by JT DeGrinney, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
Federal courts face a tricky path when faced with an Eleventh Amendment—or “sovereign”—immunity issue. The Eleventh Amendment of the United States Constitution specifically provides, “[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.”[1] However, since 1890, federal courts have construed this language to confer upon states a general “sovereign immunity” from suits brought by individual citizens of any background.[2] After navigating this initial textual twist, courts usually have to consider various exceptions to, [3] and exceptions to the exceptions of,[4] the general rule.
The United States Court of Appeals for the Ninth Circuit’s recent decision in Kohn v. State Bar adds yet another wrinkle to the Eleventh Amendment immunity equation concerning Title II of the Americans with Disabilities Act.[5] In Kohn, the Ninth Circuit adopted the same test that many of its sister circuits have agreed applies when determining whether Title II validly abrogates a state’s Eleventh Amendment immunity.[6] However, in adopting the three-part test from United States v. Georgia, the Ninth Circuit went out of its way to note that courts bound by its precedents need only follow the test’s three prongs in whatever order they see fit—rather than in the order proposed explicitly in Georgia, which several sister circuits, including the United States Court of Appeals for the Tenth Circuit, follow carefully.[7]
This article recommends that courts follow the Tenth Circuit’s lead in applying Georgia’s test as written; the Tenth Circuit’s approach promotes judicial efficiency and remains faithful to the Georgia test devised to minimize judicial discord and overreach. Accordingly, in Section II, this article lays the contextual foundation surrounding United States v. Georgia and its progeny. Section III argues in favor of applying the Georgia test strictly. Section IV briefly concludes, considering whether the circuit split meaningfully affects plaintiffs’ rights.
II. Background
A. The Basic Abrogation Ingredients: Seminole Tribe and Flores
In Seminole Tribe v. Florida, the United States Supreme Court distilled the Eleventh Amendment immunity abrogation question down to two questions: “first, whether Congress has ‘unequivocally expressed its intent to abrogate the immunity,’ and second, whether Congress has ‘acted pursuant to a valid exercise of power.”[8] The Court considered whether the Indian Gaming Regulatory Act of 1988 satisfied both questions. The Court found that it did not.[9] The Court’s analysis centered on the second question,[10] and the Court emphasized how few constitutional provisions afford Congress the Eleventh Amendment abrogation power—until Seminole Tribe, the Court had only recognized that power in Section 5 of the Fourteenth Amendment (“Section 5”) and the Interstate Commerce Clause of Article I.[11] Because the Fourteenth Amendment took effect after the Eleventh Amendment and “fundamentally altered the balance of state and federal power” that the Eleventh Amendment initially struck, the Court reaffirmed that Section 5 endowed Congress with the power to abrogate states’ Eleventh Amendment immunity.[12] On the other hand, the Court held, neither the Interstate Commerce Clause nor the Indian Commerce Clause granted Congress that power because the Eleventh Amendment still imposed its unadulterated constitutional balance on those original constitutional provisions.[13]
A year later, the Supreme Court announced its famous “congruence and proportionality” test for determining the extent of Congress’s Section 5 power to remedy constitutional violations.[14] The Court held that the Religious Freedom Restoration Act of 1993 (“RFRA”) was not sufficiently “congruent and proportional” to be a valid exercise of Congress’s Section 5 power.[15] Unlike other congressional enactments that the Court had previously considered,[16] RFRA swept too broadly to be considered “remedial” within the bounds of the “congruence and proportionality” the Court read Section 5 to require.[17]
B. Abrogation and the ADA: Garrett, Lane, and Georgia
A divided Court brought Seminole Tribe and Flores to Title I of the Americans with Disabilities Act of 1990 (“ADA”) in Board of Trustees v. Garrett.[18] In Garrett, the Court heard the consolidated cases brought by a registered nurse and a security officer, who sued their respective state employers under Title I of the ADA after each suffered adverse employment outcomes due to their respective disabilities.[19] Assessing whether the relevant ADA provisions abrogating Alabama’s Eleventh Amendment immunity were “congruent and proportional” to the constitutional violations Congress might have sought to remedy when enacting the ADA, the Court noted that the Constitution protects individuals from disability discrimination only according to the lenient “rational basis” standard.[20] The Court viewed the congressional record surrounding the ADA as insufficient to document a “pattern of unconstitutional discrimination” that would support abrogation as “congruent and proportional.”[21] Finally, the Court noted that the ADA imposed rights and remedies too strong to be “congruent and proportional” to what it found in the congressional record, particularly when informed by the fact that the governing constitutional standard was mere “rational basis” review.[22] Accordingly, the Court held that the ADA did not validly abrogate states’ Eleventh Amendment immunity.[23]
Only three years later, a divided Court reached the opposite conclusion about Title II of the ADA in Tennessee v. Lane.[24] In Lane, a criminal defendant and a court reporter, both wheelchair users, sued Tennessee under the ADA after they were unable to physically access the state’s court system.[25] The majority in Lane analyzed Title II under Flores, as the Court had in Garrett.[26] However, unlike in Garrett, the majority found that Title II sought to remedy a variety of constitutional violations: Fourteenth Amendment Due Process and Equal Protection Clause violations, Sixth Amendment Confrontation Clause violations, and even First Amendment violations.[27] The Court reasoned that Title II’s larger scope warranted harsher remedies.[28] The Court also noted the wider array of constitutional violations at play implicated a far greater number of factual findings than the Court saw in Garrett.[29] Finally, because Title II limited its rights and remedies to apply only in situations where states fail to take reasonable measures to accommodate individuals with disabilities—in an area where due process usually only requires the government to provide an opportunity to be heard “within the limits of practicability”—the Court found that Title II was “congruent and proportional” to the constitutional violations posed in the case.[30]
In his dissent, Justice Scalia criticized the “congruence and proportionality” test as “flabby” and inviting “judicial arbitrariness and policy-driven decision making.”[31] Justice Scalia noted that the test requires courts to “check Congress’s homework” in identifying constitutional violations that Section 5 grants Congress the power to remedy.[32] Justice Scalia expressed serious concerns about any test that would tend to bring courts into conflict with Congress, a coequal branch of government.[33]
Finally, in United States v. Georgia, Justice Scalia wrote for a unanimous Court assessing whether a prison inmate who used a wheelchair could sue Georgia under Title II when a Georgia prison allegedly violated his Eighth Amendment rights.[34] The Court noted immediately that neither party had challenged the appellate court’s holding that the inmate had alleged constitutional violations in his case; accordingly, the Court assumed without deciding that the inmate had alleged constitutional violations.[35] The Court also found that the inmate plausibly alleged Title II violations.[36] Since the inmate had indisputably alleged conduct violating both Title II and the Fourteenth Amendment—because it incorporates the Eighth Amendment[37]—the Court contrasted the inmate’s case with its prior ADA immunity abrogation caselaw, in which the relationship between ADA violation and constitutional violation was often in dispute.[38] The Court emphasized its unanimity in holding that Title II validly abrogates states’ Eleventh Amendment immunity in cases where an individual sues a state over conduct that violates both Title II and the Fourteenth Amendment.[39] The Court noted however, that while it was clear from the inmate’s pleadings that at least some of the conduct alleged violated both Title II and the Fourteenth Amendment, it was not clear exactly how all of the conduct matched up.[40] Accordingly, the Court remanded with instructions for the lower courts to determine exactly how Title II abrogated Georgia’s immunity as to the inmate’s claims, using language that several circuits have since construed as the “Georgia test” to use in all Title II abrogation cases:[41]
[D]etermine in the first instance, on a claim-by-claim basis, (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.[42]
C. Georgia’s Test Applied: Kohn and Guttman
In Kohn, a lawyer sued the State Bar of California under Title II after the bar association refused to provide him with test-taking accommodations.[43] On remand, after the en banc court determined that the bar association is an “arm of the state” that receives Eleventh Amendment immunity, a three-judge panel of the Ninth Circuit considered whether Title II abrogated that immunity concerning the lawyer’s claims.[44] The court recognized a lingering tension between longstanding Ninth Circuit precedent, which held categorically that Title II did not abrogate Eleventh Amendment immunity, and Georgia, which many courts hold requires a “case-by-case analysis” to determine whether Title II “validly abrogates state sovereign immunity.”[45] Because it found Georgia “clearly irreconcilable” with the preexisting Ninth Circuit precedent, the court overruled the precedent in favor of Georgia’s approach.[46] The court noted that courts in the Ninth Circuit could apply Georgia’s three steps in any order they prefer, [47] but the court ultimately held that courts could not apply Georgia’s second step alone without addressing the others.[48] The court reasoned that courts may dispose of Georgia-type claims by assessing the first prong alone because that prong might demonstrate that a plaintiff has simply failed to state a Title II claim, or by assessing only the first and third prongs.[49] After all, those prongs go to “congruence and proportionality” even in the absence of a constitutional violation.[50]
On the other side of the split, in Guttman v. G.T.S. Khalsa, the Tenth Circuit applied the Georgia test when a doctor with depression and post-traumatic stress disorder sued New Mexico’s state board of medical examiners under Title II for revoking his license.[51] Much like the Ninth Circuit in Kohn, the Tenth Circuit in Guttman read Georgia as overruling prior circuit precedent holding that Title II did not abrogate Eleventh Amendment immunity in favor of the case-by-case analysis recommended at the end of the Georgia opinion.[52] As in Kohn, the Guttman court held that the lower court had applied the incorrect analysis to reach its Eleventh Amendment conclusion; accordingly, the Guttman court remanded with instructions to apply the Georgia test.[53] The court specifically noted that the lower court should follow Georgia specifically: first, it had to consider whether the doctor stated a valid Title II claim, then whether the doctor also stated valid Fourteenth Amendment claims, and finally, depending on the outcome of those two steps, whether Congress validly abrogated New Mexico’s Eleventh Amendment immunity.[54] A lower court that failed to follow the steps carefully, the court reasoned, risked becoming confused as to “what class of conduct” is implicated by the complaint or might risk issuing an advisory opinion.[55]
III. Discussion
Based on the historical background from which the Georgia test springs, the courts on the Guttman side of the split appear to take the better position. Justice Scalia wrote the unanimous Georgia opinion only two years after he wrote his Lane dissent, in which he colorfully characterized the Flores “congruence and proportionality” test as “flabby.”[56] Reading Georgia as Justice Scalia’s attempt to narrow and refine the “congruence and proportionality” test in the Title II context in response to the “as-applied” Lane majority opinion,[57] the Guttman side of the split is more faithful to Georgia. Accordingly, courts yet to take a side should join the Tenth Circuit and others who apply Georgia strictly because doing so maximizes judicial efficiency and follows Georgia’s spirit in minimizing judicial discord and overreach.
A. Efficiency
As the Kohn court itself appeared to recognize,[58] there are only a few ways courts can read and apply Georgia’s three prongs. Applying Georgia strictly thus maximizes judicial efficiency because the original Georgia order gives courts faced with the proper circumstances to dispose of the issue with the least amount of analysis required. Applying Georgia out of order only saddles courts with more work that they potentially need not undertake.
Taken alone, Georgia’s first prong offers courts a way out if the plaintiff simply fails to state a Title II claim. If the plaintiff fails to do so, the Eleventh Amendment immunity point is moot because the plaintiff cannot recover under Title II anyway.[59]
Georgia’s second prong derives its meaning from the first. Taken together, Georgia’s first two prongs approximate the Georgia Court’s recognition that “no one doubts” Congress’s ability to create “private remedies against the States for actual” Fourteenth Amendment violations.[60] If the plaintiff states a Title II claim, Georgia only offers courts a way out before the third prong, where they must resort to the “flabby” “congruence and proportionality” analysis if both prongs one and two are satisfied. [61]
Since the third prong incorporates the “congruence and proportionality” test by asking courts to determine “whether Congress’s purported abrogation of sovereign immunity is . . . nevertheless valid,”[62] courts cannot apply Georgia’s third prong without at least considering its first prong. Under Flores and its progeny, courts must determine whether Congress has validly exercised its Section 5 power by considering whether the remedy—here, Title II and its provisions allegedly violated—is appropriate “in light of the evil presented.”[63]
B. Discord and Judicial Overreach
Beyond the superficial appeal of analytical efficiency, the strict Georgia approach most aligns with Georgia’s interest in unanimity, which, in turn, limits opportunities for judicial overreach in its application. By maximizing the potential for a disposition on grounds other than the Flores “congruence and proportionality” test, following Georgia’s steps in order minimizes courts’ need to engage in the test’s most divisive prong.[64]
Moreover, as the Guttman court noted, a court applying Georgia in an alternative order, like, for example, attempting to assess “congruence and proportionality” under Georgia’s third prong without definitively assessing whether the plaintiff actually states a Title II claim, risks issuing an advisory opinion.[65] If a court were to consider the validity of Title II’s abrogation of Eleventh Amendment immunity for certain claims without first establishing that such claims, exist, the court would risk deciding a “difference or dispute of a hypothetical or abstract character” and overstepping the bounds of the federal judicial power.[66]
IV. Conclusion
As a matter of federal jurisprudence, assessed from a court’s perspective, the Ninth Circuit’s new approach to the Georgia test likely loses out to the Tenth Circuit’s—and others’[67]—approach. So, too, perhaps, from a plaintiff’s perspective. As Garrett and Lane indicate, courts tend to divide when applying Seminole Tribe and Flores in the ADA context.[68] Where plaintiffs can show they have suffered both a Title II and a Fourteenth Amendment violation, plaintiffs may be more likely able to predict the outcome of their case where courts apply Georgia carefully in order than where they do not.
[1] US Const. Amend. XI.
[2] See Hans v. Louisiana, 134 U.S. 1 (1890).
[3] See, e.g., Ex parte Young, 209 U.S. 123 (1908) (holding that Eleventh Amendment immunity does not prohibit suits brought against state officials acting in their individual capacity); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (finding Congress may abrogate Eleventh Amendment immunity by making a “clear statement” to abrogate supported by a valid exercise of its constitutional power to do so).
[4] See Edelman v. Jordan, 415 U.S. 651 (1974) (limiting Ex parte Young relief to individual capacity suits against state officials for “prospective” relief but not those for “retrospective” relief).
[5] Kohn v. State Bar of California, 119 F.4th 693 (9th Cir. 2024); Americans with Disabilities Act of 1990, 42 U.S.C §§ 12131-12165.
[6] Kohn, 119 F.4th at 698.
[7] Compare id. at 699 n.2 (“[C]ourts may choose to conduct the Georgia analysis in any order . . . .”) with Guttman v. G.T.S. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006) (recognizing that the order of the original Georgia prongs is “wise” because conducting the analysis out of order risks confusion or the issuance of advisory opinions). See also Kohn, 119 F.4th at 699 n.2 (noting that the First, Third, and Fifth Circuits agree with the Tenth Circuit’s Guttman approach) (citing Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006); Bowers v. Nat’l Collegiate Ath. Ass’n, 475 F.3d 524 (3d Cir. 2007); Block v. Texas Bd. of Law Examiners, 952 F.3d 613 (5th Cir. 2020)).
[8] Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (citations omitted) (quoting Green v. Mansour, 474 U.S. 64 (1985)).
[9] Id. at 73.
[10] The court quickly noted the lower courts’ consensus that Congress had “unequivocally expressed its intent to abrogate” in a “clear statement” in the Indian Gaming Regulatory Act and agreed that the first question was satisfied. Id. at 56.
[11] Id. at 58.
[12] Id. at 59.
[13] Id. at 65-66.
[14] City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
[15] Id. at 533-36.
[16] The Court largely contrasted RFRA with the Voting Rights Act of 1965, various provisions of which the Court had upheld as valid Section 5 legislative activity. See, e.g., id. at 525-26 (discussing South Carolina v. Katzenbach, 383 U.S. 301 (1966)). The Court also cites Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which also compared its respective Section 5 activity—the abrogation of Eleventh Amendment immunity that informed Seminole Tribe’s discussion—to that discussed in Katzenbach. Flores, 521 U.S. at 518; Fitzpatrick, 427 U.S. at 455; Seminole Tribe, 517 U.S. at 59.
[17] Flores, 521 U.S. at 536.
[18] Bd. of Trs. v. Garrett, 531 U.S. 356 (2001). In Garrett, five justices joined Chief Justice Rehnquist’s majority opinion, while four justices joined Justice Breyer in dissent. Id. at 359. The Court declined to answer whether both Title I and Title II validly abrogated states’ Eleventh Amendment immunity, noting that Title II’s remedial provisions were “somewhat different” from those of Title I. Id. at 360 n.1.
[19] Id. at 362. The registered nurse missed work due to treatments for breast cancer and received a transfer to a worse position upon returning, and the security officer was refused accommodations for his chronic asthma and sleep apnea. Id.
[20] Id. at 366 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)).
[21] Id. at 370.
[22] Id. at 372.
[23] Id. at 374.
[24] Tennessee v. Lane, 541 U.S. 509 (2004). Five justices joined Justice Stevens’ majority opinion. Id. at 512. Chief Justice Rehnquist wrote a dissenting opinion, joined by two other justices, and Justice Scalia and Justice Thomas each filed dissenting opinions of their own. Id.
[25] Id. at 513.
[26] Id. at 518-20.
[27] Id. at 522-23.
[28] Id. at 523-24.
[29] Id. at 524-26.
[30] Id. at 533-34.
[31] Id. at 557-58 (Scalia, J., dissenting).
[32] Id. at 558 (Scalia, J., dissenting).
[33] Id.
[34] United States v. Georgia, 546 U.S. 151-53, 155-56 (2006).
[35] Id. at 157.
[36] Id.
[37] Id. (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)).
[38] Id.
[39] Id. at 159.
[40] Id.
[41] See, e.g., Guttman v. G.T.S. Khalsa, 446 F.3d 1027, 1035 (10th Cir. 2006) (“In Georgia, 126 S. Ct. at 877, the Court explained the procedure by which courts should address Title II cases brought against states.”).
[42] Georgia, 546 U.S. at 159.
[43] Kohn v. State Bar of California, 119 F.4th 693, 695 (9th Cir. 2024).
[44] Id.
[45] Id. at 698.
[46] Id.
[47] Id. at 699 n.2.
[48] Id. at 699.
[49] Id. at 699-700.
[50] Id. at 699-700.
[51] See Guttman v. G.T.S. Khalsa, 446 F.3d 1027, 1030 (10th Cir. 2006).
[52] Id. at 1034. Indeed, the Guttman court also read Lane as also partially overruling the prior Tenth Circuit precedent. Id.
[53] Id. at 1036.
[54] Id.
[55] Id.
[56] Tennessee v. Lane, 541 U.S. 509, 557-58 (2004) (Scalia, J., dissenting).
[57] Cf. id. at 551 (Rehnquist, C.J., dissenting) (suggesting that the majority opinion adopted an “as applied,” case-by-case approach to Eleventh Amendment immunity abrogation in the Title II context).
[58] Kohn v. State Bar of California, 119 F.4th 693, 699 (2024) (“Of course, if a plaintiff fails to state a claim under Title II, dismissal is appropriate. The same is true if there is neither an alleged Fourteenth Amendment Violation nor a prophylactic abrogation of state sovereign immunity for the ‘class of conduct’ that violated Title II.”)
[59] Id.
[60] United States v. Georgia, 546 U.S. 151, 159 (2006).
[61] Lane, 541 U.S. 557-58 (Scalia, J., dissenting).
[62] Georgia, 546 U.S. at 159 (emphasis added).
[63] City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (citing South Carolina v. Katzenbach, 383 U.S. 301 (1966)).
[64] Compare Bd. of Trs. v. Garrett, 531 U.S. 356 (2001) (resulting in a 5-4 split against abrogation, applying Flores’s “congruence and proportionality” test) with Lane, 541 U.S. 557 (resulting in a 5-4 split for abrogation, applying Flores’s “congruence and proportionality” test).
[65] Guttman v. G.T.S. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006).
[66] Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937).
[67] See Kohn v. State Bar of California, 119 F.4th 693, 699 n.2 (2024) (noting that the First, Third, and Fifth circuits also require courts to apply the Georgia test in its original order).
[68] See Bd. of Trs. v. Garrett, 531 U.S. 356 (2001); Tennessee v. Lane, 541 U.S. 509 (2004).
Cover Photo by Chris Lawton on Unsplash
