Constantine v. Rectors and Visitors , 411 F.3d 474 ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARIN MANDERS CONSTANTINE, 
Plaintiff-Appellant,
v.
THE RECTORS AND VISITORS OF GEORGE
MASON UNIVERSITY; MARK F. GRADY,
in his individual capacity and his
official capacity as Dean of George
Mason Law School; DANIEL D.
POLSBY, in his individual capacity and
his official capacity as Associate Dean
for Academic Affairs; WINSTON S.
MOORE, in his individual capacity and
his official capacity as Associate Dean
for Student Academic Affairs; NELSON
LUND, in his individual capacity and
his official capacity as a Professor of
Law,
 No. 04-1410
Defendants-Appellees,
UNITED STATES OF AMERICA,
Intervenor.
AMERICAN ASSOCIATION OF PEOPLE
WITH DISABILITIES; THE BAZELON
CENTER, for Mental Health Law;
DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND; LEGAL AID SOCIETY,
Employment Law Center; TRAINING
AND ADVOCACY SUPPORT CENTER OF THE
NATIONAL ASSOCIATION OF PROTECTION
AND ADVOCACY SYSTEMS,
Amici Supporting Appellant. 
2 CONSTANTINE v. RECTORS AND VISITORS
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-03-653)
Argued: February 3, 2005
Decided: June 13, 2005
Before 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.
CONSTANTINE v. RECTORS AND VISITORS 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 proceedings.
I.
Constantine was a student in Professor Nelson Lund’s constitu-
tional law course at GMU, a state university that receives federal funds.1
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.
1
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).
4 CONSTANTINE v. RECTORS AND VISITORS
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
CONSTANTINE v. RECTORS AND VISITORS 5
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." The 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, 523 U.S. 83, 94-95
(1998). The Court held in Steel Co. that a federal court must deter-
mine that it has subject-matter jurisdiction over the case before it can
pass on the merits of that case. Id. at 89-101. Rejecting the practice
of some appellate courts to decide the merits of a case based on "hy-
pothetical jurisdiction," the Court reaffirmed the principle that
subject-matter jurisdiction is a necessary prerequisite to any merits
6 CONSTANTINE v. RECTORS AND VISITORS
decision by a federal court: "The statutory and (especially) constitu-
tional elements of jurisdiction are an essential ingredient of separation
and equilibration of powers, restraining the courts from acting at cer-
tain times, and even restraining them from acting permanently regard-
ing certain subjects." Id. at 101. Thus, a federal court necessarily acts
ultra vires when it considers the merits of a case over which it lacks
subject-matter jurisdiction. Id.2
"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 — and 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." Id. 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." Id. 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., 456 U.S. at 701 (emphasis
added). Thus, a federal court may decide a straightforward question
2
Although the Court had granted certiorari to decide a substantive
question arising under the Emergency Planning and Community Right-
to-Know Act, 523 U.S. at 88, it vacated the court of appeals’ judgment
and remanded with instructions to dismiss the complaint because the
plaintiff lacked Article III standing, id. at 110.
CONSTANTINE v. RECTORS AND VISITORS 7
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 and 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, 465 U.S. 89, 98 (1984) (stating that the "greater signif-
icance [of the Eleventh Amendment] lies in its affirmation that the
fundamental principle of sovereign immunity limits the grant of judi-
cial authority in Art. III"). Like other issues relating to subject-matter
jurisdiction, Eleventh Amendment immunity may be asserted at any
time in litigation. Edelman, 415 U.S. at 678 (stating that "the Eleventh
Amendment defense sufficiently partakes of the nature of a jurisdic-
tional bar so that it need not be raised in the trial court"); In re Cre-
ative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1144 (4th
Cir. 1997) (considering an Eleventh Amendment defense raised for
the first time on appeal).
Like personal jurisdiction, however, Eleventh Amendment immu-
nity need not be raised by a court sua sponte, Patsy v. Board of
Regents of Fla., 457 U.S. 496, 515 n.19 (1982),3 and may be waived
by the State altogether, Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 238 (1985) (stating that "if a State waives its immunity and con-
sents to suit in federal court, the Eleventh Amendment does not bar
the action"); Clark v. Barnard, 108 U.S. 436, 447 (1883) (characteriz-
ing the State’s sovereign immunity as "a personal privilege which it
3
The Supreme Court has made it clear that federal courts are not
required to raise Eleventh Amendment issues sua sponte. See Schacht,
524 U.S. at 389 ("Nor need a court raise the defect on its own. Unless
the State raises the matter, a court can ignore it."). We have stated in
dicta, however, that "because of its jurisdictional nature, a court ought to
consider the issue of Eleventh Amendment immunity at any time, even
sua sponte." Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir.
1997).
8 CONSTANTINE v. RECTORS AND VISITORS
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., 535 U.S. 613, 624 (2002); Gardner v. New Jersey,
329 U.S. 565, 574 (1947); Gunter v. Atlantic Cost Line R.R. Co., 200
U.S. 273, 284 (1906); Clark, 108 U.S. at 447. Given the potential for
waiver, the Court has stated that the Eleventh Amendment "does not
automatically destroy original jurisdiction. Rather, the Eleventh
Amendment grants the State a legal power to assert a sovereign
immunity defense should it choose to do so." Wisconsin Dep’t of
Corr. v. Schacht, 524 U.S. 381, 389 (1998); see also Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) ("The Amendment,
in other words, enacts a sovereign immunity from suit, rather than a
nonwaivable limit on the Federal Judiciary’s subject-matter jurisdic-
tion.").
The Court’s treatment of an Eleventh Amendment question in Cal-
deron v. Ashmus, 523 U.S. 740 (1998), further indicates that Eleventh
Amendment immunity does not limit a federal court’s subject-matter
jurisdiction. The question presented in that case was whether inmates
could sue state officials for declaratory and injunctive relief to prevent
application of certain expedited-review provisions of the Antiterro-
rism and Effective Death Penalty Act. Id. at 742. The State had
argued that the Eleventh Amendment barred any such suit and that
granting an injunction would curtail state officials’ First Amendment
rights. Although the Court granted certiorari on both the Eleventh
Amendment and First Amendment questions, it decided to address
first the question, raised sua sponte, whether the inmate’s declaratory
judgment action constituted a "case or controversy" under Article III.
Id. at 745. The fact that the Court deemed it necessary to raise and
decide the Article III issue before addressing the Eleventh Amend-
ment issue at least suggests that the Court did not consider the Elev-
enth Amendment issue to implicate subject-matter jurisdiction. Cf.
Ruhrgas, 526 U.S. at 578 (noting that among jurisdictional issues
there is no priority).
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-
CONSTANTINE v. RECTORS AND VISITORS 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., 335 F.3d 243, 249-51 (3d Cir.
2003); United States v. SCS Bus. & Technical Inst., Inc., 173 F.3d
890, 891 (D.C. Cir. 1999); Parella v. Retirement Bd. of R.I. Employ-
ees’ Ret. Sys., 173 F.3d 46, 53-57 (1st Cir. 1999); but see United
States v. Texas Tech Univ., 171 F.3d 279, 285-86 (5th Cir. 1999);
Seaborn v. Florida Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir.
1998).
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., 506 U.S. 139, 144-
45 (1993). "The very object and purpose of the [Eleventh] Amend-
ment were to prevent the indignity of subjecting a State to the coer-
cive process of judicial tribunals at the instance of private parties." Id.
at 146 (internal quotations omitted). Thus, like qualified immunity for
state officers, "[t]he entitlement [conferred by the Eleventh Amend-
ment] is an immunity from suit rather than a mere defense to liability;
and . . . it is effectively lost if a case is erroneously permitted to go
to trial." Id. at 144 (internal quotations omitted). In the qualified-
immunity context, the Supreme Court has stressed "the importance of
resolving immunity questions at the earliest possible stage in litiga-
tion." Saucier v. Katz, 533 U.S. 194, 201 (2001); Hunter v. Bryant,
502 U.S. 224, 227 (1991) (per curiam). Given the States’ unique dig-
nitary interest in avoiding suit, see Alden v. Maine, 527 U.S. 706, 713
(1999), it is no less important to resolve Eleventh Amendment immu-
nity questions as soon as possible after the State asserts its immunity.4
4
We recognize that certain merits issues are more easily resolved than
Eleventh Amendment immunity issues. Nevertheless, the essence of the
immunity is that the State cannot be sued in federal court at all, even
where the claim has merit, and the importance of immunity as an attri-
bute of the States’ sovereignty is such that a court should address that
issue promptly once the State asserts its immunity.
10 CONSTANTINE v. RECTORS AND VISITORS
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, 529 U.S. 765, 778
(2000); Strawser v. Atkins, 290 F.3d 720, 729 (4th Cir. 2002). "When
these two questions are at issue, not only is the statutory question log-
ically antecedent to the existence of the Eleventh Amendment ques-
tion, but also there is no realistic possibility that addressing the
statutory question will expand the [c]ourt’s power beyond the limits
that the jurisdictional restriction has imposed." Vermont Agency, 529
U.S. at 779. Indeed, in such a case the statutory question is virtually
identical to the Eleventh Amendment question: "The ultimate issue in
the statutory inquiry is whether States can be sued under this statute;
and the ultimate issue in the Eleventh Amendment inquiry is whether
unconsenting States can be sued under this statute." Id. The Court in
Vermont Agency bypassed the Eleventh Amendment question because
the federal statute at issue — the False Claims Act — did not autho-
rize qui tam actions against the States. Id. at 787-88. Likewise, we
avoided an Eleventh Amendment question in Strawser after conclud-
ing that the Medicaid statute did not authorize suits against the States
for funds received as part of a global tobacco settlement. 290 F.3d at
729-30.
Independent of this Vermont Agency analysis, we avoided the Elev-
enth Amendment question in Strawser based on the defendants’
equivocal assertion of immunity. 290 F.3d at 729-30. Although they
were careful not to waive their immunity, the defendants in Strawser
"did not insist on it," and we noted that they relied upon the Eleventh
Amendment only to the extent necessary to prevent a judgment
against them on the merits. Id. at 729. In other words, the State did
not think its sovereign dignity required a ruling on Eleventh Amend-
ment immunity if dismissal could be affirmed on statutory grounds.
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,
CONSTANTINE v. RECTORS AND VISITORS 11
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." 529 U.S. at 779. Moreover, this case
is unlike Strawser in that the defendants here have insisted that their
Eleventh Amendment defense be addressed.
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-
5
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, 491 U.S. 58, 71 (1989). The statute does, however,
authorize suit against the individual defendants in their individual capaci-
ties, and the Eleventh Amendment does not bar such a suit. See Hafer v.
Melo, 502 U.S. 21, 31 (1991).
12 CONSTANTINE v. RECTORS AND VISITORS
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, 517 U.S. at
72-73, the Supreme Court has held that "the Eleventh Amendment,
and the principle of state sovereignty which it embodies, are necessar-
ily limited by the enforcement provisions of § 5 of the Fourteenth
Amendment," Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Thus,
Title II of the ADA abrogates the States’ Eleventh Amendment
immunity only if its enactment represents a valid exercise of authority
under § 5 of the Fourteenth Amendment. Id.
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.
Id. at 519. To ensure that Congress merely enforces the Fourteenth
CONSTANTINE v. RECTORS AND VISITORS 13
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. 124 S. Ct. at 1988-94.
The Court began by identifying two Fourteenth Amendment rights at
issue in that case — the right to be free from irrational disability dis-
crimination and the right of access to the courts. Id. at 1988. Impor-
tantly, the right of access to the courts is a fundamental due process
right that triggers heightened judicial scrutiny. Id.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. Id. 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." Id.6 All this evidence sug-
6
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 workplace), 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
14 CONSTANTINE v. RECTORS AND VISITORS
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." Id. 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 evidence was required to establish a pattern of unconstitu-
tional conduct. Id.7
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, 124 S. Ct. at1991 n.16. Compare Garrett, 531 U.S. at 369 (stating that "it would
make no sense to consider constitutional violations [by local government
units], as well as by the States themselves, when only the States are the
beneficiaries of the Eleventh Amendment"); Kimel, 528 U.S. at 90-91(stating that congressional findings of unconstitutional discrimination in
the private sector was "beside the point" since "Congress made no such
findings with respect to the States"). Although evidence of misconduct
by the States is of special importance, "evidence of constitutional viola-
tions on the part of nonstate governmental actors is relevant to the § 5
inquiry." Lane, 124 S. Ct. at 1991.
CONSTANTINE v. RECTORS AND VISITORS 15
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.8
1.
We begin by identifying the Fourteenth Amendment right that
Congress purportedly sought to enforce when it enacted Title II. See
Lane, 124 S. Ct. at 1988. The Court in Lane recognized that Title II
seeks to enforce the Fourteenth Amendment’s "prohibition on irratio-
nal disability discrimination." 124 S. Ct. at 1988. Importantly, the
Fourteenth Amendment does not forbid all discrimination based on
disability. Because classifications based on disability are subject to
minimal scrutiny, City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 446 (1985), States may make distinctions on the basis of
disability so long as "there is a rational relationship between the dis-
8
The defendants contend that this case is controlled by our decision in
Wessel v. Glendening, 306 F.3d 203 (4th Cir. 2002), in which we held
that Title II of the ADA does not abrogate the States’ Eleventh Amend-
ment immunity. In reaching this conclusion, we followed Garrett and
limited our examination of the legislative history of Title II to evidence
of "unconstitutional conduct by the states" and discounted other evidence
of disability discrimination by nonstate entities. Id. at 210-13. While
Lane specifically overrules Wessel only with respect to the application of
Title II to cases involving the right of access to courts, the reasoning of
Lane renders Wessel obsolete. Contrary to our conclusion in Wessel that
"Congress did not have an adequate record of unconstitutional discrimi-
nation by states against the disabled to support abrogation," 306 F.3d at
213, the Court in Lane found that Congress enacted Title II of the ADA
— considered as a whole — in response to a pattern of unconstitutional
conduct by States and nonstate government entities, 124 S. Ct. at 1989-
92. Moreover, Lane specifically rejects the proposition — crucial to our
analysis in Wessel — that Congress may enact § 5 legislation only in
response to unconstitutional conduct by the States themselves. Id. at
1991 n.16. For these reasons, Wessel does not control our analysis in this
case.
16 CONSTANTINE v. RECTORS AND VISITORS
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, 531 U.S. at 367. This rule applies even in the
context of public education. See Plyler v. Doe, 457 U.S. 202, 221-23
(1982) (recognizing the "pivotal role of education" in our society but
noting that education is not a fundamental right, such that "a State
need not justify by compelling necessity every variation in the manner
in which education is provided to its population"); San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 29-40 (1973) (recognizing the
"undisputed importance of education" but rejecting the argument that
education is a fundamental right and applying rational-basis review to
an equal-protection challenge to a State’s system of school financing);
Sellers v. School Bd. of Manassas, Va., 141 F.3d 524, 531 (4th Cir.
1998) (stating that a plaintiff challenging the disparate treatment of
disabled students "would have to prove that a school board’s decision
was without any rational basis").
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." Id. § 12101(a)(3)
(emphasis 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
CONSTANTINE v. RECTORS AND VISITORS 17
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." Id. 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, 384 F.3d 1248, 1271 n.25
(11th Cir. 2004) (noting that although "there was little documentation
of a history and pattern of disability discrimination in prisons recited
in Lane, . . . the Supreme Court in Lane in effect decided the . . .
inquiry as to Title II"); see also Cochran v. Pinchak, 401 F.3d 184,
191 (3d Cir. 2005) (agreeing with Miller).
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
discrimination. Lane, 124 S. Ct. at 1992. Following Lane, we consider
the remedial measures of Title II only as they apply to the class of
cases implicating the right to be free from irrational disability dis-
crimination in public higher education. See id. at 1992-94. Because
the holding in Lane was limited to applications of Title II involving
the fundamental right of access to courts — a Fourteenth Amendment
right triggering heightened scrutiny — that holding does not control
this case. See id. at 1994 n.20 (stating that "we need not consider
whether Title II’s duty to accommodate exceeds what the Constitution
9
Although the Court’s general conclusion on this point is sufficient to
satisfy the historical inquiry into the purpose of the enactment of Title
II, we note that the Court specifically identified public education as one
of a number of "public services, programs, and activities" in which there
was a documented pattern of unequal treatment. 124 S. Ct. at 1989.
18 CONSTANTINE v. RECTORS AND VISITORS
requires in the class of cases that implicate only Cleburne’s prohibi-
tion on irrational discrimination").10
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-
vices 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, 538 U.S. at 738-39; City of Boerne, 521
10
Although Garrett implicates the prohibition on irrational discrimina-
tion, it does not control this case either. The Court in Garrett held that
Title I of the ADA is not valid § 5 legislation because there was no dem-
onstrated pattern of unconstitutional employment discrimination by the
States against the disabled. 531 U.S. at 368-72. In dicta, the Court stated
that "[e]ven were it possible to squeeze out of these examples a pattern
of unconstitutional discrimination by the States," the remedial provisions
of Title I would raise serious congruence-and-proportionality concerns.
Id. at 372. The Court declined to address the constitutional question with
respect to Title II, however, and noted specifically that Title II "has
somewhat different remedial provisions from Title I." Id. at 360 n.1.
Moreover, the congruence and proportionality of Title II must be mea-
sured against a record of unconstitutional discrimination that is "clear
beyond peradventure," Lane, 124 S. Ct. at 1992, while Title I was con-
sidered in light of a record that had to be "squeezed out," Garrett, 531
U.S. at 372.
CONSTANTINE v. RECTORS AND VISITORS 19
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 or
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. Id. § 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. Id. 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
20 CONSTANTINE v. RECTORS AND VISITORS
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, 527 U.S. 581, 604 (1999) (interpret-
ing 28 C.F.R. § 35.130(b)(7)).
Undoubtedly, Title II imposes a greater burden on the States than
does the Fourteenth Amendment. See Garrett, 531 U.S. at 367 (noting
that under Cleburne, States are "not required by the Fourteenth
Amendment to make special accommodations for the disabled"). Yet
Title II and its implementing regulations limit the scope of liability
in important respects and thus minimize the costs of compliance with
the statute. See City of Boerne, 521 U.S. at 534 (stating that
congruence-and-proportionality concerns are most acute where com-
pliance with the federal statute entails "substantial costs" that "far
exceed any pattern or practice of unconstitutional conduct"). These
limitations "tend to ensure Congress’ means are proportionate to ends
legitimate under § 5." Id. at 533.
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." 531 U.S. at 372. Yet the Court has also noted (in a differ-
ent context) that a State’s "interest in achieving its goals as effectively
and efficiently as possible is elevated from a relatively subordinate
interest when it acts as sovereign to a significant one when it acts as
employer." Waters v. Churchill, 511 U.S. 661, 675 (1994). Thus, it
is more likely that disability discrimination in the context of a State’s
operation of public education programs will be unconstitutional than
discrimination in the context of public employment.11 Second, the
11
We also note, as the Court in Garrett did, that Congress enacted the
ADA in response to a finding that "[d]iscrimination still persists in such
CONSTANTINE v. RECTORS AND VISITORS 21
remedial measures employed in Title II are likely less burdensome to
the States than those employed in Title I. Whereas Title I requires the
States to "mak[e] existing facilities used by employees readily acces-
sible to and usable by individuals with disabilities," 42 U.S.C.
§§ 12112(5)(B), 12111(9), Title II imposes no such categorical
requirement. Indeed, the regulations specifically permit the States to
avoid making structural modifications to existing facilities in several
circumstances. See 28 C.F.R. § 35.150(a).
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, 521 U.S. at
518. Thus, the question is not whether Title II exceeds the boundaries
of the Fourteenth Amendment, but by how much. Considering the pat-
tern of unconstitutional disability discrimination described by the
Court in Lane, we cannot say that Title II is "so out of proportion to
a supposed remedial or preventive object that it cannot be understood
as responsive to, or designed to prevent, unconstitutional behavior."
Id. at 532. Accordingly, we conclude that Title II of the ADA is valid
§ 5 legislation, at least as it applies to public higher education. See
critical areas as employment in the private sector, public accommoda-
tions, public services, transportation, and telecommunications." 531 U.S.
at 371. See also id. (noting that Congress found that "there exists a com-
pelling need to establish a clear and comprehensive Federal prohibition
of discrimination on the basis of disability in the areas of employment
in the private sector, public accommodations, public services, transporta-
tion, and telecommunications"). This finding was crucial to the Court’s
conclusion that there was not a demonstrated pattern of disability dis-
crimination in public-sector employment that warranted § 5 legislation.
Garrett, 531 U.S. at 372. The same finding shows that Congress recog-
nized a persistent problem in private-sector employment and a separate
problem in the provision of public services. Thus, the remedial measures
described in Title I and those described in Title II were enacted in
response to different kinds of problems, and a conclusion about the con-
gruence and proportionality of Title I does not control the analysis of
Title II.
22 CONSTANTINE v. RECTORS AND VISITORS
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." Id. 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.CONSTANTINE v. RECTORS AND VISITORS 23
§ 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." Id. (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. Id. 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-
24 CONSTANTINE v. RECTORS AND VISITORS
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." Id. 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." Id. 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, 414 U.S. 563, 569 (1974) (upholding the ban
on race discrimination in federally funded programs under Title VI of
the Civil Rights Act);12 Sabri v. United States, 124 S. Ct. 1941, 1946
(2004) (upholding a ban on bribery of state, local, and tribal officials
of entities that receive at least $10,000 in federal funds, even without
12
Although the Court subsequently rejected the interpretation of § 601
of the Civil Rights Act described in Lau, see Alexander v. Sandoval, 532
U.S. 275, 285 (2001), the Spending Clause analysis in Lau remains
intact.
CONSTANTINE v. RECTORS AND VISITORS 25
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, 124 S. Ct. at 1947 (stating that "[t]he
power to keep a watchful eye on expenditures and on the reliability
of those who use public money is bound up with congressional
authority to spend in the first place").
Although the waiver condition in § 2000d-7 is a blanket condition
that applies regardless of the nature or amount 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., 374 F.3d 1161, 1168-69 (D.C. Cir. 2004), cert. denied,
125 S. Ct. 1591 (2005); Nieves-Marquez v. Puerto Rico, 353 F.3d
108, 128 (1st Cir. 2003); Lovell v. Chandler, 303 F.3d 1039, 1051
(9th Cir. 2002); Koslow v. Pennsylvania, 302 F.3d 161, 176 (3d Cir.
2002).
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."
Id. 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-
26 CONSTANTINE v. RECTORS AND VISITORS
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., 289 F.3d 281, 291 (4th Cir.
2002). The State of West Virginia challenged, on Tenth Amendment
grounds, the constitutionality of certain provisions in the federal Med-
icaid statute that required the State to adopt a program to recover cer-
tain expenditures from the estates of deceased Medicaid beneficiaries.
Id. at 283-84. West Virginia argued that this requirement was unduly
coercive because the State stood to lose more than $1 billion in fed-
eral Medicaid funds each year if it failed to implement an estate
recovery program that would generate only about $2 million each
year. Id. at 291. Because the federal government had not, in fact,
withheld or threatened to withhold the State’s entire Medicaid grant,
we treated West Virginia’s argument as a facial challenge to the
requirement that States implement estate recovery programs. Id. at
292. We upheld the statute on the ground that it gives the Secretary
CONSTANTINE v. RECTORS AND VISITORS 27
of Health and Human Services discretion to impose a penalty for non-
compliance that is less severe than withholding 100% of a State’s
Medicaid funding. Id. at 292-93.13
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. 483 U.S. at 211 (noting that the State would lose
only 5% of available federal highway funds if it opted not to accept
the condition). In this case, GMU has offered no estimate of the
degree to which it actually relies upon federal funds, and we will not
simply presume that the State’s capacity for free choice was over-
come by the prospect of financial assistance from the federal govern-
ment. See id. Based on the record before us, we cannot say that the
financial inducement of federal funding was so great as to coerce
GMU’s acceptance of the waiver condition in § 2000d-7. In sum, we
conclude that GMU waived its Eleventh Amendment immunity with
respect to Constantine’s claims for damages under § 504 of the Reha-
bilitation Act.
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-
13
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." Id. at 291.
28 CONSTANTINE v. RECTORS AND VISITORS
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.
Id. 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, 483 U.S. at 207 (citing Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981), for the proposition that
an unambiguous condition "enable[s] the States to exercise their
choice knowingly, cognizant of the consequences of their participa-
tion" in the federal funding program). The Court has further held that
Congress may not coerce the States into accepting federal funds with
conditions. Id. at 211. These requirements suffice to ensure that a
State’s agreement to federal funding conditions is both knowing and
voluntary. See Pace v. Bogalusa City Sch. Bd., ___ F.3d ___, 2005
WL 546507, at *6-*9 (5th Cir. Mar. 16, 2005) (en banc); Barbour,
374 F.3d at 1166-68; Doe v. Nebraska, 345 F.3d 593, 601-02 (8th Cir.
2003); Garrett v. University of Ala. at Birmingham Bd. of Trs., 344
F.3d 1288, 1292-93 (11th Cir. 2003) (per curiam); M.A. v. State-
Operated Sch. Dist., 344 F.3d 335, 349-51 (3d Cir. 2003). The Court
has never suggested that anything more than voluntary acceptance of
federal funds in the face of an unambiguous waiver condition is
required to demonstrate a State’s knowing agreement to that condi-
tion. See College Sav. Bank, 527 U.S. at 686 (characterizing South
CONSTANTINE v. RECTORS AND VISITORS 29
Dakota as holding that "Congress may, in the exercise of its spending
power, condition its grant of funds to the States upon their taking cer-
tain actions that Congress could not require them to take, and that
acceptance of the funds entails an agreement to the actions").14
In any event, the facts of this case do not support the defendants’
argument that GMU did not know it had any Eleventh Amendment
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,
517 U.S. at 72-73. By that time, the Supreme Court had specifically
rejected Congress’ attempts to abrogate Eleventh Amendment immu-
nity with respect to Title I of the ADA and the ADEA. See Garrett,
531 U.S. at 374; Kimel, 528 U.S. at 91. The Court had made no pro-
nouncement concerning abrogation under the Rehabilitation Act. In
short, when GMU accepted federal funds in 2003, it was far from
clear that Congress had validly abrogated Eleventh Amendment
immunity with respect to suits brought under § 504. Even the Second
14
Contrary to the defendants’ argument, College Savings Bank does not
compel the conclusion that GMU’s waiver of immunity was unknowing.
That case presented the question whether a State retains its Eleventh
Amendment immunity to suit brought under the Trademark Remedy
Clarification Act ("TRCA"), even after the State engages in advertising
activities regulated by the Lanham Act. Expressly rejecting the doctrine
of constructive waiver, the Court held that a State cannot be deemed to
have waived its immunity merely by engaging in otherwise lawful con-
duct. Id. at 680-87. For present purposes, it is important that the Court
specifically distinguished conditional-spending cases such as South
Dakota: "Congress has no obligation to use its Spending Clause power
to disburse funds to the States; such funds are gifts. In the present case,
however, what Congress threatens if the State refuses to agree to its con-
dition is not the denial of a gift or gratuity, but a sanction: exclusion of
the State from otherwise permissible activity." Id. at 686-87. Because
this case does not involve a constructive waiver at all, but involves the
State’s voluntary receipt of federal funds expressly conditioned on a
waiver of Eleventh Amendment immunity, College Savings Bank is inap-
posite.
30 CONSTANTINE v. RECTORS AND VISITORS
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. Id. 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
15
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 v. RECTORS AND VISITORS 31
Constantine’s complaint satisfy our "straightforward inquiry." Id. at
645-46; see McCarthy v. Hawkins, 381 F.3d 407, 417 (5th Cir. 2004).
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, 517 U.S. at 74. The Court in Seminole Tribe
held that an Ex parte Young action was not appropriate in light of the
comprehensive remedial scheme provided in the Indian Gaming Reg-
ulatory Act ("IGRA"). Where a court finds that a State breached its
statutory duty to negotiate in good faith with an Indian tribe, the
IGRA provides for a sort of forced mediation between the parties with
the prospect of federal regulation in the event of an impasse. Id. at 74-
75. This "quite modest set of sanctions" evidenced Congress’ intent
to limit the States’ exposure for violations of the statute, whereas an
Ex parte Young action would leave the States vulnerable to "the full
remedial powers of a federal court." Id. at 75. Thus, the Court held
that an Ex parte Young action is not appropriate to enforce the IGRA.
Id. at 76.
By contrast, the Court held in Verizon that the Telecommunications
Act of 1996 did not foreclose an Ex parte Young action. 535 U.S. at
647-48. That statute merely provides that an aggrieved party may sue
in federal court to challenge certain determinations made by state
commissions; it does not identify the proper party to be sued, nor does
it restrict in any way the kinds of relief available. Id. at 647. Merely
authorizing federal courts to review commission decisions under the
statute does not "impose upon the State a liability that is significantly
more limited than would be the liability imposed upon the state offi-
cer under Ex parte Young." Id. at 647-48.
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
32 CONSTANTINE v. RECTORS AND VISITORS
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, 327 F.3d 307, 315 (4th Cir. 2003). In any suit against a State
for violation of Title VI, "remedies (including remedies both at law
and in equity) are available . . . to the same extent as such remedies
are available for such a violation in the suit against any public or pri-
vate entity other than a State." 42 U.S.C. § 2000d-7(a)(2). "Title VI
mentions no remedies" at all, and it certainly does not purport to limit
the remedies available in a suit against a defendant other than a State.
Barnes, 536 U.S. at 187.16 Thus, we conclude that the Rehabilitation
Act (which incorporates the remedies provided in Title VI) does not
suggest a congressional intent to foreclose an Ex parte Young action
for violation of § 504. See Henrietta D. v. Bloomberg, 331 F.3d 261,
288-89 (2d Cir. 2003); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1188-89 (9th Cir. 2003); Randolph v. Rodgers, 253 F.3d 342, 346-49
& n.13 (8th Cir. 2001).
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., 7 F.3d at
1134. Our review is de novo, and we "accept as true all well-pleaded
allegations and . . . view the complaint in a light most favorable to
the plaintiff." Id.Title II of the ADA provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from partici-
16
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. 536 U.S. at 189. Impor-
tantly, the Court based this conclusion on the fact that punitive damages
ordinarily are not available in breach-of-contract actions. Id. at 188. The
same cannot be said of prospective injunctive relief.
CONSTANTINE v. RECTORS AND VISITORS 33
pation in or be denied the benefits of 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, 192 F.3d 462, 467-70 (4th Cir. 1999); Doe v. Univer-
sity of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 & n.9 (4th Cir.
1995).17 The district court ruled that Constantine’s complaint failed to
allege facts showing that (1) Constantine was "otherwise qualified" as
a law student or (2) she was actually denied the benefits of an educa-
tional program or service.18
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 causation
standards under Title II of the ADA and § 504 of the Rehabilitation Act
are "significantly dissimilar." Baird, 192 F.3d at 469. A plaintiff seeking
relief under Title II of the ADA must prove that disability "played a
motivating role" in the adverse action, while a plaintiff seeking relief
under § 504 of the Rehabilitation Act must prove that the defendants’
discriminatory conduct was "solely by reason" of the plaintiff’s disabil-
ity. Id. at 469-70.
18
Neither the district court nor the defendants on appeal have asserted
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.
34 CONSTANTINE v. RECTORS AND VISITORS
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
CONSTANTINE v. RECTORS AND VISITORS 35
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, 202 F.3d 676, 685 (4th Cir. 2000). A plaintiff seeking to
recover for First Amendment retaliation must allege that (1) she
engaged in protected First Amendment activity, (2) the defendants
took some action that adversely affected her First Amendment rights,
and (3) there was a causal relationship between her protected activity
and the defendants’ conduct. Id. at 686.
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, 275 F.3d 391, 404-05 (4th
Cir. 2001) (holding that the plaintiff adequately alleged First Amend-
ment retaliation based on government officials’ response to his publi-
cation of an article criticizing the FBI and other federal agencies).
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
36 CONSTANTINE v. RECTORS AND VISITORS
rights." ACLU of Md., Inc. v. Wicomico County, Md., 999 F.2d 780,
785 (4th Cir. 1993). Not all retaliatory conduct tends to chill First
Amendment activity, however, DiMeglio v. Haines, 45 F.3d 790, 806
(4th Cir. 1995), and a plaintiff seeking to recover for retaliation must
show that the defendant’s conduct resulted in something more than a
"de minimis inconvenience" to her exercise of First Amendment
rights, ACLU of Md., 999 F.2d at 786 n.6. Of course, conduct that
tends to chill the exercise of constitutional rights might not itself
deprive such rights, and a plaintiff need not actually be deprived of
her First Amendment rights in order to establish First Amendment
retaliation. Id.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, 373 F.3d 310, 320 (2d Cir. 2004);
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Carroll v. Pfef-
fer, 262 F.3d 847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167,
1176 (10th Cir. 2001); Suppan v. Dadonna, 203 F.3d 228, 235 (3d
Cir. 2000); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); Bart
v. Telford, 677 F.2d 622, 625 (7th Cir. 1982); cf. Suarez Corp., 202
F.3d at 688 (noting that retaliatory disclosure of information may con-
stitute adverse action if it is "sufficiently embarrassing, humiliating,
or emotionally distressful" and citing Bloch’s "ordinary firmness"
standard). While the plaintiff’s actual response to the retaliatory con-
duct provides some evidence of the tendency of that conduct to chill
First Amendment activity, it is not dispositive.
Constantine alleges that in response to her public criticism of Pro-
fessor Lund’s exam and GMU’s grade appeals policies, the defen-
CONSTANTINE v. RECTORS AND VISITORS 37
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 connection, 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, 145 F.3d at 657.
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 defendants 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 CONSTANTINE v. RECTORS AND VISITORS
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.19
REVERSED AND REMANDED
19
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.