FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

BENJAMIN KOHN,                                  No. 20-17316

                Plaintiff-Appellant,          D.C. No. 4:20-cv-
                                                 04827-PJH
    v.

STATE BAR OF CALIFORNIA;                          OPINION
CALIFORNIA COMMITTEE OF
BAR EXAMINERS, and Their Agents
in Their Official Capacity,

                Defendants-Appellees.

         Appeal from the United States District Court
            for the Northern District of California
         Phyllis J. Hamilton, District Judge, Presiding
                 Submitted October 15, 2024 *
                  San Francisco, California

                    Filed October 21, 2024

    Before: Kim McLane Wardlaw, Consuelo M. Callahan,
           and Jacqueline H. Nguyen, Circuit Judges
                  Opinion by Judge Wardlaw

*
 The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                KOHN V. STATE BAR OF CALIFORNIA


                          SUMMARY **


              Eleventh Amendment Immunity

    On remand from the en banc court, the panel vacated the
district court’s dismissal of Benjamin Kohn’s claims that the
State Bar of California’s refusal to provide him certain test-
taking accommodations violated Title II of the Americans
with Disabilities Act, and remanded to the district court for
further proceedings.
    The district court dismissed Kohn’s Title II claims on
Eleventh Amendment immunity grounds. The en banc court
reaffirmed that the California State Bar enjoys Eleventh
Amendment immunity in federal court. On remand to the
three-judge panel, Kohn asserted that under Phiffer v.
Columbia River Correctional Institute, 

 (9th
Cir. 2004), Title II validly abrogates the State Bar’s Eleventh
Amendment immunity as to his claims. The panel held that
intervening Supreme Court precedent in United States v.
Georgia, 

 (2006), overruled Phiffer and
requires courts to analyze on a claim-by-claim basis whether
Title II validly abrogates state sovereign immunity as to the
specific class of conduct at issue. The panel concluded that
the district court properly recognized the need to engage in
the case-specific analysis outlined by Georgia, but the
district court misapplied the Georgia inquiry. The panel
therefore vacated the district court’s abrogation analysis and
remanded for further consideration.


**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              KOHN V. STATE BAR OF CALIFORNIA            3


    The panel addressed additional issues in a concurrently
filed memorandum disposition.



                       COUNSEL

Gregory R. Michael (argued) and Dorothy C. Yamamoto,
Michael Yamamoto LLP, Berkeley, California, for Plaintiff-
Appellant.
Brady R. Dewar (argued), Rita K. Himes, Robert G. Retana,
Ellin Davtyan, and Jean R. Krasilnikoff, Office of the
General Counsel, State Bar of California, San Francisco,
California; Kirsten Galler, Office of the General Counsel,
State Bar of California, Los Angeles, California; for
Defendants-Appellees.
Jinny Kim and Claudia Center, Disability Rights Advocates,
Berkeley, California; Laura A. Scalia, Legal Aid at Work,
San Francisco; for Amici Curiae Disability Rights Education
and Defense Fund, Legal Aid at Work, et al..
Julian Sarkar, SarkarLaw, San Francsico, California, for
Amicus Curiae SarkarLaw.
4                KOHN V. STATE BAR OF CALIFORNIA

OPINION

WARDLAW, Circuit Judge:

     Benjamin Kohn, a licensed attorney, brings a civil rights
lawsuit against the State Bar of California contending that
the State Bar’s refusal to provide him certain test-taking
accommodations violated Title II of the Americans with
Disabilities Act (“ADA”), 

 et seq.; Section
504 of the Rehabilitation Act, 

; sections of
the California Government Code, Cal. Gov’t Code §§ 11135
et seq., 12944 et seq.; and California’s Unruh Civil Rights
Act, 

(f). 1 The district court dismissed
Kohn’s Title II claims on Eleventh Amendment immunity
grounds. See Kohn v. State Bar of California, 

 (N.D. Cal. 2020) (“Kohn I”). On appeal, Kohn
initially contended that the State Bar is not an “arm of the
state,” and thus can be sued without restriction. We took up
this question en banc, and reaffirmed that the California
State Bar enjoys Eleventh Amendment immunity in federal
court. See Kohn v. State Bar of California, 

,
1037–38 (9th Cir. 2023) (en banc) (“Kohn II”).
    The en banc court remanded the remaining questions
presented in Kohn’s appeal to our three-judge panel. See 

. We now consider Kohn’s alternative contention
that Title II of the ADA validly abrogates the State Bar’s
Eleventh Amendment immunity as to his claims. Relying on
our decision in Phiffer v. Columbia River Correctional
Institute, 

 (9th Cir. 2004), Kohn asserts that

1
 We resolve Kohn’s Title II claims here and address the remaining issues
presented in Kohn’s appeal in a concurrently filed memorandum
disposition.
               KOHN V. STATE BAR OF CALIFORNIA                 5


Title II validly abrogates the State Bar’s immunity.
However, we hold that the Supreme Court’s decision in
United States v. Georgia, 

 (2006), abrogated
Phiffer and requires courts to analyze on a claim-by-claim
basis whether Title II validly abrogates state sovereign
immunity as to the specific class of conduct at issue. We
have jurisdiction under 

, and for the reasons
explained below, we vacate the dismissal of Kohn’s Title II
claims and remand for further proceedings.
              I. STANDARD OF REVIEW
   “We review de novo a dismissal on the basis of sovereign
immunity.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 

 (9th Cir. 2016).
                      II. DISCUSSION
    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.” U.S. Const.
amend. XI. “Longstanding Supreme Court precedent has
interpreted this Amendment to immunize states from suit in
federal court by citizens and noncitizens alike.” Kohn II, 

. However, Congress can abrogate this
immunity if it (1) “makes its intention to abrogate
unmistakably clear in the language of the statute” and
(2) “acts pursuant to a valid exercise of its power under § 5
of the Fourteenth Amendment.” Nev. Dep’t of Human Res.
v. Hibbs, 

 (2003). Kohn contends that
Title II of the ADA meets these criteria.
   Title II meets the first criterion. Title II provides that “no
qualified individual with a disability shall, by reason of such
6              KOHN V. STATE BAR OF CALIFORNIA


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.”

. In enacting the statute, Congress
unequivocally expressed an intent to abrogate state
sovereign immunity. See 

 (“A State shall
not be immune under the eleventh amendment to the
Constitution of the United States from an action in [a]
Federal or State court of competent jurisdiction for a
violation of this chapter.”); Georgia, 

(describing § 12202 as an “unequivocal expression of
Congress’s intent to abrogate state sovereign immunity”).
    The second, more complex inquiry is whether Congress
enacted Title II “pursuant to a valid exercise of its power
under § 5 of the Fourteenth Amendment.” Hibbs, 

. Congress may abrogate state sovereign immunity for
both “actual violations of the rights guaranteed” in the
Fourteenth Amendment as well as for “‘a somewhat broader
swath of conduct,’ including acts constitutional in
themselves” in order to deter unconstitutional
conduct. Allen v. Cooper, 

 (2020) (quoting
Kimel v. Fla. Bd. of Regents, 

 (2000)). For
legislation that targets this “broader swath of conduct” to fall
within Congress’s Section 5 authority “‘[t]here must be a
congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that
end.’” 

 at 260–61 (quoting City of Boerne v. Flores, 

 (1997)).
                              A.
   Citing our decision in Phiffer, Kohn argues that “this
Court has held that Congress validly abrogated state
sovereign immunity as to claims arising properly under Title
               KOHN V. STATE BAR OF CALIFORNIA                 7


II.” In Phiffer, we considered Title II as a whole and held
that our precedent “clearly commands the conclusion that the
State is not entitled to Eleventh Amendment immunity under
Title II of the ADA.” 

. Indeed, we had
previously and repeatedly held that Title II “was a congruent
and proportional exercise of Congress’s enforcement powers
under § 5 of the Fourteenth Amendment that abrogated
Eleventh Amendment immunity.” Dare v. California, 

 (9th Cir. 1999); Clark v. State of Cal., 

 (9th Cir. 1997) (describing Title II’s
abrogation of state sovereign immunity as “valid exercises
of Congress’s power under Section 5 of the Fourteenth
Amendment”).
    In Phiffer, we also observed that our court had repeatedly
rejected the argument that “the Supreme Court’s decision
in Board of Trustees of the University of Alabama v.
Garrett, 

 (2001), requires us to revisit our
precedent” holding that Title II validly abrogates state
sovereign immunity. 

 (citing Hason v. Med.
Bd. of Cal., 

, 1171, reh’g en banc denied 

 (9th Cir. 2002), and cert. dismissed 

(2003); Thomas v. Nakatani, 

 (9th Cir.
2002); Lovell v. Chandler, 

, 1050–51 (9th Cir.
2002)). Garrett held that the Eleventh Amendment barred
claims for money damages against the states under Title I of
the ADA, which addresses disability discrimination in
employment. See 

 (explaining that
“Congress’ § 5 authority is appropriately exercised only in
response to state transgressions” and finding that “[t]he
legislative record of the ADA . . . fails to show that Congress
did in fact identify a pattern of irrational state discrimination
in employment against the disabled.”). Because “[t]he
Garrett Court expressly declined to decide whether
8              KOHN V. STATE BAR OF CALIFORNIA


Congress validly abrogated state sovereign immunity in
enacting Title II of the ADA,” however, we held in Hason
that “Garrett does not overrule either Clark or Dare.” 279
F.3d at 1171. See also Thomas, 

 (declining
to revisit Hason); Lovell, 

 (reiterating that
“Clark and Dare are still good law” after Garrett).
     After Phiffer, the Supreme Court decided Georgia, a
case which raised the question of “whether a disabled inmate
in a state prison may sue the State for money damages under
Title II.” 

. The Eleventh Circuit had
dismissed the inmate’s claims on Eleventh Amendment
immunity grounds. See 

. After granting certiorari
to determine “whether Title II of the ADA validly abrogates
state sovereign immunity with respect to the claims at issue,”

 the Supreme Court held that “insofar as Title II creates a
private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment,
Title II validly abrogates state sovereign immunity.” 

. Finding that “it is not clear precisely what conduct [the
inmate] intended to allege in support of his Title II claims,”
and “it is likewise unclear to what extent the conduct
underlying [his] constitutional claims also violated Title II,”
the Court declined to resolve “the scope of Congress’s
‘prophylactic’ enforcement powers under § 5 of the
Fourteenth Amendment.” Id. at 158–59. The Court
observed that some of the allegations at issue were “quite far
afield from actual constitutional violations . . . or even Title
II violations,” and remanded to permit the plaintiff to amend
the complaint. Id. at 159. The Court instructed that “[o]nce
[the plaintiff’s] complaint is amended, the lower courts will
               KOHN V. STATE BAR OF CALIFORNIA                9


be best situated to determine in the first instance, on a claim-
by-claim basis,” the following:

        (1) which aspects of the State’s alleged
        conduct violated Title II; (2) to what extent
        such misconduct also violated the Fourteenth
        Amendment; and (3) insofar as such
        misconduct violated Title II but did not
        violate the Fourteenth Amendment, whether
        Congress’s     purported     abrogation    of
        sovereign immunity as to that class of
        conduct is nevertheless valid.

Id.
     Many of our sister circuits have read Georgia to establish
a blueprint for the abrogation analysis: a three-part inquiry
to be undertaken with respect to a specific “class of conduct”
on a “claim-by-claim” basis. See, e.g., Buchanan v. Maine,

, 172 (1st Cir. 2006); T.W. v. New York State
Bd. of L. Examiners, No. 22-1661, 

 at *5–
6 (2d Cir. July 19, 2024); Geness v. Admin. Off. of
Pennsylvania Cts., 

 (3d Cir. 2020); Block
v. Texas Bd. of L. Examiners, 

, 617–18 (5th Cir.
2020); Babcock v. Michigan, 

, 534–35 (6th Cir.
2016); Klingler v. Dir., Dep’t of Revenue, State of Mo., 

 (8th Cir. 2006); Brooks v. Colorado Dep’t of
Corr., 

, 1168 (10th Cir. 2021); Miller v. King,

, 1150–51 (11th Cir. 2006). This is in
significant tension with our blanket holding in Phiffer that
Title II validly abrogates state sovereign immunity in all of
its applications.
   Some district courts in our circuit have, in the wake of
Georgia, “engaged in a case-by-case analysis to determine
10             KOHN V. STATE BAR OF CALIFORNIA


whether a fundamental right is at issue and whether Title II
validly abrogates state sovereign immunity.” Kohn I, 497 F.
Supp. 3d at 535 (collecting cases). Others, however,
continue to apply Phiffer for the proposition that “[i]n the
Ninth Circuit, state agencies are not entitled to Eleventh
Amendment sovereign immunity from suit under Title II of
the ADA.” See, e.g., Ellington v. California Dep’t of Corr.
& Reh., No. 20-cv-9116, 

 at *7 n.4 (C.D.
Cal. Oct. 6, 2021). We have never explicitly addressed the
status of Phiffer post-Georgia, though some members of our
court have questioned Phiffer’s categorical holding both
before and after Georgia was decided. See Phiffer, 

 (O’Scannlain, J., concurring) (reading Tennessee v.
Lane, 

 (2004) to require a “nuanced, case-by-
case analysis”); J.C. ex rel. W.P. v. Cambrian Sch. Dist., 

 (9th Cir. 2016) (Wardlaw, J., concurring
in part) (explaining that while “the ADA claim is not barred
by Eleventh Amendment immunity under existing law,” she
would “remand for further consideration” in light of
Georgia).
    In our court, a three-judge panel may recognize prior
precedent as overruled only when an intervening precedent
of higher authority is “clearly irreconcilable” with the
precedent. Miller v. Gammie, 

 (9th Cir.
2003) (en banc). We find that Georgia’s claim-by-claim
analysis is “clearly irreconcilable” with Phiffer’s categorical
holding. We therefore conclude that Phiffer has been
overruled by intervening Supreme Court precedent. Going
forward, district courts must undertake the analysis set forth
in Georgia to determine whether, in enacting Title II,
Congress validly abrogated state sovereign immunity as to
the specific class of conduct at issue.
               KOHN V. STATE BAR OF CALIFORNIA                11


                               B.
   Here, the district court properly recognized the need to
engage in the case-specific analysis outlined by Georgia.
However, because we conclude that the district court
misapplied the Georgia inquiry, we vacate the district
court’s abrogation analysis and remand for further
consideration.
    The Georgia inquiry first asks courts to determine
“which aspects of the State’s alleged conduct violated Title
II.” 

. Here, the district court identified the
conduct at issue, observing that “plaintiff alleges that the
misconduct that violated Title II included excessively
burdensome procedures to seek testing accommodations,
delay in responding to his accommodation requests, and
deliberate indifference by failing to provide reasonable
accommodations for all of his prior sittings of the California
Bar Exam.” Kohn I, 497 F. Supp. 3d at 535–36. But the
district court did not evaluate which aspects of the alleged
conduct, if any, violated Title II. The district court then
proceeded to the second part of the Georgia analysis and
concluded that the alleged conduct did not violate the
Fourteenth Amendment. Id. at 538. Finally, the district
court concluded that the third part of Georgia was not
satisfied either, explaining that “plaintiff has cited no
authority demonstrating that, insofar as such misconduct
violated only Title II, that Congress’s purported abrogation
of sovereign immunity is nevertheless valid.” Id.
    The district court did not answer the question of which,
if any, of Kohn’s allegations state a Title II claim. It also did
not provide any reasoning supporting its conclusion that
Congress did not prophylactically abrogate sovereign
immunity as to Kohn’s claims. The district court’s Georgia
12                KOHN V. STATE BAR OF CALIFORNIA


analysis thus focused only on the second part of the Georgia
test, but this part of the Georgia test cannot stand alone as a
reason to dismiss a claim on sovereign immunity grounds.
Stated differently, it is not enough for the district court to
hold that the complaint does not allege a constitutional
violation and end there. Even if the complaint does not
allege a constitutional violation, “we must determine
whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.”
See Klingler v. Director, Dept. of Revenue, 

,
894 (8th Cir. 2006) (quotation marks and citation omitted).
The district court thus erred when it failed to determine
“which aspects of the State’s alleged conduct violated Title
II.” Georgia, 

.
    We hold that while the district court is not bound to
analyze the Georgia inquiry in any particular order, it cannot
begin and end its analysis with the second part of the
Georgia test. Of course, if a plaintiff fails to state a claim
under Title II, dismissal is appropriate. The same is true if
there is neither an alleged Fourteenth Amendment violation
nor a prophylactic abrogation of state sovereign immunity
for the “class of conduct” that violated Title II. 2 The
prophylactic abrogation analysis is fact-intensive, requiring
a review of whether there is “congruence and proportionality

2
  In holding that courts may choose to conduct the Georgia analysis in
any order it so chooses, we slightly differ from the approach of some of
our sister circuits. The First, Third, Fifth, and Tenth Circuits require
courts to begin with the first part of Georgia’s test before proceeding to
the second and third parts. Toledo v. Sanchez, 

 (1st Cir.
2006); Bowers v. Nat’l Collegiate Athletic Ass’n, 

 (3d
Cir. 2007); Block v. Texas Bd. of Law Examiners, 

, 618
n.12 (5th Cir. 2020); Guttman v. Khalsa, 

 (10th Cir.
2006).
                    KOHN V. STATE BAR OF CALIFORNIA        13


between the injury to be prevented or remedied and the
means adopted to that end.” City of Boerne v. Flores, 

 (1997), but the district court did not engage in
this analysis, leaving us to guess which of Kohn’s
allegations, if any, were being considered for this
“congruence and proportionality” inquiry.
    We thus vacate the district court’s dismissal of Kohn’s
Title II claims and remand for reconsideration consistent
with this opinion. Moreover, the district court shall provide
Kohn with the opportunity to amend his complaint before
proceeding.
                         III. CONCLUSION
   The district court’s dismissal of Kohn’s Title II claims is
vacated. We remand the suit for further proceedings. 3




3
    The parties shall bear their own costs on appeal.