MEMORANDUM & ORDER Plaintiff T.W. alleges that the New York State Board of Law Examiners (“the Board”) discriminated against her in violation of Title II of the Americans with Disabilities Act (“ADA”) when it denied her requests for certain accommodations on the New York State bar examination in 2013 and 2014. The Board moves to dismiss T.W.’s Complaint, arguing that the Board is immune from the suit under the Eleventh Amendment. We conclude (i) that the Board is entitled to immunity as an “arm of the state”; (ii) that Congress’ attempt to abrogate state immunity from Title II suits for money damages was not constitutionally valid as applied to T.W.’s claim; and (iii) that T.W. cannot maintain her requests for injunctive and declaratory relief under Ex parte Young, 209 U.S. 123 (1908). Defendants’ Motion to Dismiss is granted in its entirety. PROCEDURAL BACKGROUND T.W. originally brought claims against the Board and its members for disability discrimination under Titles II and III of the ADA, Section 504 of the Rehabilitation Act, and the New York City Human Rights Law. See Compl., ECF No. 1, 3. She also sought injunctive and declaratory relief against the individual members of the Board. Id. In 2017 we dismissed T.W.’s Title III and New York City Human Rights Law claims, as well as her damages claims against the individual members of the Board. See ECF No. 32 at 1. Her declaratory and injunctive relief claims against the individual members of the Board remained. See id. at 7 n.1. The Second Circuit subsequently dismissed T.W.’s Rehabilitation Act claim and remanded for proceedings on T.W.’s Title II claims, on which we had deferred ruling. See T.W. v. New York State Bd. of L. Exam’rs, 996 F.3d 87 (2d Cir. 2021). The parties then briefed Defendants’ Motion to Dismiss the Title II claim, which the Court now addresses. DISCUSSION I. Arm of the State The Eleventh Amendment bars private suits against states and state agencies unless Congress validly abrogates that immunity or the state waives it. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Kelly v. N.Y. State Unified Ct. Sys., No. 21-1633, 2022 WL 1210665, at *2 (2d Cir. Apr. 25, 2022). Although the Board is not a state agency, it nevertheless qualifies for Eleventh Amendment immunity if it can demonstrate that it is an “arm of the state” rather than an entity independent of the state like a political subdivision or other municipal corporation. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The Second Circuit established a six-part “arm of the state” test in Mancuso v. New York State Thruway Authority, 86 F.3d 289 (1994), which asks: (1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local or state government; (5) whether the state has a veto power over the entity’s actions; and (6) whether the entity’s obligations are binding upon the state. Id. at 293. If the six factors point in different directions, courts look to two tiebreaking factors: whether allowing the entity to be sued in federal court would “expose the state treasury to risk” or “threaten the integrity of the [s]tate.” Id. Between the two tiebreakers, the impact on the state treasury is the factor entitled to dispositive weight. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48-49 (1994). The Board bears the burden of demonstrating that it qualifies as an arm of the state. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006). While we have located no previous Mancuso analysis with respect to the Board, we note that a plethora of legal authorities, including this Court, have suggested or assumed that the Board’s relationship to New York’s judicial branch (also known as the Unified Court System or “UCS”)1 renders the Board an arm of the state or otherwise immune from suit. In Bartlett v. N.Y. State Board of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y. 1997) then-Judge Sotomayor recognized, “[t]here is no dispute that the Board is a creature of the State.” Id. at 1118. In its earlier decision in this case, the Second Circuit characterized the Board as an “arm of the State of New York” which “shares in [New York's sovereign] immunity,” without further analysis. T.W., 996 F.3d at 92 (cleaned up). And at an earlier oral argument in this case, I observed that the “Board of Law Examiners is a creature of the Court of Appeals via the Judiciary Act.” March 20, 2019 Hearing Transcript at 8:23-4. While these statements strongly suggest that the Board is an arm of the state, for the avoidance of doubt, we analyze the Mancuso factors. The first Mancuso factor, which asks how the Board is referred to in the documents that created it, weighs in favor of immunity. While nothing in the Judiciary Law, which established the Board, explicitly refers to the Board either as an arm of the state or an independent entity, the organization of the Board as contemplated by the Judiciary Law suggests that it was envisioned as a subunit of the Court of Appeals, itself entitled to immunity as a state agency. See Richards v. State of N.Y., 597 F. Supp. 692, 693 (E.D.N.Y. 1984). The Judiciary Law authorizes the Court of Appeals to “appoint five members of the bar to constitute the state board of law examiners,” N.Y. Jud. L. §56, and to “prescribe rules providing for a uniform system of examination of candidates to practice as attorneys and counsellors, which shall govern the state board of law examiners in the performance of its duties,” N.Y. Jud. L. §53; see also Matter of Brennan, 243 N.Y.S. 705, 711-12 (N.Y. App. Div. 1930) (noting same). As we concluded in 2019 based on our review of the Judiciary Law and the structure of the Board, the “legislature clearly intended that the Board would function under the supervision of the Chief Judge and the Court of Appeals.…Such strong administrative ties usually indicate that an entity is not independent [of a department or agency.]” ECF No. 86 at 10. Against a similar factual backdrop, the District of Rhode Island concluded that the Rhode Island Board of Law Examiners was an arm of the state by virtue of its connection to the state supreme court. Sinapi v. R.I. Bd. of Bar Exam’rs, No. 15-cv-311, 2016 WL 1562909 (D.R.I. Apr. 15, 2016), aff’d, 910 F.3d 544 (1st Cir. 2018). The court found that the Board’s immunity followed from the fact that “the Rhode Island Supreme Court is an arm of the State of Rhode Island and the Board is an administrative arm of the Rhode Island Supreme Court.” Id. at *2. The same is true under New York law. The legislature established the Board to serve as a delegated operation of the Court of Appeals, not as an independent entity. We agree with the Board that its legislative mandate and organizational structure indicate that it is an arm of the state. The second Mancuso factor, the appointment of the Board’s members, weighs in favor of immunity because members are appointed by the Court of Appeals, rather than by a source independent of the state. See N.Y. Jud. L. §56; see also Woods v. Rondout Valley Cent. Sch. Dist. Bd of Educ., 466 F.3d 232, 244 (2d Cir. 2006) (noting that appointment by state officials weighs in favor of immunity). The third Mancuso factor, funding, also weighs in favor of immunity. T.W. contends that the Board’s use of funds from attorney registration fees renders it a self-sufficient entity. T.W. Br. at 20-21. But this assertion belies the nature of the Board’s funding. The Board does not collect or control attorney registration fees. These fees are housed within the state treasury as part of the Attorney Licensing Fund (“ALF”), which supports various UCS operations including the Board. T.W. Br. at 20; McAlary Dep., ECF No. 83-9, at 67:22-68:7 (“[A]ll of the [ALF] funds actually lie…with the state treasury.”). The legislature, not the Board, sets the attorney registration fees that support the ALF and designates the programs supported by the ALF. N.Y. Jud. L. §468-a(4).2 The Board, therefore, does not resemble self-funded entities like the Port Authority in Hess or the Thruway Authority in Mancuso, which fund themselves by issuing bonds, tolls, or obtaining private financing. See Hess, 513 U.S. at 36 (“the Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors. Tolls, fees, and investment income account for the Authority’s secure financial position”) (cleaned up). Unlike those entities, the Board is incapable of “paying its own way.” Id. at 49. The Board is also reliant on the three branches of state government for budgetary appropriations. The Board submits budget requests to the Court of Appeals for inclusion in the overall UCS budget, which is subject to UCS revision. T.W. 2018 Br., ECF No. 83, at 10-11. The UCS budget is then presented to the legislature and governor for approval. See McAlary Dep. at 40:20-42:10; Witting Dep., ECF No. 83-1, at 40:5-43:10; 60:21-61:9. As we concluded in 2019, “[u]nder state law, the Board is both administered and funded as part of New York’s judicial branch.” ECF No. 86 at 12. These facts do not support T.W.’s depiction of the Board as an independent, self-sufficient entity.3 Indeed, T.W. noted in an earlier filing that the Board “is not self-funding, [the Board]‘s funding is completely dependent on UCS’s budget allocations to [the Board].” T.W. 2018 Br. at 9. The fourth Mancuso factor, whether the Board’s function is traditionally one of state government, weighs in favor of immunity because the Board is tasked with statewide regulation of attorney admission. We disagree with T.W.’s contention that the Board “does not perform a central governmental function because it is not a licensing authority” and is essentially a private entity that simply administers a test. T.W. Br. at 21. Even as one of several steps in the attorney licensing process, the administration of the bar examination plays a critical gatekeeping role in the regulation of attorneys within the state. As the Court of Appeals has noted, “no application [for admission to practice law in New York] may be entertained…unless the Board of Law Examiners…has certified that the applicant has successfully completed the examination process.” Matter of Anonymous, 78 N.Y.2d 227, 230 (1991). The fifth factor, state veto power over the Board, is the only Mancuso factor weighing against immunity. The Board does not dispute that the state lacks veto power over it. In fact, the Board notes that while the Court of Appeals sets overall objectives for the Board, it “does not review the Board’s reasonable accommodation decisions or individual grading decisions.” Def. Rep., ECF No. 111, at 11. And as we previously concluded, “[t]he Board ultimately manages its operations without any daily control or guidance from the Court of Appeals.” ECF No. 86 at 9. Finally, the sixth factor, the state’s responsibility for a judgment against the Board, as well as the dispositive, tie-breaking consideration of impact on the state treasury, both weigh in favor of immunity. The parties agree that the Board would satisfy a monetary judgment against it using ALF funds. See T.W. Br. at 24-26; Def. Rep. at 17. As recited above, the ALF is a state fund housed within the state treasury; the legislature sets registration fees and designates the allocation of ALF proceeds. It therefore stands to reason, as the Board submits, that any judgment against the Board will impact the state treasury. Moreover, unlike Mancuso and other cases finding against immunity, no statutory provision insulates the state from the Board’s debts. Cf. 86 F.3d at 296 (noting New York law “expressly provides that the state shall not be liable for the obligations of public corporations, such as the Thruway Authority”); see also Aguilar v. N.Y. Convention Ctr. Operating Corp., 174 F. Supp. 2d 49, 53 (S.D.N.Y. 2001) (noting that statute governing defendant entity, which “expressly provides that ‘[t]he obligations of the corporation shall not be debts of the state,’” weighed heavily against immunity). This point represents a critical factor distinguishing the Board from the State Bar of Oregon, which the Ninth Circuit recently concluded was not an arm of the state: a state statute exempts Oregon from any indebtedness incurred by its state bar. See Crowe v. Oregon State Bar, 989 F.3d 714, 731-33 (9th Cir. 2021). No such provision of New York law exists with respect to the Board.4 Moreover, unlike the Board here, the Oregon State Bar received no appropriations from the legislature and was entirely self-funded through membership dues. Id. at 731. This is a logical distinction given that the Board, unlike the Thruway Authority or the Oregon State Bar, is incapable of independently raising funds to satisfy a debt. In sum, five of the six Mancuso factors, along with the tiebreaking conclusion that the state is liable for the Board’s debts, counsel in favor of immunity. We conclude on this record that T.W.’s suit, “in effect, is against the state and must be so treated.” State Highway Comm’n of Wyo. v. Utah Const. Co., 278 U.S. 194, 199 (1929). The Board is entitled to immunity from T.W.’s suit under the Eleventh Amendment. II. Abrogation of Immunity T.W. contends that even as an arm of the state, the Board should be subject to her suit because Title II abrogates state sovereign immunity. See 42 U.S.C. §12202 (“A State shall not be immune under the Eleventh Amendment…for a violation of this chapter.”). Congress may lawfully abrogate immunity in certain contexts pursuant to its authority under Section 5 of the Fourteenth Amendment to “enforce, by appropriate legislation, the provisions of [the Fourteenth Amendment].” The authority of Congress to enact so-called “prophylactic” measures through Section 5, however, is not absolute. It is generally limited to remedying actual Fourteenth Amendment violations and a “somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text,” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000), but that is necessary to “remedy or deter actual violations,” Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010). To determine whether Congress has acted within the scope of its Section 5 authority in abrogating immunity, courts require that Congress’ abrogation be supported by a history of constitutional violations and a remedy that is congruent and proportional to the documented violations. Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 43 (2012). The Supreme Court in United States v. Georgia, 546 U.S. 151 (2006) established a threestep process to guide the assessment of whether abrogation under Title II is appropriately tailored to a constitutional violation. Id. at 159. On a claim-by-claim basis, a court must determine: (1) which aspects of the state’s alleged misconduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment, if at all; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’ purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. Id. We thus analyze whether Title II’s abrogation of immunity is a constitutional exercise of Section 5 authority as applied to bar examination accommodations. While this appears to be a question of first impression within the Second Circuit, a number of district courts elsewhere have analyzed the issue and determined that Title II abrogation in this context exceeds the scope of Congress’ prophylactic authority under Section 5.5 We now join them. 1. Whether the Board’s alleged conduct violated Title II At the first Georgia step we ask whether any aspect of the Board’s alleged misconduct constitutes a violation of Title II. See Mary Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013) (noting at the first Georgia step that “if a plaintiff cannot state a Title II claim, the court’s sovereign immunity inquiry is at an end.”); Goonewardena v. New York, 475 F. Supp. 2d 310, 324 (S.D.N.Y. 2007). To state a claim for Title II discrimination, T.W. must establish (1) that she is a “qualified individual” with a disability; (2) that the Board is subject to the ADA; and (3) that she was denied the opportunity to participate in or benefit from the Board’s services, programs, or activities, or was otherwise discriminated against by the Board by reason of her disability. Lipton v. N.Y.U. Coll. of Dentistry, 507 F. App’x 10, 10-11 (2d Cir. 2013). T.W. satisfies this burden. She alleges that she is a qualified individual with a disability, Compl.
