Disabled lawyer cannot sue Board of Law Examiners under Americans with Disabilities Act

This case has been litigated for years, having already reached the Court of Appeals once. It raises complicated issues surrounding New York's obligations to accommodate disabled bar exam test-takers. In 2021, the Second Circuit held plaintiff cannot prevail under the Rehabilitation Act because the bar examiners had not received federal funding for the tests, even if the Unified Court System did receive such funds. The case returns to the Second Circuit, which holds this time that plaintiff cannot prevail under the Americans with Disabilities Act, either. It looks like the case is over.

The case is TW v. New York State Board of Law Examiners, issued on July 19. Plaintiff was denied certain test accommodations in the past, and therefore failed the bar exam twice. TW eventually passed the bar exam after receiving certain accommodations, and plaintiff alleges the prior accommodation denials led to lost job opportunities. The lost income is the basis for this lawsuit.

Generally, the Eleventh Amendment says you cannot sue the states, but there are exceptions, like if the state waives sovereign immunity. The question in this case is whether the Board of Law Examiners is an arm of the state. If it is, then TW cannot bring this lawsuit. The courts have devised a multi-part test in determining if an entity is an arm of the state. The Court of Appeals(Livingston and Nardini) sides with the Board of Law Examiners on this issue, holding that the Court had already reached this conclusion in the 2021 appeal. The Court will not reject its reasoning from three years ago.

The next argument is that the Board abrogated its sovereign immunity. This analysis is as complex as determining if an entity is an arm of the state. Plaintiff loses on this point because TW's complaint does not implicate the kind of constitutional right that would abrogate sovereign immunity and allow test-takers like TW to bring this case. For those who are interested, the Second Circuit applies the obscure and complex "congruence and proportionality" test that the Supreme Court devised a few decades ago to resolve this issue. It does not appear that Congress, in enacting the ADA, was focused on this issue, which further cuts against piercing sovereign immunity.

Finally, the Court holds that TW cannot recover declarative relief that the Board violated the ADA in denying the prior test accommodations. While such relief can also pierce sovereign immunity, TW cannot do so because the relief sought is retrospective, not prospective. Since TW cannot recover injunctive relief, either, the final argument in favor of bypassing sovereign immunity is also rejected.