N.D.Ohio: No ADA Title II immunity for state schools

An Ohio federal district court held that Title II of the Americans with Disabilities Act (ADA), which prohibits disability discrimination in public services and programs, validly abrogated states’ sovereign immunity with respect to public higher education. Frank v. University of Toledo, 2007 WL 4590982 (N.D.Ohio Dec. 28, 2007) (No. 3:06 CV 1442).

          The court also followed the majority view that the proper statute of limitations for disability discrimination claims under the ADA and the Rehabilitation Act is the period for state personal injury suits.

 

            Frank is a disabled veteran who “has nerve problems in one hand that cause him to tire after a period of typing.” He was enrolled in a Ph.D program at the University of Toledo. He passed a preliminary exam in the program without accommodations, but failed his comprehensive exam (as prerequisite for beginning his thesis). He complained that he should be allowed to retake the exam with accommodations, but the parties could not agree on the accommodations to be provided. Eventually his enrollment lapsed because he was not enrolled in new coursework, and accordingly his instructor position was terminated. Frank sued under ADA Title II 42 U.S.C.A. § 12131 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., and state contract law theories.

 

            The court followed two recent circuit court decisions holding that Title II of the ADA validly abrogated state sovereign immunity inasmuch as it applies to public higher education. Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 254 (3d Cir.2007) (summary here); Toledo v. Sanchez, 454 F.3d 24 (1st Cir.2006). (The Fourth and Eleventh circuits held similarly in 2005.) As the court noted, the First Circuit relied on court decisions documenting a pattern of discrimination in public education, the enactment of the Rehabilitation Act in response to state discrimination, and the fact that “Title II does not require wholesale changes in programs but instead calls for ‘reasonable’ accommodations for disabled individuals” – all facts supporting the conclusion that Title II is a “congruent and proportional” remedy to state disability discrimination in higher education.

 

            The court criticized Doe v. Bd. of Trs. of Univ. of Ill., 492 F.Supp.2d 930 (N.D.Ill. 2007), which rejected Title II education suits on the ground that “education is not a fundamental constitutional right.” The court took the view that the Supreme Court’s reasoning in Tennessee v. Lane, 541 U.S. 509 (2004) (Title II abrogation valid as applied to access to courts) “did not depend solely on [court] access being a fundamental constitutional right, even though this fact affected the Court’s weighing of the ‘congruent and proportional’ test.”

           

            The court also followed the prevailing view that the appropriate statute of limitations period under the ADA and/or the Rehabilitation Act is the period for state personal injury claims. The court distinguished Wolsky v. Med. Coll. of Hampton Rds., 1 F.3d 222 (4th Cir. 1993) (applying period from state disability rights statute), on the ground that  “the Ohio [disability] statute was not modeled directly on either of the federal acts, as was true in Wolsky, and…the instant action is most analogous to a personal injury action.”

 

            The court further held that the limitations period in this case was calculated from the date Frank was initially denied accommodations in retaking his exam, not from the end of subsequent negotiations between Frank and the university. It stated that the “continuing violations doctrine does not apply in the Title II disability context,” but only to workplace policies in the employment context. The court cited Sixth Circuit precedent and also cited Ledbetter v. Goodyear, 127 S.Ct. 2162 (2007), in which the Supreme Court notoriously refused to apply the continuing violations doctrine to wage discrimination. The court further refused to apply equitable tolling, stating that this doctrine only applies to Title VII claims.

 

            Despite these holdings, the court considered the merits of the discrimination claims under federal law, apparently because they mirrored the state law claim (which was not time-barred). The court held that the accommodations proposed by the university were reasonable and those proposed by Frank would have required the school “to restructure their programs in whole.” It also rejected his retaliation claim, following circuit precedent, because Frank provided no evidence of causation between an improper disclosure of his student records and his complaints other than proximity in time.

 

            The court declined to rule on whether the university had waived its sovereign immunity as to the state law claims by consenting to federal jurisdiction, noting Sixth Circuit precedent leaving open the question of whether the merits of such claims should be decided before the immunity question. Instead, the court dismissed these claims on the merits.