(dissenting).
The facts of this case, which are adequately covered in the court’s opinion, present an emotive situation. Unfortunately the binding provisions of the Eleventh Amendment prevent me from joining the majority in concluding that David D. has an enforceable cause of action in a federal court against the Commonwealth of Massachusetts. See Pennhurst State School v. Halderman, (Pennhurst II), 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Atas-cadero State Hospital v. Scanlon, — U.S. -, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).
Assuming the validity of circumventing Pennhurst II through the “incorporation by reference” doctrine enunciated in Town of Burlington v. Department of Education, 736 F.2d 773, 778 (1st Cir.1984), this proposition is sustainable only if it meets the high standards established by Atascadero for overriding the Eleventh Amendment.1 There, as in the present case, reliance was made upon vague legislative history and general statutory language for the proposition that a federal statute, the Rehabilitation Act of 1973 (87 *425Stat. 384, as amended), had superseded the state’s immunity from suit in federal court. The Court in unusually stringent language restated the rule that had been emerging from Pennhurst II and Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979):
Congress may abrogate the State’s constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. The fundamental nature of the interests implicated by the Eleventh Amendment dictates this conclusion.
— U.S. at-, 105 S.Ct. at 3148 (emphasis supplied).
Because I believe that the present situation under the Education for the Handicapped Act, 20 U.S.C. § 1401 et seq., is indistinguishable2 from that in Atascadero under the Rehabilitation Act, and because, as in Atascadero, there is lacking unmistakably clear intention in the language of this legislation to submit the Commonwealth of Massachusetts to suit in federal court for violation of its statutes, I dissent. See also Miener v. Missouri, 673 F.2d 969, 981 (8th Cir.1982).
. Congress may override Eleventh Amendment immunity when acting pursuant to its authority under the Fourteenth Amendment, Section Five. Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614 (1976).
. See Chardón v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981).