Robinson v. Kansas, No. 00-3315.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Seymour
• Citation: 295 F.3d 1183
• Parties: Earnestine ROBINSON, as mother and next friend of a minor, Mytesha Robinson, Cherokee Robinson and LaJuan Robinson; Reuben Montoy, as father and next friend of a minor Eric Montoy and Ryan Montoy; Kimberly Gwin, as mother and next friend of a minor Sierra Gwin and Seth Gwin; Earl Bess, Jr., as grandfather and next friend of a minor Rene Bess; Kenna Boyce, as mother and next friend of a minor Keely Boyce; Sandra Delgado, as mother and next friend of a minor Cruiz Cedillo; Lieu Do, as mother and next friend of a minor Lynette Do; Evangelina Garcia, as mother and next friend of a minor Ezekial Garcia and Emerald Garcia; Phyllis Harding, as mother and next friend of a minor Christopher Harding and Monique Harding; Melody Hawkinson, as mother and next friend of a minor Joseph Hawkinson; Robert Maynes, as father and next friend of a minor Lauri Maynes; Phillip Nguyen, as father and next friend of a minor Jennie Nguyen; Mary Lu Tripplitt, as mother and next friend of a minor Shasta Oaks; Da Thu Pham, as father and next friend of a minor Sandy Thu Pham, Nicole Thu Pham and Bruce Thu Pham; Linda Bethke, as mother and next friend of a minor Andrea Bethke, Plaintiffs-Appellees, and Unified School District No. 443, and Unified District No. 305, Plaintiffs, v. State of KANSAS; Bill Graves, in his official capacity as the Governor of the State of Kansas; Linda Holloway, in her official capacity as the chairperson of the State Board of Education; Andy Tompkins, in his official capacity as Commissioner of the State Department of Education, Defendants-Appellants. United States of America, Intervenor-Appellee.
• Docket Number: No. 00-3332.,No. 00-3315.
• Decision Date: 09 July 2002

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295 F.3d 1183 Earnestine ROBINSON, as mother and next friend of a minor, Mytesha Robinson, Cherokee Robinson and LaJuan Robinson; Reuben Montoy, as father and next friend of a minor Eric Montoy and Ryan Montoy; Kimberly Gwin, as mother and next friend of a minor Sierra Gwin and Seth Gwin; Earl Bess, Jr., as grandfather and next friend of a minor Rene Bess; Kenna Boyce, as mother and next friend of a minor Keely Boyce; Sandra Delgado, as mother and next friend of a minor Cruiz Cedillo; Lieu Do, as mother and next friend of a minor Lynette Do; Evangelina Garcia, as mother and next friend of a minor Ezekial Garcia and Emerald Garcia; Phyllis Harding, as mother and next friend of a minor Christopher Harding and Monique Harding; Melody Hawkinson, as mother and next friend of a minor Joseph Hawkinson; Robert Maynes, as father and next friend of a minor Lauri Maynes; Phillip Nguyen, as father and next friend of a minor Jennie Nguyen; Mary Lu Tripplitt, as mother and next friend of a minor Shasta Oaks; Da Thu Pham, as father and next friend of a minor Sandy Thu Pham, Nicole Thu Pham and Bruce Thu Pham; Linda Bethke, as mother and next friend of a minor Andrea Bethke, Plaintiffs-Appellees, and
Unified School District No. 443, and Unified District No. 305, Plaintiffs,
v.
State of KANSAS; Bill Graves, in his official capacity as the Governor of the State of Kansas; Linda Holloway, in her official capacity as the chairperson of the State Board of Education; Andy Tompkins, in his official capacity as Commissioner of the State Department of Education, Defendants-Appellants.
United States of America, Intervenor-Appellee. No. 00-3315. No. 00-3332. United States Court of Appeals, Tenth Circuit. July 9, 2002.

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William Scott Hesse, Assistant Attorney General, Office of the Attorney General, State of Kansas, Topeka, KS, for Defendants-Appellants.

Alan L. Rupe (Kelly J. Johnson with him on the brief) of Husch & Eppenberger, LLC, Wichita, KS, for Plaintiffs-Appellees.

Seth M. Galanter, Attorney (Jessica Dunsay Silver, Attorney, with him on the brief), Department of Justice, Washington, D.C., for Intervenor-Appellee.

Before SEYMOUR and PORFILIO, Circuit Judges, and STAGG,^* District Judge.

SEYMOUR, Circuit Judge.

Earnestine Robinson, on behalf of her minor children, Cherokee, LaJuan, and Mytesha, filed suit along with other plaintiffs against the State of Kansas, its governor, and two state education officials challenging the state's school financing scheme. Defendants filed motions to dismiss. The district court denied the motions holding, inter alia, that defendants do not enjoy Eleventh Amendment immunity from suit. Robinson v. Kansas, 117 F.Supp.2d 1124 (D.Kan.2000). Defendants filed an interlocutory appeal of the Eleventh Amendment immunity issue.¹ We affirm.

I.

Plaintiffs contend the Kansas state school financing system, through a provision for "low enrollment weighting" and "local option budgets," results in less funding per pupil in schools where minority students, students who are not of United States origin, and students with disabilities are disproportionately enrolled. See School District Finance and Quality Performance Act, KAN. STAT. ANN. §§ 72-6405 through 72-6440 (1992) (SDFQPA). According to plaintiffs, SDFQPA and its enforcement have a discriminatory disparate impact on such students in violation of the implementing regulations of Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d-1, the Rehabilitation Act of 1973, 29 U.S.C. § § 701 et seq., and plaintiffs' rights to due process and equal protection under the Fourteenth Amendment. They seek an injunction barring enforcement of the Act.²

After the parties filed their briefs with this court, and well after plaintiffs filed their original complaint, the Supreme Court held there is no private right of

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action to enforce disparate impact claims under the Department of Education regulations issued pursuant to section 602 of Title VI, 42 U.S.C. § 2000d.³ See Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).⁴ The Court's decision does not bar all claims to enforce to such regulations, but only disparate impact claims brought by private parties directly under Title VI. Id. at 299-300, 121 S.Ct. 1511 (Stevens, J., dissenting). Disparate impact claims may still be brought against state officials for prospective injunctive relief through an action under 42 U.S.C. § 1983 to enforce section 602 regulations.⁵ Id.

The decision in Sandoval does not affect plaintiffs' right to bring a disparate impact claim under section 504 of the Rehabilitation Act and defendants do not contend otherwise. See New Mexico Ass'n for Retarded Citizens v. New Mexico, 678 F.2d 847, 854 (10th Cir.1982) (recognizing cause of action under section 504 based on claims of disparate impact); see also Alexander v. Choate, 469 U.S. 287, 299, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (declining to decide whether disparate impact claims may be brought under section 504). While the language of the relevant sections of the Rehabilitation Act and Title VI are essentially identical, compare 29 U.S.C. § 794 with 42 U.S.C.2000d, the Court's decision in Choate laid out the different aim of the Rehabilitation Act as well as the different context in which the Act was passed. See Choate, 469 U.S. at 296-97, 105 S.Ct. 712 ("[M]uch of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent."); see also id. at 294 n. 11, 105 S.Ct. 712 (noting that by the time Congress enacted the Rehabilitation Act every cabinet department and about 40 federal agencies had adopted standards in which Title VI was interpreted to bar programs with a discriminatory impact). Therefore, our decision in New Mexico Ass'n for Retarded Citizens continues to control.

Defendants contend the Eleventh Amendment of the United States Constitution bars plaintiffs' suit. Defendants maintain that Congress did not abrogate their Eleventh Amendment immunity, that they did not waive such immunity, and that the relief sought against state officials named as defendants does not fall under the Ex Parte Young doctrine.⁶

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The Eleventh Amendment issue challenges our subject matter jurisdiction, and the district court considered the matter as a Rule 12(b)(1) motion to dismiss. We review the district court's decision de novo. See ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1186 (10th Cir.1998) (citing SK Finance SA v. La Plata County, Bd. of County Comm'rs, 126 F.3d 1272, 1275 (10th Cir.1997)) (dismissal under Rule 12(b)(1) standard); see also Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995) (dismissal under Eleventh Amendment/Ex Parte Young doctrine).

II.

The Supreme Court interprets the Eleventh Amendment as a bar to suits in federal courts against an unconsenting state brought by the state's own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). As with all constitutional rights, the rule of state sovereign immunity is not absolute. Congress may abrogate such immunity in the exercise of its power to enforce the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Moreover, a state may waive its sovereign immunity. See Innes v. Kan. State Univ. (In re Innes), 184 F.3d 1275, 1278 (10th Cir.1999); see also Lapides v. Bd. of Regents, ___ U.S. ___, ___ - ___, 122 S.Ct. 1640, 1643-44, 152 L.Ed.2d 806 (2002); College Savs. Bank, 527 U.S. at 670, 119 S.Ct. 2219; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). In addition, when a private party sues a state officer for prospective injunctive or declaratory relief from an ongoing violation of the Constitution or federal laws, the suit is not considered to be against the state itself and the Eleventh Amendment does not apply. See Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Timpanogos Tribe, 286 F.3d at 1205.

Defendants contend Congress did not validly abrogate state sovereign immunity so as to allow plaintiffs to sue them in federal court. They further maintain Kansas has not waived its sovereign immunity from suit in federal court. Finally, they contend Ex Parte Young is inapplicable in this case. Because we hold that Kansas has waived its sovereign immunity with respect to the claims against it for violation of the Rehabilitation Act,⁷ we need

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not reach the abrogation claim. We also hold that the Ex parte Young doctrine is applicable to permit suit against the state officials pursuant to section 1983 for the alleged violations of Title VI and the Fourteenth Amendment.

A.

As the Supreme Court has bluntly stated, it is an "unremarkable ... proposition that the States may waive their sovereign immunity...." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Such waiver may occur through a variety of statements or actions. Waiver may be voluntary, such as when a state invokes federal court jurisdiction. See Lapides, ___ U.S. at ___ - ___, 122 S.Ct. at 1643-44; College Sav. Bank, 527 U.S. at 675, 119 S.Ct. 2219. Waiver can also occur when the state "unequivocally" expresses its intent to submit itself to our jurisdiction. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). While an unequivocal expression of waiver may be effected by language in a state statute or constitutional provision, waiver may also result from a state's actions, specifically, its participation in a particular federal...