Appendix — Texas Department of Public Safety v. Espinoza (No. 05-671)

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federal funds cannot establish that a state has consented to suit in

federal court." /d at 59 (quoting Alascadero State Hosp. v.

Scanlon, 473 U.S.234, 246-247 (1985)). The court disagrees.

As noted above, the Court's statement that the receipt of federal

funds does not alone establish a state's consent to be sued in federal

court is a quote from Afascadero State Hospital. \n Atascadero, the

Court held that Congress had not unequivocally waived states’

sovereign immunity in the Rehabilitation Act. /d at 235. In

response to the Supreme Courts decision in Atascadero State

Hospital, however, Congress amended the Rehabilitation Act by

enacting the “equalization provision, codified at 42 U.S.C. §

2000d-7, which “craft{[ed] an unambiguous waiver of the States

Eleventh Amendment immunity." Lane v. Pena, 518 U.S. 187, 199

(1996). That section provides in pertinent part:

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]. . . the

Age Discrimination Act of1975 [42 U.S.C.A. § 6101], .

. . or the provisions of any other Federal statute

prohibiting discrimination by recipients of Federal

financial assistance.

42 U.S.C. § 2000d-7 (1994).

While the Fifth Circuit in Reickenbacker declined to address

the issue of whether receipt of federal funds waives state sovereign

immunity,’ it noted that the Supreme Court in Lane held that 42

3. In Reickenbacker, the Fifth Circuit explicitiy declined to consider

plaintiffs’ argument that Louisiana had waived its immunity under the

Rehabilitation Act when it accepted federal funds, because plaintiffs had

failed to raise the issue in the district court. Reickenbacker, 274 F.3d at

984.

U.S.C. § 2000d-7 created a waiver of Eleventh Amendment

immunity with respect to those statutes listed in Section 2000d-7.

Reickenbacker, 274 F.3d at 984 n.73. Therefore, Lane still reflects

the current law in this circuit until the Fifth Circuit addresses the

issue. Assuming Espinoza's allegation that DPS receives federal

funds is true, as the court must when considering a motion to

dismiss, then DPS waived its Eleventh Amendment immunity from

claims for money damages or injunctive relief under Section 504 of

the Rehabilitation Act by accepting federal funds.‘

B. Title II of the ADA

Espinoza acknowledges that her ADA claim against DPS is

barred by immunity but requests that she be allowed to amend her

complaint to meet the Ex Parte Young’ exception allowing suits

against state officials for alleged violations of federal law. "To

meet the Ex parte Young exception, a plaintiff's suit alleging a

federal law violation must be brought ayainst individual persons in

their official capacities as agents of the state, and the relief sought

must be declaratory or injunctive in nature and prospective in

effect." Aguilar v. Texas Dep 't of Criminal Justice, 160 F.3d 1052,

1054 (Sth Cir. 1998). Accordingly, Espinoza requests she be

allowed to amend her complaint to join the current director of DPS,

Tommy Davis, in his official capacity and to strike her request for

monetary damages, leaving only her request for prospective

4. Since Reickenbacker, two other district courts have addressed

applying the holding of Reickenbacker to a Rehabilitation Act claim and

have held similarly that receipt of federal funds waives sovereign

immunity. See August v. Mitchell, 205 F. Supp.2d $58, 561 (E.D. La.

2002); Johnson v. Louisiana, No. 01-2002,2002 W 33645, *5S (RD. La.

Jan.18, 2002). The court finds the reasoning set forth in these cases

persuasive.

5. Ex parte Young, 209 U.S. 123 (1968).

injunctive relief and attorney's fees.° In response, DPS urges the

court to not grant Espinoza's motions to amend, because they were

filed after ihe March 12, 2001 deadline in the court's scheduling

order. The court again disagrees.

Federal Rule of Civil Procedure 15(a) provides that leave to

amend a pleading “shall be freely given when justice so requires.”

Fed. R. Civ. P. 15(a). The federal rules permit liberal pleading and

amendment to facilitate adjudication of the merits by avoiding

excessive formalism. See Lowrey v. Texas A & M Univ., 117 F.3d

242, 245 (Sth Cir. 1997). The decision whether to grant leave lies

within the sound discretion of the trial court. Louisiana v. Litton

Mortgage Co., 50 F.3d 1298, 1302-03 (Sth Cir. 1°%5). Leave to

amend should be given in the absence of “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice

to the opposing party, or futility of amendment." /n re Southmark

Corp., 88 F.3d 311, 314 (Sth Cir. 1996), cert. denied, 519 U.S.

1057 (1997).

On December 12, 2000, the court entered a scheduling order

requiring the parties to file all motions to amend and motions to

——jein-—additiona! parties by no later than March 12, 2001. On

November 14, 2001, DPS moved to amend its answer to include the

defense of immunity. On December 5, 2001, Espinoza filed her

First Motion to Amend Complaint, Join Additional Party, and Brief

in Support. On February 11, 2002, she filed a Motion to Substitute

Amended Complaint to substitute Tommy Davis, the current DPS

director, for Dudley Thomas, the former director of DPS listed in

Espinoza’'s first motion to amend. All of these motions, including

6. Espinoza’s motion includes additional amendments, but they are

not relevant to the court's analysis of this issue.

DPS’, were filed after the court's March 12, 2001 deadline;

however, the deadlines for discovery and all other proceedings set

forth in the court's scheduling order were stayed by the court's order

of December 20, 2001 by request of the parties. Thus, DPS'

argument that Espinoza's motions were untimely is without merit.

Moreover, the court finds it inconsistent with fair play for DPS

to seek denial of Espinoza's motion to amend for “untimeliness"

when the court allowed it to amend well past the deadline for

amendment of pleadings. Although DPS opposes Espinoza's

proposed amendments, it has failed to demonstrate how the

amendment would unduly prejudice its case or how any delay was

either undue or in bad faith. Espinoza, on the other hand, contends

that the amendments in no way change or add to the relief sought,

require no additional discovery, and will not require extension of

the court's scheduling deadlines. The court agrees.

Absent evidence of bad faith, prejudice or undue delay, and in

light of the liberal amendment policies of the federal rules, the court

must grant Espinoza’s motions to amend her complaint unless it can

be shown that the proposed amendments are a futility. The court

therefore considers DPS' arguments that Espinoza should not be

allowed to amend her complaint because even with the proposed

amendments, she cannot meet the Ex Parte Young exception to its

Eleventh Amendment immunity for the following reasons: (1) her

remedies for damages and attorney's fees exceed the prospective

injunctive relief allowed by Ex Parte Young, (2) she failed to allege

no state forum is available; (3) the injunctive relief requested is

inappropriate because it involves a "special sovereignty interest" of

the State; and (4) the Fifth Circuit does not recognize the

"deliberate indifference" standard alleged.

1. Remedies for Damages and Attorney's Fees

DPS first contends that only injunctive relief is permitted under

Ex Parte Young and that Espinoza's request for monetary damages

and attorney's fees therefore exceeds the relief allowable. The court

disagrees. Espinoza’s amended complaint excluded money

damages and, contrary to DPS' assertion, the United States Supreme

Court has held that attorney's fees are not subject to the Eleventh

Amendment's constraints on aclions for damages because they

constitute "reimbursement of ‘expenses incurred in litigation

seeking only prospective relief,’ rather than ‘retroactive liability for

prelitigation conduct.’” Missouri v. Jenkins by Agyei, 491 U.S. 274,

278 (1989) (quoting Hutto v. Finney, 437 U.S. 678, 695 (1979)).

2. Failure to Allege Unavailability of State Forum

DPS next cites /daho v. Coeur d'Alene Tribe, 521 U.S. 261

(1997), arguing that Espinoza failed to allege that no state forum

was available to vindicate her federal interests. DPS further

maintains that there is a state forum in which Espinoza could bring

her-claim the Texas Commission on Human Rights Act. As

Espinoza notes, however, the Court's opinion in /daho v. Coeur

d'Alene Tribe was a plurality opinion in which Justice Kennedy was

joined only by Chief Justice Rehnquist. A majority of the Court in

Justice O'Connor's concurring opinion expressly disapproved of the

unavailability of a state forum prerequisite, because it constituted

a marked departure from the Court's early Young cases. /d. at 292

(O'Connor, J., concurring, joined by Scalia and Thomas, J.J.) ("Not

only do our early Young cases fail to rely on the absence of a state

forum as a basis for jurisdiction, but we also permitted federal

actions to proceed even though a state forum was open to hear the

plaintiff's claims. ). Moreover, the Texas Commission on Human

Rights Act deals with employment discrimination, which is not the

basis of Espinoza's claim. See Tex. Labor Code Ann. § 21.001

(Vernon 1996).

3. Special Sovereignty Interest

DPS contends that the Ex Parte Young exception is never

appropriate where, as here, the injunctive relief sought interferes

with a state's “special sovereignty interest.” Specifically, DPS

argues that under Texas state law, it is vested with the power and

authority to issue drivers licenses to qualifying applicants" and it

has a "special sovereignty interest" in regulating drivers license

procedures. DPS therefore contends that it would be inappropriate

for the court to grant Espinoza’s injunctive relief; that is, for the

court to determine who are "qualified" d- ‘ers in the State of Texas,

or what testing facilities and procedures should be employed by

DPS to make that determination. In response, Espinoza argues that

DPS' characterization of her suit and the relief sought is incorrect.

According to Espinoza, she only requests that DPS be ordered or

required to follow its written regulations and enjoined from treating

persons with disabilities in a discriminatory manner when renewing

drivers licenses. The court agrees that Espinoza's complaint as

amended seeks prospective injunctive relief as contemplated by Ex

Parte Young to address an ongoing violation of federal law by

prohibiting further discriminatory action. Verizon Maryland, Inc.

v. Public Serv. Comm'n, 122 S .Ct. 1753, 1760 (2002) ("In

determining whether the doctrine of Ex Parte Young avoids an

Eleventh Amendment bar to suit, a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly

characterized as prospective.’”) (quoting Coeur d'Alene Tribe of

Idaho, 521 U.S. at 296).

4. Deliberate Indifference Standard

Finally, DPS argues that that the Fifth Circuit does not

recognize the “deliberate indifference” standard Espinoza alleged

in her complaint. Espinoza does not allege a claim urder this

standard in her amended complaint. The court therefore i:zed not

address the issue. For the reasons set forth herein, the court cannot

say the amendment of Espinoza's complaint would be futile.

Accordingly, denying her leave to amend on this ground would be

inconsistent with Rule |5(a) and an abuse of the court's discretion.

IV. Conclusion

The court concludes that DPS' acceptance of federal funds,

waived its Eleventh Amendment immunity under section 504 of the

Rehabilitation Act. Accordingly, DPS' motion to dismiss

Espinoza's claims against DPS under section 504 of the

Rehabilitation Act is denied and Defendant's Motion to Dismiss

Espinoza's claims against DPS under Title II of the ADA is denied

as moot.

Having found no evidence of undue delay, bad faith or dilatory

motive on the part of Espinoza, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to DPS, or

futility of amendment, the court grants Plaintiff's Motion to

Substitute Amended Complaint and denies Plaintiff s First Motion

to Amend Complaint and Join Additional Party as moot. Plaintiff

shall file an original copy of Plaintiff's Substituted Amended

Complaint within ten days of this order and Plaintiff's Original

Complaint is hereby withdrawn once Plaintiff files her Substituted

Amended Complaint, which will take the place of the withdrawn

complaint.

in light of the court's ruling in this matter, the court's order of

December 4, 2001, staying all proceedings is lifted. Counsel for

the parties shall confer and submit a joint status report with respect

to the following: (a) time needed for additional discovery; (b) a trial

date and estimated length of trial; (c) prospects for settlement,

whether some type of Alternative Dispute Resolution is appropriate,

and, if so, when it should take place; and (d) any other matter that

would aid the disposition of this matter. The joint status report

shal! be submitted by no later than October 16, 2002.

It is so ordered this _/s/ 30th day of September, 2002.

/s/ Sam A. Lind

Sam A. Lindsay

United States District Judge

United States Court of Appeals

Fifth Circuit

FILED

March 8, 2005

Charles R. Fulbruge III

Clerk

REVISED MARCH 16, 2005

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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, and THE STATE OF LOUISIANA,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

Before KING, C? '-f Judge, JOLLY, HIGGINBOTHAM, DAVIS,

JONES, SMIT?r. \ {ENER, BARKSDALE, GARZA, DeMOSS,

BENAVIDES, S11 & WART, DENNIS and PRADO, Circuit Judges. '

DAVIS and WIENER, Circuit Judges:

Travis Pace (Pace) appeals the district court's dismissal of his

claim under the Individuals with Disabilities Education Act (IDEA)

and the district court's order granting summary judgment in favor

of defendants on Pace's claims under Title I] of the Americans with

Disabilities Act (ADA or Title II) and § 504 of the Rehabilitation

Act (§ 504). The panel of this court which considered Pace’s appeal

concluded that the State of Louisiana, the Louisiana Department of

Education and the Louisiana State Board of Elementary and

Secondary Education (State Defendants) were entitled to sovereign

immunity under the Eleventh Amendment from all of Pace's claims.

The panel then affirmed the district court's dismissal of Pace's

claims against the Bogalusa City School Board. We took this case

en banc, first to consider whether the state defendants were entitled

to immunity from Pace's claims under the Eleventh Amendment

and, second, to consider the merits of Pace's claims under the

IDEA, ADA and § 504. For the reasons discussed below, we now

conclude that the State waived its right to immunity under the

Eleventh Amendment and therefore the State defendants are not

entitled to immunity from Pace's § 504 and IDEA claims. On the

merits, we conclude that the district court did not err in dismissing

Pace's IDEA claims and that the district court correctly concluded

that the dismissal of Pace’s IDEA claims precluded his

inaccessibility claims under the ADA and § 504. We reject Pace’s

argument that because different legal standards control his

inaccessibility claims under ADA/504, those claims were not

1. Judge Clement recused herself and did not participate in this

decision.

litigated in his IDEA action. A 1997 amendment and implementing

regulations to the IDEA expressly require schools to comply with

the identical standards for new construction that ADA/504 and their

regulations require.

I, FACTUAL AND LEGAL BACKGROUND

The factual and procedural background of this case is

accurately and succinctly presented in the panel opinion:

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 System’ provided Pace

with a FAPE in compliance with the IDEA, and the State

Level Review Panel (SLRP) affirmed the hearing officer's

decision.

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

2. The hearing examiner made hearings with regard to the Bogalusa

City Schools System. In federal court, Pace brought suit against the

Bogalusa City School Board. For all practical purposes, these two entities

are the same and will be referred to as "BCSB."

Americans with Disabilities Act (ADA), 42 U.S.C. §

12132. The OCR and 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.’ 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.

Il. STATE IMMUNITY UNDER THE ELEVENTH

AMENDMENT

We consider first the defendants’ arguments that they are

entitled to sovereign immunity from Pace's claims under the

Eleventh Amendment. At the core of this Eleventh Amendment

2. We do not consider Pace's § 1983 claim and state law claims

because he did not brief them on appeal. L & A Contracting Co. v. S.

Concrete Servs., Inc..17 F.3d 106, 113 (5" Cir. 1994); F.R.A-P.

28(aX9KA).

dispute is the question whether, when Louisiana accepted particular

federal funds, it waived the immunity afforded it by the Eleventh

Amendment to suits under § 504 and the IDEA.‘

A. THE TEXT AND FUNCTION OF THE ELEVENTH AMENDMENT

We start, as always, with the text. The Eleventh Amendment

states:

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.’

These forty-three words—adopted in swift response to the Supreme

Court's holding in Chisholm v. Georgia’ that Article III permitted

a state to be sued in federal court’ — protect states from such

4. The waiver argument does not apply to Title Il because the ADA

does not condition the receipt of federal funds on compliance with the

Act or waiver of Eleventh Amendment immunity. Rather, Title I] applies

to public entities regardless of whether they receive federal funds. See 42

U.S.C. § 12132.

5. U.S. CONST. amend. XI.

6. 2 US. (2 Dall.) 419 (1793).

7. See United States ex rel. Foulds vy. Texas Tech Univ.,171 F.3d

279, 286 n.9 (Sth Cir. 1999) (“The Supreme Court's interpretation of

Article III powers in Chisholm, prompted Congress’ ‘outraged reversal’

of that decision through enactment of the Eleventh Amendment.") (citing

DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME

COURT: THE FIRST HUNDRED YEARS 99 (1985)).

litigation.’ The protection thus afforded, however, has long since

been expanded beyond the plain text of the Amendment. “Though

its precise terms bar only federal jurisdiction over suits brought

against one State by citizens of another State or foreign state,” the

Supreme Court's interpretation of the Amendment has “recognized

that the Eleventh Amendment accomplished much more.” The

immunity afforded to states under the Eleventh Amendment

"implicates the fundamental constitutional balance between the

Federal Government and the States.”"° Therefore, at its core, the

Eleventh Amendment serves "as an essential component of our

constitutional structure.”'!

Nevertheless, Eleventh Amendment immunity is not absolute.

A number of different circumstances may lead to a state’s litigating

in federal court absent Eleventh Amendment immunity. We begin

with an overview of the Court's current framework for assessing

when a suit against a state may proceed in federal court.

B. EXCEPTIONS TO ELEVENTH AMENDMENT IMMUNITY

There are two fundamental exceptions to the general rule that

bars an action in federal court filed by an individual ag, .nst a state.

First, a state's Eleventh Amendment immunity may be abrogated

when Congress acts under § 5, the Enforcement Clause of the

8. For present purposes, we ignore any role the Eleventh

Amendment plays in regulating whether states may be sued in state

courts.

9. College Savin ank v. Florida Prepaid Postsecon

Expense Bd., 527 U.S. 666, 669 (1999).

10. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985).

11. Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

Fourteenth Amendment."? Second, a state may consent to suit in

federal court."

1. Abrogation under § 5 of the Fourteenth Amendment

Congress can single-handedly strip the states of their Eleventh

Amendment immunity and thereby authorize federal court suits by

individuals against the states. When Congress does this, it is

exercising its power to abrogate Eleventh Amendment immunity.

In Reickenbacker v. Foster," we examined the Supreme Court's

cases concerning congressional abrogation of Eleventh Amendment

immunity under § 5 of the Fourteenth Amendment and derived the

following test for determining whether a federal statute is a valid

exercise of Congress's power to enforce the Fourteenth Amendment

and, consequently, whether the statute abrogates Eleventh

Amendment immunity: (1) The statute must contain an

unequivocal statement of congressional intent to abrogate; (2)

Congress must have identified a history and pattern of

12. U.S. CONST. amend. XIV, § 5 ("The Congress shall have power

to enforce, by appropriate legislation, the provisions of this article.”).

13. The term “abrogation” is not synonymous with “consent” or

“waiver.” When a state consents to suit or waives its Eleventh

Amendment immunity, it knowingly and voluntarily forfeits the

immunity's protections. In contrast, when Congress acts under its

Fourteenth Amendment power to abrogate, the state has no choice.

14. 274 F.3d 974 (Sth Cir. 2001). The continuing validity of

Reickenbacker following the Supreme Court's decision in Tennessee vy.

Lane,!24 S. Ct. 1978 (2004), is uncertain. At the very least, its holding

has been overruled as to Title Il claims implicating a person's

fundamenta! right of access to the courts. In addition, after Lane we do

not look solely at the state level for a history and pattern of

unconstitutional action, we also examine discrimination by nonstate

government entities. Lane,!24 S. Ct. at 1991 0.16.

unconstitutional action by the states; and (3) the rights and remedies

created by the statute must be congruent and proportional to the

constitutional violation(s) Congress sought to remedy or prevent."

If these three requirements are satisfied, states are subject to federal

jurisdiction in suits under the statute adopted pursuant to § 5,

regardless of any absence of consent.

2. Waiver of Immunity by Consent

Either in the absence of § 5 abrogation or in addition to it, a

state always has the prerogative of foregoing its protection from

federal court jurisdiction under the Eleventh Amendment." A

State's consent to suit must be both knowing and voluntary. That

consent must always be "knowing and voluntary” follows from

College Savings Bank, in which the Supreme Court cited Johnson

vy. Zerbst, to define what constitutes effective waiver.'’ Waiver is

effective when it is the "intentional relinquishment or abandonment

of a known right or privilege."* The first part, “intentional

relinquishment,” captures the principle of voluntariness; and the

1S. Id, at 977, 981-83

16. College Savings Bank, 527 U.S. at 670; Idaho v, Coeur d'Alene

Tribe of Idaho, 521 U.S. 261, 267 (1997) ("[A] State can waive its

Eleventh Amendment protection and allow a federal! court to hear and

decide a case commenced or prosecuted against it."); Great N. Life Ins.

Co. vy. Read, 322 U.S. 47, 54 (1944) (“The immunity may, of course, be

waived.”), Clark v. Barnard, 108 U.S. 436, 447 (1883) (“The immunity

from suit belonging to a State, which is respected and protected by the

Constitution within the limits of the judicial power of the United States,

is a personal privilege which it may waive at pleasure.”).

17. 527 U.S. at 682 (citing Johnson v. Zerbst, 304 U.S. 458, 464

(1938)).

18. Id. (quoting Zerbst, 304 U.S. at 464)

second part, "known right or privilege,” captures the element of

knowingness.

When Congress conditions the availability of federal tunds on

a State's waiver of its Eleventh Amendment immunity, we employ

a five-prong test derived from the Supreme Court's definitive

spending power case, South Dakota v.Dole,'® to ascertain the

validity of the waiver. In Dole, South Dakota challenged a

congressional statute that conditions the states’ receipt of federal

highway funds on their adoption of the minimum drinking age of

twenty-one. South Dakota argued that the statute exceeded

Congress's spending power and violated the Twenty-First

Amendment.” The Court rejected this argument, noting that even

though Congress is prohibited by the Twenty-First Amendment

from directly regulating the distribution of alcoholic beverages, the

Spending Clause authorizes it indirectly to entice states to raise

their drinking age by dangling the proverbial carrot of federal

dollars.”"

Dole embodies an expansive interpretation of Congress's

spending authority. Indirect persuasion is constitutional, reasoned

the Court, because the spending power "is not limited by the direct

19. 483 U.S. 203 (1987).

20. Id, at 205.

21. Id. at 206. See also New York v. United States, 505 U.S. 144,

161-69 (1992) (holding that although the Tenth Amendment prevents

Congress from directly commandeering state officials into regulating

radioactive waste, Congress can “hold out incentives to the States as a

method of influencing a State's policy choices").

grants of legislative power found in the Constitution.” Congress

can, therefore, validly use its spending power to legislate conditions

on the disbursement of federal funds even though those conditions

would be unconstitutional if enacted as direct prohibitions.” It goes

without saying that, because states have the independent power to

lay and collect taxes, they retain the ability to avoid the imposition

of unwanted federal regulation simply by rejecting federal funds.

Nevertheless, Congress's power to effect policy through the

exercise of its spending power is not unlimited. Dole announced the

restrictions that contro] such exercise: (1) Federal expenditures

must benefit the generai welfare; (2) The conditions imposed on the

recipients must be unambiguous; (3) The conditions must be

reasonably related to the purpose of the expenditure, and (4) No

condition may violate any independent constitutional prohibition.”

In addition, the Dole Court recognized a fifth requirement that the

condition not be coercive: "[I]n some circumstances the financial

22. Dole, 483 U.S. at 207 (quoting United States v. Butler, 297 U.S.

1, 66 (1936)). See also United States v. Lipscomb, 299 F.3d 303, 319

(Sth Cir. 2002) ("Congress's spending power, like its power to tax, is ‘to

provide for the general welfare,’ and is therefore untrammeled by the

specific grants of legislative power found elsewhere in Article I, Section

8.") (citation omitted).

23. See Dole,483 U.S. at 206-07; United States v. Am. Library

Ass'n, Inc.,539 U.S. 194, 203 (2003) ("Congress has wide latitude to

attach conditions to the receipt of federal assistance in order to further its

policy objectives.").

24. Id, at 207-08. See also New York, 505 U.S. at 171-72.

inducement offered by Congress might be so coercive as to pass the

point at which ‘pressure turns into compulsion."””

Thus, Dole makes clear that, as long as its framework is

employed, congressional spending programs that are enacted in

pursuit of the general welfare and unambiguously condition a state's

acceptance of federal funds on reasonably related requirements are

constitutional unless they are either (1) independently prohibited or

(2) coercive. When the condition requires a state to waive its

Eleventh Amendment immunity, Dole’s requirement of an

unambiguous statement of the condition and its proscription on

coercive inducements serve a dual role because they ensure

compliance with College Savings Bank's requirement that waiver

of Eleventh Amendment immunity must be (a) knowing and (b)

voluntary.

i. Clear Statement: “Knowing”

In Pennhurst State Sch. & Hosp. v. Halderman,” the Court

analyzed Congress's power to impose conditions on a state's receipt

of federal funds and pronounced:

There can, of course, be no knowing acceptance if a State is

unaware of the conditions or is unable to ascertain what is

expected of it. Accordingly, if Congress intends to impose a

condition on the grant of federal moneys, it must do so

unambiguously... By insisting that Congress speak with a clear

a ) on tans choice | a

cognizant of the consequences of their participation.”

25. 483 U.S. at 21! (quoting Steward Machine Co. v. Davis, 301

U.S. 548, 590 (1937)).

26. 451 U.S. 1 (1981).

27. Id, at 17 (emphasis added) (citations omitted).

Thus, we know that this stringent clear-statement rule ensures that

when a state foregoes its Eleventh Amendment immunity in

exchange for federal funds, it does so "knowingly. In our reading

of Pennhurst, the only "knowledge" that the Court is concerned

about is a state's knowledge that a Spending Clause condition

requires waiver of immunity, nota state's knowledge that it has

immunity that it could assert. At bottom, we conclude that if

Congress satisfies the clear-statement rule, the knowledge prong of

the Spending Clause waiver analysis is fulfilled.

If the clear-statement rule is satisfied, a state's actual

acceptance of clearly conditioned funds is generally voluntary. The

only exception to this presumption arises if the spending program

itself is deemed “coercive,” for then a state's waiver is, by

definition, no longer voluntary.

In summary, the Supreme Court has articulated two ways that

a state can be subject to an individual's suit in federal court,

regardless of the Eleventh Amendment. First, Congress may

abrogate state immunity. Second, the state may waive its Eleventh

Amendment immunity by consent. If waiver results from

participation in a Spending Clause program, the program must be

a valid exercise of Congress's spending power; the waiver condition

must satisfy the clear-statement rule (thereby ensuring that the

state's waiver is"knowing"); and the program must be non-coercive

(automatically establishing that the waiver is voluntary”).

C. WAIVER OF ELEVENTH AMENDMENT IMMUNITY PURSUANT TO

CONDITIONAL SPENDING PROGRAMS

Keeping firmly in mind the Court's current framework for

analyzing when a state may be subject to suit in federal court, we

28. See also Dole, 483 U.S. at 207.

turn to the particular facts and legal contentions of the instant case.

The two statutory provisions at issue purport to have conditioned

Louisiana's receipt of federal funds on its waiver of Eleventh

Amendment immunity to suits under § 504 and the IDEA.

Specifically, 42 U.S.C. § 2000d-7 conditions a state's receipt of

federal money on its waiver of Eleventh Amendment immunity to

actions under § 504 and other federal anti-discrimination statutes:

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 [X 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.”

Similarly, 20 U.S.C. § 1403” conditions a state's receipt of federal

IDEA funds on its consent to suit under that Act.*' Applying the

29. 42 U.S.C. § 2000d-7(a)(1). Congress enacted § 2000d-7 in

response to Atascadero, in which the Court held that the Rehabilitation

Act neither abrogated Eleventh Amendment immunity nor effectively

conditioned states’ receipt of federal funds on a waiver of that immunity.

Atascadero, 473 U.S. at 245-47. According to the Court, the statute did

not contain a clear statement of congressional intent either to abrogate or

to require a waiver. Id.

30. 20 U.S.C. § 1403(a) reads as follows: "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."

31. The section was passed by Congress in response to Dellmuth v.

Muth, 491 U.S. 223 (1989). In Delimuth, the Supreme Court held that

the predecessor to the IDEA (the Education of the Handicapped Act)

framework set forth in Dole, we proceed to determine whether

Louisiana validly waived its immunity when it accepted the

conditioned federal dollars.

Louisiana does not dispute that the first and third prongs of the

Dole analysis, i.c., whether the Spending Clause statute at issue was

enacted in pursuit of the general welfare, and whether the condition

is sufficiently related to the federal interest in the program funded,”

are satisfied here. Consequently, we restrict our consideration to

the three remaining prongs of the Dole test. Following prior panels

of this court,” and every circuit (but one) that has made these

lacked a sufficiently clear statement of Congressional intent to abrogate

Eleventh Amendment immunity to claims under the statute. Id. at 232.

The conditional-spending issue was not raised in the case.

32. In its en banc brief, Louisiana mentioned a relatedness challenge

to § 2000d-7, but that argument was not presented to the panel, and

Louisiana's en banc brief fails to develop it beyond a bare assertion.

Thus, Louisiana has waived its relatedness challenge. See L & A

Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (Sth Cir.

1994), FED. R. APP. P. 28(aX9) A); cf. Koslow v. Pennsylvania, 302

F.3d 161, 175-76 (3d Cir. 2002) (rejecting a relatedness challenge to the

validityof a state's conditional-spending waiver of immunity to § 504

Suits).

33. E.g., Pederson v. Louisiana State Univ., 213 F.3d $58, 876 (Sth

Cir. 2000) ("A state may waive its immunity 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.”) (citation and quotation marks omitted), id

at 875 (holding that “in enacting § 2000d-7 Congress permissibly

conditioned a state university's receipt of [federal] funds on an

unambiguous waiver of the university's Eleventh Amendment immunity,

and that, in accepting such funding, the university has consented to

litigate private suits in federal court.”)(internal punctuation and citation

inquiries, we conclude that the statutes at issue validly conditioned

Louisiana's receipt of these federal funds on its waiver of Eleventh

Amendment immunity.”

First, we determine whether the conditions contained in 42

U.S.C. § 2000d-7 and 20 U.S.C. § 1403 are unambiguous and,

omitted) (emphasis added). Cf. AT&T Comm. vy. BellSouth Telecom.

Inc., 238 F.3d 636, 645 (Sth Cir.), reh'g en banc denied,252 F.3d 437

(2001) ("[A]}fter College Savings, Congress may still obtain a non-verbal

voluntary waiver of a state's Eleventh Amendment immunity, if the

waiver can be inferred from the state’s conduct in accepting a gratuity

after being given clear and unambiguous statutory notice that it was

conditioned on waiver of immunity.”).

34. Eight circuits have reached this conclusion in § 504 cases. See

Nieves -Marquez v . Puerto Rico, 353 F.3d 108, 129-30 (Ist Cir. 2003),

A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 244-51 (3d Cir. 2003) ;

Bruggeman vy. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003); Ga. ‘tty.

Univ, of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292-93 (11th

Cir. 2003) (per curiam); Lovell v. Chandler, 303 F.3d 1039, 1051-S2(9th

Cir. 2002); Koslow, 302 F.3d at 172 (3d Cir.); Ro _ason vy. Kansas, 295

F.3d 1183, 1189-90 (10th Cir. 2002); Nihiser v. Ohio E.P.A., 269 F.3d

626, 628 (6th Cir. 2001); Jim C. v. Arkansas Dep't of Educ., 235 F.3d

1079, 1081 (8th Cir. 2000) (en banc); Stanley v. Litscher, 213 F.3d 340,

344 (7th Cir. 2000). Other courts of appeals have reached the same

conclusion for the other predicate statutes of § 2000d-7. See, ¢.g., Cherry

y. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541, 553-55 (7th Cir.

2001) (Title IX); Sandoval v. Hagan, 197 F.3d 484 (1 Ith Cir. 1999) (Title

V1), rev'd in part on other grounds, 532 U.S. 275 (2001); Litman v.

George Mason Univ., 186 F.3d 544 (4th Cir. 1999) (Title IX). Circuits

have reached this conclusion about the IDEA, as well. See, e.g., M.A. ex

rel. E.S. v. State-Operated Schoo! Dist., 344 F.3d 335, 351 (3d Cir.

2003), Oak Park Bd. of Educ. v. Kelly E., 207 F.3d 931, 935 (7th Cir.

2000).

consequently, whether Louisiana knowingly waived its immunity

to actions under § 504 and the IDEA by accepting federal funds.

1. Isthe Clear-Statement Rule Satisfied Absent Use of the

Words "Waiver" or "Condition"?

In the face of the unequivocal language of § 2000d-7 to the

effect 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 § 504 of th* Rehabilitation Act of

1973, Louisiana argues legalistically tha:, because Congress did

not use the words “waiver” or "condition," the condition fails the

clear-statement rule.** This argument — that absent talismanic

incantations of magic words, there can be no waiver — is little

more than frivolous.”’ The Supreme Court has already noted, albeit

in dicta, that in § 2000d-7 "Congress sought to provide the sort of

unequivocal waiver that our precedents demand.”* More

importantly, our decision in Pederson v. Louisiana State University,

35. 42 U.S.C. § 2000d-7 (2000).

36. In its amicus brief, the State of Texas points to other statutes that

have used such terms.

37. Cf, Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)

("The question of the constitutionality of action taken by Congress does

not depend on recitals of the power which it undertakes to exercise.").

38. Lane v. Pena, 518 U.S. 187, 198 (1996). See also id. at 200

(noting “the care with which Congress responded to ... Atascadero by

crafting an unambiguous waiver of the States’ Eleventh Amendment

immunity”).

which we remain convinced was correctly decided, forecloses this

line of attack.”

2. Does the Presence of Abrogation Language Preclude a

Finding of Waiver?

Louisiana also argues that because § 2000d-7 and § 1403 fail

as § 5 attempts by Congress to abrogate Eleventh Amendment

immunity, the same provisions of those statutes cannot satisfy the

clear-statement rule for Spending Clause purposes. We reject

Louisiana's attempt to pigeonhole this statutory language in

mutually exclusive terms.

We held in Pederson that, in § 2000d-7, Congress “successfully

codified a statute which clearly, unambiguously, and unequivocally

conditions receipt of federal funds under Title [IX on the State's

waiver of Eleventh Amendment Immunity.” And in Lesage v.

Texas,*' we ruled that "Congress unquestionably enacted 42 U.S.C.

§ 2000d-7 with the ‘intent’ to invoke the Fourteenth Amendment's

congressional enforcement power. The purpose of the provision,

enacted in 1986, was to legislatively overrule the result in

Atascadero.” Thus, in Pederson, we recognized § 2000d-7 as a

39. 213 F . 3d at 875-76 (adopting the holding and reasoning of

Litman v. George Mason Uniy., 186 F.3d 544 (4th Cir. 1999)).

40. 213 F.3d at 876.

41. 158 F.3d 213 (Sth Cir. 1998), overruled on other grounds, 528

U.S. 18 (1999).

42. Id. at 218. See also United States v. Wells, 519 U.S. 482, 495

(1997) (reiterating the baseline presumption that Congress expects its

Statutes to be read in conformity with the Supreme Court's precedents)

clear statement for waiver vis-a-vis the Spending Clause, and in

Lesage, we recognized that the very same provision could satisfy

abrogation under § 5 of the Fourteenth Amendment.

Just because particular language may or may not function with

equal efficacy under both exceptions to Eleventh Amendment

immunity, does not mean that it fails the clear-statement rule. As

we concluded in AT&T, the rule requires only that “the state has

been put on notice clearly and unambiguously by the federal statute

that the state's particular conduct or transaction will subject it to

federal court suits brought by individuals.” Congress need not

declare in the statute whether it is proceeding under abrogation or

waiver, or both. For the purpose of the clear-statement rule, §

2000d-7 — janus-faced as it may be — poses no constitutional

impediment to our finding valid waiver by consent. We conclude

that the conditions contained in § 2000d-7 and § 1403 are

unambiguous, as required by Dole.

Undaunted, Louisiana still contends that it did not knowingly

waive its Eleventh Amendment immunity. Louisiana and the

dissent rely on Garcia v. S.U.N.Y. Health Sciences Ctr,“ which

looked tothe Supreme Court's decision in Board of Trustees of the

University of Alabama v. Garrett” to justify departing from the

heavy weight of authority supporting waiver based on the clarity of

the language in § 2000d-7. Garrett examined whether, in Title | of

the ADA, Congress could constitutionally abrogate the states’

Eleventh Amendment immunity. The Garrett Court concluded

43. 238 F.3d at 644.

44. 280 F.3d 98 (2d Cir. 2001).

45. 531 U.S. 356 (2001).

46. See id, at 365-74.

that Title I of the ADA was outside the scope of valid § 5

legislation; therefore, Congress's attempt at abrogation failed, and

private suits against states in federal court were barred by the

Eleventh Amendment.”’

The lawsuits in Garcia involved disputes that arose between

September 1993 and August 1995.“* During that pre-Garrett period,

it was universally accepted that the ADA validly abrogated

Eleventh Amendment immunity. Rather than looking at the

clear-staement rule and the state's acceptance of funds, Garcia

analyzed whether a state would have realized — "known" — that

it was abandoning its Eleventh Amendment immunity by accepting

federal funds during the period of time applicable to the lawsuits at

issue there (and here).“ The Garcia court noted that, during the

relevant period, “Title Il of the ADA was reasonably understood to

abrogate [the state's] sovereign immunity under Congress's

Commerce Clause authority.” The court also pointed out that the

requirements of Title [I and § 504 are “virtually identical."*'

Therefore, concluded the court, because the state defendant thought

that it could be sued under Title II, it had nothing to lose by

accepting federal funds and redundantly waiving immunity to § 504

suits in the process.”

47. Id. at 374.

48. Garcia, 280 F.3d at 1140.4.

49. Id, at 114.

50. Id.

S!. Id

$2. Id,

Louisiana and the dissent maintain that we should follow the

panel and apply the “logic” of Garcia to the instant case. First,

Louisiana contends that, because it "“believed" that the

Rehabilitation Act had already abrogated its Eleventh Amendment

immunity, it "did not and could not know that [it] retained any

sovereign immunity to waive by accepting conditioned federal

funds."* Likewise, Louisiana asks us to conclude that § 1403 was

an unsuccessful attempt at abrogation; therefore, maintains

Louisiana, it could not have "knowingly" waived its immunity

under the IDEA when it accepted federal IDEA funds.

Even though it found that the statutory provisions at issue are

unambiguous,™ the panel nevertheless concluded that Louisiana's

purported waivers of Eleventh Amendment immunity are invalid

because they were not knowing. The panel drew support from the

holding in Garcia, but its reasoning differed slightly from the

Second Circuit's. According to the panel opinion, "[b]elieving that

[the Rehabilitation Act and the IDEA] 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."*

The fatal flaw with that syllogism lies in the fact that neither

the mandates of the Rehabilitation Act nor the requirements of the

IDEA apply to a state agency that has not received either some

federal funding (in the case of the Rehabilitation Act) or federal

$3. Pace, 325 F.3d at 616.

$4. Pace, 325 F.3d at 615.

55. Pace, 325 F.3d at 616.

IDEA dollars (in the case of the IDEA). Therefore, it is

impossible for Congress to have “abrogated” a state's immunity to

§ 504 or IDEA suits if the relevant state agency did not receive

federal funds during the time period in which it was alleged to have

violated an individual's statutory rights. It follows indisputably that

Louisiana's Eleventh Amendment immunity *» § 504 and IDEA

claims was intact before the state accepted federal funds. Thus,

Louisiana did have Eleventh Amendment immunity to waive by

accepting the clearly conditioned federal funds.

The dissent nevertheless insists that, during the time that § 504

and the IDEA were thought to abrogate Eleventh Amendment

immunity, Louisiana could have believed that it lacked immunity

to § 504 and IDEA suits even before it received federal funds under

those statutes.*’ This ignores the conditional-spending nature of the

Rehabilitation Act and the IDEA. The Acts’ substantive provisions

regulate only state agencies that have accepted the relevant federal

funds. Thus, it makes no sense to say that the State was subject to

private actions for damages under § 504 and the IDEA before the

substantive provisions of those statutes applied to it. Contrary to the

dissent's accusation, we do not confuse the doctrines of abrogation

and waiver; rather, we point out that — even before Garrett—

56. See 29 U.S.C. § 794(a) (pro hibiting discrimination against the

disabled through “any program or activity receiving Federal financial

assistance"), 20 U.S.C. §§ 1412, 1415 (conditioning state agencies’

receipt of federal funds on compliance with the requirements of the

IDEA).

57. Post at 9 ("[T}he State acted quite rationally in assuming

between 1996 and | 998 that it had no sovereign immunity to waive when

it accepted federal education funds under conditions specified by § 504

and IDEA.").

58. Post at 10 & n.7.

Louisiana could have avoided suits under § 504 and the IDEA

altogether by declining federal funding. Louisiana clearly had

Eleventh Amendment immunity to waive at the time that it

accepted the federal funds and expressly obligated itself to comply

with the dictates of the Rehabilitation Act and the IDEA.

Further, during the relevant time period, §§ 2000d-7 and 1403

put each state on notice that, by accepting federal money, it was

waiving its Eleventh Amendment immunity. Under Dole, if the

clear-statement requirement is met, the state is conclusively

presumed to have "known" that receipt of clearly conditioned

federal funds requires the state to abide by the condition (i.e.,

waiver of Eleventh Amendment immunity).

In addition, the Garcia approach is problematic for a number

of reasons, the most fundamental of which is that, by focusing its

inquiry on what the state could have believed, the Second Circuit

engrafted a subjective-intent element onto the otherwise objective

Spending Clause waiver inquiry. In other words, Garcia's approach

employs the wrong jurisprudential test, because it distorts what is

necessary to show knowledge for Spending Clause waivers.

Analytically, the “knowledge” question that we ask when we

undertake the Spending Clause waiver inquiry is coextensive with

the clear-statement rule; for, when a state actually accepts funds that

are clearly conditioned on a waiver of Eleventh Amendment

immunity, it is held objectively to "know" that it is accepting all

clearly stated conditions. That it might not "know" subjectively

whether it had any immunity to waive by agreeing to those

conditions is wholly irrelevant.

The dissent asserts that, by focusing on the clear-statement

requirement, we have disregarded College Savings Bank's "clear

declaration” requirement. But College Savings Bank was not a

conditional-spending ise. There, the Court invalidated

"constructive waivers" of Eleventh Amendment immunity “based

upon the State's mere presence in a field subject to congressional

regulation.” Such a constructive waiver is a far cry from a state's

acceptance of federal funds that are explicitly conditioned on its

waiver of Eleventh Amendment immunity. In fact, the College

Savings Bank opinion expressly distinguished conditional-spending

waivers of Eleventh Amendment immunity, which it said were

"fundamentally different from" illegitimate constructive

waivers.” Nothing in College Savings Bank indicates that, when

the clear-statement requirement is met, a state can be said to lack

knowledge that by accepting federal funds it waives its Eleventh

Amendment immunity.

In sum, Garcia and the dissent would subjugate the bright-line

of objective reasoning to the slippery slope of assessing a state's

subjective belief.°' If, like the panel, we were to follow that

approach, we would be getting irito the business of looking past the

straight forward objective facts, i.e., (1) the clear statement

requiring waiver and (2) the state's actual, uncoerced acceptance of

federal funds, in an attempt to fathom what was in a state's "head,"

a precarious exercise indeed. The clear-statement rule guards

against post hoc questions about intent.

Accordingly, we hold that Louisiana's waiver oi “leventh

Amendment immunity to actions under § 504 and the IVEA was

knowing.” Still, we must determine whether an independent

59. College Savings Bank, 527 U.S. at 680.

60. Id. at 686.

61. See Lapides v. Bd. of Regents, 535 U.S. 613, 621 (2002)

("Motives are difficult to evaluate, while jurisdictional rules should be

clear.").

62. Since the Pace panel opinion was issued, five circuits have

expressly rejected its approach, which the dissent continues to advocate.

constitutional bar prevents Congress from conditioning the receipt

of federal funds on a state's waiver of Eleventh Amendment

immunity.

3. Can Congress Condition Waiver of Eleventh

Amendment Immunity When It Exercises its

Spending Power?

Louisiana challenges Congress's power under the Spending

Clause to condition receipt of federal education funds on a state's

waiver of Eleventh Amendment immunity. This position is

frivolous. We have consistently interpreted Supreme Court

guidance as permitting such conditional spending programs, as has

every other circuit that has squarely addressed the issue.” We do

not change course today.

See Nieves-Marquez, 353 F.3d at 129-30 (First Circuit); A.W,, 341 F.3d

at 244-52 (Third Circuit); Shepard v. Irving, 77 Fed. Appx. 615, 619 n.2

(4th Cir. 2003) (unpublished); Doe vy. Nebraska, 345 F.3d 593, 600-604

(8th Cir. 2003); Garrett, 344 F.3d at 1292-93 (Eleventh Circuit). See also

Koslow, 302 F.3d at 172 n.12 (explaining that “the ‘clear intent to

condition participation in the programs funded, required by Atascadero,

473 U.S. at 247, ensured the Commonwealth of Pennsylvania knew that

by accepting certain funds under the Rehabilitation Act for certain

departments or agencies, it waived immunity from suit on Rehabilitation

Act claims for those entities").

63. See, e.g., Arecibo Cmty, Health Care, Inc. v. Puerto Rico, 270

F.3d 17, 24-25 (1st Cir. 2001); Garcia, 280 F.3d at 113; Koslow, 302

F.3d at 172; Pederson, 213 F.3d at 875-76; Nihiser v. Ohio E.P.A., 269

F.3d 626, 628 (6th Cir. 2001); Stanley vy. Litscher, 213 F.3d 340, 344 (7th

Cir. 2000); Jim C., 235 F.3d at 1081; Douglas v. Cal. Dep't of Youth

Auth., 271 F.3d 812, 819, as amended, 271 F.3d 910 (9th Cir. 2001);

Robinson, 295 F.3d at 1189-90; Sandoval, 197 F.3d at 493.

4. Is Conditioning Acceptance of Federal Funds a

Violation of the Unconstitutional-Conditions Doctrine?

Louisiana also attempts to invoke the

“unconstitutional-conditions doctrine” to challenge Congress's

ability to condition the acceptance of federal funds on waiver of

Eleventh Amendment immunity. In the most general sense, the

unconstitutional-conditions doctrine examines the extent to which

government benefits may be conditioned or distributed in ways that

burden constitutional rights or principles.“ For at least two

reasons, Louisiana's reliance on the unconstitutional-conditions

doctrine is misplaced.

First, as evidenced by the dearth of cases employing it in this

context,” the unconstitutional-conditions doctrine is most

meaningful when the government imposes a condition of

64. See Frost & Frost Trucking Co. v. Railroad Com. of Cal.,27!

U.S. 583, 593-94 (1926) ("[T}he state ... may not impose conditions

which require the relinquishment of constitutional rights....It is

inconceivable that guaranties embedded in the Constitution of the United

States may thus be manipulated out of existence.”).

65. The only Supreme Court decision that has come close was

United States vy. Butler. In that 1936 decision, the Court invalidated

provisions of the Agricultural Adjustment Act of 1933, which paid

farmers to reduce their production of crops. 297 U.S. at 74-78. As the

Tenth Circuit has explained, though, "that case relied on an overly narrow

view of Congress’ enumerated powers to determine that Congress had

overstepped its authority.” Kansas v. United States, 214 F.3d 1196, 1201

n.6 (10th Cir. 2000) (citing LAURENCE H. TRIBE, AMERICAN

CONSTITUTIONAL LAW § 5-b, at 836 (3d ed. 2000) ("[T}he Supreme

Co urt has effectively ignored Butler in judging the limits of

congressional spending power.")). Accord Lipscomb,299 F.3d at 319

(noting that the Supreme Court "quickly abandoned" the view espoused

in Butler).

questionable constitutional character on an individual right. But

here, federal and state sovereigns are on opposite sides of the

controversy, and the constitutional “right” at issue is structural

rather than personal. Consequently, for the reasons announced in

the Third Circuit's analysis in Koslow vy. Commonwealth of

Pennsylvania, the doctrine is inapplicable. The Koslow court

considered whether the Rehabilitation Act, including § 2000d-7,

imposed an unconstitutional condition on Pennsylvania's receipt of

federal funds. In refusing to apply the unconstitutional-conditions

doctrine to the conditioning of federal funds on the waiver of

Eleventh Amendment immunity, the Third Circuit stated:

[T]he Supreme Court has not yet applied the

“unconstitutional conditions" doctrine to cases between

two sovereigns. Unlike private persons, states have the

resources to serve their citizens even if the federal

government, through economic incentives, encourages a

particular result. A state's political powers—not the least

of which is the power to levy taxes on its citizens—help

ensure the federal government does not “coerce” the state

through economic “encouragement.” An_ individual

citizen, in contrast, lacks these formidable institutional

resources.”

We embrace that reasoning.

Second, the unconstitutional-conditions doctrine, even when

applied piecemeal by the supreme court, is anchored at least in part

in a theory of coercion or compulsion.” In this context, that

66. 302 F.3d at 174 (citing Frost & Frost, 271 U.S. at 593; New

York, 505 U.S. at 171-72; Dole, 483 U.S. at 210-11).

67. See id. ("The "unconstitutional conditions” doctrine is based on

the proposition that government incentives may be inherently coercive.").

concern is subsumed in the non-coercion prong of the Dole test.”

In other words, in the Spending Clause context, any role that the

unconstitutional-conditions doctrine might have in cabining

Congress's authority to give funds in exchange for waiving

immunity is already part-and-parcel of the standard Spending

Clause analysis. Thus, no independent constitutional bar

invalidates Louisiana's waiver of Eleventh Amendment immunity.

5. Are These Programs Coercive?

In light of Dole, we must determine whether the

conditional-spending schemes at issue are unduly coercive. We

hold that they are not. A state can prevent suits against a particular

agency under § 504 by declining federal funds for that agency.” A

state can avoid suit under the IDEA merely by refusing IDEA

funds. And, to do so in either case, the state would not have to

refuse all federal assistance.” Moreover, no circuit has accepted a

coercion challenge to either the Rehabilitation Act or the IDEA.”

Therefore, we refuse to invalidate Louisiana's waiver on coercion

grounds.

See also Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV.

L. REV. 1415, 1428-55 (1989).

68. See supra text accompanying note 24.

69. See 29 U.S.C. § 794(b)(1).

70. See 20 U.S.C. §§ 141 l(ay(1), 1412, 1403.

71. See, eg., Jim C., 235 F.3d at 1082 (rejecting a coercion

challenge to the validity of a waiver of state Eleventh Amendment

immunity to § 504 claims).

D. ABROGATION OF IMMUNITY

Alternatively, Pace asks this en banc court to rule that

Congress — acting under § 5 of the Fourteenth Amendment — in

fact abrogated Louisiana's Eleventh Amendment immunity, leaving

Louisiana subject to suit on Pace’s ADA, Rehabilitation Act, and

IDEA claims. As we hold that Louisiana waived its Eleventh

Amendment immunity with respect to the Rehabilitation Act and

the IDEA, it is not necessary for us to address Pace's contention that

Louisiana's immunity to suit under those statutes was also

abrogated. Neither is it necessary for us to consider whether Title

Il of the ADA abrogates Eleventh Amendment immunity in this

case. First, the Supreme Court, in Tennessee v. Lane,” held that

Title Il abrogates sovereign immunity to the extent that it implicates

the accessibility of judicial services, but refused to consider its

application to other rights, including those considered to be

fundamental under the Constitution.” Because (1) the Supreme

Court has never before recognized access to public education” or

freedom from disability discrimination in education” to be

fundamental rights, and (2) it is unnecessary to address Pace's Title

[I claims given that its rights and remedies are identical to and

duplicative of those provided in § 504, we do not address whether

the holding in Lane extends to disability discrimination in access to

public education.

72. 72 124 S. Ct. 1978 (2004).

73. Id. At 1993.

74. See Plyler v. Doe, 457 U.S. 202, 221, 223 (1982) (although

important, education is not a fundamental constitutional right).

75. Cf. City of Cleburne v. Clebume Living Ctr., 473 U.S. 432, 446

(1985) (disability classifications are subject only to rational-basis

scrutiny).

Second, when ADA claims are directed at architectural

barriers, as they are here, the rights and remedies are exactly the

same as those provided under the Rehabilitation Act. This circuit,

as well as others, has noted that, because the rights and remedies

under both statutes are the same, case law interpreting one statute

can be applied to the other.” The implementing regulations for

§504 and Title II are, in all material respects, the same. For

example, both statutes’ implementing regulations prohibit similar

types of discrimination.” In addition, § 504 and Title II's

regulations governing new construction and alterations are

76. See Hainze v. Richards, 207 F.3d 795, 799 (Sth Cir. 2000)

(internal citations omitted) ("The language of Title I] generally tracks the

language of Section 504 of the Rehabilitation Act of 1973, and Congress’

intent was that Title Il extend the protections of the Rehabilitation Act ‘to

cover all programs of state or local governments, regardless of the receipt

of federal financial assistance’ and that it ‘work in the same manner as

Section 504." In fact, the statute specifically provides that ‘[t)he

remedies, procedures and rights’ available under Section 504 shall be the

same as those available under Title II. Jurisprudence interpreting either

section is applicable to both."),; Washington v. Indiana High Sch. Athletic

Ass'n, Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999) ("Title Il of the ADA

was modeled after § 504 of the Rehabilitation Act; the elements of claims

under the two provisions are nearly identical, and precedent under one

statute typically applies to the other."); Gorman v. Bartch, 152 F.3d 907,

912 (8th Cir. 1998) ("The ADA has no federal funding requirement, but

it is otherwise similar in substance to the Rehabilitation Act, and ‘cases

interpreting either are applicable and interchangeable.""); McPherson v.

Michigan High Sch. Ath. Ass'n,! 19 F.3d 453, 459-60 (6th Cir. 1997(en

banc) (same).

77. Compare 28 C.F.R. § 42.520, with 28 C.F.R. § 35.149. Similarly,

§ 504 and Title II's regulations regarding existing facilities are nearly

identical. Compare 28 C.F.R. 42.521(a), with 28 C.F.R. 35.150(a).

effectively the same.”* The two statutes are interpreted to provide

the same exception: No covered entity is obligated to make a

“fundamental alteration" in its programs.” Finally, the remedies

available under § 504 and Title I] are one and the same.

Specifically, § 203 of Title II states that "[t]he remedies,

procedures, and rights set forth in section 505 of the Rehabilitation

Act of 1973 (29 U.S.C. 794a) shall be the remedies, procedures,

and rights this title provides to any person alleging discrimination

on the basis of disability in violation of section 202 [of the ADA].

Section 505(a)(2) of the Rehabilitation Act, in turn, states that the

"remedies, procedures, and rights set forth in title VI of the Civil

Rights Act of 1964... shall be available" for violations of § 504.*'

Thus, in Barnes v. Gorman,” the Supreme Court held that "the

remedies for violations of § 202 of the ADA and § 504 of the

Rehabilitation Act are coextensive with the remedies available in

a private cause of action brought under Title VI" of the Civil Rights

Act.” For all intents and purposes, therefore, the remedies

78. Compare 28 C.F.R. 42.522(a), with 28 C.F.R. 35.15 1(a).

79. Compare Alexander v. Choate, 469 U.S. 287 (1995) (Section 504

does not require covered entities to make fundamental alterations in their

programs) ; with 28 C.F.R. § 35.150(a) (2) - (3) (Title II does not require

public entities to make fundamental alterations in the nature of a

program, service, or activity). This requirement, however, does not

excuse the failure to make altered or new facilities accessible. Compare

28 C.F.R. § 35.151(a)-(b), with 28C.F.R. § 42.522(a).

80. 8042 U.S.C. § 12133.

81. 29 U.S.C. § 794a(a) (2) .

82. 53) U.S. 181 (2002).

83. Id. at 185.

available to Pace under § 504 and Title II are the same. The sole

difference between the statutes lies in their causation

requirements.” This difference is not implicated, however, where,

as here, the challenge is to architectural barriers.

In conclusion, we hold that for all the foregoing reasons,

Louisiana is not entitled to assert sovereign immunity under the

Eleventh Amendment in this case. With that issue determined, we

proceed to the question of issue preclusion.

itl. MERITS

We turn now to the merits of Pace's arguments that the district

court erred in denying relief to him under the IDEA, the ADA and

§ 504.

A. IDEA

We agree with and adopt that portion of the panel opinion

affirming the district court's judgment which in turn affirmed the

administrative determination that Pace was not entitled to relief

under the IDEA.

We pause only to emphasize the somewhat unusual nature of

a proceeding under the IDEA . As required by the statute," Pace

first pursued his administrative claim. He was granted a hearing by

a hearing examiner where he had an opportunity to present his

evidence demonstra’ ing that the inaccessibility of various portions

of the Bogalusa campus prevented him from receiving a free and

appropriate public education (FAPE). The hearing examiner, after

hearing the evidence and making a personal inspection of the

campus, rejected Pace’s inaccessibility claims and concluded that

84. See Soledad v. U.S. Dept. of Treasury, 304 F. 3d 500 (Sth

Cir.2002).

85. See 20 U.S.C. 1415(1).

the defendants had complied with the IDEA and had provided a

FAPE to Pace.” P ace then challenged the hearing examiner's

findings and conclusion in his administrative appeal to the State

Level Review Panel (SLRP). The SLRP also rejected Pace's claims

and affirmed the hearing examiner in all respects.*’ Pace then filed

suit in federal district court as authorized by 20 U.S.C. § 1415(i) (1)

(A). A district court in which such an action is filed must receive

the record generated by the administrative proceeding and also hear

additional evidence presented by the parties.” The court must then

give “due weight" to the hearing officer's finding and make a

denovo determination based on a preponderance of the evidence.

Teague Independent School District v. Todd L, 999 F.2d 127, 131

(5" Cir. 1993). The district court considered all of Pace's claims of

inaccessibility that he raised during the administrative

proceedings.” The court considered the administrative record along

86. The hearing examiner thoroughly reviewed the testimony and

physical evidence presented to her and rejected in wholesale fashion

Pace’s various claims of inaccessibility. R. 94.

87. The language used by the SLRP also makes it clear that this

review panel found absolutely no merit to Pace's inaccessibility claims.

R. 64-65.

88. See 20 U.S.C. § 1415 (i) (2) (A) (Any party aggrieved by the

findings and decisions...shall have the right to bring a civil action with

respect to the complaint pursuant to this section, which action may be

brought...in a district court of the United States ...) .

89. Pace sought relief from the district court to remedy the school

board's refusal to make the following areas accessible:

~ bathroom facilities

. classrooms on the second rather than first floor of

the school

with the new evidence offered by Pace and gave "due weight" to the

findings of the hearing examiner and SLRP. Ultimately, the district

court agreed with the hearing examiner that Bogali:sa High School

had provided Pace with a FAPE by complying with the IDEA in all

aspects, including that the campus was accessible to the

wheelchair-bound Pace. The district court's conclusion is fully

supported by the record and we therefore affirm the district court's

rejection of Pace’'s claims under the IDEA.

B. ADA AND SECTION 504

In addition to his IDEA claims, Pace also asserted claims under

the ADA and § 504 in his suit. The district court severed the IDEA

claims from these non-IDEA claims. After dismissing Pace’s IDEA

claims, the district court then considered defendants’ motion for

summary judgment seeking exoneration under § 504 and the ADA.

The district court granted the defendants’ motion for summary

judgment on grounds that the factual bases for the non-IDEA claims

were indistinct from the resolved IDEA claims. The district court

concluded further that principles of issue preclusion applied to

preclude Pace from pursuing his redundant non-IDEA claims. Pace

argues that the district court committed legal error in applying

principles of issue preclusion to bar his non-IDEA claims.

Issue preclusion or collaterai estoppel is appropriate when: (1)

the identical issue was previously adjudicated; (2) the issue was

elevator access

exiting classroom during fire drills

cafeteria

school health center

auditorium

music room

insufficient parking spaces

lack of ramps (accessible entrances)

actually litigated; and (3) the previous etermination was necessary

to the decision. See Southmark Corp. v. Coopers & Lybrand (In

re: Southmark Corp.), 163 F.3d 925, 932 (S"Cir. 1999). In

Southmark we also found that the "relitigation of an issue isnot

precluded unless the facts and the legal standard used to assess

them are the same in both proceedings.” Id, (quoting RecoverEdge

LP. v. Pentecost, 44 F.3d 1284, 1281 (5" Cir. 1995)). Issues of fact

are not “identical” or "the same,” and therefore not preclusive, if the

legal standards governing their resolution are"significantly

different.” Pace argues that the accessibility issues the court

litigated under the IDEA were for the limited purpose of

determining whether the Bogalusa High School provided Pace with

a FAPE under that statute. Thus, Pace contends, because a

"significantly different" legal standard applies to his accessibility

issues under the ADA and § 504, these latter claimswere never

litigated and issue preclusion should not apply. We therefore

compare the standards of accessibility under the IDEA onthe one

hand and the ADA and § 504 on the other to determine whether the

legal standards are “significantly different."

As indicated above, the IDEA requires states and local

educational agencies receivisig federal IDEA funds to make a FAPE

90. See, eg, 18 JAMES WM. MOORE, ET AL., MOORES

FEDERAL PRACTICE 34 § 132.02(2] [h}(3d ed. 2001). Courts have

used slightly differing language to express this idea that legal issues are

not “identical” for issue preclusion purposes if they are significantly

different. Compare Raytech Corp. v. White, 54 F.3d 187, 191 (3d Cir.

1995) (the differences in the standards must be "substantial"”) with

Talcott v. Allahabad Bank, Lid., 444 F.2d 451, 460 (5" Cir. 1971) (the

legal standards are not identical for issue preclusion purposes only when

there is a “demonstrable difference” in the legal standards by which the

facts are evaluated). For purposes of this appeal, these distinctions are

irrelevant.

available to children with certain disabilities between the ages of 3

and 21. The IDEA imposes extensive requirements on schools to

safeguard the disabled child's right to a FAPE. 20 U.S.C.§§ 1414,

1415. In determining whether a school has provided a student with

a FAPE, the focus is on the Individualized Education Plan (IEP), a

written statement prepared by a team consisting of a representative

of the local schoo! district, the disabled child's teachers, the child's

parents and the child. 20 U.S.C. § 1414(d). The IEP includes the

child's educational performance, his goals, the nature of his

disabilities, and a description of the educational and related services

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

The objective is always to tailor the FAPE to the particular needs

of the child. Cypress Fairbanks ISD v Michael F., 118 F.3d 245,

247 (S"Cir. 1997).

The goal of the IDEA is to require a FAPE that will permit the

child “to benefit" from the educational experience. It need not be

the best possible education nor one that will maximize the child's

educational potential. Bd. of Education v. Rowley, 458 U.S. 176

(1982).

Admittedly different from those underlying the IDEA, the

Congressional objective of both the ADA and § 504 is the

elimination of discrimination against individuals with disabilities.

42 U.S.C. § 12101(b) (1) . Title Il of the ADA, which applies to

public entities including public schools, 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. See also 28

C.F.R. § 35.130(a). Section 504 contains virtually identical

language. See 29 U.S.C. § 784(a). Mandating physical

accessibility and the removal and amelioration of architectural

barriers is an important purpose of each statute.”' The primary

difference between the ADA and § 504 is that § 504 applies only to

recipients of federal funds. 29 U.S.C. § 794(a). This difference

does not concern us in this case because no defendant argues that

it does not receive federal money. Thus, as we stated in section

Il-D above, for the purposes of this appeal, the ADA and § 504 and

their implementing regulations impose identical obligations on the

defendants and grant identical rights to Pace.”

In Pace's brief to us on his non-IDEA claims brought under §

504 and the ADA he complains only that parts of the Bogalusa

High School campus are inaccessible to him. The only § 504

regulations dealing with accessibility in education are found in

subpart C of the § 504 regulations. 34 C.F.R. §§ 104.21-104.23.

Section |04.23o0f § 504's regulations deals with new construction on

school campuses, the basis of Pace’s complaints in this suit.

Subpart D of the § 504 regulations deals with preschool,

elementary, and secondary education and those regulations do not

purport to cover accessibility in schools.”’ Rather, 34 C.F.R. §§

91. See 42 US.C. § 12101(aXS) ("The Congress finds that

individuals with disabilities continually encounter various forms of

discrimination, including...the discriminatory effects ot

architectural...barriers,... failure to make modifications to existing

facilities{,}...segregation, and relegation to lesser services, programs,

[and] activities.."), Id. § 12101(aX4) ("The Congress finds

that...discrimination against individuals with disabilities persists in such

critical areas as education..."); Alexander v. Choate, 469 U.S. 287, 297

(1985) (noting that the “elimination of architectural barriers was one of

the central aims of the Rehabilitation Act").

92. See note 78, supra.

93. Subpart D in the regulations to § 504 includes general

regulations for preschool, elementary, and secondary education regarding

104.21-23, the general education regulations on accessibility found

in subpart C of § 504 apply to new construction on high school

campuses such as Bogalusa High.“ The ADA has no specific

section on education, so the general regulations governing

accessibility to public buildings also control accessibility to school

buildings.

With this background, we turn to Pace's specific argument that

his accessibility claims under the ADA/504 are not precluded by the

district court's rejection of his accessibility claims under the IDEA.

He argues that his non-IDEA accessibility claims are not precluded

because different legal standards apply to his ADA and § 504

accessibility claims, and these claims have never been litigated or

decided. When we consider the equivalent standards for

accessibility in schools under the IDEA on the one hand and the

ADA/S504 on the other, it becomes clear that we should reject this

argument.

Congress required in a 1997 amendment to the IDEA that any

construction of new facilities must comply with either (1) The

placement (34 C.F.R. § 104.35), procedural requirements (34 C.F.R. §

104.36) and the general FAPE requirement (34 C.F.R. § 104.33).

94. Although it is illogical to do so, one can read the § 504

regulations to say that a school need not comply with accessibility

requirements in Subpart C to provide a § 504 FAPE under 104.33 when

a student complains that part of a school's campus is inaccessible. In such

a Situation, it is more sensible to read these regulations as requiring a

school's compliance with subpart C's accessibility requirements before it

can be said to provide a § 504 FAPE. Regardless of whether the

accessibility requirement s must be met before a § 504 FAPE is provided,

subpart C of the § 504 regulations clearly requires new construction in

the school to meet the regulation’s accessibility requirements.

Americans with Disabilities Accessibility Guidelines for Buildings

and Facilities (ADAAG); or (2) The Uniform Federal Accessibility

Standards (UFAS). 20 U.S.C. § 1404(b).” Thus, with respect to a

physically disabled child such as the wheelchair-bound Pace, the

school can comply with the IDEA's accessibility requirements by

satisfying either the ADAAG or UFAS.”

Pace presents no argument that the accessibility standards for

new construction of school buildings under the ADA or § 504 are

more demanding or even different from the standards required

under the1997 amendment to the IDEA. This is understandable,

because the regulations governing accessibility in schools under the

ADA/S504 require a school engaged in new construction to conform

to the same standards as the IDEA, either the ADAAG or UFAS.

95. 20 U.S.C. § 1404(b) provides in pertinent part:

..Any construction of new facilities or alteration

of existing facilities under subsection (a) of this

section shall comply with the requirements of

(1) appendix A of part 36 of title 28,

Code o f Federal Regulations (commonly

known as the “Americans with

Disabilities Accessibility Guidelines for

Buildings and Facilities"); or

(2) appendix A of part 101-19.6 of title

41, Code of Federal Regulations (com-

monly known as the "Uniform Federal

Accessibility Standards")

96. The corresponding regulation to 20 U.S.C. § 1404 is found at 34

C.F.R. § 300.756 and is identical

New construction and alterations of public facilities under Title

Il of the ADA are governed by the regulations found in 28 C.F.R.§

35.151.” Like the IDEA, the ADA accessibility regulations require

a school conducting new construction to comply with either the

ADAAG or UFAS. Section 504's accessibility regulations are

virtually identical to the ADA's,” and also demand that schools

engaging in new construction comply with the same federal

guidelines required by the IDEA. Thus, Pace's argument that the

accessibility standards are different under IDEA and ADA/S04 is

meritless.

In summary, under the IDEA, when, as here, a child complains

that his disability renders a portion of the campus inaccessible, this

triggers the application of the 1997 amendments to the IDEA. In

determining whether the school has met its obligations under the

amendment and provided the disabled student with a FAPE, the

hearing examiner, the SLRP, and the district court must determine

whether the area of the school in question complies with either the

97. 38 C.F.R. 35.151(c) provides in pertinent part:

alteration of facilities in conformance with the Uniform Federal

Accessibility Standards (UFAS)...or with the Americans with

Disabilities Act Accessibility Guidelines for Buildings and

Facilities (ADAAG)...shall be deemed to comply with the

requirements of this section with respect to those facilities...

98. One minor difference between the accessibility regulations

under § 504 and the ADA is that, because § 504 preceded the ADA and

the ADA-specific accessibility regulations (ADAAG), § 504 does not

give schools the option of complying with either the ADAAG or UFAS

(as do both the ADA and IDEA), but requires compliance with the

UFAS.

ADAAG or UFAS. These are the same federal guidelines the

school must comply with to satisfy the accessibility requirements

of the ADA and§ 504.

Pace, as he was required to do by the IDEA, presented his

accessibility claims in his administrative claim. In _ their

administrative findings, both the hearing examiner and the SLRP

discussed the 1997 amendment to the IDEA. This makes it clear

that both were aware that new or existing construction to Bogalusa

High School must meet either the ADAAG or UFAS standards

before the school could fully comply with the IDEA.”

The only significant summary judgment evidence Pace

presented to the district court on his ADA/504 claims was the report

and deposition testimony of Donald MaGinnis, an architectural

expert. The point of his testimony is that structural changes to the

Bogalusa campus failed to comply with the ADAAG. Although

this same standard applied to Pace’s claim under the IDEA, he did

not introduce this evidence before the hearing examiner. Further,

Pace failed to offer the expert evidence to the district court to

support his appeal of the administrative determination under the

IDEA. Because the accessibility standards under the IDEA and the

99. Page five of the State Level Review Panel's opinion, under the

heading “Applicable Law and Regulations," provides:

Section 605 of the Individuals with Disabilities

Education Act Amendments of |1997, states that any

construction of new facilities or alteration of existing

facilities with use of program funds shall comply with

the requirements of Americans with Disabilities

Accessibility Guidelines (Appendix A of Part 36 of Title

28, Code of Federal Regulations) or Uniform Federal

Accessibility Standards (Appendix A of Part 101-19.6 of

Title 41, Code of Federal Regulations). (R. 63).

ADA/S504 are identical for new construction of school buildings,

Pace has not demonstrated that the defendants owed him any

greater or even different obligation in this respect under § 504/ADA

than he was entitled to under the IDEA. Thus, the accessibility

issue Pace litigated in his IDEA case and lost is the same issue he

sought to litigate in his ADA/504 claim. The district court correctly

concluded that Pace was precluded from relitigating this issue.

The only argument Pace presents to us on the applicability of

the 1997 amendment was presented for the first time in his petition

for en banc review. He argued in that petition and argues to the en

banc court that the amendment was not triggered because no

evidence was presented that "IDEA funds" were used to make the

improvements to the Bogalusa campus. Pace relies on the following

language in the 1997 amendment to 20 U.S.C.§ 1404:

§ 1404. Acquisition of equipment;

construction or alteration of facilities

(a) In general

If the Secretary determines that a program

authorized under this chapter would be

improved by permitting program funds to

be used to acquire appropriate equipment,

or to construct new facilities or alter

existing facilities, the Secretary is

authorized to allow the use of those funds

for those purposes.

Neither the amendment nor the existing statute purports to

require a plaintiff to prove the use of IDEA funds or any other fact

as a predicate to seeking relief under the IDEA against a school for

failing to make its campus accessible in response to a student's IEP.

We have found no cases interpreting this amendment or its

predecessor. Subsection (a) is simply a restyled version of the

existing statute." The change is found in Subsection (b), which

incorporates into the IDEA for the first time the ADAAG and

UFAS construction standards. The amended § 1404(a), like the

existing statute, authorizes the Secretary to allow the use of IDEA

funds for construction or alterations.

To support Pace's argument that the amended version of § 1404

does not apply in this case, amicus seems to argue that structural

alterations to meet accessibility demands in a student's IEP are not

part of the calculus in determining whether a student has received

a FAPE.

in Weber's Special) Education Law and Litigation Treatise, he

rejects this suggestion in his cogent discussion of the interplay

between the IDEA, § 504 and ADA:

Schools covered by Title Il and Section 504 owe

obligations not only to students with disabilities but to all

persons with disabilities whom they serve. In this sense,

the laws are more inclusive than the Individuals with

Disabilities Education Act (IDEA), whose beneficiaries

are children with disabilities who need special education.

Nevertheless, by requiring school districts to provide an

100. The pre-amended version of 20 U.S.C. 1404(a) provided as

follows: (a) Authorization for use of funds

In the case of any program authorized by

this chapter, if the Secretary determines

that such program will be improved by

permitting the funds authorized for such

program to be used for the acquisition of

equipment and the construction of

necessary facilities, the Secretary may

authorize the use of such funds for such

purposes. (West 1996)

appropriate education in the least restrictive environment,

IDEA overlaps with Section 504 and Title II in terms of

the children it covers. Thus, IDEA may require a school

district to modify programs or facilities to achieve these

is for an individual student, IDEA fund ) ,

for removal of architectural barriers or other

: bility '

' hild it}

disabilities.(Footnotes omitted)'*'

(emphasis added)

Weber further describes a school's duty under the IDEA to

address accessibility concerns in the IEP as “a component of

appropriate special education and related services in the least

restrictive environment.'” This discussion makes it clear that when

a student's IEP raises concerns of accessibility to the school's

campus, the determination of whether these concerns have been met

is a necessary component in resolving whether the student has

received a FAPE.

The Hearing Examiner tried this controversy on the premise

that the entire IDEA statute, including the 1997 amendment,

applied to Pace’s claims, and no one argued to the contrary. The

Hearing Examiner did not require the parties to file extensive

pre-trial papers. However, she did require each party to list the

issues they wanted the hearing examiner to address. Neither Pace

nor the school board asserted that an issue was presented with

respect to the expenditure of IDEA funds or any other issue relating

10!. MARK C. WEBER, SPECIAL EDUCATION LAW AND

LITIGATION TREATISE 7.1 (2D ED. 2002).

102. Weber, note 3 at 7.2. (Footnotes omitted). Weber concludes

that “modifications [to the campus] may include wheelchair ramps,

handrails, accessible toilets, and water fountains."

to the applicability of the 1997 amendment to § 1404. Considering

the strict duty that the ADAAG and UFAS construction guidelines

impose on the school, it was also reasonable for the Hearing

Examiner to assume that the school board would object if there was

some basis for it to argue that these guidelines did not apply to the

architectural improvements ordered by Pace's IEP. It is not

surprising that Pace did not object to the Hearing Examiner's

application of such rigorous standards; it was in his interest at the

time to require the school to meet the toughest standards possible

in making the architectural improvements.

After three hearings, the Hearing Examiner issued her report

finding that Bogalusa High had provided Pace with a FAPE. The

Hearing Examiner explicitly found that the ADAAG guidelines

applied, meaning that she concluded that Pace's accessibility

concerns regarding improvements made to the campus triggered the

application of the 1997 amendment to § 1404 of the IDEA.

Otherwise, the ADAAG guidelines would be irrelevant. In making

her findings, the Hearing Examiner relied on the voluminous

administrative record, which shows that Bogalusa received

substantial federal IDEA funds during 1996and 1997, the relevant

time period.” IDEA regulations make it clear that federal IDEA

funds cannot be co-mingled with state funds."“ The Hearing

examiner also had the benefit of Pace’s IEP and the testimony of the

School Board's Maintenance Supervisor that the construction

changes were made in response to Pace's IEP facilitator’s

instructions. Even if a showing of the use of IDEA funds was

required, it was reasonable for the Hearing Examiner to conclude

103. For the 1996-97 fiscal year, the record shows that Bogalusa was

the recipient of $164,213 in federal funds for its "Special Education"

program.

104. 34 CFR § 300.152.

that IDEA funds were used and that under the amended version of

20 U.S.C. § 1404 the school provided Pace with a FAPE.

Pace appealed the Hearing Examiner's order to the State Level

Review Panel (SLRP). Again, the record reflects no argument from

any party to that appeal that the entire IDEA statute, including

the1997 amendment to § 1404, did not apply. The SLRP in its

opinion explicitly applied the 1997 amendment, discussed Pace’s

arguments, and after rejecting them, affirmed the Hearing

Examiner.

Pace then filed suit in federal district court seeking relief under

the IDEA, §504 and the ADA. He specifically alleged in his

petition that the state received federal IDEA funds.” His core

claim was that the school had failed to comply with the ADAAG.

The primary evidence Pace presented to the district court was

the deposition testimony and report of architect Donald MaGinnis,

who testified that the structural changes to the campus failed to

meet ADAAG standards. Thus, Pace’s federal claim was predicated

on these guidelines, made applicable to the IDEA by the 1997

amendment to § 1404. Because the Hearing Examiner and the

SLRP had rejected Pace's accessibility claims based on application

of these same standards (the ADAAG and UFAS), the district court

concluded that Pace was precluded from relitigating his

accessibility issues.

Suffering summary judgment in the district court on both his

IDEA and non-IDEA claims, Pace sought appellate relief from this

court. In his initial brief to the panel, Pace argued that the district

court erred in accepting the Hearing Examiner and SLRP’s findings

of accessibility to preclude his non-IDEA accessibility claims.

However, Pace did not base his argument on the inapplicability of

105. R. 192.

the 1997 amendment to § 1404 or that the Hearing Examiner erred

in applying the ADAAG guidelines to the structural changes. The

School Board did argue to the panel that the amendment applied

and that the Hearing Examiner and SLRP had used the very same

federal guidelines in deciding Pace’s IDEA claims that Pace sought

to litigate in his non-IDEA action.'”

Faced with the appellee's argument that his non-IDEA claims

were precluded due to the previous application of the 1997

amended version of § 1404, Pace filed a reply brief with the panel.

Again, he made no effort to refute the School Board's argument that

the 1997 amendment to § 1404 applied.

Without any opposition from Pace as to the proper application

of § 1404 to the improvements to Bogalusa High's campus, the

panel accepted the School Board's unchallenged argument and

relied on the 1997 amendment to affirm the district court's

judgment .""’ The panel specifically cited the 1997 amended

version of § 1404 to support its conclusion that issue preclusion

was proper because accessibilityto the campus had already been

litigated under the same federal standards .'

In response to the panel's decision, Pace sought en banc

review, where he argued for the first time that § 1404 did not apply

to the improvements he demanded in his IEP, because "[t}here is no

proof that construction in this case would be covered by this

provision. .'”

106. Appellee Bogalusa City School Board's Brief at 32.

107. Pace v. Bogalusa City School Bd., 325 F.3d 609 (S*Cir. 2003).

108. Id. at 614.

109. Appellant Travis Pace’s En Banc Brief at 22.

In sum, we do not read the 1997 amendment to require proof

that IDEA funds were used for improvements to trigger the

amendment. Even if the statute can be read in this manner, there is

evidenceto support an inference that IDEA funds were used to make

the structural changes. More importantly, we cannot permit Pace to

change his position at will. He was obviously happy to have the

administrative bodies and the trial court apply the 1997 amendment

to § 1404 (and the strict ADAAG guidelines) when it was helpful

to him. He cannot at this late date reverse his position when he

finds that application of those guidelines are not in his best interest.

Pace has one remaining argument in support of his position

that issue preclusion should not apply to his claims under the ADA

and § 504. He argues that the IDEA's "savings clause,” gives him

the right to maintain a cause of action under the ADA and § 504.'"°

We agree that Pace is not limited to a claim under the IDEA and

thathe can assert claims under the ADA and § 504. But his ability

to assert non-IDEA claims does not mean that general principles of

issue preclusion do not apply to preclude his redundant claims.'''

110. The IDEA's “savings clause” is found in 20 U.S.0 1415(1), and

provides in pertinent part:

Nothing in this chapter shall be construed to

restrict or limit the rights, procedures, and remedies

under..the Americans with Disabilities Act of

1990...title V of the Rehabilitation Act of 1973...or

other Federa! laws protecting the rights of children with

disabilities...

lll. See.¢.g., Burlovich vy, Bd. of Educ., 208 F.3d 560 (6"Cir. 2000)

(issue preclusion may apply to redundant ADA and § 504 claims), Indep.

Sch. Dist. No. 283 v. $.D., 88 F.3d 556, 562 (8"Cir. 1996) (principles of

issue preclusion and claim preclusion may properly be applied to

short-circuited redundant claims under other laws) and Urban v. Jefferson

County Sch. Dist. R-|, 89 F.3d 720, 728 (10"Cir. 1996) (issue preclusion

Because Pace’s claims under the ADA and § 504 are factually and

legally indistinct from his IDEA claims, issue preclusion is proper

in this case.

Because Pace is precluded from litigating the question of

whether the defendants have any obligation under the ADA and §

504 to make further architectural or structural changes in the

buildings on the Bogalusa campus, his claim for an injunction

ordering such changes must also fail.

In conclusion, we AFFIRM the district court's dismissal of

Pace’s claims under the IDEA and also AFFIRM the district court's

dismissal of Pace's claims for damages and injunctive relief under

the ADA and § 504.

proper to dismiss § 504 placement claim when identical issue already

litigated under the IDEA).

EDITH H. JONES, Circuit Judge, with whom JOLLY, SMITH,

BARKSDALE, GARZA AND DeMOSS, Circuit Judges, join,

concurring in part and dissenting in part:

I concur in the court's discussion of the merits of Pace’s claims,

but I respectfully dissent from the majority's conclusion that the

State of Louisiana, by accepting federal education funds from 1996

to 1998 (the period here at issue), validly waived its Eleventh

Amendment immunity from suit for violations of § 504 and the

IDEA statute. Instead, we should hold that under these limited and

unusual circumstances, the State did not knowingly waive its

constitutional right to be free from suit by private citizens.'"

Alexander Hamiiton wrote:

It is inherent im the nature of sovereignty not to be

amenable to the suit of an individual without its consent.

This is the general sense and the general practice of

mankind; and the exemption, as one of the attributes of

sovereignty, is now enjoyed by the government of every

state in the Union.

THE FEDERALIST No. 81, at 487-88 (Clint Rossiter ed., 1961).

The Eleventh Amendment protects States from suit in federal court

precisely out of the recognition of their continued status as

co-sovereigns. Puerto Rico Aqueduct & Sewer Auth. v, Metcalf &

Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 689 (1993). For over

one hundred years, the Supreme Court has “extended a State's

[constitutional] protection from suit to suits brought by the State's

112. The panel opinion observed that the State's victory in this case

would be Pyrrhic because only during a three-year period could the panel

conclude that the State did not “knowingly” waive its Eleventh

Amendment immunity. The majority apparently believe that a Pyrrhic

victory Is Ome too many.

own citizens.” Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,

267-68, 117 S. Ct. 2028, 2033 (1997) (referring to Hans v.

Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890)).

There are two carefully construed exceptions whereby States

may become subject to suits by private citizens. Congress may

abrogate state sovereign immunity pursuant to § 5 of the Fourteenth

Amendment, or the State may waive its sovereign immunity and

give its consent to suit. See Coll, Say. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S. Ct.

2219, 2223 (1999)). However, "[b} ecause abrogation of sovereign

immunity upsets the fundamental constitutional balance between

the Federal Government and the States, .and because States are

unable directly to remedy a judicial misappreherision of that

abrogation, the Court has adopted a particularly strict standard to

evaluate claims that Congress has abrogated the States’ sovereign

immunity." Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.

299, 305, 110 S. Ct. 1868, 1872 (1990) (citations and quotations

omitted). “Similar solicitude for States’ sovereign immunity

underlies the standard that this Court employs to determine whether

a State has waived that immunity.” Id.

Travis Pace advances both abrogation and waiver theories in

support of his claims against Louisiana. The majority agrees with

Pace that Louisiana waived its sovereign immunity as a condition

of accepting federal funds under § 504 of the Rehabilitation Act and

IDEA. In so doing, the majority has forsaken the "particularly strict

standard” the Eleventh Amendment demands, ignored the Supreme

Court's settled test for evaluating a waiver of constitutional rights,

and inexplicably discounted the unique factual context from which

this case arose.

I. WAIVER

As a fundamental constitutional component, "[s]tate sovereign

immunity, no less than the right to trial by jury in criminal cases, is

constitutionally protected." Coll. Say. Bank, 527 U.S. at 682, 119

S. Ct. at 2229. The same test used in evaluating waiver of other

fundamental constitutional rights must be employed in the Eleventh

Amendment context as well. As the Court held, there is no

justification for creating a separate and distinct test for Eleventh

Amendment waiver purposes. Thus, "[t]he classic description of an

effective waiver of a constitutional right is the intentional

relinquishment or abandonment of a known right or privilege.” Id.

(citations and quotations omitted) (emphasis added). According to

the sole applicable test, therefore, "waiver must havebeen made

with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it."

Moran vy. Burbine, 475 U.S. 412, 421, 106 S. Ct.1135, 1141 (1986)

(emphasis added). Moreover, “courts indulge every reasonable

presumption against waiver of fundamental constitutional rights

and. do not presume acquiescence in the loss of fundamental

rights." Johnson v. Zerbst, 304 U.S. 458, 464, 58S. Ct. 1019, 1023

(1938). This circuit, at least until today, adhered to this uniform

approach. "Waivers of constitutional rights not only must be

voluntary but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences[.]"

United States v. Newell, 315 F.3d 510, 519 (Sth Cir. 2002) (quoting

Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463 (1970))

(emphasis added). A valid waiver requires “actual knowledge of

the existence of the right or privilege, full understanding of its

meaning, and clear comprehension of the consequences of the

waiver.” Id. (quoting Hatfield v. Scott, 306 F.3d 223, 230 (Sth Cir.

2002)) (emphasis in original).

The test for a State's waiver of Eleventh Amendment immunity

is no d.fferent because Congress sought to effect waiver under the

Spending Clause. The Supreme Court "has repeatedly

characterized . . . Spending Clause legislation as ‘much in the

nature of a contract: in return for federal funds, the [recipients]

agree to comply with federally imposed conditions.” Barnes v.

Gorman, 536 U.S. 181, 186 (2002) (quoting Pennhurst State Sch.

& Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). “Just as a valid

contract requires offer and acceptance of its terms, the legitimacy

of Congress’ power to legislate under the spending power . . rests on

whether the [recipient] voluntarily and knowingly accepts the terms

of the contract." Barnes, 536 U.S. at 186 (citations and quotations

omitted) (emphasis added), see also Pennhurst, 465 U.S.at 99, 104

S. Ct. at 907 (the State's consent to suit must be “unequivocally

expressed"). As a result, the “test for determining whether a State

has waived its immunity from federal-court jurisdiction is a

stringent one." Atascadero State Hosp.v. Scanlon, 473 U.S. 234,

241, 105 S. Ct. 3142, 3146 (1985).

Despite this clear authority, the majority has crafted a novel

waiver test for Spending Clause cases. Relying on South Dakota v.

Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987), the majority draws two

conclusions: (1) a State's waiver is knowing so long as Congress

satisfies the “clear statement rule," and (2) the State'swaiver is

voluntary so long as it is "non-coercive."” Although | agree with the

latter conclusion, the former is incorrect.''’

113. Dole’s "non-coercive" requirement is a satisfactory proxy for

the "voluntariness” prong of the waiver inquiry. Thus, under the current

state of the law, § 2000d-7(a) is not unconstitutionally coercive. Asa

result, the State of Louisiana acted voluntarily for purposes of the

constitution al waiver test. But, with due regard for precedent, | am

compelled to raise the following question: “If not now, and on this

showing, when, and on what showing" will federal grants be deemed

unconstitutionally coercive? Cf. v

611 F.2d 1239, 1240 (9th Cir. 1979). The Rehabilitation Act, pursuant to

29 U.S.C. § 794(a), requires non-consenting States to forfeit al! federal

funds. For the Louisiana Department of Education, renouncing all

federal funds would cut its budget by $804,269,621, or 75%. Dole

counseled that "in some circumstances the financial inducement offered

College Savings Bank controls the Eleventh Amendment waiver

inquiry and demands more than a congressional "clear statement"

— it also requires the State to make a “clear declaration" of its intent

towaive its immunity. In College Savings Bank, the Supreme Court

recognized that for a State "knowingly" to waive its sovereign

immunity, not only must Congress make clear its intention to so

condition federal funds, but the State must expressly and

unequivocally waive its immunity. “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 that

immunity." Coll. Say. Bank, 527 U.S. at 680-81, 119 S. Ct. at

2228. “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.” Id.

Despite the majority's assertion to the contrary, College

Savings Bank confirms that Dole's “clear statement" requirement is

only half of the waiver equation. See Garcia v, S.U.N.Y. Health

Sci. Ctr. of Brooklyn, 280 F.3d 98, 113-14 (2d Cir. 2001)

(concluding that “a clear expression of Congress's intent .alone is

not sufficient . . to find that [the State] actually waived its sovereign

immunity by accepting federal funds"). "The whole point of

requiring a ‘clear declaration’ by the State of its waiver is to be

certain that the State in fact consents to suit." Coll. Say. Bank,527

U.S. at 680, 119 S. Ct. at 2228 (emphasis in original). "Whether

by Congress might be so coercive as to pass the point at which pressure

turns into compulsion."483 U.S. at 211 (emphasis added). To date, the

Supreme Court has not found a case that warranted vindication of this

principle. Nevertheless, Louisiana and its children would suffer extreme

consequences here if the State were to lose massive federal assistance by

asserting its constitutional right to sovereign immunity.

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)." Douglas v. Cal. Dep't of Youth Auth., 285

F.3d 1226, 1228 (O'Scannlain, J., dissenting fromdenial of petition

for rehearing en banc) (emphasis in original)." The mere receipt of

federal funds cannot establish that a State hasconsented to suit in

federal court." Atascadero, 473 U.S. at 246-47.'"*

For a State to evince its “clear declaration" of intent to waive

sovereign immunity, it must possess "actual knowledge of the

existence of the right or privilege, full understanding of its meaning,

and clear comprehension of the consequences of the waiver.”

Newell, 315 F.3d at 519 (citations and quotations omitted)

(emphasis in original). In all but the rarest of circumstances,

acceptance of federal funds offered in accordance with the "clear

statement rule" will meet this test. This case represents an

exception to the general rule.

The majority ignores the fact that until the mid-1990’s, it was

assumed that Congress could abrogate state sovereign immunity in

legislation enacted pursuant to its Article [ enumerated powers.

The Supreme Court held otherwise in Seminole Tribe v. Florida,

517 U.S. 44, 72-73, 116 S. Ct. 1114 (1996), while reaffirming that

abrogation remained permissible through a proper exercise of

power under § 5 of the Fourteenth Amendment. Id. at 59, 116 S.

Ct. 1114. In the statutes here at issue — ADA, § 504 and IDEA —

abrogation was enacted under the Commerce Clause. Since,

114. Furthermore, the majority's reliance on the precedents of other

Circuits is unpersuasive. Those circuits, like our court today, focused

exclusively on whether Congress clearly expressed its intention to

condition acceptance of federal funds on waiver of immunity—not

whether the State reasonably believed it was waiving immunity by

accepting federal funds.

however, all three statutes enhance the rights of the disabled, and all

three express a clear congressional intent to abridge the States’

Eleventh Amendment immunity, federal courts routinely permitted

suits by private individuals to proceed against the States. As late as

1998, while applying the Supreme Court's narrow construction of

the § 5 abrogation authority,'’* this court still held that the ADA

validly abrogated state sovereign immunity. Coolbaugh v.

Louisiana, | 36 F.3d 430 (Sth Cir. 1998), cert. denied, 525 U.S. 819,

119 S. Ct. 58 (1998) overruled by Reickenbacker v. Flores, 274

F.3d 974 (Sth Cir.2001).'"°

Surely Louisiana should not be penalized for construing the

ADA — and counterpart abrogation language in § 504 and IDEA

just as this court subsequently did in Coolbaugh. Instead, the State

acted quite rationally in assuming between 1996 and 1998 that it

had no sovereign immunity to waive when it accepted federal

education funds under conditions specified by § 504 and IDEA.

The State voluntarily accepted federal funds, but its acceptance was

not a "knowing" waiver of immunity. As the Second Circuit put it,

since "the proscriptions of Title II {of the ADA] and § 504 are

virtually identical, a State accepting federal funds could not have

understood that in doing so it was actually abandoning its sovereign

115. See City of Boerne y. Flores, 521 U.S. 507, 117 S. Ct. 2157

(1997).

116. Reickenbacker’s holding flows from the Supreme Court's

decision in Bd. of Trustees of the Univ. of Alabama vy, Garrett, 531 U.S.

356, 368, 121 S. Ct. 955, 964 (2001 ), which held that Title I of the ADA

did not validly abrogate state sovereign immunity pursuant to § 5 of the

Fourteenth Amendment. Because Title Il 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).

immunity from private damage suits, since by all reasonable

appearances state sovereign immunity had already been lost.”

Garcia, 280 F.3d at 114(citations omitted).'"’

The majority offers two principal arguments against thisresult.

First, the majority conflates abrogation and waiver when positing

that “Louisiana did have Eleventh Amendment immunity to waive

by accepting the clearly conditioned federal funds." See Majority

Op. at 21 (emphasis in originai). On the contrary, Coolbaugh

confirmed, until Garrett and Reickenbacker overruled it, that

Congress had validly exercised its abrogation authority, rendering

Louisiana amenable to suit notwithstanding the Eleventh

Amendment. The majority's suggestion that Congress can abrogate

sovereign immunity, but still permit the States to retain their

Eleventh Amendment immunity, misapprehends the import of

abrogation .'"*

117. Conversely, after Garrett was decided, the State defendants

could knowingly waive their immunity because they could have

reasonably anticipated the ability to preserve sovereign immunity by

declining federal funds under the Rehabilitation Act and the IDEA. See

Bd. of Trustees of the Univ. of Alabama y, Garrett, 531 U.S. 356, 121 S.

Ct. 955 (2001) (invalidating an abrogation of Eleventh Amendment

immunity pursuant to Title | of ADA).

118. The unmistakable difference between abrogation and waiver ts

complicated by statutes, like § 2000d-7(a), that attempt to achieve both

in the same provision. Nevertheless, the circuit courts and the panel

opinion here agree that statutory language may, in fact, constitute both an

attempted abrogation and conditional waiver provision. See, ¢.g., Stanley

v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); Robinson v. Kansas, 295

F.3d 1183, 1189-90 (10th Cir. 2002). However, a statute's capacity to

serve dual purposes does not justify the majority's confusion of the two

concepts.

Still, Congress may, in its discretion, choose to trigger

enforcement of any federal statute, even after it has abrogated

sovereign immunity, on the receipt of federal funds. In response,

a State, by refusing federal funds, may reject the terms of the

“contract” and potentially avoid statutory liability to private

individuals. But whether it can avoid liability based upon a

contractual/waiver theory is a different question from whether it

retained Eleventh Amendment sovereign immunity

post-abrogation.''? Thus, the relevant Eleventh Amendment inquiry

remains whether Louisiana reasonably believed, based on objective

evidence, that the Kehabilitation Act and the IDEA validly

abrogated its sovereign immunity — not whether it could have

chosen to reject the federal funds anyway.

Second, the majority contends that requiring the State to make

a “clear declaration" problematically “engraft {s] a subjective-intent

element onto an otherwise objective Spending Clause waiver

inquiry.” See Majority Op. at 22. Unfortunately, the majority

misunderstands the nature of the "clear declaration” requirement, a

requirement consonant with the Supreme Court's longstanding

objective approach to waiver. The Supreme Court uniformly

applies a “totality of the circumstances" test to waiver questions

involving fundamental constitutional rights. Fare v. Michael C.,

442 U.S. 707, 725, 99 S. Ct. 2560, 2572 (1979) "Only if the totality

119. The majority implies that Louisiana's self-interested acceptance

of funds should prevent the State from arguing that it might have chosen

to forego the funds for the sake of maintaining sovereign immunity.

Louisiana's mistaken (though eminently reasonable) belief that abrogation

had occurred distorted this calculation, however. That the State does

have immunity to waive now throws into high relief the potential

coercion inherent in the federal government's funding condition. The

"cost" of Louisiana's resting on its constitutional right is over $800

million annually!

of the circumstances reveal both an uncoerced choice and the

requisite level of comprehension may 4 court properly conclude that

the . . rights have been waived." See Burbine, 475 U.S. at 421, 106

S. Ct. at 1135. Hence, the Supreme Court considers a variety of

objective factors, not subjective intent, to determine whether a

constitutional right has validly been waived. Fare, 442 U.S. at 725,

99 S. Ct. at 2572; see also United States v. Sonderup, 639 F .2d

294, 298 (Sth Cir. 1981) (relying on the objective indicia to

determine whether a voluntary, knowing and intelligent waiver was

made). College Savings Bank's “clear declaration” requirement

reiterates the Supreme Court's waiver test in the Eleventh

Amendment context, and so would [.'”°

Given this court's ruling in Coolbaugh that the State had no

immunity to waive, followed by an unsuccessful en banc poll and

the Supreme Court's denial of certiorari in that case, it is

inconceivable that Louisiana somehow, based on _ the

“straightforward objective facts,” knowingly chose to waive a right

that was non-existent when it acted. In a sense, the State of

Louisiana is being forced, by today's majority, to bear the burden of

this court's mistake of law in Coolbaugh. Consider this analogy:

120. The majority's approach unquestionably achieves a bright-line

rule that the Supreme Court's traditional waiver inquiry cannot.

However, this approach is impermissible in the context of waiver of

fundamental constitutional rights.

An express written statement of waiver of the right to remain

silent or the right to counsel is usually strong proof of the

validity of that waiver, but it is not inevitably either necessary or

sufficient to establish waiver. The question is not one of form,

but rather whet

voluntarily waived the rights delineated in the Miranda case.

North Carolina v. Butler, 441 U.S. 369, 374, 99S. Ct. 1755, 1758 (1979).

the police instruct a criminal defendant, "for his own good,” to sign

a waiver of counsel form, while telling him that the waiver is

"meaningless, because you have no counsel rights to waive." Who

would argue that the waiver is knowing, especially if the police

showed him a court decision confirming this view? That the dupe

is an individual defendani rather than the State does not, per

College Savings, make this a different case, nor does the fact that

the waiver falls under the Spending Clause rather than some other

type of enactment. The majority's opinion violates College Savings

Bank.

In this rare instance, Louisiana could not have knowingly

waived its sovereign immunity in the relevant time period before

the Garrett decision. The majority's approach strangely counsels

States to disregard governing caselaw when Supreme Court

doctrine is evolving. Such an argument makes no more sense in

this unusual context than it would in any other.

Il, ABROGATION

Pace alternatively argues, and this dissent must determine,

whether Congress abrogated Louisiana's sovereign immunity with

respect to claims brought under Title Il, § 504, and the IDEA. Pace

would extend the Court's recent decision in Tennessee v. Lane, 541

U.S. 509, 124 S. Ct. 1978 (2004), which held that Title II of the

ADA validly abrogates State sovereign immunity insofar as it

implicates the physical accessibility of the fundamental

constitutional right of access to the courts. The majority here,

having found a waiver of the State's immunity, declares it

unnecessary to opine on abrogation. The majority goes on,

however, to observe that, in Lane, the Supreme Court "refused to

consider [whether Title II abrogates] other rights, including those

considered to be fundamental under the Constitution." See Majority

Op. at 28, citing 124 S. Ct. at 1993. The majority also comments

that the Court " has never before recognized access to public

education or freedom from disability discrimination in education

fundamental rights.” id., citing Plyler v. Doe, 457 U.S. 202, 221,

223, 102 S. Ct. 2382, 2396-98 (1982); City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 446, 105 S. Ct. 3249, 3257 (1985).

| agree with the majority's dicta that suggests Lane is currently

of limited application. Moreover, because Lane was written very

narrowly, | conclude that this court's decision in Reickenbacker

remains valid in holding that ADA Title Il, apart from the Lane

scenario, does not validly abrogate States’ Eleventh Amendment

immunity. See Reickenbacker, 274 F.3d at 983. The fate of § 504

abrogation was also sealed in Reickenbacker based on the court's

conclusion that Title I] and § 504 impose “virtually identical"

obligations. Id, For the reasons stated in Reickenbacker and in the

panel opinion, I would hold that Congress could not constitutionally

abrogate state sovereign immunity in § 504 or the similarly

structured IDEA statute pursuant to § 5 of the Fourteenth

Amendment. The remedies imposed by those laws "far exceed [ }

[those] imposed by the Constitution, and [I] cannot conclude that

they are congruent and proportional to the legislative findings of

unconstitutional discrimination against the disabled by the states."

Reickenbacker, 274 F.3d at 983.

Ill. CONCLUSION

For the foregoing reasons, | conclude that during a narrow

period of time, based on uncertainty in the Supreme Court's

evolving Eleventh Amendment doctrine, the State of Louisiana did

not knowingly waive its Eleventh Amendment sovereign immunity

when it accepted federal funds under § 2000d-7(a).

| respectfully dissent.

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2005

Charles R. Fulbruge Ill

Cierk

REVISED OCTOBER 27, 2005

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-10190

LUCINDA G. MILLER; ELAINE KING-MILLER,

Plaintiffs-Appellees,

VERSUS

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER,

ET AL

Defendants-Appellants.

Appeal from the United States District Court

For the Northern District of Texas

Consolidated with

No. 02-30318

No. 02-30369

THEODORE JOHNSON,

Plaintiff-Appellee

VERSUS

LOUISIANA DEPARTMENT OF EDUCATION, ET AL

Defendants

LOUISIANA DEPARTMENT OF EDUCATION; STATE OF

LOUISIANA; PRESIDENT OF LOUISIANA STATE

UNIVERSITY SYSTEM; BOARD OF REGENTS

Defendants-Appellants,

and

LYNN AUGUST

Plaintiff-Appellee

VERSUS

SUZANNE MITCHELL, ET AL

Defendants-Appeliants

Before KING, Chief Judge and JOLLY, HIGGINBOTHAM,

DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA,

DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, and

PRADO, Circuit Judges.*

DAVIS AND WIENER, Circuit Judges:

This consolidated appeal presents the same issue we recently

resolved en banc in Pace v, Bogalusa City School Board:' Does a

state waive its Eleventh Amendment immunity from suit in federal

court under § 504 of the Rehabilitation Act of 1973’ when it accepts

federal funds that are granted by Congress under authority of the

Constitution's Spending Clause and expressly conditioned on

waiver of immunity from § 504? For reasons that follow, we find

no merit in appellants’ arguments and reaffirm our conclusions in

Pace that acceptance of such federal funds operates to waive a

State's Eleventh Amendment immunity under the express

conditions of 42 U.S.C. § 2000-7.’

*Judge Owen was not a member of the court when this case was

submitted to the court en banc and did not participate in this decision.

|. 403 F.3d 272 (Sth Cir. 2005) (en banc).

2. 29US.C. § 794.

3. The factual and legal background of this consolidated appeal is

accurately and succinctly presented in the pane! opinions:

A. Johnson/August v. Louisiana Dep't of Education, 330 F.3d 362,

363-64 (Sth Cir. 2003).

Appellee Johnson was a full time student at the University

of New Orleans ("UNO") on financial aid. He is disabled by

a partial paralysis of his left foot. In February 2000, a medical

emergency caused Johnson to withdraw from UNO. Four

months later, UNO revoked Johnson's eligibility for financial

aid. Johnson successfully appealed the decision. The appeals

committee, however, did not inform Johnson of its decision

until after the fall 2000 semester had begun; the committee

also imposed academic requirements to maintain his eligibility

for financial aid. Johnson asserts that because of his late start

in fall semester classes, he was unable to comply with the

academic requirements. In January 2001, UNO denied

Johnson financial aid for the spring semester. Johnson filed

suit against the Louisiana Department of Education, the State

of Louisiana, the President of the Louisiana State University

System, the Louisiana Board of Regents, and UNO under 42

U.S.C. § 1983, Title Il of the Americans with Disabilities Act,

and § 504 of the Rehabilitation Act, alleging discrimination

against disabled students and failure to provide reasonable

accommodations.

[Lynn] August, a blind man, worked as a computer

instructor for the Louisiana Department of Social Services

("DSS"). In June 2000, DSS eliminated August's teaching

duties, averring that August failed to submit “manual

materials” required for use in the computer course. August

contended...that he submitted the necessary material at the

same time as a sighted instructor whose materials were

approved. August brought various claims for damages against

the DSS and the three state employees in their official

capacities, including claims under the ADA and the

Rehabilitation Act ( § 504).

I. BACKGROUND

Louisiana's Department of Education ("LADOE") and

Department of Social Services ("DSS")* and Texas Tech University

Health Sciences Center (“TTUHSC") (collectively “defendants")

appeal rulings of the district courts, which held that, by accepting

federal funds offered on explicit conditions of waiver, defendants

Separate district courts in the Eastern District of Louisiana

dismissed all claims against the defendants based on state

sovereign immunity except for those under § 504 of the

Rehabilitation Act. The defendants appeal, arguing that state

sovereign immunity bars the appellees’ § 504 claims.

B. Miller v. Texas Tech University Health Sciences Center,

330 F.3d 691, 691 (Sth Cir. 2003).

King-Miller began working as an administrator and

professor at [Texas] Tech in 1997. She notified Tech that she

suffered from a degenerative eye condition in August 1998;

she was diagnosed as legally blind in 1999. In 2000,she sued

Tech for allegedly failing to accommodate her disability in

violation of § 504, which prohibits discrimination against the

disabled by programs receiving federal funds.

..Tech moved to dismiss on the basis of state sovereign

immunity. The district court denied the motion, and Tech took

this interlocutory appeal.

4. The case before the panel in Johnson was a consolidated appeal

by LADOE and the Department of Social Services for the State of

Louisiana ("DSS"). LADOE and DSS consolidated their arguments into

one brief for this rehearing en banc, and therefore all arguments

accredited to LADOE are also made on behalf of DSS.

in fact waived their right to Eleventh Amendment’ immunity

pursuant to 46 U.S.C. § 2000d-7,° and were therefore amenable to

suit in federal court for § 504 violations. Later, a panel of this court

in Pace v. Bogalusa City School Board’ ("Pace |") held that, despite

the express provision in the grant that entitlement of the grantee to

accept the funds was conditioned on such a waiver, a State did not

waive Eleventh Amendment immunity from suit under § 504 by

accepting federal funds at a time when, based on the then-current

state of the pertinent case law, the State had reason to believe that

it had no such immunity to waive. Two panels of this court, relying

on Pace I, reversed the district courts’ denials of Eleventh

Amendment Immunity and dismissed the plaintiffs’ claims under §

504.

5. The Eleventh Amendment to the United States Constitution states:

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.

6. Section 2000d-7 (aX!) provides in pertinent part:

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_..or the provisions of any other

Federal statute prohibiting discrimination by recipients of

Federal financial assistance

7. 325 F.3d 609 (Sth Cir. 2003).

8. See Miller v. Tex. Tech Univ. Health Sei, Ctr., 330 F.3d 691 (Sth

Cir. 2003) ; Johnson v. La, Dept. of Educ.,330 F.3d 362 (Sth Cir. 2003).

We later reheard Pace en banc and held that, then as now, a

State did waive Eleventh Amendment immunity from suit under §

504 by accepting federal funds under such circumstances (“Pace

It").’ Prior to rehearing Pace en banc, we had agreed to rehear the

instant cases en banc, but postponed rehearing them pending our

decision in Pace II.

After Pace I] was announced, we asked the parties in these

cases to submit supplemental briefs explaining which of their

arguments regarding Eleventh Amendment immunity from suits

under §504 remained viable and which had been foreclosed. In

response, the defendants conceded that Pace I] forecloses all their

arguments except three.

First, both LADOE and TTUHSC contend that no valid waiver

of Eleventh Amendment immunity occurred because, even though

they received federal funds, none of the state agencies was

expressly authorized by state law to waive its respective state's

immunity from suit under § 504. Second, TTUHSC contends that

Pace I] did not address the issue whether § 504 and § 2000d-7 place

conditions on federal funds that are not reasonably related to the

purpose of the expenditure, which is part of the test for valid

Spending Clause legislation set forth by the Supreme Court in

South Dakota v. Dole.” Third, LADOE asserts that it did not

“knowingly waive" Eleventh Amendment immunity under §

2000d-7 by accepting federal funds, contending that this argument,

although rejected in Pace I], should be reexamined in light of the

Supreme Court's subsequent decision in Jackson v. Birmingham

Board of Education. ''

9. 403 F.3d 272.

10. 483 U.S. 203, 207 (1987).

11. _US._, 125 S. Ct. 1497 (2005).

Il. STATE IMMUNITY UNDER THE ELEVENTH

AMENDMENT

A. E hority to Waive |

We consider first defendants’ argument that they did not waive

their states’ Eleventh Amendment immunity from suit under § 504

because they lacked express authorization to do so under state law.

Defendants do not challenge that they were authorized under state

law to accept federal funds or that each received federal funds."

12. LADOE is authorized to accept federal funds pursuant to

LA.REV. STAT. ANN. § 17:24(C), which provides in pertinent part:

The board [LADOE] is hereby designated as the State Agency

with respect to federal funds for those programs under the

jurisdiction of the board. The State Department of Education

shall administer and distribute all federal funds received for the

benefit of those phases of education under the jurisdiction of the

board. (emphasis added).

Similarly, LA. REV. STAT. ANN. § 46:51(6) provides that the

Department of Social Services of Louisiana [DSS] may " [a] ct as the

agent of the state to cooperate with the federal government...and in the

administration of federal funds granted in the state to aid in the

furtherance of any functions of the department, and be empowered to

meet such federal standards as may be established for the administration

of such federal funds." (emphasis added).

Likewise, TEX. EDUC. CODE. ANN. § 110.08, which governs the

funding of TTUHSC, provides in pertinent part, "The board [of

TTUHSC], in its discretion, may accept and administer grants and gifts

from the federal government...for the use and benefit of the Health

Sciences Center.”

Defendants insist, however, that as state agencies, their authority to

accept federal funds is insufficient to waive Eleventh Amendment

immunity, which, they argue, cannot be validly waived without

express statutory authority.

Defendants’ argument fails to recognize that grant programs

based on the Spending Clause are to be interpreted under ordinary

contractual principles.’ In these cases, the defendants were

authorized by the State to accept the benefits of substantial sums of

federal Spending Clause money burdened with the clearly stated

condition under § 2000d-7 that acceptance waives immunity from

suit in federal court. The statutory powers of attorney provided to

defendants by their respective state legislatures to accept,

administer, and expend such federal funds necessarily inciudes the

authorization to accept the conditions that come along with those

funds. Clothed with this authority, the defendants held themselves

out to have authority from their states to comply with the

conditions imposed by Congress in the statute. These conditions

are inseparable trom the offer of the funds: The States (or their

authorized agencies) may reject the condition of waiver of Eleventh

Amendment immunity by rejecting the funds, or they may accept

the funds and the conditions; they cannot, however, accept the

benefits of the funds and reject the inextricably intertwined

condition of waiver by claiming post hoc that the delegation of

authority to accept the funds did not carry with it the authority to

waive immunity. This is hornbook contract and agency law.

Therefore, we reject defendants’ argument that they retain

Eleventh Amendment immunity because they lacked express

13. Barnes v. Gorman, 536 U.S. 181, 186 (2002).

statutory authority to waive their states’ Eleventh Amendment

immunity."

B. Relatedness

We next address TTUHSC's argument that § 504 and §

2000d-7 are unconstitutional Spending Clause legislation because

they place conditions on federal grants that are not reasonably

related to the purpose of the expenditure. This is often referred to

as the “relatedness” prong of the Dole test for valid Spending

Clause legislation.’ According to TTUHSC, they are not governed

by § 504 because none of the federal funds they received were

earmarked for § 504 goals of preventing disability discrimination

or accommodating disability. TTUHSC urges that, if we determine

that the immunity waiver condition imposed by § 504 is not limited

to Rehabilitation Act funding but that they accompany all! federal

funding, we should hold that § 504 fails the “relatedness” prong of

the Dole test.

TTUHSC failed to raise this argument in its briefs before

either the district court or the original panel of this court. Neither

did it argue the point in its original en banc brief. In Pace I], we

concluded that the state defendant had waived this “relatedness”

argument because it failed to argue the point before the original

panel and did not argue it in its en banc brief beyond a bare

14. This disp: sition makes it unnecessary for us to consider what

effect the Supremc Court's decision in

University System of Georgia, 535 U.S. 613 (2002), has on this issue.

15. Under Dole, conditions attached to Spending Clause legislation

are valid only if they are (a) attached to expenditures that benefit the

general welfare, (b) unambiguous, (c) reasonably related to the purpose

of the expenditure to which they are attached; and (d) not in violation of

an independent constitutional provision. 483 U.S. at 207-08.

party who fails to make an argument before either the district court

or the original panel waives it for purposes of en banc

consideration. "’

If we are required to address this argument because it relates to

Eleventh Amendment immunity, and as such may be a

“jurisdictional” defense that cannot be waived,"* we reject it. We

agree with the four circuit courts that have addressed this issue and

concluded that, if the involved state agency or department accepts

federal financial assistance, it waives its Eleventh Amendment

immunity even though the federal funds are not earmarked for

programs that further the anti-discrimination and rehabilitation

16. 403 F.3d at 281 9 32.

17. See Communication Workers of America v. Ector County, 392

F.3d 733, 748 (Sth Cir. 2004) (failure to brief an issue constitutes waiver

on appeal); Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499

(Sth Cir. 2004) (party waived argument not included in original brief to

panel) ; Cooper Ind. v. Tarmac Roofing. Inc,, 276 F.3d 704, 711 (Sth Cir.

2002) (argument not raised before original pane! waived), and Lowry y.

Bankers Life and Cas. Retirement Plan, §7! F.2d 522, 525 (Sth Cir. 1989)

(refusing to consider an argument raised for the first time in a petition for

rehearing). See also FED. R. APP. P. 28 (a) (9) (A) (stating that an

appellant's brief must contain “appellant's contentions and the reasons for

them, with citations to the authorities and parts of the record on which the

appellant relies.”).

18. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (because

defense of Eleventh Amendment immunity is a jurisdictional bar to the

plaintiff's suit, court of appeal did not err in considering defense when it

was not argued before the district court).

goals of § 504." Chief Judge Scirica’s persuasive opinion for the

Third Circuit in Koslow is particularly helpful in explaining this

point.

In that case, the State of Pennsylvania received federal

financial assistance for the State Criminal Alien Assistance

Program, established to alleviate costs states incur in imprisoning

illegal aliens who commit state offenses.” The state furnished

these funds to the Pennsylvania Department of Corrections.”' The

plaintiff, Mr. Koslow, was employed by the Department of

Corrections as a supervisor at the prison's water treatment plant and

brought a § 504 suit against his employer for failing to

accommodate his disability following a work related injury.”

The state defendants argued that the federal government's

interest in the federally funded program was too attenuated from the

general waiver of immunity set forth in § 2000d-7 respecting claims

under § 504. The Koslow court disagreed and concluded that

receipt of federal funding by an agency operated as a waiver of that

agency's Eleventh Amendment immunity even though the funds are

not earmarked for § 504 purposes. The court gave three reasons for

its conclusion. First, the panel found that:

374 F. 3d Senne Cir, 2004); Lovell v.Chandler,303 F.3d 1039 (9th

Cir. 2002); Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d

Cir. 2002); JimC. V. United States, Atkins Schoo] District,235 F.3d 1079

(8th Cir. 2000) (en banc).

20. Koslow, 302 F.3d at 166-67.

21. Id. at 167.

22. Id, at 165.

[t] hrough the Rehabilitation Act [§ 504], Congress has

expressed a clear interest in eliminating disability-based

discrimination in state departments or agencies. That

interest, which is undeniably significant and clearly

reflected in the legislative history, flows with every dollar

spent by a department or agency receiving federal funds.

The waiver of the Commonwealth's immunity from

Rehabilitation Act claims by Department of Corrections

employees furthers that interest directly.”

Second, § 2000d-7 limits the waiver to the agency or

department that receives federal funds and does not require waiver

by other agencies or the state as a whole.“ The court concluded

that "[t}his limitation helps ensure the waiver accords with

the' relatedness’ requirement articulated in Dole.””

Finally, the court observed that, as a practical matter, § 504

funds received by specific state departments or agencies are

frequently not tracked, making it virtually impossible to determine

how the agency spent the federal dollars and whether the federal

funds paid for the affected employee's salary or benefits.”

For the same reasons articulated in Koslow, we reject the

TTUHSC's argument that the substantial federal financial assistance

for education it received is unrelated to the goals of § 504 and

therefore fails Dole's “relatedness” requirement

C. Jackson v. Birmingham Board of Education

23. Id, at 175-76 (internal citation omitted)

24. Id, at 176

25. Id.

26. Id.

Finally, LADOE argues that it did not “knowingly” waive

Eleventh Amendment immunity from suit in federal court under §

504 in accordance with § 2000d-7 by accepting federal funds. As

LADOE acknowledges, this argument was considered and rejected

by our en banc majority in Pace [].”” LADOE nevertheless argues

that the Supreme Court's decision in Jackson v. Birmingham Board

of Education,” requires us to re-examine the issue, repudiate the

reasoning of Pace I], and adopt the analysis of Pace]. In Pace |, the

panel held that the state defendant did not “knowingly” waive its

Eleventh Amendment immunity by accepting federal funds because,

at the time it received those funds, the prevailing legal authorities

suggested that it had no Eleventh Amendment immunity from suits

under § 5u4.”

In rejecting the Pace | panel's syllogism, the en banc court in

Pace |] held that, in accordance with Pennhurst State School &

Hospital v. Halderman,” “the only ‘knowledge’ that the Court is

concerned abou’ is a state's knowledge that a Spending Clause

condition requires waiver of immunity, not a state's knowledge that

it has immunity that it could assert.”’' We also stated in Pace I]

that, "[a}t bottom...if Congress satisfies the clear statement rule, the

knowledge prong of the Spending Clause waiver analysis is

27. 403 F.3d at 282-85

28. US. 128 S.Ct. 1497 (2005).

29. 325 F.3d at 617

3. 451 US. 1 (1981)

31. 403 F.3d at 279 (emphasis in original), see also Dole, 483 U.S

at 207 (quoting Pennhurst)

fulfilled."” Finding that § 504 and § 2000d-7 clearly and

unambiguously conditioned the receipt »f § 504 funds on waiver of

a State's Eleventh Amendment immunity from suits grounded in §

504, we heid that the State had "knowingly waived” immunity from

suits under § 504.”

LADOE does not argue that § 504 and § 2000d-7 fail the "clear

statement rule” of Pace I]; rather LADOE contends that in Jackson

(decided after Pace IJ), the Supreme Court repudiated this “clear

statement rule" and replaced it with a “notice” rule. In Jackson, the

male coach of a high school’s girls basketball team asserted a

retaliation claim against the local schoo! board, grounding his claim

in Title IX. The school board argued that, because retaliation

claims are not expressly authorized by the language of Title [X, it

was not put on notice of the potential for retaliation claims under

the statute.”

The Supreme Court agreed that, because Title IX was passed

pursuant to the Spending Clause, “private damage actions are

available only where recipients of federal funding had adequate

notice that they could be liable for the conduct at issue.””

Consonant with its holding in Pennhurst, the Court reiterated its

position that a State must be aware of the conditions imposed on

receipt of federal funds for there to be "knowing acceptance” of

those conditions.” Acknowledging that Title [X is silent on the

32, 403 F.3d at 279.

33. Id. at 282-85

34. 125 S. Ct. at 1508-09

35. Id, (internal citation omitted)

36. Id, at 1509 (quoting Pennhurst, 45! US. at 17).

question of the fund recipient's amenability to retaliation suits, the

Court looked to its prior decisions dealing with the scope of

remedies available under Title [IX and concluded (in the absence of

a “clear statement") that the school board nevertheless had

sufficient "notice" because:

[T}he Board should have been put on notice by the fact

that our cases since Cannon [v. University of Chicago,

441 U.S. 677 (1979)], such as Gebser [v. Lago Vista

Independent School Dist., 524 U.S. 274 (1998)} and

Davis [v. Monroe County Bd. of Ed., 526 U.S. 629

(1999)], have consistentiy interpreted Title [X's private

cause of action broadly to encompass diverse forms of

intentional sex discrimination.”

LADOE would have us read Jackson as the Court's abandoning

of College Savings Bank's"clear statement rule" that we applied in

Pace Il, and replacing it with a “notice” test of what the recipients

of the funds should have known at the time the funds were

accepted. We cannot read such a sweeping change into the court's

opinion in Jackson, Title LX, the statute at issue in Jackson, is silent

(or at least ambiguous) regarding retaliation; in contrast, the

Spending Clause statutes we addressed in Pace Ii were clear and

unambiguous regarding waiver: Section 2000d-7 expressly and

unambiguously states that parties waive their Eleventh Amendment

immunity to actions under § 504 by accepting federal funds.

Moreover, there is no language in Jackson that can be pointed to in

support of a conclusion that the Court desired to modify, much less

repudiate, the well-established rule with such along and

distinguished history laid out in Pennhurst, Dole, and College

Savings Bank that “if Congress intends to impose a condition on the

grant of federal moneys, it must do so unambiguously,” and “speak

37. Id

with a clear voice.” Stated differently, nothing in Jackson

undermines Pace II's holding that a clear statement like the one

found in § 2000d-7 is sufficient to satisfy the "knowing"

requirement for a waiver to be valid.” Even if Jackson can be

interpreted as standing for the proposition that a clear and

unambiguous statement from Congress is not the exclusive road to

a “knowing waiver,” it cannot be read to call into question the

holding in Pace II that the presence of a clear statement is sufficient

to satisfy the need for a waiver to be “knowing.” Accordingly,

LADOE's Jackson argument in this regard fails.

Ill. CONCLUSION

We hold that LADOE, DSS, and TTUHSC are not entitled to

Eleventh Amendment immunity in these consolidated cases. We

therefore affirm the district courts’ denials of defendants’ motions

to dismiss plaintiffs’ claims under § 504 on the basis of such

immunity, and we remand the cases to the district courts from

whence they came for further proceedings.

AFFIRMED AND REMANDED.

38. Pennhurst, 45! U.S. at | 7 (citations omitted), see also Dole, 483

U.S. at 207.

EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH,

GARZA, DeMOSS and CLEMENT, Circuit Judges, concurring in

part and dissenting in part:

The en banc decision in Pace v. Bogalusa City School Board,

403 F.3d 272 (Sth Cir. 2005), held that a state voluntarily and

knowingly waived its Eleventh Amendment immunity, as a matter

of federal law, from suits for damages in federal court by accepting

federal Rehabilitation Act funds made subject to 42 U.S.C. §

2000d-7. We adhere to the arguments in the dissent from that

decision. We concur, however, in the court's disposition of the

states’ fallback arguments in these cases.”

39. Of course, the court's conclusion here that state law properly

authorized the state officials to execute contracts in no way undercuts the

arguments in dissent from Pace that the federal law during the relevant

time period (1996 through 1998) did not communicate to the states that

they possessed Eleventh Amendment sovereign immunity to waive. See

Pace, 403 F.3d at 30! (Jones, J.,dissenting).

No. 05-671

In the

Supreme Court of the United States

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Petitioner.

JULIE DUNLOP ESPINOZA, ET AL.

Respondents.

On Petition for Writ of C: rtiorari to the

United States Court of Appeals for the Fifth Circuit

PETITIONER’S REPLY

GREG ABBOTT R. TED CRUZ

Attorney General of Texas Solicitor General

BARRY R. MCBEE Counsel of Record

First Assistant Attorney RANCE L. CRAFT

General Assistant Solicitor General

EDWARD D. BURBACH

Deputy Attorney General

for Litigation

AMY WARR

Assistant Solicitor General

P.O. Box 12548

Austin, Texas 78711

(512) 936-1700

TABLE OF CONTENTS

Table of Authorities . .

*eeeeeeeveeeeveeeeeeeeeeeeeeeteneneeee

EET ETET CRE TITRE POC eT Pee eee Te

I. The Circuits Are Split Regarding Whether the Language

of Section 2000d-7(a) Can Give Rise to a State's

Knowing Waiver of Sovereign Immunity. ...........

Il. The Court Has Not Upheld Congress's Authority to

Impose Conditions on Any Type of Federal Funding

Based Solely on a General Interest in Discouraging

SL i.se06.oé6edaeelsavete canneneeee

I ae kml ES a ee ee

TABLE OF AUTHORITIES

Cases

Barbour v. Wash. Metro. Area Transit Auth.

374 F.3d 1161 .CADC 2004) ..... eee ep! eee 46

Bd. of Trs. of the Univ. of Ala. v. Garrett.

531 U.S. 356 (2001)... 3

Garcia v. SUNY Health Scis. Ctr,

280 F.3d 98 (CA2 2001) . y

Grove City Coll. v. Bell, 465 U.S. 555 (1984) ........ 4.6

Lau v. Nichols, 414 U.S. 563 (1974) ............. i. 4,5

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272

(CAS 2005) (en banc) .......... Fe et ae a 2

Pennhurst State Sch. & Hosp. v. Halderman,

Gn See Peet. cove ious sdenen igh, eens 2,3

Reickenbacker v. Foster, 274 F.3d 974 (CAS 2061) ......... 3

South Dakota v. Dole. 483 U.S. 203 (1987) ........ 4-6

Tennessee v. Lane, 541 U.S. 509 (2004) ............... 3

Statutes and Rules

42U S.C

45 CFR

§2000d

§2000d-7(a) .

S80. 3(b\ 1)

No. 05-671

In the

Supreme Court of the United States

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Petitioner,

JULIE DUNLOP ESPINOZA, ET AL.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITIONER’S REPLY

The court of appeals in this case affirmed its precedent that (1)

a “janus-faced” statute that fails to indicate whether its expunction

of States’ sovereign immunity is achieved directly by abrogation or

indirectly by consent is nonetheless “unambiguous”, and (2) a state

agency that accepts any federal funds must forfeit its immunity

from Rehabilitation Act suits in aid of Congress’s general interest

in prohibiting disability discrimination. The United States makes

no effort to dispute these holdings’ significant implications, arguing

only that they are correct. But the United States’ thin defense of the

decision below does not dispel the fundamental problems with the

court of appeals’s analysis. The Court should grant the petition to

address the important issues presented in this case.

ARGUMENT

I. THe CIRCUITS ARE SPLIT REGARDING WHETHER THE

LANGUAGE OF SECTION 2000d-7(a) CAN Give RISE TO A

STATE’S KNOWING WAIVER OF SOVEREIGN IMMUNITY.

In its response to the petition, the United States does not dispute

the importance of the first question presented: whether 42 U.S.C.

§2000d-7(a) contains the prerequisites for a knowing, valid waiver

of Eleventh Amendment immunity when a State accepts federal

funds. Rather, the United States merely asserts that the decision

below was correct. See Br. Opp. 10-13.

The United States does dispute, however, the existence of a

relevant circuit split. It argues that the disagreement between the

Second Circuit in Garcia v. SUNY Health Sciences Center, 280

F.3d 98 (CA2 2001), and the decision below concerns a know:ng-

waiver issue distinct from the clear-statement question raised in the

petition. See id, at ll & n.1.

But these two questions cannot be so neatly parsed. Rather,

they are interwoven: “There can, of course, be no knowing

acceptance if a State is unaware of the conditions or is unable to

ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981). In other words, a State cannot

be aware of the conditions of acceptance if Congress's offer is

ambiguous. Garcia concluded that a State, reading the language of

Section 2000d-7(a) and the applicable case law, could have

believed that the statute abrogated its immunity. 280 F.3d, at 114.

That decision directly conflicts with the Fifth Circuit’s conclusion

in Pace v Bogalusa City School Board, 403 F.3d 272 (CAS 2005)

(en banc), that Section 2000d-7(a) unambiguously invited States to

voluntarily waive their immunity. See Pet. App. 34-39.

Moreover, in an attempt to diminish the importance of the

conflict, the United States incorrectly argues that the Garcia

rationale is no longer viable. In Garcia, the Second Circuit held

that a State did not knowingly waive its immunity under Section

504 of the Rehabilitation Act by accepting federal funds because,

at that time, it could have reasonably believed that its immunity had

already been abrogated. 280 F.3d, at 114. This Court’s subsequent

decision in Board of Trustees of the University of Alabama v

Garrett, 531 U.S. 356 (2001), held that Title I of the Americans

with Disabilities Act was an invalid abrogation of States’ immunity

under Section 5 of the Fourteenth Amendment. After Garrett, then,

many believed that Title Il of the ADA—and, by analogy, Section

504 of the Rehabilitation Act—was also an invalid abrogation. See,

e.g, Reickenbacker v. Foster,274 F.3d 974 (CAS 2001) (reversing,

in light of Garrett, prior circuit precedent holding Title i] to be a

valid abrogation). And if Title Il was widely assumed to be an

invalid abrogation, then the Garcia rationale could no longer

survive. In other words, because States could no longer reasonably

believe after Garrett that their immunity had been validly

abrogated, they must have knowingly consented to Section 504’s

conditions when they accepted federal funds.

The Garcia window would have closed permanently had the

prediction come true that Title I] would not pass constitutional

muster. But the prediction did not come true: the Court determined

that Title Il was a valid abrogation of state immunity in at least one

of the statute’s applications. See Tennessee v. Lane, 541 U.S. 509

(2004). Lane portends the reinvigoration of the Garcia rationale,

because States must inquire anew, for each application of Title II,

whether their immunity has been validly abrogated. As Lane injects

new uncertainty into the immunity calculus, the question whether

States are able “to exercise their choice knowingly, cognizant of the

consequences of their participation,” Pennhurst, 451 U.S., at 17,

assumes renewed importance. The conflict between Garcia and the

decisions of other circuits, therefore, has not been—but should

be—resolved.

i HE COURT HAS Not UPHELD CONGRESS’S AUTHORITY TO

.MPOSE CONDITIONS ON ANY TYPE OF FEDERAL FUNDING

BASED SOLELY ON A GENERAL INTEREST IN DISCOURAGING

LD) SCRIMINATION. .

As explained in the petition, South Dakota v. Dole, 483 U.S.

203 (1987), requires that conditions attached to a federal grant be

related to a federal interest in particular national projects or

programs. Pet. 24. The United States asserts that Section 2000d-

7(a) necessarily satisfies this requirement because it was patterned

after spending conditions upheid by the Court in Lau v. Nichols,

414 U.S. 563 (1974), and Grove City College v. Bell, 465 U.S. 555

(1984). Br. Opp. 14-15. This logic fails, however, because Lau

and Grove City are inapposite.

The condition applied in Law plainly satisfied the relatedness

test. Title VI of the Civil Rights Act of 1964 bans discrimination

on the basis of, inter alia, national origin in any program receiving

federal financial assistance. 42 U.S.C. §2000d. To enforce this

prohibition, the Department of Health, Education, and Welfare

(HEW) issued a regulation requiring school districts receiving

federal aid to rectify any language deficiency that deprived

national-origin-minority students of effective participation in the

district's educational programs. 45 C.F.R. §80.3(b)(1). In Lan, a

class of Chinese students sued their school district for violating this

regulation. 414 U.S., at 564-65. “{T]he school district’s failure to

provide language instruction to foreign-born students bore an

obvious relation to the federal educational appropriations the school

district received.” Barbour v. Wash. Metro. Area Transit Auth.,

374 F.3d 1161, 1174 (CADC 2004) (Sentelle, J., dissenting). For

that reason, the Court concluded that, although Congress’s power

to condition federal grants has limits, “they have not been reached

here.” Lau, 414 U:S., at 569.

By contrast, in this case there is no obvious relationship

between federal funds received by the Department and the

conditional waiver of the Department's immunity from

Rehabilitation Act suits. Whereas insuring access to instruction is

necessarily germane to providing education, prohibiting disability

discrimination is not necessarily germane to the Department's

variegated functions—e.g, highway patrol, emergency

management, and criminal-law enforcement. More importantly, the

court of appeals held that the Spending Clause does not even

require such a nexus—it upheld Section 2000d-7(a) without

examining the nature or purpose of the funds received. See Pet.

App. 89. This holding effectively removes the important limits on

Congress's sper.ding power that the Court recognized in Lau. See

414 US., at 569.

And contrary to the United States’ assertion, Lau does not stand

for the proposition that Congress may impose spending conditions

to vindicate its “interest in preventing the use of any of its funds to

‘encourage ], entrench| }, subsidize| |, or result[] in’ discrimination.”

Br. Opp. 15 (quoting Lau, 414 U.S., at 569). As Judge Sentelle has

explained, this quotation from Lau is dicta:

' “This quotation] was itself a quotation from a floor speech

given by Senator Hubert Humphrey during the debates on

the Civil Rights Act of 1964, is obvious dicta, and

singularly unpersuasive dicta at that. A policy argument

made in a floor statement by a Senator cannot be the basis

of a legal doctrine meant to restrain the very exercise of

policy-making power such an argument represents.”

Barbour, 374 F.3d, at 1173 (Sentelle, J., dissenting).

But even if Law could be construed to hold that Congress's general

interest in discouraging discrimination justified conditions attached

to any federal funds, the Court necessarily retreated from that broad

statement thirteen years later in Dole when it explained that

spending conditions must be related “to the federal interest in

particular national projects or programs.” Dole, 483 U.S., at 207

‘emphasis added) (internal citation and quotation omitted).

Grove City is even less relevant. That case involved a challenge

to a spending condition under the First Amendment, not the

Spending Clause. 465 U.S., at 575-76. Consequently, however

similar Section 2000d-7(a) is to the condition at issue in Grove

City, that decision has no bearing on whether either condition

would satisfy Dole’s relatedness requirement. See Barbour, 374

F.3d, at 1175 (Sentelle, J., dissenting) (explaining that Grove City

“sheds little light on the [Spending Clause] issues here”).

That the United States must reach back to inapposiie, pre-Dole

authority to justify Section 2000d-7(a)’s broad spending condition

only underscores the need for the Court to resolve, at last, the

question it reserved in Dole: What are “the outer bounds of the

‘germaneness’ or ‘relatedness’ limitation on the imposition of

conditions under the spending power({?]” 483 U.S., at 208 n.3.

Because the court of appeals held that Section 2000d-7(a) falls

within these bounds regardless of the nature or purpose of the

specific funds received by the Department, this case provides an

excellent vehicle for the Court to address that question.

CONCLUSION

The Court should grant the petition for writ of certiorari.

March 10, 2006

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General

EDWARD D. BURBACH

Deputy Attorney General

for Litigation

R. TED CRUZ

Solicitor Genera!

Counsel of Record

RANCE L.CRAPT

Assistant Solicitor General

AMY WARR

Assistant Solicitor General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711

(512) 936-1700

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.