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.

COVID-19 university shutdown claim is revived on appeal

When the COVID-19 pandemic came upon us, I imagined there would be some lawsuits growing out of the shutdowns and even the vaccine mandates. But I did not anticipate that people would sue colleges and universities for charging full admission for remote classroom instruction. This case survives the appellate process and returns to the district court.

The case is Yodice v. Touro College and University System, a summary order issued on 19. Plaintiff and a potential class of plaintiffs sued Touro's College of Dental Medicine. It all started when Touro switched to remote learning in March 2020 when COVID-19 shut down the world. Plaintiff sues for breach of contract "for certain fees for services and activities that students could no longer access after Touro switched to remote instruction." They also claim that Touro is liable for false advertising and deceptive practives over its marketing practices relating to in-person instruction. Finally, on the unjust enrichment theory, they seek tuition reimbursement arising from Touro's switch to remote instruction.

The tuition reimbursement claim is reinstated (the district court dismissed that claim) because the Second Circuit previously held that such claims arising from the pandemic shutdown are viable. That case was Rynasco v. New York University, 63 F.4th 186 (2d Cir. 2023). The breach of implied contract case/tuition reimbursement claim is back on the docket. While Touro points to a disclaimer in its course catalogue as a defense to this case, the Court of Appeals (Raggi, Lohier and Wesley) says the disclaimer is too broad to defeat the implied contract claims. The Court notes that in a similar case against Pace University, the disclaimer was enough to fight off the lawsuit because it said students would face the risk that an unforeseen or emergency event outside the college's control might force an emergency closing. No such language for Touro, says the Court. The consumer fraud claim (under the General Business Law) also survives appeal and returns to the district court for resolution.

The case returns to the district court to take on other issues that Touro raises on appeal, but which the district court did not resolve: an "impossibility" defense and the claim that plaintiff lacks standing to assert claims on behalf of the potential class action plaintiffs. A remaining claim -- that Touro took money in student fees without providing any services -- is dismissed, as plaintiff does not identify which services are in issue. The unjust enrichment claim is also dismissed, as it is duplicative of the breach of contract claim, which was also dismissed in the district court.

Sexual assault default judgment is vacated on appeal

This is an unusual case involving sexual assault, a default judgment, and a jury verdict that rejected the assault allegations. 

The case is Henry v. Oluwole, issued on July 15. Plaintiff worked for a hospital in Connecticut. She claims defendant Oluwole sexually assaulted her at work. She sued Oluwole and the hospital, asserting assault, battery, and other state law claims like false imprisonment, intentional and negligent infliction of emotional distress, and negligence. Oluwole defaulted: he did not file an answer because he was in a serious motorcycle accident, and years passed before he entered the case. Since Oluwole defaulted, the district court entered a default judgment against him, and following a damages hearing, the district court awarded plaintiff $100,000 in damages. Then case went to trial against the Hospital, but the jury determined that Oluwole had not engaged in any tortious conduct against her through assault or battery. The hospital therefore won the trial because plaintiff's case against the hospital was premised on the assault and battery claim.

Do you see the problem? We have a default judgment against one defendant for actions that a jury found, in a case against a related defendant, did not happen. The district court, following the trial against the hospital, vacated the default judgment against Oluwole on the assault and battery. But it did not vacate the default judgment against this defendant on the other state law claims: IIED, NIED, false imprisonment, and negligence. The Second Circuit vacates the full default judgment on all claims, including those other state law claims.

The leading case on this issue is Frow v. De La Vega, 82 U.S. 552 (1872), which said that a default judgment that creates an "inconguity" with a judgment on the merits is "unseemly and absurd, as well as unauthorized by law." Frow is an old case, but it's still good law. The Second Circuit (Menashi and Raggi, with Judge Kearse in dissent) finds that the state law claims that survived the verdict against the hospital are not consistent with the claims that plaintiff lost in her trial against the hospital, because they all grew out of the same allegations relating the sexual assault.

Second Circuit rejects Bivens claim against U.S. Marshall

If you want to sue federal officials for constitutional violations, you have to bring a Bivens action, named after the 1971 Supreme Court case that recognized such claims even though no federal statute authorizes such claims. (We do have a federal statute that allows you to sue state and local officials for constitutional violations, known as Section 1983). Since Bivens claims are judge-made, the Supreme Court has rarely allowed anyone to actually bring such a claim, expressing telling the lower courts to limit its application. That plays out here, and the plaintiff, who claims U.S. Marshalls and court officers used excessive force while restraining him in the courtroom, loses the case.

The case is Edwards v. Gizzi, issued on July 12. Plaintiff yelled at the federal judge during sentencing following his conviction for sexual activity with a minor. During his tirade, plaintiff got aggressive and lunged toward the Assistant United States Attorney. The U.S. Marshall restrained plaintiff, breaking his arm. Hence the Bivens claim.

Did you know that the Supreme Court has only twice recognized claims under Bivens? It held in 1979 that you can sue for employment discrimination under Bivens. It held in 1980 that a federal prisoner could sue his jailers under Bivens. But that was a very different Supreme Court. All the other Bivens claims over the years have been rejected, and the Court has told us over and over (about 12 times) that Bivens has limited application, as cases like this really should be permitted by federal statute, not Supreme Court case law. My prediction is that Bivens will be overturned for good one of these days. 

Anyway, Bivens' limited application does not prevent people from bringing these lawsuits. Even I tried to win a Bivens case about 15 years ago and lost in the Court of Appeals. That was plaintiff's approach here. But Judge Park, writing for the 2-1 majority, and over Judge Parker's dissent, applies the two-part test in determining if plaintiff may proceed here. Plaintiff fails both tests. First, this case arises in a new context (an excessive force claim under the Eighth Amendment, and a claim against U.S. Marshalls and court security). A new context is no place for a Bivens case, the Supreme Court has said. In addition, there are no special factors that would permit a Bivens claim to proceed. The "special factors" test is the second part of the Bivens test. This is so because there are other ways for plaintiff to win his case, in particular a claim under the Federal Torts Claims Act. 

High school may censor George Floyd sonnet from student literary magazine

The Court of Appeals holds that a high school was able to censor a student publication by rejecting a student-written sonnet about the George Floyd killing.

The case is Kristoffersson v. Port Jefferson Union Free School District, a summary order issued on July 12 Student speech rights in the high school setting are governed by a few Supreme Court rulings, including the Hazelwood decision from 1988, which gives school principals broad rights to edit and censor school-sponsored publications. Few cases prevail under the Hazelwood ruling, and this one fails, as well.

The school would not allow the high school literary publication to run plaintiff's poem about Floyd, whose murder gave rise to nationwide protests in 2020. The complaint alleges as follows:

In April 2021, shortly after a jury found Derek Chauvin guilty of Floyd’s murder, R.R. wrote a sonnet in iambic pentameter with the title “Derek Chauvin’s Ode to George Floyd: A Dark Sonnet.” According to the complaint, the sonnet was intended to “reflect the contemptuous racial hatred demonstrated by a white figure of authority for a helpless African American,” “capture the deeply bred racially motivated cause of the death of George Floyd,” and “convey the intense reason for the nation-wide reaction to Chauvin’s murder of George Floyd.”

While the school district told the plaintiff that her sonnet was "very well-written," it denied its publication on the basis that it would "create adverse emotional reactions and strife in the Port Jefferson community, amongst students and faculty, due to the sonnet's allegedly controversial content." 

At first glance, it might look like plaintiff has a great case, as the school district's decision appears to be pure censorship. And, besides, who is the school to claim that a sonnet like this will cause serious problems at the school? But, again, the Hazelwood decision governs this case. Hazelwood says the school may generally restrict speech in school-sponsored publications unless the district is censoring one political viewpoint over another. That is not the case here, as the district did not allow a contrary viewpoint on the George Floyd case to be published, and, in this Rule 12 context, plaintiff's claim that the school did not want to offend the white majority in the student body is conclusory and devoid of additional factual allegations that might allow this case to proceed any further. Content-based discrimination is legal under Hazelwood; viewpoint-based discrimination is not legal. Since this is a content-based discrimination case, plaintiff loses.

The Supreme Court lately has been reexamining prior precedents and has even rejected them decades after they were initially decided. Although the Justices who decided Hazelwood are long gone, I seriously doubt Hazelwood will be reversed by the Supreme Court, at least not this incarnation. I do not see a movement to overrule Hazelwood, and while the Court has extended broad First Amendment protections in other contexts (campaign finance, union dues, religious speech), the Court is not prepared to second-guess high school authorities on what can and cannot be published in student publications. The Second Circuit (Raggi, Menashi and Nathan) has no power to ignore Supreme Court rulings, and that dooms this case.

As a former high school and college journalist who did professional journalism for a brief period before going to law school, I can relate to plaintiff's frustration in not having her sonnet published. In the spirit of high school journalists everywhere, I will publish it here, taken from the trial court ruling:

From Momma's hands, you had not any chance. The street, the `hood made you so young ashamed To stand tall, to control your circumstance. "Black man, it's you we'll crack," white men proclaimed; "Stay down," they say, your fate is in our hands. Obey, ok, obey me, I'm the cop Who kneels upon your naked soul, who stands On top your darkened head until you stop Your sorry cry for mamma; take no breath, I bring justice here, pressed upon your neck. If I decide, you now face certain death, A fate deserved, `cuz you passed a bad check. You can't breathe? Then cease your black man drama, I will make you weep for "Mamma! Mamma!"

Wedding photographer has potential free speech claim in rejecting same-sex weddings

This case pits New York's prohibition against sexual orientation discrimination with the Supreme Court's recent cases holding that religious businesses may discriminate against gay and lesbian clients on account of their religious beliefs. 

The case is Emilee Carpenter, LLC v. James, issued on July 12. The plaintiff is a wedding photographer who does not want to service same-sex weddings. She brought this lawsuit seeking a court declaration that New York's anti-discrimination statute (in the context of public accommodations, such as wedding photography) cannot override the constitutional protection against forcing people to violate their religious beliefs. In this case, plaintiff's religious beliefs are opposed to same-sex weddings. She also asserts that forcing her to service same-sex weddings would could constitute coerced speech in violation of the First Amendment.

This case was argued in September 2022. In the interim, the Supreme Court issued 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), which held that Colorado's public accommodations law violated the First Amendment because it compelled speech in a similar case: a graphic designer did not want to service same-sex weddings in her website business, which qualified as "pure speech." Plaintiff in this case says 303 Creative helps her cause, as the wedding photography business is expressive activity. The Court of Appeals (Carney, Bianco and Nathan) agrees, and reverses the Rule 12(b)(6) dismissal, holding that plaintiff has plausibly asserted a First Amendment claim, notwithstanding the New York statute that prohibits discrimination on the basis of sexual orientation.

But plaintiff is not entitled to a preliminary injunction this early in the case, enjoining enforcement of the New York statute as to her wedding photography business. In the 303 Creative case, the Supreme Court expressly declined to hold whether such photographers engage in expressive conduct such that the First Amendment allows them to bypass the anti-discrimination statutes. We are going to need a factual record to determine if this is really a free speech case, or whether this is a mere business case for which the First Amendment provides no protection.

Nor is plaintiff able to win under the Free Exercise Clause, which protects religious liberty. Under the Supreme Court's free exercise cases, a facially-neutral statute cannot violate the Constitution if it applies to everyone (or is "generally-applicable," the clunky phrase the Court uses in these cases). The New York law is generally-applicable and does not single out religious practices for punishment. Under the rational-basis standard of review, the New York statute is constitutional as applied to plaintiff because New York has an interest in combating discrimination.

Metro-North may be liable for intoxicated taxi driver's accident

This is a personal injury case brought under the Federal Employers' Liability Act (FELA). Plaintiff worked for Metro-North Railroad, which called her a taxi ride home. The taxi driver, who had no connection to the railroad, was intoxicated and got into an accident, injuring the plaintiff. Is Metro-North liable for this?

The case is Francois v. Metro-North Commuter Railroad, issued on July 11. Your first instinct is that the railroad would not be liable because it did not employ the taxi driver. But FELA is an interesting statute. "There is a considerably more relaxed standard of proof for determining negligence in FELA cases, and a strong federal policy in favor of letting juries decide these cases." The Second Circuit said that in 1993, and it says it again in this case. The other relevant principle is that, "at the summary judgment stage, a FELA action must not be dismissed . . . unless there is absolutely no reasonable basis for a jury to find for the plaintiff." See the word "absolutely"? You don't see that in other summary judgment contexts. It means we usually let these cases go to trial.

This case will go to trial. First, however, the Court of Appeals holds that the railroad is not directly liable for plaintiff's injuries because there is no evidence that Metro-North knew the driver had a propensity to drink before driving, or that the driver would drive unsafely. That claim is gone.

But the railroad may be vicariously liable for the accident. This will be up to the jury. Metro-North concedes the taxi driver acted as its agent in driving plaintiff. And while the taxi company served as an intermediary in that it dispatched the taxi driver, the railroad does not argue that the intermediary severs or affects the agency relationship between the railroad and the driver. 

The railroad may be vicariously liable even though the driver had been drinking, as the prior act of drinking to the point of impairment does not mean the driver was not working within the scope of his employment. The key here is "scope of employment," a legal term of art that means someone's bad acts are still imputed to the company so long as he was still doing his job. "Just because a driver was intoxicated when driving does not mean that he was acting outside the scope of his agency, but only that he failed to use reasonable care under the circumstances." The Second Circuit cites a Seventh Circuit case for that proposition, which is now good law in the Second Circuit. "Although the prior act of drinking alcohol was outside the scope of the driver's agency, the subsequent act of driving his taxi while on duty was at least arguable within it."

Finally, while the railroad argues that it was not foreseeable that the driver would be impaired, that is not enough for the railroad to win summary judgment. Here is how the Court of Appeals frames this issue:

Again, in terms of direct liability, Francois introduced no evidence that Metro-North had any reason to suspect that the taxi driver would be impaired when it hired him. But in terms of vicarious liability—when the tortfeasor is the taxi driver, rather than Metro-North itself—we ask a broader foreseeability question from the railroad-principal’s perspective:

What is reasonably foreseeable in the context of respondeat superior is quite a different thing from the foreseeable unreasonable risk of harm that spells negligence. When we talk of vicarious liability we are not looking for the employer’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. And we look at “the harm that is likely to flow from the employer’s activity despite the reasonable precautions that might be taken.” In sum, for vicarious liability, courts examine the foreseeability of a general, rather than specific, risk of harm.