The case involves a physician, Michael J. Hason, M.D. who applied for a license to practice medicine in California. In 1998, the California Medical Board denied Dr. Hason’s request on the grounds that he suffered from mental illness. Dr. Hason subsequently filed suit in a federal trial court, alleging a violation of Article II of the AwDA, which provides that "no qualified individual with a disability [can] be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity."

The trial court dismissed this part of Dr. Hason’s suit, finding that the 11th Amendment to the U.S. Constitution barred his AwDA claim. The 11th Amendment prohibits federal lawsuits by individuals against states, unless the state agrees to waive its sovereign immunity, or the U.S. Congress abrogates states’ sovereign immunity against being sued under a particular federal law.

Dr. Hason appealed to the U.S. Court of Appeals for the Ninth Circuit. In its opinion,¹ the Ninth Circuit observed that it twice previously held that in enacting Title II of the AwDA, which prohibits discrimination on the basis of disability in government services, programs and activities, Congress had abrogated states’ sovereign immunity against being sued under this part of the law.

The Ninth Circuit also observed that medical licensing is a public service governed by the AwDA’s prohibition on discrimination against qualified individuals with disabilities. The California Medical Board argued that a 2001 Supreme Court ruling, Board of Trustees of the University of Alabama vs. Garrett,² had overturned these prior decisions from the Ninth Circuit.

However, the Ninth Circuit determined that the Supreme Court had found only that Congress had failed to validly abrogate state sovereign immunity when it enacted Title I of the AwDA, which relates to employment discrimination claims. The Ninth Circuit also determined that the Supreme Court did not decide whether Congress validly abrogated state sovereign immunity in enacting Title II of the AwDA, which is the part of the AwDA at issue in this case.

The Ninth Circuit reviewed other reasons given by the trial court for dismissing Dr. Hason’s AwDA claim. The district court had concluded that the denial of a medical license could not be challenged under Title II of the AwDA because a medical license does not constitute services, programs or activities of a government entity. The district court also found that Dr. Hason was not a qualified individual with a disability under Title II of the AwDA, meaning that the physician would not be eligible for protection under the AwDA. The Ninth Circuit rejected these contentions.

In addition, the Ninth Circuit disagreed with the state board’s argument that since Dr. Hason had acknowledged in his lawsuit that he suffers from a mental disability, he was not a qualified individual with a disability. The Ninth Circuit noted that Dr. Hason stated in his complaint that at the time the Board denied his request for a license, he had received treatment for his disability and was capable of practicing medicine. The Ninth Circuit found that at this stage of the proceedings, it had to interpret Dr. Hason’s complaint in the light most favorable to him, and it declined to dismiss the lawsuit on the grounds that Dr. Hason was not a qualified individual with a disability.

The state board then petitioned the U.S. Supreme Court to hear the case. The board asked the Supreme Court to review whether the 11th Amendment prohibits applicants from suing the board under Title II of the AwDA for denial of a medical license based on the applicant’s mental illness. The Supreme Court agreed to consider this issue.

In its petition asking the Supreme Court to hear the case, the board observed that various U.S. Courts of Appeal had reached differing conclusions on whether Congress validly abrogated state sovereign immunity as to Title II of the AwDA, thereby giving individuals the right to sue a state government over alleged Title II violations.

The board also argued that the Ninth Circuit should have given more consideration to the Supreme Court’s Garrett decision, which concluded that Congress could not validly abrogate states’ sovereign immunity against being sued under Title I of the AwDA. The board maintained that the Ninth Circuit should have applied the Supreme Court’s reasoning in the Garrett case to conclude that Congress also did not abrogate states’ sovereign immunity against being sued under Title II of the AwDA.

It certainly is possible that the Supreme Court will choose to extend its reasoning in the Garrett case to this case and find that Congress could not abrogate states’ sovereign immunity against being sued under Title II of the AwDA. However, such an outcome would not necessarily preclude dentists or physicians with disabilities from filing suit against state licensing boards that deny them licenses solely because of their disabilities. Dentists or physicians with disabilities may have additional remedies under state antidiscrimination laws. Although state laws in some states may be equal to or better than the AwDA, most states do not provide the protection that the AwDA contains.

If the Supreme Court finds that Congress failed to validly abrogate states’ sovereign immunity against being sued under Title II, this would be a severe blow to professionals with disabilities.

In this case, the Supreme Court has agreed only to hear whether states are immune from damages under Title II. The Supreme Court is not reviewing the question of whether injunctive relief may be available. The Ninth Circuit’s decision did find that injunctive relief was available. However, without damages it will be difficult for physicians with disabilities to obtain lawyers to bring these lawsuits if the only remedy is injunctive relief.

The Supreme Court will render a decision on this case at or about the end of June 2003. We will advise you of the Court’s decision when it is rendered.

View larger version (123K): [in this window] [in a new window]   Mr. Sfikas is ADA chief counsel and an adjunct professor of law at Loyola University of Chicago School of Law. He has lectured and written on legal issues and is a fellow of the American College of Trial Lawyers. Address reprint requests to Mr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. 60611.