Pace v. Bogalusa City School Bd.

Page 272

403 F.3d 272

Travis PACE, Plaintiff-Appellant, v. The BOGALUSA CITY SCHOOL BOARD, Louisiana State Board of Elementary and Secondary Education, the Louisiana Department of Education, and the State of Louisiana, Defendants-Appellees.

No. 01-31026.

United States Court of Appeals, Fifth Circuit.

March 8, 2005.

As Revised March 16, 2005.

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Anne Arata Spell, Spell & Spell, Franklinton, LA, Thomas C. Goldstein (argued), Goldstein & Howe, Washington, DC, for Pace.

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

Charles K. Reasonover (argued), Lamothe & Hamilton, New Orleans, LA, for Defendants-Appellees.

Sarah Elaine Harrington, Jessica Dunsay Silver, Tovah R. Calderon, U.S. Dept. of Justice, Civ. Rights Div.-App. Section, Washington, DC, for Intervenor.

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

Ellen Bentley Hahn, Advocacy Ctr., Lafayette, LA, Brian Dean East, Advocacy Inc., Austin, TX, for Nat. Ass'n of Protection & Advocacy Systems, Advocacy Ctr., Advocacy Inc., Am. Ass'n of People with Disabilities, Bazelon Ctr. for Mental Health Law and Southern Disability Law Ctr., Amici Curiae.

Claudia Center, Lewis Loy Bossing, The Legal Aid Soc., Employment Law Ctr., San Francisco, CA, for Nat. Ass'n of Protection & Advocacy Systems, Advocacy Ctr., Advocacy Inc., Am. Ass'n of People with Disabilities, Bazelon Ctr. for Mental Health Law, Southern Disability Law Ctr., Western Law Ctr. for Disability Rights, Disability Rights Educ. and Defense Fund and Legal Aid Soc. Employment Law Ctr., Amici Curiae.

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

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS and PRADO, Circuit Judges.¹

W. EUGENE DAVIS and WIENER, Circuit Judges:

Travis Pace (Pace) appeals the district court's dismissal of his claim under the Individuals with Disabilities Education Act (IDEA) and the district court's order granting summary judgment in favor of defendants on Pace's claims under Title II of the Americans with Disabilities Act (ADA or Title II) and § 504 of the Rehabilitation Act (§ 504). The pacnel of this court which considered Pace's appeal concluded that the State of Louisiana, the Louisiana Department of Education and the Louisiana State Board of Elementary and Secondary Education (State Defendants) were entitled to sovereign immunity under the Eleventh Amendment from all of Pace's claims. The panel then affirmed the district court's dismissal of Pace's claims against the Bogalusa City School Board. We took this case en banc, first to consider whether the state defendants were entitled to immunity from Pace's claims under the Eleventh Amendment and, second, to consider the merits of Pace's claims under the IDEA, ADA and § 504. For the reasons discussed below, we now conclude that the State waived its right to immunity under the Eleventh Amendment and therefore the State defendants are not entitled to immunity from Pace's § 504 and IDEA claims. On the merits, we conclude that the district court did not err in dismissing Pace's IDEA claims and that the district court correctly concluded that the dismissal of Pace's IDEA claims precluded his inaccessibility claims under the ADA and § 504. We reject Pace's argument that because different legal standards control his inaccessibility claims under ADA/504, those claims were not litigated in his IDEA action. A 1997 amendment and implementing regulations to the IDEA expressly require schools to comply with the identical standards for new construction that ADA/504 and their regulations require.

I. FACTUAL AND LEGAL BACKGROUND

The factual and procedural background of this case is accurately and succinctly presented in the panel opinion:

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 System² provided Pace with a FAPE in compliance with the IDEA, and the State Level Review Panel (SLRP) affirmed the hearing officer's decision.

In September 1997, Pace filed a complaint with the Office for Civil Rights of the Department of Education (OCR), alleging violations of § 504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. The OCR and 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.³ The district court bifurcated Pace's IDEA and non-IDEA claims. In separate orders, it affirmed the SLRP decision by dismissing Pace's IDEA claims, then granted the defendants' motions for summary judgment on Pace's non-IDEA claims. Pace appeals both decisions.

II. STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT

We consider first the defendants' arguments that they are entitled to sovereign immunity from Pace's claims under the Eleventh Amendment. At the core of this Eleventh Amendment dispute is the question whether, when Louisiana accepted particular federal funds, it waived the immunity afforded it by the Eleventh Amendment to suits under § 504 and the IDEA.⁴

A. THE TEXT AND FUNCTION OF THE ELEVENTH AMENDMENT

We start, as always, with the text. The Eleventh Amendment states:

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.⁵

These forty-three words — adopted in swift response to the Supreme Court's holding in Chisholm v. Georgia⁶ that Article III permitted a state to be sued in federal court⁷ — protect states from such litigation.⁸ The protection thus afforded, however, has long since been expanded beyond the plain text of the Amendment. "Though its precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state," the Supreme Court's interpretation of the Amendment has "recognized that the Eleventh Amendment accomplished much more."⁹ The immunity afforded to states under the Eleventh Amendment "implicates the fundamental constitutional balance between the Federal Government and the States."¹⁰ Therefore, at its core, the Eleventh Amendment serves "as an essential component of our constitutional structure."¹¹

Nevertheless, Eleventh Amendment immunity is not absolute. A number of different circumstances may lead to a state's litigating in federal court absent Eleventh Amendment immunity. We begin with an overview of the Court's current framework for assessing when a suit against a state may proceed in federal court.

B. EXCEPTIONS TO ELEVENTH AMENDMENT IMMUNITY

There are two fundamental exceptions to the general rule that bars an action in federal court filed by an individual against a state. First, a state's Eleventh Amendment immunity may be abrogated when Congress acts under § 5, the Enforcement Clause of the Fourteenth Amendment.¹² Second, a state may consent to suit in federal court.¹³

1. Abrogation under § 5 of the Fourteenth Amendment

Congress can single-handedly strip the states of their Eleventh Amendment immunity and thereby authorize federal court suits by individuals against the states. When Congress does this, it is exercising its power to abrogate Eleventh Amendment immunity. In Reickenbacker v. Foster,¹⁴ we examined the Supreme Court's cases concerning congressional abrogation of Eleventh Amendment immunity under § 5 of the Fourteenth Amendment and derived the following test for determining whether a federal statute is a valid exercise of Congress's power to enforce the Fourteenth Amendment and, consequently, whether the statute abrogates Eleventh Amendment immunity: (1) The statute must contain an unequivocal statement of congressional intent to abrogate; (2) Congress must have identified a history and pattern of unconstitutional action by the states; and (3) the rights and remedies created by the statute must be congruent and proportional to the constitutional violation(s) Congress sought to remedy or prevent.¹⁵ If these three requirements are satisfied, states are subject to federal jurisdiction in suits under the statute adopted pursuant to § 5, regardless of any absence of consent.

2. Waiver of Immunity by Consent

Either in the absence of § 5 abrogation or in addition to it, a state always has the prerogative of foregoing its protection from federal court jurisdiction under the Eleventh Amendment.¹⁶ A state's consent to suit must be both knowing and voluntary. That consent must always be "knowing and voluntary" follows from College Savings Bank, in which the Supreme Court cited Johnson v. Zerbst, to define what constitutes effective...