to get legal counsel involved sooner than later.
  4. It is a State-By-State situation as to what is the most applicable statute of limitations with respect to ADA/Rehabilitation Act claims. The statute of limitations can be all over the place, 1 to 3 years is not unusual. Most often times it seems to be two. In any event, legal research is needed every time the situation arises.
  5. Continuing violation doctrine exists in theory but it is almost impossible to convince a court that such a violation exists. In the Fourth Circuit anyway, failure to accommodate claims are a discrete act.
  6. In this case, the court held that the allegation did not rise to the level of retaliation. That said, one wonders why an interference claim was not alleged since that is a much lower standard than retaliation.
  7. The overwhelming line of authority is that the ADA and the Rehabilitation Act do not provide a cause of action against individual defendants in their individual capacity.
  8. Disability services need to take the lead. In particular, should a school of the University or faculty have a problem with the accommodation that disability services comes up with, they need to interface with disability services in order to straighten it out. Also, the programs of the particular school of the University would be wise to have its essential eligibility requirements in order as seen in this blog entry.
  9. Whether a reasonable accommodation request is impractical is not the standard, rather the question is whether an undue burden or a fundamental alteration is involved.
  10. I don’t understand the need for the exams to be handwritten in law school.
  11. Never forget about the Job Accommodation Network.
  12. An ADA compliance audit, which might cost you a decent sum of money up front, may save you a bunch of money later.
  13. Make sure you have a §504/ADA coordinator as well as a §504/ADA grievance procedure.
  14. The court said that it was readily apparent that the plaintiff was being discriminated against each time a reasonable accommodation request was denied. As someone who has represented persons with disabilities in graduate schools, I can say that to the student it isn’t necessarily so readily apparent. Oftentimes, to the student it appears that it is all part of a continuing process rather than separate items with their own cause of action. For example, see this unpublished case, Pollowitz v. University of Medicine and Dentistry, 2007 N.J. Super. Unpub. LEXIS 1269 (N.J. App. July 27, 2007), holding that depending upon what discovery revealed, a constructive discharge of a student by a university was a possible cause of action and that the actions leading up to that could be a continuing violation.
  15. Considering the open questions, it may make sense if you are representing a plaintiff and the school has not been forthcoming with its reasonable accommodations, to make the renewal request. Once that happens, it may make sense to confirm after a period of time, that they have no intention of following through on the accommodations. That way, it is pretty clear as to when the statute of limitations starts to run.
  16. The fact pattern of this case is such that one wonders how the burden of proof will work. See this blog entry .
  17. The prima facie case for title II of the ADA and for §504 the Rehabilitation Act cannot, despite the court’s assertion to the contrary, be the same as causation is different. That is, causation under title II of the ADA is “by reason of,” and causation under §504 the Rehabilitation Act is, “solely by reason of.” The term used by the court “on the basis of,” is actually not a title II or §504 of the Rehabilitation Act concept at all. Rather, it is found in title I and in title III of the ADA.