In a previous blog entry, the principle of sovereign immunity and how they might apply to a County was discussed. What wasn’t discussed, was whether sovereign immunity would apply to a public university or public college. A case that addresses this is Doe v. Board of Regents of the University of Nebraska, 280 Neb. 492, 788 N.W.2d 264 (2010). In this case, a medical student who was granted a leave of absence in order to receive treatment for depression, insomnia, and anxiety was eventually removed from the medical school after he returned from that leave of absence and things continued to not go well. Id. at 496-497. He brought suit alleging fraudulent concealment, disability discrimination, violation of his due process rights, and breach of contract. See Id. at 497.
The court had several issues before it, but for our purposes the issue to focus on is whether the University of Nebraska could successfully claim immunity under the 11th amendment to the plaintiff’s suit for disability discrimination. As has been noted when it comes to employment, states and arms of the states are going to have to specifically consent to being sued as sovereign immunity principles apply. However, as mentioned previously, when it comes to suing under title II of the Americans with Disabilities Act, whether sovereign immunity principles apply is a very fact specific situation. As discussed previously, if a fundamental right is involved, then the state or, the state is not going to be able to successfully claim sovereign immunity. Thus, there are two questions. First, is a fundamental right involved? If a fundamental right is not involved, does that mean that the state or arm of the state automatically gets to claim sovereign immunity? Is education a fundamental right?
The Nebraska Supreme Court said that education is not a fundamental right. Id. at 521. However, as mentioned above, that doesn’t answer the question as to whether the state still has the right to claim sovereign immunity. The Nebraska Supreme Court concluded that even though education is not a fundamental right, the University of Nebraska still could not claim sovereign immunity with respect to a title II of the ADA suit. Id. They reasoned as followed. First, one of the things that United States Supreme Court did after deciding Tennessee v. Lane, 541 U.S. 509 (2004), was to vacate several title II decision and remand them for reconsideration in light of that decision, including one from the Sixth Circuit concluding that sovereign immunity barred a student’s title II claim against the University. Id. at 520.
Second, the Nebraska Supreme Court relied on a case from the First Circuit in which they noted that there was a widespread pattern of state’s unconstitutionally excluding disabled children from public education and irrationally discriminating against disabled students within schools. See Id. at 522.
Third, under the cases interpreting Lane, the judicial decisions, statutes, and personal antidotes collected by the Congressional task force that indicated general history of discrimination of public education were sufficient to support the title II scheme. Id.
Fourth, the title II scheme was a narrow remedy to redress discrimination in education because: title II protects only qualified individuals with disabilities; a person must still meet the essential eligibility requirements of the program or activity regardless of disability; schools and universities are not required under title II to undertake any measures imposing undue financial or administrative burden or threatened historic preservation interest; and a school or university is not required to fundamentally alter the nature of the program or activity. Doe v. Board of Regents of the University Nebraska 788 N.W.2d at 523-524 citing to Toledo v. Sanchez 454 F.3d at 39. Accordingly, the title II scheme is a justified as a reasonably targeted system to prevent a persistent pattern of exclusion and irrational treatment of disabled students in public education especially when compared against the consequences of the harm from such discrimination. Id.
Preventive tips: If you are public entity, the very first thing you want to do is check to see whether the state that you are in has explicitly waived its sovereign immunity with respect to title II claims of the ADA. Illinois for example, has waived sovereign immunity with respect to ADA suits but not in all cases. See 745 I.L.C.S. 5/1.5(d) (Westlaw, Current through P.A. 97-1132 of the 2012 Reg. Sess.).
Second, if you are public entity and find that the state has not waived its sovereign immunity with respect to title II of the ADA lawsuits, feel free to argue that sovereign immunity prevents the lawsuit since the Nebraska Supreme Court is definitely not the last word we are going to see on the subject. For example, see Doe v. Board of Trustees of the University of Illinois, 429 F. Supp. 2d 930 (N.D. Ill. 2006), for a contrary view.
Third, if you are student with a disability or are representing a student with a disability, it would be very helpful to compile an extensive dossier of any discrimination faced by students with disabilities in education by the states over time. See Toledo v. Sanchez 454 F.3d 24, 35 (1st Cir. 2006). The more you can find as a plaintiff , the better your ability is going to be to be able to argue that the title II of the ADA scheme is a proportionate response to the discrimination meant to be redressed. Another thing a plaintiff would want to do would be to be sure to exhaust the school or university’s administrative process.
Fourth, the plaintiff might want to consider filing a claim with the Department of Justice. On the public entity’s side, as discussed previously, preventive systems are always best. Sure, you may win on a sovereign immunity grounds, but winning on such a ground doesn’t do anything for University or college’s image as a University or college that is amenable to persons with disabilities. Sovereign immunity litigation is also no doubt expensive. A grievance procedure/system that allows a full airing of the opinion with neutral and informed deciders is always recommended. If the public entity loses on sovereign immunity grounds, then a comprehensive and fair grievance system will go a long way towards ultimately winning the dispute as courts are extremely hesitant to overturn academic decisions in general, and especially where they are the result of a comprehensive and fair airing of the grievance.
Fifth, if you are a plaintiff or a person representing one, you may also want to have a claim against the public educational institution alleging violation of § 504 of the Rehabilitation Act of 1973. Having such a claim would allow you to argue that sovereign immunity was waived since the public entity in all probability receives federal funds and Congress made it a condition of receiving federal funds that the states waive their sovereign immunity. See Doe v. Board of Trustees of the University of Illinois 429 F. Supp. 2d at 940. The Rehabilitation Act and the ADA are extremely similar, which makes sense since the ADA was based upon the Rehabilitation Act. However, § 504 of the Rehabilitation Act does contain “sole cause,” language whereas title II of the ADA contains, “by reason of” language. Accordingly, it is possible that causation under the two acts may be different even though substantively they are otherwise the same.
Sixth, keep in mind, that sovereign immunity is not going to apply if you have a claim for prospective relief. Thus, a claim for injunctive relief could be very handy if you are plaintiff or are representing one.See Doe v. Board of Trustees of the University of Illinois 429 F. Supp. 2d at 940-941.
Finally, since you are seeing courts split on this, look for the question of whether Congress validly abrogated the states sovereign immunity with respect to title II of the ADA to eventually wind up before the United States Supreme Court.