NWLC joined an amicus brief led by the Autistic Self Advocacy Network and the American Civil Liberties Union to the Second Circuit on May 19, 2021 in T.W. v. New York State Board of Law Examiners in support of T.W., who was denied the disability accommodations she needed for the bar examination and, as a result, failed the exam twice and was terminated from her law firm. T.W., a Harvard Law School graduate, sued the New York Board of Law Examiners (BOLE), alleging, among other claims, that it had violated Section 504 of the Rehabilitation Act (“Section 504”), which prohibits recipients of federal funds from discriminating based on disability.

A federal district court in New York held that BOLE itself does not receive federal funds because it merely receives payments directly from bar examinees who are later reimbursed by federal funds. However, because BOLE is a subunit of New York’s Unified Court System (UCS), which is comprised of many other subunits that do receive federal funds, the district court held that the entire UCS—including BOLE—is subject to Section 504. The Second Circuit reversed. It concluded that because all of the subunits of UCS that receive federal funds are housed within the trial court system, only the trial court system can be considered a “recipient” of federal funds—not the entire UCS as a whole. The Second Circuit held that because BOLE is not part of the trial court system, it is not subject to Section 504, even though the UCS has admitted that it does receive federal funding. T.W. then requested a rehearing en banc before the entire Second Circuit.

The amicus brief points out that Congress passed the Civil Rights Restoration Act (CRRA) in 1987 to overturn a similar decision by the Supreme Court. In Grove City College v. Bell, the Supreme Court held that Title IX applied only to the programs of a college that received federal funds and not to the rest of the institution. The CRRA explicitly rejected this restrictive interpretation by requiring civil rights laws—including Title IX and Section 504—to apply to “all of the operations” of an entity that receives federal funds. Yet the Second Circuit’s decision, if not overturned, will return us to a Grove City-like standard—contrary to the intent and text of the CRRA. The amicus brief also warns that the circuit court’s panel decision, if not reversed by the Second Circuit, will make it possible for recipients of federal funds to avoid providing civil right protections by simply restructuring their programs—for example, by switching to a reimbursement process or by redirecting federal funds to specific subunits.