United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 16, 2005
UNITED STATES COURT OF APPEALS March 8, 2005
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 01-31026
TRAVIS PACE,
Plaintiff-Appellant,
VERSUS
THE BOGALUSA CITY SCHOOL BOARD, LOUISIANA STATE BOARD OF
ELEMENTARY AND SECONDARY EDUCATION, THE LOUISIANA DEPARTMENT
OF EDUCATION, and THE STATE OF LOUISIANA,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS and
PRADO, Circuit Judges.1
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 II of the
Americans with Disabilities Act (ADA or Title II) and § 504 of the
1
Judge Clement recused herself and did not participate in this decision.
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
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.
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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 System2
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
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
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.”
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statutes.3 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.
II. 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 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.4
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.5
These forty-three words —— adopted in swift response to the Supreme
3
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 (5th Cir. 1994);
F.R.A.P. 28(a)(9)(A).
4
The waiver argument does not apply to Title II because the ADA does not condition the
receipt of federal funds on compliance with the Act or waiver of Eleventh Amendment immunity.
Rather, Title II applies to public entities regardless of whether they receive federal funds. See 42
U.S.C. § 12132.
5
U.S. CONST. amend. XI.
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Court’s holding in Chisholm v. Georgia6 that Article III permitted
a state to be sued in federal court7 —— protect states from such
litigation.8 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.”9 The immunity
afforded to states under the Eleventh Amendment “implicates the
fundamental constitutional balance between the Federal Government
and the States.”10 Therefore, at its core, the Eleventh Amendment
serves “as an essential component of our constitutional
structure.”11
Nevertheless, Eleventh Amendment immunity is not absolute. A
number of different circumstances may lead to a state’s litigating
6
2 U.S. (2 Dall.) 419 (1793).
7
See United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 286 n.9 (5th 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)).
8
For present purposes, we ignore any role the Eleventh Amendment plays in regulating
whether states may be sued in state courts.
9
College Savings Bank v. Florida Prepaid Postsecondary Educ. 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).
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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 against a
state. First, a state’s Eleventh Amendment immunity may be
abrogated when Congress acts under § 5, the Enforcement Clause of
the Fourteenth Amendment.12 Second, a state may consent to suit in
federal court.13
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,14 we examined the Supreme Court’s cases
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 (5th Cir. 2001). The continuing validity of Reickenbacker following the
Supreme Court’s decision in Tennessee v. Lane, 124 S. Ct. 1978 (2004), is uncertain. At the very
least, its holding has been overruled as to Title II claims implicating a person’s fundamental 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.
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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 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.15 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.16 A
Lane, 124 S. Ct. at 1991 n.16.
15
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. v. 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.”).
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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 v. Zerbst,
to define what constitutes effective waiver.17 Waiver is effective
when it is the “intentional relinquishment or abandonment of a
known right or privilege.”18 The first part, “intentional
relinquishment,” captures the principle of voluntariness; and the
second part, “known right or privilege,” captures the element of
knowingness.
When Congress conditions the availability of federal funds 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,19 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.20
The Court rejected this argument, noting that even though Congress
is prohibited by the Twenty-First Amendment from directly
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)
19
483 U.S. 203 (1987).
20
Id. at 205.
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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.21
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 grants of legislative power found in the Constitution.”22
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.23 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
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”).
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 (5th 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.”).
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the restrictions that control such exercise: (1) Federal
expenditures must benefit the general 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.24 In addition, the Dole Court recognized a fifth
requirement that the condition not be coercive: “[I]n some
circumstances the financial inducement offered by Congress might be
so coercive as to pass the point at which ‘pressure turns into
compulsion.’”25
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.
24
Id. at 207-08. See also New York, 505 U.S. at 171-72.
25
483 U.S. at 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).
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i. Clear Statement: “Knowing”
In Pennhurst State Sch. & Hosp. v. Halderman,26 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 voice, we enable the States to
exercise their choice knowingly, cognizant of the
consequences of their participation.27
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.”28 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, not a 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.
ii. Non-Coercive: “Voluntary”
If the clear-statement rule is satisfied, a state’s actual
acceptance of clearly conditioned funds is generally voluntary.
26
451 U.S. 1 (1981).
27
Id. at 17 (emphasis added) (citations omitted).
28
See also Dole, 483 U.S. at 207.
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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
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
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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 IX 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.29
Similarly, 20 U.S.C. § 140330 conditions a state’s receipt of
federal IDEA funds on its consent to suit under that Act.31
Applying the 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.e., 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
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 contai n 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 Dellmuth, the Supreme Court held that the predecessor to the IDEA (the Education of the
Handicapped Act) 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.
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the program funded,32 are satisfied here. Consequently, we restrict
our consideration to the three remaining prongs of the Dole test.
Following prior panels of this court,33 and every circuit (but one)
that has made these inquiries, we conclude that the statutes at
issue validly conditioned Louisiana’s receipt of these federal
funds on its waiver of Eleventh Amendment immunity.34
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 (5th Cir. 1994); FED. R. APP. P. 28(a)(9)(A); cf. Koslow
v. Pennsylvania, 302 F.3d 161, 175-76 (3d Cir. 2002) (rejecting a relatedness challenge to the validity
of a state’s conditional-spending waiver of immunity to § 504 suits).
33
E.g., Pederson v. Louisiana State Univ., 213 F.3d 858, 876 (5th 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 omitted) (emphasis added). Cf. AT&T Comm. v. BellSouth Telecom. Inc.,
238 F.3d 636, 645 (5th 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-Márquez v.
Puerto Rico, 353 F.3d 108, 129-30 (1st Cir. 2003); A.W. v. Jersey
City Pub. Schs., 341 F.3d 234, 244-51 (3d Cir. 2003); Bruggeman v.
Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003); Garrett v. 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, 1051-52
(9th Cir. 2002); Koslow, 302 F.3d at 172 (3d Cir.); Robinson v. 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, e.g., Cherry v. 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 (11th Cir. 1999) (Title VI),
rev’d in part on other grounds, 532 U.S. 275 (2001); Litman v. George Mason Univ., 186 F.3d 544
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First, we determine whether the conditions contained in 42
U.S.C. § 2000d-7 and 20 U.S.C. § 1403 are unambiguous and,
consequently, whether Louisiana knowingly waived its immunity to
actions under § 504 and the IDEA by accepting federal funds.
1. Is the 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 the Rehabilitation Act of
1973,”35 Louisiana argues legalistically that, because Congress did
not use the words “waiver” or “condition,” the condition fails the
clear-statement rule.36 This argument —— that absent talismanic
incantations of magic words, there can be no waiver —— is little
more than frivolous.37 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.”38 More importantly,
(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 School 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).
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
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our decision in Pederson v. Louisiana State University, which we
remain convinced was correctly decided, forecloses this line of
attack.39
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.”40 And in Lesage v. Texas,41
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
Amendment immunity”).
39
213 F.3d at 875-76 (adopting the holding and reasoning of Litman v. George Mason
Univ., 186 F.3d 544 (4th Cir. 1999)).
40
213 F.3d at 876.
41
158 F.3d 213 (5th Cir. 1998), overruled on other grounds, 528 U.S. 18 (1999).
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Atascadero.”42 Thus, in Pederson, we recognized § 2000d-7 as a
clear statement for waiver vis-à-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.”43 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.,44 which looked to
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).
43
238 F.3d at 644.
44
280 F.3d 98 (2d Cir. 2001).
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the Supreme Court’s decision in Board of Trustees of the University
of Alabama v. Garrett45 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 I of the ADA,
Congress could constitutionally abrogate the states’ Eleventh
Amendment immunity.46 The Garrett Court concluded 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.47
The lawsuits in Garcia involved disputes that arose between
September 1993 and August 1995.48 During that pre-Garrett period,
it was universally accepted that the ADA validly abrogated Eleventh
Amendment immunity. Rather than looking at the clear-statement
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).49 The Garcia court noted that, during the relevant period,
“Title II of the ADA was reasonably understood to abrogate [the
45
531 U.S. 356 (2001).
46
See id. at 365-74.
47
Id. at 374.
48
Garcia, 280 F.3d at 114 n.4.
49
Id. at 114.
-18-
state’s] sovereign immunity under Congress’s Commerce Clause
authority.”50 The court also pointed out that the requirements of
Title II and § 504 are “virtually identical.”51 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.52
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.”53 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,54 the panel nevertheless concluded that Louisiana’s
50
Id.
51
Id.
52
Id.
53
Pace, 325 F.3d at 616.
54
Pace, 325 F.3d at 615.
-19-
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.”55
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 IDEA dollars (in the case of the IDEA).56 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 to § 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.
55
Pace, 325 F.3d at 616.
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).
-20-
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.57 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,58 we do not
confuse the doctrines of abrogation and waiver; rather, we point
out that —— even before Garrett —— 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
57
Post at 9 (“[T]he 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.”).
58
Post at 10 & n.7.
-21-
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 case. There, the Court invalidated
“constructive waivers” of Eleventh Amendment immunity “based upon
-22-
the State’s mere presence in a field subject to congressional
regulation.”59 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.60
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.61 If, like the panel, we were to follow that
approach, we would be getting into the business of looking past the
straightforward 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.
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.”).
-23-
Accordingly, we hold that Louisiana’s waiver of Eleventh
Amendment immunity to actions under § 504 and the IDEA was
knowing.62 Still, we must determine whether an independent
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.63 We do not change
course today.
62
Since the Pace panel opinion was issued, five circuits have expressly rejected its approach,
which the dissent continues to advocate. See Nieves-Márquez, 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 v. 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 v. 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.
-24-
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.64 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,65 the unconstitutional-conditions doctrine is most
meaningful when the government imposes a condition of questionable
constitutional character on an individual right. But here, federal
and state sovereigns are on opposite sides of the controversy, and
64
See Frost & Frost Trucking Co. v. Railroad Com. of Cal., 271 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 v. 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).
-25-
the constitutional “right” at issue is structural rather than
personal. Consequently, for the reasons announced in the Third
Circuit’s analysis in Koslow v. 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.66
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.67 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.”). See also Kathleen M. Sullivan,
Unconstitutional Conditions, 102 HARV. L. REV. 1415, 1428-55 (1989).
-26-
concern is subsumed in the non-coercion prong of the Dole test.68
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.69 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.70 Moreover, no circuit has accepted a coercion
challenge to either the Rehabilitation Act or the IDEA.71
Therefore, we refuse to invalidate Louisiana’s waiver on coercion
grounds.
68
See supra text accompanying note 24.
69
See 29 U.S.C. § 794(b)(1).
70
See 20 U.S.C. §§ 1411(a)(1), 1412, 1403.
71
See, e.g., 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).
-27-
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 II of the ADA abrogates Eleventh Amendment immunity in this
case. First, the Supreme Court, in Tennessee v. Lane,72 held that
Title II 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.73 Because (1)
the Supreme Court has never before recognized access to public
education74 or freedom from disability discrimination in education75
to be fundamental rights, and (2) it is unnecessary to address
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. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (disability
classifications are subject only to rational-basis scrutiny).
-28-
Pace’s Title II 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.
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.76 The implementing regulations for §
504 and Title II are, in all material respects, the same. For
example, both statutes’ implementing regulations prohibit similar
76
See Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)
(internal citations omitted) (“The language of Title II generally
tracks the language of Section 504 of the Rehabilitation Act of
1973, and Congress’ intent was that Title II 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 II 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, 119 F.3d 453, 459-60 (6th Cir. 1997)
(en banc) (same).
-29-
types of discrimination.77 In addition, § 504 and Title II’s
regulations governing new construction and alterations are
effectively the same.78 The two statutes are interpreted to provide
the same exception: No covered entity is obligated to make a
“fundamental alteration” in its programs.79 Finally, the remedies
available under § 504 and Title II 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].”80 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
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).
78
Compare 28 C.F.R. 42.522(a), with 28 C.F.R. 35.151(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 28
C.F.R. § 42.522(a).
80
42 U.S.C. § 12133.
-30-
available” for violations of § 504.81 Thus, in Barnes v. Gorman,82
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.83 For all intents and purposes,
therefore, the remedies available to Pace under § 504 and Title II
are the same. The sole difference between the statutes lies in
their causation requirements.84 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.
III. 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.
81
29 U.S.C. § 794a(a)(2).
82
531 U.S. 181 (2002).
83
Id. at 185.
84
See Soledad v. U.S. Dept. of Treasury, 304 F.3d 500 (5th Cir.
2002).
-31-
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,85 Pace first
pursued his administrative claim. He was granted a hearing by a
hearing examiner where he had an opportunity to present his
evidence demonstrating 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
the defendants had complied with the IDEA and had provided a FAPE
to Pace.86 Pace 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.87 Pace then filed suit in
federal district court as authorized by 20 U.S.C. § 1415(i)(1)(A).
85
See 20 U.S.C. 1415(l).
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.
-32-
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.88 The court must then
give “due weight” to the hearing officer’s finding and make a de
novo determination based on a preponderance of the evidence.
Teague Independent School District v. Todd L, 999 F.2d 127, 131 (5th
Cir. 1993). The district court considered all of Pace’s claims of
inaccessibility that he raised during the administrative
proceedings.89 The court considered the administrative record along
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 Bogalusa High School
had provided Pace with a FAPE by complying with the IDEA in all
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
• elevator access
• exiting classroom during fire drills
• cafeteria
• school health center
• auditorium
• music room
• insufficient parking spaces
• lack of ramps (accessible entrances)
-33-
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 collateral estoppel is appropriate when:
(1) the identical issue was previously adjudicated; (2) the issue
was actually litigated; and (3) the previous determination was
necessary to the decision. See Southmark Corp. v. Coopers &
Lybrand (In re: Southmark Corp.), 163 F.3d 925, 932 (5th Cir. 1999).
In Southmark we also found that the “relitigation of an issue is
not precluded unless the facts and the legal standard used to
assess them are the same in both proceedings.” Id. (quoting
-34-
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1281 (5th 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.”90 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 claims
were never litigated and issue preclusion should not apply. We
therefore compare the standards of accessibility under the IDEA on
the 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 receiving federal IDEA funds to make a FAPE
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
90
See, e.g., 18 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE 3d § 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, Ltd., 444 F.2d 451, 460 (5th 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.
-35-
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 school 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 (5th 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 II 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
-36-
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.91
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 II-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.92
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 104.23
of § 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
91
See 42 U.S.C. § 12101(a)(5) (“The Congress finds that ...individuals with disabilities
continually encounter various forms of discrimination, including...the discriminatory effects of
architectural...barriers,... failure to make modifications to existing facilities[,]...segregation, and
relegation to lesser services, programs, [and] activities...”); Id. § 12101(a)(4) (“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.
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secondary education and those regulations do not purport to cover
accessibility in schools.93 Rather, 34 C.F.R. § § 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.94 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/504 on the other, it becomes clear that we should reject this
argument.
Congress required in a 1997 amendment to the IDEA that any
93
Subpart D in the regulations to § 504 includes general regulations for preschool,
elementary, and secondary education regarding 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.
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construction of new facilities must comply with either (1) The
Americans with Disabilities Accessibility Guidelines for Buildings
and Facilities (ADAAG); or (2) The Uniform Federal Accessibility
Standards (UFAS). 20 U.S.C. § 1404(b).95 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.96
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 the
1997 amendment to the IDEA. This is understandable, because the
regulations governing accessibility in schools under the ADA/504
require a school engaged in new construction to conform to the same
standards as the IDEA, either the ADAAG or UFAS.
New construction and alterations of public facilities under
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 of 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 (commonly 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.
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Title II of the ADA are governed by the regulations found in 28
C.F.R. § 35.151.97 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,98 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/504 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 ADAAG
or UFAS. These are the same federal guidelines the school must
comply with to satisfy the accessibility requirements of the ADA and
§ 504.
97
38 C.F.R. 35.151(c) provides in pertinent part:
(c) Accessibility standards. Design, construction, or 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.
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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.99
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 ADA/504
are identical for new construction of school buildings, Pace has not
demonstrated that the defendants owed him any greater or even
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).
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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
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existing statute.100 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 II 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 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 ends for 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).
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individual student. IDEA funds may be used for removal
of architectural barriers or other improvements to
accessibility in order to promote appropriate education
for children with disabilities.(Footnotes omitted)101
(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.”102 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 to the
applicability of the 1997 amendment to § 1404. Considering the
strict duty that the ADAAG and UFAS construction guidelines impose
101
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.”
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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 1996
and 1997, the relevant time period.103 IDEA regulations make it
clear that federal IDEA funds cannot be co-mingled with state
funds.104 The Hearing examiner also had the benefit of Pace’s IEP
and the testimony of the School Board’s Maintenance Supervisor that
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.
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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 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 the
1997 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.105 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
105
R. 192.
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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 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.106
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
106
Appellee Bogalusa City School Board’s Brief at 32.
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1997 amendment to affirm the district court’s judgment.107 The panel
specifically cited the 1997 amended version of § 1404 to support its
conclusion that issue preclusion was proper because accessibility
to the campus had already been litigated under the same federal
standards.108
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.”109
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 evidence
to 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.
107
Pace v. Bogalusa City School Bd., 325 F.3d 609 (5th Cir. 2003).
108
Id. at 614.
109
Appellant Travis Pace’s En Banc Brief at 22.
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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 § 504.110 We
agree that Pace is not limited to a claim under the IDEA and that
he 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.111
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.
110
The IDEA’s “savings clause” is found in 20 U.S.C 1415(l), 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 Federal laws protecting the rights of
children with disabilities...
111
See, e.g., Burlovich v. Bd. of Educ., 208 F.3d 560 (6th Cir. 2000) (issue preclusion may
apply to redundant ADA and § 504 claims), Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th
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-1, 89 F.3d
720, 728 (10th Cir. 1996) (issue preclusion proper to dismiss § 504 placement claim when identical
issue already litigated under the IDEA).
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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.
ENDRECORD
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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.112
Alexander Hamilton wrote:
It is inherent in 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 &
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 one too many.
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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 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. Sav. 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 misapprehension 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
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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. Sav. 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 have
been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.”
Moran v. 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
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. . . do not presume acquiescence in the loss of fundamental
rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. 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 (5th 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 (5th Cir. 2002))
(emphasis in original).
The test for a State’s waiver of Eleventh Amendment
immunity is no different 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
-54-
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’s
waiver is voluntary so long as it is “non-coercive.” Although I
agree with the latter conclusion, the former is incorrect.113
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. As a result, the State of Louisiana
acted voluntarily for purposes of the constitutional waiver test.
But, with due regard for precedent, I 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. Spangler v. Pasadena City Bd. of Ed., 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 all
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 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.
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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 to
waive 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. Sav. 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. Sav. Bank, 527 U.S. at 680, 119 S. Ct. at 2228 (emphasis in
-56-
original). “Whether Congress clearly required that a State waive
its immunity before accepting federal funds (the first inquiry) is
not the same thing, however, as whether the State clearly declared
its knowing waiver (the second inquiry).” Douglas v. Cal. Dep’t of
Youth Auth., 285 F.3d 1226, 1228 (O’Scannlain, J., dissenting from
denial of petition for rehearing en banc)(emphasis in original).
“The mere receipt of federal funds cannot establish that a State has
consented to suit in federal court.” Atascadero, 473 U.S. at 246-
47.114
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 I enumerated powers.
The Supreme Court held otherwise in Seminole Tribe v. Florida, 517
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.
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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, 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,115 this court still held that the ADA validly
abrogated state sovereign immunity. Coolbaugh v. Louisiana, 136
F.3d 430 (5th Cir. 1998), cert. denied, 525 U.S. 819, 119 S. Ct. 58
(1998) overruled by Reickenbacker v. Flores, 274 F.3d 974 (5th Cir.
2001).116
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
115
See City of Boerne v. 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 v. Garrett, 531 U.S. 356, 368, 121 S. Ct. 955, 964 (2001), which held that
Title I of the ADA did not validly abrogat e state sovereign immunity pursuant to § 5 of the
Fourteenth Amendment. Because Title II of the ADA and § 504 of the Rehabilitation Act offer
virtually identical protections, the abrogat ion 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).
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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 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).117
The majority offers two principal arguments against this
result. 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 original). 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
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 v.
Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) (invalidating an
abrogation of Eleventh Amendment immunity pursuant to Title I of
ADA).
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Eleventh Amendment immunity, misapprehends the import of
abrogation.118
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.119
Thus, the relevant Eleventh Amendment inquiry remains whether
Louisiana reasonably believed, based on objective evidence, that the
Rehabilitation 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
118
The unmistakable difference between abrogation and waiver is 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, e.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 purpo ses does not justify the majority’s confusion of the two
concepts.
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!
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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 of the
circumstances . . . reveal both an uncoerced choice and the
requisite level of comprehension may a 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 (5th 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 I.120
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
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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: 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
defendant 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
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 whether the defendant in fact knowingly and voluntarily waived the rights
delineated in the Miranda case.
North Carolina v. Butler, 441 U.S. 369, 374, 99 S. Ct. 1755, 1758 (1979).
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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.
II. ABROGATION
Pace alternatively argues, and this dissent must
determine, whether Congress abrogated Louisiana’s sovereign immunity
with respect to claims brought under Title II, § 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 as
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).
I agree with the majority’s dicta that suggests Lane is
currently of limited application. Moreover, because Lane was
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written very narrowly, I conclude that this court’s decision in
Reickenbacker remains valid in holding that ADA Title II, 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 II and § 504 impose “virtually
identical” obligations. Id. For the reasons stated in Reicken-
backer 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.
III. CONCLUSION
For the foregoing reasons, I 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).
I respectfully dissent.
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Pace v. Bogalusa City School Board
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-03-16
Citations: 403 F.3d 272
Copy CitationsCombined Opinion