Pace v. Bogalusa City School Board , 325 F.3d 609 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 9, 2003
March 24, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT 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; THE STATE OF LOUISIANA,
Defendants - Appellees.
_________________________________________________________________
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 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
*
Circuit Judge of the 6TH Circuit, sitting by designation.
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.
1
The hearing officer made findings with regard to the Bogalusa
City Schools System. In federal court, Pace brought suit against
the Bogalusa City School Board. For all practical purposes in this
case the two entities are the same and will be referred to as
“BCSB.”
2
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.
2
We do not consider Pace’s § 1983 claim and state law claims because he has not briefed 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).
3
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 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. Sav. Bank v. Fla.
Prepaid Post Secondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.
Ct. 2219, 2223 (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.
3
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.
4
An individual seeking solely prospective relief may also sue
a state official in his official capacity under Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). In this case,
however, Pace has not named any state officials as defendants.
4
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
5
42 U.S.C. § 12202 of the ADA provides:
A State shall not be immune under the eleventh amendment
5
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.
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
to the Constitution of the United States from an action
in Federal or State court of competent jurisdiction for
a violation of this chapter. In any action against a
State for a violation of the requirements of this
chapter, remedies (including remedies both at law and in
equity) are available for such a violation to the same
extent as such remedies are available for such a
violation in an action against any public or private
entity other than a State.
42 U.S.C. § 2000d-7(a)(1) provides:
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 [29 U.S.C.A. § 794], title IX
of the Education Amendments of 1972 [20 U.S.C.A. § 1681
et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A.
§ 6101 et seq.], title VI of the Civil Rights Act of 1964
[42 U.S.C.A. § 2000d et seq.], or the provisions of any
other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
6
20 U.S.C. § 1403(a) provides:
In general. 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.
6
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
7
Although the primary purpose of the IDEA is to make a FAPE
available to all disabled children, 20 U.S.C. § 1400(d)(1)(A),
Congress also desired to “ensure equal protection of the law”
through the IDEA, id. § 1400(c)(6); Crawford v. Pittman, 708 F.2d
1028, 1036 (5th Cir. 1983) (The IDEA “involves both Congress' power
to legislate under the spending clause and to assure equal
protection of the laws to all alike under section five of the
fourteenth amendment.”). Congress’s findings regarding the
educational needs of children with disabilities and the lack of
services within the public school system are set forth in 20 U.S.C.
§ 1400(c).
7
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 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
8
In Reickenbacker, this court specifically reserved the
question whether states waive their sovereign immunity under § 504
of the Rehabilitation Act by accepting federal funds.
Reickenbacker, 274 F.3d at 983. The conditional waiver argument
does not apply to the ADA because the ADA is a purely prescriptive
statute that does not in any way condition the receipt of federal
funds on compliance with the Act or waiver of state sovereign
immunity. Title II of the ADA applies to public entities, as
defined in 42 U.S.C. § 12131, whether they receive federal funds or
not. Although 42 U.S.C. § 2000d-7, enacted as part of the
Rehabilitation Act Amendments of 1986, states, “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 . . .
the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance,” it
does not condition the receipt of federal funds on a state’s waiver
of sovereign immunity under the ADA; the ADA contains its own
abrogation provision in 42 U.S.C. § 12202, and according to a
fundamental canon of statutory construction, the provision of a
specific act controls over the general provision of another act
absent clear legislative intent to the contrary. Ehm v. Nat’l R.R.
Passenger Corp., 732 F.2d 1250, 1253 (5th 1984).
8
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. Sav. 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 receipt of federal
educational funds on its waiver of sovereign immunity. Pederson v.
La. State Univ., 213 F.3d 858, 876 (5th Cir. 2000). Today we extend
9
that portion of the Pederson holding to § 504 of the Rehabilitation
Act as well.
We reject the state’s argument that the Supreme Court’s
decision in Garrett implicitly overruled Pederson. Although
§ 2000d-7 and 42 U.S.C. § 12202 of the ADA contain nearly identical
language, supra n.5, the Supreme Court’s interpretation of 42
U.S.C. § 12202 in Garrett as an invalid abrogation clause does not
necessarily mean that § 2000d-7 must also be viewed solely as an
abrogation clause and not as a conditional waiver provision.
Congress enacted § 504 of the Rehabilitation Act pursuant to its
authority under the Spending Clause and clearly conditioned the
receipt of federal funds on compliance with the Act’s provisions.
The ADA, on the other hand, is a purely prescriptive statute that
does not in any way condition the receipt of federal funds on
compliance with the ADA or waiver of state sovereign immunity.
Thus, while § 2000d-7 and 42 U.S.C. § 12202 are identical for
purposes of § 5 of the Fourteenth Amendment, § 2000d-7 may also be
viewed as a conditional waiver provision enacted pursuant to
Congress’s spending power. Garcia v. S.U.N.Y. Health Scis. Ctr.,
280 F.3d 98, 113 (2d Cir. 2001); Stanley v. Litscher, 213 F.3d 340,
344 (7th Cir. 2000). A number of other circuits have already so
held.9
9
See, e.g., Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir.
2002); Robinson v. Kansas, 295 F.3d 1183, 1189-90 (10th Cir. 2002);
Garcia, 280 F.3d at 113; Nihiser v. Ohio Envtl. Prot. Agency, 269
F.3d 626, 628 (6th Cir. 2001), reh’g denied, 2001 U.S. App. LEXIS
10
 That § 2000d-7 authorizes a conditional waiver does not,
however, equate with Louisiana’s having waived its sovereign
immunity by accepting federal funds under the Rehabilitation Act.
As the Supreme Court has stated:
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
waived that immunity. 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. That is very far from
concluding that the State made an “altogether voluntary”
decision to waive its immunity.
Coll. Sav. Bank, 527 U.S. at 680-81, 119 S. Ct. at 2228, 144 L. Ed.
2d at 619. An effective waiver of a state’s sovereign immunity is
the “intentional relinquishment or abandonment of a known right or
privilege.” Coll. Sav. Bank, 527 U.S. at 682, 119 S. Ct. at 2229,
144 L. Ed. 2d at 620 (quoting Johnson v. Zerbst, 304 U.S. 458, 464,
58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938))(emphasis added).
There is no suggestion in College Savings Bank that the
preconditions for a state’s waiver of sovereign immunity differ
depending on the constitutional provision under which a federal
statute was enacted, and indeed, any such distinction makes no
sense.
26424, cert. denied, 122 S. Ct. 2588 (2002); Douglas v. Cal. Dep’t
of Youth Auth., 271 F.3d 812, 820-21 (9th Cir. 2001), reh’g en banc
denied, 285 F.3d 1226 (2002); Jim C., 235 F.3d at 1080.
11
Prior to Reickenbacker,10 the State defendants had little
reason to doubt the validity of Congress’s asserted abrogation of
state sovereign immunity under § 504 of the Rehabilitation Act or
Title II of the ADA.11 Believing that the acts 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. In Garcia, supra, the Second
Circuit held that although § 2000d-7 expressed Congress’s intent to
condition acceptance of federal funds on a state’s waiver of
sovereign immunity, New York did not waive its sovereign immunity
against § 504 claims by accepting federal funds from 1993 to 1995.
The court reasoned that at the time New York accepted conditioned
funds, Title II of the ADA was reasonably understood to abrogate
sovereign immunity under Congress’s Commerce Clause authority.
Garcia, 280 F.3d at 114. Likewise, though the Louisiana defendants
accepted federal funds after Seminole Tribe v. Florida, 517 U.S.
10
Although the Supreme Court’s decision in Garrett, which preceded Reickenbacker, may
have put states on notice that they retained sovereign immunity against claims brought under Title
II of the ADA or § 504 of the Rehabilitation Act, the relevant time period during which the State
defendants accepted federal funds in this case--1996 to 1998--occurred before Garrett was decided.
In Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign
immunity pursuant to § 5 of the Fourteenth Amendment because Congress did not identify a history
and pattern of unconstitutional employment discrimination by the states against the disabled and
because Title I’s accommodation duty far exceeds what is constitutionally required.
11
Because Title II of the ADA and § 504 of the Rehabilitation
Act offer virtually identical protections, the abrogation 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).
12
44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), and City of Boerne
– where the Supreme Court explained and then delineated Congress’s
power to abrogate state sovereign immunity only through § 5 of the
Fourteenth Amendment – they cannot be deemed to have anticipated,
three to five years before the fact, the Court’s decision in
Garrett and this court’s decision in Reickenbacker, especially
given this court’s decision in Coolbaugh v. Louisiana, 136 F.3d 430
(5th Cir. 1998) (holding that the ADA validly abrogated state
sovereign immunity as an exercise of Fourteenth Amendment § 5
powers), overruled by Reickenbacker, 274 F.3d 974 (5th Cir. 2001).
The Louisiana defendants’ actions were voluntary, but they did not
manifest a knowing waiver of that which they could not know they
had the power to waive.
Similarly, although 20 U.S.C. § 1403 of the IDEA, supra
n.6, constitutes a clear expression of Congress’s intent to
condition acceptance of federal funds on a state’s waiver of
sovereign immunity,12 Bradley, 189 F.3d at 753; Bd. of Educ. v.
12
The title of 20 U.S.C. § 1403, “Abrogation of state sovereign immunity,” does not limit the
provision to being only an abrogation provision. “[H]eadings and titles are not meant to take the
place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide
or a synopsis. . . . [T]hey cannot undo or limit that which the text makes plain.” Bhd. of R.R.
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S. Ct. 1387, 1392, 91 L. Ed.
1646, 1652 (1947). Despite the fact that the title of § 1403 uses the term “abrogation,” the text and
structure of the statute make clear that the voluntary acceptance of federal IDEA funds will result in
the loss of state sovereign immunity. Bradley, 189 F.3d at 753 (“When it enacted §§ 1403 and 1415,
Congress provided a clear, unambiguous warning of its intent to condition a state’s participation in
the IDEA program and its receipt of federal IDEA funds on the state’s waiver of its immunity from
suit in federal court on claims made under the IDEA.”).
Furthermore, the fact that Congress enacted § 1403 in response to Dellmuth v. Muth, 491
13
Kelly E., 207 F.3d 931, 935 (7th Cir. 1999), the State defendants
in this case did not knowingly waive their immunity by accepting
federal IDEA funds during the 1996-97 and 1997-98 school years.
Prior to September 1998, no circuit court had held that § 1403 of
the IDEA did not validly abrogate state sovereign immunity, and
this circuit did not hold so until today. Under the reasonable
belief that the IDEA validly abrogated their sovereign immunity,
the State defendants did not know that they retained any sovereign
immunity to waive by accepting federal IDEA funds during the
relevant time period.
The contrary conclusions of other circuits on the
question of waiver under § 504 of the Rehabilitation Act13 and the
IDEA14 tend to conflate the voluntariness and knowingness aspects
of waiver. The Second Circuit, however, correctly reasoned that
U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989), which held that an earlier version of the IDEA
did not evince an unmistakably clear intent to abrogate state sovereign immunity, does not limit
§ 1403 to being solely an abrogation provision and not a conditional waiver provision. Rather, the
legislative history indicates that Congress may have intended a waiver of state sovereign immunity,
despite its employment of the term abrogation. See H.R. Rep. No. 101-544, at 12 (1990), reprinted
in 1990 U.S.C.C.A.N. 1723, 1734. In the original House Report, a section entitled “Waiver of State
Sovereign Immunity” indicates that Dellmuth misinterpreted Congressional intent and suggests that
§ 1403 was enacted because it would be “inequitable to deprive beneficiaries under the statute the
opportunity to bring suit in federal court while requiring the state to conform to federal standards as
a prerequisite for federal funds.” Marie O. v. Edgar, 131 F.3d 610, 618 n.15 (7th Cir. 1997).
13
See, e.g., Koslow, 302 F.3d at 170; Robinson, 295 F.3d at
1189-90; Nihiser, 269 F.3d at 628; Douglas, 271 F.3d at 820-21; Jim
C., 235 F.3d at 1080; Stanley, 213 F.3d at 344.
14
See, e.g., Bradley, 189 F.3d at 753; Kelly E., 207 F.3d at 935.
14
[t]hese cases are unpersuasive because they focus exclusively
on whether Congress clearly expressed its intention to
condition waiver on the receipt of funds and whether the state
in fact received the funds. None of these cases considered
whether the state, in accepting the funds, believed it was
actually relinquishing its right to sovereign immunity so as
to make the consent meaningful as the Supreme Court required
in College Savings Bank, 527 U.S. at 682.
Garcia, 280 F.3d at 115 n.5; see also Douglas v. Cal. Dep’t of
Youth Auth., 285 F.3d 1226, 1228 (9th Cir. 2002) (O’Scannlain, J.,
dissenting from denial of reh’g en banc) (“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).”). We therefore conclude that Pace’s claims brought
under Title II of the ADA, § 504 of the Rehabilitation Act, and the
IDEA are barred against the State defendants in this case by state
sovereign immunity.15
B. Pace’s IDEA claims
The district court decision regarding Pace’s IDEA claims
is a “mixed question of fact and law that is reviewed de novo, but
the underlying fact-findings, ‘such as findings that a disabled
student obtained educational benefits under an IEP, are reviewed
for clear error.’” Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d
341, 347 (5th Cir. 2000) (quoting Cypress-Fairbanks Indep. Sch.
15
This decision represents a Pyrrhic victory, to the extent that after Garrett, the state
defendants could knowingly waive their immunity because they could then reasonably have
anticipated the ability to preserve sovereign immunity by declining federal funds under the
Rehabilitation and IDEA statutes.
15
Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997)). We agree
with the district court that Pace’s IDEA claims were properly ruled
on in the state administrative proceedings and that no procedural
flaws infect them.
The IDEA requires states and local educational agencies
that receive federal IDEA funds to make a FAPE available to all
children with disabilities between the ages of three and twenty-
one. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). The appellees
contend that Pace’s IDEA claims are moot because he is now 23 years
old and no longer attends Bogalusa High School. Although a
plaintiff beyond the statutory age of entitlement has no right to
seek injunctive relief requiring compliance with the IDEA, Honig v.
Doe, 484 U.S. 305, 318, 108 S. Ct. 592, 601, 98 L. Ed. 2d 686, 703
(1988), he may seek compensation for violations of statutory rights
that occurred while he was entitled to them. Pihl v. Mass. Dep’t
of Educ., 9 F.3d 184, 189 (1st Cir. 1993); Lester H. v. Gilhool, 916
F.2d 865, 872 (3d Cir. 1990). Because compensatory education is an
available remedy for individuals over the age of 21 who were denied
a FAPE when they were covered by the IDEA, Pihl, 9 F.3d at 185;
Lester H., 916 F.2d at 873; see also Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 63 (1st Cir. 2002) (compensatory education is
an available remedy after graduation), we turn to the merits of
Pace’s IDEA claims.
The IDEA imposes extensive requirements on participating
states and local agencies to safeguard the disabled child’s right
16
to a FAPE. 20 U.S.C. §§ 1414, 1415. The primary safeguard is the
IEP, Honig, 484 U.S. at 311, 108 S. Ct. at 597, 98 L. Ed. 2d at
699, a written statement prepared by a representative of the local
school district, the disabled child’s teachers and parents, and,
whenever appropriate, the child, 20 U.S.C. § 1414(d). The IEP sets
forth, inter alia, the child’s present educational performance,
annual and short-term goals, and educational and related services
that will be provided for the child to meet the stated objectives,
id., thereby tailoring the FAPE to the particular needs of the
child, Cypress-Fairbanks Indep. Sch. Dist., 118 F.3d at 247.
The FAPE described in an IEP “need not be the best
possible one, nor one that will maximize the child’s educational
potential; rather, it need only be an education that is
specifically designed to meet the child’s unique needs, supported
by services that will permit him ‘to benefit’ from the
instruction.” Id. at 247-48 (citing Bd. of Educ. v. Rowley, 458
U.S. 176, 188-89, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690, 701
(1982)). To determine whether a FAPE was available to Pace, the
court must consider (1) whether the BCSB complied with the
procedural requirements of the IDEA and (2) whether Pace’s IEPs
were reasonably calculated to enable him to receive educational
benefits. Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051, 73 L.
Ed. 2d at 712.
Regarding the first prong of the inquiry, adequate
procedural compliance with IDEA requirements will assure, in most
17
cases, that the disabled child’s right to a FAPE has been met.
Buser v. Corpus Christi Indep. Sch. Dist., 51 F.3d 490, 493 (5th
Cir. 1995). Failure to comply procedurally with the IDEA may alone
warrant finding that the defendant failed to provide the plaintiff
with a FAPE, id., but technical deviations will not render an IEP
invalid, Burilovich v. Bd. of Educ., 208 F.3d 560, 566 (6th Cir.
2000). In this case, the BCSB adequately complied with the
procedural requirements of the Act. Pace asserts that his 1996 and
1997 IEPs do not comply with IDEA requirements because they lack a
statement of goals and evaluation procedures. This is wrong.
Pace’s 1996 and 1997 IEPs list numerous goals related to English,
language arts, social studies, math, and his development of motor
and vocational skills. Although an evaluation method is not listed
for every single goal, the IEPs state that Pace’s progress will be
measured by teacher-made tests, teacher observation, report cards,
student handouts, and Pace’s work folder.
Pace next contends that the BCSB failed to comply with
the procedural requirements of the IDEA because it did not provide
him with transition services and did not invite other agencies to
his transition plan meetings.16 The record contradicts this claim.
16
Under the IDEA, Pace’s IEP must include a statement of
transition services that focuses on his course of study and that
includes, when appropriate, a statement of interagency
responsibilities. 20 U.S.C. § 1414(d)(1)(A)(vii). The IDEA
defines transition services as:
[A] coordinated set of activities for a student with a
disability that--
18
Pace’s 1996 and 1997 IEPs include Individual Transition Plans
detailing desired adult outcomes, school action steps, and family
action steps for various areas of need such as postsecondary
education, employment, living arrangements, homemaking,
financial/income, advocacy/legal, community resources, recreation
and leisure, transportation, and relationships. Further, Pace’s
IEP facilitator contacted the Office of Citizens with Developmental
Disabilities and the Louisiana Rehabilitation Services Department
to assist in providing Pace with transition services. The BCSB
also complied with the IDEA’s procedural requirements in other
respects, allowing Pace’s mother to provide meaningful input into
decisions affecting his education and to raise objections. The
BCSB participated in review of IDEA compliance at a due process
hearing.
A) is designed within an outcome-oriented process,
which promotes movement from school to post-school
activities, including post-secondary education,
vocational training, integrated employment (including
supported employment), continuing and adult education,
adult services, independent living, or community
participation;
(B) is based upon the individual student's needs,
taking into account the student's preferences and
interests; and
(C) includes instruction, related services,
community experiences, the development of employment and
other post-school adult living objectives, and, when
appropriate, acquisition of daily living skills and
functional vocational evaluation.
20 U.S.C. § 1401(30).
19
Regarding the second prong of the Rowley inquiry, this
court “set forth four factors that serve as an indication of
whether an IEP is reasonably calculated to provide a meaningful
educational benefit under the IDEA. These factors are whether (1)
the program is individualized on the basis of the student’s
assessment and performance; (2) the program is administered in the
least restrictive environment; (3) the services are provided in a
coordinated and collaborative manner by the key ‘stakeholders’; and
(4) positive academic and non-academic benefits are demonstrated.”
Houston Indep. Sch. Dist., 200 F.3d at 347-48 (quoting Cypress-
Fairbanks, 118 F.3d at 253).
Pace’s IEPs easily satisfied these factors and were
reasonably calculated to provide him with meaningful educational
benefits. First, Pace’s IEPs were individualized on the basis of
his assessment and performance, reflecting both personal needs and
goals. Pace contends that he was denied a FAPE because he was not
provided with a computer tailored to assist his special needs, but
his 1996 IEP states that he would use a computer to develop certain
skills, and a computer was later placed in his classroom.
Moreover, the hearing officer found that Pace chose to use a
typewriter instead of a computer during the 1996-97 and 1997-98
school years.
20
Second, Pace was educated in the least restrictive
environment.17 He attended his normally assigned school and was
mainstreamed with his peers as much as possible. In 1996, Pace
received homebound services only because his wheelchair was broken
and he could not attend school while it was being repaired.
Testimony at the due process hearing indicates that Pace otherwise
had no problems traversing the campus and attending his classes.
Scheduled aides as well as an on-call aide were available to help
Pace use the bathroom, and teachers helped him use the elevator and
open doors. Furthermore, Pace’s IEP facilitator testified at the
due process hearing that Bogalusa High School constructed two new
ramps, modified the elevator, and paved the old handicap parking
area; it also added handicap signs, a curb extension to the
school’s front driveway, handicap parking in front of the school,
and a handicap accessible water fountain to accommodate Pace.
Third, the key “stakeholders” provided services to Pace
in a coordinated and collaborative manner. Pace’s regular and
special education teachers, social worker, physical therapist,
17
20 U.S.C. § 1412(a)(5)(A) provides:
In general. To the maximum extent appropriate, children
with disabilities, including children in public or
private institutions or other care facilities, are
educated with children who are not disabled, and special
classes, separate schooling, or other removal of children
with disabilities from the regular educational
environment occurs only when the nature or severity of
the disability of a child is such that education in
regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
21
occupational therapist, adaptive physical education teacher,
principal, IEP facilitator, and attorney attended his 1997 IEP
meeting. Representatives from the Office of Citizens with
Developmental Disabilities and the Louisiana Rehabilitation
Services Department were contacted and informed of Pace’s needs.
Fourth, Pace received both positive academic and non-
academic benefits from his educational program. Pace’s 1997
reevaluation report states that he was meeting his IEP goals and
had improved since the previous year. A comparison of his 1993 and
1996 California Achievement Test scores shows that he raised his
grade point level in language expression, language mechanics,
vocabulary, mathematics computation, mathematics concepts, and
study skills; although he did not raise his grade level in social
studies, science, comprehension, and spelling, “it is not necessary
for [him] to improve in every area to obtain an educational benefit
from his IEP.” Houston Indep. Sch. Dist., 200 F.3d at 350.
Physically and socially he improved in flexibility, mobility, and
trunk strength as well as in his ability to form friendships with
teachers and peers. Because the BCSB adequately complied with the
procedural requirements of the IDEA and reasonably formulated
Pace’s IEPs to afford him educational benefits, we agree with the
district court that Pace was not denied a FAPE.18
18
In his appeal brief, Pace also argues that the BCSB denied
him a FAPE by failing to provide him with a personal aide. Because
Pace did not raise this argument before the district court, he has
waived it on appeal. Lifemark Hosps., Inc. v. Liljeberg Enters.,
22
C. Pace’s non-IDEA claims
The district court granted the defendants’ motions for
summary judgment on Pace’s non-IDEA claims, concluding that they
were precluded by the IDEA proceedings. The grant of summary
judgment is reviewed de novo and may be affirmed on any ground
raised below and supported by the record. McGruder v. Will, 204
F.3d 220, 222 (5th Cir. 2000). Summary judgment is proper if the
record, viewed in the light most favorable to the non-moving party,
shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Hugh
Symons Group v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002).
Although an IDEA plaintiff can assert claims under other
statutes, including the ADA and § 504 of the Rehabilitation Act, 20
U.S.C. § 1415(l);19 Angela L. v. Pasadena Indep. Sch. Dist., 918
Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002). Nevertheless, the
record shows that scheduled aides as well as an on-call aide were
available to assist Pace.
19
20 U.S.C. § 1415(l) provides:
Rule of construction. Nothing in this chapter shall be
construed to restrict or limit the rights, procedures,
and remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42 U.S.C.A. §
12101 et seq.], title V of the Rehabilitation Act of 1973
[29 U.S.C.A. § 791 et seq.], or other Federal laws
protecting the rights of children with disabilities,
except that before the filing of a civil action under
such laws seeking relief that is also available under
this subchapter, the procedures under subsections (f) and
(g) of this section shall be exhausted to the same extent
as would be required had the action been brought under
this subchapter.
23
F.2d 1188, 1193 n.3 (5th Cir. 1990), we agree with the Sixth,
Eighth, and Tenth Circuits that when an administrative decision “is
upheld on judicial review under IDEA, principles of issue and claim
preclusion may properly be applied to short-circuit redundant
claims under other laws.” Indep. Sch. Dist. No. 283 v. S.D., 88
F.3d 556, 562 (8th Cir. 1996); see also Burilovich v. Bd. of Educ.,
208 F.3d 560 (6th Cir. 2000) (dismissing ADA, Rehabilitation Act,
and state law claims because the plaintiff was offered a FAPE under
the IDEA); Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720,
728 (10th Cir. 1996) (recognizing the similarity between the
substantive and procedural frameworks of the IDEA and § 504 and
concluding that if a disabled child is not entitled to a
neighborhood placement under the IDEA, he is not entitled to such
placement under § 504).
Pace and the United States as amicus curiae argue that
the district court improperly precluded Pace’s non-IDEA claims.
Although the United States appears to concede that preclusion is
proper when IDEA and non-IDEA claims are factually and legally
indistinct from each other, it argues that Pace’s IDEA and ADA
claims are based on different legal theories because Pace’s IDEA
claims focus on whether he received meaningful educational benefits
from his IEPs while his ADA claims address the accessibility of
Bogalusa High School.20 Pace and the United States seem to ignore
20
After carefully comparing Pace’s ADA and IDEA claims, we
conclude that the only ADA claims that were not considered in
24
the fact that Pace’s IDEA proceeding focused heavily on the
accessibility of Bogalusa High School. In fact, when Pace’s mother
initially requested a due process hearing under the IDEA, she
primarily expressed concern regarding the lack of handicap
accessible facilities at Bogalusa High School and listed among her
concerns the bathroom facilities and elevator as well as a lack of
aides, ramps, handicap accessible doors, and first floor classes
for the disabled. The hearing officer, the SLRP, the district
court, and this court have all determined that Pace was not denied
Pace’s IDEA proceedings are not properly in federal court. Pace
and the United States argue that Pace’s IDEA proceedings should not
preclude his ADA claims because the district court did not consider
whether the school’s designation and installation of certain
“accessible” facilities, such as the new ramps and handicap parking
spaces, satisfy the standards set forth in the ADA and its
implementing regulations for new construction and alteration to
existing facilities. Although IDEA plaintiffs can bring claims
under other statutes, such as the ADA, they must first exhaust
administrative remedies with regard to their claim if they are
seeking relief that is also available under the IDEA. 20 U.S.C. §
1415(l). In this case, Pace is seeking relief through his ADA
claims that is available under the IDEA. The IDEA requires new
construction and alteration of existing facilities to comply with
the requirements of either the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (appendix A
to 28 C.F.R. part 36) or the Uniform Federal Accessibility
Standards (appendix A to 41 C.F.R. part 101-19.6), the same
guidelines and standards used to determine compliance with Title II
of the ADA. 20 U.S.C. § 1404(b); 28 C.F.R. § 35.151(c). Because
Pace has not exhausted administrative remedies with regard to these
claims, they are not properly before this court. Furthermore,
Pace’s ADA claim for injunctive relief is moot because he no longer
attends Bogalusa High School, see Filardi v. Loyola Univ., No. 97
C 1814, 1998 U.S. Dist. LEXIS 3008, at *11-12 (N.D. Ill. Mar. 12,
1998), and his claim for damages fails because there is no evidence
in the record that the defendants intentionally discriminated
against him, Delano-Pyle v. Victoria County, 302 F.3d 567 (5th Cir.
2002). Rather, the BCSB bent over backward to furnish
accommodations for Pace.
25
a FAPE because of accessibility concerns. We therefore conclude
that because Pace has been given thorough access to Bogalusa High
School for purposes of complying with the IDEA’s FAPE requirement,
he has not been injured for purposes of asserting technical
violations of the ADA regarding the architectural features of the
facilities.
Pace also argues that his non-IDEA claims were improperly
dismissed because his IDEA proceedings did not determine whether
the BCSB discriminated against him in violation of the ADA and
§ 504 of the Rehabilitation Act. To maintain a cause of action
under the ADA or § 504 in this circuit, Pace must show that the
BCSB “refused to provide reasonable accommodations for [him] to
receive the full benefits of the school program.” Marvin H. v.
Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983).21
Because Pace, with the assistance and accommodations provided by
the defendants, received meaningful benefits from a FAPE, we cannot
conclude that the BCSB refused to provide reasonable accommodations
to Pace in violation of the ADA and § 504.
21
Although Marvin H. only stated the standard with regard to §
504, this circuit has held that because of similarities between
Title II of the ADA and § 504, “[j]urisprudence interpreting either
section is applicable to both.” Hainze v. Richards, 207 F.3d 795,
799 (5th Cir. 2000); see also Hoekstra v. Indep. Sch. Dist., 103
F.3d 624, 626 (8th Cir. 1996) (recognizing that the court has
“consistently applied § 504 case law to ADA cases”).
26
Rather, the BCSB provided Pace with reasonable
accommodations that comply with both ADA and § 504 standards. ADA
and § 504 regulations state that program accessibility compliance
regarding existing facilities can be achieved through “the
assignment of aides” or “any other methods that result in making
its services, programs, or activities readily accessible to and
usable by individuals with disabilities. A public entity is not
required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this
section.” 28 C.F.R. § 35.150(b)(1); 34 C.F.R. § 104.22(b).
The record shows that scheduled aides as well as an on-
call aide were available to help Pace use the bathroom, and
teachers helped Pace use the elevator and open doors. With this
help, Pace did not have any problems getting around the school and
attending his classes. Therefore, even if Pace’s ADA and § 504
claims were not precluded by Pace’s IDEA proceeding, summary
judgment would still be proper because the defendants provided
reasonable accommodations for Pace through the provision of aides
and assistance that allowed him to receive the full benefits of his
school program.
III. CONCLUSION
State sovereign immunity bars Pace’s claims against the
State defendants. We therefore vacate the district court’s grant
of the State defendants’ motion for summary judgment and remand
27
with instructions to dismiss Pace’s claims against the State
defendants for lack of jurisdiction. We affirm the district
court’s dismissal of Pace’s IDEA claims against the BCSB as well as
the grant of the BCSB’s motion for summary judgment on Pace’s non-
IDEA claims.
AFFIRMED in part, VACATED in part, and REMANDED.
28