N.D. Ill.: Title II Not Valid Section 5 Legislation in Education

Disagreeing with rulings from the Fourth and Eleventh Circuits, Judge Kennelly of the U.S. District Court for the Northern District of Illinois has held that Title II of the ADA does not validly abrogate state sovereign immunity in the education context. The case involved a medical student with learning disabilities, who contended that the University of Illinois failed to accommodate his disability. The court dismissed the damages claim. It reasoned:

The Court finds itself in respectful disagreement with the Fourth and Eleventh Circuits. Title II imposes a number of burdens on all public entities, including the state university that is a defendant in this case. These entities must provide reasonable accommodations for recipients of services with disabilities, 28 C.F.R. § 35.130(b)(7), ensure their existing facilities, when viewed in their entirety, are accessible to people with disabilities, 28 C.F.R. § 35 .150, and ensure that any new or renovated facilities are accessible to people with disabilities. 28 C.F.R. § 35.151. There are exceptions to Title II's mandates: public entities need not make fundamental alterations to their programs, 28 C.F.R. § 35.130(b)(7), or incur undue financial burdens in ensuring that their facilities are accessible to people with disabilities. 28 C.F.R. § 35.150(3). There is no question, however, that these requirements, along with the threat of monetary damages if the entities fail to meet them, impose a significant burden on the states. In Lane, the Supreme Court determined that Congress, pursuant to section five of the Fourteenth Amendment, could impose these obligations on the states with respect to access to courthouse facilities because access to the courts is a fundamental constitutional right. The difference in this case is that education, despite its undoubted importance, is not considered by the Supreme Court to be a fundamental constitutional right. See San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-37 (1973). For these reasons, the Court concludes that Title II, as applied to the postgraduate state university program at issue in this case, exceeds Congress's power under section five. See Lane, 541 U.S. at 530-35; see also Walker, 213 F.3d at 346-47 (finding that Title II failed to abrogate the Eleventh Amendment to the extent it required states to accommodate rather than disregard disabilities and forbade states from “tak[ing] account of disabilities that are rationally permissible objects of public action.”).

The case is Doe v. Board of Trustees of the University of Illinois, 2006 WL 1084284 (N.D. Ill., Apr. 20, 2006).