T.W. v. New York State Board of Law Examiners

110 F.4th 71

• Court: Court of Appeals for the Second Circuit
• Decided: July 19, 2024
• Docket: 22-1661
• Status: Published

Opinion

22-1661 T.W. v. New York State Board of Law Examiners

In the United States Court of Appeals For the Second Circuit

August Term, 2022 No. 22-1661

T.W., Plaintiff-Appellant,

v.

NEW YORK STATE BOARD OF LAW EXAMINERS, DIANE BOSSE, JOHN J. MCALARY, BRYAN WILLIAMS, ROBERT MCMILLEN, E. LEO MILONAS, MICHAEL COLODNER, Defendants-Appellees.

On Appeal from the United States District Court for the Eastern District of New York.

ARGUED: JUNE 5, 2023 DECIDED: JULY 19, 2024

Before: LIVINGSTON, Chief Judge, and NARDINI, Circuit Judge.*

*Judge Rosemary S. Pooler, originally a member of this panel, passed away on August 10, 2023. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998). T.W. sued Defendant-Appellee the New York State Board of Law Examiners alleging, inter alia, that the Board violated Title II of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act by denying her requests for certain accommodations on the New York State bar examination in 2013 and 2014. The Board moved to dismiss T.W.’s complaint, asserting that the United States District Court for the Eastern District of New York (Raymond J. Dearie, District Judge) lacked subject matter jurisdiction because New York’s sovereign immunity barred T.W.’s ADA and Rehabilitation Act claims under the Eleventh Amendment. The district court denied the Board’s motion to dismiss, but this Court reversed, holding that the Board was immune from suit under Section 504 of the Rehabilitation Act and remanding for consideration of the Board’s motion to dismiss as to T.W.’s Title II claim under the ADA. On remand, the district court granted the Board’s motion to dismiss, holding that the Board is entitled to immunity as an “arm of the state,” that Title II does not abrogate the Board’s sovereign immunity for money damages as applied to T.W.’s claim, and that T.W. could not maintain her requests for declaratory and injunctive relief under Ex parte Young. On appeal, T.W. argues that the Board is not an arm of the state, and even if it were an arm of the state, Title II has abrogated Eleventh Amendment immunity in the context of T.W.’s claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young. We disagree and therefore AFFIRM the July 21, 2022, judgment of the district court.

2 MARY C. VARGAS (Michael Steven Stein, on the brief), Stein & Vargas, LLP, Washington, D.C.; Jo Anne Simon, Jo Anne Simon, P.C., New York, NY, for Plaintiff-Appellant.

DENNIS FAN, Senior Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, for Defendants-Appellees.

Bridget A. Clarke, Andrew J. Dhuey, Berkeley, CA, for Amici Curiae National Disability Rights Network et al., in support of Plaintiff-Appellant.

WILLIAM J. NARDINI, Circuit Judge:

Plaintiff-Appellant T.W. sued Defendants-Appellees the New

York State Board of Law Examiners (“Board”) and its members

alleging that the Board violated Titles II and III of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794 et seq., and the New York City

Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code tit. 8, by

3 denying her requests for certain accommodations on the New York

State bar examination in 2013 and 2014. T.W. subsequently withdrew

her claims under Title III of the ADA and the NYCHRL, as well as her

claims against the Board members in their individual capacities.

The Board moved to dismiss T.W.’s complaint, asserting that

the United States District Court for the Eastern District of New York

(Raymond J. Dearie, District Judge) lacked subject matter jurisdiction

because New York’s sovereign immunity barred T.W.’s ADA and

Rehabilitation Act claims under the Eleventh Amendment. The

district court denied the Board’s motion to dismiss, holding that the

Board is a program or activity of a department or agency that receives

federal funds, and accordingly that its sovereign immunity had been

waived under the Rehabilitation Act. This Court reversed, holding

that the Board was not a program or activity of a department or

agency that receives federal funds and was therefore immune from

suit under Section 504 of the Rehabilitation Act. We remanded the

4 case for consideration of the Board’s motion to dismiss as to T.W.’s

Title II claim under the ADA, which the district court had not

addressed in the first instance because it concluded that “the same

legal standards and remedies apply to claims under Title II of the

ADA and the Rehabilitation Act,” such that T.W. needed to prevail on

only one of the claims to survive the Board’s motion to dismiss. T.W.

v. N.Y. State Bd. of L. Exam’rs, No. 16-cv-3029, 2019 WL 4468081, at *2

(E.D.N.Y. Sept. 18, 2019). On remand, the district court granted the

Board’s motion to dismiss the Title II claim, holding that the Board is

entitled to immunity as an “arm of the state,” that Title II does not

abrogate the Board’s sovereign immunity for money damages as

applied to T.W.’s claim, and that T.W. could not maintain her requests

for declaratory and injunctive relief under Ex parte Young, 209 U.S. 123

(1908).

On appeal, T.W. argues that the Board is not an arm of the state,

and even if it were an arm of the state, that Title II has abrogated

5 Eleventh Amendment immunity in the context of T.W.’s claim. In

addition, T.W. argues that even if the Board enjoys sovereign

immunity as to her damages claim, she may seek her requested

declaratory and injunctive relief under Ex parte Young. We disagree

and therefore AFFIRM the July 21, 2022, judgment of the district

court.

I. Background

A. Factual background1

T.W. is a Harvard Law School graduate who suffers from a

variety of complications resulting from a severe head injury. While

at Harvard, she received testing accommodations for her disabilities,

including 50 percent extra time on exams, stop-clock breaks, and

separate testing facilities. When she signed up for the July 2013 New

York bar examination, she requested these same testing

accommodations, citing her diagnosed impairments.

We recounted this factual background in additional detail in our prior 1

opinion, T.W. v. New York State Board of Law Examiners (T.W. I), 996 F.3d 87 (2d Cir. 2021).

6 The Board initially denied her request for any

accommodations. But after she appealed the decision, the Board

granted her request in part, providing off-the-clock breaks and

seating her in a smaller room, although that room included others

receiving similar accommodations. T.W. did not pass the July 2013

bar exam. At the time T.W. received her results, she had started as a

law clerk at a law firm, and she alleges that failing the bar hurt her

standing at the firm and required her to set aside time to study for the

exam again.

T.W. signed up for the July 2014 exam and again requested the

accommodations that she had received at law school. This time, the

Board granted her 50 percent extra time, seating in a room with others

receiving similar accommodations, but no off-the-clock breaks. She

again did not pass, and her law firm fired her.

In February 2015, T.W. passed the bar examination on her third

attempt. This time, the Board granted her double time on the exam,

7 an accommodation that she had requested to the extent that her initial

request for off-the-clock breaks and 50 percent extra time was not

granted. T.W. alleges that the Board’s failure to provide her with the

accommodations that she initially requested caused her to fail the bar

exam twice and resulted in her inability to find employment

comparable to the position she had held at her law firm. T.W. sued

the Board, its chair, and members of the Board, alleging violations of

the ADA, Section 504 of the Rehabilitation Act, and the NYCHRL,

seeking declaratory, compensatory, and injunctive relief.

B. Procedural background

In November 2016, the Board moved to dismiss T.W.’s

complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), asserting, inter alia, that the district court lacked subject

matter jurisdiction because Eleventh Amendment immunity barred

T.W.’s ADA and Rehabilitation Act claims. Shortly thereafter, T.W.

withdrew her claims under Title III of the ADA and the NYCHRL, as

well as her claims against the chair and members of the Board in their

8 individual capacities. Her only remaining claims were those under

Title II of the ADA and Section 504 of the Rehabilitation Act.

Following limited discovery on whether the Board had

accepted federal funds during the relevant time period, the district

court denied the Board’s motion to dismiss. The district court found

that although the Board had not directly received federal funds

during the relevant time period, the Board had nonetheless waived

its immunity as a “‘program or activity’ of a department or agency

that itself accepts federal funds—in this case, New York’s Unified

Court system.” T.W., 2019 WL 4468081, at *4. The district court

declined to reach the Board’s dismissal argument as to T.W.’s Title II

ADA claim, because “the same legal standards and remedies apply to

claims under Title II of the ADA and the Rehabilitation Act.” Id. at *2.

The Board took an interlocutory appeal, and we reversed,

holding that the Board was immune from suit under Section 504 of

the Rehabilitation Act. See T.W. I, 996 F.3d at 93, 102. We agreed with

9 the district court that the Board did not receive any federal funds and

likewise rejected T.W.’s argument that merely being an “intended

beneficiary” of federal funds was sufficient to find immunity waived

under Section 504 of the Rehabilitation Act. Id. at 93–94. But we

disagreed with the district court as to the second of T.W.’s waiver

arguments, namely whether the Board was a “program or activity” of

a department or agency receiving federal funds. Id. at 94–102. The

crux of our reasoning was that the district court had described the

recipient of federal funds too broadly: it was not New York’s Unified

Court System that received federal funds during the relevant period,

but rather only certain specialty courts within the Courts of Original

Jurisdiction. Id. Because the Courts of Original Jurisdiction

constituted the relevant funds-receiving “unit” for purposes of

Section 504’s immunity waiver, and because the Board is not a part of

the Courts of Original Jurisdiction, we held that the Board had not

waived its immunity under Section 504. Id. at 97–102. Accordingly,

10 we reversed the district court’s denial of the motion to dismiss the

Section 504 claim and remanded the case for consideration of the

Board’s motion to dismiss as to T.W.’s Title II claim under the ADA.

See id. at 102.

On remand, the district court held that the Board was immune

from suit under Title II of the ADA. In a memorandum and order

entered on July 19, 2022, the district court held that the Board was an

arm of the state, that Title II of the ADA did not abrogate sovereign

immunity in the context of professional licensing exams, that the

declaratory relief T.W. seeks is not a valid application of the doctrine

first articulated in Ex parte Young, 209 U.S. 123 (1908), and that T.W.

lacked standing to pursue her requested injunctive relief. T.W. v. N.Y.

State Bd. of L. Exam’rs, No. 16-cv-3029, 2022 WL 2819092, at *1–9

(E.D.N.Y. July 19, 2022). Accordingly, the district court granted the

Board’s motion to dismiss T.W.’s Title II claim. T.W. now appeals.

11 II. Discussion

On appeal, T.W. contends that the district court erred in

dismissing her Title II claim. She first argues that the Board is not an

arm of the state, and therefore cannot claim sovereign immunity

under the Eleventh Amendment. In the alternative, she argues that

her claim for money damages can nonetheless proceed against the

Board because Title II of the ADA abrogated sovereign immunity in

the context of the Board’s operations. Finally, she contends that her

complaint states a valid claim for declaratory and injunctive relief

pursuant to the Ex parte Young doctrine.

We “review[] the district court’s factual findings for clear error

and its legal conclusions de novo.” T.W. I, 996 F.3d at 93 (internal

quotation marks omitted). “The Board, as the party asserting

immunity, bears the burden of demonstrating entitlement.” Id.

(internal quotation marks and alteration omitted). For the reasons

that follow, we affirm in all respects.

12 A. Arm of the state

T.W. first contends that the district court erred in concluding

that the Board is an arm of the state, and therefore is entitled to

sovereign immunity.

The Eleventh Amendment to the Constitution provides: “The

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.” U.S. Const. amend. XI. “Although the text of

the amendment speaks only of suits against a state by persons who

are not citizens of that state, the Supreme Court has interpreted the

Eleventh Amendment to extend to suits by all persons against a state

in federal court.” Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289,

292 (2d Cir. 1996) (citing Hans v. Louisiana, 134 U.S. 1, 10–11 (1890)).

Further, the Eleventh Amendment bars suits against states even

where the state “is not named a party to the action.” Edelman v. Jordan,

13 415 U.S. 651, 663 (1974). “[W]hen the action is in essence one for the

recovery of money from the state, the state is the real, substantial

party in interest and is entitled to invoke its sovereign immunity from

suit even though individual officials are nominal defendants.” Ford

Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945). Accordingly,

the Eleventh Amendment applies to a suit for damages brought

against an entity that is fairly considered to be an “arm of the state.”

See Mancuso, 86 F.3d at 292; see also Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977).

We outlined a multi-factor inquiry to assess whether an entity

is an “arm of the state” for Eleventh Amendment purposes in Mancuso

v. New York State Thruway Authority. See 86 F.3d at 293. These factors

include:

(1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local or state government; (5) whether the state has a veto power over

14 the entity’s actions; and (6) whether the entity’s obligations are binding upon the state.

Id. Where those factors “point in different directions,” a court asks

“(a) will allowing the entity to be sued in federal court threaten the

integrity of the state? and (b) does it expose the state treasury to risk?”

Id. In cases that remain close, the most important factor is whether

the suit exposes the state treasury to a risk of liability. See id.

The district court conducted a thorough analysis of the Mancuso

factors, concluding that the Board was an arm of the state, and

therefore entitled to Eleventh Amendment immunity. T.W., 2022 WL

2819092, at *1–5. We affirm, though on procedural grounds rather

than our own assessment of the merits. See Jusino v. Fed’n of Cath.

Tchrs., Inc., 54 F.4th 95, 100 (2d Cir. 2022) (“We may affirm on any

ground with support in the record.” (internal quotation marks

omitted)).

We begin by noting that this question—whether the Board is an

arm of the state—is hardly an unfamiliar one. In T.W. I, our Court

15 wrote, point-blank: “The Board of Law Examiners, as an arm of the

State of New York, shares in [Eleventh Amendment] immunity.” 996

F.3d at 92 (cleaned up). It therefore appears that we expressly decided

this issue in T.W. I.

But even if we had not been so explicit, resolution of the

sovereign immunity question was necessarily implicit in our holding

that dismissal of the Rehabilitation Act claim was required; therefore,

the law of the case doctrine settles the issue. “[A] decision made at a

previous stage of litigation, which could have been challenged in the

ensuing appeal but was not, becomes the law of the case; the parties

are deemed to have waived the right to challenge that decision, for it

would be absurd that a party who has chosen not to argue a point on

a first appeal should stand better as regards the law of the case than

one who had argued and lost.” County of Suffolk v. Stone & Webster

Eng’g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) (internal quotation

marks omitted); see also Unites States v. Quintieri, 306 F.3d 1217, 1229

16 (2d Cir. 2002) (“[W]here an issue was ripe for review at the time of an

initial appeal but was nonetheless foregone, it is considered waived

and the law of the case doctrine bars the district court on remand and

an appellate court in a subsequent appeal from reopening such issues

unless the mandate can reasonably be understood as permitting it to

do so.” (internal quotation marks omitted)); Parmalat Cap. Fin. Ltd. v.

Bank of Am. Corp., 671 F.3d 261, 271 (2d Cir. 2012) (arguments not

raised in prior appeal “were impliedly decided to have been waived

in the first instance” (internal quotation marks omitted)). “[T]he law-

of-the-case doctrine applies to everything decided by necessary

implication in the first appeal.” County of Suffolk, 106 F.3d at 1117

(cleaned up).

Applying these principles, we find that the Board’s status as an

arm of the state has become the law of the case. In T.W. I, we held

that the Board had not waived its sovereign immunity, and that the

district court was therefore obliged to dismiss the Rehabilitation Act

17 claims for lack of subject matter jurisdiction. By deciding that

dismissal was required, we necessarily decided that the Board had

sovereign immunity—a decision that had to be logically premised on

a conclusion that the Board was an arm of the state. The Board’s

eligibility for sovereign immunity (that is, its status as an arm of the

state) was “decided by necessary implication,” see id., even without

regard to our explicit language on this issue, see T.W. I, 996 F.3d at 92

(“The Board of Law Examiners, as an arm of the State of New York,

shares in [Eleventh Amendment] immunity.”). But T.W. failed to

raise in T.W. I the arm-of-the-state issue that she now seeks to litigate.

See Brief of Appellee T.W., T.W. v. N.Y. State Bd. of L. Exam’rs, 996 F.3d

87 (2d Cir. 2021) (No. 19-4136), ECF No. 67 (raising no argument that

the Eleventh Amendment did not apply to the Board). In fact, T.W.’s

argument now essentially seeks vacatur of our prior decision, the

holding of which is necessarily premised on the Board’s Eleventh

18 Amendment immunity. Under these circumstances, we conclude that

the law of the case settles this issue.2

B. Abrogation of sovereign immunity

T.W. next contends that even if the Board is an arm of the state

for Eleventh Amendment purposes, Title II of the ADA validly

abrogated its sovereign immunity in the context of her claim.

Section 5 of the Fourteenth Amendment grants Congress

authority to abrogate state sovereign immunity. See, e.g., Kimel v. Fla.

Bd. of Regents, 528 U.S. 62, 80 (2000). But Section 5 only “grants

Congress the authority to abrogate states’ immunity as to conduct

that actually violates the Fourteenth Amendment, as well as a

2 T.W.’s waiver of this issue is even more apparent than it appears on the face of her appellate briefs. Not only did she fail to litigate this issue before the district court when the Board first filed its motion to dismiss, see E.D.N.Y. Dkt. No. 16-cv-3029, ECF No. 11 (T.W responding to the Board’s motion to dismiss in an opening letter brief, which does not argue that the Board lacked sovereign immunity), but she essentially conceded the Board’s status in her complaint. She alleges that “[t]he Board is a public entity and state instrumentality subject to the non- discrimination requirements of Title II of the Americans with Disabilities Act.” J. App’x 30, ¶ 78 (emphasis added). It was not until October 15, 2021, after five years of litigation on the very issue of the Board’s immunity to suit, that T.W. first challenged the Board’s arm-of-the-state status.

19 somewhat broader swath of conduct that is constitutional but which

Congress may prohibit in order to remedy or deter actual violations.”

Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010) (internal quotation

marks omitted). When an exercise of Section 5 enforcement power is

directed in a “prophylactic” way, id., there must be “congruence and

proportionality between the [violation] to be prevented or remedied

and the means adopted to that end,” City of Boerne v. Flores, 521 U.S.

507, 520 (1997).

“Congress has unambiguously purported to abrogate states’

immunity from Title II claims.” Bolmer, 594 F.3d at 146; see also 42

U.S.C. § 12202 (“A State shall not be immune under the eleventh

amendment . . . for a violation of this chapter.”). Title II, however,

sweeps more broadly than the Fourteenth Amendment. See Garcia v.

S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 109–12 (2d Cir. 2001)

(comparing Title II’s breadth to the Fourteenth Amendment, the latter

of which, “[w]here disability discrimination is at issue,” “only

20 proscribes government conduct for which there is no rational

relationship between the disparity of treatment and some legitimate

governmental purpose”). Thus, to determine whether a Title II

abrogation is valid, courts proceed on “on a claim-by-claim basis,”

considering “(1) which aspects of the State’s alleged conduct violated

Title II; (2) to what extent such misconduct also violated the

Fourteenth Amendment; and (3) insofar as such misconduct violated

Title II but did not violate the Fourteenth Amendment, whether

Congress’s purported abrogation of sovereign immunity as to that

class of conduct is nevertheless valid.” United States v. Georgia, 546

U.S. 151, 158–59 (2006). We proceed accordingly.

1. Step one: Title II violation

The first step of the Georgia framework requires us to identify

“which aspects of the State’s alleged conduct violated Title II.” Id. In

this case, the inquiry need not detain us. The district court found that

T.W. “plausibly alleged that the Board violated Title II by failing to

21 reasonably accommodate her disability.” T.W., 2022 WL 2819092, at

*6. The Board does not contest this reading of T.W.’s complaint on

appeal, waiving any argument to the contrary. See Norton v. Sam’s

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued

in the briefs are considered waived and normally will not be

addressed on appeal.”). Accordingly, for the purposes of our

sovereign immunity assessment, we conclude that T.W. has

sufficiently alleged that the Board’s conduct violated Title II of the

ADA.

2. Step two: Fourteenth Amendment violation

The second step of the Georgia framework requires us to

identify “to what extent such misconduct also violated the Fourteenth

Amendment.” 546 U.S. at 158–59. Again, this inquiry is an easy one

here: T.W. has likewise declined to contest the district court’s finding

that the Board’s alleged failure to provide sufficient accommodations

22 did not violate the Fourteenth Amendment, thereby conceding that

issue.

In sum, the parties have agreed that T.W.’s complaint alleges a

Title II violation, but not a Fourteenth Amendment violation.

3. Step three: Abrogation analysis

Our analysis thus turns on the third prong of the Georgia

framework—whether Congress’s purported abrogation of sovereign

immunity is valid as to T.W.’s claim. In conducting this inquiry, we

must: (a) identify the scope of the constitutional right at issue; (b)

examine whether, in enacting Title II, Congress identified a history

and pattern of unconstitutional discrimination by states in the

relevant context; and (c) determine whether the right and remedies

created by the statute are congruent and proportional both to the

constitutional rights it purports to enforce and to the record of

violations adduced by Congress. City of Boerne, 521 U.S. at 529–36; see

also Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365–74 (2001)

23 (applying the City of Boerne factors to conclude that abrogation of

Eleventh Amendment sovereign immunity was invalid as to Title I of

the ADA).

We note at the outset some disagreement among our sister

Circuits as to the application of this framework to Title II claims. In

Tennessee v. Lane, 541 U.S. 509 (2004), the Supreme Court held that

Title II of the ADA validly abrogated sovereign immunity in the

context of a claim against the state of Tennessee for failure to make its

courts accessible to disabled individuals. Id. at 514, 533–34. Circuits

disagree, however, on how broadly Lane should be read. On the one

hand, the Fourth, Fifth, Eighth, and Eleventh Circuits have read Lane

to conclusively resolve the first two prongs of the City of Boerne

inquiry as to Title II on the whole. See Constantine v. Rectors & Visitors

of George Mason Univ., 411 F.3d 474, 487 (4th Cir. 2005); McCarthy ex

rel. Travis. v. Hawkins, 381 F.3d 407, 423 (5th Cir. 2004) (Garza, J.,

concurring in part and dissenting in part); Klingler v. Dir., Dep’t of

24 Revenue, State of Mo., 455 F.3d 888, 896 (8th Cir. 2006); Ass’n for Disabled

Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 957-58 (11th Cir. 2005). Were

we to follow this approach, we would essentially skip to the third step

of the City of Boerne test—congruence and proportionality. On the

other hand, the First and Tenth Circuits have both held that Lane

resolved these issues as to the “particular right and class of state

action at issue.” Guttman v. Khalsa, 669 F.3d 1101, 1117 (10th Cir.

2012); see Toledo v. Sanchez, 454 F.3d 24, 35 (1st Cir. 2006). Under this

approach, Lane did not resolve the first two steps of the City of Boerne

inquiry as to all Title II claims, but spoke only to Title II claims

regarding “accessibility of judicial services.” Toledo, 454 F.3d at 36

(quoting Lane, 514 U.S. at 531).

We agree with the First and Tenth Circuits that Lane did not

resolve the first two prongs of the City of Boerne framework for all of

Title II’s myriad applications. “Title II—unlike . . . the other statutes

we have reviewed for validity under § 5 [of the Fourteenth

25 Amendment]—reaches a wide array of official conduct in an effort to

enforce an equally wide array of constitutional guarantees.” Lane, 541

U.S. at 530. Accordingly, “nothing in [Supreme Court] case law

requires us to consider Title II, with its wide variety of applications,

as an undifferentiated whole.” Id. Thus, as both the First and Tenth

Circuits observed, the Supreme Court undertook its analysis of each

of the City of Boerne prongs with respect to the specific fundamental

right and state services at issue in Lane. Id. at 522–23, 527, 530–34; see

Guttman, 669 F.3d at 1117–18 (observing same); Toledo, 545 F.3d at 35.3

Furthermore, reading Lane broadly would imply that abrogation

analyses should be conducted, at least to some extent, on a statute-by-

statute basis, an approach that runs afoul of the Supreme Court’s

3 To be sure, passages in Lane, if read in isolation, could support a more expansive reading. See, e.g., Lane, 541 U.S. at 513 (“The question presented in this case is whether Title II exceeds Congress’ power under § 5 of the Fourteenth Amendment.”); id. at 524 (noting, with regards to the second City of Boerne prong, that “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights”). But notwithstanding excerpts suggesting otherwise, Lane conducted its inquiry in the specific context of the right at issue in that case. See, e.g., id. at 522–23, 527, 530–34.

26 prescription that this analysis occur on a “claim-by-claim basis.”

Georgia, 546 U.S. at 159. We therefore “find that Lane does not

conclusively settle the first two prongs of the City of Boerne test for all

classes of services.” Guttman, 669 F.3d at 1118. Accordingly, we

proceed through the three-part City of Boerne analysis seriatim.

a. Scope of the constitutional right

The first prong of the City of Boerne analysis requires us to

determine the scope of the constitutional right at issue. T.W. contends

that the constitutional right here is the right to education (and

educational testing) and, as a “plus factor,” the right of access to

courts. The Board contends that the right at issue is that of

occupational choice.

We agree with the Board that the right involved in T.W.’s case

is a disabled person’s right of occupational choice, and more

specifically that of licensure to practice in a highly regulated

profession. Both the Supreme Court and this Court have referred to

27 the bar exam as a professional licensure test. Sup. Ct. of Va. v.

Friedman, 487 U.S. 59, 68 (1988) (referencing the bar exam as being a

hurdle to “professional licensure”); United States v. Novak, 903 F.2d

883, 888 (2d Cir. 1990) (describing passing the bar as “meet[ing] the

threshold criteria of competence in the law”). Common sense

supports this conclusion: the bar exam is a test that individuals

typically become eligible to take following completion of their legal

education; it is not a “part” of one’s legal education in any practical

sense. See Bar Exam Eligibility, N.Y. State Bd. of L. Exam’rs,

https://www.nybarexam.org/Eligible/Eligibility.htm

[https://perma.cc/6P6V-4WCY].

Additionally, concerns created by T.W.’s claims are very

different from those that arise in the education context. Caselaw

addressing the right of access to education has emphasized the sui

generis nature of education, including its unique importance in civil

society. “Public education is not a ‘right’ granted to individuals by

28 the Constitution. But neither is it merely some governmental ‘benefit’

indistinguishable from other forms of social welfare legislation. . . .

[E]ducation has a fundamental role in maintaining the fabric of our

society.” Plyler v. Doe, 457 U.S. 202, 221 (1982) (internal citations

omitted); see also Toledo, 454 F.3d at 36–37 (“The Supreme Court has

recognized the vital importance of all levels of public education in

preparing students for work and citizenship as well as the unique

harm that occurs when some students are denied that opportunity.”

(citing, inter alia, Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954))); Bowers

v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 555–56 (3d Cir. 2007);

Ass’n for Disabled Ams., 405 F.3d at 959 (“Discrimination against

disabled students in education affects disabled persons’ future ability

to exercise and participate in the most basic rights and responsibilities

of citizenship, such as voting and participation in public programs

and services.”). None of this reasoning applies to taking the bar exam,

which is surely not a prerequisite to participation in civil society. On

29 this score, we note that T.W.’s alleged damages all concern her

professional well-being, and she does not allege any inability to

participate in society more broadly because of her difficulties passing

the bar exam on her first two attempts. See J. App’x 27–28 (describing

T.W.’s termination from her prior law firm and her difficulty finding

comparable employment).

T.W.’s assertion that there is an access-to-courts angle to her

claim (which she says is a “plus factor”) fares no better. Lane

addressed the “right of access to the courts,” a fundamental civil right

enshrined and expanded by other constitutional amendments. 541

U.S. at 523. These include the Confrontation Clause of the Sixth

Amendment, the Due Process Clause, which “requires the States to

afford certain civil litigants a meaningful opportunity to be heard by

removing obstacles to their full participation in judicial proceedings,”

the Sixth Amendment right to trial “by a jury composed of a fair cross

section of the community,” and the First Amendment “right of access

30 to criminal proceedings.” Id. (internal quotation marks omitted). But

the right of access to courts in Lane did not involve the right of

individuals to earn a living in courts as a licensed lawyer (and for that

matter, bar admission is required for all practicing lawyers, even those

whose work involves only transactional or advisory work, and who

never appear in court). The Supreme Court’s failure to mention that

species of supposed “access” in Lane comes as no surprise, because

nothing in the Constitution guarantees an individual a right to work

as a lawyer, nor does T.W. identify any authority otherwise.

Accordingly, we conclude that T.W.’s complaint invokes only the

right of occupational choice, and more specifically that of professional

licensing.

We next consider the scope of that right. “[T]he liberty

component of the Fourteenth Amendment’s Due Process Clause

includes some generalized due process right to choose one’s field of

private employment,” but this right is “subject to reasonable

31 government regulation.” Conn v. Gabbert, 526 U.S. 286, 291–92 (1999);

see also Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019) (“[T]he

right of occupational choice is afforded Due Process protection only

when a plaintiff is completely prohibited from engaging in his or her

chosen profession.” (cleaned up)). Although T.W. does not press an

Equal Protection Clause claim on appeal, even if she did, the Board’s

conduct “cannot run afoul of the Equal Protection Clause if there is a

rational relationship between the disparity of treatment and some

legitimate governmental purpose.” Garrett, 531 U.S. at 366–67

(internal quotation marks omitted). In sum, the right at issue here—

a disabled person’s right to practice her chosen profession—is not

afforded heightened scrutiny.

b. History and pattern of unconstitutional discrimination

Under the second prong of the City of Boerne framework, we

consider to what extent Title II was “responsive to, or designed to

32 prevent, unconstitutional behavior,” 521 U.S. at 532, “[w]ith respect

to the particular services at issue in this case,” Lane, 541 U.S. at 527.

We find, as did the Tenth Circuit, that Congress has not

identified “a longstanding pattern of disability discrimination in [the

context of] professional licensing.” Guttman, 669 F.3d at 1119. Our

review of the legislative history uncovered no legislative findings

documenting a pattern of unconstitutional discrimination in the

administration of professional licensure examinations by states, in the

granting of professional licenses, or regarding occupational choice

more generally. See 42 U.S.C. § 12101; S. Rep. No. 101–116 (1989); H.R.

Rep. No. 101–485, pts. 1–4 (1990), as reprinted in 1990 U.S.C.C.A.N. 267;

H.R. Rep. No. 101–558 (1990) (Conf. Rep.); H.R. Rep. No. 101–596

(1990) (Conf. Rep.), as reprinted in 1990 U.S.C.C.A.N. 565.4

4 As an appendix to his dissent in Garrett, Justice Breyer listed “Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities.” See Garrett, 531 U.S. at 391, App. C (Breyer, J., dissenting). That Appendix included five line-items that may indicate instances of disability discrimination in the professional licensing context. See id. (California 00261 (teachers), Texas 01503 (same), Texas 01549 (same); Texas 01542

33 T.W. identifies one isolated example from the congressional

record that may support her position. Namely, in a written statement

before Congress, a disabled private attorney indicated that she had

heard “scores of horror stories on an annual basis arising from the

experiences of persons with disabilities who attempt to take bar

examinations.” J. App’x 64 n.3 (quoting Americans with Disabilities Act

of 1989: Hearing on H.R. 2273 Before the Subcomm. on Civ. & Const. Rts.

of the H. Comm. on the Judiciary, 101st Cong. 162 (1989) (statement of

Laura D. Cooper, Attorney, Pettit & Martin)). This isolated testimony,

however, does not appear to have been adopted by Congress as any

sort of finding. See, e.g., 42 U.S.C. § 12101; S. Rep. No. 101–116 (1989);

H.R. Rep. No. 101–485, pts. 1–4 (1990), as reprinted in 1990

(cosmetologists); Texas 01543 (chiropractors)). However, there is insufficient context to suggest that any of these examples constituted unconstitutional discrimination, particularly because government regulations affecting disabled individuals do not receive elevated scrutiny and survive constitutional review if they are rationally related to a legitimate government purpose. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435 (1985); see also Garrett, 531 U.S. at 370 (“Whether [the isolated examples of state employment discrimination against the disabled] were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context.”).

34 U.S.C.C.A.N. 267; H.R. Rep. No. 101–558 (1990) (Conf. Rep.); H.R.

Rep. No. 101–596 (1990) (Conf. Rep.), as reprinted in 1990 U.S.C.C.A.N.

565. Nor does this testimony necessarily flag unconstitutional

conduct; it merely alleges without any context or description that the

witness heard “scores of horror stories” regarding the bar

examination. But because laws infringing on occupational choice are

subject only to rational basis review, and because laws distinguishing

individuals on the basis of disability are reviewed likewise, we are left

with no basis to conclude that these unspecified “horror stories”

describe events that were unconstitutional as opposed to simply

unfortunate. See Garrett, 531 U.S. at 370 (“Whether [the isolated

examples of state employment discrimination against the disabled]

were irrational under our decision in Cleburne is more debatable,

particularly when . . . described out of context.”).

T.W. also points to a House committee report that discusses

private testing discrimination under Title III of the ADA. That report

35 contains language implying that Title II requires states’ “licensing[,]

certification[,] and other testing authorities” to be accessible to those

with disabilities, “which includes physical access as well as

accommodations in the way the test is administered.” H.R. Rep. No.

101-485, pt. 3, at 68. But this example is of little help to T.W.’s position,

because it is not a finding of unconstitutional discrimination. Rather,

this statement merely explains the purpose of a section in Title III with

reference to Title II. It is not evidence that Title II was “responsive to,

or designed to prevent, unconstitutional behavior” in the context of

professional licensing. City of Boerne, 521 U.S. at 532. Accordingly, it

provides no support to Congress’s exercise of Section 5 power in this

context.5

5 T.W. points to additional legislative history of discrimination from the education and educational testing realms. However, even if that evidence were sufficient to establish a history of unconstitutional state conduct in education or educational testing, it is not relevant to our inquiry here, which is into whether Title II was passed in response to a history of unconstitutional conduct in professional licensing.

36 But even if we assumed that the testimony of this single

attorney constituted a congressional finding (which it was not) and

that her testimony described unconstitutional conduct (which it does

not), the record of unconstitutional discrimination in this context

would still be insufficient to justify abrogation of state sovereign

immunity. “In Lane, the Court found that Congress ‘enacted Title II

against a backdrop of pervasive unequal treatment in the

administration of state services and programs,’ and that it specifically

considered evidence of discrimination in areas such as education,

access to the courts, transportation, communications, health care, and

other public services. The Court noted the ‘sheer volume of evidence

demonstrating the nature and extent of unconstitutional

discrimination against persons with disabilities in the provision of

public services,’ and concluded that it is ‘clear beyond peradventure

that inadequate provision of public services and access to public

facilities was an appropriate subject for prophylactic legislation.’”

37 Guttman, 669 F.3d at 1118 (internal citation omitted) (quoting Lane,

541 U.S. at 528, 529). In contrast, the Supreme Court in Garrett found

that six examples from the congressional record of state employment

discrimination against disabled individuals “f[ell] far short of even

suggesting the pattern of unconstitutional behavior on which § 5

legislation must be based.” 531 U.S. at 370.

The congressional record of unconstitutional conduct in the

professional licensing context is even sparser than the record was in

Garrett, 531 U.S. at 370, and looks nothing like the record at issue in

Lane, 541 U.S. at 528. T.W. points to no congressional findings of

unconstitutional state behavior in the sphere of occupational choice

and professional licensing. And even reading the record in her

favor—and including both the testimony of attorney Cooper and

those examples from Justice Breyer’s dissent in Garrett, 531 U.S. at 391;

see supra note 3—she would have at most six examples, all lacking

38 sufficient context for us to determine whether the conduct at issue

was even unconstitutional.

Although determining what quantity of legislative history of

unconstitutional discrimination is necessary to validate a particular

exercise of Section 5 power may be a fraught exercise in some

contexts, we have no such trouble here. The congressional record of

unconstitutional state conduct in the occupational choice and

professional licensing context is perilously slim.

c. Congruence and proportionality

Finally, we consider whether the rights and remedies created

by Title II are congruent and proportional to the specific violations at

issue given the nature of the constitutional right and the history of

unconstitutional violations. Considering the low level of scrutiny

applied to the relevant right and the scant, nearly non-existent record

of constitutional violations, we find that abrogation of state sovereign

immunity would not be congruent and proportional in this case.

39 We begin with a brief survey of Supreme Court jurisprudence

on this issue. The Supreme Court has found “congruence and

proportionality between the injury to be prevented or remedied and

the means adopted to that end” lacking where the injury to be

prevented or remedied significantly exceeds the rights granted under

the Fourteenth Amendment. City of Boerne, 521 U.S. at 520. For

example, in City of Boerne, the Court held that the Religious Freedom

Restoration Act was not a congruent and proportional exercise of

Section 5 power because the law protected free exercise of religion

beyond the protections granted by the Free Exercise Clause of the

Constitution as interpreted by the Supreme Court. Id. at 535–36.

Congress, the Court wrote, “does not enforce a constitutional right by

changing what the right is.” Id. at 519; see also United States v. Morrison,

529 U.S. 598, 626 (2000) (“Section 13981 [of the Violence Against

Women Act] is not aimed at proscribing discrimination by officials

which the Fourteenth Amendment might not itself proscribe” and “is,

40 therefore, unlike any of the § 5 remedies that we have previously

upheld.”). In other words, the Court has found congruence and

proportionality lacking where a statute’s protections so significantly

exceed the bounds of the Fourteenth Amendment right at issue that

they effectively expand that right as it is defined in the Constitution.

Even where a law conceivably prevents or remedies an actual

violation of the Fourteenth Amendment, the Supreme Court has

found congressional action to exceed the scope of Section 5 power

where Congress did not exercise that power on a sufficient record of

constitutional violations. For example, in Florida Prepaid Postsecondary

Education Expense Board v. College Savings Bank, the Court held that the

Patent and Plant Variety Protection Remedy Clarification Act did not

validly abrogate state sovereign immunity because there was “scant

support for Congress’ conclusion that States were depriving patent

owners of property without due process of law by pleading sovereign

immunity in federal-court patent actions,” and “Congress did

41 nothing to limit the coverage of the Act to cases involving arguable

constitutional violations.” 527 U.S. 627, 646 (1999). Similar reasoning

guided the Court in Kimel v. Florida Board of Regents, which held that

the Age Discrimination in Employment Act, as applied to states,

exceeded Congress’ authority under Section 5 because Congress

failed to identify “any pattern of age discrimination by the States,

much less any discrimination whatsoever that rose to the level of

constitutional violation.” 528 U.S. at 89; see also Garrett, 531 U.S. at

369–70 (abrogation of state sovereign immunity under Title I of the

ADA exceeded congressional authority under Section 5 because only

“half a dozen examples” of state employment discrimination on the

basis of disability fell “far short of even suggesting the pattern of

unconstitutional discrimination on which § 5 legislation must be

based.”); Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 35, 39 (2012) (self-

care provision of Family and Medical Leave Act of 1993 was not

congruent and proportional because it “was not directed at an

42 identified pattern of gender-based discrimination and was not

congruent and proportional to any pattern of sex-based

discrimination on the part of States”); Allen v. Cooper, 589 U.S. 248,

260–66 (2020) (abrogation of state sovereign immunity under the

Copyright Remedy Clarification Act of 1990 was invalid because the

Fourteenth Amendment intersects with copyright infringement only

to the extent that a state infringed recklessly or intentionally, and, as

in Florida Prepaid, 527 U.S. at 640, the congressional record contained

almost no evidence of unconstitutional copyright infringement by

states). In sum, the Supreme Court has found congressional exercises

of Section 5 power to lack congruence and proportionality where the

right being protected exceeds the protections of the Fourteenth

Amendment without a sufficient congressional record of

unconstitutional violations that the challenged law would remedy or

deter.

43 On the other side of the ledger, the Supreme Court has upheld

exercises of Section 5 power where the remedy is closely tailored to

the Fourteenth Amendment right in need of protection, and where

the congressional record contains ample evidence that the right

requires prophylactic protection. In Nevada Department of Human

Resources v. Hibbs, the Court upheld the abrogation of sovereign

immunity within the Family and Medical Leave Act for violations of

the family-care provision of that act. 538 U.S. 721, 725 (2003). The

Court reached this holding by observing that “statutory

classifications that distinguish between males and females are subject

to heightened scrutiny,” id. at 728 (citation omitted), and that the

FMLA’s “legislative record reflects . . . [that] stereotype-based beliefs

about the allocation of family duties remained firmly rooted, and

employers’ reliance on them in establishing discriminatory leave

policies remained widespread,” id. at 730 (citations omitted). Similar

reasoning appears in Lane. In that case, the right at issue was access

44 to the courts, a right that calls “for a standard of judicial review at

least as searching . . . [as] the standard that applies to sex-based

classifications.” Lane, 541 U.S. at 529. Further, “the record of

constitutional violations in [Lane]—including judicial findings of

unconstitutional state action, and statistical, legislative, and anecdotal

evidence of the widespread exclusion of persons with disabilities

from the enjoyment of public services—far exceeds the record in

Hibbs.” Id. In both Lane and Hibbs, then, the Supreme Court found

exercises of Section 5 power to be valid—including abrogations of

sovereign immunity—where the right (or class) being protected was

subject to heightened judicial scrutiny, and where the record of

unconstitutional state action was extensive.

Applying these principles to the present case, we conclude that

Title II’s abrogation of state sovereign immunity is not congruent and

proportional as applied to professional licensing of disabled

individuals. “Strong measures appropriate to address one harm may

45 be an unwarranted response to another, lesser one,” Lane, 541 U.S. at

524 (internal quotation marks and alteration omitted), and so in

enacting “prophylactic remedial legislation, the appropriateness of

the remedy depends on the gravity of the harm it seeks to prevent,”

id. at 523. In fact, several courts and commentators have questioned

whether, following Lane, a Title II claim for money damages can be

maintained against a state absent a fundamental right (subject to

heightened scrutiny) being at issue. See Guttman, 669 F.3d at 1122–23

(discussing courts and academics addressing this question) (citing

Buchanan v. Maine, 377 F. Supp. 2d 276, 283 (D. Me. 2005); Phiffer v.

Columbia River Corr. Inst., 384 F.3d 791, 793 (9th Cir. 2004)

(O’Scannlain, J., concurring); Press v. State Univ. of N.Y. at Stony Brook,

388 F. Supp. 2d 127, 135 (E.D.N.Y. 2005); Roe v. Johnson, 334 F. Supp.

2d 415, 421 n.9 (S.D.N.Y. 2004); Johnson v. S. Conn. State Univ., 2004

WL 2377225, at *4 (D. Conn. Sept. 30, 2004); Erwin Chemerinsky,

Federal Jurisdiction 477 (5th ed. 2007)).

46 Here, the right at issue is that of occupational choice, applied to

the area of professional licensing. Professional licensing rules are

subject only to rational basis review. Gabbert, 526 U.S. at 291–92

(observing that there is no right to practice one’s profession free of

restraints, and that there is no Due Process Clause violation absent a

“complete prohibition of the right to engage in a calling”). This case

is therefore distinguishable from Lane, which addressed the “class of

cases implicating the fundamental right of access to the courts,” 541

U.S. at 533–34, a right that warrants highly “searching” judicial

review, id. at 529.6

6 T.W. again contends that the right at issue here is that of education and educational testing. For the reasons stated above, see supra Section II.B.3.a, we are unpersuaded. We do note, however, that access to education does appear to be a unique class of cases where courts have found exercises of prophylactic Section 5 power to be valid, notwithstanding that education has not been identified as a fundamental right. See Toledo, 454 F.3d at 39–40; Bowers, 475 F.3d at 555–56; Constantine, 411 F.3d at 490; Ass’n for Disabled Ams., 405 F.3d at 959. These cases have relied on the distinct importance of education in society and the unique and extensive history of discriminatory conduct in schools. See, e.g., Toledo, 454 F.3d at 36–39.

47 Further, the congressional record of unconstitutional conduct

by states in professional licensing is slim to non-existent. T.W., as

noted above, points to a single individual’s testimony before

Congress, which identified “scores of horror stories” regarding

disabled individuals taking the bar exam. J. App’x 64 n.3 (quoting

Americans with Disabilities Act of 1989: Hearing on H.R. 2273 Before the

Subcomm. on Civ. & Const. Rts. of the H. Comm. on the Judiciary, 101st

Cong. 162 (1989) (statement of Laura D. Cooper, Attorney, Pettit &

Martin)). In addition, we take notice of the isolated examples of

licensing discrimination flagged in Justice Breyer’s Garrett dissent.

See 531 U.S. at 391, App. C (Breyer, J., dissenting). But this record is

insufficient for two reasons. First, these isolated examples do not

establish a record of unconstitutional state behavior. These examples

lack sufficient context to understand whether each describes actual

unconstitutional state conduct, or whether each references events

that, while perhaps unjust, were constitutional. The latter outcome is

48 particularly likely where, as here, restrictions related to professional

licensing are subject only to rational basis review, as are classifications

on the basis of disability. See Gabbert, 526 U.S. at 292 (the right to

choose one’s field of private employment is a right “subject to

reasonable government regulation”); Cleburne, 473 U.S. at 446

(regulations affecting the disabled violate the Constitution only if not

“rationally related to a legitimate governmental purpose”); see also

Lane, 541 U.S. at 529 (in Hibbs, “it was easier for Congress to show a

pattern of state constitutional violations than in Garrett or Kimel, both

of which concerned legislation that targeted classifications subject to

rational-basis review.” (internal quotation marks omitted)).

Second, even if these examples demonstrated unconstitutional

conduct, the record would still be too sparse to support the

abrogation. In Garrett, the Court held abrogation was invalid as to

Title I of the ADA because “[e]ven if it were to be determined that the

half a dozen relevant examples from the record showed

49 unconstitutional action on the part of States, these incidents taken

together fall far short of even suggesting the pattern of

unconstitutional discrimination on which § 5 legislation must be

based.” Garrett, 531 U.S. at 357. All the more so here, where the

legislative record does not contain even six examples of

unconstitutional conduct in the professional licensing context.

Finally, “the Title II remedy, as applied to professional

licensing, ‘far exceeds what is constitutionally required in that it

makes unlawful a range of alternate responses [to discrimination] that

would be reasonable[.]’” Guttman, 669 F.3d at 1124 (quoting Garrett,

531 U.S. at 372); see also id. (“The abrogation of sovereign immunity

here would require states to justify a significant range of rational,

everyday licensing decisions that would otherwise be

constitutional.”); Garcia, 280 F.3d at 109–10 (“[W]hereas under the

Fourteenth Amendment the absence of an accommodation would be

presumptively permissible with the burden of challenging it squarely

50 on the plaintiff, Title II shifts the burden of proof onto the state to

defend the absence. Indeed, this burden shift is consistent with the

elevated scrutiny generally applied to suspect classifications such as

race and nationality, suggesting that Title II is working a substantive

elevation in the status of the disabled in equal protection

jurisprudence.”).

In sum, Title II of the ADA does not validly abrogate sovereign

immunity in the context of professional licensing. This case exhibits

three factors that the Supreme Court has found fatal to exercises of

Section 5 power: the right at issue gets no heightened scrutiny, the

congressional record of unconstitutional conduct is slim, and the

statute cuts far wider than the Fourteenth Amendment. We therefore

conclude that sovereign immunity bars T.W.’s claim for damages

under Title II.

51 C. Relief under Ex Parte Young

Apart from her claim for damages, T.W. contends that she can

pursue declaratory and injunctive relief under Title II against Board

officials in their official capacities pursuant to the doctrine first

articulated in Ex parte Young, 209 U.S. 123 (1908).

“Absent proper Congressional abrogation or State waiver, the

Eleventh Amendment bars a federal court from hearing suits at law

or in equity against a State brought by citizens of that State or

another.” Vega v. Semple, 963 F.3d 259, 281 (2d Cir. 2020). However,

“[t]here is a well-known exception to this rule—established by the

Supreme Court in Ex parte Young and its progeny—by which suits for

prospective relief against an individual acting in his official capacity

may be brought to end an ongoing violation of a federal law. In

determining whether a litigant’s claim falls under the Ex parte Young

exception, we ask two questions: whether the complaint (1) alleges an

52 ongoing violation of federal law; and (2) seeks relief properly

characterized as prospective.” Id. (footnotes omitted).

For the reasons that follow, we conclude that that T.W.’s claims

for declaratory and injunctive relief cannot go forward. The

declaratory relief sought by T.W. is retrospective, rather than

prospective, in nature, and the injunctive relief she seeks is not

sufficiently tied to an allegation of ongoing violations of federal law.

1. Declaratory relief

T.W. seeks “declaratory relief, finding that Defendants’ actions

violated Title II . . . of the Americans with Disabilities Act[.]” J. App’x

34. The district court found this relief “plainly foreclosed by the Ex

parte Young doctrine [because a] declaration that a violation of federal

law occurred in the past is entirely retroactive. It does not mandate

compliance with federal law in the future as required by Ex parte

Young.” T.W., 2022 WL 2819092, at *8.

53 “[T]he Supreme Court has declined to extend the reasoning of

Ex [p]arte Young to claims for retrospective relief.” Ward v. Thomas,

207 F.3d 114, 119 (2d Cir. 2000). “The line between prospective and

retrospective relief is drawn because remedies designed to end a

continuing violation of federal law are necessary to vindicate the

federal interest in assuring the supremacy of that law, whereas

compensatory or deterrence interests are insufficient to overcome the

dictates of the Eleventh Amendment.” Id. (cleaned up).

We agree with the district court’s conclusion that the

declaratory relief sought is wholly retrospective, and therefore

barred. T.W. seeks only a declaration—in the past tense—that the

Board “violated Title II.” J. App’x 34 (emphasis added). This relief is

facially retrospective, as she seeks only a declaration regarding the

Board’s previous actions, not its future conduct.

This case is distinguishable from those in which declaratory

relief for past violations have been allowed. For example, in Verizon

54 Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635,

640 (2002), the plaintiff sought a declaration that a state regulation

violated the 1996 Telecommunications Act, and an injunction against

future enforcement of that state order. The Court held that the

declaratory relief sought did not run afoul of Ex parte Young because

even though the declaration was “of the past, as well as the future,”

“[i]nsofar as the exposure of the State is concerned, the prayer for

declaratory relief adds nothing to the prayer for injunction.” 535 U.S.

at 646 (emphasis omitted); see also id. (“[T]he past financial liability of

private parties may be affected. But no past liability of the State, or of

any of its commissioners, is at issue.”). In contrast, the declaratory

relief sought by T.W. does not overlap with her injunctive relief,

because the injunctive relief she seeks relates to the Board’s continued

maintenance of records of her failures on the bar exam. See J. App’x

34 (“[E]njoin Defendants from maintaining and reporting records of

Plaintiff’s examination results received under discriminatory

55 conditions and require Defendants to take affirmative steps to

alleviate the ongoing repercussions of the discriminatory test

administration that continue to hamper Plaintiff’s search for

employment[.]”).

Furthermore, the Supreme Court has relied, at least in part, on

considerations of whether declaratory relief will lead to monetary

exposure for a state in determining whether relief is prospective or

retrospective. In Green v. Mansour, the Supreme Court found

declaratory relief retrospective in part on concerns that, if issued

against the government, the declaratory judgment would have a res

judicata effect as to liability for damages in a future state court action,

thus serving as an end run around the Eleventh Amendment. 474 U.S.

64, 73 (1985) (“We think that the award of a declaratory judgment in

this situation would be useful in resolving the dispute over the past

lawfulness of respondent’s action only if it might be offered in state-

court proceedings as res judicata on the issue of liability, leaving to

56 the state courts only a form of accounting proceeding whereby

damages or restitution would be computed.”); see also Ward, 207 F.3d

at 119 (“At the risk of being obvious, a party armed with such relief

from the federal court and the doctrine of res judicata would have little

left to do but appear in state court, and employ the state court as a

form of accounting proceeding for a retrospective (federal) award of

damages against the state.” (internal quotation marks omitted)). On

the other side of that issue, the Supreme Court permitted the

declaratory relief in Verizon Maryland in part because “no past liability

of the State, or of any of its commissioners, is at issue. It does not

impose upon the State ‘a monetary loss resulting from a past breach

of a legal duty on the part of the defendant state officials.’” 535 U.S.

at 646 (emphasis omitted) (quoting Edelman v. Jordan, 415 U.S. 651, 668

(1974)).

T.W.’s requested declaratory relief looks more like that in Green

and Ward than that in Verizon Maryland. Although we decline to

57 speculate as to when or how T.W. or another litigant could use the

declaratory judgment here, we nonetheless note that a potential use,

and in fact, perhaps the only potential use, would be to seek damages

against the Board in state court. But “declaratory judgment is not

available when the result would be a partial ‘end run’ around the

Eleventh Amendment’s bar on retrospective awards of monetary

relief.” Ward, 207 F.3d at 120 (cleaned up).

In sum, the declaratory relief T.W. seeks is retrospective in

nature, and is therefore barred by the Eleventh Amendment.

2. Injunctive relief

Finally, T.W. seeks an order to “enjoin Defendants from

maintaining and reporting records of Plaintiff’s examination results

received under discriminatory conditions and [to] require Defendants

to take affirmative steps to alleviate the ongoing repercussions of the

discriminatory test administration that continue to hammer Plaintiff’s

search for employment.” J. App’x 34. The district court held that T.W.

58 lacked standing to pursue this relief, because it would not redress any

of her alleged injuries. Specifically, it held that expungement of her

failures would not redress her claimed injuries—including, for

example, “that she did not have the opportunity to gain the

experience they seek from a 2013 graduate due to the disruptions

caused by her bar examination failure,” J. App’x 28, ¶ 62—because

“expungement will neither alter T.W.’s level of experience nor undo

the fact that she did not successfully pass the bar until 2015,” T.W.,

2022 WL 2819092, at *8. “Moreover,” the district court wrote, “the

injunctive relief T.W. requests would suppress a record that,

according to the Board, it is prohibited from disclosing to employers

under Section 90(10) of the Judiciary Law.” Id. We agree with the

district court’s dismissal of T.W.’s claim for injunctive relief, but reach

that conclusion on different grounds. See Jusino, 54 F.4th at 100 (“We

may affirm on any ground with support in the record, including

59 grounds upon which the district court did not rely.” (internal citations

and quotation marks omitted)).

“Ex parte Young gives life to the Supremacy Clause[] [because]

remedies designed to end a continuing violation of federal law are

necessary to vindicate the federal interest in assuring the supremacy

of that law.” Green, 474 U.S. at 68. Accordingly, Ex parte Young

permits suits against state officials that “seek[] only prospective

injunctive relief in order to ‘end a continuing violation of federal law.’”

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (emphasis added)

(quoting Green, 474 U.S. at 68); see also Henrietta D. v. Bloomberg, 331

F.3d 261, 287 (2d Cir. 2003) (“The Eleventh Amendment, however,

does not preclude suits against state officers in their official capacity

for prospective injunctive relief to prevent a continuing violation of

federal law.” (emphasis added) (citing Ex parte Young, 209 U.S. at 155–

56)). In other words, the doctrine of Ex parte Young permits federal

60 courts to grant injunctions against state officials, but it only permits

injunctions to prevent future violations of federal law.

Turning to T.W.’s complaint, we conclude that the injunctive

relief she seeks is unavailable under Ex parte Young because it would

not prevent an alleged continuing violation of federal law. To be sure,

T.W.’s complaint alleges ongoing violations of federal law by the

Board and, by extension, by the individual defendants named in their

official capacities. For example, she alleges that the Board’s “acts,

policies, and practices discriminate against individuals with

disabilities, including those who have mental and/or cognitive

disabilities and require additional time, stop-clock breaks, and/or

separate, quiet testing areas.” J. App’x 31, ¶ 86. And she further

alleges that the Board has “failed to make reasonable modifications to

its policies and practices to ensure that Plaintiff and others with

disabilities do not face [] discrimination because of their disabilities.”

61 Id. 31, ¶ 89. In the context of her Title II claim, these allegations

amount to allegations that the Board continues to violate federal law.

But what is missing from T.W.’s complaint—and why her claim

for injunctive relief cannot go forward—is the necessary nexus

between the injunctive relief she seeks and the continuing violations

she alleges. T.W.’s requested injunctive relief does not seek to prevent

the Board’s alleged “fail first policies and practices” that she alleges

“discriminate against individuals with disabilities.” Id. 31, ¶¶ 86, 88.

Rather, she seeks an injunction against the Board “maintaining and

reporting records of Plaintiff’s examination results” and a

requirement that the Board “take affirmative steps to alleviate the

ongoing repercussions of the discriminatory test administration that

continue to hamper Plaintiff’s search for employment.” Id. 34. This

relief does not align with the alleged continuing violations of federal

law, because even if a court granted T.W. the full suite of injunctive

relief she seeks, the alleged federal law violations could continue.

62 T.W.’s complaint, we note, does not allege that the Board’s

maintenance of records of her failures violates federal law. “An

allegation of an ongoing violation of federal law where the requested

relief is prospective is ordinarily sufficient to invoke the Young

fiction.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997).

Therefore, if T.W. had alleged that the Board’s maintenance of records

violated Title II, her claim may well have survived. But T.W. makes

no allegation that the Board’s maintenance of records constitutes an

ongoing violation of her rights. The injunction she seeks is

accordingly unavailable.

T.W. contends that expungement is available under Ex parte

Young for either of two reasons. First, she argues that she “allege[s]

ongoing harm as a result of [the Board’s] maintenance of bar

examination records and refusal to expunge.” Reply Br. 25. This

argument, however, is unresponsive to the issue here. Even if she

alleges ongoing harm, injunctive relief under Ex parte Young must seek

63 to stop ongoing “violation[s] of federal law.” Green, 474 U.S. at 68

(emphasis added).

Second, T.W. points to the Ninth Circuit’s decision in Flint v.

Dennison, 488 F.3d 816, 824 (9th Cir. 2007), which she contends “noted

that Ex parte Young was available to expunge negative information in

a college student’s file that might jeopardize that student’s future

employment.” Reply Br. 26. That case, to be sure, did hold that

expungement of negative information from university records may

be available under Ex parte Young, because “they serve the purpose of

preventing present and future harm to [the plaintiff].” Flint, 488 F.3d

at 825. We find this case distinguishable from the issue here. The

quoted language from Flint came in the course of the court’s

determination that the injunctive relief sought by the plaintiff,

including expungement of records, “cannot be characterized solely as

retroactive.” Id. And we do not disagree with that conclusion as it

applies here—T.W.’s requested expungement relief may well be

64 prospective in nature. But even if the relief is prospective, T.W.’s

injunctive relief is unavailable under Ex parte Young because it is

aimed exclusively at a past violation; it does not seek to remedy an

alleged ongoing violation of federal law. We do not read Flint, 488 F.3d

at 825, as having addressed this question and, in any event, we would

not be bound by its holding even if it had.

III. Conclusion

In sum, we hold as follows:

1. The New York State Board of Law Examiners is an arm

of the state of New York for Eleventh Amendment

purposes in this case because the law of the case doctrine

settles that issue for this litigation.

2. Title II of the Americans with Disabilities Act does not

validly abrogate sovereign immunity as applied to

T.W.’s claim, and in the context of occupational choice

and professional licensing more broadly.

65 3. The declaratory relief sought by T.W. is unavailable

under the doctrine of Ex parte Young because it is purely

retrospective, rather than prospective, in nature.

4. The injunctive relief sought by T.W. is unavailable under

the doctrine of Ex parte Young because it does not seek to

remedy an alleged ongoing violation of federal law.

We therefore AFFIRM the district court’s dismissal of T.W.’s

Title II claim for compensatory, declaratory, and injunctive relief.