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  No. 04-1410

Law,

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. 
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, Richmond, 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 Supporting Appellant.

2 CONSTANTINE v. RECTORS AND VISITORS
OPINION

SHEDD, Circuit Judge: 

Carin Constantine sued The Rectors and Visitors of George Mason

University ("GMU") and several members of GMU’s law school faculty (the "individual defendants"), asserting a First Amendment retaliation 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 Eleventh 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 constitutional 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 complete 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 Professor Lund’s exam and GMU’s grade appeals process. She publicized her complaints in an article she wrote for the law school

newspaper. 

1Because 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). 

CONSTANTINE v. RECTORS AND VISITORS 3
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 Constantine that she should appear for re-examination at the time specified 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. Constantine 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 previously accepted, so Constantine had to inform her judge of the failing

grade and obtain special permission to start work a year later. According to Constantine, the "F" on her transcript continues to hamper her

employment prospects. 

Constantine sued GMU and the individual defendants in their official and individual capacities. She alleges that the defendants’ failure

to accommodate her physical disability violated her rights under the

4 CONSTANTINE v. RECTORS AND VISITORS
ADA and the Rehabilitation Act. She further alleges that the individual 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 followed. 

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 litigation. 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 determine 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 "hypothetical jurisdiction," the Court reaffirmed the principle that

subject-matter jurisdiction is a necessary prerequisite to any merits

CONSTANTINE v. RECTORS AND VISITORS 5
decision by a federal court: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation

and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding 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 statutory requirement; it functions as a restriction on federal power, and

contributes to the characterization of the federal sovereign." Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982). Because a federal court’s subject-matter jurisdiction 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 obligation to assess its subject-matter jurisdiction, and it will "raise a lack

of subject-matter jurisdiction on its own motion." Id. Because subjectmatter limitations "serve institutional interests," they "must be policed

by the courts on their own initiative even at the highest level." Ruhrgas 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 subjectmatter 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

2Although the Court had granted certiorari to decide a substantive

question arising under the Emergency Planning and Community Rightto-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. 

6 CONSTANTINE v. RECTORS AND VISITORS
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 personal 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 significance [of the Eleventh Amendment] lies in its affirmation that the

fundamental principle of sovereign immunity limits the grant of judicial 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 jurisdictional bar so that it need not be raised in the trial court"); In re Creative 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 immunity 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 consents to suit in federal court, the Eleventh Amendment does not bar

the action"); Clark v. Barnard, 108 U.S. 436, 447 (1883) (characterizing the State’s sovereign immunity as "a personal privilege which it

3The 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). 

CONSTANTINE v. RECTORS AND VISITORS 7
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 jurisdiction."). 

The Court’s treatment of an Eleventh Amendment question in Calderon 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 Antiterrorism 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 Amendment issue at least suggests that the Court did not consider the Eleventh 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 limi8 CONSTANTINE v. RECTORS AND VISITORS
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. Employees’ 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 Eleventh 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] Amendment were to prevent the indignity of subjecting a State to the coercive 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 Amendment] 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 qualifiedimmunity context, the Supreme Court has stressed "the importance of

resolving immunity questions at the earliest possible stage in litigation." Saucier v. Katz, 533 U.S. 194, 201 (2001); Hunter v. Bryant,

502 U.S. 224, 227 (1991) (per curiam). Given the States’ unique dignitary interest in avoiding suit, see Alden v. Maine, 527 U.S. 706, 713

(1999), it is no less important to resolve Eleventh Amendment immunity questions as soon as possible after the State asserts its immunity.4

4We 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 attribute of the States’ sovereignty is such that a court should address that

issue promptly once the State asserts its immunity. 

CONSTANTINE v. RECTORS AND VISITORS 9
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 logically antecedent to the existence of the Eleventh Amendment question, 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 authorize qui tam actions against the States. Id. at 787-88. Likewise, we

avoided an Eleventh Amendment question in Strawser after concluding 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 Eleventh 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 Amendment 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,

10 CONSTANTINE v. RECTORS AND VISITORS
the Court in Vermont Agency specifically distinguished "[t]he question 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 forbids 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. Congress 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 viola5With 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 capacities, and the Eleventh Amendment does not bar such a suit. See Hafer v.

Melo, 502 U.S. 21, 31 (1991). 

CONSTANTINE v. RECTORS AND VISITORS 11
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 regulate 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 necessarily 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

12 CONSTANTINE v. RECTORS AND VISITORS
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-andproportionality 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 discrimination and the right of access to the courts. Id. at 1988. Importantly, 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 discrimination. Lane, 124 S. Ct. at 1988-92. Citing various federal court decisions and state statutes, the Court found that "Congress enacted Title

II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations 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 sug6Although the Court in Lane described evidence of disability discrimination 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 Garrett (addressing the validity of Title I of the ADA under § 5 with respect

to disability discrimination in the workplace), because the right of access

CONSTANTINE v. RECTORS AND VISITORS 13
gested that "inadequate provision of public services and access to

public facilities was an appropriate subject for prophylactic legislation." 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 Constitution 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 classifications," less evidence was required to establish a pattern of unconstitutional 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. at

1991 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 violations on the part of nonstate governmental actors is relevant to the § 5

inquiry." Lane, 124 S. Ct. at 1991. 

14 CONSTANTINE v. RECTORS AND VISITORS
By its own terms, Lane does not resolve the specific question presented 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 history 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 irrational 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 dis8The 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 Amendment 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 discrimination 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. 

CONSTANTINE v. RECTORS AND VISITORS 15
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 accommodations 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 participation 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 provision was necessary to address pervasive discrimination "in such critical 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 represents 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 discrimination specifically with respect to unjustified commitment, abuse and

neglect of persons committed to mental health hospitals, and irrational

16 CONSTANTINE v. RECTORS AND VISITORS
zoning decisions, 124 S. Ct. at 1989, as well as discriminatory state

laws concerning marriage, jury service, the penal system, public education, 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 public 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 disability discrimination by States and nonstate government entities with

respect to the provision of public services. This conclusion is sufficient to satisfy the historical inquiry into the harms sought to be

addressed by Title II.9See 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 contained 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 discrimination 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

9Although 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. 

CONSTANTINE v. RECTORS AND VISITORS 17
requires in the class of cases that implicate only Cleburne’s prohibition on irrational discrimination").10

Title II forbids public entities — including State and local governments and their departments, agencies, or instrumentalities, 42 U.S.C.

§ 12131(1) — from excluding disabled persons from programs, services, or benefits "by reason of" their disabilities. 42 U.S.C. § 12132.

In the context of public higher education, Title II requires that disabled students not be excluded from educational programs or activities, 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 architectural, communication, or transportation barriers, or the provision of

auxiliary aids and services" to enable disabled persons to receive services 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 discrimination 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

10Although Garrett implicates the prohibition on irrational discrimination, 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 demonstrated 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 measured against a record of unconstitutional discrimination that is "clear

beyond peradventure," Lane, 124 S. Ct. at 1992, while Title I was considered in light of a record that had to be "squeezed out," Garrett, 531

U.S. at 372. 

18 CONSTANTINE v. RECTORS AND VISITORS
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 statute. Second, although Title II forbids discrimination based on a person’s disability, States remain free to limit participation in their

programs or activities for other, lawful reasons. Third, the requirement that public entities make "reasonable modification[s]" to accommodate 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 educational programs in order to ensure that disabled citizens have access

to those programs, this requirement is congruent with the constitutional imperative that States avoid irrational discrimination. See Garrett, 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 disabilities," 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 consider 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 — structural changes in existing physical facilities — if other methods effectively 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

CONSTANTINE v. RECTORS AND VISITORS 19
and administrative burdens." 28 C.F.R. § 35.150(a). This regulation

acknowledges the States’ interests in preserving the essential characteristics 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) (interpreting 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 compliance 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 sovereigns. 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 different 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

11We 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

20 CONSTANTINE v. RECTORS AND VISITORS
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 accessible 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 prophylactic legislation such as Title II "can fall within the sweep of

Congress’ enforcement power even if in the process it prohibits conduct 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 pattern 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 accommodations, public services, transportation, and telecommunications." 531 U.S.

at 371. See also id. (noting that Congress found that "there exists a compelling 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, transportation, and telecommunications"). This finding was crucial to the Court’s

conclusion that there was not a demonstrated pattern of disability discrimination in public-sector employment that warranted § 5 legislation.

Garrett, 531 U.S. at 372. The same finding shows that Congress recognized 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 congruence and proportionality of Title I does not control the analysis of

Title II. 

CONSTANTINE v. RECTORS AND VISITORS 21
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’ Eleventh 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 Postsecondary 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 (internal quotations and citations omitted). More specifically, we have recognized two ways in which a State may waive its Eleventh

Amendment immunity: (1) expressly in a state statute or constitutional provision, "as long as the provision explicitly specifies the

state’s intention to subject itself to suit in federal court," or (2) implicitly "by voluntarily participating in federal spending programs when

Congress expresses a clear intent to condition participation in the programs . . . 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 participation 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.

22 CONSTANTINE v. RECTORS AND VISITORS
§ 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 constitutional command, and (5) "the financial inducement offered by Congress 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 requiring 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 immuCONSTANTINE v. RECTORS AND VISITORS 23
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 ‘germaneness 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

12Although 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. 

24 CONSTANTINE v. RECTORS AND VISITORS
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 . . . contribute, not be spent in any fashion which encourages, entrenches, subsidizes, 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 purpose of the nondiscrimination rule stated in § 504 of the Rehabilitation 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 federal court of appeals has yet identified one. 

We considered this coercion theory in Virginia Department of Education v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc). The ComCONSTANTINE v. RECTORS AND VISITORS 25
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 students who had been disciplined for reasons unrelated to their disabilities. Id. at 560. A majority of the en banc court sustained Virginia’s

challenge on the ground that the IDEA does not unambiguously condition receipt of federal funds on provision of services under such circumstances. 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 fulfill 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 relatively 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 Medicaid statute that required the State to adopt a program to recover certain 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 federal 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

26 CONSTANTINE v. RECTORS AND VISITORS
of Health and Human Services discretion to impose a penalty for noncompliance 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 unequivocal: If a "program or activity" — here, GMU — accepts federal funding, 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 overcome by the prospect of financial assistance from the federal government. 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 Rehabilitation Act.

C.

The defendants contend, however, that more is required to demonstrate that a State knowingly waived its Eleventh Amendment immunity. According to the defendants, a waiver of immunity is valid only

if the State subjectively believed that it had immunity to waive. Relying upon the Second Circuit’s decision in Garcia v. SUNY Health Sci13We 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. 

CONSTANTINE v. RECTORS AND VISITORS 27
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 knowingly 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 sovereign 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 immunity 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 accepting 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 participation" 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. StateOperated 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 condition. See College Sav. Bank, 527 U.S. at 686 (characterizing South

28 CONSTANTINE v. RECTORS AND VISITORS
Dakota as holding that "Congress may, in the exercise of its spending

power, condition its grant of funds to the States upon their taking certain 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 Constantine’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 immunity 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 pronouncement 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

14Contrary 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 conduct. 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 condition 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 inapposite. 

CONSTANTINE v. RECTORS AND VISITORS 29
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 congressional abrogation is invalid, then the acceptance of funds conditioned 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 federal 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 prospective." Verizon Md., Inc. v. Public Serv. Comm’n, 535 U.S. 635,

645 (2002) (internal quotations omitted). We do not consider the merits 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 Constantine’s record or directing GMU to permit a re-examination under reasonable circumstances. The defendants do not contend that such relief

would be impermissibly retroactive. Accordingly, the allegations in

15Since 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)). 

30 CONSTANTINE v. RECTORS AND VISITORS
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 effectively 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 Regulatory 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 officer 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 discrimination on the basis of race, color, or national origin by any "program or

activity" that receives federal funding. 42 U.S.C. § 2000d. Although

CONSTANTINE v. RECTORS AND VISITORS 31
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 prohibition 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 private 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). Dismissal is not appropriate under Rule 12(b)(6) "unless it appears certain 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 partici16The 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. Importantly, 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. 

32 CONSTANTINE v. RECTORS AND VISITORS
pation 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. 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 discrimination under any program or activity receiving Federal financial

assistance." 29 U.S.C. § 794(a). In general, a plaintiff seeking recovery for violation of either statute must allege that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public

service, program, or activity, and (3) she was excluded from participation 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. University 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 educational 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 provided 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

17Although "[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 disability. Id. at 469-70. 

18Neither 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 discriminated against Constantine because of her disability. 

CONSTANTINE v. RECTORS AND VISITORS 33
able to perform all the essential functions of being a student with reasonable accommodations. If she received additional time as a reasonable 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 reasonable 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 discrimination by that entity. 42 U.S.C. § 12132; 29 U.S.C. § 794(a).

Constantine’s complaint alleges that she was unable to complete Professor Lund’s exam because of her disability; that the defendants initially 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 Constantine can demonstrate that the defendants excluded her from meaningful 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

34 CONSTANTINE v. RECTORS AND VISITORS
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 available to challenge her grade. She then repeated her complaints about

the grade appeals process in an article printed in the law school newspaper. 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 Amendment retaliation based on government officials’ response to his publication of an article criticizing the FBI and other federal agencies).

B.

Constantine further alleges that GMU, in response to these complaints, (1) denied her initial request to re-take the exam, (2) denied

her request to have a different professor determine whether the original 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 correct 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

CONSTANTINE v. RECTORS AND VISITORS 35
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 plaintiff. We have never held that a plaintiff must prove that the allegedly

retaliatory conduct caused her to cease First Amendment activity altogether. 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 defendant’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. Pfeffer, 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 constitute 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 conduct 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 Professor Lund’s exam and GMU’s grade appeals policies, the defen36 CONSTANTINE v. RECTORS AND VISITORS
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 Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). "Knowledge alone,

however, does not establish a causal connection" between the protected 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 activity 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 personally 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 Constantine complained about Professor Lund’s exam and the grade appeals

CONSTANTINE v. RECTORS AND VISITORS 37
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 adequately 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 Constantine’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 prospective 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 district court and remand this case for further proceedings.19

REVERSED AND REMANDED

19Since 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. 

38 CONSTANTINE v. RECTORS AND VISITORS