Wyche v. New York State Board of Law Examiners
Filing
86
MEMORANDUM AND ORDER: Defendant's motion to dismiss is denied. SO Ordered by Judge Raymond J. Dearie on 9/18/2019. (Almonte, Giselle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
T.W.
Plaintiff,
- against -
MEMORANDUM & ORDER
I6-CV-3029(RJD)(RLM)
NEW YORK STATE BOARD OF LAW
EXAMINERS,
Defendant.
X
DEARIE, District Judge.
Plaintiff T.W. brings this lawsuit against the New York State Board of Law Examiners
("the Board") alleging that it discriminated against her by denying her certain accommodations
for the July 2013 and July 2014 New York State bar exam, in violation of Title II of the
Americans with Disabilities Act("ADA"),42 U.S.C. § 12131 et seq., and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794 et seq. Although T.W. ultimately passed the exam in
February 2015, she alleges that the Board's decisions to deny her requests for accommodations
were the reason she failed her first two tries, causing her to lose a lucrative job as a law firm
associate and undermining her job prospects to date. Defendant moves to dismiss, arguing that
the Court lacks subject matter jurisdiction because Plaintiffs claims are barred by sovereign
immunity under the Eleventh Amendment. For the following reasons. Defendant's motion to
dismiss is DENIED.
DISCUSSION
Plaintiff alleges that Defendant's discriminatory conduct violates both Section 504 of the
Rehabilitation Act and Title II of the ADA. Section 504 provides 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." 29 U.S.C. § 794(a). Title II of the ADA provides
that"no qualified individual with a disability shall, by reason ofsuch disability, be excluded
from participation in or be denied the benefits of the services, programs or activities of a public
entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Defendant
argues that these claims are barred because the Board, which is an entity of the State of New
York, is immune from private suits by individuals in federal court. Although the Eleventh
Amendment bars individuals from bringing suits against non-consenting states and its entities in
federal court, U.S. Const, amend. XI, it is well established that Congress may pass laws that
abrogate this immunity "when it both unequivocally intends to do so and acts pursuant to a valid
grant of constitutional authority." Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklvm 280 F.3d 98,
108(2d Cir. 2001)(alterations omitted)(quoting Bd. of Trs. of Univ. of Ala, v. Garrett 531 U.S.
356, 363(2001)).
In enacting the Rehabilitation Act, Congress clearly expressed its intent to abrogate
states' Eleventh Amendment immunity for violations of Section 504,s^ 42 U.S.C. § 2000d-7
("A State shall not be immune under the Eleventh Amendment of the Constitution of the United
States from suit in Federal Court for a violation of Section 504 of the Rehabilitation Act of
1973"), and it did so pursuant to its authority under the Spending Clause of Article 1 to
"condition its grant of federal funds on states' taking certain actions that Congress could not
require them to take." Coll. Sav. Bank v. Fla. Prepaid Postsecondarv Educ. Expense Bd.. 527
U.S. 666,686(1999). Specifically,"the Rehabilitation Act requires states that accept federal
funds to waive their sovereign immunity to suits brought in federal court for violations of
Section 504." Jim C. v. United States. 235 F.3d 1079, 1081 (8th Cir. 2000). However,"as is the
case with the waiver of any constitutional right, an effective waiver of sovereign immunity
requires an intentional relinquishment or abandonment of a known right or privilege." Garcia,
280 F.3d at 113, Therefore, since Section 504 "applies only to those government agencies or
departments that accept federal funds, and only [for] those periods during which the funds are
accepted," id., a state that accepts federal funds for a department or agency "waives its immunity
only with regard to the individual [department or] agency that receives them." Jim C., 235 F.3d
at 1081. Here, Plaintiff argues that New York has waived sovereign immunity against suits for
the Board's violations of Section 504 because the Board is a unit of New York's Unified Court
System ("UCS"), which itself receives federal funding, and because the Board indirectly receives
federal funds that are disbursed to reimburse individuals for their bar exam and attorney
registration fees.
With respect to Title II of the ADA,it is undisputed that Congress also expressly
intended to abrogate states' Eleventh Amendment immunity. See 42 U.S.C. § 12202("A State
shall not be immune under the eleventh amendment to the Constitution of the United States from
an action in [a] Federal or State court of competentjurisdiction for a violation of this chapter.").
However,the parties dispute whether Title II was enacted pursuant to a valid grant of
constitutional authority. In enacting Title II, Congress relied on its authority under the
Commerce Clause and Section 5 of the Fourteenth Amendment. S^ 42 U.S.C. § 12101(b)(4)
(invoking "the sweep of congressional authority, including the power to enforce the [F]ourteenth
[A]mendment and to regulate commerce, in order to address the major areas of discrimination
faced day-to-day by people with disabilities."). However, Congress cannot base its abrogation of
the states' Eleventh Amendment immunity upon its authority under the Commerce Clause. See
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996)("The Eleventh Amendment
restricts the judicial power under Article III, and Article I cannot be used to circumvent the
constitutional limitations placed upon federal jurisdiction."). On the other hand, Section 5 of the
Fourteenth Amendment allows Congress to abrogate states' sovereign immunity by giving it "the
authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a
somewhat broader swath of conduct, including that which is not itself forbidden by the
Amendment's text." Garrett. 531 U.S. at 364 (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
81 (2000)). Defendant nevertheless argues that Title II of the ADA is not a valid exercise of
Congress' Section 5 abrogation power because there is no fundamental right to a professional
license to practice law.
Because the same legal standards and remedies apply to claims under Title II of the ADA
and the Rehabilitation Act, Plaintiff needs only prevail on one of these two claims to survive
Defendant's motion to dismiss. See Dean v. Univ. at Buffalo Sch. of Medicine & Biomed. Scis..
804 F.3d 178, 187(2d Cir. 2015); Ross v. Citv Univ. of N.Y.. 211 F. Supp. 3d 518, 528
(E.D.N.Y. 2016)("[T]he remedies available to plaintiff under Title II of the ADA and the
Rehabilitation Act are identical."). Thus, if Plaintiff successfully demonstrates that sovereign
immunity does not bar her Rehabilitation Act claim, the Court has subject matter jurisdiction
over the action and does not need reach the constitutional question raised by her Title II claim.
See Ross. 211 F. Supp. 3d at 528 (declining to reach the same question at the pleading stage
based in part on the "'fundamental and longstanding principle ofjudicial restraint [that] requires
courts [to] avoid reaching constitutional questions in advance of the necessity of deciding
them.'"(quoting Lvng v. Nw.Indian Cemeterv Protective Ass'n. 485 U.S. 439, 445-46 (1988))).
I.
Section 504 of the Rehabilitation Act
Section 504 prohibits discrimination on the basis of disability in any "program or activity
receiving Federal financial assistance." 29 U.S.C. § 794(a). The term "program or activity"
means, inter alia, "all of the operations of(1)(A) a department, agency, special purpose district,
or other instrumentality of a State or of a local government; or(B)the entity of such State or
local government that distributes such assistance and each such department or agency (and each
other State or local government entity) to which the assistance is extended, in the case of
assistance to a State or local government." 29 U.S.C. § 794(b). Thus, while a "[sjtate and its
instrumentalities can avoid Section 504's waiver requirement on a piecemeal basis, by simply
accepting federal funds for some departments and declining them for others," when a state
accepts federal funds for a particular department or agency, it waives sovereign immunity for all
the operations of that department or agency,"not merely those activities specifically supported
by Section 504 funds." Jim C.. 235 F.3d at 1081-82; see also Koslow v. Commonwealth of
Pennsvlvania. 302 F.3d 161, 171-72(3d Cir. 2002)("Although a particular activity... might be
the state's only link to federal funds, the waiver under § 2000d-7 is structural. It applies to all the
operations of the department or agency receiving federal funds."); Arbosast v. Kansas. Dep't of
Labor. 789 F.3d 1174, 1185 (10th Cir. 2015)("[AJcceptance of federal funds for one division
within a larger department may effectuate a waiver of Eleventh Amendment immunity for the
entirety of the larger department, including divisions that accept no federal funds.").
In essence, the parties' dispute over the Board's liability under the Rehabilitation Act
centers on two issues:(i) whether the Board receives specifically earmarked federal financial
assistance through third parties' reimbursement of bar exam and attorney registration fees, and
(ii) whether the Board is an independent state agency or a "program or activity" of New York's
Unified Court System, which both sides agree receives federal funds.
a. The Board Only Benefits Economlcaily from Federal Funds Used to
Reimburse Bar Exam and Attorney Registration Fees
Section 504 liability may be imposed not only on entities that directly receive federal
financial assistance, but also on entities to which federal financial assistance is extended
indirectly or through another recipient. Bartlett v. NY State Bd. of Law Examn'rs. 156 F.3d 321,
330(2d Cir. 1998). However,"entities that only benefit economically from federal assistance are
not" subject to Section 504. NCAA v. Smith. 525 U.S. 459,468(1999)(explaining that the
NCAA's receipt of dues from member-colleges that received federal funds at most
"demonstrates that it indirectly benefits from the federal assistance afforded its members.").
Over twenty years ago, the Second Circuit found the Board was bound by the
Rehabilitation Act because it allowed candidates with disabilities to pay their bar exam fees with
vouchers provided by two New York state agencies that received federal funds. Bartlett 156
F.3d at 320. Even though "there [was] nothing in the record to indicate that the Board ever
actually elected to accept federal funds," the Court found it sufficient that the two state agencies
"elected to receive federal funds and then extended that assistance to the Board in the form of
vouchers for handicapped bar applicants." Id. In 2011, partly in response to the decision in
Bartlett. the Board stopped accepting vouchers and changed its payment policies to permit
candidates to pay their fees only by credit card, certified check or money order. However,the
same two state agencies, now called Adult Career and Continuing Education Services-Vocational
Rehabilitation("ACCESS-VR")and New York State Commission for the Blind ("NYSCB"), as
well as the U.S. Department of Veteran Affairs("VA"), continue to use federal funds to
reimburse candidates with disabilities and veterans for their bar exam and attorney registration
fees, by having the candidates pay the Board directly and then submit proof of payment to the
appropriate agency for reimbursement.
Plaintiff contends that despite the change in how the Board is paid by candidates, the
decision in Bartlett still stands because the Board is still the intended recipient of federal funds.
According to Plaintiff, it should be of no moment that individuals now pay the Board directly
and then secure reimbursement because ACCESS-VR,NYSCB and the VA still specifically
provide funds for such purpose. However,this argument ignores the fact that by changing its
payment policies, the Board no longer actually receives any federal funds, it "only benefits
economically from federal assistance." NCAA.525 U.S. at 468.'
After Bartlett. in an effort to preserve its sovereign immunity, the Board chose to stop
accepting the type of payment that caused the Second Circuit to conclude abrogated the Board's
immunity. With the new payment system, the funds used to pay fees are not federal funds
because the reimbursement policy is a closed loop between the funding agency and the
applicant—^the federal funds never make their way into the Board's bank accounts; they are paid,
after the fact, to the candidates when they apply for reimbursement. When the Board accepts
payment for its fees, it has no knowledge of whether any specific candidate will subsequently be
reimbursed with federal funds. Compare with Grove Citv College v. Bell. 465 U.S. 555, 569-70
(1984)(holding that Grove City College's choice to enroll students who received financial aid
grants from the U.S. Department of Education to finance their tuition meant it was an indirect
recipient offederal funds).
Importantly, the Board cannot prevent an eligible individual from being reimbursed by
the VA, ACCESS-VR or NYSCB because it is not involved in those agencies' decisions of who
'In NCAA,the Supreme Court was considering whether the NCAA should be subject to Section 901(a)of Title IX
ofthe Education Amendments of 1972. 525 U.S. at 467. However, the Court noted that Section 504 "prohibits
discrimination on the basis of disability in substantially the same terms that Title IX uses to prohibit sex
discrimination," jd., so the Court's analysis applies here.
and how much to reimburse. Therefore, if these reimbursements made the Board an indirect
recipient of federal funds, the only way it could protect its sovereign immunity would be to
prevent anyone potentially eligible for a federally funded reimbursement from taking the bar
exam—an absurd result.
b. The Board is a "Program or Activity" of UCS
Since the Board does not directly or indirectly receive federal funds, it can only be found
to have waived its sovereign immunity under the Rehabilitation Act if it is a "program or
activity" of a department or agency that itself accepts federal funds—in this case. New York's
Unified Court System. In making this determination, the Court must look at how state law
defines or characterizes the Board's relationship with UCS. S^ Regents ofthe Univ. of
California v. Doe. 519 U.S. 425,429(1997)(explaining that courts should focus on "the nature
of the entity created by state law" in "deciding whether a state instrumentality may invoke the
State's immunity."); Havberger v. Lawrence Countv Adults Prob. & Parole, 551 F.3d 193, 201
(3d Cir. 2008)(finding the Domestic Relations Section is a "program or activity" of the 53'"*^
Judicial District in Pennsylvania because the state's constitution vests judicial power in a
"unified judicial system" that is divided into sixty judicial districts, and state law requires the
Court of Common Pleas for every district to have a domestic relations section).
Article VI of the New York State Constitution establishes the judicial branch of the state
as the Unified Court System and defines the organization and jurisdiction of the courts. N.Y.
Const., art. VI, § 1. It denominates the Chief Judge of the Court of Appeals as "the chiefjudicial
officer of the unified court system," authorizes her to adopt administrative policies for the courts
and to appoint a Chief Administrator of the Courts, who is responsible for supervising the dayto-day administration and operation of the trial courts. Id. at § 28. New York's Judiciary Laws
provide that the Court of Appeals is responsible for regulating the admission to the practice of
law in the state. Pursuant to these laws, the Court of Appeals is required to "appoint five
members of the bar to constitute the state board of law examiners" and to "prescribe rules for a
uniform system of examination of candidates to practice as attomeys and counsellors, which
shall govern the state board of law examiners in the performance of its duties."
N.Y. Jud. L.,
§§ 53, 56. The Court of Appeals must set the compensation for the members appointed to the
Board and may authorize the Board to appoint or remove its employees, whose compensation is
also fixed by the Court of Appeals. Id. at § 461. Additionally, the Court of Appeals must either
provide offices for the Board to operate in or authorize the Board to procure offices somewhere
else in Albany. Id. Finally, the Board is required to provide an annual report of its receipts and
disbursements to the Court of Appeals. Id. at § 462.
The Board argues that it is independent from UCS because the statutory scheme
described above governs only the Board's most foundational components, but the Board
ultimately manages its operations without any daily control or guidance from the Court of
Appeals. Despite conceding that the Board takes advantage of certain of UCS's services and
departments, the Board argues such limited connections are administrative in nature, are not
funded by any federal dollars and do not involve UCS managing core functions of the board.
Although the Board does not perform court-related functions per se, it is a part of New
York's judicial branch by statute and operates as an ancillary agency of the Court of Appeals. It
stands in a unique position within that branch given its responsibilities, but it does not function
so independently that it should be considered a separate department from the rest of UCS. While
the Board's day-to-day operations are managed by an Executive Director who is appointed by
the Board's members and the Board has discretion to administer and select the content of the bar
exam, it must rely on UCS and the Court of Appeals to carry out its operations. The Board
utilizes the Court of Appeals' human resources department and UCS handles all the payroll,
benefits and titles for the Board's employees. When the Board has a job vacancy, it must request
permission to fill the vacancy from the Court of Appeals and the position is then posted on
UCS's website. The Board collects resumes and conducts interviews, but applicants use a
standard UCS job application and those who are hired are sent to UCS's personnel department
for processing. The Board also uses UCS's phones, scanners, backup and disaster recovery data
services, legal research accounts and test processing department. Finally, the Board's lease
agreement for its office space states that the premises may be used for the official business of the
Board or UCS,and incorporates an appendix labeled "Standard Clauses for UCS Leases."
The legislature clearly intended that the Board would function under the supervision of
the Chief Judge and the Court of Appeals. Moreover,the Board relies on many of the resources
provided by the Court of Appeals and UCS to operate. Such strong administrative ties usually
indicate that an entity is not independent but rather a "program or activity" of a department or
agency. Compare Arbogast. 789 F.3d at 1185-86 (holding that the Workers Compensation
Division was a "program or activity" of the Kansas Department of Labor because, among other
things, the Secretary of Labor appoints the division director and is empowered to fix the
director's salary, appoint administrative judges, approve selection of assistant directors and
establish policies governing all transactions of business and administration of the divisions
within the department) and Havberger. 551 F.3d at 201 (finding that the Domestic Relations
Section was not independent from the Pennsylvania's 53'"'' Judicial District because, among other
things, it referred to itself as the "Domestic Relations Section of the Court of Common Pleas and
County Commissioners of Lawrence County" in a contract for funds) with Sharer v. Oregon. 581
10
F.3d 1176, 1178-80(9th Cir, 2009)(holding that Oregon's Public Defense Services Commission
and Judicial Department are separate entities under the Rehabilitation Act because, although they
are both part of the judicial branch ofthe state, the Chief Justice of the Oregon Supreme Court
has the power to establish the Judicial Department's budget and staffing levels, and to assign or
reassign all court staff, while he is only authorized to appoint the seven members ofthe
Commission and serve as a nonvoting, ex officio member)and Brewer v. Wisconsin Bd. of Bar
Examiners. 2006 WL 752922, at *4(E.D. Wis. Mar. 22, 2006), affd, 270 F. App'x 418 (7th Cir.
2008)(finding that despite having a unified court system, Wisconsin considers its Board of Bar
Examiners, Office of State Courts and Supreme Court to be three separate departments under the
Rehabilitation Act because "each have independent control over their staff"). Although in
different contexts, other courts have held that the Board is a part of New York's judicial branch
and under the supervision and control of the Court of Appeals. S^ Matter of Pasik v. State Bd.
of Law Examiners. 102 A.D.2d 395,400,478 N.Y.S.2d 270(1984)(holding that the Board was
exempt from New York's Freedom of Information Laws because "[e]ach component[of the
process of admission of attorneys] is a delegated part of the judicial process acting pursuant to
the authority ofthe Court of Appeals in accordance with section 53 of the Judiciary Law, and
each performs a judicial function.").
Defendant also attempts to separate the Board from the Court of Appeals and UCS by
explaining that the Board's operations are wholly supported by the Attorney Licensing Fund,
which draws its funds from the biennial registration fees paid by attorneys and is separate from
the federal funds received by UCS. Indeed, the account used to support the Board's operations
receives no federal money. However, it is funded as part of an overall budget that is approved
every year by New York's Governor and legislature to fund the entire judicial branch. The Board
11
prepares its own budget request, which it submits to the Court of Appeals for approval and which
is then submitted to UCS's Division of Financial Management to be combined with the requests
from all other units. Importantly, the Board's budget requests do not include funding for staff
salaries or benefits because UCS centrally budgets for the salaries and benefits of all its
employees, including the Board's. Furthermore, the Board collects fees for the bar exam, which
are deposited in its bank account and then swept up monthly by the New York State
Comptroller's Office into UCS's general fund, which supports other UCS operations. Thus, even
though the money used to support the Board's operations comes from the Attorney Licensing
Fund, it must be appropriated for the Board by the legislature as part of UCS's overall budget.
Compare with Sharer. 581 F.3d at 1179(holding that the Judicial Department and the
Commission are separate departments because the Commission is financed through the state's
"general fund" whereas the Judicial Department is financed through an "operating account" in
the state treasury); Brewer. 2006 WL 752922, at *4(finding that the Board is a distinct entity
from the Supreme Court and Office ofthe Courts because "Wisconsin funds the Court and the
Office through separate appropriations [] and does not fund the Board at all[]").
Under state law, the Board is both administered and funded as part of New York's
judicial branch, UCS. Despite the fact that the Board is not a direct recipient offederal funds, it
operates as a division of a larger entity that voluntarily and knowingly chooses to accept federal
funds for some of its programs. Under the plain language of the Rehabilitation Act, UCS's
acceptance offederal funds waived its Eleventh Amendment immunity for "all of[its]
operations," including the Board. See Doall v. Suffolk Ctv. Familv Court. 2010 WL 11606060,
at *5(E.D.N.Y. Mar. 23, 2010)(holding that Suffolk County Family Court and King's County
12
Clerk's Office may be held liable under Section 504 despite not being direct recipients of UCS's
federal funds because they "are constituent parts of a system that receives federal funding.").
CONCLUSION
The Board is not a recipient of federal funds because it no longer accepts federally
funded vouchers as payment for candidates' bar exam or attorney registration fees and only
benefits economically from federal funds that are used to reimburse individuals for those fees.
Nonetheless, under the Rehabilitation Act, the Board is a "program or activity" of New York's
judicial branch, UCS, which has waived sovereign immunity for all of its operations by
voluntarily accepting federal funds to support some of its activities. Since Plaintiffs claim under
Section 504 of the Rehabilitation act is not barred under the Eleventh Amendment, the Court has
subject matter jurisdiction to hear the case because there is no risk of violating the Board's "right
not to be hauled into court" when it is immune from suit. S^ Smith v. Reagan. 841 F.2d 28, 30
(2d Cir. 1988). Given that the rights and remedies under Title II of the ADA and the
Rehabilitation Act are identical, the Court need not reach the constitutional question of whether
Title II is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment.
Accordingly, Defendant's motion to dismiss is denied.
SO ORDERED.
Dated: Brooklyn, New York
September 18, 2019
s/ Raymond J Dearie
RAY
United
13
ARIE
istrict Judge
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