In the Courts

This article originally appeared in The Bar Examiner print edition, Winter 2024-2025 (Vol. 91, No. 4), pp. 43–46.

Bar Admissions

Educational Requirements

Robert M. Joost appealed for a waiver of the educational requirements in place for Massachusetts bar admission on equal protection and due process grounds. Joost does not hold either the required undergraduate or law school degrees and argued that his age makes completing these degrees impossible. The Supreme Judicial Court affirmed the prior judgment, holding that a waiver would run counter to the reasoning behind having such requirements in place.

Massachusetts, like many other US jurisdictions, requires applicants for law licensure to have earned a bachelor’s degree, or its equivalent, and a JD from an American Bar Association–accredited law school. Robert M. Joost, who does not hold either qualification, “appeals from the judgment of a single justice of this [Supreme Judicial] court denying without a hearing his petition to waive [these] educational requirements” (1), which are listed in the court’s Rule 3:01. Prior to this appeal, Joost also had a request for such a waiver denied by the Supreme Judicial Court’s rules committee.

He “contends that he has over fifty years of legal experience from working as a paralegal, extensive pro se litigation in State and Federal courts, and conducting courses on legal research and procedure for inmates in Federal prisons. Joost takes the position that his training and knowledge are at least equivalent to that of a law school graduate” (2), and that, due to his being 80 years old, fulfilling the educational requirements is not feasible. For Joost, denial of a waiver on these grounds violates his equal protection and due process rights.

The Court took up the review as the “final authority” regarding bar admissions in Massachusetts, including by “‘establish[ing] the rules and standards by which individuals become licensed to practice law.’”1 The Court’s case law statements on those standards2 have explained how educational requirements do not violate the protections Joost argues they do. Knowledge of the law does not equal a legal education. A waiver in this case would contradict why such standards were enacted in the first place; the Court thus affirmed the previous judgment. 

See Robert M. Joost v. Board of Bar Examiners, SJC-13587, November 19, 2024

Sovereign Immunity

The US Court of Appeals for the Ninth Circuit, en banc, previously took up a case involving attorney Benjamin Kohn, whose complaint regarding denied testing accommodations was dismissed in California. The Court reaffirmed the State Bar of California’s status as an arm of the state, and thus it was entitled to sovereign immunity under the Eleventh Amendment. On remand, Kohn argued that the Phiffer v. Columbia River Correctional Institute ruling meant that Title II of the Americans with Disabilities Act (ADA) abrogates such immunity regarding his claims. The Court’s three-judge panel held that precedent set by United States v. Georgia overruled Phiffer; Georgia requires “case-specific analysis,” which the district court used in its original dismissal of Kohn’s claims. However, the panel found this analysis incorrectly focused on only a single part of the Georgia test. The panel thus vacated the dismissal and remanded the suit.

Attorney Benjamin Kohn’s previous claim regarding denied testing accommodations was dismissed by a California district court. The US Court of Appeals for the Ninth Circuit, en banc, reaffirmed the State Bar of California’s status as an arm of the state, and thus the bar was entitled to sovereign immunity under the Eleventh Amendment. The Bar Examiner covered this opinion at thebarexaminer.ncbex.org/article/spring-2024/in-the-courts-2/. The Court’s three-judge panel then took up “Kohn’s alternative contention that Title II of the ADA validly abrogates the State Bar’s Eleventh Amendment immunity as to his claims” (4) on remand. Sovereign immunity stands unless a given statute expressly states that this immunity is abrogated or when the statute is “congruent and proportional” regarding congressional enforcement powers, as established in City of Boerne v. Flores.

Kohn argues that the Court’s Phiffer v. Columbia River Correctional Institute’s decision abrogates sovereign immunity as to Title II claims. Indeed, that decision references “precedent [that] ‘clearly commands the conclusion that’” (7) state immunity categorically fails before Title II claims. But since Phiffer, the US Supreme Court decided United States v. Georgia, which, for many courts, created “a blueprint for … abrogation analysis: a three-part inquiry to be undertaken with respect to a specific ‘class of conduct’ on a ‘claim-by-claim’ basis” (9). The Court acknowledged such precedent “is in significant tension with our blanket holding in Phiffer that Title II validly abrogates state sovereign immunity in all of its applications,” although it had “never explicitly addressed the status of Phiffer post-Georgia” (9–10). This tension became irresolvable for the Court—Georgia and its case-specific requirements overrule and should now be used where necessary.

The three parts of a Georgia inquiry are: “(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.”1

Acknowledging that the district court did use Georgia analysis in its reasoning, this Court panel found the application of it lacking due to solely analyzing the second element. Regarding the first part, “the district court identified the conduct at issue” (11) in Kohn’s claims but went no further in evaluating if Title II violations occurred. Likewise, in its finding that Kohn’s claims failed to meet the third part of the Georgia inquiry, the district court “also did not provide any reasoning supporting its conclusion that Congress did not prophylactically abrogate sovereign immunity” (11). The Court panel stated that the district court “cannot begin and end its analysis with the second part of the Georgia test” (12) when claims such as Kohn’s are involved. The court panel vacated the prior dismissal and remanded the suit.

See Kohn v. State Bar of California, 20-17316, October 21, 2024

Sovereign Immunity

Ex parte Young

T.W. previously sued the New York Board of Law Examiners (the Board) and its members, arguing that they violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibits discrimination against persons with disabilities, for denying her requests for testing accommodations on the New York Bar Exam. As an arm of the state, the Board is entitled to sovereign immunity under the Eleventh Amendment. Prior court decisions have dismissed T.W.’s claims, which she appealed to the US Court of Appeals for the Second Circuit (the Court). T.W. argued in appeal that Title II “abrogate[s] Eleventh Amendment immunity in the context of [her] claim. In addition, T.W. argue[d] that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young.” The Court affirmed the district court’s previous dismissal.

T.W. is a Harvard Law School graduate who requested accommodations on the New York Bar Exam due to disability and sued the Board and its members for denying the full complement of accommodations sought.1

This appeal of the district court’s dismissal of T.W.’s Title II claims “argue[d] that the Board is not an arm of the state, and even if it were an arm of the state, that Title II has abrogated Eleventh Amendment immunity in the context of [her] claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity as to her damages claim, she may seek her requested declaratory and injunctive relief under Ex parte Young” (5–6).

On the arm of the state and immunity elements, the Court of Appeals points out that the district court previously explored the Mancuso2 factors in detail as part of its finding that the board had immunity as an arm of the state (15). What is more, the Court of Appeals, “[i]n [its previous T.W. opinion], … held that the Board had not waived its sovereign immunity, and that the district court was therefore obliged to dismiss the Rehabilitation Act claims for lack of subject matter jurisdiction. By deciding that dismissal was required, we necessarily decided that the Board had sovereign immunity—a decision that had to be logically premised on a conclusion that the Board was an arm of the state” (17–18). The board’s status became “law of the case,” settling the issue; to raise it in this appeal, “essentially seeks vacatur of [the Court’s] prior decision” (18).

The Court then took up the alleged Title II abrogation, which is considered under the three-part “Georgia framework” (21).3 Part one involves finding whether an alleged violation of Title II occurred via the state’s alleged conduct. The district court previously found T.W.’s allegations on this point plausible, and the Court of Appeals sees no reason to disagree. Part two involves determining if a violation of the Fourteenth Amendment happened. T.W. did not allege such a violation in this appeal. The final step, decisive in this opinion, is “whether Congress’s purported abrogation of sovereign immunity is valid as to T.W.’s claim” (23).

Recognizing that courts have been far from unanimous regarding this application to Title II claims, the Court proceeded with its own analysis. First, T.W. argues that the constitutional right in question is the right to an education, with an ancillary claim regarding access to courts. But the Court “agree[d] with the Board that the right involved in T.W.’s case is a disabled person’s right of occupational choice, and more specifically that of licensure to practice in a highly regulated profession” (27), noting that the US Supreme Court has seen the bar exam as a distinctly post–legal education element. Additionally, the bar exam “is surely not a prerequisite to participation in civil society” (29), unlike education more broadly. Thus, T.W.’s allegations solely relate to her professional life. The access-to-courts argument likewise falls short, as that right does not extend to the right to gainfully practice law.

Next, the Court considered whether there has been a history of unconstitutional discrimination within professional licensing that Title II addresses. The Court found T.W.’s provided examples do not constitute such a pattern (unlike that in the context of Tennessee v. Lane, which dealt with access to the courts),4 calling the record at issue “perilously slim” (39). The final consideration is whether Title II’s “rights and remedies” “are congruent and proportional to the specific violations at issue given the nature of the constitutional right and the history of unconstitutional violations” (39). Relying on City of Boerne v. Flores,5 “congruence and proportionality [is] lacking where a statute’s protections so significantly exceed the bounds of the Fourteenth Amendment right at issue that they effectively expand that right” (41). With this in mind, and again noting the paucity of T.W.’s examples and the broader “congressional record of unconstitutional conduct by states in professional licensing”6 (48), the Court found that abrogation of immunity in this case would fall outside the Fourteenth Amendment’s bounds.

The Court then took up T.W.’s claims to declaratory and injunctive relief under Ex parte Young, which allows suits against “individual[s] acting in [their] official capacity … to end an ongoing violation of a federal law” (52). To allow the exception, courts must find whether such a violation exists, and then whether the relief sought can be “properly characterized as prospective” (53). The district court previously concluded “that the declaratory relief sought is wholly retrospective, and therefore barred. T.W. seeks only a declaration—in the past tense—that the Board ‘violated Title II’” (53). The Court of Appeals agreed. Furthermore, the Court sees T.W.’s ask for relief in line with the findings of Green v. Mansour, where “the declaratory judgment would have a res judicata effect as to liability for damages in a future state court action, thus serving as an end run around the Eleventh Amendment” (56). Regarding the injunctive relief, T.W. sought to have her bar exam records expunged, as she claimed they constitute a continued negative impact on her job search. The district court had found that doing so would not change anything regarding her professional experience or her bar exam results. Additionally, the New York Board cannot disclose such records to employers. The Court found this conclusion sound, albeit via a different line of reasoning. T.W. did allege ongoing violations of federal law in the form of conduct and policies that discriminate against disabled individuals, but the Court saw expunging records as not in line with “allege[d] … harm”: “[I]f T.W. had alleged that the Board’s maintenance of records violated Title II, her claim may well have survived” (63), but she did not do so. Such requested relief must be to end a continued violation of law, not simply “harm” to professional prospects. The Court affirmed the prior dismissal of T.W.’s claims.

See T.W. v. New York State Board of Law Examiners et al., No. 22-1661 (2d Cir. 2024)

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