Ninth Circuit orders new sovereign immunity analysis in ADA cases

(CN) —  A licensed attorney who brought a disability discrimination lawsuit against the State Bar of California will be given another chance to plead his case after a three-judge Ninth Circuit panel on Monday held that the lower court misapplied its analysis.

The panel was tasked with determining whether an arm of the state’s right to immunity from federal lawsuits outweighed the rights granted to individuals with disabilities. In an opinion written by U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, the panel found that the answer is determined on a case-by-case basis.

“In enacting the [Americans with Disabilities Act], Congress unequivocally expressed an intent to abrogate state sovereign immunity,” Wardlaw wrote.

Benjamin Kohn accused the state bar of violating Title II of the Americans with Disabilities Act for refusing to provide him with certain test-taking accommodations.

Under the 11th Amendment, the state bar, as an arm of the state, is granted sovereign immunity in federal court, meaning that it can’t be sued without its consent. However, under Title II of the Americans with Disabilities Act, no individual with a disability can be denied access to a public service or be discriminated against because of their disability.

Kohn argued that under Phiffer v. Columbia River Correctional Institute, Title II claims supersede state sovereign immunity. The Ninth Circuit panel didn’t agree.

“In our court, a three-judge panel may recognize prior precedent as overruled only when an intervening precedent of higher authority is ‘clearly irreconcilable’ with the precedent,” Wardlaw wrote.

In this case, the precedent of higher authority in United States v. Georgia , in which the Supreme Court determined an analysis for whether a state can face Americans with Disability Act violation claims.

“Many of our sister circuits have read Georgia to establish a blueprint for the abrogation analysis: a three-part inquiry to be undertaken with respect to a specific ‘class of conduct’ on a ‘claim-by-claim’ basis,” Wardlaw wrote, adding that the holding conflicts with that of Phiffer , which broadly asserts that Title II claims overrule a state’s sovereign immunity.

Finding that Georgia overruled Phiffer, the panel directed district courts to now turn to Georgia when determining sovereign immunity challenges involving Title II.

Kohn first filed suit against the State Bar in 2020. His case was dismissed when the lower court determined that sovereign immunity applied. On appeal, the Ninth Circuit affirmed that the State Bar does have immunity but turned to how the court arrived at its decision.

While the lower court that dismissed Kohn’s claims did indeed apply the Georgia analysis, the panel found that the court did so incorrectly.

Instead of evaluating which, if any, of Kohn’s accusations stated a Title II claim, the court skipped that requirement and proceeded to the second step of the analysis.

“It is not enough for the district court to hold that the complaint does not allege a constitutional violation and end there,” Wardlaw wrote.

While the lower court was not required to analyze the Georgia inquiry in any specific order, it fell short by only analyzing the latter part of the test.

The Ninth Circuit panel sent the case back to the lower court to be reconsidered under the new guidance and granted Kohn the chance to amend his complaint.

“Although I’m thankful to the court for recognizing that I should receive an opportunity to amend my complaint, I’m disappointed that the panel substantially advanced the state bar’s attempts to challenge the constitutionality of Title II of the Americans with Disabilities Act by overturning prior Ninth Circuit precedent,” Kohn said.

He said he disagreed that the Georgia analysis is required by Supreme Court precedent and expressed concern that it may open the door for public entities to press that challenge moving forward.

Kohn is also actively involved in opposing the state bar’s proposed amendment to its testing accommodation rules, which he hopes will provide “procedural reforms that disabled applicants desperately require and bring the State Bar into compliance with disability law mandates.”

The State Bar of California said it appreciated the court’s analysis and clarification that sovereign immunity cases involving Title II claims must be analyzed on a case-specific basis.

“The state bar remains committed to ensuring full and equal access to the California Bar Examination for all applicants, in compliance with the ADA,” bar general counsel Ellin Davtyan said.

U.S. Circuit Judges Consuelo M. Callahan, a George W. Bush appointee, and Jacqueline H. Nguyen, a Barack Obama appointee, joined the opinion.