NYS bar examiners cannot be sued for violating federal disability discrimination laws

Plaintiff sues the people who run the New York State bar examination, claiming they failed to accommodate her disabilities (depression, anxiety and complications from a head injury) by disallowing her extra time on the test, stop-clock breaks and separate testing facilities. Her inability to pass the bar examination cost her a legal position, though she eventually passed the exam. But her claim runs into a major roadblock: in order to sue under the federal disability discrimination laws, plaintiff has to show the bar examination apparatus receives federal funding. 

The case is TW v. New York State Board of Law Examiners, issued on April 28. The district court allowed the case to proceed, reasoning that while the Board itself had not received any federal funding, it was a "program or activity" of a "department, agency, or instrumentality," that is, the Unified Court System that had received federal funding. The Court of Appeals (Livingston, Bianco and Failla [D.J.]) disagrees, and the case is dismissed.

The problem with the district court's reasoning is that its analysis was too broad. The question is not whether the New York court system receives federal funding. Instead, we ask whether this particular entity receives federal money. During the relevant time period, certain entities in the Unified Court System did get federal money, including drug treatment courts, domestic violence courts, family courts, and veterans treatment courts. This case involves complicated issues of when a state entity waives its immunity from suit under the Eleventh Amendment. 

While the Board, at best, is an indirect recipient of federal money, that does not allow people to sue a state entity for federal civil rights violations. The more complicated issue is whether the Board is an operation of a department, agency or other instrumentality that receives federal money. While plaintiff argues that the Unified Court System is the relevant entity for purposes of this analysis that is too broad an inquiry. The proper question is whether the board that administers the bar examination receives federal money. While the Board is part of the Unified Court System, it is not an operation of the trial courts, which means it is not a "program or activity" of the courts listed above that do receive federal money. As the Board falls outside that equation, it cannot be sued in federal court for disability discrimination.