Pace v. Bogalusa City School Bd., 01-31026.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Edith H. Jones
• Citation: 325 F.3d 609
• Parties: Travis PACE, Plaintiff-Appellant, v. The BOGALUSA CITY SCHOOL BOARD; Louisiana State Board of Elementary and Secondary Education; the Louisiana Department of Education; the State of Louisiana, Defendants-Appellees.
• Docket Number: No. 01-31026.,01-31026.
• Decision Date: 24 March 2003

325 F.3d 609 Travis PACE, Plaintiff-Appellant,
v.
The BOGALUSA CITY SCHOOL BOARD; Louisiana State Board of Elementary and Secondary Education; the Louisiana Department of Education; the State of Louisiana, Defendants-Appellees. No. 01-31026. United States Court of Appeals, Fifth Circuit. March 24, 2003.

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Anne Arata Spell (argued), Spell & Spell, Franklinton, LA, for Plaintiff-Appellant.

John W. Waters, Jr. (argued), Ernest L. O'Bannon, Christopher Marx G'Sell, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, LA, for Bogalusa City School Bd.

Charles K. Reasonover (argued), Lamothe & Hamilton, New Orleans, LA, for Louisiana State Bd. of Elementary & Secondary Education, Louisiana Dept. of Education and State of Louisiana.

Kevin K. Russell (argued), U.S. Dept. of Justice, Jessica Dunsay Silver, Tovah R. Calderon, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for U.S., Intervenor.

Amy Warr, Austin, TX, for State of Texas, Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES, SMITH and SILER,^* Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Travis Pace appeals the district court's dismissal of his claims brought

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under the Individuals with Disabilities Education Act and the grant of the defendants' motions for summary judgment on his claims brought under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. We affirm the district court's judgment for the Bogalusa City School Board. We also hold that the State of Louisiana, the Louisiana Department of Education, and the Louisiana State Board of Elementary and Secondary Education (collectively "State defendants") are entitled to sovereign immunity from Pace's claims under the Eleventh Amendment.

I. BACKGROUND

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 System¹ 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 the 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 statutes.² 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. DISCUSSION

A. State Sovereign Immunity

Before addressing the merits of Pace's claims, we must determine whether state sovereign immunity bars his claims against the State defendants. The Supreme Court has interpreted the Eleventh Amendment to prohibit suits against a state by its own citizens as well as by citizens of another state or foreign state.³ See, e.g., Kimel v. Fla. Bd. of Regents, 528

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U.S. 62, 72-73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522, 535 (2000). There are only two exceptions to this longstanding rule. Coll. Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999).⁴ First, Congress may abrogate state sovereign immunity pursuant to § 5 of the Fourteenth Amendment, which grants Congress the power to enforce the substantive guarantees of the amendment through appropriate legislation. Id. Second, a state may waive its sovereign immunity by consenting to suit. Id. (citing Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 883, 27 L.Ed. 780, 784-85 (1883)). At issue in this case is whether Pace's claims under the ADA, § 504 of the Rehabilitation Act, and the IDEA fall within either of these exceptions.

1. Abrogation of state sovereign immunity through § 5 of the Fourteenth Amendment

Pace's ADA claims against the State defendants are foreclosed by this court's recent decision in Reickenbacker v. Foster, 274 F.3d 974 (5th Cir.2001). Reickenbacker held that Congress did not properly exercise its Fourteenth Amendment § 5 power to abrogate state sovereign immunity against claims brought under Title II of the ADA and § 504 of the Rehabilitation Act. To validly abrogate state sovereign immunity through § 5 of the Fourteenth Amendment, Congress must (1) unequivocally express its intent to abrogate state sovereign immunity, Kimel, 528 U.S. at 73, 120 S.Ct. at 640, 145 L.Ed.2d at 535; (2) identify a pattern of unconstitutional action by the states, Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 964, 148 L.Ed.2d 866, 880 (2001); and (3) create rights and remedies that are congruent and proportional to the injury, City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624, 638 (1997). In Reickenbacker, this court concluded that although Congress clearly expresses the intent to abrogate state sovereign immunity in both Acts,⁵ it failed to identify a history and pattern of unconstitutional discrimination by the states against the disabled and imposed accommodation obligations on the states that exceed constitutional boundaries. Reickenbacker, 274 F.3d at 982-83.

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Similarly, the IDEA does not validly abrogate the State defendants' state sovereign immunity. Like the ADA and § 504 of the Rehabilitation Act, the IDEA contains an express statement of intent to abrogate state sovereign immunity,⁶ but in enacting the IDEA, Congress did not find that any disparate treatment of students with disabilities resulted from unconstitutional state action.⁷ 20 U.S.C. § 1400(c). And even if Congress had identified constitutional transgressions by the states that it sought to remedy through the IDEA, the IDEA requirements, like the ADA and § 504 requirements, exceed constitutional boundaries. The IDEA, for example, requires the construction of new facilities and the alteration of existing facilities to comply with the same guidelines and standards used to determine ADA compliance, 20 U.S.C. § 1404(b), and this court has previously held that the ADA's accommodation obligation "far exceeds that imposed by the Constitution," Reickenbacker, 274 F.3d at 983. "In many instances, programs rationally related to a legitimate state interest — and thus constitutional under [City of] Cleburne [v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)] — would be struck down as failing to satisfy the IDEA's requirement that students with disabilities receive a `free appropriate public education.'" Bradley v. Ark. Dep't of Educ., 189 F.3d 745, 752 (8th Cir.1999), vacated on other grounds sub nom. by Jim C. v. United States, 235 F.3d 1079 (8th Cir.2000) (en banc).

2. Waiver of Eleventh Amendment sovereign immunity

Although Congress did not validly exercise its Fourteenth Amendment § 5 power to abrogate states' sovereign immunity under the statutes at issue here, it may have validly conditioned the states' receipt of federal funds upon their waiving sovereign immunity against claims brought under § 504 of the Rehabilitation Act and the IDEA, statutes promulgated pursuant to the spending power.⁸ "Incident to [the

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spending] power [set forth in Article I, Section 8 of the United States Constitution], Congress may attach conditions on the receipt of federal funds...." South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 2795-96, 97 L.Ed.2d 171, 178 (1987). In dicta, the Supreme Court has stated that Congress may require states to waive their sovereign immunity as a condition for receiving federal funds. Coll. Savs. Bank, 527 U.S. at 686-87, 119 S.Ct. at 2231, 144 L.Ed.2d at 623; Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 2267, 144 L.Ed.2d 636, 679 (1999). To do so, Congress must "manifest[] a clear intent to condition participation in the programs funded under the [relevant] Act on a State's consent to waive its constitutional immunity." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171, 183 (1985).

In 1985, the Supreme Court held that § 504 of the Rehabilitation Act did not contain the unequivocal statutory language necessary to abrogate state sovereign immunity through § 5 of the Fourteenth Amendment and also held that the Act fell far short of manifesting the required clear intent to validly condition a state's receipt of federal funds on waiver of its sovereign immunity. Id. In response to Atascadero, Congress enacted 42 U.S.C. § 2000d-7, supra n. 5. This court has held that in the context of Title IX, 42 U.S.C. § 2000d-7 clearly, unambiguously, and unequivocally conditions a state's...