While I Was Away, Part I: 4th Circuit Upholds Title II as Applied to Education
Wow, I go away for a week and a half, and all you-know-what breaks loose in the disability law world. The major news of the week has to be the Fourth Circuit's decision in Constantine v. Rector and Visitors of George Mason University. In Constantine, a unanimous three-judge panel upheld Title II of the ADA as valid legislation under Section 5 of the Fourteenth Amendment as applied to cases involving public education. The plaintiff was a law student who alleged that she was denied adequate accommodations for a migraine she experienced while she was taking her constitutional law exam. Given the composition of the Fourth Circuit, I don't know that we can assume that the panel's decision in Constantine will survive the inevitable en banc petition, but with the panel's decision, plus the Eleventh Circuit's recent decision in Association for Disabled Americans v. Florida International University, there are now two circuits that have upheld the Section 5 basis for Title II in the education context since Tennessee v. Lane; no post- appellate case has ruled to the contrary.