Case Information
*2 Bеfore TRAXLER, GREGORY, and SHEDD, Circuit Judges. Reversed and remanded by published opinion. Judge Shedd wrote the opinion, in which Judge Traxler and Judge Gregory joined. COUNSEL ARGUED: Michael Jackson Beattie, BEATTIE & ASSOCIATES, P.L.L.C., Fairfax, Virginia, for Appellant. Kevin Kendrick Russell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. William Eugene Thro, State Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich- mond, Virginia; Thomas Martin Beck, JONES DAY, Washington, D.C., for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, Maureen Riley Matsen, Deputy State Solicitor General, Alison Paige Landry, Senior Assistant Attorney General, Jeffrey Brandwine, Assistant Attorney General, Brian E. Walther, Assistant Attorney General, Richmond, Virginia, for Appellees. R. Alexander Acosta, Assistant Attorney General, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate Section, Washington, D.C., for Intervenor. Claudia Center, Lewis Bossing, THE LEGAL AID SOCIETY-EMPLOYMENT LAW CENTER, San Francisco, California, for Amici Curiae Sup- porting Appellant.
3 OPINION
SHEDD, Circuit Judge:
Carin Constantine sued The Rectors and Visitors of George Mason University ("GMU") and several members of GMU’s law school fac- ulty (the "individual defendants"), asserting a First Amendment retali- ation claim under 42 U.S.C. § 1983 and disability discrimination claims under Title II of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act. The defendants moved to dismiss the complaint on the grounds that (1) the Eleventh Amendment barred all claims against GMU and the individual defendants in their official capacities, and (2) the complaint failed to state a claim upon which relief could be granted. The district court declined to rule on the Elev- enth Amendment issues but dismissed the complaint for failure to state a claim. For the reasons that follow, we reverse the district court’s ruling and remand this case for further procеedings.
I.
Constantine was a student in Professor Nelson Lund’s constitu- tional law course at GMU, a state university that receives federal funds. Constantine suffered from "intractable migraine syndrome," for which she took prescription medication. While taking Professor Lund’s final exam, Constantine suffered a migraine headache. She alerted exam administrators to her condition and requested additional time to com- plete the exam, but they refused. Constantine failed the exam. She then requested a grade appeal and re-examination, but those requests were denied as well.
Constantine complained to Professor Lund, the dean of the law school, and other law school officials about the construction of Pro- fessor Lund’s exam and GMU’s grade appeals process. She publi- cized her complaints in an article she wrote for the law school newspaper.
Because we are reviewing the dismissal of Constantine’s complaint, we accept as true all well-pleaded allegations and view the complaint in the light most favorable to her. Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993).
About three months after Constantine made her initial request for re-examination, and after she voiced criticism of the grade appeals process, the dean agreed to give Constantine a second chance to take Professor Lund’s final exam. Because Constantine was carrying a full load of law school courses during the spring semester, the parties agreed that the re-examination would take place "sometime in June" 2003. On May 17, 2003, however, Constantine received an e-mail notifying her that she must present herself for the re-examination on May 21, 2003.
Constantine notified the dean, the law school registrar, and two other administrators that she would not be able to take Professor Lund’s exam at that time because she had a conflict related to another law school course and, in any event, the dean had told her that she would be re-examined in June. These law school officials told Con- stantine that she should appear for re-examination at the time speci- fied or forfeit her right to take the exam. Constantine requested an opportunity to take the exam in June, but that request was denied.
Constantine then filed this lawsuit and moved the district court for a temporary restraining order. After a hearing, the district court denied the motion. Constantine declined to take Professor Lund’s exam on May 21, 2003. GMU later offered to give Constantine another chance to take Professor Lund’s exam, but Constantine believes that in retaliation for her criticism of GMU’s handling of her case, GMU decided in advance to give her an "F" on the exam. Con- stantine eventually took Professor Lund’s exam, and she received an "F."
As a result of this failing grade in constitutional law, Constantine was not able to graduate on time. Delayed graduation compromised her ability to begin on time the judicial clerkship that she had previ- ously accepted, so Constantine had to inform her judge of the failing grade and obtain special permission to start work a year later. Accord- ing to Constantine, the "F" on her transcript continues to hamper her employment prospects.
Constantine sued GMU and the individual defendants in their offi- cial and individual capacities. She alleges that the defendants’ failure to accommodate her physical disability violated her rights under the ADA and the Rehabilitation Act. She further alleges that the individ- ual defendants retaliated against her for criticizing GMU’s grade appeals policies and thus violated her First Amendment right to free speech. Constantine seeks monetary damages as well as declaratory and injunctive relief.
The defendants moved to dismiss Constantine’s suit, arguing that the Eleventh Amendment bars her claims against GMU and against the individual defendants in their official capacities. Further, the defendants argued that Constantine had failed to state a claim upon which relief can be granted. The district court granted the motion to dismiss under Rule 12(b)(6), ruling only that Constantine had failed to state a claim upon which relief can be granted. This appeal fol- lowed.
II.
At the outset, the defendants contend that the district court should have considered their Eleventh Amendment arguments before ruling on the sufficiency of Constantine’s allegations under Rule 12(b)(6). The Eleventh Amendment provides that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." Thе Supreme Court has held that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State," Edelman v. Jordan , 415 U.S. 651, 663 (1974), and the Eleventh Amendment protects "state agents and state instrumentalities" as well as the States themselves, Regents of Univ. of Cal. v. Doe , 519 U.S. 425, 429 (1997).
According to the defendants, Eleventh Amendment immunity is a
jurisdictional issue that must be decided at the earliest stage of litiga-
tion.
See Steel Co. v. Citizens for a Better Env’t
,
"Subject-matter jurisdiction . . . is an [Article] III as well as a statu- tory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign." Insur- ance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982). Because a federal court’s subject-matter juris- diction is created — аnd limited — by Article III and federal statutes, "no action of the parties can confer subject-matter jurisdiction upon a federal court," and ordinary principles of consent, waiver, and estoppel do not apply. Id. A federal court has an independent obliga- tion to assess its subject-matter jurisdiction, and it will "raise a lack of subject-matter jurisdiction on its own motion." Because subject- matter limitations "serve institutional interests," they "must be policed by the courts on their own initiative even at the highest level." Ruhr- gas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999).
Personal jurisdiction differs from subject-matter jurisdiction in that
it reflects an individual liberty interest rather than an institutional
interest; thus, "a party may insist that the limitation be observed, or
he may forgo that right, effectively consenting to the court’s exercise
of adjudicatory authority." at 584. The simple fact that subject-
matter jurisdiction is nonwaivable, while personal jurisdiction may be
waived, does not mean that subject-matter jurisdiction is somehow
more fundamental: "The validity of an order of a federal court
depends upon that court’s having jurisdiction over
both
the subject
matter
and
the parties."
Insurance Corp.
,
concerning personal jurisdiction without first determining that it has subject-matter jurisdiction over the case. Ruhrgas , 526 U.S. at 588.
As the Court has interpreted аnd applied it, Eleventh Amendment
immunity has attributes of both subject-matter jurisdiction and per-
sonal jurisdiction. The text of the Eleventh Amendment suggests a
limitation on subject-matter jurisdiction: "The judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State or by Citizens or Subjects of any Foreign
State." U.S. Const. amend. XI.
See also Pennhurst State Sch. & Hosp.
v. Halderman
,
Like personal jurisdiction, however, Eleventh Amendment immu-
nity need not be raised by a court
sua sponte
,
Patsy v. Board of
Regents of Fla.
,
may waive at pleasure"). For example, the Court has consistently held
that a State’s voluntary appearance in federal court effects a waiver
of Eleventh Amendment immunity.
Lapides v. Board of Regents of
Univ. Sys. of Ga.
,
The Court’s treatment of an Eleventh Amendment question in
Cal-
deron v. Ashmus
,
Difficult as it may be to describe precisely the nature of Eleventh
Amendment immunity,
see Schacht
, 524 U.S. at 394 (Kennedy, J.,
concurring) (noting the "hybrid nature" of the Eleventh Amendment),
it is at least clear that this immunity is not the kind of Article III limi-
9
tation on subject-matter jurisdiction that the Court considered in
Steel
Co.
Thus, we reject the defendants’ contention that
Steel Co.
required
the district court to consider Eleventh Amendment questions before
addressing the sufficiency of the allegations under Rule 12(b)(6).
See
In re: Hechinger Inv. Co. of Del., Inc.
,
Our analysis does not end here, however, because although Elev-
enth Amendment immunity is not strictly an issue of subject-matter
jurisdiction, neither is it merely a defense to liability.
See Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.
,
An exception to this general rule arises where the defendant asserts
both
that the federal statute at issue does not permit a suit against the
State
and
if not, that Eleventh Amendment immunity bars the suit.
See Vermont Agency of Nat. Res. v. United States
,
Independent of this
Vermont Agency
analysis, we avoided the Elev-
enth Amendment question in
Strawser
based on the defendants’
equivocal assertion of immunity.
Unlike
Vermont Agency
and
Strawser
, this case does not involve
a challenge to the statutory basis for suit. Rather, the defendants in
this case argue that the Eleventh Amendment bars the suit and if not,
the allegations of the complaint are insufficient to make a
prima facie
case for relief. The question whether the allegations in the complaint
are sufficient to satisfy Rule 12(b)(6) is not "logically antecedent" to
the question whether the Eleventh Amendment bars this suit. Indeed,
the Court in
Vermont Agency
specifically distinguished "[t]he ques-
tion whether the statute provides for suits against the States" from
"the broader question whether the statute creates any private cause of
action whatever, or the question whether the facts alleged make out
a ‘false claim’ under the statute."
For these reasons, Vermont Agency and Strawser are inapposite, and we shall first determine whether the Eleventh Amendment bars Constantine’s claims against GMU and the individual defendants in their official capacities. Only if the Eleventh Amendment does not bar these claims shall we proceed to determine whether the allegations in Constantine’s complaint state claims for relief under Title II of the ADA and § 504 of the Rehabilitation Act. [5]
III.
Constantine asserts a claim under Title II of the ADA, which for- bids disability discrimination in the provision of public services. 42 U.S.C. § 12132. Constantine argues that Congress abrogated the States’ Eleventh Amendment immunity when it enacted Title II. Con- gress may abrogate the States’ Eleventh Amendment immunity, but only by stating unequivocally its desire to do so and only pursuant to a valid exercise of constitutional authority. Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 55 (1996).
A.
The ADA provides that "[a] State shall not be immune under the
eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a viola-
With respect to Constantine’s First Amendment retaliation claim
under § 1983, that statute does not authorize an action against GMU or
the individual defendants in their official capacities.
See Will v. Michigan
Dep’t of State Police
,
tion of this chapter." 42 U.S.C. § 12202. This provision clearly and unambiguously expresses congressional intent to abrogate the States’ Eleventh Amendment immunity with respect to claims brought under the ADA. See Tennessee v. Lane , 124 S. Ct. 1978, 1985 (2004); Board of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 363-64 (2001). "The question, then, is whether Congress had the power to give effect to its intent." Lane , 124 S. Ct. at 1985.
B.
The ADA purports to "invoke the sweep of congressional authority,
including the power to enforce the fourteenth amendment and to regu-
late commerce, in order to address the major areas of discrimination
faced day-to-day by people with disabilities." 42 U.S.C.
§ 12101(b)(4). Although the commerce power conferred by Article I
of the Constitution does not authorize Congress to abrogate the
States’ Eleventh Amendment immunity,
Seminole Tribe
,
The Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Section 5 of the Fourteenth Amendment authorizes Congress to enact "appropriate legislation" to enforce these substantive guarantees. Congress is empowered by § 5 not only to codify the Supreme Court’s holdings concerning the rights established by the Fourteenth Amendment, but also to deter future violations of the Fourteenth Amendment. City of Boerne v. Flores , 521 U.S. 507, 518 (1997). While Congress may, pursuant to § 5, enact prophylactic legislation prohibiting conduct that is "not itself unconstitutional," it may not substantively redefine Fourteenth Amendment protections. at 519. To ensure that Congress merely enforces the Fourteenth Amendment and does not reinterpret it, the Supreme Court has held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520.
The Court in
Lane
recently applied this congruence-and-
proportionality analysis to Title II of the ADA.
Having identified the relevant Fourteenth Amendment rights, the Court turned to the historical question whether Congress enacted Title II in response to a pattern of unconstitutional disability discrimina- tion. Lane , 124 S. Ct. at 1988-92. Citing various federal court deci- sions and state statutes, the Court found that "Congress enacted Title II against a backdrop of pervasive unequal treatment in the adminis- tration of state services and programs, including systematic depriva- tions of fundamental rights." Id. at 1989. The legislative history of the ADA also included "hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions," most of which involved discrimination in the administration of public services. at 1990. Particularly with respect to access to the courts, the legislative history showed that "many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities." [6] All this evidence sug- Although the Court in Lane described evidence of disability discrimi- nation with respect to a wide variety of public services, the issue of access to the courts was critical in the analysis. The Court likened Lane to Nevada Department of Human Resources v. Hibbs , 538 U.S. 721 (2003) (addressing the validity of the Family and Medical Leave Act under § 5 to remedy and deter sex discrimination in the workplace), and distinguished Kimel v. Florida Board of Regents , 528 U.S. 62 (2000) (addressing the validity of the Age Discrimination in Employment Act under § 5 with respect to age discrimination in the wоrkplace), and Gar- rett (addressing the validity of Title I of the ADA under § 5 with respect to disability discrimination in the workplace), because the right of access gested that "inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legisla- tion." Lane , 124 S. Ct. at 1992. [7]
In determining whether Title II was an appropriate response to this pattern of unconstitutional discrimination, the Court narrowed its focus and considered the validity of Title II only as it applies "to the class of cases implicating the accessibility of judicial services." Id. at 1993. Even if Title II, considered as a whole, might prohibit too much otherwise constitutional conduct, the Court held that "Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment." Id. at 1994. The Court specifically declined to address the question "whether Title II’s duty to accommodate exceeds what the Constitu- tion requires in the class of cases that implicate only [the] prohibition on irrational discrimination." at 1994 n.20.
to the courts triggers heightened scrutiny. Lane , 124 S. Ct. at 1992. Because "Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts at issue in this case, that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifica- tions," less evidеnce was required to establish a pattern of unconstitu- tional conduct. In examining the backdrop of discrimination against which Congress
enacted Title II, the Court specifically rejected the proposition that "a
valid exercise of § 5 power must always be predicated solely on evidence
of constitutional violations by the States themselves."
Lane
,
By its own terms, Lane does not resolve the specific question pre- sented here — whether the accommodation requirement of Title II, as it applies to cases involving the administration of higher education programs, represents a congruent and proportional response to a his- tory and pattern of unconstitutional disability discrimination by States and nonstate government entities. Nevertheless, the analysis employed by the Court in Lane must guide our analysis in this case.
1.
We begin by identifying the Fourteenth Amendment right that
Congress purportedly sought to enforce when it enacted Title II.
See
Lane
,
parity of treatment and some legitimate governmental purpose,"
Heller v. Doe
, 509 U.S. 312, 320 (1993). Thus, the Fourteenth
Amendment does not require States to "make special accommoda-
tions for the disabled, so long as their actions toward such individuals
are rational."
Garrett
,
2.
We next consider the extent to which Title II was "responsive to, or designed to prevent, unconstitutional behavior." City of Boerne , 521 U.S. at 532. Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from par- ticipation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. According to Congress, this provi- sion was necessary to address pervasive discrimination "in such criti- cal areas as . . . housing, public accommodations, education , transportation, communication, recreation, institutionalization, health services, voting, and access to public services." § 12101(a)(3) (emрhasis added).
At this stage of the analysis, we consider whether Title II repre-
sents a legislative response to a pattern of unconstitutional disability
discrimination in public "services, programs, or activities" generally.
Although the Court in
Lane
cited examples of disability discrimina-
tion specifically with respect to unjustified commitment, abuse and
neglect of persons committed to mental health hospitals, and irrational
zoning decisions, 124 S. Ct. at 1989, as well as discriminatory state
laws concerning marriage, jury service, the penal system, public edu-
cation, and voting,
id.
at 1989-90, it was the cumulative effect of this
evidence that mattered most. In light of all of this evidence, the Court
found it "clear beyond peradventure that inadequate provision of pub-
lic services and access to public facilities was an appropriate subject
for prophylactic legislation." at 1992. After
Lane
, it is settled that
Title II was enacted in response to a pattern of unconstitutional dis-
ability discrimination by States and nonstate government entities with
respect to the provision of public services. This conclusion is suffi-
cient to satisfy the historical inquiry into the harms sought to be
addressed by Title II.
[9]
See Miller v. King
,
3.
The remaining question is whether the remedial measures con-
tained in Title II represent a congruent and proportional response to
this demonstrated history and pattern of unconstitutional disability
disсrimination.
Lane
,
requires in the class of cases that implicate only Cleburne ’s prohibi- tion on irrational discrimination").
Title II forbids public entities — including State and local govern- ments and their departments, agencies, or instrumentalities, 42 U.S.C. § 12131(1) — from excluding disabled persons from programs, ser- vices, or benefits "by reason of" their disabilities. 42 U.S.C. § 12132. In the context of public higher education, Title II requires that dis- abled students not be excluded from educational programs or activi- ties, or otherwise discriminated against, because of their disabilities. Title II also imposes an affirmative obligation to make "reasonable modifications to rules, policies, or practices, the removal of architec- tural, communication, or transportation barriers, or the provision of auxiliary aids and services" to enable disabled persons to receive ser- vicеs or participate in programs or activities. Id. § 12131(2). In the context of public higher education, Title II requires state colleges and universities to make reasonable accommodations for disabled students to ensure that they are able to participate in the educational program. These provisions, taken together, target precisely the sort of discrimi- nation that the evidentiary record described and that Congress sought to address.
We must also consider the limitations that Congress placed on the
scope of Title II.
See Hibbs
,
U.S. at 533. First, Title II protects only a "qualified individual with a disability." A plaintiff must make this threshold showing before he or she can even invoke the nondiscrimination provisions of the stat- ute. Second, although Title II forbids discrimination based on a per- son’s disability, States remain free to limit participation in their programs or activities for other, lawful reasons. Third, the require- ment that public entities make "reasonable modification[s]" to accom- modate disabled citizens is limited in important respects. As the Court noted in Lane , "Title II does not require States to employ any and all means to make . . . services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs." 124 S. Ct. at 1993. Insofar as Title II requires States to make "reasonable" modifications to their educa- tional programs in order to ensure that disabled citizens have access to those programs, this requirement is congruent with the constitu- tional imperative that States avoid irrational discrimination. See Gar- rett , 531 U.S. at 367.
Moreover, the implementing regulations provide the States several avenues to avoid liability under Title II. Since the States are required to operate their public programs so that those programs, "when viewed in [their] entirety," are accessible to and usable by disabled citizens, they are not necessarily required to "make each of [their] existing facilities accessible to and usable by individuals with disabil- ities," nor are they required to "take any action that would threaten оr destroy the historic significance of an historic property." 28 C.F.R. § 35.150(a). Numerous alternatives are available for the States to con- sider in determining how to modify existing facilities to accommodate their disabled citizens. § 35.150(b). Importantly, a State need not undertake what is probably the most expensive enterprise — struc- tural changes in existing physical facilities — if other methods effec- tively make the program or service accessible. Congress specifically found that such other methods of accommodation are less burdensome on public entities than are structural modifications of physical facilities. See S. Rep. No. 101-116, at 10-12, 89, 92 (1989); H.R. Rep. No. 101-485, pt. 2, at 34 (1990).
More generally, the States retain the right not to "take any action
that [they] can demonstrate would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens." 28 C.F.R. § 35.150(a). This regulation
acknowledges the States’ interests in preserving the essential charac-
teristics of their public programs and monitoring public expenditures.
The Court has noted that the "fundamental alteration" provision
allows a State to "show that, in the allocation of available resources,
immediate relief for the plaintiffs would be inequitable, given the
responsibility the State has undertaken for the care and treatment of
a large and diverse population of persons with mental disabilities."
Olmstead v. L.C. ex rel. Zimring
,
Undoubtedly, Title II imposes a greater burden on the States than
does the Fourteenth Amendment.
See Garrett
,
Title II presents fewer congruence-and-proportionality concerns
than does Title I, which the Court in
Garrett
ruled was invalid § 5
legislation. First, the remedial measures described in Title I are aimed
at discrimination by public entities acting as employers, not as sover-
eigns. The Court in
Garrett
noted that "it would be entirely rational
(and therefore constitutional) for a state employer to conserve scarce
financial resources by hiring employees who are able to use existing
facilities."
The remedial measures employed in Title II may not be a perfect
fit for the pattern of discrimination that Congress sought to remedy
and deter, but they need not be. The Court has made it clear that pro-
phylactic legislation such as Title II "can fall within the sweep of
Congress’ enforcement power even if in the process it prohibits con-
duct which is not itself unconstitutional."
City of Boerne
,
Association for Disabled Americans, Inc. v. Florida Int’l Univ. , 405 F.3d 954, 959 (11th Cir. 2005). Because Congress clearly expressed its intention to abrogate the States’ Eleventh Amendment immunity, and did so pursuant to a valid exercise of constitutional authority, the Eleventh Amendment poses no bar to Constantine’s claims under Title II of the ADA.
IV.
In addition to her ADA claim, Constantine also alleges that GMU, a recipient of federal funds, violated § 504 of the Rehabilitation Act when it discriminated against her on the basis of her disability. See 29 U.S.C. § 794(a) (prohibiting disability discrimination in federally funded programs or activities). In response to the defendants’ Elev- enth Amendment defense, Constantine contends that GMU waived its immunity when it accepted federal funds.
A State may waive its Eleventh Amendment immunity and consent to suit in federal court. College Sav. Bank v. Florida Prepaid Postse- condary Educ. Expense Bd. , 527 U.S. 666, 675 (1999). "Generally, we will find a waiver either if the State voluntarily invokes [federal] jurisdiction, or else if the State makes a clear declaration that it intends to submit itself to [federal] jurisdiction." at 675-76 (inter- nal quotations and citations omitted). More specifically, we have rec- ognized two ways in which a State may waive its Eleventh Amendment immunity: (1) expressly in a state statute or constitu- tional provision, "as long as the provision explicitly specifies the state’s intention to subject itself to suit in federal court," or (2) implic- itly "by voluntarily participating in federal spending programs when Congress expresses a clear intent to condition participation in the pro- grams . . . on a State’s consent to waive its constitutional immunity." Litman v. George Mason Univ. , 186 F.3d 544, 550 (4th Cir. 1999).
Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the partici- pation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Thus, any "program or activity" — including all the operations of a university or other postsecondary institution, id. § 794(b)(2)(A) — that receives federal funding must not discriminate on the basis of disability. Section 504 is enforceable through private causes of action, Barnes v. Gorman , 536 U.S. 181, 185 (2002), and the States are not immune from federal suits to enforce this provision, 42 U.S.C. § 2000d-7. Section 2000d-7 provides that "[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance."
Like Title VI of the Civil Rights Act and Title IX of the Education Amendments, § 504 of the Rehabilitation Act "invokes Congress’ power under the Spending Clause, U.S. Const. art. I., § 8. cl. 1, to place conditions on the grant of federal funds." Barnes , 536 U.S. at 186. Such Spending Clause legislation is "much in the nature of a contract : in return for federal funds, the [recipients] agree to comply with federally imposed conditions." (internal quotations omitted). Although Congress may exercise its spending power to impose such conditions, it must meet certain requirements in doing so: (1) "the exercise of the spending power must be for the general welfare," (2) the conditions must be stated unambiguously, (3) the conditions must "bear some relationship to the purpose of the federal spending," (4) the expenditure with its conditions must not violate some other consti- tutional command, and (5) "the financial inducement offered by Con- gress must not be so coercive as to pass the point at which pressure turns into compulsion." Litman , 186 F.3d at 552-53.
We held in Litman that the Eleventh Amendment waiver condition in § 2000d-7, in the context of a Title IX action, represented a valid exercise of the spending power. at 555. Specifically, we concluded that § 2000d-7 is an unambiguous and unequivocal condition requir- ing waiver of Eleventh Amendment immunity, id. at 554, and that such a condition does not violate any other constitutional command, id. at 555. Because § 2000d-7 applies equally to § 504 cases and Title IX cases, our holding in Litman forecloses GMU’s initial argument that Congress may not exercise its spending power to condition receipt of federal funds on a waiver of Eleventh Amendment immu- nity. Litman does not address, however, the defendants’ additional arguments that (1) the waiver condition is not related to the purpose of the federal spending, (2) the waiver condition is unduly coercive, and (3) any waiver was not knowing because GMU did not believe it had any immunity to waive when it accepted federal funds.
A.
The Supreme Court has acknowledged that "conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." South Dakota v. Dole , 483 U.S. 203, 207 (1987) (internal quotations omitted). At issue in South Dakota was a federal statute conditioning receipt of federal highway funds on a State’s adoption of a minimum drinking age of 21. Id. at 205. Given indications in the legislative history that the lack of uniformity in minimum drinking ages adversely affected highway safety, the Court noted that "the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended — safe interstate travel." at 208-09. Although amici urged adoption of a rule holding that any condition must be related directly to the purpose of the particular expenditure to which it is attached, the Court declined to "define the outer bounds of the ‘ger- maneness or relatedness’ limitation on the imposition of conditions under the spending power." at 208 n.3.
The defendants argue that the waiver condition at issue here is
invalid because it is not related to any
particular
spending program;
rather, the waiver condition applies to any program or activity that
accepts federal funds for
any
purpose. That much is true, but the
Supreme Court has upheld other spending conditions equally broad.
See
,
e.g.
,
Lau v. Nichols
,
a requirement that the alleged bribe be related to specific federal
funds). As the Court stated in
Lau
, Congress may, under the spending
power, "requir[e] that public funds, to which all taxpayers . . . contrib-
ute, not be spent in any fashion which encourages, entrenches, subsi-
dizes, or results in . . . discrimination." 414 U.S. at 569 (internal
citation omitted);
see also Sabri
,
Although the waiver condition in § 2000d-7 is a blanket condition
that applies regardless of the nature or аmount of federal funds
accepted, in this context it applies only with respect to the "program
or activity" that receives those funds.
See
29 U.S.C. § 794 (a)-(b). We
conclude that this waiver condition is sufficiently related to the pur-
pose of the nondiscrimination rule stated in § 504 of the Rehabilita-
tion Act,
i.e.
, to ensure that federal funds are not used to facilitate
disability discrimination.
See Barbour v. Washington Metro. Area
Transit Auth.
,
B.
The Supreme Court has also noted that "in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion." South Dakota , 483 U.S. at 211 (internal quotations omitted). The Court in South Dakota concluded that the minimum-drinking-age condition on highway funding was not unduly coercive, at least as it applied to South Dakota, since "all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs." at 211. Although there might be a federal funding condition that is unconstitutionally coercive, neither the Supreme Court nor any fed- eral court of appeals has yet identified one.
We considered this coercion theory in Virginia Department of Edu- cation v. Riley , 106 F.3d 559 (4th Cir. 1997) ( en banc ). The Com- monwealth of Virginia challenged the federal government’s decision to withhold from Virginia all federal funding under the Individuals with Disabilities Education Act ("IDEA") for one year in response to Virginia’s failure to provide educational services to 126 disabled stu- dents who had been disciplined for reasons unrelated to their disabili- ties. Id. at 560. A majority of the en banc court sustained Virginia’s challenge on the ground that the IDEA does not unambiguously con- dition receipt of federal funds on provision of services under such cir- cumstances. Id. at 561.
Although it was not necessary to the disposition of the case, six of thirteen judges agreed that the federal government’s withholding 100% of an annual special education grant of $60 million in response to the Commonwealth’s failure to provide private educational services to 126 students was unduly coercive. Id. at 569-70. According to these judges, "a Tenth Amendment claim of the highest order lies where, as here, the Federal Government . . . withholds the entirety of a substantial federal grant on the ground that the States refuse to ful- fill their federal obligation in some insubstantial respect rather than submit to policy dictates of Washington in a matter peculiarly within their powers as sovereign States." Id. at 570.
We later characterized this
dicta
in
Riley
as indicating that "the
coercion theory remains viable in this circuit, and that federal statutes
that threaten the loss of an entire block of federal funds upon a rela-
tively minor failing by a state are constitutionally suspect."
West Va.
v. U.S. Dep’t of Health & Human Servs.
,
The waiver condition at issue here is unambiguous and unequivo-
cal: If a "program or activity" — here, GMU — accepts federal fund-
ing, then it may not assert Eleventh Amendment immunity in defense
against a claim for violation of § 504. While it is certainly true, as the
defendants contend, that this waiver condition operates whenever a
"program or activity" accepts
any
federal funds, that fact alone does
not compel the conclusion that such a program or activity was
coerced to accept the condition. The coercion inquiry focuses on the
"financial inducement offered by Congress," and the Court in
South
Dakota
held that the minimum-drinking-age condition was not unduly
coercive based on the relatively small size of the federal grant that the
State risked losing.
C.
The defendants contend, however, that more is required to demon- strate that a State knowingly waived its Eleventh Amendment immu- nity. According to the defendants, a waiver of immunity is valid only if the State subjectively believed that it had immunity to waive. Rely- ing upon the Second Circuit’s decision in Garcia v. SUNY Health Sci- We did note, however, that "[i]f the government in fact withheld the entirety of West Virginia’s [Medicaid funding] because of the [S]tate’s failure to implement an estate recovery program, then serious Tenth Amendment questions would be raised." at 291.
ences Center , 280 F.3d 98 (2d Cir. 2001), the defendants argue that GMU’s waiver was not "knowing" because it reasonably believed that Congress had already abrogated its immunity from suit under § 504 of the Rehabilitation Act.
The Second Circuit held in Garcia that New York had not know- ingly waived its Eleventh Amendment immunity to a suit under § 504 because at the time it accepted federal funds for the program at issue, i.e. , before the Supreme Court decided Seminole Tribe , "Title II [of the ADA] was reasonably understood to abrogate New York’s sover- eign immunity under Congress’ Commerce Clause authority." Id. at 114. Because § 504 is virtually identical to Title II of the ADA, the Second Circuit concluded that New York at that time had no immu- nity to § 504 suits that it could possibly waive. Thus, its acceptance of federal funds expressly conditioned on a waiver of Eleventh Amendment immunity did not, in fact, constitute a knowing waiver. at 114-15.
We decline to follow the Second Circuit’s approach in
Garcia
. The
Supreme Court has already held that a condition on federal spending
must be clearly and unambiguously expressed so that the State accept-
ing federal funds can be certain of its obligations upon receipt of such
funds.
South Dakota
,
In any event, the facts of this case do not support the defendants’
argument that GMU did not know it had any Eleventh Amеndment
immunity to waive when it accepted federal funds. When GMU
accepted federal funds in 2003 — the year during which Constan-
tine’s claims arose — it was already settled that Congress had no
authority under Article I, and only limited authority under § 5 of the
Fourteenth Amendment, to abrogate the States’ Eleventh Amendment
immunity.
See City of Boerne
, 521 U.S. at 517-20;
Seminole Tribe
,
Circuit in Garcia recognized that "an argument could be made that if there is a colorable basis for the state to suspect that an express con- gressional abrogation is invalid, then the acceptance of funds condi- tioned on the waiver might properly reveal a knowing relinquishment of sovereign immunity. This is because a state deciding to accept the funds would not be ignorant of the fact that it was waiving its possible claim to sovereign immunity." 344 F.3d at 114 n.4. GMU waived whatever Eleventh Amendment immunity it had when it accepted fed- eral funds under a statute that clearly and unambiguously conditioned receipt of such funds on a waiver of immunity.
V.
Constantine also seeks declaratory and injunctive relief under § 504 of the Rehabilitation Act, and the defendants again assert Eleventh Amendment immunity. [15] The Supreme Court held in Ex parte Young , 209 U.S. 123 (1908), that the Eleventh Amendment does not bar a suit against a State official for prospective injunctive relief. In order to determine whether this doctrine applies, we "need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as pro- spective." Verizon Md., Inc. v. Public Serv. Comm’n , 535 U.S. 635, 645 (2002) (internal quotations omitted). We do not consider the mer- its of the plaintiff’s claims; it is enough that the complaint alleges an ongoing violation of federal law. at 646.
Constantine’s complaint alleges that the defendants violated § 504 of the Rehabilitation Act by initially failing, and then later refusing, to make reasonable accommodations for her disability. The prayer for relief requests an order expunging the failing grade from Constan- tine’s record or directing GMU to permit a re-examination under rea- sonable circumstances. The defendants do not contend that such relief would be impermissibly retroactive. Accordingly, the allegations in Since Constantine graduated from GMU’s law school, all of her claims for injunctive relief are now moot, except for her request that GMU expunge the failing grade from her record. See Mellen v. Bunting , 327 F.3d 355, 364 (4th Cir. 2003) (citing Board of Sch. Comm’rs v. Jacobs , 420 U.S. 128, 129 (1975) ( per curiam )).
Constantine’s complaint satisfy our "straightforward inquiry."
Id.
at
645-46;
see McCarthy v. Hawkins
,
The defendants argue, however, that the Rehabilitation Act effec-
tively precludes
Ex parte Young
actions. Congress may displace the
Ex parte Young
doctrine by creating specific remedies for violations
by state actors. "[W]here Congress has prescribed a detailed remedial
scheme for the enforcement against a State of a statutorily created
right, a court should hesitate before casting aside those limitations and
permitting an action against a state officer based upon
Ex parte
Young
."
Seminole Tribe
,
By contrast, the Court held in
Verizon
that the Telecommunications
Act of 1996 did not foreclose an
Ex parte Young
action.
For violations of § 504, the Rehabilitation Act makes available all
of the "remedies, procedures, and rights" provided in Title VI of the
Civil Rights Act. 29 U.S.C. § 794a(a)(2). Title VI forbids discrimina-
tion on the basis of race, color, or national origin by any "program or
activity" that receives federal funding. 42 U.S.C. § 2000d. Although
Title VI does not expressly authorize a private right of action to
enforce this nondiscrimination rule, "[i]t is well settled that there is
an implied private right of action to enforce [the statute’s] core prohi-
bition on discrimination in federally-financed programs."
Peters v.
Jenney
,
VI.
Because the Eleventh Amendment does not bar Constantine’s
claims under the ADA and the Rehabilitation Act, we next consider
the district court’s dismissal of those claims under Rule 12(b)(6). Dis-
missal is not appropriate under Rule 12(b)(6) "unless it appears cer-
tain that the plaintiff can prove no set of facts which would support
[her] claim and would entitle [her] to relief."
Mylan Labs.
,
Title II of the ADA provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from partici-
The Court in
Barnes
held that punitive damages are not available for
violation of Title VI, and thus not available for violation of Title II of the
ADA or § 504 of the Rehabilitation Act either.
pation in or be denied the benefits оf the services, programs, or activi-
ties of a public entity, or be subjected to discrimination by any such
entity." 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act
provides that "[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded from the
participation in, or be denied the benefits of, or be subjected to dis-
crimination under any program or activity receiving Federal financial
assistance." 29 U.S.C. § 794(a). In general, a plaintiff seeking recov-
ery for violation of either statute must allege that (1) she has a disabil-
ity, (2) she is otherwise qualified to receive the benefits of a public
service, program, or activity, and (3) she was excluded from partici-
pation in or denied the benefits of such service, program, or activity,
or otherwise discriminated against, on the basis of her disability.
Baird v. Rose
,
A plaintiff is "qualified" if she is "an individual with a disability
who, with or without reasonable modifications to rules, policies, or
practices, . . . meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities pro-
vided by a public entity." 42 U.S.C. § 12131(2). According to the
complaint, Constantine "is qualified to be a student at GMU and is
[17]
Although "[t]he ADA and Rehabilitation Act generally are construed
to impose the same requirements," we have recognized that the cаusation
standards under Title II of the ADA and § 504 of the Rehabilitation Act
are "significantly dissimilar."
Baird
,
that Constantine’s complaint fails adequately to allege causation. Indeed, the complaint fairly may be read to allege that the defendants discrimi- nated against Constantine because of her disability.
able to perform all the essential functions of being a student with rea- sonable accommodations. If she received additional time as a reason- able accommodation for her disability, she would not have any problem complying [with] GMU’s examination policy." J.A. 16. The complaint further alleges that Constantine carried a full load of law school courses in the spring of 2003 and completed her other final exams "without incident." J.A. 12. Taken together, these allegations are sufficient to make a prima facie case that Constantine, with rea- sonable modifications to exam administration policies or practices, met the essential eligibility requirements for participation in GMU’s law school programs.
Under the disability discrimination statutes, a plaintiff must show that she was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to dis- crimination by that entity. 42 U.S.C. § 12132; 29 U.S.C. § 794(a). Constantine’s complaint alleges that she was unable to complete Pro- fessor Lund’s exam because of her disability; that the defendants ini- tially refused to accommodate her disability by giving her additional time to complete the exam, resulting in her failing the exam; that when the defendants agreed months later to allow a re-examination, they gave her only three days to prepare; that when she alerted the defendants to a conflict with other law school responsibilities, they refused to alter the date for re-examination; and that when she sought a temporary restraining order to prevent the re-examination on the date set by the defendants, they determined that she would fail any subsequent re-examination. If these allegations are true, then Constan- tine can demonstrate that the defendants excluded her from meaning- ful participation in Professor Lund’s course or denied her the benefits of that course, or at least discriminated against her with respect to that course. Whatever may happen at summary judgment or trial, these allegations are sufficient to satisfy Rule 12(b)(6).
VII.
Constantine also asserts a claim against the individual defendants for First Amendment retaliation in violation of 42 U.S.C. § 1983. Specifically, Constantine alleges that the defendants violated her First Amendment right to free speech by retaliating against her after she complained about Professor Lund’s constitutional law exam and GMU’s grade appeals policies.
"The First Amendment right of free speech includes not only the
affirmative right to speak, but also the right to be free from retaliation
by a public official for the exercise of that right."
Suarez Corp. Indus.
v. McGraw
,
A.
Constantine alleges that she complained to GMU officials about
the construction of Professor Lund’s exam and the procedures avail-
able to challenge her grade. She then repeated her complaints about
the grade appeals process in an article printed in the law school news-
paper. It is undisputed that Constantine engaged in protected First
Amendment activity.
See Trulock v. Freeh
,
B.
Constantine further alleges that GMU, in response to these com- plaints, (1) denied her initial request to re-take the exam, (2) denied her request to have a different professor determine whether the origi- nal exam was defective or graded unfairly, and (3) refused to grant her a hearing before the Academic Standing Committee to challenge her grade. The district court ruled, without any explanation, that the defendants’ conduct did not adversely affect Constantine’s First Amendment rights. The defendants contend that this ruling was cor- rect because the complaint fails to allege that their actions actually prevented Constantine from exercising her First Amendment rights.
First Amendment retaliation is actionable because "retaliatory
actions may tend to chill individuals’ exercise of constitutional
rights."
ACLU of Md., Inc. v. Wicomico County, Md.
,
We reject the defendants’ suggestion that this inquiry depends
upon the actual effect of the retaliatory conduct on a particular plain-
tiff. We have never held that a plaintiff must prove that the allegedly
retaliatory conduct caused her to cease First Amendment activity alto-
gether. The cause of action targets conduct that tends to
chill
such
activity, not just conduct that
freezes
it completely. Moreover, such
a subjective standard would expose public officials to liability in
some cases, but not in others, for the very same conduct, depending
upon the plaintiff’s will to fight. We believe that an objective standard
better instructs public officials as to their obligations under the First
Amendment. Thus, for purposes of a First Amendment retaliation
claim under § 1983, a plaintiff suffers adverse action if the defen-
dant’s allegedly retaliatory conduct would likely deter "a person of
ordinary firmness" from the exercise of First Amendment rights.
Washington v. County of Rockland
,
Constantine alleges that in response to her public criticism of Pro- fessor Lund’s exam and GMU’s grade appeals policies, the defen- dants denied her requests to sit for a re-examination, to have another professor review her original exam, and even to have a hearing before an administrative committee. When the defendants finally allowed a re-examination, they gave Constantine only three days’ notice and, according to the complaint, determined in advance that she would receive a failing grade. Because such conduct would tend to chill a reasonable person’s exercise of First Amendment rights, we conclude that Constantine has adequately alleged adverse action.
C.
Finally, Constantine must allege a causal connection between her
First Amendment activity and the alleged adverse action. In order to
establish this causal сonnection, a plaintiff in a retaliation case must
show, at the very least, that the defendant was aware of her engaging
in protected activity.
Dowe v. Total Action Against Poverty in Roa-
noke Valley
, 145 F.3d 653, 657 (4th Cir. 1998). "Knowledge alone,
however, does not establish a causal connection" between the pro-
tected activity and the adverse action.
Price v. Thompson
, 380 F.3d
209, 213 (4th Cir. 2004). There must also be some degree of temporal
proximity to suggest a causal connection. "A lengthy time lapse
between the [public official’s] becoming aware of the protected activ-
ity and the alleged adverse . . . action . . . negates any inference that
a causal connection exists between the two."
Dowe
,
The complaint alleges that Constantine made her complaints per- sonally to several of the defendants and other GMU officials. The complaint also describes (somewhat vaguely) a chronology of events spanning roughly four months from the date of the initial exam to the filing of this lawsuit. Constantine initially took Professor Lund’s exam in January 2003. Sometime later — the complaint does not specify the date — Constantine complained about the exam, and sometime after that she complained about the grade appeals process. For three months, the defendants made no response to Constantine’s complaints. When they finally agreed to discuss these issues with Constantine, the defendants told her that she could re-take the exam "sometime in June." Then on May 17, 2003, the defеndants notified Constantine that she would be allowed to sit for a re-examination on May 21, 2003. At most, four months elapsed from the time Constan- tine complained about Professor Lund’s exam and the grade appeals *38 38
process to the time of the defendants’ alleged retaliatory conduct. Although we noted that a nine-month lapse created a "very close question" as to causal connection in Price , we nevertheless concluded that the plaintiff’s claim survived a motion to dismiss. 380 F.3d at 213. Likewise, we are satisfied that Constantine’s complaint ade- quately alleges a causal connection between her First Amendment activity and the defendants’ alleged misconduct.
VIII.
We conclude that the Eleventh Amendment poses no bar to Con- stantine’s claims because Congress validly abrogated the States’ immunity to suit under Title II of the ADA; the State waived its immunity to suit under § 504 of the Rehabilitation Act with respect to GMU; and the Ex parte Young doctrine permits an action for pro- spective injunctive relief to remedy a violation of § 504. We further conclude that Constantine’s complaint adequately alleges claims for disability discrimination in violation of Title II of the ADA and § 504 of the Rehabilitation Act, as well as a First Amendment retaliation claim under § 1983. Accordingly, we reverse the judgment of the dis- trict court and remand this case for further proceedings.
REVERSED AND REMANDED Since the individual defendants have asserted qualified immunity as a defense to Constantine’s First Amendment retaliation claim, the district court should address that issue as soon as practicable on remand. See Saucier , 533 U.S. at 201.