Thomas BRADLEY, as Natural Guardian of, and on behalf of David Bradley, a minor; Dianna Bradley, as Natural Guardian of, and on behalf of David Bradley, a minor; Plaintiffs-Appellees, United States of America, Intervenor on Appeal, v. ARKANSAS DEPARTMENT OF EDUCATION; Mike Crowley, individually and in his capacity as an employee of the Arkansas Department of Education; Defendants-Appellants, Williford School District 39; John Does, 1-10, Defendants, Advocacy Services, Inc., Amicus Curiae. Jim C, individually and as parent and next friend of J.C.; Susan C, individually and as parent and next friend of J.C.; Plaintiffs-Appellees, United States of America, Intervenor on Appeal, v. Atkins School District; Arch Ford Education Service Cooperative; Defendants, Arkansas Department of Education, Defendant-Appellant.
Nos. 98-1010, 98-1830
United States Court of Appeals, Eighth Circuit
Submitted Sept. 24, 1998. Filed Aug. 31, 1999.
189 F.3d 745
Thomas K. Gilhool, Philadelphia, PA, Argued (Judith A. Gran, Matthew M. Gutt, and Michael Churchill, on the brief), for Appellees.
Seth Galanter, Argued (Bill Lann Lee and Jessica Dunsay Silver, on the brief), for Intervenor U.S.
Before BOWMAN, Chief Judge,1 LOKEN, and KELLY,2 Circuit Judges.
In these two cases, consolidated on appeal, Arkansas residents brought suit against the Arkansas Department of Education (ADE) and other defendants, alleging violations of the Individuals with Disabilities Education Act (IDEA),
I.
These interlocutory appeals involve exclusively legal issues, so we provide only a brief summary of the facts of each case. In Bradley, Thomas and Dianna Bradley filed suit against the ADE, ADE employee Mike Crowley, the local school district, and other unidentified individual defendants, alleging violations of the IDEA and other state and federal statutes. The Bradleys’ IDEA claim asserts that the ADE, Crowley, and the local school district failed to provide an adequate due process hearing under the IDEA to review their son David‘s Individual Education Program (IEP).3
Representing the ADE and Crowley, Arkansas moved for dismissal or in the alternative for summary judgment on a number of grounds. One argument Arkansas raised is that the Eleventh Amendment bars a federal court from exercising jurisdiction over the Bradleys’ IDEA claim.
The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas, denied the state‘s motion. Judge Moody concluded that the IDEA was a valid exercise of Congress‘s power under § 5 of the Fourteenth Amendment to enforce the Equal Protection Clause, and that the IDEA‘s provisions abrogating the state‘s Eleventh Amendment immunity therefore were valid under Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). See Bradley v. Arkansas Dep‘t of Educ., No. LR-C-96-1004, slip op. at 4 (E.D.Ark. Nov. 21, 1997) (order denying motion to dismiss or for summary judgment). Arkansas appealed the denial of its motion to dismiss the Bradleys’ IDEA claim on Eleventh Amendment grounds, and Judge Moody stayed proceedings pending this appeal.
In Jim C., Jim and Susan C. filed suit against the ADE, Arch Ford Education Service Cooperative, and the local school district, alleging violations of the IDEA, § 504 of the RA,
The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas, denied Arkansas‘s motion to dismiss Jim and Susan C.‘s IDEA and § 504 claims. Judge Eisele agreed with Judge Moody‘s order in Bradley that the abrogation provision in the IDEA was a valid exercise of Congress‘s § 5 power. See id. at 5-6 (quoting Bradley, LR-C-96-1004, slip op. at 4). Judge Eisele also determined § 504 was a valid exercise of Congress‘s § 5 power. See id. at 7.4 Therefore, the District Court concluded it had jurisdiction over the IDEA and § 504 claims. Arkansas appealed, and the District Court held in abeyance its ruling on further motions and granted a continuance while the appeal was pending. See id. Arkansas then requested that Jim C. be consolidated with Bradley.
II.
The text of the Eleventh Amendment reads: “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.”
Although agreeing that Eleventh Amendment analysis is appropriate, the plaintiffs and intervenor the United States argue that three exceptions to Arkansas‘s Eleventh Amendment immunity allow the plaintiffs to proceed with their claims in federal court. First, the plaintiffs assert that Congress, exercising the power granted it by § 5 of the Fourteenth Amend-
III.
Turning first to the plaintiffs’ arguments that federal courts have jurisdiction over IDEA claims brought against the ADE and, in Bradley, defendant Crowley, we note that this Court recently has considered whether a state may be sued in federal court for alleged violations of the IDEA. In that decision, Little Rock School District v. Mauney, 183 F.3d 816 (8th Cir. 1999), we allowed private citizens’ claims that the ADE had violated the IDEA to proceed in federal court on two independent grounds, either of which was a sufficient basis for rejecting the ADE‘s claim of Eleventh Amendment immunity: (1) that the IDEA abrogated the states’ immunity and that the abrogation was effective because Congress exercised its power under § 5 of the Fourteenth Amendment when enacting the IDEA; and (2) that Congress created a valid spending program when it enacted the IDEA, and that Arkansas waived its immunity when it participated in IDEA programs, accepting funds appropriated pursuant to the IDEA and governed by the conditions imposed by the IDEA. See id. at 831-32.
After our opinion in Mauney was filed, however, the Supreme Court announced a trilogy of Eleventh Amendment cases, Alden, Florida Prepaid, and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999) [hereinafter College Savings]. This Court then announced its en banc decision in Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.1999) (en banc). Looking at these more recent authorities, we conclude that Florida Prepaid and Alsbrook undercut Mauney‘s abrogation analysis. Therefore, we reexamine the question whether a private citizen‘s suit for a violation of the IDEA may be brought against an unwilling state in federal court.
A.
To determine whether the IDEA abrogates the states’ immunity, we begin, as Mauney and the subsequent decisions of this Court and the Supreme Court do, with the two-part Seminole Tribe test. See, e.g., Florida Prepaid, 119 S. Ct. at 2205; Alsbrook, 184 F.3d at 1005-06; Mauney, 183 F.3d at 821-22. The first part of the Seminole Tribe test requires that a federal statute contain an “unequivocal expression” of Congress‘s intent to abrogate the states’ immunity. See Seminole Tribe, 517 U.S. at 55. The IDEA contains an abrogation provision,
The second part of the Seminole Tribe test requires that a statute be an appropriate exercise of Congress‘s constitutional powers for its abrogation provision to have effect. See Seminole Tribe, 517 U.S. at 55. The Supreme Court and this Court have recognized only one constitutional power under which Congress may abrogate the states’ Eleventh Amendment immunity, the power granted Congress by § 5 of the Fourteenth Amendment. See Florida Prepaid, 119 S. Ct. at 2205-06; Alsbrook, 184 F.3d at 1005-06. Section 5 empowers Congress to “enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including the Equal Protection Clause. See
Legislation is an appropriate exercise of Congress‘s § 5 power only when it is preventative or remedial. See City of Boerne v. Flores, 521 U.S. 507, 530 (1997). For legislation to be preventative or remedial, Congress must “identify the conduct transgressing the Fourteenth Amendment‘s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Florida Prepaid, 119 S. Ct. at 2207.
Because the briefs in this case were submitted prior to the Court‘s decision in Florida Prepaid, the parties did not pinpoint the constitutional transgressions Congress sought to remedy when it enacted the IDEA. “[G]uided by the principle that the propriety of any § 5 legislation ‘must be judged with reference to the historical experience it reflects,‘” id. (quoting Boerne, 521 U.S. at 525), we have reviewed the legislative history and believe that Congress did not adequately identify the constitutional transgressions it sought to remedy when it enacted the IDEA. Congress did identify significant disparities in the treatment of students with disabilities and those without disabilities, and made six relevant findings regarding these differences:
- there are more than eight million children with disabilities in the United States today;
- the special educational needs of such children are not being fully met;
- more than half of the children with disabilities in the United States do not receive appropriate educational services which would enable them to have full equality of opportunity;
- one million of the children with disabilities in the United States are excluded entirely from the public school system and will not go through the educational process with their peers;
- there are many children with disabilities throughout the United States participating in regular school programs whose disabilities prevent them from having a successful educational experience because their disabilities are undetected; [and]
- because of the lack of adequate services within the public school system, families are often forced to find services outside the public school system, often at great distance from their residence and at their own expense.
Whether Congress correctly identified the constitutional transgressions it sought to remedy, however, is not decisive in this case. Even if we assume Congress adequately identified perceived constitutional transgressions it sought to remedy when it enacted the IDEA, Alsbrook requires us to conclude that the IDEA‘s abrogation provision is invalid because the IDEA is not an appropriate exercise of Congress‘s § 5 power. The same difficulty that this Court found with the ADA in Alsbrook applies to the IDEA in the present case. Like the ADA, the IDEA “does far more than enforce the rational relationship standard recognized by the Supreme Court in Cleburne.” Alsbrook, 184 F.3d at 1008-09 (discussing the ADA). In many instances, programs rationally related to a legitimate state interest—and thus constitutional under Cleburne—would be struck down as failing to satisfy the IDEA‘s requirement that students with disabilities receive a “free appropriate public education.”
Although this Court in Mauney determined that the IDEA had the requisite congruence and proportionality to Congress‘s goal of providing equal educational opportunity for students with disabilities, see Mauney, 183 F.3d 816 at 831-32, we now must conclude that the IDEA extends beyond the power granted Congress by § 5 of the Fourteenth Amendment. The IDEA, therefore, cannot be an appropriate exercise of Congress‘s § 5 power, and its abrogation provision is not valid. See Alsbrook, 184 F.3d at 1006-08 (stating that, if legislation seeks to “expand, enhance, or add to the guarantees of the Fourteenth Amendment,” that legislation‘s abrogation provision is invalid). The abrogation portion of Mauney has been undercut by subsequent events that have changed the legal landscape, and we believe that this portion of Mauney no longer represents current law.
B.
In addition to its abrogation holding, Mauney holds that Arkansas waived its Eleventh Amendment immunity by receiving funds appropriated under the IDEA. See Mauney, 183 F.3d at 831-32. The Supreme Court‘s recent decisions add to the Court‘s waiver jurisprudence, see, e.g., College Savings, 119 S. Ct. at 2228 (rejecting the concept of constructive waiver), but these decisions do not affect
For a federal statute to produce a waiver of a state‘s immunity through the state‘s participation in a federal spending program, the statute must provide a clear expression of Congress‘s “intent to condition participation in the program[] . . . on a State‘s consent to waive its constitutional immunity.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).6 This Court noted in Mauney that there has been some unease in finding that § 1403, the IDEA‘s abrogation provision, satisfies this requirement, because § 1403 is entitled “Abrogation of state sovereign immunity” and does not mention waiver. See Mauney, 183 F.3d at 831-32. Although § 1403 has some shortcomings that limit its use as a clear expression of Congress‘s intent to condition a receipt of IDEA funds on a state‘s waiving its immunity, another provision of the IDEA reinforces the warning contained in § 1403. That provision, IDEA § 1415, requires states to provide certain procedures for parents who wish to challenge a state‘s implementation of the “free appropriate public education” stan-
C.
The Bradleys argue that, even if the ADE could not be sued in federal court, Ex parte Young, 209 U.S. 123 (1908), allows them to seek to enjoin ADE officials, including defendant Crowley, from committing violations of federal law. We agree. Ex parte Young permits a private party to receive prospective injunctive relief in federal court against a state official, even if the Eleventh Amendment otherwise protects the state and its officials from being sued in federal court. See Ex parte Young, 209 U.S. at 155-56, 159, 166-68 (allowing a federal court to ignore a state‘s Eleventh Amendment immunity and impose prospective injunctive relief on state officials to enjoin a future violation of federal law); see also Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (stating that a state‘s Eleventh Amendment immunity does not prevent “an award of attorney‘s fees ancillary to a grant of prospective relief” pursued under Ex parte Young).7
Furthermore, even if Ex parte Young did not apply, the Bradleys could pursue any remedies available under the IDEA against Crowley because, when Arkansas waived its own Eleventh Amendment immunity with respect to IDEA claims, it also waived any Eleventh Amendment immunity Crowley might have had as a state official with respect to such claims. “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Kentucky v. Graham, 473 U.S. 159, 167 (1985). Under Graham, when Arkansas waived its own Eleventh Amendment immunity from suits brought under the IDEA, the state also waived the Eleventh Amendment immunity of its officials from such suits. See Duffy v. Riveland, 98 F.3d 447, 452 n. 4 (9th Cir.1996). The District Court, therefore, may exercise jurisdiction over the Bradleys’ IDEA claims against Crowley and may provide any relief that the IDEA authorizes.
IV.
Next, we turn to Arkansas‘s contention that the Eleventh Amendment prevents the states from being forced to litigate in federal court claims arising under § 504 of the Rehabilitation Act. Section 504 states in part:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
A.
To determine whether § 504 abrogates the states’ Eleventh Amendment immunity, we again engage in Seminole Tribe‘s two-part analysis. First, the statute must contain an unequivocal expression of Congress‘s intent to abrogate the states’ Eleventh Amendment immunity. In 1985, the Court in Atascadero held that § 504 lacked the required expression of intent. See 473 U.S. at 247. Congress responded by enacting an abrogation provision, now codified as
- General provision
- 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, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. - In a suit against a State for a violation of a statute referred to in paragraph (1), 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 the suit against any public or private entity other than a State.
- A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from
The second part of the Seminole Tribe test, as discussed supra in Part III.A, requires that a statute be an appropriate exercise of Congress‘s constitutional powers for the statute‘s abrogation provision to have effect. See Seminole Tribe, 517 U.S. at 55. The United States, intervening in this litigation, argues that § 504 is a valid exercise of Congress‘s power under § 5 of the Fourteenth Amendment. Congress did not rely expressly on its § 5 power when it enacted § 504 or its abrogation provision,
When we consider the legislative history of § 504 and its abrogation provision, we find little indication that Congress properly identified constitutional transgressions it sought to remedy by enacting § 504. In fact, the legislative history is largely silent regarding the reason § 504 was included in the RA. The Joint Explanatory Statement of the Committee of the Conference, for example, does not mention § 504. See J. Conf. Rep. No. 93-500, reprinted in 1973 U.S.C.C.A.N. 2143; see also Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy 54 (1984) (“It appears that most members of Congress either
We again refrain from relying on Congress‘s failure to identify properly the evil it sought to remedy, however, because this issue was not fully briefed and would not affect the outcome of our analysis. Instead, Alsbrook compels us to conclude that § 504 reaches beyond the scope of Congress‘s § 5 power. As noted supra in Part III.A, this Court determined in Alsbrook that Title II of the ADA exceeds Congress‘s § 5 power because the ADA is not merely remedial, but provides substantive rights in excess of those that are protected by the Constitution from impairment by government action. See Alsbrook, 184 F.3d at 1008-09. Alsbrook requires us to reach the same conclusion here, because the ADA and § 504 provide essentially the same protections for the same group of individuals, people with disabilities. See
This Court determined in Alsbrook that the ADA employment provisions were not an appropriate exercise of Congress‘s § 5 power because the ADA imposes duties upon the states exceeding those commanded by the Fourteenth Amendment. Applying the reasoning of Alsbrook, we conclude that § 504 does not abrogate the states’ Eleventh Amendment immunity.9
B.
We next consider whether Arkansas waived its Eleventh Amendment immunity with respect to claims arising under § 504 by accepting federal funds. Examining the Supreme Court‘s decisions in Atascadero and Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), we find three requirements that must be satisfied if a state‘s participation in a federal spending program is to be held to constitute a waiver of the state‘s Eleventh Amendment immunity against claims arising under that program. The three requirements are: (1) the federal spending program must represent a valid exercise of Congress‘s spending power; (2) the statute creating the federal spending program must contain a clear, unambiguous warning that Congress intends to exact waiver of Eleventh Amendment immunity as a condition for participating in the program; and (3) the state must have participated in the federal spending program. See Atascadero, 473 U.S. at 247; Pennhurst, 451 U.S. at 17; see also Abril v. Virginia, 145 F.3d 182, 190-91 (4th Cir.1998) (formulating a two-factor test to determine if states have waived their immunity).
Section 504 fails the first requirement because it is not a valid exercise of Congress‘s spending power. College Savings recognizes that Congress may require states to comply with conditions to receive federal funds, including waiving their Eleventh Amendment immunity. See College Savings, 119 S. Ct. at 2231. College Savings warns, however, that “the financial inducements offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” Id. (internal quotations and citations omitted). There are also limitations on the conditions that Congress may impose on a state‘s receipt of federal funds. One of these limitations is that “conditions must . . . bear some relationship to the purpose of the federal spending; otherwise, of course, the spending power could render academic the Constitution‘s other grants and limits of federal authority.” New York v. United States, 505 U.S. 144, 167 (1992) (internal citation omitted).
Section 504 and its abrogation provision impose overly broad conditions on state agencies such as the ADE. Section 504 prohibits “any program or activity receiving federal funding” from treating an individual differently “solely by reason of” that person‘s disabilities. See
Congress‘s imposition of such conditions on a state violates the Constitution because it amounts to impermissible coercion: Arkansas is forced to renounce all federal funding, including funding wholly unrelated to the RA, if it does not want to comply with § 504. Congressional imposition of such a condition does not give Arkansas, or any other state, a meaningful choice regarding whether to receive federal funding and waive its Eleventh Amendment immunity to suits arising under § 504 or reject funding and retain its Eleventh Amendment immunity to such suits.
V.
For the reasons stated above, we affirm the orders in 98-1010 and 98-1830 with regard to the IDEA, not on the abrogation grounds upon which those orders relied, but on the grounds that Arkansas waived its Eleventh Amendment immunity with respect to claims arising under the IDEA by voluntarily participating in this federal spending program. We reverse the order in 98-1830 to the extent it rejects Arkansas‘s assertion of Eleventh Amendment immunity with respect to Jim and Susan C.‘s claim that the ADE violated § 504 of the Rehabilitation Act, and remand for dismissal of the plaintiffs’ § 504 claim on the basis of the state‘s Eleventh Amendment immunity. Both cases are remanded for further proceedings consistent with this opinion.