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Click here for the full text of this decision FACTS:Travis Pace appealed the district court’s dismissal of his claim under the Individuals with Disabilities Education Act 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. The 5th Circuit which 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 (the state defendants) were entitled to sovereign immunity under the 11th 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. The 5th Circuit took this case en banc, first to consider whether the state defendants were entitled to immunity from Pace’s claims under the 11th Amendment and second to consider the merits of Pace’s claims under the IDEA, ADA and 504. HOLDING:Affirmed. The U.S. Supreme Court has articulated two ways that a state can be subject to an individual’s suit in federal court, regardless of the 11th Amendment. First, Congress may abrogate state immunity. Second, the state may waive its 11th Amendment immunity by consent. If waiver results from participation in a Spending Clause program, the program must be a valid exercise of Congress’s spending power; the waiver condition must satisfy the clear-statement rule (thereby ensuring that the state’s waiver is “knowing”); and the program must be non-coercive (automatically establishing that the waiver is “voluntary”). The two statutory provisions at issue purport to have conditioned Louisiana’s receipt of federal funds on its waiver of 11th Amendment immunity to suits under 504 and the IDEA. Specifically, 42 U.S.C. 2000d-7 conditions a state’s receipt of federal money on its waiver of 11th Amendment immunity to actions under 504 and other federal anti-discrimination statutes. Similarly, 20 U.S.C. 1403 conditions a state’s receipt of federal IDEA funds on its consent to suit under that Act. Applying the framework set forth in South Dakota v. Dole, 483 U.S. 203 (1987), the court proceeds to determine whether Louisiana validly waived its immunity when it accepted the conditioned federal dollars. The court held in Pederson v. Louisiana State University, 213 F.3d 858, 876 (5th Cir. 2000), that, in 2000d-7, Congress “successfully codified a statute which clearly, unambiguously, and unequivocally conditions receipt of federal funds under Title IX on the State’s waiver of Eleventh Amendment Immunity.” And in Lesage v. Texas, 158 F.3d 213 (5th Cir. 1998), overruled on other grounds, 528 U.S. 18 (1999), the court ruled that “Congress unquestionably enacted 42 U.S.C. 2000d-7 with the”intent’ to invoke the Fourteenth Amendment’s congressional enforcement power. The purpose of the provision, enacted in 1986, was to legislatively overrule the result in Atascadero.” Thus, in Pederson, the court recognized 2000d-7 as a clear statement for waiver vis–vis the Spending Clause, and in Lesage, the court recognized that the very same provision could satisfy abrogation requirements under 5 of the Fourteenth Amendment. The fact that particular language may or may not function with equal efficacy under both exceptions to 11th Amendment immunity does not mean that the particular language fails the clear-statement rule. As the court concluded in AT&T Comm. v. BellSouth Telecom. Inc., 238 F.3d 636 (5th Cir.), reh’g en banc denied, 252 F.3d 437 (2001), the rule requires only that “the state has been put on notice clearly and unambiguously by the federal statute that the state’s particular conduct or transaction will subject it to federal court suits brought by individuals.” Congress need not declare in the statute whether it is proceeding under abrogation or waiver, or both. For the purpose of the clear-statement rule, 2000d-7 � “janus-faced as it may be” � poses no constitutional impediment to the court’s finding valid waiver by consent. The court concluded that the conditions contained in 2000d-7 and 1403 are unambiguous, as required by Dole. The court held that Louisiana’s waiver of 11th Amendment immunity to actions under 504 and the IDEA was knowing. Louisiana challenged Congress’s power under the Spending Clause to condition receipt of federal education funds on a state’s waiver of 11th Amendment immunity. The court states that “This position is frivolous.” Louisiana also attempts to invoke the “unconstitutional conditions doctrine” to challenge Congress’s ability to condition the acceptance of federal funds on waiver of 11th Amendment immunity. As evidenced by the dearth of cases employing it in this context, the unconstitutional-conditions doctrine is most meaningful when the government imposes a condition of questionable constitutional character on an individual right. In refusing to apply the unconstitutional-conditions doctrine to the conditioning of federal funds on the waiver of 11th Amendment immunity, the 3rd Circuit stated: “[T]he Supreme Court has not yet applied the”unconstitutional conditions’ doctrine to cases between two sovereigns. Unlike private persons, states have the resources to serve their citizens even if the federal government, through economic incentives, encourages a particular result. A state’s political powers � not the least of which is the power to levy taxes on its citizens � help ensure the federal government does not ‘coerce’ the state through economic ‘encouragement.’ An individual citizen, in contrast, lacks these formidable institutional resources.” Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002). Second, the unconstitutional-conditions doctrine, even when applied piecemeal by the Supreme Court, is anchored at least in part in a theory of coercion or compulsion. In this context, that concern is subsumed in the non-coercion prong of the Dole test. In light of Dole, the court determined whether the conditional spending schemes at issue were unduly coercive. The court held that they were not. A state can prevent suits against a particular agency under 504 by declining federal funds for that agency. A state can avoid suit under the IDEA merely by refusing IDEA funds. And, to do so in either case, the state would not have to refuse all federal assistance. Moreover, no circuit has accepted a coercion challenge to either the Rehabilitation Act or the IDEA. Therefore, the court refused to invalidate Louisiana’s waiver on coercion grounds. The court does not read the 1997 amendment to require proof that IDEA funds were used for improvements to trigger the amendment. Even if the statute can be read in this manner, there is evidence to support an inference that IDEA funds were used to make the structural changes. “More importantly, we cannot permit Pace to change his position at will. He was obviously happy to have the administrative bodies and the trial court apply the 1997 amendment to 1404 . . . when it was helpful to him. He cannot at this late date reverse his position when he finds that application of those guidelines are not in his best interest.” Pace argues that the IDEA’s savings clause gives him the right to maintain a cause of action under the ADA and 504. The court agreed that Pace was not limited to a claim under the IDEA and that he could assert claims under the ADA and 504. But his ability to assert non-IDEA claims did not mean that general principles of issue preclusion did not apply to preclude his redundant claims. Because Pace’s claims under the ADA and 504 were factually and legally indistinct from his IDEA claims, issue preclusion was proper in this case. OPINION:W. Eugene Davis and Jacques L. Wiener Jr., JJ.; King, C.J., Jolly, Higginbotham, Davis, Jones, Smith, Wiener, Barksdale, Garza, DeMoss, Benavides, Stewart, Dennis and Prado, JJ. DISSENT AND CONCURRENCE:Edith H. Jones, with whom Jolly, Smith, Barksdale, Garza and DeMoss, circuit judges, join, concurring in part and dissenting in part. “I concur in the court’s discussion of the merits of Pace’s claims, but I respectfully dissent from the majority’s conclusion that the State of Louisiana, by accepting federal education funds from 1996 to 1998 (the period here at issue), validly waived its Eleventh Amendment immunity from suit for violations of 504 and the IDEA statute. Instead, we should hold that under these limited and unusual circumstances, the State did not knowingly waive its constitutional right to be free from suit by private citizens.”

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