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Ninth Circuit Reinstates Disability Action Against State Bar
Opinion Remands for Claim-by-Claim Analysis as to Whether State’s Immunity Is Abrogated by ADA
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday vacated the dismissal of a disability-discrimination claim brought by a man with a form of autism against the State Bar of California based on its denial of certain accommodations he sought in taking the bar exam, with a three-judge panel remanding the matter for a determination by the District Court as to whether the state’s Eleventh Amendment immunity applies.
Although the Ninth Circuit, sitting en banc, on Dec. 6, 2023, rejected the contention of plaintiff Benjamin Kohn that the State Bar is not an “arm of the state,” it remanded to the panel the question of whether the Americans with Disabilities Act (“ADA”) abrogates the State Bar’s Eleventh Amendment immunity. That determination, Circuit Judge Kim McLane Wardlaw said in yesterday’s opinion, must be made in the first instance by a trial judge.
Circuit Judges Consuelo M. Callahan and Jacqueline H. Nguyen joined in the opinion.
Kohn brought his action in July 2020—in anticipation of taking the bar exam for the fourth time in October of that year—advancing various theories including claims under the ADA. Kohn was admitted to the State Bar on Feb. 8, 2021, and is a sole practitioner in Santa Clara County’s City of Mountain View, but is nonetheless seeking damages.
Claim-by-Claim Analysis
Wardlaw said the District Court must engage in a claim-by-claim analysis as to whether an express provision of the ADA providing that “[a] state shall not be immune…for a violation of this chapter” applies to the specific type of conduct at issue. Such an approach, she wrote, is required under the U.S. Supreme Court’s 2006 decision in in U.S. v. Georgia.
The Ninth Circuit’s 2004 opinion in Phiffer v. Columbia River Correctional Institute—which held that the state is categorically barred from asserting sovereign immunity for claims under the ADA—must fall in light of Georgia. the has been overruled by the 2006 a claim-by-claim analysis.
In an opinion by Justice Antonin Scalia (now deceased), the Georgia court held that the sovereign immunity question requires a two-part inquiry—first, whether Congress expressed an intent to abrogate state immunity and, second, whether the Legislature acted under a valid grant of constitutional authority.
Analyzing the second question, the high court found that Title II the ADA creates a private cause of action for damages relating to state conduct that violates the Fourteenth Amendment’s equal protection and due process clauses and may validly abrogate state immunity as to those claims under §5 of the amendment, which provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
To determine whether Congress validly abrogated immunity, the Georgia case requires courts to examine which aspects of the state’s alleged conduct conflict with the ADA, to what extent such misconduct also violates the Fourteenth Amendment, and—if the alleged actions violate the act but not the constitution—whether the opt-out as to that class of conduct is still enforceable as a valid exercise of Congressional authority.
Exam Accommodation
Kohn set forth in his complaint that he is diagnosed with Asperger’s syndrome, a form of autism, along with 25 other maladies, and suffers from processing disorders and motor delays which affect his ability to take the State Bar exam. After he was granted some accommodations and denied others, Kohn filed his complaint.
Senior District Court Judge Phyllis J. Hamilton of the Northern District of California found that the complaint failed to allege that the State Bar’s purported misconduct violated the Fourteenth Amendment and dismissed the complaint in its entirety, with prejudice. She noted that “[d]isabled people do not constitute a suspect class” and wrote:
“Plaintiff’s Title II theory is that he did not receive sufficient accommodations to take the California Bar and practice law in California. Yet, plaintiff does not have a fundamental right to take the California Bar Exam or to practice law….
“Plaintiff has failed to present any facts demonstrating that the procedures and accommodations provided by the State Bar fail rational basis review.”
Judgment was entered in favor of the defendant on Oct. 27, 2020.
An en banc Ninth Circuit court took up the ensuing appeal as to the limited question of whether the State Bar qualifies as an “arm of the state” and, as such, is entitled to sovereign immunity in federal court. In an opinion by Circuit Judge John B. Owens, filed On Dec. 6, 2023, the court answered both questions in the affirmative but remanded all other issues to a three-judge panel, including whether the ADA abrogates immunity.
Eleventh Amendment
Wardlaw noted that state sovereign immunity is rooted in the Eleventh Amendment to the U.S. Constitution, which provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
She noted that “Congress can abrogate this immunity if it (1) ‘makes its intention to abrogate unmistakably clear in the language of the statute’ and (2) ‘acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment.’ ”
Saying “Title II meets the first criterion,” she turned to the second and “more complex inquiry,” writing:
“Congress may abrogate state sovereign immunity for both ‘actual violations of the rights guaranteed’ in the Fourteenth Amendment as well as for ‘a somewhat broader swath of conduct,’…in order to deter unconstitutional conduct…. For legislation that targets this ‘broader swath of conduct’ to fall within Congress’s Section 5 authority ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ”
Kohn contends that the Phiffer decision is binding and prevents the state bar from asserting immunity as a defense to his action. Disagreeing, Wardlaw said:
“In our court, a three-judge panel may recognize prior precedent as overruled only when an intervening precedent of higher authority is ‘clearly irreconcilable’ with the precedent….We find that Georgia’s claim-by-claim analysis is ‘clearly irreconcilable’ with Phiffer’s categorical holding. We therefore conclude that Phiffer has been overruled by intervening Supreme Court precedent. Going forward, district courts must undertake the analysis set forth in Georgia to determine whether, in enacting Title II, Congress validly abrogated state sovereign immunity as to the specific class of conduct at issue.”
Hamilton’s Order
Turning to Hamilton’s dismissal of the complaint, she said that “the district court properly recognized the need to engage in the case-specific analysis outlined by Georgia” but “focused only on the second part of the Georgia test.”
Under these circumstances, Wardlaw opined:
“[I]t is not enough for the district court to hold that the complaint does not allege a constitutional violation and end there. Even if the complaint does not allege a constitutional violation, ‘we must determine whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.’….The district court…erred when it failed to determine ‘which aspects of the State’s alleged conduct violated Title II.’ ”
She continued:
“The prophylactic abrogation analysis is fact-intensive, requiring a review of whether there is ‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end[]’…but the district court did not engage in this analysis, leaving us to guess which of Kohn’s allegations, if any, were being considered for this ‘congruence and proportionality’ inquiry.”
The judge declared:
“We thus vacate the district court’s dismissal of Kohn’s Title II claims and remand for reconsideration consistent with this opinion. Moreover, the district court shall provide Kohn with the opportunity to amend his complaint before proceeding.”
The case is Kohn v. State Bar of California, 20-17316.
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