F I L E D
United States Court of Appeals
Tenth Circuit
JUL 9 2002
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
EARNESTINE ROBINSON, as mother and next
friend of a minor, Mytesha Robinson, Cherokee
Robinson and LaJuan Robinson; REUBEN
MONTOY, as father and next friend of a minor Eric
Montoy and Ryan Montoy; KIMBERLY GWIN, as
mother and next friend of a minor Sierra Gwin and
Seth Gwin; EARL BESS, JR., as grandfather and next
friend of a minor Rene Bess; KENNA BOYCE, as
mother and next friend of a minor Keely Boyce;
SANDRA DELGADO, as mother and next friend of a
minor Cruiz Cedillo; LIEU DO, as mother and next
friend of a minor Lynette Do; EVANGELINA
GARCIA, as mother and next friend of a minor
Ezekial Garcia and Emerald Garcia; PHYLLIS
HARDING, as mother and next friend of a minor
Christopher Harding and Monique Harding;
Nos. 00-3315,
MELODY HAWKINSON, as mother and next friend
00-3332
of a minor Joseph Hawkinson; ROBERT MAYNES,
as father and next friend of a minor Lauri Maynes;
PHILLIP NGUYEN, as father and next friend of a
minor Jennie Nguyen; MARY LU TRIPPLITT, as
mother and next friend of a minor Shasta Oaks; DA
THU PHAM, as father and next friend of a minor
Sandy Thu Pham, Nicole Thu Pham and Bruce Thu
Pham; LINDA BETHKE, as mother and next friend
of a minor Andrea Bethke,
Plaintiffs-Appellees,
and
UNIFIED SCHOOL DISTRICT NO. 443, and
UNIFIED DISTRICT NO. 305,
Plaintiffs,
v.
STATE OF KANSAS; BILL GRAVES, in his official
capacity as the Governor of the State of Kansas;
LINDA HOLLOWAY, in her official capacity as the
chairperson of the State Board of Education; ANDY
TOMPKINS, in his official capacity as Commissioner
of the State Department of Education,
Defendants-Appellants.
___________________________
UNITED STATES OF AMERICA,
Intervenor-Appellee.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 99-CV-1193-MLB)
William Scott Hesse, Assistant Attorney General, Office of the Attorney General,
State of Kansas, Topeka, Kansas, for Defendants-Appellants.
Alan L. Rupe (Kelly J. Johnson with him on the brief) of Husch & Eppenberger,
LLC, Wichita, Kansas, for Plaintiffs-Appellees.
Seth M. Galanter, Attorney (Jessica Dunsay Silver, Attorney, with him on the
brief), Department of Justice, Washington, D.C., for Intervenor-Appellee.
Before SEYMOUR and PORFILIO, Circuit Judges, and STAGG, * District
Judge.
*
Honorable Tom Stagg, United States District Judge, Western District of
Louisiana, sitting by designation.
-2-
SEYMOUR, Circuit Judge.
Earnestine Robinson, on behalf of her minor children, Cherokee, LaJuan,
and Mytesha, filed suit along with other plaintiffs against the State of Kansas, its
governor, and two state education officials challenging the state’s school
financing scheme. Defendants filed motions to dismiss. The district court denied
the motions holding, inter alia, that defendants do not enjoy Eleventh Amendment
immunity from suit. Robinson v. Kansas, 117 F.Supp.2d 1124 (D. Kan. 2000).
Defendants filed an interlocutory appeal of the Eleventh Amendment immunity
issue. 1 We affirm.
I.
Plaintiffs contend the Kansas state school financing system, through a
provision for “low enrollment weighting” and “local option budgets,” results in
less funding per pupil in schools where minority students, students who are not of
1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292 and
the collateral order doctrine, which permit appeal of interlocutory decisions in a
limited set of exceptions to the final judgment rule. See Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1941); see also Timpanogos Tribe v. Conway,
286 F.3d 1195, 1199-1200 (10th Cir. 2002). The best established exception
permits an interlocutory appeal of the denial of states’ and state entities’ claims to
Eleventh Amendment immunity. Timpanogos Tribe, 286 F.3d at 1199-1200; see
also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 147
(1993).
-3-
United States origin, and students with disabilities are disproportionately
enrolled. See School District Finance and Quality Performance Act, K AN . S TAT .
A NN . §§ 72-6405 through 72-6440 (1992) (SDFQPA). According to plaintiffs,
SDFQPA and its enforcement have a discriminatory disparate impact on such
students in violation of the implementing regulations of Title VI of the 1964 Civil
Rights Act, 42 U.S.C. § 2000d-1, the Rehabilitation Act of 1973, 29 U.S.C. §§
701 et seq., and plaintiffs’ rights to due process and equal protection under the
Fourteenth Amendment. They seek an injunction barring enforcement of the Act. 2
After the parties filed their briefs with this court, and well after plaintiffs
filed their original complaint, the Supreme Court held there is no private right of
action to enforce disparate impact claims under the Department of Education
regulations issued pursuant to section 602 of Title VI, 42 U.S.C. § 2000d. 3 See
2
Plaintiffs’ original complaint specifically sought a court order requiring
defendants to revise Kansas’ school finance law to comply with federal law. In
their brief opposing defendants’ motion to dismiss, however, plaintiffs stated they
are willing to amend their complaint to request injunctive relief prohibiting
defendants from enforcing a state law found to violate federal law. The district
court “strongly” urged plaintiffs to so amend their complaint on this point,
Robinson, 117 F.Supp.2d at 1128 n.3, and plaintiffs reiterate on appeal their
willingness to do so. See Aplee. Br. at 21.
3
The Department of Education’s regulation, 34 C.F.R. § 100.3(b)(2)
(1999), relevant to this case reads:
A recipient [of federal funds] may not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin, or have
(continued...)
-4-
Alexander v. Sandoval, 532 U.S. 275 (2001). 4 The Court’s decision does not bar
all claims to enforce to such regulations, but only disparate impact claims brought
by private parties directly under Title VI. Id. at 299-300 (Stevens, J., dissenting).
Disparate impact claims may still be brought against state officials for prospective
injunctive relief through an action under 42 U.S.C. § 1983 to enforce section 602
regulations. 5 Id.
The decision in Sandoval does not affect plaintiffs’ right to bring a
disparate impact claim under section 504 of the Rehabilitation Act and defendants
do not contend otherwise. See New Mexico Ass’n for Retarded Citizens v. New
Mexico, 678 F.2d 847, 854 (10th Cir. 1982) (recognizing cause of action under
section 504 based on claims of disparate impact); see also Alexander v. Choate,
469 U.S. 287, 299 (1985) (declining to decide whether disparate impact claims
may be brought under section 504). While the language of the relevant sections
3
(...continued)
the effect of defeating or substantially impairing accomplishment of
the objectives of the program as respect individuals of a particular
race, color, or national origin.
4
The Court reaffirmed its prior holdings that a private right of action
exists under Title VI, section 601, in cases involving intentional discrimination.
See Alexander v. Sandoval, 532 U.S. 275, 279-82 (2001).
5
Plaintiffs have indicated their willingness to amend their complaint to
bring their Title VI disparate impact claims against the named state officials
under § 1983. We will thus assume for the purposes of this appeal that such
amendment will occur upon remand.
-5-
of the Rehabilitation Act and Title VI are essentially identical, compare 29 U.S.C.
§ 794 with 42 U.S.C. 2000d, the Court’s decision in Choate laid out the different
aim of the Rehabilitation Act as well as the different context in which the Act was
passed. See Choate, 469 U.S. at 296-97 (“[M]uch of the conduct that Congress
sought to alter in passing the Rehabilitation Act would be difficult if not
impossible to reach were the Act construed to proscribe only conduct fueled by a
discriminatory intent.”); see also id. at 294 n.11 (noting that by the time Congress
enacted the Rehabilitation Act every cabinet department and about 40 federal
agencies had adopted standards in which Title VI was interpreted to bar programs
with a discriminatory impact). Therefore, our decision in New Mexico Ass’n for
Retarded Citizens continues to controls.
Defendants contend the Eleventh Amendment of the United States
Constitution bars plaintiffs’ suit. Defendants maintain that Congress did not
abrogate their Eleventh Amendment immunity, that they did not waive such
immunity, and that the relief sought against state officials named as defendants
does not fall under the Ex Parte Young doctrine. 6
6
Defendants further contend the suit is barred under the Younger
abstention doctrine. See Younger v. Harris, 401 U.S. 37 (1971). Their contention
arises out of a suit plaintiffs filed in state court after defendants filed their motion
to dismiss in this case. The state suit challenges the Kansas school funding
scheme on state law and constitutional grounds. Defendants do not point to any
place in the record where they raised the issue in the district court and, based on
(continued...)
-6-
The Eleventh Amendment issue challenges our subject matter jurisdiction,
and the district court considered the matter as a Rule 12(b)(1) motion to dismiss.
We review the district court’s decision de novo. See ANR Pipeline Co. v.
Lafaver, 150 F.3d 1178, 1186 (10th Cir. 1998) (citing SK Finance SA v. La Plata
County, Bd. of County Comm’rs, 126 F.3d 1272, 1275 (10th Cir. 1997)) (dismissal
under Rule 12(b)(1) standard); see also Powder River Basin Resource Council v.
Babbitt, 54 F.3d 1477, 1483 (10th Cir. 1995) (dismissal under Eleventh
Amendment/Ex Parte Young doctrine).
II.
The Supreme Court interprets the Eleventh Amendment as a bar to suits in
federal courts against an unconsenting state brought by the state’s own citizens.
6
(...continued)
our independent review of the record, it does not appear defendants ever did so.
The district court did not rule on the matter.
Defendants maintain their failure to raise the issue below is due to the fact
that plaintiffs commenced the state proceeding after defendants filed their motion
to dismiss. This is no excuse. It is well established that we do not consider on
appeal an issue not passed on below. Lyons v. Jefferson Bank & Trust, 994 F.2d
716, 720 (10th Cir. 1993) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
While this rule is “not without exceptions,” id. at 721, such exceptions arise “only
in the most unusual circumstances.” Id. Defendants have offered no support for
a finding that such circumstances exist here. It is not even clear that we would
have jurisdiction to consider a Younger claim such as that presented in this case
on interlocutory appeal. See Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th
Cir. 2002); see also Armijo By and Through Chavez v. Wagon Mound Pub. Sch.,
159 F.3d 1253, 1264 (10th Cir. 1998). In short, we decline to reach the Younger
issue on the merits.
-7-
See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). As with all constitutional
rights, the rule of state sovereign immunity is not absolute. Congress may
abrogate such immunity in the exercise of its power to enforce the Fourteenth
Amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).
Moreover, a state may waive its sovereign immunity. See Innes v. Kan. State
Univ. (In re Innes), 184 F.3d 1275, 1278 (10th Cir. 1999); see also Lapides v. Bd.
of Regents, 122 S.Ct. 1640, 1643-44 (2002); College Sav. Bank, 537 U.S. at 670;
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985). In addition,
when a private party sues a state officer for prospective injunctive or declaratory
relief from an ongoing violation of the Constitution or federal laws, the suit is not
considered to be against the state itself and the Eleventh Amendment does not
apply. See Ex Parte Young, 209 U.S. 123, 159-60 (1908); see also Timpanogos
Tribe, 286 F.3d at 1205.
Defendants contend Congress did not validly abrogate state sovereign
immunity so as to allow plaintiffs to sue them in federal court. They further
maintain Kansas has not waived its sovereign immunity from suit in federal court.
Finally, they contend Ex Parte Young is inapplicable in this case. Because we
hold that Kansas has waived its sovereign immunity with respect to the claims
-8-
against it for violation of the Rehabilitation Act, 7 we need not reach the
abrogation claim. We also hold that the Ex parte Young doctrine is applicable to
permit suit against the state officials pursuant to section 1983 for the alleged
violations of Title VI and the Fourteenth Amendment.
A.
As the Supreme Court has bluntly stated, it is an “unremarkable. . .
proposition that the States may waive their sovereign immunity. . . .” Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 65 (1996). Such waiver may occur
through a variety of statements or actions. Waiver may be voluntary, such as
when a state invokes federal court jurisdiction. See Lapides, 122 S.Ct. at
1643-44; College Sav. Bank, 527 U.S. at 675. Waiver can also occur when the
state “unequivocally” expresses its intent to submit itself to our jurisdiction.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). While an
unequivocal expression of waiver may be effected by language in a state statute or
constitutional provision, waiver may also result from a state’s actions,
specifically, its participation in a particular federal program. See Innes, 184 F.3d
at 1278 (quoting Atascadero, 473 U.S. at 238 n.1); see also id. at 1280 (“[W]aiver
7
Parties briefed the waiver and abrogation claims as they relate to
plaintiffs’ Title VI claim. As discussed above, plaintiffs’ disparate impact claim
may no longer be brought directly under Title VI but only via section 1983. Thus,
this section of our decision relates only to plaintiffs’ claim under the
Rehabilitation Act.
-9-
may be found not only in the text of a state statute or constitution but also by
examining the underlying facts and circumstances of the case.”). Any waiver
requires “an unequivocal indication that the State intends to consent to federal
jurisdiction that would otherwise be barred by the Eleventh Amendment.”
Atascadero, 473 U.S. at 238 n.1. Such is the case now before us.
The Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., was enacted to
combat disadvantage suffered by and imposed upon people with mental and
physical disabilities. See 29 U.S.C. § 794. While Congress may have intended
the tenets of this statute to apply to states and state entities, the Supreme Court
was not convinced. In Atascadero, the Court held the Rehabilitation Act “falls
far short of manifesting a clear intent to condition participation in the programs
funded under the Act on a State’s consent to waive its constitutional immunity.”
Atascadero, 473 U.S. at 246. Declaration of this clear statement rule led
Congress, in 1986, to amend, inter alia, the Rehabilitation Act and Title VI, to
include such a clear statement.
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 [29 U.S.C. 794], title IX of the
Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age
Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil
Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other
Federal statute prohibiting discrimination by recipients of Federal financial
assistance.
42 U.S.C. § 2000d-7(a)(1).
-10-
In Lane v. Pena, 518 U.S. 187, 197-200 (1996), the Supreme Court
declared section 2000d-7 to constitute “the sort of unequivocal waiver that our
precedents demand.” 8 We therefore hold that by accepting federal financial
assistance as specified in 42 U.S.C. § 2000d-7, states and state entities waive
sovereign immunity from suit. In doing so, we join our sister circuits who have
uniformly so held as well. See Jim C. v. United States, 235 F.3d 1079, 1081-82
(8th Cir. 2000) (en banc); Pederson v. Louisiana State Univ., 213 F.3d 858, 875-
876 (5th Cir. 2000); Stanley v. Litscher, 213 F.3d 340, 344-45 (7th Cir. 2000);
Sandoval v. Hagan, 197 F.3d 484, 493-94 (11th Cir. 1999), rev’d on other
grounds, Alexander v. Sandoval, 532 U.S. 275 (2001); Litman v. George Mason
Univ., 186 F.3d 544, 553-54 (4th Cir. 1999); Clark v. California, 123 F.3d 1267,
1271 (9th Cir. 1997).
Defendants also rely heavily upon our decision in In re Innes. Innes
involved a question of waiver of sovereign immunity in the context of a contract
between Kansas State University (KSU) and the United States Department of
Education. The contract required KSU to perform certain actions, including
8
Defendants contend the language in Lane is inapplicable here because
Lane involved waiver of federal sovereign immunity. Aplt. Br. at 36. Aside from
the fact that their brief on this point confuses abrogation and waiver, their
contention is misplaced. While the specific facts of Lane may differ from those
before us, the Court in that case described section 2000d-7as “an unambigous
waiver of the States’ Eleventh Amendment immunity.” Lane, 518 U.S. at 200.
-11-
submitting to federal court jurisdiction. No federal statute was involved, so the
court was forced to inquire into the context surrounding the formation of the
contract and the state statutes authorizing the making of such contracts by the
state board of regents. Here, we have a federal statute under which a state
unequivocally waives its immunity when it chooses to accept federal financial
assistance. Defendants do not contend they did not voluntarily accept these
funds, see Litman, 186 F.3d at 553, nor do they contend Congress has exercised
its spending clause powers in an unconstitutional manner, see id. at 552-553
(citing South Dakota v. Dole, 483 U.S. 203 (1987)); see also College Sav. Bank,
527 U.S. at 686 (same). Thus, we fail to see how Innes is applicable. 9
III.
Plaintiffs also bring claims against Kansas’ governor, the chairperson of the
Kansas Board of Education, and the commissioner of the Kansas Board of
Education in their official capacities seeking relief in the form of an injunction
barring them from enforcing state laws found to be violative of federal law. We
9
Defendants further argue they should not be held responsible for any of
the actions alleged in plaintiffs’ complaint because the Kansas Board of
Education is “simply a conduit for federal funds which flow to local school
boards. . . .” Aplt. Br. at 39. This fact is irrelevant when it is the Kansas Board
of Education that applies for and administers federal funding and thus assures that
it, as well as end-recipients of the funding, will abide by laws and rules attached
to such financial assistance. See Aplee. Supp. App. at 28-29 (Form signed by
Kansas Board of Education Commissioner assuring, inter alia, compliance with
“all Federal statutes relating to nondiscrimination.”).
-12-
deal here with plaintiffs’ Fourteenth Amendment claims. Our analysis will apply
equally to plaintiffs’ Title VI claims if plaintiffs amend their complaint on
remand to allege a violation of Title VI under section 1983. 10
As discussed above, the Ex Parte Young doctrine permits suits seeking
prospective injunctive relief against state officials acting in their official
capacities. See Ex Parte Young, 209 U.S. at 159-160 (1908); see also Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989); Elephant Butte
Irrigation Dist. v. Dep’t of the Interior, 160 F.3d 602, 607-608 (10th Cir. 1998).
In determining whether the Ex Parte Young doctrine governs a case, we apply a
four-part framework.
First, we determine whether the action is against state officials or the state
itself. Second, we look at whether the alleged conduct of the state officials
constitutes a violation of federal law. Third, we assess whether the relief
sought is permissible prospective relief or analogous to a retroactive award
of damages impacting the state treasury. Finally, we analyze whether the
suit rises to the level of implicating “special sovereignty interests.”
Timpanogos Tribe, 286 F.3d at 1205 (quoting ANR Pipeline Co., 150 F.3d at
1193). 11
10
See supra notes 2 and 5.
11
Relying on a misreading of the Supreme Court’s decision in Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), defendants assert that
because a state forum is available to plaintiffs, Ex Parte Young does not apply.
However, Coeur d’Alene Tribe clearly states there are two instances in which the
Ex Parte Young doctrine applies. Id. at 270. The first is when no state forum is
available to vindicate federal interests. Id. The Court then gives a “second
(continued...)
-13-
Applying the facts of this case to the doctrine of Ex Parte Young renders an
easy conclusion. Without question, this action is against state officials acting in
their official capacity: the Governor, the Commissioner of the state Board of
Education, and the Chairperson of the state Board of Education. Relying upon a
decision from the District of Maryland, defendants assert Ex Parte Young does
not apply because the state was named as a party. See Farmer v. Ramsay, 41
F.Supp.2d 587 (D. Md. 1999). However, even that decision acknowledged that
while a state may not be sued directly for a violation of the Fourteenth
Amendment, a party may seek prospective injunctive relief against state officials.
See id. at 591. Insofar as plaintiffs seek such relief against defendant state
officials, and not the state itself, their claims survive this part of the Ex Parte
Young inquiry.
It is quite clear that the alleged conduct of the state officials constitutes a
violation of the Fourteenth Amendment and, potentially, Title VI. It is also clear
that the relief sought, upon amendment of plaintiffs’ complaint, is permissible
prospective relief: an injunction barring state officials from enforcing SDFQPA in
11
(...continued)
instance in which Young” applies: “when the case calls for the interpretation of
federal law.” Id. at 274. As counsel for defendants surely would concede, the
case now before is an obvious example of the second instance.
-14-
a manner that violates federal law. 12 Although “[i]n many instances, even
prospective relief will burden the state’s treasury to some degree,” Elephant
Butte, 160 F.3d at 611 (citing Edelman, 415 U.S. at 668), this is not such an
instance. Not only will the relief not require the payment of state funds, but more
importantly it will “remedy future rather than past wrongs.” Id. (citations and
quotations omitted).
Defendants also assert plaintiffs’ claims implicate “special sovereignty
interests” similar to those set out in Coeur d’Alene Tribe, 521 U.S. at 281-88. In
Coeur d’Alene Tribe, following an epic review of the history of state control over
navigable waters, the Supreme Court held that a quiet title action for control of
such waters implicated special sovereignty interests. This court, in ANR Pipeline,
150 F.3d at 1193-94, held that states possess a special sovereignty interest in its
tax collection system. “[I]t is impossible to imagine that a state government
could continue to exist without the power to tax.” Id. at 1193. But we note that
“special sovereignty interests” exist only in “particular and special
circumstances.” Coeur d’Alene Tribe, 521 U.S. at 287. This court has described
Coeur d’Alene as an “extreme and unusual case.” Harris v. Owens, 264 F.3d
1282, 1293 (10th Cir. 2001) (quoting Elephant Butte, 160 F.3d at 612). See also
J.B. v. Valdez, 186 F.3d 1280, 1286-87 (10th Cir. 1999). Defendants have not
12
See supra note 3.
-15-
come close to convincing us that the case here is either extreme or unusual.
Again, defendants’ arguments are based on plaintiffs’ unamended
complaint and thus focus on the state’s “special sovereignty interest” in enacting
and revising its own laws rather than having a court order the legislature to revise
laws a certain way. They present no arguments as to how enjoining officials from
enforcing a state school finance law would implicate the “special sovereignty
interests” of the sort described in ANR and Coeur d’Alene Tribe. We cannot see
how the facts presented make this an “extreme and unusual case” that would
require a ruling that the relief requested implicates “special sovereignty
interests.” 13 We thus hold that defendant state officials are not protected by the
Eleventh Amendment, pursuant to the Ex Parte Young doctrine.
For the forgoing reasons, we AFFIRM the decision of the district court
denying defendants’ motion to dismiss on the basis of Eleventh Amendment
13
Defendants also assert Ex Parte Young does not apply because
defendants do not have the power to give plaintiffs the relief they seek. Their
argument is premised on plaintiffs’ original complaint seeking an injunction
forcing a change in state law. If plaintiffs amend their complaint as they have
indicated and seek an injunction prohibiting defendants from enforcing a state law
found to be violative of federal law, defendants’ contentions on this point will
become moot. Even defendants concede that the Board of Education has the
“general supervision of public schools,” Aplt. Br. at 45, the governor and the
named officials of the Board of Education are charged with enforcing the
SDFQPA, making the named officials proper parties to this suit.
-16-
immunity.
-17-