Bennett-Nelson v. Louisiana Board of Regents

JOLLY, E. GRADY Circuit Judge: Two hearing impaired students at Loui- (“the siana Tech University University”), Wendy Renee Joy Bennett-Nelson and (“the Boykin Marie appellants”), brought this action under Title II of the Americans (“ADA”) with Disabilities Act of 1990 § 504 of the Rehabilitation Act of 1973. appellants The alleged University that the equal denied them to by access education failing provide educational aids and ser- vices, sign such as language interpreters takers, and note timely and effective manner. The district court dismissed the claims, holding they that were by immunity barred from suit in the granted courts to Louisiana Eleventh Amendment. (1) appeal,

On the appellants contend University that the has waived its immuni- ty from suit under 504 of the Rehabilita- by accepting tion Act federal funding; and (2) that Congress validly abrogated immunity Eleventh Amendment from suit under Title II of the ADA. that agree We University, recipient as a of federal assistance, financial has waived its Elev- enth Amendment We therefore go abroga- need not further to address the Accordingly, tion issue. we REVERSE proceedings. and REMAND for further I (argued), Nelson W. Cameron Shreve- LA, port, Plaintiffs-Appellants. uncomplicated The facts of this case are largely undisputed. Louisiana Tech DeCuir, Clark, G. Linda L. Winston University public university governed ais (argued), Brandon James DeCuir DeCuir Supervisors the Board of for the Uni- Clark, LA, Rouge, & Baton for Defen- System. Although of Louisiana dants-Appellees. funding main source of is the State Louisiana, also distributes twenty-one approximately million dollars in federal financial aid to students each year. University’s primary The sources of JOLLY, Study Before and federal are the Federal Work HIGGINBOTHAM funds JONES, Judges. program program. and the Pell Grant Circuit gress validly abrogate were enrolled as full-time did not Louisiana’s University. sovereign immunity Because of via

students at the either Title impairments, they requested the ADA or 504 of the hearing their Rehabilitation Act; Office of Disabled that the had not immunity accommo- waived its from provide Student Services certain suit under appellants appeal the re- 504. This followed. particular, dations. sign language interpreters

quested they in which note takers for the classes enrolled, study certain

were as well as The sole issue before us is whether Lou aids. sovereign isiana’s Eleventh Amendment court, appellants Before the district the immunity appellants’ bars the claims under alleged although the did ADA the and the Rehabilitation Act. Our provide requested the assistance “on rare inquiry begins, review is de novo.2 Our as occasions”, routinely it failed to do so. always, text of the with.the Amendment. Thus, contended, appellants the the Uni- to make reasonable accom- failed provides The Eleventh Amendment disabilities, required modations for their as power of “[t]he Judicial the United under Title II of the ADA and 504 of the States shall not be construed to extend to 42 Rehabilitation Act. See U.S.C. in equity, suit law or commenced or 42.521(a). 12131(2); C.F.K. prosecuted against one of the United University responded that the accommoda- by State, by States Citizens of another it provided adequate, tions were and that Subjects any Foreign Citizens or State.” Louisiana’s Eleventh Amendment sover- Const, U.S. amend. XI. As we explained eign immunity barred the Board, Bogalusa City Pace School claims. the core function of the Amendment is to defendants, Upon authority motion the the bar the of federal courts to liti district court all of appel- gate brought by dismissed the suits against citizens (5th against lants’ claims the Louisiana Board states. See 403 F.3d Cir. (en 2005) banc). Regents, Supervisors Board Although, by express System, terms, only Amendment “bar[s] federal University, jurisdiction and the State of Louisiana over brought against suits one (hereinafter, collectively, “the Louisiana State citizens of another State or for appellees”), holding state”,3 that these eign Supreme claims were long Court has barred under the Eleventh Amendment.1 held that precludes jurisdiction also Specifically, where, here, the court held that Con- brings a citizen suit ap- 1. The district court dismissed the also The State moved for dismissal under Fed. 12(b)(6) 12(c). pellants' We review Louisiana state law claims as in- dis- R.Civ.P. novo, 8(a). applying missal under either rule de sufficiently pled. See Fed.R.Civ.P. court, same standard as the district and ask- Normally, satisfy dismissal for failure to ing appears plain- whether "it certain that the requirements prejudice, Rule is without prove any tiff cannot set of facts ... which nothing and we find in the district court's would entitle her to relief”. Bombardier Aero- ruling memorandum to indicate that it in- space Employee Plan v. Ferr- Welfare Benefits Thus, tended otherwise. as the er, Wansbrough, Poirot and 354 F.3d are free to reassert their state law claims (5th Cir.2003). remand, on we need not decide whether dismissal of said claims was in error. Id. of, subjected court.4 denied the benefits state be

against her own Idaho, any program Tribe discrimination under or ac- v. Coeur d’Alene See Idaho tivity 261, 267-68, receiving federal financial assis- 521 U.S. Louisiana, .... tance (citing Hans v. L.Ed.2d 438 504, 33 L.Ed. 842 794(a). A separate provision, 29 U.S.C. (1890)). 2000d-7, 42 U.S.C. conditions a state’s receipt of federal funds on its waiver of exceptions are two There immunity Eleventh Amendment to actions First, a state rule of task, then, 504.5 Our twofold. immunity by consenting to may waive its First, we decide whether must the Univer- See, Savings Bank v. Flor e.g., suit. Coll. sity “program activity is a or receiving Expense Prepaid Postsecondary Educ. ida financial federal assistance” within the 666, 670, 2219, Bd., 144 119 S.Ct. 527 U.S. 504, § meaning of such that the waiver Bar (citing 605 Clark v. L.Ed.2d §in If applies. condition found 2000d-7 878, nard, 27 108 U.S. is, whether, we must determine under the (1883)). Second, Congress may L.Ed. 780 multi-factor set forth in test South Dakota immunity pursu abrogate state Dole, 483 U.S. by power to the' enforcement conferred ant (1987), repre- L.Ed.2d 171 the condition § Fourteenth Amendment. See 5 of the constitutionally permissible sents a exer- contend that the Uni appellants id. The Congress’ spending power. cise of extension, remaining versity —and waived their appellees —have and that immunity from suit under contend, appellees The Louisiana validly state sov Congress abrogated agreed, the district court that the Univer- ereign immunity from suit under Title sity activity receiving a “program is not these conten of the ADA. We address Federal financial assistance” within the in turn. tions thus, meaning of does not fall within the of provision waiver 2000d-7. A matter, preliminary As a we note that a first contend that The activity” “all of “program or is defined as has waived its Eleventh college, university, ... a operations of immunity from suit under Amendment institution, postsecondary or other or a by accept Act 504 of the Rehabilitation any ... public system higher education ing federal financial assistance. Section Federal financial part of which is extended that: provides 794(b)(2)(A). assistance”. U.S.C. . Thus, precise question with a before us qualified

No otherwise individual is, shall, ... whether the de- disability the United States —that of the solely by disability, partment of his or her or other subdivision Uni- reason in, recipient of federal funds. participation from the be a be excluded —is Further, protects the United Amendment of the Constitution of the Eleventh Amendment agents "state and state instrumentalities” a viola- States from suit in Federal court for Regents well as the states themselves. 504 of the Rehabilitation Act of section 425, 429, Doe, Univ. Cal. v. provisions any other Feder- 1973 ... or the prohibiting by recipi- al statute discrimination ents of Federal assistance”. financial provides 5. 42 U.S.C. 2000d-7 that "[a] State shall not be immune under the Eleventh University concedes that recipient enrolled of federal funds within the mean- 901(a) students “receive federal funds earmarked IX,6 ing of of Title prohibits which expenses”. particular, educational sex in “any pro- discrimination education Director of Student Fi- gram activity receiving Federal finan- the University nancial Aid testified cial holding, assistance”. In so the Court neighborhood receives “somewhere observed although college' re- twenty-one twenty-two million dol- [to] aid, ceived no direct federal language “the annually. lars” in financial aid A 901(a) §of contains no hint that Congress significant portion of this aid comes from perceived a difference between direct insti- Study program, the Federal Work tutional assistance and aid received government pro- which the “federal school through its students”. 465 U.S. at university a fund of federal vide^] 564, 104 S.Ct. 1211. The Court further money by university that must be matched observed that “the economic effect of di- money[,] pay] which is then used stu- [to rect and indirect assistance often is indis- dent workers”. tinguishable”, particularly insofar as feder- Moreover, approximately five million “effectively al aid supplements college’s] [a dollars of aid comes via the Pell Grant own program”. 565, financial aid Id. at program, under which the federal govern- 104 S.Ct. 1211. ... directly ment “writes a check to Loui- Later, in Paralyzed Veterans Amer University”, siana Tech and funds are of ica, that, the Court held although through” University “funneled the airlines “for dis- benefited from tribution to federal financial the student”. Because these assistance given funds are to pur- airport operators, they earmarked educational were not poses, University typically the will recipients distrib- of § federal aid under 504. See money ute directly the to a student’s ac- 2705, U.S. S.Ct. 91 L.Ed.2d school, count with applied the where it is 494. The distinguished Court City Grove tuition, expenses toward such as room and by that, case, noting in that “it was clear board, and meals. ... Congress’ that intended recipient was college, the not the individual students to University’s

The crux of the argument is whom the checks were sent from the Gov because it is the student who ulti ernment”. Id. at mately 106 S.Ct. 2705. receives the above-described feder contrast, funds, By al in University recipient Paralyzed the is not a Veterans of America, of federal within meaning airport aid of 504 the operators were the 2000d-7, thus, and and has not waived recipients intended merely the airlines Eleventh Amendment Thus, beneficiaries. City under Grove however, argument, is effec America, Paralyzed Veterans the rele of tively Supreme foreclosed Court’s question vant is not whether the Universi Bell, holdings in City College Grove v. 465 ty passes federal through funds to stu U.S. 79 L.Ed.2d 516 who, noted, it should be typically dents — (1984), and Dept. Transportation U.S. of pass them back to the University in the America, Paralyzed Veterans form of tuition payments and other ex penses University whether the is an —but In City, Supreme Grove recipient” Court held “intended Congress the funds petitioner, private a college, was a appropriated. has 1681(a). 20U.S.C. aid, receiving only indirectly nancial it case, City, in Con- just In as Grove this pur- independently stated that one from students who had expressly gress provisions sought student aid Basic pose Op- of the relevant received Education 559,104 making in available the bene- portunity “to assist Grants. See 465 U.S. at is eligible to education postsecondary fits of ... assistance providing

students sum, here, City, no in less than Grove higher education”. to institutions of an recipient is intended 1070(a)(5) added); (emphasis see U.S.C. Accordingly, federal financial assistance. at 104 S.Ct. 1211. also 465 U.S. reason, subject require- for that it is Moreover, effect of the feder- practical ments of 504 of the Rehabilitation Act. precisely case al assistance this supplement to the Univer- same: serves aid, thereby enhancing financial sity’s recipient Because the is a

University’s ability to enroll and educate determine, assistance, we must needy financially students. based on the five-factor test set forth in appellees contend that The Louisiana Dole, the waiver whether condition distinguishable from Grove this case is represents constitutionally 2000d-7 it involves a different stat- City, insofar as permissible Congressional pow- exercise of the Rehabilita- utory provision §— Spending er under the Clause. We need 901(a) Act, of Title opposed linger long question, on this as it was cannot that such a distinction IX. We see recently in our banc addressed en decision portions The relevant germane. is at all in Pace. are identical —both bar the two statutes Pace, In we concluded that a school “receiving entities Fed- discrimination receipt of federal education funds appel- financial assistance”—and the board’s eral voluntary authority suggest- knowing constituted a lees have cited us to no immunity sovereign term to waiver of as to claims ing Congress that intended the § §in than it 504. See 403 F.3d at 280-87. carry meaning a different under 901(a).7 lan- Specifically, we noted that the waiver §in If there is relevant does “unambiguous”, §of was guage case and 2000d-7 distinction between the instant sufficiently related argument for that the condition was City, it is that Grove program interest in the is an “intended to the federal finding that the institution here, funded, to the and that it did not rise stronger as the Univer- recipient” is such, id. As we in both the Fed- level of coercion. See sity actively participates that the condition set forth Study pro- and Pell Grant held waiver eral Work constitutionally contrast, permissible § 2000d-7 is a By City College Grove grams.8 Congress’ spending power.9 fi- state and federal exercise consistently refused certified, entering program into a written Supreme "[t]he Court has observed that 7. The agreement. 34 C.F.R. participation See scope of several other antidiscrimi- 673.3, §§ [including § 668.14. 504 and Title nation measures nearly terms” to is defined in identical VI] appellees’ sugges- reject 9.We the Louisiana Collegiate Athletic that of Title IX. National sovereign immunity tion that a valid waiver of Smith, 466 n. Ass'n v. only feder- can occur where under 2000d-7 (1999). L.Ed.2d 929 "pursu- "under” or al assistance is received Nothing in the Study Rehabilitation Act. participate ant to” the 8. To in Federal Work suggests any such text of 504 or 2000d-7 programs, an institution must fulfill similar conditions, appellees' being that the applying, limitation. To extent such as certain are, course, We bound this II court’s tie of the ADA entirely are almost prior Accordingly, en banc decision. duplicative we provided those under hold that the the remain- of the Rehabilitation Act.10 See 403 F.3d —and ing appellees waived their only at 287-88. The material difference —have Eleventh immunity Amendment from suit provisions between the two lies in their and, under 504 of the Rehabilitation Act respective requirements. causation See id. concomitantly, that the district court erred (citing at 288 Dept. Soledad v. U.S. in dismissing (5th 504 claims. Cir.2002)). Treasury, 304 F.3d 500

Section 504 of the Rehabilitation Act pro B vides that qualified otherwise “[n]o individ ual with a disability in the United States further contend that shall, ... solely by reason her or his Congress abrogated Louisiana’s Elev- disability, be excluded from partic enth sovereign Amendment immunity from in, ipation of, be denied the benefits or be suit under Title of the ADA. In Reick- subjected to discrimination any pro under Foster, enbacker v. rejected we argu- this gram activity receiving Federal finan ment, holding that enactment of Title II ”, 794(a) cial assistance 29 U.S.C. validly abrogate did not states’ sovereign added). (emphasis By contrast, Ti (5th Cir.2001). 274 F.3d 974 ADA, tle II of the “discrimination need not however, Subsequently, in Tennessee v. be the sole reason” Lane, for the exclusion of or Supreme Court held that Soledad, denial of plaintiff. benefits to the abrogation immunity in Title 304 F.3d at 503-04 (quoting Woodhouse v. II is a valid congressional exercise of pow- Magnolia (5th Hosp., 92 F.3d er, to the extent “applies Cir.1996)). class of implicating cases the fundamental right of access to courts”. 541 U.S. Pace, we concluded that the different requirements causation were immaterial yet We have to decide whether the where plaintiffs challenge was to ar- principle of Lane extends to cases involv- chitectural barriers. See 403 F.3d at 288- ing or, rights other alternatively, whether 89. The rationale underlying this conclu- our holding Reickenbacker continues to sion, although stated, not expressly is in control such cases. Because straightforward. In addition to their re- sovereign waived its immunity from spective prohibitions disability-based actions under 504 of the Rehabilitation discrimination, both the ADA and the Re- Act, we need not question address that habilitation Act impose upon public entities today. an obligation affirmative to make reason- Pace, explained

As we in rights the able accommodations for disabled individu- and plaintiffs remedies afforded Ti- under als.11 Where a defendant fails to meet this interpretation i.e., contention is based on some 794a of Title 29 [ 504 of the — "knowing” requirement, waiver remedies, we find Rehabilitation shall ] be the Act— support no in Pace or other procedures, case for the rights and subchapter pro- this proposition that a "knowing” waiver can be any person vides to alleging discrimination on only single provides where a statute for disability both the basis of in violation of section the allocation of funds and the waiver condi- 12132 of this title”. 42U.S.C..§ 12133. tion. requires 11. Title II of the public ADA entities expressly provides (1) Title II that “[t]he rem- to make "reasonable modifications to edies, procedures, rules, rights and forth in policies, practices”; set sec- or "remov[e] not at of that claim under we need address the cause obligation, affirmative juncture abrogation irrelevant.12 this the issue of under failure is ADA, II the rights Title of the because case, question is no In the instant there either are the and remedies under same complaint claims the that the of this purposes for case. the demanded accommo- provide failure to alleged cause of the dations is the sole That is plaintiffs.

denial of benefits Ill they claim that were say, plaintiffs reasons, RE- foregoing For we in their classes participation excluded from the district court’s dismissal of VERSE they not extent that were precisely to the appellants’ claims under 504 of the note interpreters with or accommodated Act REMAND fur- Rehabilitation and here is not whether question takers. The proceedings ther not inconsistent with this plaintiffs suffer a to what extent the opinion. ADA; disability ques- nor is the of the accommoda- tion whether the denial REMANDED. REVERSED and solely disability was caused tion to that the defen- only part by in the animus of JONES, Judge, EDITH H. Circuit is whether the failure question dants. The concurring: disability violates the to accommodate the ADA; of a violation de- and the existence judgment I concur in the both the Rehabili- pends on whether under view, my majority’s opinion. In it would ADA, the demanded tation Act and the appropriate to decide whether have been in fact reasonable and accommodation is Congress’s per- v. Lane extends Tennessee If the accommodation required. therefore sovereign im- abrogation missible of state are liable sim- required the defendants beyond munity precise in ADA Title short, causation is ply by denying it. i.e., right the fundamental of ac- purview, presented to- appeal the issue in the courts, into the field of cess to the day.13 Lane, Tennessee v. education. 158 L.Ed.2d

Thus, having already held that ISD, Bogalusa Pace v. See immunity does not bar communication, architectural, inquiry, of such an the court must or trans- In lieu barriers”; (3) ”provi[de] requested portation auxil- accommo- determine whether the services”, is, dis- iary aids and so as to enable whether it dation was "reasonable” —that participate programs or persons to abled impose or adminis- would "undue financial Likewise, 12131(2). 42 U.S.C. activities. require a trative burdens” or would "funda- implementing § regulations 504 mandate pro- alteration in the nature of mental facility” program to which the that "each or County gram”. Nassau v. See School Board of applies "readily accessible provision must be 17, Arline, 288 n. by handicapped persons”. usable (1987) (quoting 94 L.Ed.2d 307 South- 42.521(a). may entities be C.F.R. Covered Davis, Community College v. U.S. eastern "acquisi- required facilitate access via the 410, 412, redesign equipment, reassignment or (1979)). buildings, assignment services to accessible beneficiaries, delivery at of aids to of services causation the standard of is ma- While sites, existing accessible alteration of alternate appeal, we do not foreclose the terial in this facilities, other method that results may discovery proceeds, it possibility making program activity accessible to disputed issue. become 42.521(b). at§ handicapped persons”. Id. (5th Cir.2005)(Jones, J., F.3d con-

curring part dissenting in part). CATES, Individually

Priscilla S. and as

Guardian of the Person and Estate of

Bobby Ray Cates, Incapacitated an

Person, Plaintiff-Appellant-Cross

Appellee, CREAMER,

Matthew Scott Defendant-

Appellee-Cross-Appellant, Creamer;

Lamae Corporation, Hertz

Defendants-Appellees.

No. 03-10404.

United Appeals, States Court of

Fifth Circuit.

Nov.

Case Details

Case Name: Bennett-Nelson v. Louisiana Board of Regents

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 28, 2005

Citation: 431 F.3d 448

Docket Number: 03-31198

Court Abbreviation: 5th Cir.