When can you sue the states under the Americans with Disabilities Act?

There is nothing more exciting than detailed Eleventh Amendment analysis by any federal appeals court. I take that back. The Eleventh Amendment would probably put most people to sleep. Except that this Amendment serves as a barrier to the courthouse for certain plaintiffs. So it is important.

The case is Dean v. University of Buffalo School of Medicine, decided on October 6. The Eleventh Amendment says you cannot sue the state in federal court. There are exceptions to this rule, usually when Congress says in passing a law that it can be enforced against the states, or when the state consents to be sued. The law is all over the place on this. Over the years, the Supreme Court has said you cannot sue the state for age discrimination in federal court. But you can sue the state in federal court under the Family and Medical Leave Act.

In this case, plaintiff sues a state medical school under the Americans with Disabilities Act over its failure to accommodate his disability in taking a medical examination. The Court of Appeals (Pooler, Walker and Sack) says the plaintiff has a potential discrimination case, but it pauses to discuss Eleventh Amendment immunity. The Court notes that the federal courts have disagreed on whether Congress validly abrogated state sovereign immunity under the ADA. While the Second Circuit held in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2d Cir 2001), that Title II monetary claims under the ADA may proceed in federal court if the plaintiff can prove discriminatory animus or ill will that would violate the Equal Protection Clause, "subsequent Supreme Court precedent concerning the constitutionality of Congress's abrogation of Eleventh Amendment immunity under Title II calls Garcia's validity in question. In other words, under more recent Supreme Court precedent, Garcia may no longer be good law.

The intervening Supreme Court precedent on sovereign immunity and the ADA is United States v. Georgia, 546 U.S. 151 (2006), which "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." While some district courts in the Second Circuit still apply Garcia, others follow the approach in the Georgia case. The Second Circuit does not decide this issue and instead leaves it for the district court to worry about it on remand.