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
- 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.
- 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.
- The complaint included concrete allegations of past injury.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.