Wyche v. New York State Board of Law Examiners
Filing
113
MEMORANDUM AND ORDER: Defendants' Motion to Dismiss is granted in its entirety and Plaintiff's Complaint is dismissed with prejudice. SO Ordered by Judge Raymond J. Dearie on 7/19/2022. (Tavarez, Jennifer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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T.W.,
Plaintiff,
- against -
MEMORANDUM & ORDER
16-cv-3029 (RJD) (MMH)
NEW YORK STATE BOARD OF LAW EXAMINERS;
DIANE BOSSE; JOHN J. MCALARY;
BRYAN WILLIAMS; ROBERT MCMILLEN;
E. LEO MILONAS; and MICHAEL COLODNER,
Defendants.
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DEARIE, District Judge
Plaintiff T.W. alleges that the New York State Board of Law Examiners (“the Board”)
discriminated against her in violation of Title II of the Americans with Disabilities Act (“ADA”)
when it denied her requests for certain accommodations on the New York State bar examination
in 2013 and 2014. The Board moves to dismiss T.W.’s Complaint, arguing that the Board is
immune from the suit under the Eleventh Amendment. We conclude (i) that the Board is entitled
to immunity as an “arm of the state”; (ii) that Congress’ attempt to abrogate state immunity from
Title II suits for money damages was not constitutionally valid as applied to T.W.’s claim; and
(iii) that T.W. cannot maintain her requests for injunctive and declaratory relief under Ex parte
Young, 209 U.S. 123 (1908). Defendants’ Motion to Dismiss is granted in its entirety.
PROCEDURAL BACKGROUND
T.W. originally brought claims against the Board and its members for disability
discrimination under Titles II and III of the ADA, Section 504 of the Rehabilitation Act, and the
New York City Human Rights Law. See Compl., ECF No. 1, ¶ 3. She also sought injunctive and
declaratory relief against the individual members of the Board. Id. In 2017 we dismissed T.W.’s
Title III and New York City Human Rights Law claims, as well as her damages claims against
the individual members of the Board. See ECF No. 32 at 1. Her declaratory and injunctive relief
claims against the individual members of the Board remained. See id. at 7 n.1. The Second
Circuit subsequently dismissed T.W.’s Rehabilitation Act claim and remanded for proceedings
on T.W.’s Title II claims, on which we had deferred ruling. See T.W. v. New York State Bd. of
L. Exam’rs, 996 F.3d 87 (2d Cir. 2021). The parties then briefed Defendants’ Motion to Dismiss
the Title II claim, which the Court now addresses.
DISCUSSION
I. Arm of the State
The Eleventh Amendment bars private suits against states and state agencies unless
Congress validly abrogates that immunity or the state waives it. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Kelly v. N.Y. State Unified Ct. Sys., No. 21-1633,
2022 WL 1210665, at *2 (2d Cir. Apr. 25, 2022). Although the Board is not a state agency, it
nevertheless qualifies for Eleventh Amendment immunity if it can demonstrate that it is an “arm
of the state” rather than an entity independent of the state like a political subdivision or other
municipal corporation. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977). The Second Circuit established a six-part “arm of the state” test in Mancuso v. New York
State Thruway Authority, 86 F.3d 289 (1994), which asks:
(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 the entity’s actions; and
(6) whether the entity’s obligations are binding upon the state.
Id. at 293. If the six factors point in different directions, courts look to two tiebreaking
factors: whether allowing the entity to be sued in federal court would “expose the state treasury
2
to risk” or “threaten the integrity of the [s]tate.” Id. Between the two tiebreakers, the impact on
the state treasury is the factor entitled to dispositive weight. See Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 48–49 (1994). The Board bears the burden of demonstrating that it
qualifies as an arm of the state. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466
F.3d 232, 237 (2d Cir. 2006).
While we have located no previous Mancuso analysis with respect to the Board, we note
that a plethora of legal authorities, including this Court, have suggested or assumed that the
Board’s relationship to New York’s judicial branch (also known as the Unified Court System or
“UCS”)1 renders the Board an arm of the state or otherwise immune from suit. In Bartlett v. N.Y.
State Board of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y. 1997) then-Judge Sotomayor
recognized, “[t]here is no dispute that the Board is a creature of the State.” Id. at 1118. In its
earlier decision in this case, the Second Circuit characterized the Board as an “arm of the State of
New York” which “shares in [New York’s sovereign] immunity,” without further analysis. T.W.,
996 F.3d at 92 (cleaned up). And at an earlier oral argument in this case, I observed that the
“Board of Law Examiners is a creature of the Court of Appeals via the Judiciary Act.” March 20,
2019 Hearing Transcript at 8:23-4. While these statements strongly suggest that the Board is an
arm of the state, for the avoidance of doubt, we analyze the Mancuso factors.
The first Mancuso factor, which asks how the Board is referred to in the documents that
created it, weighs in favor of immunity. While nothing in the Judiciary Law, which established
the Board, explicitly refers to the Board either as an arm of the state or an independent entity, the
1
The UCS itself is an arm of the state entitled to Eleventh Amendment immunity. Sutter v.
Dibello, No. 18-cv-817, 2019 WL 4195303, at *6 (E.D.N.Y. Aug. 12, 2019) (“[T]here is no
dispute that UCS is an administrative arm of the State of New York.”), report and
recommendation adopted, 2019 WL 4193431 (E.D.N.Y. Sept. 4, 2019).
3
organization of the Board as contemplated by the Judiciary Law suggests that it was envisioned
as a subunit of the Court of Appeals, itself entitled to immunity as a state agency. See Richards
v. State of N.Y., 597 F. Supp. 692, 693 (E.D.N.Y. 1984). The Judiciary Law authorizes the Court
of Appeals to “appoint five members of the bar to constitute the state board of law examiners,”
N.Y. Jud. L. § 56, and to “prescribe rules providing for a uniform system of examination of
candidates to practice as attorneys and counsellors, which shall govern the state board of law
examiners in the performance of its duties,” N.Y. Jud. L. § 53; see also Matter of Brennan, 243
N.Y.S. 705, 711–12 (N.Y. App. Div. 1930) (noting same). As we concluded in 2019 based on
our review of the Judiciary Law and the structure of the Board, the “legislature clearly intended
that the Board would function under the supervision of the Chief Judge and the Court of
Appeals. . . . Such strong administrative ties usually indicate that an entity is not independent [of
a department or agency.]” ECF No. 86 at 10.
Against a similar factual backdrop, the District of Rhode Island concluded that the Rhode
Island Board of Law Examiners was an arm of the state by virtue of its connection to the state
supreme court. Sinapi v. R.I. Bd. of Bar Exam’rs, No. 15-cv-311, 2016 WL 1562909 (D.R.I.
Apr. 15, 2016), aff’d, 910 F.3d 544 (1st Cir. 2018). The court found that the Board’s immunity
followed from the fact that “the Rhode Island Supreme Court is an arm of the State of Rhode
Island and the Board is an administrative arm of the Rhode Island Supreme Court.” Id. at *2. The
same is true under New York law. The legislature established the Board to serve as a delegated
operation of the Court of Appeals, not as an independent entity. We agree with the Board that its
legislative mandate and organizational structure indicate that it is an arm of the state.
The second Mancuso factor, the appointment of the Board’s members, weighs in favor of
immunity because members are appointed by the Court of Appeals, rather than by a source
4
independent of the state. See N.Y. Jud. L. § 56; see also Woods v. Rondout Valley Cent. Sch.
Dist. Bd of Educ., 466 F.3d 232, 244 (2d Cir. 2006) (noting that appointment by state officials
weighs in favor of immunity).
The third Mancuso factor, funding, also weighs in favor of immunity. T.W. contends that
the Board’s use of funds from attorney registration fees renders it a self-sufficient entity. T.W.
Br. at 20-21. But this assertion belies the nature of the Board’s funding. The Board does not
collect or control attorney registration fees. These fees are housed within the state treasury as
part of the Attorney Licensing Fund (“ALF”), which supports various UCS operations including
the Board. T.W. Br. at 20; McAlary Dep., ECF No. 83-9, at 67:22-68:7 (“[A]ll of the [ALF]
funds actually lie . . . with the state treasury.”). The legislature, not the Board, sets the attorney
registration fees that support the ALF and designates the programs supported by the ALF. N.Y.
Jud. L. § 468-a(4).2 The Board, therefore, does not resemble self-funded entities like the Port
Authority in Hess or the Thruway Authority in Mancuso, which fund themselves by issuing
bonds, tolls, or obtaining private financing. See Hess, 513 U.S. at 36 (“the Port Authority was
conceived as a financially independent entity, with funds primarily derived from private
investors. Tolls, fees, and investment income account for the Authority’s secure financial
position”) (cleaned up). Unlike those entities, the Board is incapable of “paying its own way.” Id.
at 49.
The Board is also reliant on the three branches of state government for budgetary
appropriations. The Board submits budget requests to the Court of Appeals for inclusion in the
overall UCS budget, which is subject to UCS revision. T.W. 2018 Br., ECF No. 83, at 10-11.
2
See also Sponsor Memorandum to SB6500, available at:
https://www.nysenate.gov/legislation/bills/2021/s6500 (noting that the legislature has raised the
bar examination fee twice and has used the increased revenue for programs of its choice).
5
The UCS budget is then presented to the legislature and governor for approval. See McAlary
Dep. at 40:20-42:10; Witting Dep., ECF No. 83-1, at 40:5-43:10; 60:21-61:9. As we concluded
in 2019, “[u]nder state law, the Board is both administered and funded as part of New York’s
judicial branch.” ECF No. 86 at 12. These facts do not support T.W.’s depiction of the Board as
an independent, self-sufficient entity. 3 Indeed, T.W. noted in an earlier filing that the Board “is
not self-funding, [the Board]’s funding is completely dependent on UCS’s budget allocations to
[the Board].” T.W. 2018 Br. at 9.
The fourth Mancuso factor, whether the Board’s function is traditionally one of state
government, weighs in favor of immunity because the Board is tasked with statewide regulation
of attorney admission. We disagree with T.W.’s contention that the Board “does not perform a
central governmental function because it is not a licensing authority” and is essentially a private
entity that simply administers a test. T.W. Br. at 21. Even as one of several steps in the attorney
licensing process, the administration of the bar examination plays a critical gatekeeping role in
the regulation of attorneys within the state. As the Court of Appeals has noted, “no application
[for admission to practice law in New York] may be entertained . . . unless the Board of Law
Examiners . . . has certified that the applicant has successfully completed the examination
process.” Matter of Anonymous, 78 N.Y.2d 227, 230 (1991).
The fifth factor, state veto power over the Board, is the only Mancuso factor weighing
against immunity. The Board does not dispute that the state lacks veto power over it. In fact, the
3
T.W. also notes that the Board does not rely on taxpayer dollars. T.W. Br. at 20-21. But the fact
that the Board does not currently use taxpayer dollars does not preclude it from doing so in the
future. A state senate bill forecasting an ALF insolvency, for example, states: “Should the [ALF]
actually become insolvent, and unable fully to cover [admission and licensing] costs, the
Judiciary will have no option but to use General Fund moneys i.e., state taxpayer dollars - to
make up the difference.” See Sponsor Memorandum to SB6500.
6
Board notes that while the Court of Appeals sets overall objectives for the Board, it “does not
review the Board’s reasonable accommodation decisions or individual grading decisions.” Def.
Rep., ECF No. 111, at 11. And as we previously concluded, “[t]he Board ultimately manages its
operations without any daily control or guidance from the Court of Appeals.” ECF No. 86 at 9.
Finally, the sixth factor, the state’s responsibility for a judgment against the Board, as
well as the dispositive, tie-breaking consideration of impact on the state treasury, both weigh in
favor of immunity. The parties agree that the Board would satisfy a monetary judgment against it
using ALF funds. See T.W. Br. at 24-26; Def. Rep. at 17. As recited above, the ALF is a state
fund housed within the state treasury; the legislature sets registration fees and designates the
allocation of ALF proceeds. It therefore stands to reason, as the Board submits, that any
judgment against the Board will impact the state treasury.
Moreover, unlike Mancuso and other cases finding against immunity, no statutory
provision insulates the state from the Board’s debts. Cf. 86 F.3d at 296 (noting New York law
“expressly provides that the state shall not be liable for the obligations of public corporations,
such as the Thruway Authority”); see also Aguilar v. N.Y. Convention Ctr. Operating Corp., 174
F. Supp. 2d 49, 53 (S.D.N.Y. 2001) (noting that statute governing defendant entity, which
“expressly provides that ‘[t]he obligations of the corporation shall not be debts of the state,’”
weighed heavily against immunity). This point represents a critical factor distinguishing the
Board from the State Bar of Oregon, which the Ninth Circuit recently concluded was not an arm
of the state: a state statute exempts Oregon from any indebtedness incurred by its state bar. See
Crowe v. Oregon State Bar, 989 F.3d 714, 731-33 (9th Cir. 2021). No such provision of New
7
York law exists with respect to the Board. 4 Moreover, unlike the Board here, the Oregon State
Bar received no appropriations from the legislature and was entirely self-funded through
membership dues. Id. at 731. This is a logical distinction given that the Board, unlike the
Thruway Authority or the Oregon State Bar, is incapable of independently raising funds to
satisfy a debt.
In sum, five of the six Mancuso factors, along with the tiebreaking conclusion that the
state is liable for the Board’s debts, counsel in favor of immunity. We conclude on this record
that T.W.’s suit, “in effect, is against the state and must be so treated.” State Highway Comm'n
of Wyo. v. Utah Const. Co., 278 U.S. 194, 199 (1929). The Board is entitled to immunity from
T.W.’s suit under the Eleventh Amendment.
II. Abrogation of Immunity
T.W. contends that even as an arm of the state, the Board should be subject to her suit
because Title II abrogates state sovereign immunity. See 42 U.S.C. § 12202 (“A State shall not
be immune under the Eleventh Amendment . . . for a violation of this chapter.”). Congress may
lawfully abrogate immunity in certain contexts pursuant to its authority under Section 5 of the
Fourteenth Amendment to “enforce, by appropriate legislation, the provisions of [the Fourteenth
Amendment].”
4
T.W. equates Section 41 of the New York State Finance Law to these provisions. That law,
titled, “Indebtedness not to be contracted without appropriation,” provides in relevant part that
no state board shall “contract indebtedness on behalf of the state, nor assume to bind the state, in
an amount in excess of money appropriated or otherwise lawfully available.” N.Y. State Finance
L. § 41. Our reading of this statute, and the limited number of cases citing it, leads us to the
conclusion that it precludes state boards from entering into contracts in excess of appropriated
funds but would not make it unlawful for the Board to go into debt. T.W. provides no support for
her assertion that this law means that the state would have no obligation to cover the Board’s
debts and no explanation for how, if it did, the Board would satisfy a debt against it given that
the Board has no source of independent funding.
8
The authority of Congress to enact so-called “prophylactic” measures through Section 5,
however, is not absolute. It is generally limited to remedying actual Fourteenth Amendment
violations and a “somewhat broader swath of conduct, including that which is not itself
forbidden by the Amendment’s text,” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000), but
that is necessary to “remedy or deter actual violations,” Bolmer v. Oliveira, 594 F.3d 134, 146
(2d Cir. 2010). To determine whether Congress has acted within the scope of its Section 5
authority in abrogating immunity, courts require that Congress’ abrogation be supported by a
history of constitutional violations and a remedy that is congruent and proportional to the
documented violations. Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 43 (2012).
The Supreme Court in United States v. Georgia, 546 U.S. 151 (2006) established a threestep process to guide the assessment of whether abrogation under Title II is appropriately tailored
to a constitutional violation. Id. at 159. On a claim-by-claim basis, a court must determine: (1)
which aspects of the state’s alleged misconduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment, if at all; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment, whether Congress’ purported
abrogation of sovereign immunity as to that class of conduct is nevertheless valid. Id. We thus
analyze whether Title II’s abrogation of immunity is a constitutional exercise of Section 5
authority as applied to bar examination accommodations. While this appears to be a question of
first impression within the Second Circuit, a number of district courts elsewhere have analyzed
the issue and determined that Title II abrogation in this context exceeds the scope of Congress’
prophylactic authority under Section 5.5 We now join them.
5
See Kohn v. State Bar of Calif., 497 F. Supp. 3d 526, 538 (N.D. Cal. 2020); Block v. Tex. Bd.
of L. Examiners, No. 18-cv-386, 2019 WL 433734, at *3 (W.D. Tex. Feb. 1, 2019); Oliver v. Va.
9
1. Whether the Board’s alleged conduct violated Title II
At the first Georgia step we ask whether any aspect of the Board’s alleged misconduct
constitutes a violation of Title II. See Mary Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144,
152 (2d Cir. 2013) (noting at the first Georgia step that “if a plaintiff cannot state a Title II claim,
the court’s sovereign immunity inquiry is at an end.”); Goonewardena v. New York, 475 F.
Supp. 2d 310, 324 (S.D.N.Y. 2007).
To state a claim for Title II discrimination, T.W. must establish (1) that she is a “qualified
individual” with a disability; (2) that the Board is subject to the ADA; and (3) that she was
denied the opportunity to participate in or benefit from the Board’s services, programs, or
activities, or was otherwise discriminated against by the Board by reason of her disability. Lipton
v. N.Y.U. Coll. of Dentistry, 507 F. App’x 10, 10-11 (2d Cir. 2013). T.W. satisfies this burden.
She alleges that she is a qualified individual with a disability, Compl. ¶¶ 6, 76-77, that the Board
is subject to the ADA, id. ¶ 78, and the Board discriminated against her on the basis of her
disability by denying her the full set of reasonable accommodations she requested on the bar
examination, id. ¶¶ 87-89. While the Board may be able to demonstrate that the accommodations
it provided to T.W. were reasonable, accepting T.W.’s allegations as true at the motion to
dismiss stage, T.W. has plausibly alleged that the Board violated Title II by failing to reasonably
accommodate her disability.
2. Whether the Board’s alleged Title II violation also violated the Fourteenth Amendment
Bd. of Bar Exam’rs, 312 F. Supp. 3d 515 (E.D. Va. 2018); Glueck v. Nat’l Conf. of Bar Exam’rs,
No. 17-cv-451, 2017 WL 5147619, at *5 (W.D. Tex. Nov. 3, 2017); Brewer v. Wis. Bd. of Bar
Exam’rs, No. 04-c-0694, 2005 WL 8164755, at *6 (E.D. Wis. Oct. 24, 2005); Simmang v. Tex.
Bd. of L. Exam’rs, 346 F. Supp. 2d 874, 883 (W.D. Tex. 2004).
10
Applying rational basis review because disability is not a suspect classification, we find
no basis to conclude that the Board’s alleged failure to provide certain accommodations to T.W.
violated the Fourteenth Amendment. See City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 446 (1985). T.W. concedes as much in her opposition brief. See T.W. Br. at 31.
3. Whether Congress’ abrogation was nevertheless valid
Having found that the Board’s alleged conduct violated Title II but not the Fourteenth
Amendment, we move to the third step of the Georgia framework to determine whether
abrogation in this case can nevertheless be considered a valid exercise of Congress’ Section 5
power. This challenge requires us to perform the three-step “congruence and proportionality”
inquiry based on City of Boerne v. Flores, 521 U.S. 507 (1997): first, we identify the scope of
the constitutional right at issue, if any; second, we examine whether in enacting Title II Congress
identified a history and pattern of unconstitutional discrimination by the states in the relevant
context; and third, we determine whether the rights and remedies created by Title II are
congruent and proportional both to the constitutional rights it purports to enforce, if any, and the
record of constitutional violations adduced by Congress, if any. Garrett, 531 U.S. at 365, 368,
372-73.
First, whether framed as the right to bar examination accommodations, or the right to
practice law, T.W.’s complaint implicates no constitutional right nor any fundamental right
subject to heightened judicial scrutiny. See Block, 2019 WL 433734, at *3 (“This Court’s
research indicates that every court that has addressed the issue has concluded that the practice of
law is not a fundamental right.”); Jones v. Bd. of Comm’rs of Ala. State Bar, 737 F.2d 996, 1000
(11th Cir. 1984) (finding no fundamental right to take the bar examination and noting that the
Supreme Court “has never held that the right to pursue a particular occupation is a fundamental
11
right”); Smith v. Walsh, 519 F. Supp. 853, 858 (D. Conn. 1981) (“Nor is there any fundamental
right to obtain a license to practice a certain profession.”).
Cognizant of this caselaw, T.W. attempts instead to analogize her case to Tennessee v.
Lane, 541 U.S. 509 (2004), which held that Congress validly abrogated Title II as applied to the
right of access to the courts. See T.W. Br. at 37. The other case T.W. relies on, Mosier v.
Kentucky, 675 F. Supp. 2d 693 (E.D. Ky. 2009), like Lane, found that state sovereign immunity
did not block the suit of a deaf attorney whose fundamental right to court access was infringed
when the state denied her a courtroom interpreter, effectively excluding her from judicial
proceedings. Id. at 699. But T.W. is situated differently than the petitioners in Lane and Mosier.
Those decisions held that abrogation was proper because the use of Section 5 authority was
sufficiently tailored to deterring violations of the fundamental right to court access. See Lane 541
U.S. at 522-23 (Title II “seeks to enforce a variety of other basic constitutional guarantees,
infringements of which are subject to more searching judicial review . . . these rights include
some, like the right of access to the courts at issue in this case, that are protected by the Due
Process Clause of the Fourteenth Amendment.”). As a bar examination candidate, on the other
hand, T.W. was several steps removed from any judicial process and cannot conceivably argue
that her failure to receive bar examination accommodations denied her due process. Cf. id. at 514
(noting Plaintiff’s allegation that defendants violated her “opportunity to participate in the
judicial process.”). T.W.’s theory confuses the right to participate in the judicial process with the
privilege of practicing law. See Turner v. Nat’l Council of State Bds. of Nursing, Inc., 561 F.
App’x 661, 666 (10th Cir. 2014) (finding “no authority to suggest that the alleged right of access
to a licensing examination, or to a license itself, is either akin to or a part of the fundamental
12
right of access to the courts.”). Simply put, the constitution does not enshrine a right to
participate in judicial proceedings as an attorney. Nothing in Lane or Mosier instructs otherwise.6
Moving to the second Boerne question, the lack of a fundamental right is not necessarily
fatal to T.W.’s claim if Congress, in enacting Title II, identified a history and pattern of
unconstitutional discrimination in the context of professional licensing examinations like the bar
examination. In Lane, for example, the Court observed that Congress passed Title II in light of a
legislative finding that “many individuals, in many States across the country, were being
excluded from courthouses and court proceedings by reason of their disabilities.” 541 U.S. at
527.
By contrast, in Oliver v. Virginia Board of Bar Examiners, our sister district court found
the legislative record of Title II to be devoid of any finding of a widespread pattern of
unconstitutional discrimination in professional licensing generally or the bar exam specifically.
312 F. Supp. 3d 515, 530-531 (E.D. Va. 2018). We agree. In Board of Trustees of the University
of Alabama v. Garrett, 531 U.S. 356 (2001), the Court explained that a plaintiff must put forth
“legislative findings,” more than simply “unexamined, anecdotal accounts,” to amount to a
history of unconstitutional discrimination. Id. at 370. Yet anecdotes are all T.W. provides. She
cites the prepared statement of an attorney with a disability from the ADA congressional record,
but the crux of that testimony concerns difficulties in obtaining employment, not in taking the
bar examination or in testing generally; reference to the bar examination appears only in a
footnote. See T.W. Br. Ex. A, ECF No. 110-1, at 10 n.3. T.W. also cites a newspaper article and
6
T.W.’s submission also alludes to the connection between the bar examination and education,
but, as she recognizes, there is no fundamental constitutional right to education. See T.W. Br. at
36; see also Goonewardena, 475 F. Supp. 2d at 325–26 (S.D.N.Y. 2007) (“[T]he right to public
education is not a fundamental right.”) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 35 (1973)).
13
several examples of testimony heard by the Congressional Task Force on the Rights and
Empowerment of Americans with Disabilities describing individuals “who were not allowed to
demonstrate their knowledge on professional examinations.” T.W. Br. at 40. Lacking from this
record is any finding by Congress relating to a history and pattern of discrimination against bar
examination takers with disabilities. Cf. Lane, 541 U.S. at 529 (observing that “the conclusion
that Congress drew from this body of evidence is set forth in the text of the ADA itself” which
prohibits discrimination against individuals in “public services”).
Moving to the third and final Boerne step, I must conclude that Title II does not represent
a congruent and proportional response to any constitutional violation adduced by Congress. The
bar examination is not open to the public; it is not a public service or program like the right to
access court proceedings or voting; it does not affect an individual’s “ability to live within the
structure of our civil institutions” like education. Plyler v. Doe, 457 U.S. 202, 223 (1982). The
Supreme Court has observed that the states’ interest in regulating the legal profession within
their borders is “particularly strong,” and that they “bear[] a special responsibility for
maintaining standards among members of the licensed professions.” Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 460 (1978). Against this backdrop, and in concert with the lack of a
fundamental right or history of discrimination, we cannot conclude that Title II is a valid exercise
of Congress’ prophylactic authority as applied here. That power is limited to instances in which
Congress enforces the substantive guarantees of the Fourteenth Amendment. Lane, 541 U.S. at
518. Unless and until a higher authority extends the scope of the services and programs entitled
to heightened constitutional scrutiny to include licensing examinations like the bar examination,
T.W.’s Title II claim is too far attenuated from any Fourteenth Amendment violation to warrant a
congressional exercise of prophylactic legislation.
14
As a result of the Board’s Eleventh Amendment immunity, T.W.’s Title II claim for
monetary damages is dismissed for lack of subject matter jurisdiction.
III. Injunctive and Declaratory Relief
Finally, T.W. seeks declaratory and injunctive relief pursuant to Ex parte Young, 209
U.S. 123 (1908), which provides a limited exception to Eleventh Amendment immunity for
petitioners seeking prospective injunctive or declaratory relief against state officials in their
individual capacities. Id. at 157; see also In re Dairy Mart Convenience Stores, Inc., 411 F.3d
367, 371 (2d Cir. 2005). The declaratory relief T.W. seeks — a declaration that the individual
Board member defendants violated Title II — is plainly foreclosed by the Ex parte Young
doctrine. 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.
See Papasan v. Allain, 478 U.S. 265, 277–78 (1986) (Ex parte Young requires “a violation of
federal law by a state official [that] is ongoing as opposed to cases in which federal law has been
violated at one time” in the past). T.W. cannot maintain her action for declaratory relief under Ex
parte Young.
T.W.’s desired injunctive relief that would prevent the Board from maintaining or
reporting records of her examination results7 must also be denied. Even if we characterize such
relief as prospective under Ex parte Young, the Board’s expungement of T.W.’s bar examination
failures would not redress any of the harm she alleges. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992) (constitutional minimum of standing to sue requires that injury be
7
T.W. also seeks an injunction requiring the Board to take “affirmative steps to alleviate the
ongoing repercussions of the discriminatory test administration that continue to hamper
Plaintiff’s search for employment.” Compl. ¶ 108. It is not clear from the Complaint what
affirmative steps T.W. proposes that Defendants take beyond the expungement of her bar
examination failures, so we will consider only the expressly requested remedy.
15
redressable by a favorable decision). T.W. submits that she faces continuing injury because the
record of her bar examination failures has hindered her job search and career prospects. Compl. ¶
74. But T.W. never alleges that a prospective employer has inquired about her bar examination
record much less made a hiring decision based on that record. Instead, she alleges that law firms
have learned “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.” Compl. ¶ 62. The Court
cannot rewrite history; expungement will neither alter T.W.’s level of experience nor undo the
fact that she did not successfully pass the bar until 2015. Moreover, 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. See ECF No. 40 at 26. As a result of this
lack of redressability, T.W. lacks standing to pursue her claim for injunctive relief against the
individual Board members.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in its entirety and
Plaintiff’s Complaint is dismissed with prejudice.
SO ORDERED.
Dated: Brooklyn, New York
July 19, 2022
/s/ Raymond J. Dearie
RAYMOND J. DEARIE
United States District Judge
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