The United States Court of Appeals for the Ninth Circuit vacated the dismissal of a suit against the California State Bar and remanded the case

Benjamin Kohn, a licensed attorney, brings a civil rights lawsuit against the State Bar of California contending that the State Bar’s refusal to provide him certain test-taking accommodations violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; sections of the California Government Code, Cal. Gov’t Code §§ 11135 et seq., 12944 et seq.; and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51(f).  The district court dismissed Kohn’s Title II claims on Eleventh Amendment immunity grounds. See Kohn v. State Bar of California, 497 F. Supp. 3d 526 (N.D. Cal. 2020) (“Kohn I”). On appeal, Kohn initially contended that the State Bar is not an “arm of the state,” and thus can be sued without restriction. We took up this question en banc, and reaffirmed that the California State Bar enjoys Eleventh Amendment immunity in federal court. See Kohn v. State Bar of California, 87 F.4th 1021, 1037–38 (9th Cir. 2023) (en banc) (“Kohn II”).

The en banc court remanded the remaining questions presented in Kohn’s appeal to our three-judge panel. See id. at 1038. We now consider Kohn’s alternative contention that Title II of the ADA validly abrogates the State Bar’s Eleventh Amendment immunity as to his claims…

We have jurisdiction under 28 U.S.C. § 1291, and for the reasons explained below, we vacate the dismissal of Kohn’s Title II claims and remand for further proceedings.

Holding

We hold that while the district court is not bound to analyze the Georgia inquiry in any particular order, it cannot begin and end its analysis with the second part of the Georgia test. 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. The prophylactic abrogation analysis is fact-intensive, requiring a review of whether there is “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520 (1997), but the district court did not engage in this analysis, leaving us to guess which of Kohn’s allegations, if any, were being considered for this “congruence and proportionality” inquiry.

We thus vacate the district court’s dismissal of Kohn’s Title II claims and remand for reconsideration consistent with this opinion. Moreover, the district court shall provide Kohn with the opportunity to amend his complaint before proceeding.

(Mike Frisch)