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A decision in May by the U.S. Supreme Court held that states are subject to private lawsuits under the Family and Medical Leave Act. The decision left many court watchers wondering if the justices had concluded that their long effort to rehabilitate 11th Amendment state sovereign immunity had gone far enough in Nevada Dept. of Human Resources v. Hibbs. A fomenting split among the circuits on an issue of disability discrimination that raises sovereign immunity issues may give the high court the chance to revisit that question. The line of cases dealing with the federal Rehabilitation Act is noteworthy because it features the 2nd U.S. Circuit Court of Appeals, usually considered fairly liberal, in the unlikely role as innovator at the vanguard of protecting the sovereignty of the states. Several circuits have considered the 2nd Circuit’s �innovation, but a 5th Circuit panel is the only court to have followed suit. That panel decision is currently �under review by the full 5th Circuit. The 2nd Circuit case involved a medical student, Francisco Garcia, who sued a New York state medical school in the late 1990s for failure to adequately accommodate his learning disability. The court held that the school did not agree to waive its sovereign immunity when it accepted federal higher-education funds, �despite statutory language that the Supreme Court has said clearly indicated Congress’ intent that waiver was part of the deal in taking federal money in Garcia v. S.U.N.Y. Healthsciences Center of Brooklyn. The court said that based on the state of the law regarding sovereign immunity at the time New York accepted the federal funds, it was reasonable for the state to believe that Congress had already compelled it to submit to lawsuits under other laws, including the Americans With Disabilities Act (ADA). Since the state believed it had no choice in the matter, its acceptance of federal funds could not be considered to be a knowing act of waiver, the court reasoned. “It’s a stupid argument,” said Thomas Goldstein, a Washington, D.C.-based attorney who limits his practice to cases in, or headed to, the Supreme Court. Earlier this month, Goldstein argued before an en banc 5th Circuit, urging the court to overturn a panel decision that relied on the Garcia reasoning. That panel decision denied Goldstein’s client, Travis Pace, the right to sue the agencies administering his former school and the state of Louisiana for disability discrimination in violation of the Rehabilitation Act in Pace v. Bogalusa City School District. Though he sees little merit in the � Garcia reasoning, he predicts that the Supreme Court will take review of the �issue to resolve a circuit split if the en banc 5th Circuit decides to stick to its own panel’s adoption of the Garcia-style reasoning, and hold the state immune from suit. ‘GARCIA’ LESS POPULAR ELSEWHERE The 3rd, 8th, 9th and 11th circuits have all been presented with the Garcia reasoning in cases in which private individuals have sued states for violations of the Rehabilitation Act; those courts have either expressly rejected it or have declined to disturb pre- Garcia rulings to the contrary. Judge Richard S. Arnold of the 8th Circuit wrote an Oct. 7 panel decision in Doe v. State of Nebraska. In Doe, the 8th Circuit allowed a lawsuit challenging the denial of adoption to a family with an HIV-positive �parent. (The family was identified in �later court papers as Jay and GayLynn Brummett and their adopted son, Noah.) Arnold was particularly caustic in his rejection of Garcia. He noted that Nebraska “has not offered to return any of the money it received” under federal grants to its Department of Health and Human Services, amounting to more than $500 million a year. Michael Greve, director of the federalism project at the American Enterprise Institute, agreed that the Supreme Court is likely to take review. But far from thinking Garcia stupid, he predicts the high court will adopt its reasoning to show that the Hibbs decision did not signal a slackening in the Supreme Court’s concern for states’ rights. David Mumgaard, executive director of Nebraska Appleseed for Law in the Public Interest, who represented the Brummett family in the 8th Circuit case, said that the Garcia line of cases are time-limited. That’s because the 2nd and 5th circuits agreed that, by the late 1990s, Supreme Court decisions had made clear that Congress could not force the states to give up their sovereign immunity under the ADA and other statutes. At that point, the courts maintained, a statutory provision holding the states to voluntary waiver as a condition of receiving federal funds would no longer be redundant and would bind states that accepted federal funds. But Mumgaard said that disability activists are worried that Garcia and Pace could be harbingers of the elimination of any recourse against discriminatory actions by the states. Legal recourse has already been severely curtailed by Supreme Court sovereign-immunity decisions involving the ADA, he said. AN EXPANDING SIGNIFICANCE Many of the Supreme Court’s sovereign-immunity claims dealt with suits brought by state employees. But the � Garcia case and its progeny demonstrate that sovereign immunity can limit the �legal rights of all segments of the population. Mumgaard’s clients, for instance, are a family who feel the Nebraska Department of Health and Human Services �engaged in disability discrimination in adoption decisions. Following their �marriage in 1989, Jay and GayLynn Brummett enrolled in a foster-care-to-adoption program; they worried that GayLynn, who was HIV-positive, would pass the virus to a biological child. The state placed 3-month-old Noah with them in the expectation that they would adopt, according to another of their attorneys, Charles J. Bentjen, formerly in private practice and now director of justice ministries for the Nebraska Synod of the Evangelical Lutheran Church in America. Bentjen said that despite the fact that the department knew about GayLynn’s HIV status six months after Noah’s placement, it waited almost four years to remove him from the Brummett’s home. Through legal wrangling that went to the Nebraska Supreme Court, they were able to get him back in nine months; GayLynn died soon after that of AIDS-related �complications in 1996. Bentjen said that the department dropped its objections to Noah’s adoption once GayLynn died. He added that there was other evidence that discrimination drove the department’s actions, including the fact that it approved adoptions in other cases where a parent had a fatal disease, but was not HIV-positive. The 8th Circuit decision will allow Jay and Noah to proceed with their suit for money damages against the state. Goldstein’s client, Travis Pace, who suffers from cerebral palsy and incontinence and is confined to a wheelchair, enrolled in the Bogalusa, La., high school in 1994. According to Anne Spell of the Franklinton, La., firm Spell & Spell, who has handled all but Pace’s appellate �representation, the school made it dangerous and difficult for Pace to attend classes. The school repeatedly refused to move Pace’s special-education classes to the ground floor, forcing him to use a dangerous dumbwaiter to get to the �second floor; would not redesign its �bathrooms so that he could use them; and advised employees not to help him with his wheelchair after he filed a suit. Though Pace is 24, Spell said that he continues to suffer at the hands of the school administration, since the school, with its sporting events and other activities, is the center of social life in his small town. Spell hopes that the en banc 5th Circuit will reverse the panel decision so that Pace can force the school to give �access to the handicapped. HISTORY Section 504 of the Rehabilitation Act, which became law in 1973, states that, “No otherwise qualified individual with a disability � 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.” In 1985, the Supreme Court held that Section 504 did not make sufficiently clear whether Congress intended the states to waive their 11th Amendment immunity against lawsuits as a condition of accepting federal funds in Atascadero State Hosp. v. Scanlon. Congress responded in 1986 by enacting 42 U.S. 2000d-7, which says that, “[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.” In 1990, Congress enacted another law, the ADA, designed to eliminate discrimination against the disabled. Unlike Section 504, the ADA appeared to abrogate state sovereign immunity against lawsuits. In other words, by command of Congress, the states lost their sovereign immunity with respect to ADA claims whether they accepted federal funds or not. By 1996, however, the Rehnquist court began to reinvigorate the 11th Amendment by questioning the received wisdom that Congress had almost unlimited constitutional powers — under the commerce clause, the spending clause and the 14th Amendment — to force states to subject themselves to lawsuits. In 2001, the Supreme Court ruled that Congress �exceeded its authority �under the 14th Amendment when it abrogated sovereign immunity with respect to claims under the ADA’s Title I, which deals with discrimination in employment in Bd. of Trustees of the Univ. of Ala. v. Garrett. (The court also has a case on its calendar that asks whether abrogation under Title II is legitimate; the circuit courts are divided on the issue in Tennessee v. Lane.) The Hibbs decision in May is thought by some to mark a turning point because the Supreme Court held that Congress possessed the 14th Amendment authority to hold states to the Family and Medical Leave Act; Hibbs came after a long line of cases in which it found Congress to have overstepped that authority. In Garcia, the 2nd Circuit held that because, prior to Garrett, the ADA abrogated sovereign immunity without giving the states a choice in the matter: “[A] state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits � since by all reasonable appearances state sovereign immunity had already been lost.” DIFFERENT VIEW BY 3RD CIRCUIT In 2002, the 3rd Circuit rejected that reasoning at least in part because the ADA was enacted after Section 504, but did not take away the remedies available under the section in Koslow v. Commonwealth of Penn. According to Goldstein, the Pace 5th Circuit panel not only adopted that approach, but adopted so many other weak grounds for denying Pace’s claim that, “It certainly leaves the impression that the panel was trying to protect its sovereign immunity holding from subsequent review.” The en banc court agreed to hear the case shortly after the Supreme Court’s Hibbs decision in May. Arnold’s opinion in the Brummett case is certainly the most passionate of those that disagree with Garcia. He asked, “Did any of [Nebraska's] lawyers actually say to themselves, ‘Well, the abrogation statute is there, so we may as well sign the waiver, because in doing so we give up nothing’? � The State’s brief never even argues that such a thing happened.” Arnold argued that uncertainty about the state of sovereign-immunity law would not cloud the judgment of an �entity so “well supplied with lawyers and funds. “We are, after all, dealing with a sovereign state, not an indigent, uncounseled criminal defendant,” he added. Thomas Goldstein, who is quoted in this article, is a paid �consultant who helps select cases for the National Law Journal “Circuit Splits.”

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