Less Immunity for Public Colleges?

A federal appeals court ruling could make state institutions more vulnerable to lawsuits by disabled students.
April 8, 2005

A federal appeals court has poked a hole in the immunity shield for state colleges.

The U.S. Court of Appeals for the 11th Circuit ruled this week that the 11th Amendment does not protect public colleges from lawsuits filed by students under the Americans With Disabilities Act.

The 11th circuit's decision overturned a lower federal court's 2001 ruling in a lawsuit brought against Florida International University by a group of hearing impaired students. They contended that the state-funded university had violated the ADA by failing to provide qualified classroom interpreters or note takers or to offer other ways for such students to understand classroom instruction.

The suit also charged that the students had received lower grades because of the university's failure to communicate classroom material well, and that the institution had then failed to remedy that problem.

Florida International sought refuge behind the 11th Amendment to the U.S. Constitution, which grants states and public agencies broad protection against being sued in federal court. In December 2001, a federal judge in Miami, where the university is located, dismissed the students' lawsuit, arguing that in passing the disabilities law, Congress had not specifically abrogated, or waived, states' right to immunity.

The lower court based its decision on the Supreme Court's decision that year in Board of Trustees of the University of Alabama v. Garrett, which held that state employees could not sue their agencies or institutions under Title I of the ADA, which governs employment.

The Florida International students appealed to the 11th Circuit, and its review was delayed until the Supreme Court considered a voting rights case known as Tennessee v. Lane. In its May 2004 ruling in Lane, the Supreme Court ruled that in drafting Title II of the ADA, which applies to access to education and other public services, Congress had intended to abrogate immunity when a state discriminates against individuals in a way that deprives them of a "fundamental right" like voting.

Last June, the U.S. Justice Department joined the case on the side of the students, citing the Supreme Court's ruling in Lane in urging the 11th Circuit to overturn the lower court's decision.

Wednesday, a unanimous three-judge panel of the 11th Circuit did just that. "Discrimination against disabled students in education affects disabled persons’ future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services," the court said in its 10-page decision in the case, Association for Disabled Americans v. Florida International University. It directed the lower court to decide whether the students' claim of discrimination has merit.

Legal experts said that the 11th Circuit ruling represents an expansion from previous federal court decisions of disabled students' rights to sue their institutions.

In an e-mail message, Douglas J. Kmiec, a law professor at Pepperdine University, called the decision "an unwarranted expansion of Tennessee v. Lane." That case was anchored, he said, "in the fact that the Congress needs greater latitude where there is a denial of a clearly established fundamental right by a pattern of state discrimination against the disabled.

"Despite the recitals of the 11th Circuit," Kmiec added, "education has not been declared to be a fundamental right by the Supreme Court and the evidence relied upon to establish a pattern of discrimination may also be arguable."

The 11th Circuit's decision applies only in the states of Florida, Georgia and Alabama, and as other ADA cases brought by public college students move through other regions, other appeals courts will have to decide whether to embrace or challenge the 11th Circuit's legal logic, saidWilliam E. Thro, solicitor general in Virginia and a former general counsel at two of its public colleges. 

"We're likely to see in the years ahead continued litigation over what exactly is the abrogation standard," Thro said. He and Kmiec both said the issue could well be headed for the U.S. Supreme Court.

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