United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 28, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-31198
_____________________
WENDY RENEE BENNETT-NELSON; JOY MARIE BOYKIN,
Plaintiffs - Appellants,
versus
LOUISIANA BOARD OF REGENTS, Etc.; ET AL.,
Defendants,
LOUISIANA BOARD OF REGENTS, also known as University of Louisiana
System Board of Trustees, also known as University of Louisiana
System; STATE OF LOUISIANA; WILLIAM CARVEL FOWLER, Individually;
BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM,
formerly known as Board of Trustees, doing business as Louisiana
Tech University
Defendants - Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana, Shreveport
USDC No. 5:01-CV-2166
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Two hearing impaired students at Louisiana Tech University
(“the University”), Wendy Renee Bennett-Nelson and Joy Marie Boykin
(“the appellants”), brought this action under Title II of the
Americans with Disabilities Act of 1990 (“ADA”) and § 504 of the
Rehabilitation Act of 1973. The appellants alleged that the
University denied them equal access to education by failing to
provide educational aids and services, such as sign language
interpreters and note takers, in a timely and effective manner.
The district court dismissed the appellants’ claims, holding that
they were barred by the immunity from suit in the federal courts
granted to Louisiana by the Eleventh Amendment.
On appeal, the appellants contend (1) that the University has
waived its immunity from suit under § 504 of the Rehabilitation Act
by accepting federal funding; and (2) that Congress has validly
abrogated Eleventh Amendment immunity from suit under Title II of
the ADA. We agree that the University, as a recipient of federal
financial assistance, has waived its Eleventh Amendment immunity.
We therefore need not go further to address the abrogation issue.
Accordingly, we REVERSE and REMAND for further proceedings.
I
The facts of this case are uncomplicated and largely
undisputed. Louisiana Tech University is a public university
governed by the Board of Supervisors for the University of
Louisiana System. Although its main source of funding is the State
of Louisiana, the University also distributes approximately twenty-
one million dollars in federal financial aid to students each year.
The University’s primary sources of federal funds are the Federal
Work Study program and the Pell Grant program.
The appellants were enrolled as full-time students at the
University. Because of their hearing impairments, they requested
that the University’s Office of Disabled Student Services provide
2
certain accommodations. In particular, the appellants requested
sign language interpreters and note takers for the classes in which
they were enrolled, as well as certain study aids.
Before the district court, the appellants alleged that,
although the University did provide the requested assistance “on
rare occasions”, it routinely failed to do so. Thus, the
appellants contended, the University failed to make reasonable
accommodations for their disabilities, as required under Title II
of the ADA and § 504 of the Rehabilitation Act. See 42 U.S.C. §
12131(2); 28 C.F.R. § 42.521(a). The University responded that the
accommodations it provided were adequate, and that Louisiana’s
Eleventh Amendment sovereign immunity barred the appellants’
claims.
Upon a motion by the defendants, the district court dismissed
all of the appellants’ claims against the Louisiana Board of
Regents, the Board of Supervisors for the University of Louisiana
System, the University, and the State of Louisiana (hereinafter,
collectively, “the Louisiana appellees”), holding that these claims
were barred under the Eleventh Amendment.1 Specifically, the court
held (1) that Congress did not validly abrogate Louisiana’s
1
The district court also dismissed the appellants’ Louisiana
state law claims as insufficiently pled. See FED. R. CIV. P. 8(a).
Normally, dismissal for failure to satisfy the requirements of Rule
8 is without prejudice, and we find nothing in the district court’s
memorandum ruling to indicate that it intended otherwise. Thus, as
the appellants are free to reassert their state law claims on
remand, we need not decide whether dismissal of said claims was in
error.
3
sovereign immunity via either Title II of the ADA or § 504 of the
Rehabilitation Act; and (2) that the University had not waived its
immunity from suit under § 504. This appeal followed.
II
The sole issue before us is whether Louisiana’s Eleventh
Amendment sovereign immunity bars the appellants’ claims under the
ADA and the Rehabilitation Act. Our review is de novo.2 Our
inquiry begins, as always, with the text of the Amendment.
The Eleventh Amendment provides that “[t]he Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST. amend. XI. As we explained in Pace
v. Bogalusa City School Board, the core function of the Amendment
is to bar the authority of federal courts to litigate suits brought
by citizens against the states. See 403 F.3d 272, 276 (5th Cir.
2005) (en banc). Although, by its express terms, the Amendment
“bar[s] only federal jurisdiction over suits brought against one
State by citizens of another State or foreign state”,3 the Supreme
2
The State moved for dismissal under FED. R. CIV. P. 12(b)(6)
and 12(c). We review dismissal under either rule de novo, applying
the same standard as the district court, and asking whether “it
appears certain that the plaintiff cannot prove any set of facts
... which would entitle her to relief”. Bombardier Aerospace
Employee Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough,
354 F.3d 348, 351 (5th Cir. 2003).
3
Id.
4
Court has long held that it also precludes jurisdiction where, as
here, a citizen brings suit against her own state in federal
court.4 See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261,
267-68 (citing Hans v. Louisiana, 134 U.S. 1 (1890)).
There are two exceptions to the rule of sovereign immunity.
First, a state may waive its immunity by consenting to suit. See,
e.g., Coll. Savings Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999) (citing Clark v. Barnard, 108
U.S. 436, 447-48 (1883)). Second, Congress may abrogate state
sovereign immunity pursuant to the enforcement power conferred by
§ 5 of the Fourteenth Amendment. See id. The appellants contend
that the University –- and by extension, the remaining Louisiana
appellees -- have waived their immunity from suit under § 504, and
that Congress has validly abrogated state sovereign immunity from
suit under Title II of the ADA. We address these contentions in
turn.
A
The appellants first contend that the University has waived
its Eleventh Amendment immunity from suit under § 504 of the
Rehabilitation Act by accepting federal financial assistance.
Section 504 provides that:
No otherwise qualified individual with a
disability in the United States ...
4
Further, the Eleventh Amendment protects “state agents and
state instrumentalities” as well as the states themselves. Regents
of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).
5
shall, solely by reason of his or her
disability, be excluded from the
participation in, be denied the benefits
of, or be subjected to discrimination
under any program or activity receiving
federal financial assistance ....
29 U.S.C. § 794(a). A separate provision, 42 U.S.C. § 2000d-7,
conditions a state’s receipt of federal funds on its waiver of
Eleventh Amendment immunity to actions under § 504.5 Our task,
then, is twofold. First, we must decide whether the University is
a “program or activity receiving federal financial assistance”
within the meaning of § 504, such that the waiver condition found
in § 2000d-7 applies. If it is, we must determine whether, under
the multi-factor test set forth in South Dakota v. Dole, 483 U.S.
203 (1987), the condition represents a constitutionally permissible
exercise of Congress’ spending power.
1
The Louisiana appellees contend, and the district court
agreed, that the University is not a “program or activity receiving
Federal financial assistance” within the meaning of § 504, and
thus, does not fall within the waiver provision of § 2000d-7. As
a preliminary matter, we note that a “program or activity” is
defined as “all of the operations of ... a college, university, or
5
42 U.S.C. § 2000d-7 provides 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 section
504 of the Rehabilitation Act of 1973 ... or the provisions of any
other Federal statute prohibiting discrimination by recipients of
Federal financial assistance”.
6
other postsecondary institution, or a public system of higher
education ... any part of which is extended Federal financial
assistance”. 29 U.S.C. § 794(b)(2)(A). Thus, the precise question
before us is whether the University –- that is, any department or
other subdivision of the University -- is a recipient of federal
funds.
The University concedes that enrolled students “receive
federal funds earmarked for educational expenses”. In particular,
the University’s Director of Student Financial Aid testified that
the University receives “somewhere in the neighborhood of twenty-
one [to] twenty-two million dollars” in federal financial aid
annually. A significant portion of this aid comes from the Federal
Work Study program, under which the “federal government ...
provide[s] the university a fund of federal money that must be
matched by university money[,] which is then used [to pay] student
workers”.
Moreover, approximately five million dollars of aid comes via
the Pell Grant program, under which the federal government “writes
a check ... directly to Louisiana Tech University”, and funds are
“funneled through” the University “for distribution to the
student”. Because these funds are earmarked for educational
purposes, the University will typically distribute the money
directly to a student’s account with the school, where it is
applied toward expenses such as tuition, room and board, and meals.
7
The crux of the University’s argument is that, because it is
the student who ultimately receives the above-described federal
funds, the University is not a recipient of federal aid within the
meaning of § 504 and § 2000d-7, and thus, has not waived its
Eleventh Amendment immunity. The University’s argument, however,
is effectively foreclosed by the Supreme Court’s holdings in Grove
City College v. Bell, 465 U.S. 555 (1984), and U.S. Dept. of
Transportation v. Paralyzed Veterans of America, 477 U.S. 597
(1986).
In Grove City, the Supreme Court held that the petitioner, a
private college, was a recipient of federal funds within the
meaning of § 901(a) of Title IX,6 which prohibits sex
discrimination in “any education program or activity receiving
Federal financial assistance”. In so holding, the Court observed
that, although the college received no direct federal aid, “the
language of § 901(a) contains no hint that Congress perceived a
difference between direct institutional assistance and aid received
by a school through its students”. 465 U.S. at 564. The Court
further observed that “the economic effect of direct and indirect
assistance often is indistinguishable”, particularly insofar as
federal aid “effectively supplements [a college’s] own financial
aid program”. Id. at 565.
6
20 U.S.C. § 1681(a).
8
Later, in Paralyzed Veterans of America, the Court held that,
although airlines benefitted from federal financial assistance
given to airport operators, they were not recipients of federal aid
under § 504. See 477 U.S. 597. The Court distinguished Grove City
by noting that, in that case, “it was clear ... that Congress’
intended recipient was the college, not the individual students to
whom the checks were sent from the Government”. Id. at 606-07. By
contrast, in Paralyzed Veterans of America, the airport operators
were the intended recipients and the airlines merely beneficiaries.
Thus, under Grove City and Paralyzed Veterans of America, the
relevant question is not whether the University passes federal
funds through to students –- who, it should be noted, typically
pass them back to the University in the form of tuition payments
and other expenses –- but whether the University is an “intended
recipient” of the funds Congress has appropriated.
In this case, just as in Grove City, Congress has expressly
stated that one purpose of the relevant student aid provisions is
“to assist in making available the benefits of postsecondary
education to eligible students ... by ... providing assistance to
institutions of higher education”. 20 U.S.C. § 1070(a)(5)
(emphasis added); see also 465 U.S. at 566. Moreover, the
practical effect of the federal assistance in this case is
precisely the same: it serves to supplement the University’s
financial aid, thereby enhancing the University’s ability to enroll
and educate financially needy students.
9
The Louisiana appellees contend that this case is
distinguishable from Grove City, insofar as it involves a different
statutory provision –- § 504 of the Rehabilitation Act, as opposed
to § 901(a) of Title IX. We cannot see that such a distinction is
at all germane. The relevant portions of the two statutes are
identical -- both bar discrimination by entities “receiving Federal
financial assistance” -- and the appellees have cited us to no
authority suggesting that Congress intended the term to carry a
different meaning in § 504 than it does in § 901(a).7 If there is
any relevant distinction between the instant case and Grove City,
it is that the argument for finding that the institution is an
“intended recipient” is stronger here, as the University actively
participates in both the Federal Work Study and Pell Grant
programs.8 By contrast, Grove City College consistently refused
state and federal financial aid, receiving it only indirectly from
students who had independently sought and received Basic Education
Opportunity Grants. See 465 U.S. at 559.
In sum, here, no less than in Grove City, the University is an
intended recipient of federal financial assistance. Accordingly,
7
The Supreme Court has observed that “[t]he scope of several
other federal antidiscrimination measures [including § 504 and
Title VI] is defined in nearly identical terms” to that of Title
IX. National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 466
n.3 (1999).
8
To participate in Federal Work Study and similar programs,
an institution must fulfill certain conditions, such as applying,
being certified, and entering into a written program participation
agreement. See 34 C.F.R. §§ 673.3, 668.14.
10
for that reason, it is subject to the requirements of § 504 of the
Rehabilitation Act.
2
Because the University is a recipient of federal assistance,
we must determine, based on the five-factor test set forth in Dole,
whether the waiver condition in § 2000d-7 represents a
constitutionally permissible exercise of Congressional power under
the Spending Clause. We need not linger long on this question, as
it was recently addressed in our en banc decision in Pace.
In Pace, we concluded that a school board’s receipt of federal
education funds constituted a knowing and voluntary waiver of
sovereign immunity as to claims under § 504. See 403 F.3d at 280-
87. Specifically, we noted that the waiver language of § 2000d-7
was “unambiguous”, that the condition was sufficiently related to
the federal interest in the program funded, and that it did not
rise to the level of coercion. See id. As such, we held that the
waiver condition set forth in § 2000d-7 is a constitutionally
permissible exercise of Congress’ spending power.9
9
We reject the Louisiana appellees’ suggestion that a valid
waiver of sovereign immunity under § 2000d-7 can occur only where
federal assistance is received “under” or “pursuant to” the
Rehabilitation Act. Nothing in the text of § 504 or § 2000d-7
suggests any such limitation. To the extent that the appellees’
contention is based on some interpretation of the “knowing” waiver
requirement, we find no support in Pace or any other case for the
proposition that a waiver can be “knowing” only where a single
statute provides for both the allocation of funds and the waiver
condition.
11
We are, of course, bound by this court’s prior en banc
decision. Accordingly, we hold that the University –- and the
remaining Louisiana appellees –- have waived their Eleventh
Amendment immunity from suit under § 504 of the Rehabilitation Act
and, concomitantly, that the district court erred in dismissing the
appellants’ § 504 claims.
B
The appellants further contend that Congress has abrogated
Louisiana’s Eleventh Amendment sovereign immunity from suit under
Title II of the ADA. In Reickenbacker v. Foster, we rejected this
argument, holding that enactment of Title II did not validly
abrogate states’ sovereign immunity. 274 F.3d 974 (5th Cir. 2001).
Subsequently, however, in Tennessee v. Lane, the Supreme Court held
that the abrogation of sovereign immunity in Title II is a valid
exercise of congressional power, to the extent that it “applies to
the class of cases implicating the fundamental right of access to
courts”. 541 U.S. 509, 533-34 (2004). We have yet to decide
whether the principle of Lane extends to cases involving other
rights or, alternatively, whether our holding in Reickenbacker
continues to control in such cases. Because Louisiana has waived
its sovereign immunity from actions under § 504 of the
Rehabilitation Act, we need not address that question today.
As we explained in Pace, the rights and remedies afforded
plaintiffs under Title II of the ADA are almost entirely
duplicative of those provided under § 504 of the Rehabilitation
12
Act.10 See 403 F.3d at 287-88. The only material difference
between the two provisions lies in their respective causation
requirements. See id. at 288 (citing Soledad v. U.S. Dept. of
Treasury, 304 F.3d 500 (5th Cir. 2002)). Section 504 of the
Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability in the United States ... shall, solely
by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance ...”. 29 U.S.C. § 794(a) (emphasis added).
By contrast, under Title II of the ADA, “discrimination need not be
the sole reason” for the exclusion of or denial of benefits to the
plaintiff. Soledad, 304 F.3d at 503-04 (quoting Woodhouse v.
Magnolia Hosp., 92 F.3d 248, 253 (5th Cir. 1996)).
In Pace, we concluded that the different causation
requirements were immaterial where the plaintiff’s challenge was to
architectural barriers. See 403 F.3d at 288-89. The rationale
underlying this conclusion, although not expressly stated, is
straightforward. In addition to their respective prohibitions of
disability-based discrimination, both the ADA and the
10
Title II expressly provides that “[t]he remedies,
procedures, and rights set forth in section 794a of Title 29 [–-
i.e., § 504 of the Rehabilitation Act –-] shall be the remedies,
procedures, and rights this subchapter provides to any person
alleging discrimination on the basis of disability in violation of
section 12132 of this title”. 42 U.S.C. § 12133.
13
Rehabilitation Act impose upon public entities an affirmative
obligation to make reasonable accommodations for disabled
individuals.11 Where a defendant fails to meet this affirmative
obligation, the cause of that failure is irrelevant.12
In the instant case, there is no question that the complaint
claims the University’s failure to provide the demanded
accommodations is the sole cause of the alleged denial of benefits
to the plaintiffs. That is to say, the plaintiffs claim that they
were excluded from participation in their classes precisely to the
extent that they were not accommodated with interpreters or note
takers. The question here is not whether or to what extent the
plaintiffs suffer a disability under the ADA; nor is the question
11
Title II of the ADA requires public entities to (1) make
“reasonable modifications to rules, policies, or practices”; (2)
“remov[e] ... architectural, communication, or transportation
barriers”; and (3) “provi[de] auxiliary aids and services”, so as
to enable disabled persons to participate in programs or
activities. 42 U.S.C. § 12131(2). Likewise, the regulations
implementing § 504 mandate that “each program or facility” to which
the provision applies must be “readily accessible and usable by
handicapped persons”. 28 C.F.R. § 42.521(a). Covered entities may
be required to facilitate access via the “acquisition or redesign
of equipment, reassignment of services to accessible buildings,
assignment of aids to beneficiaries, delivery of services at
alternate accessible sites, alteration of existing facilities, or
any other method that results in making its program or activity
accessible to handicapped persons”. Id. at § 42.521(b).
12
In lieu of such an inquiry, the court must determine whether
the requested accommodation was “reasonable” –- that is, whether it
would impose “undue financial or administrative burdens” or would
require a “fundamental alteration in the nature of the program”.
See School Board of Nassau County v. Arline, 480 U.S. 273, 288 n.
17 (1987) (quoting Southeastern Community College v. Davis, 422
U.S. 397, 410, 412 (1979)).
14
whether the denial of the accommodation to that disability was
caused solely or only in part by the animus of the defendants. The
question is whether the failure to accommodate the disability
violates the ADA; and the existence of a violation depends on
whether under both the Rehabilitation Act and the ADA, the demanded
accommodation is in fact reasonable and therefore required. If the
accommodation is required the defendants are liable simply by
denying it. In short, causation is not the issue in the appeal
presented today.13
Thus, having already held that sovereign immunity does not bar
the appellants’ claim under § 504, we need not address at this
juncture the issue of abrogation under Title II of the ADA, because
the rights and remedies under either are the same for purposes of
this case.
III
For the foregoing reasons, we REVERSE the district court’s
dismissal of the appellants’ claims under § 504 of the
Rehabilitation Act and REMAND for further proceedings not
inconsistent with this opinion.
REVERSED and REMANDED.
EDITH H. JONES, Circuit Judge, concurring:
13
While the standard of causation is not material in this
appeal, we do not foreclose the possibility that, as discovery
proceeds, it may become a disputed issue.
15
I concur in the judgment and in the majority’s opinion. In my
view, it would have been appropriate to decide whether Tennessee v.
Lane extends Congress’s permissible abrogation of state sovereign
immunity in ADA Title II beyond its precise purview, i.e., the
fundamental right of access to the courts, and into the field of
education. Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). See
Pace v. Bogalusa ISD, 403 F.3d 272, 303 (5th Cir. 2005)(Jones, J.,
concurring in part and dissenting in part).
16