# Pace v. Bogalusa City School Board

> Court of Appeals for the Fifth Circuit · April 9, 2003 · 325 F.3d 609

URL: https://www.frixlaw.com/law-library/cases/30762

## Case

- **Full name:** Travis PACE, Plaintiff-Appellant, v. the BOGALUSA CITY SCHOOL BOARD; Louisiana State Board of Elementary and Secondary Education; The Louisiana Department of Education; The State of Louisiana, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 9, 2003
- **Citations:** 325 F.3d 609
- **Precedential status:** Published
- **Opinion:** Opinion by Jones
- **Judges:** Jones, Siler, Smith
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Johnson v. LA Dept of Education, 343 F.3d 732 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/30762

## How later opinions describe it (automated extraction)

- holding defendants "did not knowingly waive their immunity by accepting federal IDEA [Individual with Disabilities Act] funds" because at the time they accepted such funds" no circuit court had held that § 1403 of the IDEA did not validly abrogate state sovereign immunity"
- explaining that, "[a]lthough a plaintiff beyond the statutory age of entitlement has no right to seek injunctive relief requiring compliance with IDEA, ... he may seek compensation for violation of statutory rights that occurred while he was entitled to them"
- holding that the state of Louisiana’s acceptance of IDEA funds did not effect a valid waiver of its Eleventh Amendment immunity
- stating that "§ 2000d-7 and 42 U.S.C. § 12202 of the ADA contain nearly identical language"

## Opinion text

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 9, 2003
March 24, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_______________________

No. 01-31026
_______________________

TRAVIS PACE

Plaintiff - Appellant

versus

THE BOGALUSA CITY SCHOOL BOARD; LOUISIANA STATE BOARD OF
ELEMENTARY AND SECONDARY EDUCATION; THE LOUISIANA
DEPARTMENT OF EDUCATION; THE STATE OF LOUISIANA,

Defendants - Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________

Before JONES, SMITH, and SILER,* Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Travis Pace appeals the district court’s

dismissal of his claims brought under the Individuals with

Disabilities Education Act and the grant of the defendants’ motions

for summary judgment on his claims brought under Title II of the

*
Circuit Judge of the 6TH Circuit, sitting by designation.
Americans with Disabilities Act and § 504 of the Rehabilitation

Act. We affirm the district court’s judgment for the Bogalusa City

School Board. We also hold that the State of Louisiana, the

Louisiana Department of Education, and the Louisiana State Board of

Elementary and Secondary Education (collectively “State

defendants”) are entitled to sovereign immunity from Pace’s claims

under the Eleventh Amendment.

I. BACKGROUND

In 1994, at the age of fifteen, Travis Pace (Pace) was

enrolled at Bogalusa High School. He is developmentally delayed,

confined to a wheelchair, and suffers from cerebral palsy and

bladder incontinence. In July 1997, Pace’s mother requested a due

process hearing under the Individuals with Disabilities Education

Act (IDEA), 20 U.S.C. § 1400, et seq., as she believed that Pace

was denied a “free appropriate public education” (FAPE) due to a

lack of handicap accessible facilities at Bogalusa High School and

deficiencies in Pace’s “individualized education programs” (IEPs).

The hearing officer found that the Bogalusa City Schools System1

provided Pace with a FAPE in compliance with the IDEA, and the

State Level Review Panel (SLRP) affirmed the hearing officer’s

decision.

1
The hearing officer made findings with regard to the Bogalusa
City Schools System. In federal court, Pace brought suit against
the Bogalusa City School Board. For all practical purposes in this
case the two entities are the same and will be referred to as
“BCSB.”

2
In September 1997, Pace filed a complaint with the Office

for Civil Rights of the Department of Education (OCR), alleging

violations of § 504 of the Rehabilitation Act (§ 504), 29 U.S.C.

§ 794(a), and Title II of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12132. The OCR and the BCSB resolved

allegations that the BCSB operated services, programs, and

activities that were physically inaccessible to or unusable by

individuals with disabilities by entering into a voluntary written

agreement under which the BCSB would identify accessibility

barriers and the OCR would oversee the development of a compliance

plan.

In March 1999, Pace filed suit in federal district

court, seeking damages and injunctive relief against the BCSB, the

Louisiana State Board of Elementary and Secondary Education, the

Louisiana Department of Education, and the State of Louisiana,

alleging violations of the IDEA, the ADA, § 504 of the

Rehabilitation Act, 42 U.S.C. § 1983, and various state statutes.2

The district court bifurcated Pace’s IDEA and non-IDEA claims. In

separate orders, it affirmed the SLRP decision by dismissing Pace’s

IDEA claims, then granted the defendants’ motions for summary

judgment on Pace’s non-IDEA claims. Pace appeals both decisions.

2
We do not consider Pace’s § 1983 claim and state law claims because he has not briefed them
on appeal. L&A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d
106, 113 (5th Cir. 1994); F.R.A.P. 28(a)(9)(A).

3
II. DISCUSSION

A. State Sovereign Immunity

Before addressing the merits of Pace’s claims, we must

determine whether state sovereign immunity bars his claims against

the State defendants. The Supreme Court has interpreted the

Eleventh Amendment to prohibit suits against a state by its own

citizens as well as by citizens of another state or foreign state.3

See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S.

Ct. 631, 640, 145 L. Ed. 2d 522, 535 (2000). There are only two

exceptions to this longstanding rule. Coll. Sav. Bank v. Fla.

Prepaid Post Secondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.

Ct. 2219, 2223 (1999).4 First, Congress may abrogate state

sovereign immunity pursuant to § 5 of the Fourteenth Amendment,

which grants Congress the power to enforce the substantive

guarantees of the amendment through appropriate legislation. Id.

Second, a state may waive its sovereign immunity by consenting to

suit. Id. (citing Clark v. Barnard, 108 U.S. 436, 447-48, 2 S. Ct.

3
The Eleventh Amendment provides:
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.
4
An individual seeking solely prospective relief may also sue
a state official in his official capacity under Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). In this case,
however, Pace has not named any state officials as defendants.

4
878, 883, 27 L. Ed. 780, 784-85 (1883)). At issue in this case is

whether Pace’s claims under the ADA, § 504 of the Rehabilitation

Act, and the IDEA fall within either of these exceptions.

1. Abrogation of state sovereign immunity through § 5 of the
Fourteenth Amendment

Pace’s ADA claims against the State defendants are

foreclosed by this court’s recent decision in Reickenbacker v.

Foster, 274 F.3d 974 (5th Cir. 2001). Reickenbacker held that

Congress did not properly exercise its Fourteenth Amendment § 5

power to abrogate state sovereign immunity against claims brought

under Title II of the ADA and § 504 of the Rehabilitation Act. To

validly abrogate state sovereign immunity through § 5 of the

Fourteenth Amendment, Congress must (1) unequivocally express its

intent to abrogate state sovereign immunity, Kimel, 528 U.S. at 73,

120 S. Ct. at 640, 145 L. Ed. 2d at 535; (2) identify a pattern of

unconstitutional action by the states, Bd. of Trs. of the Univ. of

Ala. v. Garrett, 531 U.S. 356, 368, 121 S. Ct. 955, 964, 148 L. Ed.

2d 866, 880 (2001); and (3) create rights and remedies that are

congruent and proportional to the injury, City of Boerne v. Flores,

521 U.S. 507, 520, 117 S. Ct. 2157, 2164, 138 L. Ed. 2d 624, 638

(1997). In Reickenbacker, this court concluded that although

Congress clearly expresses the intent to abrogate state sovereign

immunity in both Acts,5 it failed to identify a history and pattern

5
42 U.S.C. § 12202 of the ADA provides:

A State shall not be immune under the eleventh amendment

5
of unconstitutional discrimination by the states against the

disabled and imposed accommodation obligations on the states that

exceed constitutional boundaries. Reickenbacker, 274 F.3d at 982-

83.

Similarly, the IDEA does not validly abrogate the State

defendants’ state sovereign immunity. Like the ADA and § 504 of

the Rehabilitation Act, the IDEA contains an express statement of

intent to abrogate state sovereign immunity,6 but in enacting the

IDEA, Congress did not find that any disparate treatment of

to the Constitution of the United States from an action
in Federal or State court of competent jurisdiction for
a violation of this chapter. In any action against a
State for a violation of the requirements of this
chapter, remedies (including remedies both at law and in
equity) are available for such a violation to the same
extent as such remedies are available for such a
violation in an action against any public or private
entity other than a State.

42 U.S.C. § 2000d-7(a)(1) provides:

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 [29 U.S.C.A. § 794], title IX
of the Education Amendments of 1972 [20 U.S.C.A. § 1681
et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A.
§ 6101 et seq.], title VI of the Civil Rights Act of 1964
[42 U.S.C.A. § 2000d et seq.], or the provisions of any
other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.

6
20 U.S.C. § 1403(a) provides:

In general. A State shall not be immune under the
eleventh amendment to the Constitution of the United
States from suit in Federal court for a violation of this
chapter.

6
students with disabilities resulted from unconstitutional state

action.7 20 U.S.C. § 1400(c). And even if Congress had identified

constitutional transgressions by the states that it sought to

remedy through the IDEA, the IDEA requirements, like the ADA and

§ 504 requirements, exceed constitutional boundaries. The IDEA,

for example, requires the construction of new facilities and the

alteration of existing facilities to comply with the same

guidelines and standards used to determine ADA compliance, 20

U.S.C. § 1404(b), and this court has previously held that the ADA’s

accommodation obligation “far exceeds that imposed by the

Constitution,” Reickenbacker, 274 F.3d at 983. “In many instances,

programs rationally related to a legitimate state interest--and

thus constitutional under [City of] Cleburne [v. Cleburne Living

Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)]–would be

struck down as failing to satisfy the IDEA’s requirement that

students with disabilities receive a ‘free appropriate public

education.’” Bradley v. Ark. Dep’t of Educ., 189 F.3d 745, 752 (8th

7
Although the primary purpose of the IDEA is to make a FAPE
available to all disabled children, 20 U.S.C. § 1400(d)(1)(A),
Congress also desired to “ensure equal protection of the law”
through the IDEA, id. § 1400(c)(6); Crawford v. Pittman, 708 F.2d
1028, 1036 (5th Cir. 1983) (The IDEA “involves both Congress' power
to legislate under the spending clause and to assure equal
protection of the laws to all alike under section five of the
fourteenth amendment.”). Congress’s findings regarding the
educational needs of children with disabilities and the lack of
services within the public school system are set forth in 20 U.S.C.
§ 1400(c).

7
Cir. 1999), vacated on other grounds sub nom. by Jim C. v. United

States, 235 F.3d 1079 (8th Cir. 2000) (en banc).

2. Waiver of Eleventh Amendment sovereign immunity

Although Congress did not validly exercise its Fourteenth

Amendment § 5 power to abrogate states’ sovereign immunity under

the statutes at issue here, it may have validly conditioned the

states’ receipt of federal funds upon their waiving sovereign

immunity against claims brought under § 504 of the Rehabilitation

Act and the IDEA, statutes promulgated pursuant to the spending

power.8 “Incident to [the spending] power [set forth in Article I,

Section 8 of the United States Constitution], Congress may attach

conditions on the receipt of federal funds . . . .” South Dakota

8
In Reickenbacker, this court specifically reserved the
question whether states waive their sovereign immunity under § 504
of the Rehabilitation Act by accepting federal funds.
Reickenbacker, 274 F.3d at 983. The conditional waiver argument
does not apply to the ADA because the ADA is a purely prescriptive
statute that does not in any way condition the receipt of federal
funds on compliance with the Act or waiver of state sovereign
immunity. Title II of the ADA applies to public entities, as
defined in 42 U.S.C. § 12131, whether they receive federal funds or
not. Although 42 U.S.C. § 2000d-7, enacted as part of the
Rehabilitation Act Amendments of 1986, states, “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 . . .
the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance,” it
does not condition the receipt of federal funds on a state’s waiver
of sovereign immunity under the ADA; the ADA contains its own
abrogation provision in 42 U.S.C. § 12202, and according to a
fundamental canon of statutory construction, the provision of a
specific act controls over the general provision of another act
absent clear legislative intent to the contrary. Ehm v. Nat’l R.R.
Passenger Corp., 732 F.2d 1250, 1253 (5th 1984).

8
v. Dole, 483 U.S. 203, 206, 107 S. Ct. 2793, 2795-96, 97 L. Ed. 2d

171, 178 (1987). In dicta, the Supreme Court has stated that

Congress may require states to waive their sovereign immunity as a

condition for receiving federal funds. Coll. Sav. Bank, 527 U.S.

at 686-87, 119 S. Ct. at 2231, 144 L. Ed. 2d at 623; Alden v.

Maine, 527 U.S. 706, 755, 119 S. Ct. 2240, 2267, 144 L. Ed. 2d 636,

679 (1999). To do so, Congress must “manifest[] a clear intent to

condition participation in the programs funded under the [relevant]

Act on a State’s consent to waive its constitutional immunity.”

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S. Ct.

3142, 3149-50, 87 L. Ed. 2d 171, 183 (1985).

In 1985, the Supreme Court held that § 504 of the

Rehabilitation Act did not contain the unequivocal statutory

language necessary to abrogate state sovereign immunity through § 5

of the Fourteenth Amendment and also held that the Act fell far

short of manifesting the required clear intent to validly condition

a state’s receipt of federal funds on waiver of its sovereign

immunity. Id. In response to Atascadero, Congress enacted 42

U.S.C. § 2000d-7, supra n.5. This court has held that in the

context of Title IX, 42 U.S.C. § 2000d-7 clearly, unambiguously,

and unequivocally conditions a state’s receipt of federal

educational funds on its waiver of sovereign immunity. Pederson v.

La. State Univ., 213 F.3d 858, 876 (5th Cir. 2000). Today we extend

9
that portion of the Pederson holding to § 504 of the Rehabilitation

Act as well.

We reject the state’s argument that the Supreme Court’s

decision in Garrett implicitly overruled Pederson. Although

§ 2000d-7 and 42 U.S.C. § 12202 of the ADA contain nearly identical

language, supra n.5, the Supreme Court’s interpretation of 42

U.S.C. § 12202 in Garrett as an invalid abrogation clause does not

necessarily mean that § 2000d-7 must also be viewed solely as an

abrogation clause and not as a conditional waiver provision.

Congress enacted § 504 of the Rehabilitation Act pursuant to its

authority under the Spending Clause and clearly conditioned the

receipt of federal funds on compliance with the Act’s provisions.

The ADA, on the other hand, is a purely prescriptive statute that

does not in any way condition the receipt of federal funds on

compliance with the ADA or waiver of state sovereign immunity.

Thus, while § 2000d-7 and 42 U.S.C. § 12202 are identical for

purposes of § 5 of the Fourteenth Amendment, § 2000d-7 may also be

viewed as a conditional waiver provision enacted pursuant to

Congress’s spending power. Garcia v. S.U.N.Y. Health Scis. Ctr.,

280 F.3d 98, 113 (2d Cir. 2001); Stanley v. Litscher, 213 F.3d 340,

344 (7th Cir. 2000). A number of other circuits have already so

held.9

9
See, e.g., Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir.
2002); Robinson v. Kansas, 295 F.3d 1183, 1189-90 (10th Cir. 2002);
Garcia, 280 F.3d at 113; Nihiser v. Ohio Envtl. Prot. Agency, 269
F.3d 626, 628 (6th Cir. 2001), reh’g denied, 2001 U.S. App. LEXIS

10
That § 2000d-7 authorizes a conditional waiver does not,

however, equate with Louisiana’s having waived its sovereign

immunity by accepting federal funds under the Rehabilitation Act.

As the Supreme Court has stated:

There is a fundamental difference between a State’s
expressing unequivocally that it waives its immunity, and
Congress’s expressing unequivocally its intention that if
the State takes certain action it shall be deemed to have
waived that immunity. In the latter situation, the most
that can be said with certainty is that the State has
been put on notice that Congress intends to subject it to
suits brought by individuals. That is very far from
concluding that the State made an “altogether voluntary”
decision to waive its immunity.

Coll. Sav. Bank, 527 U.S. at 680-81, 119 S. Ct. at 2228, 144 L. Ed.

2d at 619. An effective waiver of a state’s sovereign immunity is

the “intentional relinquishment or abandonment of a known right or

privilege.” Coll. Sav. Bank, 527 U.S. at 682, 119 S. Ct. at 2229,

144 L. Ed. 2d at 620 (quoting Johnson v. Zerbst, 304 U.S. 458, 464,

58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938))(emphasis added).

There is no suggestion in College Savings Bank that the

preconditions for a state’s waiver of sovereign immunity differ

depending on the constitutional provision under which a federal

statute was enacted, and indeed, any such distinction makes no

sense.

26424, cert. denied, 122 S. Ct. 2588 (2002); Douglas v. Cal. Dep’t
of Youth Auth., 271 F.3d 812, 820-21 (9th Cir. 2001), reh’g en banc
denied, 285 F.3d 1226 (2002); Jim C., 235 F.3d at 1080.

11
Prior to Reickenbacker,10 the State defendants had little

reason to doubt the validity of Congress’s asserted abrogation of

state sovereign immunity under § 504 of the Rehabilitation Act or

Title II of the ADA.11 Believing that the acts validly abrogated

their sovereign immunity, the State defendants did not and could

not know that they retained any sovereign immunity to waive by

accepting conditioned federal funds. In Garcia, supra, the Second

Circuit held that although § 2000d-7 expressed Congress’s intent to

condition acceptance of federal funds on a state’s waiver of

sovereign immunity, New York did not waive its sovereign immunity

against § 504 claims by accepting federal funds from 1993 to 1995.

The court reasoned that at the time New York accepted conditioned

funds, Title II of the ADA was reasonably understood to abrogate

sovereign immunity under Congress’s Commerce Clause authority.

Garcia, 280 F.3d at 114. Likewise, though the Louisiana defendants

accepted federal funds after Seminole Tribe v. Florida, 517 U.S.

10
Although the Supreme Court’s decision in Garrett, which preceded Reickenbacker, may
have put states on notice that they retained sovereign immunity against claims brought under Title
II of the ADA or § 504 of the Rehabilitation Act, the relevant time period during which the State
defendants accepted federal funds in this case--1996 to 1998--occurred before Garrett was decided.
In Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign
immunity pursuant to § 5 of the Fourteenth Amendment because Congress did not identify a history
and pattern of unconstitutional employment discrimination by the states against the disabled and
because Title I’s accommodation duty far exceeds what is constitutionally required.
11
Because Title II of the ADA and § 504 of the Rehabilitation
Act offer virtually identical protections, the abrogation analysis
with regard to the two statutes is the same. Reickenbacker, 274
F.3d at 977 n.17; see also Garcia, 280 F.3d at 114; Hoekstra v.
Indep. Sch. Dist., 103 F.3d 624, 626 (8th Cir. 1996).

12
44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), and City of Boerne

– where the Supreme Court explained and then delineated Congress’s

power to abrogate state sovereign immunity only through § 5 of the

Fourteenth Amendment – they cannot be deemed to have anticipated,

three to five years before the fact, the Court’s decision in

Garrett and this court’s decision in Reickenbacker, especially

given this court’s decision in Coolbaugh v. Louisiana, 136 F.3d 430

(5th Cir. 1998) (holding that the ADA validly abrogated state

sovereign immunity as an exercise of Fourteenth Amendment § 5

powers), overruled by Reickenbacker, 274 F.3d 974 (5th Cir. 2001).

The Louisiana defendants’ actions were voluntary, but they did not

manifest a knowing waiver of that which they could not know they

had the power to waive.

Similarly, although 20 U.S.C. § 1403 of the IDEA, supra

n.6, constitutes a clear expression of Congress’s intent to

condition acceptance of federal funds on a state’s waiver of

sovereign immunity,12 Bradley, 189 F.3d at 753; Bd. of Educ. v.

12
The title of 20 U.S.C. § 1403, “Abrogation of state sovereign immunity,” does not limit the
provision to being only an abrogation provision. “[H]eadings and titles are not meant to take the
place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide
or a synopsis. . . . [T]hey cannot undo or limit that which the text makes plain.” Bhd. of R.R.
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S. Ct. 1387, 1392, 91 L. Ed.
1646, 1652 (1947). Despite the fact that the title of § 1403 uses the term “abrogation,” the text and
structure of the statute make clear that the voluntary acceptance of federal IDEA funds will result in
the loss of state sovereign immunity. Bradley, 189 F.3d at 753 (“When it enacted §§ 1403 and 1415,
Congress provided a clear, unambiguous warning of its intent to condition a state’s participation in
the IDEA program and its receipt of federal IDEA funds on the state’s waiver of its immunity from
suit in federal court on claims made under the IDEA.”).
Furthermore, the fact that Congress enacted § 1403 in response to Dellmuth v. Muth, 491

13
Kelly E., 207 F.3d 931, 935 (7th Cir. 1999), the State defendants

in this case did not knowingly waive their immunity by accepting

federal IDEA funds during the 1996-97 and 1997-98 school years.

Prior to September 1998, no circuit court had held that § 1403 of

the IDEA did not validly abrogate state sovereign immunity, and

this circuit did not hold so until today. Under the reasonable

belief that the IDEA validly abrogated their sovereign immunity,

the State defendants did not know that they retained any sovereign

immunity to waive by accepting federal IDEA funds during the

relevant time period.

The contrary conclusions of other circuits on the

question of waiver under § 504 of the Rehabilitation Act13 and the

IDEA14 tend to conflate the voluntariness and knowingness aspects

of waiver. The Second Circuit, however, correctly reasoned that

U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989), which held that an earlier version of the IDEA
did not evince an unmistakably clear intent to abrogate state sovereign immunity, does not limit
§ 1403 to being solely an abrogation provision and not a conditional waiver provision. Rather, the
legislative history indicates that Congress may have intended a waiver of state sovereign immunity,
despite its employment of the term abrogation. See H.R. Rep. No. 101-544, at 12 (1990), reprinted
in 1990 U.S.C.C.A.N. 1723, 1734. In the original House Report, a section entitled “Waiver of State
Sovereign Immunity” indicates that Dellmuth misinterpreted Congressional intent and suggests that
§ 1403 was enacted because it would be “inequitable to deprive beneficiaries under the statute the
opportunity to bring suit in federal court while requiring the state to conform to federal standards as
a prerequisite for federal funds.” Marie O. v. Edgar, 131 F.3d 610, 618 n.15 (7th Cir. 1997).
13
See, e.g., Koslow, 302 F.3d at 170; Robinson, 295 F.3d at
1189-90; Nihiser, 269 F.3d at 628; Douglas, 271 F.3d at 820-21; Jim
C., 235 F.3d at 1080; Stanley, 213 F.3d at 344.
14
See, e.g., Bradley, 189 F.3d at 753; Kelly E., 207 F.3d at 935.

14
[t]hese cases are unpersuasive because they focus exclusively
on whether Congress clearly expressed its intention to
condition waiver on the receipt of funds and whether the state
in fact received the funds. None of these cases considered
whether the state, in accepting the funds, believed it was
actually relinquishing its right to sovereign immunity so as
to make the consent meaningful as the Supreme Court required
in College Savings Bank, 527 U.S. at 682.

Garcia, 280 F.3d at 115 n.5; see also Douglas v. Cal. Dep’t of

Youth Auth., 285 F.3d 1226, 1228 (9th Cir. 2002) (O’Scannlain, J.,

dissenting from denial of reh’g en banc) (“Whether Congress clearly

required that a State waive its immunity before accepting federal

funds (the first inquiry) is not the same thing, however, as

whether the State clearly declared its knowing waiver (the second

inquiry).”). We therefore conclude that Pace’s claims brought

under Title II of the ADA, § 504 of the Rehabilitation Act, and the

IDEA are barred against the State defendants in this case by state

sovereign immunity.15

B. Pace’s IDEA claims

The district court decision regarding Pace’s IDEA claims

is a “mixed question of fact and law that is reviewed de novo, but

the underlying fact-findings, ‘such as findings that a disabled

student obtained educational benefits under an IEP, are reviewed

for clear error.’” Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d

341, 347 (5th Cir. 2000) (quoting Cypress-Fairbanks Indep. Sch.

15
This decision represents a Pyrrhic victory, to the extent that after Garrett, the state
defendants could knowingly waive their immunity because they could then reasonably have
anticipated the ability to preserve sovereign immunity by declining federal funds under the
Rehabilitation and IDEA statutes.

15
Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997)). We agree

with the district court that Pace’s IDEA claims were properly ruled

on in the state administrative proceedings and that no procedural

flaws infect them.

The IDEA requires states and local educational agencies

that receive federal IDEA funds to make a FAPE available to all

children with disabilities between the ages of three and twenty-

one. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). The appellees

contend that Pace’s IDEA claims are moot because he is now 23 years

old and no longer attends Bogalusa High School. Although a

plaintiff beyond the statutory age of entitlement has no right to

seek injunctive relief requiring compliance with the IDEA, Honig v.

Doe, 484 U.S. 305, 318, 108 S. Ct. 592, 601, 98 L. Ed. 2d 686, 703

(1988), he may seek compensation for violations of statutory rights

that occurred while he was entitled to them. Pihl v. Mass. Dep’t

of Educ., 9 F.3d 184, 189 (1st Cir. 1993); Lester H. v. Gilhool, 916

F.2d 865, 872 (3d Cir. 1990). Because compensatory education is an

available remedy for individuals over the age of 21 who were denied

a FAPE when they were covered by the IDEA, Pihl, 9 F.3d at 185;

Lester H., 916 F.2d at 873; see also Frazier v. Fairhaven Sch.

Comm., 276 F.3d 52, 63 (1st Cir. 2002) (compensatory education is

an available remedy after graduation), we turn to the merits of

Pace’s IDEA claims.

The IDEA imposes extensive requirements on participating

states and local agencies to safeguard the disabled child’s right

16
to a FAPE. 20 U.S.C. §§ 1414, 1415. The primary safeguard is the

IEP, Honig, 484 U.S. at 311, 108 S. Ct. at 597, 98 L. Ed. 2d at

699, a written statement prepared by a representative of the local

school district, the disabled child’s teachers and parents, and,

whenever appropriate, the child, 20 U.S.C. § 1414(d). The IEP sets

forth, inter alia, the child’s present educational performance,

annual and short-term goals, and educational and related services

that will be provided for the child to meet the stated objectives,

id., thereby tailoring the FAPE to the particular needs of the

child, Cypress-Fairbanks Indep. Sch. Dist., 118 F.3d at 247.

The FAPE described in an IEP “need not be the best

possible one, nor one that will maximize the child’s educational

potential; rather, it need only be an education that is

specifically designed to meet the child’s unique needs, supported

by services that will permit him ‘to benefit’ from the

instruction.” Id. at 247-48 (citing Bd. of Educ. v. Rowley, 458

U.S. 176, 188-89, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690, 701

(1982)). To determine whether a FAPE was available to Pace, the

court must consider (1) whether the BCSB complied with the

procedural requirements of the IDEA and (2) whether Pace’s IEPs

were reasonably calculated to enable him to receive educational

benefits. Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051, 73 L.

Ed. 2d at 712.

Regarding the first prong of the inquiry, adequate

procedural compliance with IDEA requirements will assure, in most

17
cases, that the disabled child’s right to a FAPE has been met.

Buser v. Corpus Christi Indep. Sch. Dist., 51 F.3d 490, 493 (5th

Cir. 1995). Failure to comply procedurally with the IDEA may alone

warrant finding that the defendant failed to provide the plaintiff

with a FAPE, id., but technical deviations will not render an IEP

invalid, Burilovich v. Bd. of Educ., 208 F.3d 560, 566 (6th Cir.

2000). In this case, the BCSB adequately complied with the

procedural requirements of the Act. Pace asserts that his 1996 and

1997 IEPs do not comply with IDEA requirements because they lack a

statement of goals and evaluation procedures. This is wrong.

Pace’s 1996 and 1997 IEPs list numerous goals related to English,

language arts, social studies, math, and his development of motor

and vocational skills. Although an evaluation method is not listed

for every single goal, the IEPs state that Pace’s progress will be

measured by teacher-made tests, teacher observation, report cards,

student handouts, and Pace’s work folder.

Pace next contends that the BCSB failed to comply with

the procedural requirements of the IDEA because it did not provide

him with transition services and did not invite other agencies to

his transition plan meetings.16 The record contradicts this claim.

16
Under the IDEA, Pace’s IEP must include a statement of
transition services that focuses on his course of study and that
includes, when appropriate, a statement of interagency
responsibilities. 20 U.S.C. § 1414(d)(1)(A)(vii). The IDEA
defines transition services as:

[A] coordinated set of activities for a student with a
disability that--

18
Pace’s 1996 and 1997 IEPs include Individual Transition Plans

detailing desired adult outcomes, school action steps, and family

action steps for various areas of need such as postsecondary

education, employment, living arrangements, homemaking,

financial/income, advocacy/legal, community resources, recreation

and leisure, transportation, and relationships. Further, Pace’s

IEP facilitator contacted the Office of Citizens with Developmental

Disabilities and the Louisiana Rehabilitation Services Department

to assist in providing Pace with transition services. The BCSB

also complied with the IDEA’s procedural requirements in other

respects, allowing Pace’s mother to provide meaningful input into

decisions affecting his education and to raise objections. The

BCSB participated in review of IDEA compliance at a due process

hearing.

A) is designed within an outcome-oriented process,
which promotes movement from school to post-school
activities, including post-secondary education,
vocational training, integrated employment (including
supported employment), continuing and adult education,
adult services, independent living, or community
participation;
(B) is based upon the individual student's needs,
taking into account the student's preferences and
interests; and
(C) includes instruction, related services,
community experiences, the development of employment and
other post-school adult living objectives, and, when
appropriate, acquisition of daily living skills and
functional vocational evaluation.

20 U.S.C. § 1401(30).

19
Regarding the second prong of the Rowley inquiry, this

court “set forth four factors that serve as an indication of

whether an IEP is reasonably calculated to provide a meaningful

educational benefit under the IDEA. These factors are whether (1)

the program is individualized on the basis of the student’s

assessment and performance; (2) the program is administered in the

least restrictive environment; (3) the services are provided in a

coordinated and collaborative manner by the key ‘stakeholders’; and

(4) positive academic and non-academic benefits are demonstrated.”

Houston Indep. Sch. Dist., 200 F.3d at 347-48 (quoting Cypress-

Fairbanks, 118 F.3d at 253).

Pace’s IEPs easily satisfied these factors and were

reasonably calculated to provide him with meaningful educational

benefits. First, Pace’s IEPs were individualized on the basis of

his assessment and performance, reflecting both personal needs and

goals. Pace contends that he was denied a FAPE because he was not

provided with a computer tailored to assist his special needs, but

his 1996 IEP states that he would use a computer to develop certain

skills, and a computer was later placed in his classroom.

Moreover, the hearing officer found that Pace chose to use a

typewriter instead of a computer during the 1996-97 and 1997-98

school years.

20
Second, Pace was educated in the least restrictive

environment.17 He attended his normally assigned school and was

mainstreamed with his peers as much as possible. In 1996, Pace

received homebound services only because his wheelchair was broken

and he could not attend school while it was being repaired.

Testimony at the due process hearing indicates that Pace otherwise

had no problems traversing the campus and attending his classes.

Scheduled aides as well as an on-call aide were available to help

Pace use the bathroom, and teachers helped him use the elevator and

open doors. Furthermore, Pace’s IEP facilitator testified at the

due process hearing that Bogalusa High School constructed two new

ramps, modified the elevator, and paved the old handicap parking

area; it also added handicap signs, a curb extension to the

school’s front driveway, handicap parking in front of the school,

and a handicap accessible water fountain to accommodate Pace.

Third, the key “stakeholders” provided services to Pace

in a coordinated and collaborative manner. Pace’s regular and

special education teachers, social worker, physical therapist,

17
20 U.S.C. § 1412(a)(5)(A) provides:

In general. To the maximum extent appropriate, children
with disabilities, including children in public or
private institutions or other care facilities, are
educated with children who are not disabled, and special
classes, separate schooling, or other removal of children
with disabilities from the regular educational
environment occurs only when the nature or severity of
the disability of a child is such that education in
regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.

21
occupational therapist, adaptive physical education teacher,

principal, IEP facilitator, and attorney attended his 1997 IEP

meeting. Representatives from the Office of Citizens with

Developmental Disabilities and the Louisiana Rehabilitation

Services Department were contacted and informed of Pace’s needs.

Fourth, Pace received both positive academic and non-

academic benefits from his educational program. Pace’s 1997

reevaluation report states that he was meeting his IEP goals and

had improved since the previous year. A comparison of his 1993 and

1996 California Achievement Test scores shows that he raised his

grade point level in language expression, language mechanics,

vocabulary, mathematics computation, mathematics concepts, and

study skills; although he did not raise his grade level in social

studies, science, comprehension, and spelling, “it is not necessary

for [him] to improve in every area to obtain an educational benefit

from his IEP.” Houston Indep. Sch. Dist., 200 F.3d at 350.

Physically and socially he improved in flexibility, mobility, and

trunk strength as well as in his ability to form friendships with

teachers and peers. Because the BCSB adequately complied with the

procedural requirements of the IDEA and reasonably formulated

Pace’s IEPs to afford him educational benefits, we agree with the

district court that Pace was not denied a FAPE.18

18
In his appeal brief, Pace also argues that the BCSB denied
him a FAPE by failing to provide him with a personal aide. Because
Pace did not raise this argument before the district court, he has
waived it on appeal. Lifemark Hosps., Inc. v. Liljeberg Enters.,

22
C. Pace’s non-IDEA claims

The district court granted the defendants’ motions for

summary judgment on Pace’s non-IDEA claims, concluding that they

were precluded by the IDEA proceedings. The grant of summary

judgment is reviewed de novo and may be affirmed on any ground

raised below and supported by the record. McGruder v. Will, 204

F.3d 220, 222 (5th Cir. 2000). Summary judgment is proper if the

record, viewed in the light most favorable to the non-moving party,

shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Hugh

Symons Group v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002).

Although an IDEA plaintiff can assert claims under other

statutes, including the ADA and § 504 of the Rehabilitation Act, 20

U.S.C. § 1415(l);19 Angela L. v. Pasadena Indep. Sch. Dist., 918

Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002). Nevertheless, the
record shows that scheduled aides as well as an on-call aide were
available to assist Pace.
19
20 U.S.C. § 1415(l) provides:

Rule of construction. Nothing in this chapter shall be
construed to restrict or limit the rights, procedures,
and remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42 U.S.C.A. §
12101 et seq.], title V of the Rehabilitation Act of 1973
[29 U.S.C.A. § 791 et seq.], or other Federal laws
protecting the rights of children with disabilities,
except that before the filing of a civil action under
such laws seeking relief that is also available under
this subchapter, the procedures under subsections (f) and
(g) of this section shall be exhausted to the same extent
as would be required had the action been brought under
this subchapter.

23
F.2d 1188, 1193 n.3 (5th Cir. 1990), we agree with the Sixth,

Eighth, and Tenth Circuits that when an administrative decision “is

upheld on judicial review under IDEA, principles of issue and claim

preclusion may properly be applied to short-circuit redundant

claims under other laws.” Indep. Sch. Dist. No. 283 v. S.D., 88

F.3d 556, 562 (8th Cir. 1996); see also Burilovich v. Bd. of Educ.,

208 F.3d 560 (6th Cir. 2000) (dismissing ADA, Rehabilitation Act,

and state law claims because the plaintiff was offered a FAPE under

the IDEA); Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720,

728 (10th Cir. 1996) (recognizing the similarity between the

substantive and procedural frameworks of the IDEA and § 504 and

concluding that if a disabled child is not entitled to a

neighborhood placement under the IDEA, he is not entitled to such

placement under § 504).

Pace and the United States as amicus curiae argue that

the district court improperly precluded Pace’s non-IDEA claims.

Although the United States appears to concede that preclusion is

proper when IDEA and non-IDEA claims are factually and legally

indistinct from each other, it argues that Pace’s IDEA and ADA

claims are based on different legal theories because Pace’s IDEA

claims focus on whether he received meaningful educational benefits

from his IEPs while his ADA claims address the accessibility of

Bogalusa High School.20 Pace and the United States seem to ignore

20
After carefully comparing Pace’s ADA and IDEA claims, we
conclude that the only ADA claims that were not considered in

24
the fact that Pace’s IDEA proceeding focused heavily on the

accessibility of Bogalusa High School. In fact, when Pace’s mother

initially requested a due process hearing under the IDEA, she

primarily expressed concern regarding the lack of handicap

accessible facilities at Bogalusa High School and listed among her

concerns the bathroom facilities and elevator as well as a lack of

aides, ramps, handicap accessible doors, and first floor classes

for the disabled. The hearing officer, the SLRP, the district

court, and this court have all determined that Pace was not denied

Pace’s IDEA proceedings are not properly in federal court. Pace
and the United States argue that Pace’s IDEA proceedings should not
preclude his ADA claims because the district court did not consider
whether the school’s designation and installation of certain
“accessible” facilities, such as the new ramps and handicap parking
spaces, satisfy the standards set forth in the ADA and its
implementing regulations for new construction and alteration to
existing facilities. Although IDEA plaintiffs can bring claims
under other statutes, such as the ADA, they must first exhaust
administrative remedies with regard to their claim if they are
seeking relief that is also available under the IDEA. 20 U.S.C. §
1415(l). In this case, Pace is seeking relief through his ADA
claims that is available under the IDEA. The IDEA requires new
construction and alteration of existing facilities to comply with
the requirements of either the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (appendix A
to 28 C.F.R. part 36) or the Uniform Federal Accessibility
Standards (appendix A to 41 C.F.R. part 101-19.6), the same
guidelines and standards used to determine compliance with Title II
of the ADA. 20 U.S.C. § 1404(b); 28 C.F.R. § 35.151(c). Because
Pace has not exhausted administrative remedies with regard to these
claims, they are not properly before this court. Furthermore,
Pace’s ADA claim for injunctive relief is moot because he no longer
attends Bogalusa High School, see Filardi v. Loyola Univ., No. 97
C 1814, 1998 U.S. Dist. LEXIS 3008, at *11-12 (N.D. Ill. Mar. 12,
1998), and his claim for damages fails because there is no evidence
in the record that the defendants intentionally discriminated
against him, Delano-Pyle v. Victoria County, 302 F.3d 567 (5th Cir.
2002). Rather, the BCSB bent over backward to furnish
accommodations for Pace.

25
a FAPE because of accessibility concerns. We therefore conclude

that because Pace has been given thorough access to Bogalusa High

School for purposes of complying with the IDEA’s FAPE requirement,

he has not been injured for purposes of asserting technical

violations of the ADA regarding the architectural features of the

facilities.

Pace also argues that his non-IDEA claims were improperly

dismissed because his IDEA proceedings did not determine whether

the BCSB discriminated against him in violation of the ADA and

§ 504 of the Rehabilitation Act. To maintain a cause of action

under the ADA or § 504 in this circuit, Pace must show that the

BCSB “refused to provide reasonable accommodations for [him] to

receive the full benefits of the school program.” Marvin H. v.

Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983).21

Because Pace, with the assistance and accommodations provided by

the defendants, received meaningful benefits from a FAPE, we cannot

conclude that the BCSB refused to provide reasonable accommodations

to Pace in violation of the ADA and § 504.

21
Although Marvin H. only stated the standard with regard to §
504, this circuit has held that because of similarities between
Title II of the ADA and § 504, “[j]urisprudence interpreting either
section is applicable to both.” Hainze v. Richards, 207 F.3d 795,
799 (5th Cir. 2000); see also Hoekstra v. Indep. Sch. Dist., 103
F.3d 624, 626 (8th Cir. 1996) (recognizing that the court has
“consistently applied § 504 case law to ADA cases”).

26
Rather, the BCSB provided Pace with reasonable

accommodations that comply with both ADA and § 504 standards. ADA

and § 504 regulations state that program accessibility compliance

regarding existing facilities can be achieved through “the

assignment of aides” or “any other methods that result in making

its services, programs, or activities readily accessible to and

usable by individuals with disabilities. A public entity is not

required to make structural changes in existing facilities where

other methods are effective in achieving compliance with this

section.” 28 C.F.R. § 35.150(b)(1); 34 C.F.R. § 104.22(b).

The record shows that scheduled aides as well as an on-

call aide were available to help Pace use the bathroom, and

teachers helped Pace use the elevator and open doors. With this

help, Pace did not have any problems getting around the school and

attending his classes. Therefore, even if Pace’s ADA and § 504

claims were not precluded by Pace’s IDEA proceeding, summary

judgment would still be proper because the defendants provided

reasonable accommodations for Pace through the provision of aides

and assistance that allowed him to receive the full benefits of his

school program.

III. CONCLUSION

State sovereign immunity bars Pace’s claims against the

State defendants. We therefore vacate the district court’s grant

of the State defendants’ motion for summary judgment and remand

27
with instructions to dismiss Pace’s claims against the State

defendants for lack of jurisdiction. We affirm the district

court’s dismissal of Pace’s IDEA claims against the BCSB as well as

the grant of the BCSB’s motion for summary judgment on Pace’s non-

IDEA claims.

AFFIRMED in part, VACATED in part, and REMANDED.

28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/30762. Public record. Not legal advice.