Tenth Circuit Holds ADA Doesn't Validly Abrogate State Sovereign Immunity in Medical Licensing Cases

The opinion, in Guttman v. Khalsa, is here.  I may have more to say on this later.  (Disclosure: I represented Dr. Guttman, the plaintiff, in earlier Supreme Court proceedings in this case.)

N.D.W.Va.: Title II Validly Abrogates Sovereign Immunity in Context of Medical Residency

New on Westlaw: Sarkissian v. West Virginia Univ. Bd. of Governors, 2007 WL 1308978 (N.D.W.Va., May 3, 2007). Dr. Sarkissian was discharged from a medical residency at the West Virginia School of Medicine. He sued under, inter alia, Title II; he claimed that the school had refused to accommodate his ADHD. The school moved to dismiss on sovereign immunity grounds, and the district court denied the motion to dismiss. The Fourth Circuit had earlier held that Title II validly abrogates state sovereign immunity in cases involving public higher education, and the Supreme Court held in the Garrett case that the ADA did not validly abrogate state sovereign immunity in cases involving employment. A medical residency is a bit of a hybrid of higher education and employment, but the court concluded that a residency is primarily educational rather than vocational. Accordingly, applying the Fourth Circuit's higher-education precedent, it held that Title II does validly abrogate state sovereign immunity in the medical residency context. Expect an appeal.

Supreme Court Denies Cert. in Univ. of Puerto Rico v. Toledo

In Monday's orders list, the Supreme Court denied cert. in University of Puerto Rico v. Toledo. The University of Puerto Rico sought cert. to review a decision of the First Circuit, which held that Title II of the ADA validly abrogates state sovereign immunity in the context of public education. Four circuits have so held; none has come out the other way since the Supreme Court's decision in Tennessee v. Lane.

Biking for Waiver of Sovereign Immunity

A novel approach:

A man plans to bike from El Paso to Beaumont without the use of his legs.

Mikail Davenport, 58, has post-polio syndrome and he's a cancer survivor. Davenport kicked off a 950-mile, 25-day cycling tour Tuesday to prove that having a disability is not a death sentence. He's calling it the Legless Lizard Tour de Tejas.

City leaders, wheelchair athletes and fans joined Davenport at a local bicycle shop to send him off.

Davenport wants to send a message to state legislators dealing with issues of people who have disabilities.

He especially wants Texas to waive its immunity from the Americans with Disabilities Act.