Ross v. The City University of New York
ORDER denying 12 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth in the attached Memorandum and Order, defendant's motion to dismiss is DENIED. By October 7, 2016, the parties shall submit a joint letter to the court indicating: (1) whether defendant consents to plaintiff's amendment of the Complaint to add claim(s) against Chancellor Milliken in his official capacity; and (2) whether the parties wish to be referred to mediation to help resolve this matter. Ordered by Judge Kiyo A. Matsumoto on 9/29/2016. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstTHE CITY UNIVERSITY OF NEW YORK,
as the political entity responsible
for Queens College,
MATSUMOTO, United States District Judge:
Plaintiff Kathleen Ross commenced this action pursuant
to Title II of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12131, et seq., and the Rehabilitation Act
of 1973, 29 U.S.C. § 794, et seq. (“Rehabilitation Act”) against
The City University of New York (“CUNY”), alleging that
architectural barriers at Queens College hinder her ability to
access services and utilize programs offered there.
Complaint (“Compl.”) dated 7/21/2015.)
(ECF No. 1,
Pending before the court
is CUNY’s motion to dismiss the Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of
subject matter jurisdiction and failure to state a claim for
which relief can be granted.
motion is denied.
For the following reasons, CUNY’s
Plaintiff suffers from cerebral palsy, which causes
her to use a walker as her primary means of mobility.
Due to her disability, plaintiff is unable to walk, stand,
or use her legs without assistance.
(Id. ¶ 5.)
Plaintiff was a student at Queens College when she
filed the Complaint on July 21, 2015.
(Id. ¶ 14.)
College, located in Flushing, New York (id. ¶ 7), is a senior
college in the CUNY system.
See N.Y. Educ. Law § 6202(5)
(defining “senior college” to mean “an institution of higher
education in the City of New York . . . but not including
community college”); Falcon v. City Univ. of New York, No. 15cv-3421, 2016 WL 3920223, at *1 (E.D.N.Y. July 15, 2016) (“CUNY
is the public university system of New York City.
College is a senior college within CUNY’s network.”).
undisputed that since filing the Complaint, plaintiff has
graduated from Queens College and is not presently enrolled
(See ECF No. 15, Defendant’s Memorandum in Support of
Motion to Dismiss (“Def. Mem.”) at 2; ECF No. 17, Plaintiff’s
Opposition to Motion to Dismiss (“Pl. Mem.”) at 2.)
1 Unless otherwise noted, all facts are taken from the Complaint and are
accepted as true for the purposes of this motion to dismiss. See Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
Plaintiff alleges that while attending Queens College
as a student she “tried to access numerous architectural
features but encountered numerous barriers which hindered her
ability to access the services and utilize the programs offered”
(Compl. ¶ 15.)
Although she has graduated, plaintiff
alleges that she resides in Queens County and, as an alumna and
community member, she “plans to return to [Queens College] in
the near future to utilize programs and activities administered”
(Compl. ¶¶ 3, 18.)
Plaintiff alleges that the “physical barriers to
access” on the Queen College campus include, inter alia: (1)
parking spaces “designated as accessible that do not have
vertical signage, do not have the proper sized access aisles,
[and] have access aisles that do not lead to curb cuts;” (2)
ramps lacking proper handrails; (3) restrooms that have doorways
that are too narrow, lack proper grab bars, have non-insulated
pipes under the sinks, and have mirrors, toilet seat cover
dispensers and hand dryers that are too far from the floor; (4)
fire alarm pulls, wall-mounted telephones, light switches, and
defibrillators that are too high off the floor; (5) vending
machines that have operable parts too high off the floor; (6)
“emergency kiosks” that do not contain proper clear floor space
and have parts too high off the floor; (7) outdoor areas with
inaccessible seating; (8) walkways between buildings with broken
and uneven sections; (9) sections of the Benjamin S. Rosenthal
Library that are completely inaccessible due to stairs; (10)
campus shuttle buses without lifts for the disabled; and (11) a
lack of handicap accessible seating in the dining hall and
(Compl. ¶ 23.)
Based on these alleged physical
barriers to access, plaintiff contends that Queens College has
discriminated against her, and continues to discriminate against
her, by “excluding her from participation in, and denying her
the benefits of” services, programs, and activities at Queens
(Id. ¶ 28.)
Plaintiff seeks a declaration that CUNY
is in violation of Title II of the ADA and the Rehabilitation
Act; an injunction requiring CUNY to make all “readily
achievable” alterations to Queens College; and an award of
compensatory damages, as well as attorneys’ fees and costs.
(Id. at pp. 12-13.)
Plaintiff filed this lawsuit on July 21, 2015, naming
as the sole defendant CUNY, “as the political entity responsible
for Queens College.”
(ECF No. 1.)
CUNY moved to dismiss the
Complaint on November 23, 2015, arguing that: (1) plaintiff
lacks standing to obtain injunctive or declaratory relief
because she is no longer a student at Queens College and fails
to allege a particularized “injury” from architectural barriers;
(2) the allegations in the Complaint fail to state a claim for
violation of either Title II of the ADA or the Rehabilitation
Act; and (3) plaintiff’s ADA claim is barred by the Eleventh
(ECF No. 12.)
Plaintiff filed an opposition
memorandum (ECF No. 17), to which CUNY replied.
(ECF No. 18.)
“A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
is well-settled that the “plaintiff bears the burden of proving
subject matter jurisdiction by a preponderance of the
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d
493, 497 (2d Cir. 2002)).
In reviewing a Rule 12(b)(1) motion
to dismiss, the court “must accept as true all material factual
allegations in the complaint, but [the court is] not to draw
inferences from the complaint favorable to plaintiff.”
rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.
The court “may consider affidavits and other materials
beyond the pleadings to resolve the jurisdictional issue, but
[it] may not rely on conclusory or hearsay statements contained
in the affidavits.”
To survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
Iqbal, 556 U.S. at 678.
providing only “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
In deciding a motion to dismiss
pursuant to Rule 12(b)(6), the court may refer to “documents
attached to the complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be taken, or
to documents either in plaintiffs’ possession or of which
plaintiffs had knowledge and relied on in bringing suit.”
v. Am Film Tech., Inc., 987 F.2d 142, 150 (2d Cir 1993)
(internal citations omitted).
Defendant first argues that plaintiff lacks standing
to bring her claims because she is no longer a student at Queens
College and therefore does not face a “real or immediate” injury
from the alleged architectural barriers on campus.
Plaintiff contends that her discriminatory treatment
is ongoing because she will encounter architectural barriers
when she returns to Queens College as an alumna for events and
programs held on campus, and as an “ADA tester.”
(Pl. Mem. at
Defendant counters that plaintiff’s intentions to return
to campus are too vague and uncertain to confer standing, and
amount to the type of “some day” intentions the Supreme Court
found insufficient to confer standing in Lujan v. Defenders of
Wildlife, 504 U.S. 555, 564 (1992).
(Def. Reply at 2.)
Defendant additionally argues that even if plaintiff is found to
have standing, she lacks standing “to seek an injunction for the
entire 80-acre campus.”
(Def. Mem. at 8.)
Article III, § 2 of the Constitution limits federal
jurisdiction to “Cases” and “Controversies.”
Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013); see
also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006) (“[N]o principle is more fundamental to the judiciary’s
proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or
controversies.”) (internal quotation marks and citations
To establish Article III standing, a plaintiff
generally must show: “(1) injury in fact, which must be (a)
concrete and particularized, and (b) actual or imminent; (2) a
causal connection between the injury and defendant’s conduct;
and (3) that the injury is likely to be redressed by a favorable
Bernstein v. City of New York, 621 Fed. App’x 56, 57
(2d Cir. 2015) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)).
In ADA actions seeking injunctive relief,
the Second Circuit has found standing “where (1) the plaintiff
alleged past injury under the ADA; (2) it was reasonable to
infer that the discriminatory treatment would continue; and (3)
it was reasonable to infer, based on the past frequency of
plaintiff’s visits and the proximity of [the accommodation] to
plaintiff's home, that plaintiff intended to return to the
Kreisler v. Second Ave. Diner Corp., 731
F.3d 184, 187-88 (2d Cir. 2013); see also Bernstein, 621 Fed.
App’x at 57-58 (applying test set forth in Kreisler to determine
plaintiff’s standing under Title II of the ADA).
In Kreisler, the Second Circuit applied these factors
and found standing (and therefore an “injury in fact”) where a
plaintiff with cerebral palsy alleged that: (1) a wheelchair
inaccessible entrance to a restaurant violated the ADA; (2)
plaintiff regularly frequented restaurants in his neighborhood;
(3) plaintiff lived in close proximity to the defendant’s
restaurant; and (4) plaintiff alleged that he would like to
frequent the defendant’s restaurant.
Kreisler, 731 F.3d at 188.
More recently, in Bernstein, the Second Circuit
applied these factors where the plaintiff sued the City of New
York under Title II of the ADA and the Rehabilitation Act based
on alleged violations preventing him, as a blind person, from
“equal or reasonable” access to Central Park.
621 Fed App’x at
The court found that plaintiff met the first Kreisler
factor – past injury under the ADA – because “plaintiff alleged
concrete factual allegations in support of his claim” that
defendant denied him equal or reasonable access to Central Park.
Specifically, the complaint included a list of “violative
conditions” at Central Park and alleged that plaintiff
personally experienced the violations as a result of his
Id. at 58.
The court held that plaintiff satisfied
the second Kreisler factor because it was “reasonable to infer”
from the complaint that the alleged violations would continue.
Id.; see also Kreisler, 731 F.3d at 188 (finding second element
satisfied where defendant “has not indicated an intent to remedy
Finally, with respect to the third Kreisler factor –
intent to return to the accommodation in the future – the
Bernstein court found that plaintiff, who lived in Michigan, did
not “provide any information regarding [his] intent to return to
the Park in the future,” and remanded the case to the district
court for further fact-finding on that issue.
621 Fed. App’x at
In doing so, the Second Circuit explained that in ADA
[i]ntent to return is a highly fact-sensitive
inquiry that incorporates a range of factors
including not only the proximity of the
defendant’s services, programs, or activities to
the plaintiff’s home and the frequency of the
plaintiff's past visits . . . but also other
factors relevant to the calculation of the
plaintiff’s intent to return such as occupation
or demonstrated travel habits.
Id. at 59 (internal citation omitted).
Defendant argues that “federal courts generally lose
jurisdiction to adjudicate claims for declaratory or injunctive
relief asserted by a student against a school, college, or
university when the student graduates.”
(Def. Mem. at 6.)
Although graduation obviously may reduce frequency of visits to
a university, a student’s graduation alone does not necessarily
preclude standing to bring Title II ADA or Rehabilitation Act
claims against that university.
Such a strict rule would be
inconsistent with the Second Circuit’s instruction in Kreisler
to evaluate an ADA and Rehabilitation Act plaintiff’s “intent to
return” to the accommodation at issue.
In support of its argument that plaintiff does not
have standing as a result of her graduation from Queens College,
defendant cites inapposite cases that did not involve alleged
ongoing ADA violations under Title II and, therefore, did not
apply the Kreisler factors relevant to the standing analysis in
this ADA action.
The cases cited by defendant address standing
to bring First Amendment claims after graduation from a
See, e.g., Fox v. Bd. of Trustees of State Univ. of
N.Y., 42 F.3d 135, 139-40 (2d Cir. 1994) (finding alumni of the
State University of New York (“SUNY”) at Cortland lacked
standing to bring First Amendment claims challenging a SUNY
regulation that prohibited commercial businesses from engaging
in sales demonstrations in dorm rooms).
Applying the Kreisler factors here, and accepting all
allegations in the Complaint as true for purposes of defendant’s
motion, the court finds that plaintiff has standing to pursue
her claims under Title II of the ADA and the Rehabilitation
First, the Complaint includes concrete allegations of
As in Bernstein, the Complaint alleges a series of
“violative conditions” that plaintiff encountered while
attempting to access Queens College.
(Compl. ¶ 23.)
also alleges that she personally experienced at least some of
For example, the Complaint states that
plaintiff encountered great difficulty in her attempts to use
(Id. ¶ 16.)
Plaintiff also states that certain
areas of the Benjamin S. Rosenthal Library are “completely
inaccessible” to plaintiff due to stairs.
shuttle bus is “not accessible” to plaintiff because it does not
have a “lift” to assist disabled passengers.
the maintenance crew routinely plows snow onto accessible ramps,
impeding plaintiff’s access to the property.
Additionally, it is reasonable to infer that plaintiff
personally has been denied reasonable access to the Student
Union, where there is “no accessible seating,” and the campus
dining hall, where there is “no disabled seating” in the dining
These particularized instances of inaccessibility
satisfy the first prong of the Kriesler test.
Second, there is no indication in the Complaint that
Queens College intends to remedy the allegedly violative
Thus, it is reasonable to infer that those
conditions will persist.
See Kreisler, 731 F.3d at 188 (finding
second factor satisfied where defendant “has not indicated an
intent to remedy th[e] barrier”).
Finally, plaintiff’s allegations are sufficient to
establish intent to return to Queens College.
longer a student there, plaintiff lives in close proximity to
Queens College (i.e., in Queens County) and alleges intent to
return to campus as an alumna for programs and activities
(Compl. ¶¶ 21-22) and to attend public events.
(ECF No. 17-1,
Affidavit of Kathleen Ross (“Ross Affidavit”) dated 12/19/2015
¶¶ 6-8.) 2
Plaintiff’s allegations and sworn statements provide
far more than the vague “some day” intentions to return that the
Supreme Court has found insufficient to confer standing.
Lujan, 504 U.S. at 564.
Indeed, plaintiff has already returned
to Queens College since her graduation - for a “Thanksgiving
Potluck” in November 2015 - and encountered barriers to access.
(Ross Affidavit ¶ 7.)
And according to the Queens College
Foundation 2015 Alumni Calendar attached to plaintiff’s
opposition brief (ECF No. 17-2), official alumni events (1) are
held often on campus, and (2) are held regularly at the Benjamin
S. Rosenthal Library, parts of which plaintiff alleges are
“completely inaccessible” to her. 3
Based on plaintiff’s geographic proximity to her alma
mater, her demonstrated history of returning to campus after
graduation, her alleged plans to continue to return to campus,
and the official events regularly offered on campus for alumni,
it is reasonable to infer that plaintiff intends to return to
Having met the three Kreisler factors, the
2 Plaintiff’s affidavit is attached to her Memorandum in Opposition to
Defendant’s Motion to Dismiss. When considering a Rule 12(b)(1) motion to
dismiss for lack of standing, “it is within the trial court's power to allow
or to require the plaintiff to supply, by amendment to the complaint or by
affidavits, further particularized allegations of fact deemed supportive of
plaintiff’s standing.” Warth v. Seldin, 422 U.S. 490, 501 (1975); see
also Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994).
The Queens College website refers to the Benjamin S. Rosenthal Library as
the “mecca of campus activity and learning.” (See Queens College Libraries
website, available at: https://library.qc.cuny.edu/information/welcome.php.)
(last visited 9/29/2016).)
court concludes that plaintiff has standing to pursue her
See, e.g., Brown v. St. John’s University, No. 08-cv-
2218, slip. op. at 8 (E.D.N.Y. June 28, 2010) (finding that
former student who had graduated six years prior to bringing
suit against defendant-university had standing to sue for ADA
and Rehabilitation Act violations where “plaintiff alleges that
‘he continues to regularly visit the campus as an alumni to use
the library, attend various campus events and activities, and to
see friends’”). 4
Accordingly, defendant’s motion to dismiss for
lack of standing is denied.
Defendant’s fallback argument that
even if plaintiff does have standing, she lacks standing “to
seek an injunction for the entire 80-acre campus” is unavailing
because the argument challenges the scope of relief plaintiff
seeks – not whether plaintiff has standing to sue in the first
Plaintiff’s ADA and Rehabilitation Act Claims
Title II of the ADA requires that “no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
4 The court need not reach plaintiff’s argument that her intention to serve as
an “ADA tester” confers standing because of the court’s finding that
plaintiff has alleged sufficient facts to find standing. See Harty v. Bull’s
Head Realty, No. 3:11-cv-1760, 2013 WL 1131625, at *5 (D. Conn. Mar. 18,
2013) (declining to consider status as ADA tester as basis for standing and
noting that “the issue of [ADA] tester status is unsettled in this Circuit”).
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132.
Section 504 of the Rehabilitation Act
requires that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance . . . .”
U.S.C. § 794(a).
“Although its terms are broadly drawn, the
Rehabilitation Act incorporates the standards of the Americans
with Disabilities Act.”
Cheung v. Donahoe, No. 11–CV–122, 2016
WL 3640683, at *5 (E.D.N.Y. June 29, 2016).
Second Circuit has held that the Rehabilitation Act and the ADA
impose identical requirements.”
Gentile v. Potter, 509 F. Supp.
2d 221, 231 n.5 (E.D.N.Y. 2007); see also Rodriguez v. City of
New York, 197 F.3d 611, 618 (2d Cir. 1999) (considering ADA and
Rehabilitation claims “in tandem” because “Section 504 of the
Rehabilitation Act and the ADA impose identical requirements”).
The court, therefore, will consider defendant’s Rule 12(b)(6)
challenge to plaintiff’s ADA and Rehabilitation Act claims
To establish a prima facie violation of the ADA or the
Rehabilitation Act, plaintiff must show that 1) she is a
qualified individual with a disability; 2) CUNY is an entity
subject to the ADA and the Rehabilitation Act; and 3) plaintiff
was denied the opportunity to participate in or benefit from
Queens College’s services, programs, or activities, or Queens
College otherwise discriminated against her by reason of her
See Henrietta D. v. Bloomberg, 331 F.3d 261, 272
(2d Cir. 2003) (citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.
With respect to the third element, the Second Circuit
has explained that Title II of the ADA and the Rehabilitation
Act “require only that entities make ‘reasonable accommodations’
to enable ‘meaningful access’ to services, programs, and
Bernstein, 621 Fed. App’x at 59-60.
Defendant concedes for purposes of this motion that
plaintiff is a qualified individual with a disability and that
CUNY is generally subject to the ADA and Rehabilitation Act.
(Def. Mem. at 10.) 5
Defendant, however, challenges the third
element necessary to show an ADA or Rehabilitation Act
violation, arguing that plaintiff has not identified any
services, programs, or activities at Queens College to which she
was denied “meaningful access” due to architectural barriers.
(Def. Mem. at 11.)
The court disagrees, and finds that plaintiff has
stated claims for relief under both the ADA and the
Plaintiff alleges, among other things, that
5 Defendant’s argument that plaintiff’s ADA claim is barred by the Eleventh
Amendment is addressed in Section III, infra.
while on campus she: (1) cannot access certain areas of the main
library; (2) has difficulty using bathrooms due to inadequate
door width, sinks with exposed pipes, absent grab bars, and
amenities that are too high off the floor; (3) cannot access
“emergency kiosks” on campus due to lack of clear floor space;
(4) cannot access campus shuttle buses because they lack lifts
for disabled passengers; and (5) cannot access seating in the
Student Union or dining hall.
(Compl. ¶ 23.)
allegations as true and drawing all reasonable inferences in
plaintiff’s favor, as the court must, plaintiff has plausibly
alleged that she is being denied “meaningful access” to services
(e.g., shuttle bus transportation) and activities (e.g., dining
at the main dining hall) at Queens College.
court denies defendant’s Rule 12(b)(6) motion to dismiss for
failure to state a claim.
Eleventh Amendment Immunity
Finally, defendant argues that Eleventh Amendment
sovereign immunity bars plaintiff’s ADA claim against CUNY.
(Def. Mem. at 13-17.)
Plaintiff responds that the court need
not decide this immunity issue at the pleadings stage.
Mem. at 23-24.)
In the alternative, plaintiff argues that
Congress has validly abrogated defendant’s sovereign immunity
under Title II of the ADA.
(Id. at 24-28.)
The Eleventh Amendment 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.”
U.S. CONST. amend.
The Supreme Court has long held that the Eleventh Amendment
bars suits against a state by one of its own citizens, unless
(1) the state consents to be sued, or (2) Congress validly
abrogates the state’s immunity.
See Coll. Sav. Bank v. Fl.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670
The parties agree that defendant has consented to be
sued under the Rehabilitation Act because it receives federal
Congress enacted the Rehabilitation Act pursuant to
its authority under the Spending Clause.
When acting pursuant
to the Spending Clause, “Congress may provide funds to the
states and may require that the states, as a condition of
receiving those funds, waive their sovereign immunity.”
v. City University of New York, 18 F. Supp. 3d 320, 330
(E.D.N.Y. 2014) (citing Garcia v. S.U.N.Y. Health Sciences Ctr.
Of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001).
Section 504 of
the Rehabilitation Act prohibits a program that receives federal
funding from discriminating against a person based on a
29 U.S.C. § 794(a).
The Second Circuit has held
that Section 504 of the Rehabilitation Act “constitutes a clear
expression of Congress’s intent to condition acceptance of
federal funds on a state’s waiver of its Eleventh Amendment
Garcia, 280 F.3d at 113; Keitt v. New York City, 882
F. Supp. 2d 412, 425 (S.D.N.Y. 2011) (“Rehabilitation Act claims
are not barred by the 11th Amendment because New York has waived
sovereign immunity with respect to those claims.”).
acknowledges that plaintiff’s Rehabilitation Act claim is not
barred by the Eleventh Amendment because CUNY receives federal
(Def. Mem. at 14 n.4.)
The parties dispute whether the Eleventh Amendment
bars plaintiff’s ADA claim.
Section 5 of the Fourteenth
Amendment allows Congress to abrogate a state’s sovereign
immunity when it does so to enforce the substantive guarantees
of that Amendment.
Tennessee v. Lane, 541 U.S. 509, 518 (2004).
With respect to state immunity under Title II of the ADA,
Congress provided that:
A state shall not be immune under the eleventh
amendment to the Constitution of the United
States from an action in Federal or State court
of competent jurisdiction for a violation of this
chapter. In any action against a State for a
violation of the requirements of this chapter,
remedies (including remedies both at law and in
equity) are available for such a violation to the
same extent as such remedies are available for
such a violation in an action against any public
or private entity other than a State.
42 U.S.C. § 12202.
In United States v. Georgia, the Supreme
Court considered this provision of the ADA and held that
“insofar as Title II creates a private cause of action for
damages against the States for conduct that actually violates
the Fourteenth Amendment, Title II validly abrogates state
546 U.S. 151, 159 (2006) (emphasis in
Although Georgia held that Congress validly
abrogated states’ sovereign immunity for certain claims under
Title II of the ADA (i.e., Title II violations that also violate
the Fourteenth Amendment), it “explicitly left open the question
of whether Congress may validly abrogate sovereign immunity with
respect to a particular class of misconduct that violates Title
II but does not violate the Fourteenth Amendment.”
Univ. at Buffalo Sch. of Med. & Biomedical Sci., 804 F.3d 178,
194 (2d Cir. 2015).
This “open question” is relevant here
because plaintiff arguably does not allege a specific
constitutional violation against CUNY.
After Georgia, the
Second Circuit has not decided whether abrogation of immunity is
enforceable in the circumstance presented here: a Title II ADA
claim brought against a public educational institution where
arguably there is no specific constitutional violation alleged.
See Dean, 804 F.3d at 195 (“We express no position as to the
question of whether Congress has validly abrogated sovereign
immunity in the context of discrimination in access to public
education on the basis of disability.”)
In the absence of guidance from the Second Circuit,
the court need not resolve this issue at the pleadings stage.
See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
439, 445–46 (1988) (discussing the “fundamental and longstanding
principle of judicial restraint [that] requires courts avoid
reaching constitutional questions in advance of the necessity of
Because sovereign immunity does not bar
plaintiff’s Rehabilitation Act claim, the court has subject
matter jurisdiction over this action regardless of CUNY’s
immunity from the ADA claim.
Consequently, there is no risk of
violating CUNY’s “right not to be haled into court” when it is
immune from suit.
See Smith v. Reagan, 841 F.2d 28, 30 (2d Cir.
Moreover, the remedies available to plaintiff under
Title II of the ADA and the Rehabilitation Act are identical.
See 42 U.S.C. § 12133 (requiring that remedies, procedures and
rights under Title II of ADA are identical to those under § 504
of the Rehabilitation Act); see also Pace v. Bogalusa v. City
Sch. Bd., 403 F.3d 272, 287-89 (5th Cir. 2005) (finding it
unnecessary to address abrogation under Title II of the ADA
“given that [Title II’s] rights and remedies are identical to
and duplicative of those provided in § 504”).
Thus, as a
practical matter, this case will proceed on the same course
regardless of whether CUNY may later be found immune from
plaintiff’s ADA claim. 6
Defendant’s motion to dismiss
plaintiff’s ADA claim on sovereign immunity grounds is denied.
For the foregoing reasons, defendant’s motion to
dismiss is denied.
By October 7, 2016, the parties shall submit
a joint letter to the court indicating: (1) whether defendant
consents to plaintiff’s amendment of the Complaint to add
claim(s) against Chancellor Milliken in his official capacity;
and (2) whether the parties wish to be referred to mediation to
help resolve this matter.
September 29, 2016
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
6 In any event, plaintiff represents that it will move to amend the Complaint
to assert an ADA claim against CUNY Chancellor James B. Milliken in his
official capacity under the exception to Eleventh Amendment immunity
established in Ex parte Young, 209 U.S. 123 (1908). (Pl. Mem. at 28 n.52.)
Defendant concedes that the Eleventh Amendment would not bar an ADA claim for
prospective declaratory and injunctive relief against Chancellor Milliken in
his official capacity (Def. Reply at 8.), which effectively would moot the
sovereign immunity issue altogether.
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