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Lane

Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters

December 10, 2012 by William Goren 2 Comments

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.

Filed Under: Federal Cases, State Cases, Title II Tagged With: § 504, § 504 the rehabilitation act, 11th amendment, 1st Circuit, ADA, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, Americans with Disabilities Act, anxiety, arm of the state, Board of Regents of the University Nebraska, Board of Trustees, Board of Trustees of the University of Illinois, comprehensive and fair grievance system, Congressional task force, Department of Justice, depression, disability discrimination, Doe, doe v. Board of Trustees of the University of Illinois, Doe v. Board of Trustees of the University of Nebraska, education, education as a fundamental right, essential eligibility requirements, essential eligibility requirements of the program or activity, exhaustion of internal remedies, extensive dossier, fact specific, Federal funds, First Circuit, fundamental right, fundamentally alter the nature of the program or activity, historic preservation, Illinois, immune, immune from suit, immunity, immunity from suit, insomnia, Irrational, Lane, medical school, medical student, narrow remedy, Nebraska Supreme Court, Northern District of Illinois, persistent pattern, preventive systems, preventive tips, public colleges, public entity, public universities, qualified individuals with disability, redress discrimination, rehabilitation act of 1973, scheme, sovereign immunity, sovereign immunity litigation, state, Supreme Court of Nebraska, targeted system, Tennessee v. Lane, title II, Toledo v. Sanchez, U.S. Suprmene Court, undue burden, United States Supreme Court, waiver of sovereign immunity, widespread pattern

Olmstead evolves

July 6, 2012 by William Goren 9 Comments

In Olmstead v. L.C., 527 U.S. 581 (1999), United States Supreme Court held that it violated the Americans with Disabilities Act for for a State to have a system that did not allow persons with mental illness to be treated in the community. Since that time, the United States government has been very aggressive in pursuing actions all over the country so that people who have been served in institutions are given the ability to be served in the community. The Department of Justice has a regulation mandating integration of persons with disabilities. Olmstead is now evolving in some other ways.

Sheltered workshops:

Just other day, Oregon was warned by the Department Of Justice that its system of not giving people in sheltered workshops the opportunity to develop skills so that they could work in the community instead of sheltered workshops was in violation of the Americans with Disabilities Act. In May of this year, a District Court judge in Oregon, in Lane v. Kitzhaber, 2012 WL 1802031 (D. OR. May 15, 2012), relying on the reasoning in Olmstead held that a State could be in violation of the Americans with Disabilities Act if their system was set up so that it did not give opportunities for persons in sheltered workshops to otherwise be given the opportunity to participate in integrated activities. Id. at *6. That is, there has to be employment services offered to persons with disabilities other than sheltered workshops or to say it in another way, it is in violation of the ADA to unnecessarily segregate persons with disabilities into sheltered workshops. Id. at *8

Preventive tip: the State will want to ensure that persons in sheltered workshops are individually assessed to see whether they may be able to function in integrated settings. The State will also want to ensure that programs are in place so that such individuals currently in sheltered workshops who can function in integrated settings (it is possible the number of such persons is not that high), are given the opportunity to take advantage of those programs.

Budget cuts:

The State of Washington ran into some serious budget issues. The agencies were directed to cut 10% from the budget. As a result of the political process the State of Washington decided to cut 10% from their budgets. In particular, the personal care program was significantly reduced. This meant that many people receiving care under this program could well need to be institutionalized as a result of these reductions. The question is whether the State is subjecting itself to violations of the Americans with Disabilities Act by making a decision to reduce services where that decision may lead to increased institutionalization of persons with disabilities. The Ninth Circuit in M.R. v. Dreyfus, 2012 WL 2218824 (9th Cir. June 18, 2012) agreed. The State of Washington then petitioned for an en banc hearing of the Ninth Circuit. There were not sufficient votes to rehear the case en banc, and so the panel decision stands. However, there was a vigorous dissent with regards to the denial of the en banc hearing filed by Judge Rawlinson.

Does Olmstead really say that a State could lose an Americans with Disabilities Act lawsuit when due to insufficient funds it decides to cut its budget? While it is true that Olmstead mandates that persons with disabilities be integrated into the community, one of the things that has been neglected over the years about that case is that there was no majority view as to when the obligation of the State to integrate persons with disabilities into the community kicks in. That is, when might a State have a defense for not integrating persons with disabilities into the community. On that point, only a plurality existed in Olmstead.

Under title II of the ADA, there is a defense if the modification would create an undue burden (financial) or fundamentally alter (operational) the nature of the program. With respect to undue burden, the question has always been whether you would measure it against the entire operations of the governmental entity or perhaps against the budget of a particular program. Justice Ginsburg in Olmstead said that to measure it against the entire State budget would mean that the fundamental alteration defense would be no defense at all. Id. at 603. Rather, the allocation of available resources given the responsibility of the State has undertaken for the care and treatment of a large and diverse population of persons needed to be considered. Id. at 604. Justice Ginsburg also said that the State would be able to successfully defend such a suit if they could demonstrate that it had a comprehensive, effectively working plan for placing qualified person with mental disabilities in less restrictive settings as well as a waiting list moving at a reasonable pace not controlled by the State’s endeavors to keep the institution fully populated. Id. at 605-606. Finally, Justice Ginsburg turned to § 504 regulations, which deal with employment, to say that undue hardship (undue burden and undue hardship are the same concepts except that undue hardship applies to title I and undue burden applies to title II and title III of the ADA), do not refer to overall budget but a case-by-case analysis weighing a variety of factors including: the overall size of the program with respect to the number of employees, number and type of facility, and size of budget; the type of recipients operation, including the composition and structure of their workforce; and the nature and cost of the accommodation needed. Id. at 606 fn 16.

What does this mean? First, it is unfortunate that fundamental alteration and undue burden seem to be confused since in ADA speak, the cases and regulations have referred to undue burden as pertaining to financial and fundamental alteration as pertaining to operations. This distinction also allows for two different phrases to reflect different concepts; otherwise, why have the different phrases in all? Second, it is simply very unclear whether Justice Ginsburg, who was joined by Justice O’Connor (no longer on the court), Justice Souter (no longer on the court) with respect to this section, would say that Olmstead could be used as a sword to prevent budget cuts. In particular, Justice Ginsburg reference to “overall resources,” suggest that the State may have some leeway in how it decides to parcel out its resources particularly, in light of the other points discussed above, if the State has other ways of ensuring that persons with disabilities do not face unnecessary institutionalization.

Justice Kennedy and Justice Breyer while agreeing with the majority in terms of result did not agree with the section of Justice Ginsburg’s opinion that talked about fundamental alteration/undue hardship. In particular, in the Kennedy opinion, Justice Kennedy states that no State has unlimited resources and that each State must make hard decisions on how much to allocate the treatment of diseases and disabilities. Id. at 612 (Justice Kennedy concurring). He goes on to say that if funds for care and treatment of the mentally ill, including the severely mentally ill, are reduced in order to support programs directed to the treatment and care of other disabilities, that decision may be unfortunate but it is a political one and not within the reach of the Americans with Disabilities Act. Id. Further, Justice Kennedy continues by saying that grave constitutional concerns would be raised when a federal court is given the authority to review the State’s choices on basic matters such as establishing or declining to establish new programs. Id. at 612-613. That is, it is simply not reasonable to read the ADA to permit court intervention on those kinds of decisions. Id. at 613. These statements are quite clear. From these statements, it is hard to believe that Justice Kennedy, whose opinion was joined by Justice Breyer, would allow for the Americans with Disabilities Act to be used in a way to prevent budget cuts.

Justice Thomas wrote an opinion joined by Justice Scalia. Much of that opinion doesn’t really apply to the situation here. However, he does say that constitutional principles of federalism places limits on the federal government’s ability to direct State officers or to interfere with the functions of state government. Id. at 624. That statement by itself, especially considering the jurisprudence of Justice Thomas and Justice Scalia over time, strongly indicates that they would not support using the ADA as a sword to stop budget cuts.

In short, it seems that using the ADA as a sword to stop budget cuts in light of the Supreme Court decision in Olmstead would face very tough going at the Supreme Court. While the Ninth Circuit has a panel that is now on record as supporting this use of the ADA, it seems entirely likely to me that other circuits will not follow suit. Ultimately, it will head to the United States Supreme Court where if this analysis is any guide, and it may not be, there would seem to be five votes against using the Americans with Disabilities Act as a sword to prevent budget cuts (of course, I am assuming that there would not be any evidence that the budget cuts were done in such a way out of animus towards persons with disabilities).

Filed Under: Federal Cases, Final Federal Regulations, Title I, Title II Tagged With: § 504, ADA, allocation of available resources, Americans with Disabilities Act, animus, budget cuts, budget issues, budget of a particular program, case-by-case analysis, community, constitutional concerns, cut its budget, Department of Justice, dissent, Dreyfus, employment services, en banc, entire operations, evolves, federalism, fundamental alteration, integrated activities, integration, integration of persons with disabilities, Justice Breyer, Justice Ginsburg, Justice Kennedy, Justice O'Connor, Justice Scalia, Justice Thomas, Kitzhaber, Lane, M.R., Ninth Circuit, ninth circuit court of appeals, Olmstead, or again, overall budget, personal care program, plurality, political process, preventive tip, programs, reduced services, regulations, sheltered workshops, spend down, state, state of Washington, sword, Talton v. Kinkade, title I, title II, title III, undue burden, undue hardship, United States Supreme Court, unnecessarily segregate, vigorous dissent, violation of the Americans with Disabilities Act, warned, Washington, Western district of Missouri, work in the community

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