Post-Kimel,7th Cir holds that ADA damages claim against state un iversitybarred by constitutional sovereign immunity

[Michael MASINTER]

All state law schools and universities accept federal financial assistance
which subjects them to section 504 of the Rehabilitation Act of 1974; it
imposes all of the obligations of Title Two of the ADA and more.  Section
504 is enforceable through suits for damages.  States which accept federal
financial assistance forego sovereign immunity for section 504 claims.

An Eighth Circuit panel held the sovereign immunity waiver of section 504
is coercive and therefore unconstitutional, but the decision was en banced
some time ago and is still pending.

The ADA consists of several titles.  An argument can be made that Title
Two is unconstitutional as applied to the states, but that is not the
Seventh Circuit's holding.  Title One (employment discrimination) applies
to both state and private employers and therefore is valid as commerce
clause legislation unless the Supreme Court revisits National League of
Cities and San Antonio.  But Title Two applies only to state and local
governments; one could argue that commerce clause power does not extend to
legislation which only affects governments.  The Court has ducked the
question so far.  However, Title Two can also be seen as paralleling Title
Three by imposing the same obligations on governments that Title Three
imposes on public accommodations. One could also argue that the provisions
of Title Two that regulate core governmental functions violate the tenth
amendment even if they are permissible exercise of CC powers.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Fri, 7 Apr 2000, Douglas Laycock wrote:

>         Doesn't mean any of that.  It means they can't be sued for damages for
> violations.  Their deans and professors can still be enjoined to comply,
> and Congress could create damage remedies against those deans and
> professors if it chose.  There are probably also state remedies in many
> states.
>
> At 11:26 AM 04/07/2000 -0700, you wrote:
> >Does this mean that state law schools aren't subject to the ADA? (So they
> >wouldn't have to give extra time on exams to students who claim a learning
> >disability?) What about state bar admissions procedures? In California the
> >Committee of Bar Examiners gives extra time on the bar exam for those with
> >various disabilities. Perhaps that will now be optional with the state
> >entity which controls bar admission. That may in turn have an effect even on
> >private law schools, some of whom model their disability accommodations on
> >the bar examiners' practices. It would be easier to argue that exam
> >accommodations undercut the integrity of the educational program if state
> >law schools and bar examiners refuse to give similar accommodations.
> >Mark S. Scarberry
> >Pepperdine University School of Law
> >mailto:mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>
> >
> >
> >
> > -----Original Message-----
> >From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
> >Sent: Friday, April 07, 2000 11:06 AM
> >To: CONLAWPROF at listserv.ucla.edu
> >Subject: Post-Kimel,7th Cir holds that ADA damages claim against state un
> >iversitybarred by constitutional sovereign immunity
> >
> >
> >
> >        Post-Kimel, 7th Cir holds that ADA damages claim against state
> >university barred by constitutional sovereign immunity.  Erickson v. Board
> >of Governors of State Colleges and Universities for Northeastern Illinois
> >University, 2000 WL 307121.
> >
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>         512-232-1341 (phone)
>         512-471-6988 (fax)
>         dlaycock at mail.law.utexas.edu
>
>