Revised December 21, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31121
BOBBY JOE REICKENBACKER; JAMES HOGG; LONNIE BARNES; VIDEL TASBY;
WARNER WILEY; MICHEAL JUENGAIN,
Plaintiffs-Appellees,
versus
M J FOSTER, JR, Etc; ET AL,
Defendants,
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
Defendant-Appellant.
Appeal from the United States District Court
For the Middle District of Louisiana
December 3, 2001
Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
We are asked to decide whether Title II of the Americans with
Disabilities Act of 1990 and § 504 of the Rehabilitation Act of
1973 validly abrogate Eleventh Amendment sovereign immunity. We
hold that they do not, and that the state defendant here is
entitled to sovereign immunity. We therefore reverse.
I
On October 29, 1999, the plaintiffs filed a complaint in
federal district court seeking injunctive relief for a proposed
class of mentally ill prisoners in Louisiana for allegedly
deficient mental health services. That complaint asserted claims
against state officers under the Eighth Amendment and 42 U.S.C. §
1983, and claims against both state officers and the Louisiana
Department of Public Safety and Corrections (“LDPSC”) under Title
II of the Americans with Disabilities Act1 and § 504 of the
Rehabilitation Act.2
Plaintiffs amended their complaint to seek relief under the
ADA and Rehabilitation Act only against LDPSC. LDPSC, asserting
sovereign immunity, moved to dismiss the claim. The motion was
denied, and LDPSC appeals.
II
Under the collateral order doctrine, we have jurisdiction over
this appeal from a denial of a motion to dismiss on the grounds of
state sovereign immunity.3 Our review is de novo.4
1
42 U.S.C. § 12312.
2
29 U.S.C. § 794(a).
3
Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 284-85 (5th Cir. 2000).
4
Id.
2
III
The Eleventh Amendment, while textually extending sovereign
immunity only to suits against a State by citizens of another
state,5 also confirms that the Constitution's grant of judicial
power did not contemplate suits against the sovereign States
without their consent.6 Sovereign immunity can be waived,7 of
course, and it is no bar to suits for injunctive relief against
state officials.8 But there is no waiver here, nor any effort to
properly proceed under Ex parte Young.9
Congress may abrogate state sovereign immunity when it "both
unequivocally intends to do so and 'act[s] pursuant to a valid
5
The Eleventh Amendment provides:
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.
U.S. Const. Amend. XI.
6
Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134
U.S. 1, 15-21 (1890).
7
Idaho v. Coeur d'Alene, 521 U.S. 261, 267 (1997). The plaintiffs invoke
this exception in the context of their Rehabilitation Act claim. See Part V.
8
Ex parte Young, 209 U.S. 123, 159-60 (1908).
9
The plaintiffs maintain that the Ex parte Young exception should be open
to them because their original complaint named state officials as defendants.
In the face of a statutory argument that the ADA did not permit suits against
individuals, the plaintiffs amended their complaint to remove the state officials
as defendants. It is axiomatic that Ex parte Young does not provide an exception
to sovereign immunity when a State (or its agency) is the defendant. See, e.g.
Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
The fact that the plaintiffs' original complaint named the "correct" defendants
does not alter our determination that the Ex parte Young exception is unavailable
in the case now before us.
3
grant of constitutional authority.'"10 The ADA and Rehabilitation
Act indisputably contain unequivocal statements of intent to
abrogate.11 It is now settled that Congress may not act to abrogate
state sovereign immunity through any of its Article I enumerated
powers,12 but may abrogate state sovereign immunity through a proper
exercise of its powers under § 5 of the Fourteenth Amendment.13 As
a result, States may only be sued under the ADA and Rehabilitation
Acts to the extent that those statutes, inasmuch as they are
directed at unconstitutional discrimination by the States,14 are
appropriate exercises of the § 5 power.15 Before reaching this
question, we first address whether our prior holding that Title II
validly abrogated state sovereign immunity binds us still.
10
Board of Trustees of the Univ. of Ala. v. Garrett, 121 S.Ct. 955, 961
(2001) (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)).
11
See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in [a] Federal
or State court of competent jurisdiction for a violation of this chapter."); 42
U.S.C. § 2000d-7(a)(1) ("A State shall not be immune under the Eleventh Amendment
of the Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973 ...."); see also
Garrett, 121 S.Ct at 962 (finding unequivocal statement requirement met for ADA).
12
Seminole Tribe, 517 U.S. at 72-73.
13
Id. at 59.
14
See Part IV.D.2 and note 60.
15
Garrett, 121 S. Ct. at 962. Congress invoked § 5 in enacting the ADA.
Id. at 962 n.3 (citing 42 U.S.C. § 12101(b)(4)).
4
IV
A
LDPSC must demonstrate here that our decision in Coolbaugh v.
Louisiana16 that Title II of the ADA validly abrogated Eleventh
Amendment sovereign immunity has been so undercut by recent
decisions of the Supreme Court that it no longer binds us.17 “It
is the practice of this Circuit for three-judge panels to abide by
a prior Fifth Circuit decision until the decision is overruled,
expressly or implicitly, by either the United States Supreme Court
or by the Fifth Circuit sitting en banc.”18
B
In Coolbaugh, this Court held, following the Supreme Court’s
analytical framework in City of Boerne v. Flores,19 that the ADA
validly abrogated state sovereign immunity as an exercise of the §
16
136 F.3d 430 (5th Cir. 1998).
17
The parties agree that Title II of the ADA and § 504 of the
Rehabilitation Act should be treated identically in our sovereign immunity
analysis. Since the two statutes offer virtually identical protections, the
abrogation analysis is the same. See, e.g., Garcia v. SUNY Health Sciences
Center of Brooklyn, No. 00-9223, 2001 WL 1159970, at *10 (2d Cir. Sept. 26,
2001).
18
United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976); see also
Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir. 1997) (“Accordingly,
for a panel of this court to overrule a prior decision, we have required a
Supreme Court decision that has been fully heard by the Court and establishes a
rule of law inconsistent with our own.”).
19
521 U.S. 507 (1997).
5
5 power. While the suit was brought under Title II of the ADA,20
Coolbaugh also analyzed and referred to other portions of the ADA,
most notably Title I:
We are persuaded that Congress’ scheme in the ADA to
provide a remedy to the disabled who suffer
discrimination and to prevent such discrimination is not
so draconian or overly sweeping to be considered
disproportionate to the serious threat of discrimination
that Congress perceived .... For example, in Title I, 42
U.S.C. Section 12112(b)(5)(A) declares it discriminatory
to reject an employee whose mental or physical limitation
may be reasonably accommodated .... Congress made these
particularized judgments after hearing testimony on the
reasonableness and feasibility of these provisions.
In sum, the ADA represents Congress’ considered efforts
to remedy and prevent what it perceived as serious,
widespread discrimination against the disabled.21
In light of its holistic approach, other courts have characterized
Coolbaugh as holding that the entire ADA abrogates state sovereign
immunity, not just Title II.22
Of course, Coolbaugh's upholding of Title I has already been
overruled in Garrett v. Board of Trustees of the University of
Alabama,23 which held that Title I of the ADA did not validly
20
42 U.S.C. § 12132 (forbidding discrimination against the disabled in
“services, programs, or activities of a public entity”). Title I deals with
discrimination in employment practices. 42 U.S.C. §§ 12111 to 12117.
21
Coolbaugh, 136 F.3d at 437-38 (emphasis added).
22
See, e.g., Neinast v. Texas, 217 F.3d 275, 280 n.29 (5th Cir. 2000);
Thompson v. Colorado, 258 F.3d 1241, 1249 n.4 (10th Cir. 2001) (citing “courts
[that] have addressed the Eleventh Amendment by broadly considering the entire
ADA”).
23
121 S. Ct. 955 (2001).
6
abrogate state sovereign immunity.24 At the same time, Garrett
expressly declined to decide whether Title II of the ADA similarly
failed to abrogate state sovereign immunity.25
C
This Court has suggested several times that Coolbaugh may no
longer be good law.26 The plaintiffs argue, however, that our
decision in Neinast v. Texas27 reaffirmed Coolbaugh after the
Supreme Court's decision in Kimel v. Florida Board of Regents.28
LDPSC disagrees, which it must, arguing that Kimel implicitly
overruled Coolbaugh.
In Neinast, we struck down certain regulations promulgated by
the Attorney General of the United States, which prohibited the
24
Id. at 960.
25
Id. at 960 n 1 (“We are not disposed to decide the constitutional issue
whether Title II, which has somewhat different remedial provisions from Title I,
is appropriate legislation under § 5 of the Fourteenth Amendment when the parties
have not favored us with briefing on the statutory question.”).
26
See Shaboon v. Duncan, 252 F.3d 722, 737 (5th Cir. 2001) (stating that
“Coolbaugh would ordinarily remain governing law in this circuit unless the
analysis in Garrett plainly applies to Title II suits so as to overrule Coolbaugh
sub silentio,” but refusing to reach that question, which had not been briefed);
Kazmier v. Widmann, 225 F.3d 519, 529 (5th Cir. 2000) (“[T]he continuing validity
of Coolbaugh has been called seriously into question by the Supreme Court’s
subsequent decision in Kimel.”). Additionally, this Court affirmed, in light of
Garrett, a prescient district court decision that explicitly stated that
Coolbaugh was no longer good law in light of Kimel before Garrett was decided.
See Cooley v. Mississippi Dep’t of Trans., 96 F. Supp.2d 565, 568 (S.D. Miss.
2000), aff'd by unpublished opinion, 254 F.3d 70 (5th Cir. 2001) (per curiam).
27
217 F.3d 275 (5th Cir. 2000).
28
528 U.S. 62 (2000).
7
charging of fees for handicapped parking placards, as beyond the
power of Congress to abrogate state sovereign immunity, and a
fortiori beyond the Attorney General's delegated legislative
authority.29 Before deciding the case on those grounds, we stated
that “circuit precedent bars our consideration of whether the ADA
as a whole exceeds Congress’s power to abrogate under § 5.”30
Neinast was decided after Kimel, and therefore the plaintiffs
argue that Kimel does not affect Coolbaugh. The plaintiffs misread
Neinast. Anticipating the tightening in Garrett, we noted that
Kimel “possibly suggests a more vigorous application of the
congruence and proportionality test than the Coolbaugh court
gleaned from City of Boerne.”31 Neinast did not need to go further
and reach the validity of the statute, because it concluded that
the regulations at issue did not validly abrogate state sovereign
immunity. The narrowness of Neinast reflected the reality that it
ought to wait for Garrett.32
Turning now to Kimel and Garrett, we conclude that the
analysis in these cases undercuts our approach in Coolbaugh. As a
result, we are persuaded that the Supreme Court has effectively
overruled Coolbaugh.
29
Neinast, 217 F.3d at 282.
30
Id. at 280.
31
Id. at 280 n.29.
32
See id.
8
D
1
To determine whether the ADA was a valid exercise of the § 5
power, Coolbaugh first examined the scope of the constitutional
right, repairing to City of Cleburne v. Cleburne Living Center,
Inc.33 Coolbaugh did so because in Cleburne the Court held
unconstitutional under the Equal Protection Clause the refusal of
a local government to grant a special use permit for the operation
of a group home for the mentally retarded. Significantly, the
Court specifically refused to grant to disabled persons “suspect
class” status.34 Since then, courts have universally applied the
“rational basis” standard to classifications involving physical
disabilities.35
Some have read Cleburne to prohibit all state decisionmaking
based upon animus against a particular group,36 a view that Garrett
33
473 U.S. 432 (1985).
34
Id. at 446.
35
See Coolbaugh, 136 F.3d at 433-34 n.1 (listing cases).
36
See, e.g., Garrett, 121 S. Ct. at 971 (Breyer, J., dissenting) (“Adverse
treatment that rests upon such motives is unjustified discrimination in
Cleburne’s terms.”).
9
rejected.37 Coolbaugh deployed the rational basis standard,38 but
Garrett further refined the test:
Thus, the result of Cleburne is that States are not
required by the Fourteenth Amendment to make special
accommodations for the disabled, as long as their actions
towards such individuals are rational .... If special
accommodations for the disabled are to be required, they
have to come from positive law and not through the Equal
Protection Clause.39
In sum, the Court engaged in a more searching analysis of the scope
of the Equal Protection right, but that enterprise exposes no
deficiency of Coolbaugh. Rather, its bite was elsewhere.
2
Coolbaugh then applied City of Boerne to the ADA, insisting
upon "a congruence and proportionality between the injury to be
prevented or remedies and the means adopted to that end.”40 As
instructed by City of Boerne, Coolbaugh looked to the findings
Congress made when adopting the ADA to decide first the magnitude
of the problem Congress sought to remedy. This analysis did not
distinguish state discrimination from private or general societal
discrimination. Instead, Coolbaugh observed only that “the
37
Id. at 964 ("Although such biases may often accompany irrational (and
therefore unconstitutional) discrimination, their presence alone does not a
constitutional violation make.").
38
Coolbaugh, 136 F.3d at 434.
39
Garrett, 121 S. Ct. at 964 (emphasis added).
40
City of Boerne, 521 U.S. at 520.
10
extensive record compiled in the legislative history fully supports
Congress’ detailed findings of a serious and pervasive problem of
discrimination against the disabled.”41
The Supreme Court soon thereafter again narrowed the § 5 grant
of authority to Congress, first in Florida Prepaid Postsecondary
Educational Expense Board v. College Savings Bank,42 and then in
Kimel and Garrett. In these cases, the Court directed us to look to
specific findings of unconstitutional discrimination by States in
a § 5 abrogation analysis.43 Additionally, in Garrett, the Court
delineated the types of state unconstitutional action that can form
the foundation upon which Congress uses its § 5 remedial power.
Garrett insisted that Congress identify unconstitutional
discrimination by the States, not local governments,44 which do not
benefit from the protections of the Eleventh Amendment and
therefore cannot form the basis for an exercise of the § 5 power to
abrogate state sovereign immunity.45 Thus Coolbaugh's analysis of
41
Coolbaugh, 136 F.3d at 437.
42
527 U.S. 627 (1999).
43
Id. at 639; Kimel, 528 U.S. at 89 (“Congress never identified any
pattern of age discrimination by the States ....”); Garrett, 121 S. Ct. at 964-65
(“Once we have determined the metes and bounds of the constitutional right in
question, we examine whether Congress identified a history and pattern of
unconstitutional employment discrimination by the States against the disabled.”).
44
Id. at 965.
45
Lincoln County v. Luning, 133 U.S. 529, 530 (1890).
11
the legislative role has been preempted by these later decisions of
the Supreme Court.
3
In assessing the proportionality of the ADA to the injury
identified, Coolbaugh concluded that “Congress’ scheme in the ADA
to provide a remedy to the disabled who suffer discrimination and
to prevent such discrimination is not so draconian or overly
sweeping to be considered disproportionate to the serious threat of
discrimination Congress perceived.”46 In support of this, the
opinion pointed to provisions of both Title I and Title II of the
ADA, but did not lay them next to the baseline of what defines
constitutional state action under the Fourteenth Amendment.47
Both Kimel and Garrett require more. Each decision dissects
the statutory regime in question and carefully compares it to the
baseline definition of constitutional action under the Fourteenth
Amendment. In Kimel the Court considered the bona fide
occupational qualification defense to an age discrimination claim
in the ADEA and the burden of proof in a prima facie case under the
ADEA.48 Garrett specifically focused on the burdens of proof,
46
Coolbaugh, 136 F.3d. at 437.
47
Id. at 437-38 (“We recognize that in some instances, the provisions of
the ADA will prohibit conduct which is not itself unconstitutional and intrude
into legislative spheres of autonomy previously reserved to the States.”)
(internal quotation omitted).
48
Kimel, 528 U.S. at 87-88.
12
exceptions, and defenses available in Title I of the ADA in order
to find that “the rights and remedies created by the ADA against
the States raise the same sort of concerns as to congruence and
proportionality as were found in City of Boerne.”49
Coolbaugh engaged in no detailed discussion of the rights and
remedies available under Title II of the ADA. The distinction
between Title I and Title II, and the necessity of their separation
for purposes of the abrogation analysis, was underscored by the
Court in Garrett when it declined to reach Title II because of its
“somewhat different remedial provisions.”50 Since the
constitutional analysis now requires a greater level of specificity
than employed in Coolbaugh, we are persuaded that it has been
effectively overruled.
V
A
Since Coolbaugh is no longer controlling precedent in our
circuit, we must consider Title II of the ADA anew. Some of our
sister circuits have already held that Title II, or a specific
regulation promulgated pursuant to Title II, does not abrogate
49
Garrett, 121 S. Ct. at 966.
50
Id. at 960 n. 1.
13
state sovereign immunity.51 We have discussed the scope of state
constitutional activity with respect to the disabled,52 and now ask
if Congress has identified "a history and pattern of
unconstitutional [] discrimination by the States against the
disabled"53 in the provision of government services, programs, or
activities. Next, we ask whether Title II is "congruent and
proportional" to the constitutional violation Congress sought to
remedy.
B
Congress, in enacting the ADA, specifically cited
discrimination in “public accommodations, public services,
transportation, and telecommunications.”54 "[H]owever, Congress'
determination of what constitutes 'discrimination' against the
disabled differs from discrimination in the constitutional sense."55
In arguing that Congress made the requisite findings of state
discrimination against the disabled, the plaintiffs refer us to the
report of the Task Force on Rights and Empowerment of Americans
51
See Garcia, 2001 WL 1159970 at *7-8; Thompson, 258 F.3d at 1255;
Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc); Brown
v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 706 (4th Cir. 1999)
(finding regulation enacted pursuant to Title II could not abrogate state
sovereign immunity).
52
See Part III.D.1.
53
Garrett, 121 S. Ct. at 964.
54
Id. at 966 (quoting H.R. Rep. No 101-485, pt. 2 p. 28 (1990)).
55
Thompson, 258 F.3d at 1254.
14
with Disabilities. The plaintiffs argue that Justice Breyer's
appendix to his dissent in Garrett, which summarizes the individual
submissions to this task force, shows the extent of
unconstitutional discrimination against the disabled. First, we
note that the Court described these legislative findings as
“unexamined, anecdotal accounts of 'adverse disparate treatment by
state officials.'”56 The Court focused on the absence of findings
of state discrimination in employment and stated that most of the
examples provided by the task force “pertain to alleged
discrimination by the States in the provision of public services
and public accommodation ... addressed in Titles II and III of the
ADA.”57
A closer look at the legislative history indicates that most
of the examples of arguably unconstitutional governmental
discrimination against the disabled involved local, not state,
government.58 Therefore, examples such as Justice Breyer’s first:
“discrimination against the mentally ill in city zoning process,”59
are insufficient, because Garrett directs us to look only to
56
Garrett, 121 S. Ct. at 966 (quoting id. at 970 (Breyer, J.,
dissenting)).
57
Id. at 966 n.7.
58
See, e.g., id. at 977-93; Thompson, 258 F.3d at 1254 (noting that the
legislative findings deal primarily with local government "discrimination" in
public accommodation).
59
Garrett, 121 S. Ct. at 977 (Breyer, J., dissenting).
15
unconstitutional discrimination by the States.60
Moreover, many of the findings to which we are referred by the
plaintiffs describe facially neutral state policies that are
unlikely to represent unconstitutional discrimination. In order to
prove a violation of the Equal Protection Clause, a plaintiff must
show that a facially neutral state law or practice that has a
disparate impact on a class is intentionally discriminatory.61 What
the Congress has adduced are examples of facially neutral policies
that allegedly have a discriminatory impact on the disabled.62
"Apathetic attitudes and refusals to make accommodations do not
usually violate the Fourteenth Amendment."63
C
60
This narrowing of the analysis in Garrett means that Title II of the ADA
could still be a valid exercise of Congress’ § 5 power, but simply not provide
the basis for a use of that power to abrogate, thus drawing a distinction between
City of Boerne and Seminole Tribe. See Thompson, 258 F.3d at 1253 n.7 (“Because
the Fourteenth Amendment applies to local government entities not entitled to
Eleventh Amendment immunity, the analysis of whether Congress has the power to
enact legislation requires inquiry into constitutional violations by these
entities in addition to entities entitled to Eleventh Amendment immunity.”).
61
Washington v. Davis, 426 U.S. 229 (1976).
62
See, e.g., Garrett, 121 S. Ct. at 979 (Breyer, J., dissenting). The
word “inaccessible,” without more, in this context, is synonymous with
“constitutional” as it implies a facially neutral state policy without evidence
of discriminatory intent. "Inaccessible" appears over 250 times in Justice
Breyer's list of “roughly 300 examples of discrimination by state governments.”
Id. at 970, 977-993. The plaintiffs cite to this list as providing life to their
claim that there are sufficient Congressional findings of discrimination in
public accommodation. In fact the list is fatal to the plaintiffs' case, because
it catalogs presumptively constitutional state action.
63
Thompson, 258 F.3d at 1254.
16
If we were to find the requisite pattern of unconstitutional
discrimination by the States against the disabled, we would still
be faced with a remedial regime that “raise[s] the same sort of
concerns as to congruence and proportionality as were found in City
of Boerne.”64
Title II indisputably embodies more than merely a prohibition
on unconstitutional discrimination against the disabled. Although
it states 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,”65 other portions of the statute, case law, and regulations
promulgated under Title II create an affirmative accommodation
obligation on the part of public entities that far exceeds the
constitutional boundaries.
First, the ADA defines “qualified individual with a
disability” as:
an individual with a disability, who with or without
reasonable modifications to rules, policies or practices,
the removal of architectural, communication or
transportation barriers, or the provision of auxiliary
aids and services, meets the essential eligibility
requirements for the receipt of services or the
participation in programs or activities provided by a
public entity.66
64
Garrett, 121 S. Ct. at 966.
65
42 U.S.C. § 12132.
66
42 U.S.C. § 12131(2) (emphasis added).
17
Thus, Title II imposes an accommodation obligation on public
entities, requiring them to make “reasonable modifications.”67
Furthermore, courts have recognized that Title II imposes such
an affirmative obligation,68 as does the Rehabilitation Act, which
is virtually identical to Title II.69 Regulations issued by the
Justice Department confirm such an obligation, because they purport
to define its boundaries, creating a defense when modifications
will “fundamentally alter the nature of the service, program, or
activity.”70 The burden of proof on this affirmative defense, of
course, lies with the State—creating another disjunction between
the remedy and injury that contributes to the failure of Title II
in the proportionality and congruence analysis.71
Since the accommodation obligation imposed by Title II and §
504 of the Rehabilitation Act far exceeds that imposed by the
Constitution, we cannot conclude that they are proportional and
67
Title II also imposes restrictions on the purchase of new public
transportation vehicles, requiring them to be accessible. 42 U.S.C. §§ 12142 to
12144.
68
See, e.g., Thompson, 258 F.3d at 1250-51; Alsbrook, 184 F.3d at 1009;
Coolbaugh, 136 F.3d at 437.
69
School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987).
70
28 C.F.R. § 35.130(b)(7).
71
See Part IV.D.3; Garrett, 121 S. Ct. at 967.
18
congruent to the legislative findings of unconstitutional
discrimination against the disabled by the States.72
V
Finally, the plaintiffs argue that Louisiana has waived its
sovereign immunity under the Rehabilitation Act by accepting
federal monies.73 We generally will not consider arguments not
raised in the district court unless it is a pure question of law
and our refusal to consider the question will result in a
miscarriage of justice.74 We therefore decline to reach this
question.
72
We are aware of the approach adopted by the Second Circuit in Garcia v.
S.U.N.Y. Health Sciences Center of Brooklyn, No. 00-9223, 2001 WL 1159970 (2d.
Cir. Sep. 26, 2001), which held that certain claims against the States under
Title II may proceed even though Title II as a whole cannot abrogate state
sovereign immunity. Garcia noted first that Title II incorporates the remedial
regime of the Rehabilitation Act, which in turn incorporates the remedial regime
of Title VI of the Civil Rights Act, which the Court has held includes an implied
private cause of action. See id. at *8-9. Using its power to shape the
judicially implied remedy, the Garcia court imposed its own restriction on the
availability of relief under Title II; requiring plaintiffs "to establish that
the Title II violation was motivated by discriminatory animus or ill will based
on the plaintiff's disability." Garcia, 2001 WL 1159970 at *9. Garcia concluded
that this restriction, because it encompassed "generally the same actions that
are proscribed by the Fourteenth Amendment" limited Title II "so as to comport
with Congress's § 5 authority." Id.
We need not reach this question, as the parties have not raised it in this
case. We note, however, that Garcia would allow recovery for a State’s refusal
to accommodate the disabled in violation of Title II, provided that decision was
motivated by discriminatory animus. See id. at *7, *10. The Garcia remedy
therefore apparently suffers from the same defect that we have identified in
Title II, because the Constitution imposes no such accommodation obligation.
Garcia’s solution may be additionally flawed because, as we have noted, not all
decisions governed by animus violate the Fourteenth Amendment. See Part IV.D.1.
73
42 U.S.C. § 2000d-7; Lane v. Pena, 518 U.S. 187, 200 (1996) (holding
that Congress created a waiver of Eleventh Amendment immunity under the
Rehabilitation Act).
74
McDonald's Corp v. Watson, 69 F.3d 36, 44 (5th Cir. 1995).
19
VI
Since Congress has not validly acted through its Fourteenth
Amendment § 5 power to abrogate state sovereign immunity, LDPSC was
entitled to dismissal of both the Title II and Rehabilitation Act
claims. We therefore REVERSE.
20