National Coalition For Students With Disabilities Educ. and Legal Defense Fund v. Allen

• Decision Date: 24 July 1998
• Docket Number: No. 97-1480,97-1480
• Citation: 152 F.3d 283
• Parties: 128 Ed. Law Rep. 960, 13 NDLR P 27 NATIONAL COALITION FOR STUDENTS WITH DISABILITIES EDUCATION AND LEGAL DEFENSE FUND, Plaintiff-Appellant, v. George ALLEN, acting in his official capacity as Governor of Virginia; Gordon K. Davies, acting in his official capacity as Director of the State Council on Higher Education; M. Bruce Meadows, acting in his official capacity as Secretary of the State Board of Elections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 283

152 F.3d 283

128 Ed. Law Rep. 960, 13 NDLR P 27

NATIONAL COALITION FOR STUDENTS WITH DISABILITIES EDUCATION AND LEGAL DEFENSE FUND, Plaintiff-Appellant, v. George ALLEN, acting in his official capacity as Governor of Virginia; Gordon K. Davies, acting in his official capacity as Director of the State Council on Higher Education; M Bruce Meadows, acting in his official capacity as Secretary of the State Board of Elections, Defendants-Appellees.

No. 97-1480.

United States Court of Appeals Fourth Circuit.

Argued Oct. 27, 1997.

Decided July 24, 1998.

ARGUED: Michael Jackson Beattie, National Coalition for Students with Disabilities Education and Legal Defense Fund, Fairfax, Virginia, for Appellant. Alice Ann Berkebile, Assistant Attorney General, Richmond, Virginia, for Appellees. ON BRIEF: Richard Cullen, Attorney General of Virginia, Richmond, Virginia, for Appellees.

Before RUSSELL, ^* MICHAEL, and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge DIANA GRIBBON MOTZ joined.

OPINION

MICHAEL, Circuit Judge:

The National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg-5(a)(2)(B), requires states to designate as voter registration agencies "all offices ... that provide State-funded programs primarily engaged in providing services to persons with disabilities." The National Coalition for Students with Disabilities Education and Legal Defense Fund (NCSD) brought this action against several Commonwealth of Virginia officials (collectively, Virginia or the Commonwealth) to force the Commonwealth to designate as voter registration agencies the offices providing services to disabled students at Virginia's public colleges and universities. ¹ The district court granted summary judgment for Virginia, holding that the NVRA does not apply to colleges. We reverse because offices providing services to disabled students at public colleges are "offices" under § 1973gg-5(a)(2)(B). As a result, we remand for the award of partial summary judgment to NCSD with respect to particular offices at the University of Virginia (UVA) and Virginia Polytechnic Institute (Virginia Tech) that must be designated as voter registration agencies. Further proceedings with respect to other public colleges will also be necessary on remand.

I.

A.

Congress passed the NVRA--dubbed the "Motor Voter Law"--to encourage increased voter registration for elections involving federal offices. See 42 U.S.C. § 1973gg(b)(1). The Act adopts procedures designed to make it easier to register to vote, and it requires the states to put these procedures into place. Specifically, states must (1) include a voter registration application as part of the application or renewal form for a motor vehicle driver's license, (2) allow mail application for voter registration, and (3) designate various offices as "voter registration agencies" where application for registration may be made in person. See id. §§ 1973gg-2, -5(a).

This case involves aspects of the third requirement. Under this requirement each state must designate the following offices as voter registration agencies: (1) "all offices in the State that provide public assistance" and (2) "all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities." Id. § 1973gg-5(a)(2)(A)-(B). A state must also designate other offices, but it has latitude in deciding exactly which ones. The Act suggests that government offices such as public schools and libraries, marriage license bureaus in clerks' offices, fishing and hunting license bureaus, and revenue offices may be included in the discretionary designation. See id. § 1973gg-5(a)(3)(B).

It goes without saying that the offices designated as voter registration agencies under the NVRA were originally created to provide service or assistance wholly apart from voter registration. The Act requires a designated office to provide certain voter registration services to persons who request the service or assistance customarily provided by that office. These voter registration services include distribution of voter registration application forms and another form that includes, among other things, the question, "[i]f you are not registered to vote where you live now, would you like to apply to register to vote here today?" See id. § 1973gg-5(a)(6)(A)-(B). Offices designated as voter registration agencies must also offer to assist applicants in completing voter registration forms and accept completed forms for transmittal to the appropriate state election official. See id. § 1973gg-5(a)(4)(A).

B.

NCSD is an organization headquartered in Fairfax, Virginia, whose general purpose is to advance the educational opportunities and rights of students with disabilities. NCSD is currently working to encourage college students with disabilities to register to vote. Many disabled students do not drive or otherwise have difficulty traveling. In addition, many of these students need assistance in completing voter registration forms because of blindness or motor or muscular dysfunction. Thus, NCSD alleges that a voter registration site on college campuses would permit many more disabled students to register. And, NCSD contends that the NVRA requires states to designate disability services offices at state-funded colleges as voter registration agencies.

On July 10, 1996, a visually impaired member of NCSD went to the campus of George Mason University in Fairfax, Virginia, to "look[ ] into acceptance to" that school. Among the offices she visited at George Mason was the Office of Disability Support Services, where she asked what assistance that office provided to students with disabilities. In response to a specific question about voter registration, she was told that the office did not provide voter registration services.

On July 17, 1996, NCSD sent a written complaint to the Virginia State Board of Elections, alleging that the Commonwealth was in violation of the NVRA by failing to provide voter registration services in disabled student services offices in public colleges. ² After the Board took no action on this complaint, NCSD sued the Commonwealth in the Eastern District of Virginia, asserting an NVRA claim as well as claims under the Americans with Disabilities Act (ADA) and several provisions of the United States Constitution. NCSD sought, among other relief, a declaration that Virginia was in violation of the NVRA and an injunction requiring the Commonwealth to provide voter registration services in college offices providing services to students with disabilities.

In the course of discovery and motion practice in this case Virginia provided undisputed facts about how the Commonwealth's institutions of higher education provide services to students with disabilities. To begin with, every public college in Virginia has an "office, section or department" that provides services for disabled students. These offices provide assistance "geared toward ensuring that qualified students with disabilities are receiving adequate access to the educational programs and activities" at their schools. None of these offices, however, provides voter registration services.

More specific information was provided about three public colleges, George Mason University, UVA, and Virginia Tech. George Mason has a Disability Support Services Office (DSS) which is the only office at George Mason that offers services "specifically directed to students with disabilities." Operation of the DSS office at George Mason is funded by student activity fees. At UVA disabled student services are provided through the Office of the Vice President of Student Affairs. At Virginia Tech these services are provided by the Office of the Dean of Students. UVA and Virginia Tech fund these offices from appropriations made by the General Assembly for "Higher Education Student Services." ³

Virginia moved for summary judgment on November 25, 1996, and NCSD cross-moved for partial summary judgment on January 13, 1977. The Commonwealth argued that "offices" under § 1973gg-5(a)(2)(B) of the NVRA are only those state agencies created by the legislature and funded by specific appropriation for the primary purpose of providing assistance to the disabled. Because colleges as a whole are not primarily engaged in that endeavor, they are not "offices" under the Act, according to Virginia. Finally, Virginia argued that particular college offices serving disabled students are not "offices" under the NVRA because these offices are not created by the legislature or funded by an appropriation dedicated specifically for services to disabled students. ⁴

NCSD based its cross-motion on three main grounds. First, it pointed out that it was not contending that entire colleges should be designated as voter registration agencies. Rather, it said that disability services offices in colleges were "offices" under the Act. These smaller offices had to be designated as voter registration agencies, according to NCSD, because they were offering "programs primarily engaged in providing services" to disabled students. Second, it argued that the ADA requires colleges to provide convenient and accessible voter registration sites for disabled students. Third, NCSD went beyond its complaint and argued that the ADA requires Virginia to provide braille and large print voter registration applications for persons who are visually impaired. This third argument was apparently based on Lightbourn v. El Paso, 904 F.Supp. 1429, 1433-34 (W.D.Tex.1995) (holding that Texas Secretary of State had duty to make sure local election authorities complied with ADA in providing accommodations to allow visually impaired persons to vote in secret), a decision that was reversed on appeal to the Fifth Circuit, see Lightbourn v. El Paso, 118 F.3d 421 (5th Cir.1997), cert. denied sub nom. Lightbourn v. Garza, --- U.S. ----, 118 S.Ct. 700, 139 L.Ed.2d 643...