                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                              REVISED MARCH 16, 2005
                          UNITED STATES COURT OF APPEALS                                 March 8, 2005
                               For the Fifth Circuit
                                                                                   Charles R. Fulbruge III
                                                                                           Clerk

                                        No. 01-31026




                                       TRAVIS PACE,

                                                                     Plaintiff-Appellant,

                                             VERSUS

   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.




                Appeal from the United States District Court
                    For the Eastern District of Louisiana




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

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


     1
         Judge Clement recused herself and did not participate in this decision.
Rehabilitation      Act    (§   504).     The   panel    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.



                                         -2-
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



       2
         The hearing examiner made hearings with regard to the Bogalusa City Schools System. In
federal court, Pace brought suit against the Bogalusa City School Board. For all practical purposes,
these two entities are the same and will be referred to as “BCSB.”

                                               -3-
       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




       3
        We do not consider Pace’s § 1983 claim and state law claims because he did not brief them
on appeal. L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994);
F.R.A.P. 28(a)(9)(A).
       4
         The waiver argument does not apply to Title II because the ADA does not condition the
receipt of federal funds on compliance with the Act or waiver of Eleventh Amendment immunity.
Rather, Title II applies to public entities regardless of whether they receive federal funds. See 42
U.S.C. § 12132.
       5
           U.S. CONST. amend. XI.

                                                 -4-
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



       6
           2 U.S. (2 Dall.) 419 (1793).
       7
        See United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 286 n.9 (5th Cir. 1999)
(“The Supreme Court’s interpretation of Article III powers in Chisholm, prompted Congress’
‘outraged reversal’ of that decision through enactment of the Eleventh Amendment.”) (citing DAVID
P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 99 (1985)).
       8
         For present purposes, we ignore any role the Eleventh Amendment plays in regulating
whether states may be sued in state courts.
       9
        College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
669 (1999).
       10
            Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985).
       11
            Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

                                               -5-
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


       12
          U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”).
       13
          The term “abrogation” is not synonymous with “consent” or “waiver.” When a state
consents to suit or waives its Eleventh Amendment immunity, it knowingly and voluntarily forfeits
the immunity’s protections. In contrast, when Congress acts under its Fourteenth Amendment power
to abrogate, the state has no choice.
       14
            274 F.3d 974 (5th Cir. 2001). The continuing validity of Reickenbacker following the
Supreme Court’s decision in Tennessee v. Lane, 124 S. Ct. 1978 (2004), is uncertain. At the very
least, its holding has been overruled as to Title II claims implicating a person’s fundamental right of
access to the courts. In addition, after Lane we do not look solely at the state level for a history and
pattern of unconstitutional action; we also examine discrimination by nonstate government entities.

                                                 -6-
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


Lane, 124 S. Ct. at 1991 n.16.
       15
            Id. at 977, 981-83.
       16
          College Savings Bank, 527 U.S. at 670; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 267 (1997) (“[A] State can waive its Eleventh Amendment protection and allow a federal court
to hear and decide a case commenced or prosecuted against it.”); Great N. Life Ins. Co. v. Read, 322
U.S. 47, 54 (1944) (“The immunity may, of course, be waived.”); Clark v. Barnard, 108 U.S. 436,
447 (1883) (“The immunity from suit belonging to a State, which is respected and protected by the
Constitution within the limits of the judicial power of the United States, is a personal privilege which
it may waive at pleasure.”).

                                                 -7-
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 waiver.17                          Waiver is effective

when it is the “intentional relinquishment or abandonment of a

known     right         or    privilege.”18             The    first    part,     “intentional

relinquishment,” captures the principle of voluntariness; and the

second part, “known right or privilege,” captures the element of

knowingness.

     When Congress conditions the availability of federal funds on

a state’s waiver of its Eleventh Amendment immunity, we employ a

five-prong        test        derived      from    the        Supreme   Court’s     definitive

spending power case, South Dakota v. Dole,19 to ascertain the

validity of the waiver.                        In Dole, South Dakota challenged a

congressional           statute         that    conditions       the    states’    receipt   of

federal highway funds on their adoption of the minimum drinking age

of twenty-one.                South Dakota argued that the statute exceeded

Congress’s spending power and violated the Twenty-First Amendment.20

The Court rejected this argument, noting that even though Congress

is   prohibited              by   the     Twenty-First          Amendment    from     directly


     17
          527 U.S. at 682 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
     18
          Id. (quoting Zerbst, 304 U.S. at 464)
     19
          483 U.S. 203 (1987).
     20
          Id. at 205.

                                                  -8-
regulating the distribution of alcoholic beverages, the Spending

Clause authorizes it indirectly to entice states to raise their

drinking age by dangling the proverbial carrot of federal dollars.21

       Dole      embodies       an    expansive        interpretation           of    Congress’s

spending       authority.             Indirect       persuasion         is    constitutional,

reasoned the Court, because the spending power “is not limited by

the direct grants of legislative power found in the Constitution.”22

Congress       can,     therefore,         validly       use    its     spending        power     to

legislate conditions on the disbursement of federal funds even

though those conditions would be unconstitutional if enacted as

direct prohibitions.23               It goes without saying that, because states

have the independent power to lay and collect taxes, they retain

the ability to avoid the imposition of unwanted federal regulation

simply by rejecting federal funds.

       Nevertheless, Congress’s power to effect policy through the

exercise of its spending power is not unlimited.                               Dole announced



       21
          Id. at 206. See also New York v. United States, 505 U.S. 144, 161-69 (1992) (holding that
although the Tenth Amendment prevents Congress from directly commandeering state officials into
regulating radioactive waste, Congress can “hold out incentives to the States as a method of
influencing a State’s policy choices”).
       22
          Dole, 483 U.S. at 207 (quoting United States v. Butler, 297 U.S. 1, 66 (1936)). See also
United States v. Lipscomb, 299 F.3d 303, 319 (5th Cir. 2002) (“Congress’s spending power, like its
power to tax, is ‘to provide for the general welfare,’ and is therefore untrammeled by the specific
grants of legislative power found elsewhere in Article I, Section 8.”) (citation omitted).
       23
          See Dole, 483 U.S. at 206-07; United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 203
(2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order
to further its policy objectives.”).

                                                -9-
the   restrictions           that     control     such      exercise:         (1)    Federal

expenditures must benefit the general welfare; (2) The conditions

imposed on the recipients must be unambiguous; (3) The conditions

must be reasonably related to the purpose of the expenditure; and

(4)   No      condition      may     violate     any     independent       constitutional

prohibition.24          In addition, the Dole Court recognized a fifth

requirement        that     the     condition     not    be   coercive:        “[I]n     some

circumstances the financial inducement offered by Congress might be

so coercive as to pass the point at which ‘pressure turns into

compulsion.’”25

      Thus, Dole makes clear that, as long as its framework is

employed, congressional spending programs that are enacted in

pursuit of the general welfare and unambiguously condition a

state’s       acceptance        of    federal       funds     on   reasonably        related

requirements         are     constitutional         unless     they     are    either     (1)

independently prohibited or (2) coercive.                          When the condition

requires a state to waive its Eleventh Amendment immunity, Dole’s

requirement of an unambiguous statement of the condition and its

proscription on coercive inducements serve a dual role because they

ensure compliance with College Savings Bank’s requirement that

waiver of Eleventh Amendment immunity must be (a) knowing and (b)

voluntary.


      24
           Id. at 207-08. See also New York, 505 U.S. at 171-72.
      25
           483 U.S. at 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).

                                             -10-
               i.      Clear Statement: “Knowing”

     In Pennhurst State Sch. & Hosp. v. Halderman,26 the Court

analyzed Congress’s power to impose conditions on a state’s receipt

of federal funds and pronounced:

               There can, of course, be no knowing acceptance if a State
               is unaware of the conditions or is unable to ascertain
               what is expected of it. Accordingly, if Congress intends
               to impose a condition on the grant of federal moneys, it
               must do so unambiguously.... By insisting that Congress
               speak with a clear voice, we enable the States to
               exercise their choice knowingly, cognizant of the
               consequences of their participation.27

Thus, we know that this stringent clear-statement rule ensures that

when a state foregoes its Eleventh Amendment immunity in exchange

for federal funds, it does so “knowingly.”28                In our reading of

Pennhurst, the only “knowledge” that the Court is concerned about

is a state’s knowledge that a Spending Clause condition requires

waiver of immunity, not a state’s knowledge that it has immunity

that it could assert.                At bottom, we conclude that if Congress

satisfies the clear-statement rule, the knowledge prong of the

Spending Clause waiver analysis is fulfilled.

               ii.     Non-Coercive: “Voluntary”

     If the clear-statement rule is satisfied, a state’s actual

acceptance of clearly conditioned funds is generally voluntary.



     26
          451 U.S. 1 (1981).
     27
          Id. at 17 (emphasis added) (citations omitted).
     28
          See also Dole, 483 U.S. at 207.

                                              -11-
The only exception to this presumption arises if the spending

program itself is deemed “coercive,” for then a state’s waiver is,

by definition, no longer voluntary.

     In summary, the Supreme Court has articulated two ways that a

state can be subject to an individual’s suit in federal court,

regardless of the Eleventh Amendment. First, Congress may abrogate

state immunity. Second, the state may waive its Eleventh 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”).

C.   WAIVER OF ELEVENTH AMENDMENT IMMUNITY PURSUANT   TO   CONDITIONAL
     SPENDING PROGRAMS

     Keeping firmly in mind the Court’s current framework for

analyzing when a state may be subject to suit in federal court, we

turn to the particular facts and legal contentions of the instant

case.   The two statutory provisions at issue purport to have

conditioned Louisiana’s receipt of federal funds on its waiver of

Eleventh 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 Eleventh Amendment immunity to

actions under § 504 and other federal anti-discrimination statutes:

           A State shall not be immune under the Eleventh


                                    -12-
               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.29

Similarly, 20 U.S.C. § 140330 conditions a state’s receipt of

federal IDEA          funds     on    its    consent       to    suit under         that     Act.31

Applying the framework set forth in Dole, we proceed to determine

whether Louisiana validly waived its immunity when it accepted the

conditioned federal dollars.

       Louisiana does not dispute that the first and third prongs of

the Dole analysis, i.e., whether the Spending Clause statute at

issue was enacted in pursuit of the general welfare, and whether

the condition is sufficiently related to the federal interest in




       29
           42 U.S.C. § 2000d-7(a)(1). Congress enacted § 2000d-7 in response to Atascadero, in
which the Court held that the Rehabilitation Act neither abrogated Eleventh Amendment immunity
nor effectively conditioned states’ receipt of federal funds on a waiver of that immunity. Atascadero,
473 U.S. at 245-47. According to the Court, the statute did not contai n a clear statement of
congressional intent either to abrogate or to require a waiver. Id.
       30
          20 U.S.C. § 1403(a) reads as follows: “A State shall not be immune under the eleventh
amendment to the Constitution of the United States from suit in Federal court for a violation of this
chapter.”
       31
          The section was passed by Congress in response to Dellmuth v. Muth, 491 U.S. 223 (1989).
In Dellmuth, the Supreme Court held that the predecessor to the IDEA (the Education of the
Handicapped Act) lacked a sufficiently clear statement of Congressional intent to abrogate Eleventh
Amendment immunity to claims under the statute. Id. at 232. The conditional-spending issue was
not raised in the case.

                                               -13-
the program funded,32 are satisfied here. Consequently, we restrict

our consideration to the three remaining prongs of the Dole test.

Following prior panels of this court,33 and every circuit (but one)

that has made these inquiries, we conclude that the statutes at

issue validly conditioned Louisiana’s receipt of these federal

funds on its waiver of Eleventh Amendment immunity.34


       32
           In its en banc brief, Louisiana mentioned a relatedness challenge to § 2000d-7, but that
argument was not presented to the panel, and Louisiana’s en banc brief fails to develop it beyond a
bare assertion. Thus, Louisiana has waived its relatedness challenge. See L & A Contracting Co. v.
S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994); FED. R. APP. P. 28(a)(9)(A); cf. Koslow
v. Pennsylvania, 302 F.3d 161, 175-76 (3d Cir. 2002) (rejecting a relatedness challenge to the validity
of a state’s conditional-spending waiver of immunity to § 504 suits).
       33
           E.g., Pederson v. Louisiana State Univ., 213 F.3d 858, 876 (5th Cir. 2000) (“A state may
waive its immunity by voluntarily participating in federal spending programs when Congress expresses
a clear intent to condition participation in the programs ... on a State’s consent to waive its
constitutional immunity.”) (citation and quotation marks omitted); id. at 875 (holding that “in
enacting § 2000d-7 Congress permissibly conditioned a state university’s receipt of [federal] funds
on an unambiguous waiver of the university’s Eleventh Amendment immunity, and that, in accepting
such funding, the university has consented to litigate private suits in federal court.”) (internal
punctuation and citation omitted) (emphasis added). Cf. AT&T Comm. v. BellSouth Telecom. Inc.,
238 F.3d 636, 645 (5th Cir.), reh’g en banc denied, 252 F.3d 437 (2001) (“[A]fter College Savings,
Congress may still obtain a non-verbal voluntary waiver of a state’s Eleventh Amendment immunity,
if the waiver can be inferred from the state’s conduct in accepting a gratuity after being given clear
and unambiguous statutory notice that it was conditioned on waiver of immunity.”).
       34
          Eight circuits have reached this conclusion in § 504 cases. See Nieves-Márquez v.
Puerto Rico, 353 F.3d 108, 129-30 (1st Cir. 2003); A.W. v. Jersey
City Pub. Schs., 341 F.3d 234, 244-51 (3d Cir. 2003); Bruggeman v.
Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003); Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,
344 F.3d 1288, 1292-93 (11th Cir. 2003) (per curiam); Lovell v. Chandler, 303 F.3d 1039, 1051-52
(9th Cir. 2002); Koslow, 302 F.3d at 172 (3d Cir.); Robinson v. Kansas, 295 F.3d 1183, 1189-90
(10th Cir. 2002); Nihiser v. Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001); Jim C. v. Arkansas
Dep’t of Educ., 235 F.3d 1079, 1081 (8th Cir. 2000) (en banc); Stanley v. Litscher, 213 F.3d 340,
344 (7th Cir. 2000). Other courts of appeals have reached the same conclusion for the other
predicate statutes of § 2000d-7. See, e.g., Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d
541, 553-55 (7th Cir. 2001) (Title IX); Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) (Title VI),
rev’d in part on other grounds, 532 U.S. 275 (2001); Litman v. George Mason Univ., 186 F.3d 544

                                                -14-
       First, we determine whether the conditions contained in 42

U.S.C.       §    2000d-7      and     20   U.S.C.      §    1403     are    unambiguous         and,

consequently, whether Louisiana knowingly waived its immunity to

actions under § 504 and the IDEA by accepting federal funds.

       1.        Is the Clear-Statement Rule Satisfied Absent
                 Use of the Words “Waiver” or “Condition”?

       In the face of the unequivocal language of § 2000d-7 to the

effect 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 § 504 of the Rehabilitation Act of

1973,”35 Louisiana argues legalistically that, because Congress did

not use the words “waiver” or “condition,” the condition fails the

clear-statement rule.36                  This argument —— that absent talismanic

incantations of magic words, there can be no waiver —— is little

more than frivolous.37               The Supreme Court has already noted, albeit

in dicta, that in § 2000d-7 “Congress sought to provide the sort of

unequivocal waiver that our precedents demand.”38 More importantly,


(4th Cir. 1999) (Title IX). Circuits have reached this conclusion about the IDEA, as well. See, e.g.,
M.A. ex rel. E.S. v. State-Operated School Dist., 344 F.3d 335, 351 (3d Cir. 2003); Oak Park Bd.
of Educ. v. Kelly E., 207 F.3d 931, 935 (7th Cir. 2000).
       35
            42 U.S.C. § 2000d-7 (2000).
       36
            In its amicus brief, the State of Texas points to other statutes that have used such terms.
       37
           Cf. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (“The question of the
constitutionality of action taken by Congress does not depend on recitals of the power which it
undertakes to exercise.”).
       38
        Lane v. Pena, 518 U.S. 187, 198 (1996). See also id. at 200 (noting “the care with which
Congress responded to ... Atascadero by crafting an unambiguous waiver of the States’ Eleventh

                                                 -15-
our decision in Pederson v. Louisiana State University, which we

remain convinced was correctly decided, forecloses this line of

attack.39

         2.         Does the Presence of Abrogation Language
                    Preclude a Finding of Waiver?

         Louisiana also argues that because § 2000d-7 and § 1403 fail

as   §        5   attempts       by    Congress     to    abrogate      Eleventh      Amendment

immunity, the same provisions of those statutes cannot satisfy the

clear-statement rule for Spending Clause purposes.                                   We reject

Louisiana’s            attempt        to    pigeonhole    this    statutory       language    in

mutually exclusive terms.

         We held in Pederson 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.”40                        And in Lesage v. Texas,41

we 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




Amendment immunity”).
         39
         213 F.3d at 875-76 (adopting the holding and reasoning of Litman v. George Mason
Univ., 186 F.3d 544 (4th Cir. 1999)).
         40
              213 F.3d at 876.
         41
              158 F.3d 213 (5th Cir. 1998), overruled on other grounds, 528 U.S. 18 (1999).

                                                 -16-
Atascadero.”42           Thus, in Pederson, we recognized § 2000d-7 as a

clear statement for waiver vis-à-vis the Spending Clause, and in

Lesage, we recognized that the very same provision could satisfy

abrogation under § 5 of the Fourteenth Amendment.

       Just because particular language may or may not function with

equal       efficacy       under     both   exceptions        to    Eleventh       Amendment

immunity, does not mean that it fails the clear-statement rule. As

we concluded in AT&T, 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.”43 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 our finding valid waiver by consent.                              We conclude

that    the       conditions       contained     in    §   2000d-7      and    §   1403     are

unambiguous, as required by Dole.

       Undaunted, Louisiana still contends that it did not knowingly

waive its Eleventh Amendment immunity.                     Louisiana and the dissent

rely on Garcia v. S.U.N.Y. Health Sciences Ctr.,44 which looked to


       42
          Id. at 218. See also United States v. Wells, 519 U.S. 482, 495 (1997) (reiterating the
baseline presumption that Congress expects its statutes to be read in conformity with the Supreme
Court’s precedents).
       43
            238 F.3d at 644.
       44
            280 F.3d 98 (2d Cir. 2001).

                                             -17-
the Supreme Court’s decision in Board of Trustees of the University

of Alabama v. Garrett45 to justify departing from the heavy weight

of authority supporting waiver based on the clarity of the language

in § 2000d-7.           Garrett examined whether, in Title I of the ADA,

Congress could           constitutionally   abrogate   the   states’   Eleventh

Amendment immunity.46            The Garrett Court concluded that Title I of

the ADA was outside the scope of valid § 5 legislation; therefore,

Congress’s attempt at abrogation failed, and private suits against

states in federal court were barred by the Eleventh Amendment.47

     The lawsuits in Garcia involved disputes that arose between

September 1993 and August 1995.48           During that pre-Garrett period,

it was universally accepted that the ADA validly abrogated Eleventh

Amendment immunity.              Rather than looking at the clear-statement

rule and the state’s acceptance of funds, Garcia analyzed whether

a state would have realized —— “known” —— that it was abandoning

its Eleventh Amendment immunity by accepting federal funds during

the period of time applicable to the lawsuits at issue there (and

here).49      The Garcia court noted that, during the relevant period,

“Title II of the ADA was reasonably understood to abrogate [the


     45
          531 U.S. 356 (2001).
     46
          See id. at 365-74.
     47
          Id. at 374.
     48
          Garcia, 280 F.3d at 114 n.4.
     49
          Id. at 114.

                                         -18-
state’s]         sovereign     immunity           under    Congress’s   Commerce    Clause

authority.”50          The court also pointed out that the requirements of

Title      II    and    §   504     are     “virtually      identical.”51       Therefore,

concluded the court, because the state defendant thought that it

could be sued under Title II, it had nothing to lose by accepting

federal funds and redundantly waiving immunity to § 504 suits in

the process.52

      Louisiana and the dissent maintain that we should follow the

panel and apply the “logic” of Garcia to the instant case.                          First,

Louisiana         contends          that,        because    it   “believed”     that   the

Rehabilitation Act had already abrogated its Eleventh Amendment

immunity, it “did not and could not know that [it] retained any

sovereign        immunity      to     waive       by   accepting    conditioned    federal

funds.”53        Likewise, Louisiana asks us to conclude that § 1403 was

an   unsuccessful           attempt         at    abrogation;      therefore,   maintains

Louisiana, it could not have “knowingly” waived its immunity under

the IDEA when it accepted federal IDEA funds.

      Even though it found that the statutory provisions at issue

are unambiguous,54 the panel nevertheless concluded that Louisiana’s


      50
           Id.
      51
           Id.
      52
           Id.
      53
           Pace, 325 F.3d at 616.
      54
           Pace, 325 F.3d at 615.

                                                  -19-
purported         waivers     of     Eleventh    Amendment       immunity       are    invalid

because they were not knowing.                   The panel drew support from the

holding in Garcia, but its reasoning differed slightly from the

Second Circuit’s.             According to the panel opinion, “[b]elieving

that [the Rehabilitation Act and the IDEA] validly abrogated their

sovereign immunity, the State defendants did not and could not know

that they retained any sovereign immunity to waive by accepting

conditioned federal funds.”55

       The fatal flaw with that syllogism lies in the fact that

neither the mandates of the Rehabilitation Act nor the requirements

of the IDEA apply to a state agency that has not received either

some federal funding (in the case of the Rehabilitation Act) or

federal IDEA dollars (in the case of the IDEA).56                         Therefore, it is

impossible for Congress to have “abrogated” a state’s immunity to

§ 504 or IDEA suits if the relevant state agency did not receive

federal funds during the time period in which it was alleged to

have    violated        an    individual’s       statutory        rights.        It    follows

indisputably that Louisiana’s Eleventh Amendment immunity to § 504

and IDEA claims was intact before the state accepted federal funds.

Thus, Louisiana did have Eleventh Amendment immunity to waive by

accepting the clearly conditioned federal funds.


       55
            Pace, 325 F.3d at 616.
       56
          See 29 U.S.C. § 794(a) (pro hibiting discrimination against the disabled through “any
program or activity receiving Federal financial assistance”); 20 U.S.C. §§ 1412, 1415 (conditioning
state agencies’ receipt of federal funds on compliance with the requirements of the IDEA).

                                              -20-
     The dissent nevertheless insists that, during the time that

§ 504 and the IDEA were thought to abrogate Eleventh Amendment

immunity, Louisiana could have believed that it lacked immunity to

§ 504 and IDEA suits even before it received federal funds under

those statutes.57    This ignores the conditional-spending nature of

the Rehabilitation      Act   and   the   IDEA.   The   Acts’   substantive

provisions regulate only state agencies that have accepted the

relevant federal funds.       Thus, it makes no sense to say that the

State was subject to private actions for damages under § 504 and

the IDEA before the substantive provisions of those statutes

applied to it.      Contrary to the dissent’s accusation,58 we do not

confuse the doctrines of abrogation and waiver; rather, we point

out that ——     even before Garrett —— Louisiana could have avoided

suits under § 504 and the IDEA altogether by declining federal

funding.      Louisiana clearly had Eleventh Amendment immunity to

waive at the time that it accepted the federal funds and expressly

obligated itself to comply with the dictates of the Rehabilitation

Act and the IDEA.

     Further, during the relevant time period, §§ 2000d-7 and 1403

put each state on notice that, by accepting federal money, it was



     57
       Post at 9 (“[T]he State acted quite rationally in assuming
between 1996 and 1998 that it had no sovereign immunity to waive
when it accepted federal education funds under conditions specified
by § 504 and IDEA.”).
     58
          Post at 10 & n.7.

                                    -21-
waiving its Eleventh Amendment immunity. Under Dole, if the clear-

statement requirement is met, the state is conclusively presumed to

have “known” that receipt of clearly conditioned federal funds

requires the state to abide by the condition (i.e., waiver of

Eleventh Amendment immunity).

     In addition, the Garcia approach is problematic for a number

of reasons, the most fundamental of which is that, by focusing its

inquiry on what the state could have believed, the Second Circuit

engrafted a subjective-intent element onto the otherwise objective

Spending Clause waiver inquiry.          In other words, Garcia’s approach

employs the wrong jurisprudential test, because it distorts what is

necessary      to   show     knowledge    for    Spending        Clause      waivers.

Analytically,       the    “knowledge”    question      that    we     ask   when   we

undertake the Spending Clause waiver inquiry is coextensive with

the clear-statement rule; for, when a state actually accepts funds

that are clearly conditioned on a waiver of Eleventh Amendment

immunity, it is held objectively to “know” that it is accepting all

clearly stated conditions.           That it might not “know” subjectively

whether   it    had   any    immunity    to    waive    by   agreeing        to   those

conditions is wholly irrelevant.

     The dissent asserts that, by focusing on the clear-statement

requirement, we have disregarded College Savings Bank’s “clear

declaration” requirement.            But College Savings Bank was not a

conditional-spending         case.        There,       the     Court    invalidated

“constructive waivers” of Eleventh Amendment immunity “based upon

                                        -22-
the State’s mere presence in a field subject to congressional

regulation.”59            Such a constructive waiver is a far cry from a

state’s acceptance of federal funds that are explicitly conditioned

on its waiver of Eleventh Amendment immunity.                     In fact, the College

Savings Bank opinion expressly distinguished conditional-spending

waivers        of     Eleventh     Amendment         immunity,   which   it   said    were

“fundamentally different from” illegitimate constructive waivers.60

Nothing in College Savings Bank indicates that, when the clear-

statement requirement is met, a state can be said to lack knowledge

that by accepting federal funds it waives its Eleventh Amendment

immunity.

       In sum, Garcia and the dissent would subjugate the bright-line

of objective reasoning to the slippery slope of assessing a state’s

subjective belief.61             If, like the panel, we were to follow that

approach, we would be getting into the business of looking past the

straightforward objective facts, i.e., (1) the clear statement

requiring waiver and (2) the state’s actual, uncoerced acceptance

of federal funds, in an attempt to fathom what was in a state’s

“head,” a precarious exercise indeed.                      The clear-statement rule

guards against post hoc questions about intent.



       59
            College Savings Bank, 527 U.S. at 680.
       60
            Id. at 686.
       61
          See Lapides v. Bd. of Regents, 535 U.S. 613, 621 (2002) (“Motives are difficult to
evaluate, while jurisdictional rules should be clear.”).

                                              -23-
       Accordingly, we hold that Louisiana’s waiver of Eleventh

Amendment       immunity       to        actions   under     §    504    and    the       IDEA   was

knowing.62          Still,      we       must   determine        whether       an    independent

constitutional bar prevents Congress from conditioning the receipt

of   federal       funds      on     a    state’s      waiver     of    Eleventh          Amendment

immunity.

       3.      Can Congress Condition Waiver of Eleventh
               Amendment Immunity When It Exercises its
               Spending Power?

       Louisiana        challenges          Congress’s       power      under       the    Spending

Clause to condition receipt of federal education funds on a state’s

waiver of Eleventh Amendment immunity. This position is frivolous.

We    have     consistently          interpreted          Supreme       Court       guidance      as

permitting such conditional spending programs, as has every other

circuit that has squarely addressed the issue.63                             We do not change

course today.



       62
          Since the Pace panel opinion was issued, five circuits have expressly rejected its approach,
which the dissent continues to advocate. See Nieves-Márquez, 353 F.3d at 129-30 (First Circuit);
A.W., 341 F.3d at 244-52 (Third Circuit); Shepard v. Irving, 77 Fed. Appx. 615, 619 n.2 (4th Cir.
2003) (unpublished); Doe v. Nebraska, 345 F.3d 593, 600-604 (8th Cir. 2003); Garrett, 344 F.3d at
1292-93 (Eleventh Circuit). See also Koslow, 302 F.3d at 172 n.12 (explaining that “the ‘clear intent
to condition participation in the programs funded,’ required by Atascadero, 473 U.S. at 247, ensured
the Commonwealth of Pennsylvania knew that by accepting certain funds under the Rehabilitation
Act for certain departments or agencies, it waived immunity from suit on Rehabilitation Act claims
for those entities”).
       63
         See, e.g., Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 24-25 (1st Cir.
2001); Garcia, 280 F.3d at 113; Koslow, 302 F.3d at 172; Pederson, 213 F.3d at 875-76; Nihiser v.
Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.
2000); Jim C., 235 F.3d at 1081; Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819, as
amended, 271 F.3d 910 (9th Cir. 2001); Robinson, 295 F.3d at 1189-90; Sandoval, 197 F.3d at 493.

                                                -24-
        4.      Is Conditioning Acceptance of Federal Funds a
                Violation of the Unconstitutional-Conditions
                Doctrine?

        Louisiana        also     attempts        to    invoke      the     “unconstitutional-

conditions doctrine” to challenge Congress’s ability to condition

the acceptance of federal funds on waiver of Eleventh Amendment

immunity.           In    the    most      general       sense,      the     unconstitutional-

conditions         doctrine       examines        the     extent       to    which      government

benefits may be conditioned or distributed in ways that burden

constitutional rights or principles.64                          For at least two reasons,

Louisiana’s reliance on the unconstitutional-conditions doctrine is

misplaced.

        First, as evidenced by the dearth of cases employing it in

this context,65 the unconstitutional-conditions doctrine is most

meaningful when the government imposes a condition of questionable

constitutional character on an individual right. But here, federal

and state sovereigns are on opposite sides of the controversy, and


        64
           See Frost & Frost Trucking Co. v. Railroad Com. of Cal., 271 U.S. 583, 593-94 (1926)
(“[T]he state ... may not impose conditions which require the relinquishment of constitutional rights....
It is inconceivable that guaranties embedded in the Constitution of the United States may thus be
manipulated out of existence.”).
        65
         The only Supreme Court decision that has come close was United States v. Butler. In that
1936 decision, the Court invalidated provisions of the Agricultural Adjustment Act of 1933, which
paid farmers to reduce their production of crops. 297 U.S. at 74-78. As the Tenth Circuit has
explained, though, “that case relied on an overly narrow view of Congress’ enumerated powers to
determine that Congress had overstepped its authority.” Kansas v. United States, 214 F.3d 1196,
1201 n.6 (10th Cir. 2000) (citing LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-b, at
836 (3d ed. 2000) (“[T]he Supreme Co urt has effectively ignored Butler in judging the limits of
congressional spending power.”)). Accord Lipscomb, 299 F.3d at 319 (noting that the Supreme
Court “quickly abandoned” the view espoused in Butler).

                                                 -25-
the constitutional “right” at issue is structural rather than

personal.         Consequently, for the reasons announced in the Third

Circuit’s analysis in Koslow v. Commonwealth of Pennsylvania, the

doctrine is inapplicable.             The Koslow court considered whether the

Rehabilitation           Act,      including          §    2000d-7,         imposed        an

unconstitutional condition on Pennsylvania’s receipt of federal

funds.       In    refusing      to   apply     the   unconstitutional-conditions

doctrine to the conditioning of federal funds on the waiver of

Eleventh Amendment immunity, the Third 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.66

We embrace that reasoning.

       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.67 In this context, that




       66
         302 F.3d at 174 (citing Frost & Frost, 271 U.S. at 593; New York, 505 U.S. at 171-72;
Dole, 483 U.S. at 210-11).
       67
         See id. (“The “unconstitutional conditions” doctrine is based on the proposition that
government incentives may be inherently coercive.”). See also Kathleen M. Sullivan,
Unconstitutional Conditions, 102 HARV. L. REV. 1415, 1428-55 (1989).

                                            -26-
concern is subsumed in the non-coercion prong of the Dole test.68

In other words, in the Spending Clause context, any role that the

unconstitutional-conditions                    doctrine        might       have      in     cabining

Congress’s authority to give funds in exchange for waiving immunity

is    already         part-and-parcel           of    the      standard        Spending        Clause

analysis.           Thus, no independent constitutional bar invalidates

Louisiana’s waiver of Eleventh Amendment immunity.

        5.        Are These Programs Coercive?

        In light of Dole, we must determine whether the conditional-

spending schemes at issue are unduly coercive.                               We hold that they

are not.          A state can prevent suits against a particular agency

under § 504 by declining federal funds for that agency.69                                    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.70              Moreover, no circuit has accepted a coercion

challenge          to    either      the     Rehabilitation            Act      or    the      IDEA.71

Therefore, we refuse to invalidate Louisiana’s waiver on coercion

grounds.




        68
             See supra text accompanying note 24.
        69
             See 29 U.S.C. § 794(b)(1).
        70
             See 20 U.S.C. §§ 1411(a)(1), 1412, 1403.
        71
          See, e.g., Jim C., 235 F.3d at 1082 (rejecting a coercion challenge to the validity of a waiver
of state Eleventh Amendment immunity to § 504 claims).

                                                 -27-
D.     ABROGATION      OF   IMMUNITY

       Alternatively, Pace asks this en banc court to rule that

Congress —— acting under § 5 of the Fourteenth Amendment —— in fact

abrogated          Louisiana’s          Eleventh       Amendment    immunity,        leaving

Louisiana subject to suit on Pace’s ADA, Rehabilitation Act, and

IDEA claims.                As we hold that Louisiana waived its Eleventh

Amendment immunity with respect to the Rehabilitation Act and the

IDEA, it is not necessary for us to address Pace’s contention that

Louisiana’s           immunity     to    suit    under     those    statutes      was     also

abrogated.           Neither is it necessary for us to consider whether

Title II of the ADA abrogates Eleventh Amendment immunity in this

case.       First, the Supreme Court, in Tennessee v. Lane,72 held that

Title II          abrogates      sovereign       immunity    to    the   extent     that     it

implicates the accessibility of judicial services, but refused to

consider         its       application     to     other     rights,      including      those

considered to be fundamental under the Constitution.73                         Because (1)

the Supreme Court has never before recognized access to public

education74 or freedom from disability discrimination in education75

to be fundamental rights, and (2) it is unnecessary to address


       72
            124 S. Ct. 1978 (2004).
       73
            Id. at 1993.
       74
        See Plyler v. Doe, 457 U.S. 202, 221, 223 (1982) (although important, education is not a
fundamental constitutional right).
       75
            Cf. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (disability
classifications are subject only to rational-basis scrutiny).

                                                -28-
Pace’s Title II claims given that its rights and remedies are

identical to and duplicative of those provided in § 504, we do not

address   whether     the     holding    in    Lane   extends    to   disability

discrimination in access to public education.

     Second,   when     ADA     claims    are    directed   at    architectural

barriers, as they are here, the rights and remedies are exactly the

same as those provided under the Rehabilitation Act. This circuit,

as well as others, has noted that, because the rights and remedies

under both statutes are the same, case law interpreting one statute

can be applied to the other.76           The implementing regulations for §

504 and Title II are, in all material respects, the same.                   For

example, both statutes’ implementing regulations prohibit similar




     76
       See Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)
(internal citations omitted) (“The language of Title II generally
tracks the language of Section 504 of the Rehabilitation Act of
1973, and Congress’ intent was that Title II extend the protections
of the Rehabilitation Act ‘to cover all programs of state or local
governments, regardless of the receipt of federal financial
assistance’ and that it ‘work in the same manner as Section 504.’
In fact, the statute specifically provides that ‘[t]he remedies,
procedures and rights’ available under Section 504 shall be the
same as those available under Title II. Jurisprudence interpreting
either section is applicable to both.”); Washington v. Indiana High
Sch. Athletic Ass’n, Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999)
(“Title II of the ADA was modeled after § 504 of the Rehabilitation
Act; the elements of claims under the two provisions are nearly
identical, and precedent under one statute typically applies to the
other.”); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (“The
ADA has no federal funding requirement, but it is otherwise similar
in substance to the Rehabilitation Act, and ‘cases interpreting
either are applicable and interchangeable.’”); McPherson v.
Michigan High Sch. Ath. Ass’n, 119 F.3d 453, 459-60 (6th Cir. 1997)
(en banc) (same).

                                        -29-
types of discrimination.77            In addition, § 504 and Title II’s

regulations     governing       new   construction          and    alterations     are

effectively the same.78 The two statutes are interpreted to provide

the same exception: No covered entity is obligated to make a

“fundamental alteration” in its programs.79                 Finally, the remedies

available     under   §   504   and     Title   II    are    one    and   the    same.

Specifically, § 203 of Title II states that “[t]he remedies,

procedures,     and   rights      set    forth       in   section     505   of     the

Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies,

procedures, and rights this title provides to any person alleging

discrimination on the basis of disability in violation of section

202 [of the ADA].”80      Section 505(a)(2) of the Rehabilitation Act,

in turn, states that the “remedies, procedures, and rights set

forth in title VI of the Civil Rights Act of 1964... shall be




     77
       Compare 28 C.F.R. § 42.520, with 28 C.F.R. § 35.149.
Similarly, § 504 and Title II’s regulations regarding existing
facilities are nearly identical. Compare 28 C.F.R. 42.521(a), with
28 C.F.R. 35.150(a).
     78
          Compare 28 C.F.R. 42.522(a), with 28 C.F.R. 35.151(a).
     79
       Compare Alexander v. Choate, 469 U.S. 287 (1995)(Section 504
does not require covered entities to make fundamental alterations
in their programs); with 28 C.F.R. § 35.150(a)(2)-(3) (Title II
does not require public entities to make fundamental alterations in
the nature of a program, service, or activity). This requirement,
however, does not excuse the failure to make altered or new
facilities accessible. Compare 28 C.F.R. § 35.151(a)-(b), with 28
C.F.R. § 42.522(a).
     80
          42 U.S.C. § 12133.

                                        -30-
available” for violations of § 504.81             Thus, in Barnes v. Gorman,82

the Supreme Court held that “the remedies for violations of § 202

of the ADA and § 504 of the Rehabilitation Act are coextensive with

the remedies available in a private cause of action brought under

Title VI” of the Civil Rights Act.83            For all intents and purposes,

therefore, the remedies available to Pace under § 504 and Title II

are the same.      The sole difference between the statutes lies in

their causation requirements.84          This difference is not implicated,

however,     where,   as   here,   the    challenge     is   to   architectural

barriers.

     In conclusion, we hold that for all the foregoing reasons,

Louisiana is not entitled to assert sovereign immunity under the

Eleventh Amendment in this case.               With that issue determined, we

proceed to the question of issue preclusion.



                                 III.    MERITS

     We turn now to the merits of Pace’s arguments that the

district court erred in denying relief to him under the IDEA, the

ADA and § 504.



     81
          29 U.S.C. § 794a(a)(2).
     82
          531 U.S. 181 (2002).
     83
           Id. at 185.
     84
          See Soledad v. U.S. Dept. of Treasury, 304 F.3d 500 (5th Cir.
2002).

                                        -31-
A.     IDEA

       We agree with and adopt that portion of the panel opinion

affirming the district court’s judgment which in turn affirmed the

administrative determination that Pace was not entitled to relief

under the IDEA.

       We pause only to emphasize the somewhat unusual nature of a

proceeding under the IDEA. As required by the statute,85 Pace first

pursued his administrative claim.                      He was granted a hearing by a

hearing examiner           where      he   had    an    opportunity        to    present      his

evidence demonstrating that the inaccessibility of various portions

of the Bogalusa campus prevented him from receiving a free and

appropriate public education (FAPE).                     The hearing examiner, after

hearing the evidence and making a personal inspection of the

campus, rejected Pace’s inaccessibility claims and concluded that

the defendants had complied with the IDEA and had provided a FAPE

to Pace.86 Pace then challenged the hearing examiner’s findings and

conclusion in his administrative appeal to the State Level Review

Panel (SLRP).          The SLRP also rejected Pace’s claims and affirmed

the hearing examiner in all respects.87                       Pace then filed suit in

federal district court as authorized by 20 U.S.C. § 1415(i)(1)(A).

       85
            See 20 U.S.C. 1415(l).
       86
       The hearing examiner thoroughly reviewed the testimony and
physical evidence presented to her and rejected in wholesale
fashion Pace’s various claims of inaccessibility. R. 94.
       87
          The language used by the SLRP also makes it clear that this review panel found absolutely
no merit to Pace’s inaccessibility claims. R. 64-65.

                                              -32-
A district court in which such an action is filed must receive the

record generated by the administrative proceeding and also hear

additional evidence presented by the parties.88 The court must then

give “due weight” to the hearing officer’s finding and make a de

novo determination based on a preponderance of the evidence.

Teague Independent School District v. Todd L, 999 F.2d 127, 131 (5th

Cir. 1993).        The district court considered all of Pace’s claims of

inaccessibility           that      he     raised       during       the      administrative

proceedings.89 The court considered the administrative record along

with the new evidence offered by Pace and gave “due weight” to the

findings of the hearing examiner and SLRP. Ultimately, the district

court agreed with the hearing examiner that Bogalusa High School

had provided Pace with a FAPE by complying with the IDEA in all


       88
       See 20 U.S.C. § 1415 (i)(2) (A) (Any party aggrieved by the
findings and decisions...shall have the right to bring a civil
action with respect to the complaint pursuant to this section,
which action may be brought...in a district court of the United
States...).
       89
         Pace sought relief from the district court to remedy the school board’s refusal to make the
following areas accessible:

               •       bathroom facilities
               •       classrooms on the second rather than first floor of the school
               •       elevator access
               •       exiting classroom during fire drills
               •       cafeteria
               •       school health center
               •       auditorium
               •       music room
               •       insufficient parking spaces
               •       lack of ramps (accessible entrances)


                                              -33-
aspects,    including         that    the    campus    was   accessible   to   the

wheelchair-bound Pace.           The district court’s conclusion is fully

supported by the record and we therefore affirm the district

court’s rejection of Pace’s claims under the IDEA.

B.   ADA   AND   SECTION 504

     In addition to his IDEA claims, Pace also asserted claims

under the ADA and § 504 in his suit.                  The district court severed

the IDEA claims from these non-IDEA claims.                    After dismissing

Pace’s IDEA claims, the district court then considered defendants’

motion for summary judgment seeking exoneration under § 504 and the

ADA. The district court granted the defendants’ motion for summary

judgment on grounds that the factual bases for the non-IDEA claims

were indistinct from the resolved IDEA claims.                The district court

concluded further that principles of issue preclusion applied to

preclude Pace from pursuing his redundant non-IDEA claims.                     Pace

argues that the district court committed legal error in applying

principles of issue preclusion to bar his non-IDEA claims.

     Issue preclusion or collateral estoppel is appropriate when:

(1) the identical issue was previously adjudicated; (2) the issue

was actually litigated; and (3) the previous determination was

necessary to the decision.                  See Southmark Corp. v. Coopers &

Lybrand (In re: Southmark Corp.), 163 F.3d 925, 932 (5th Cir. 1999).

In Southmark we also found that the “relitigation of an issue is

not precluded unless the facts and the legal standard used to

assess them       are   the    same    in    both   proceedings.”   Id.   (quoting

                                            -34-
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1281 (5th Cir. 1995)).

Issues of fact are not “identical” or “the same,” and therefore not

preclusive, if the legal standards governing their resolution are

“significantly different.”90 Pace argues that the accessibility

issues the court litigated under the IDEA were for the limited

purpose of determining whether the Bogalusa High School provided

Pace with a FAPE under that statute. Thus, Pace contends, because

a   “significantly            different”         legal       standard        applies        to     his

accessibility issues under the ADA and § 504, these latter claims

were never litigated and issue preclusion should not apply. We

therefore compare the standards of accessibility under the IDEA on

the one hand and the ADA and § 504 on the other to determine

whether the legal standards are “significantly different.”

       As    indicated        above,       the    IDEA     requires        states      and       local

educational agencies receiving federal IDEA funds to make a FAPE

available to children with certain disabilities between the ages of

3 and 21.        The IDEA imposes extensive requirements on schools to

safeguard the disabled child’s right to a FAPE.                            20 U.S.C. §§ 1414,

1415.       In determining whether a school has provided a student with



       90
          See, e.g., 18 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE 3d § 132.02[2][h]
(3d ed. 2001). Courts have used slightly differing language to express this idea that legal issues are
not “identical” for issue preclusion purposes if they are significantly different. Compare Raytech Corp.
v. White, 54 F.3d 187, 191 (3d Cir. 1995) (the differences in the standards must be “substantial”)
with Talcott v. Allahabad Bank, Ltd., 444 F.2d 451, 460 (5th Cir. 1971) (the legal standards are not
identical for issue preclusion purposes only when there is a “demonstrable difference” in the legal
standards by which the facts are evaluated). For purposes of this appeal, these distinctions are
irrelevant.

                                                 -35-
a FAPE, the focus is on the Individualized Education Plan (IEP), a

written statement prepared by a team consisting of a representative

of the local school district, the disabled child’s teachers, the

child’s parents and the child.           20 U.S.C. § 1414(d).          The IEP

includes the child’s educational performance, his goals, the nature

of his disabilities, and a description of the educational and

related services that will be provided for the child to meet the

stated objectives.   The objective is always to tailor the FAPE to

the particular needs of the child.              Cypress Fairbanks ISD v.

Michael F., 118 F.3d 245, 247 (5th Cir. 1997).

     The goal of the IDEA is to require a FAPE that will permit the

child “to benefit” from the educational experience.             It need not be

the best possible education nor one that will maximize the child’s

educational potential.      Bd. of Education v. Rowley, 458 U.S. 176

(1982).

     Admittedly different from those underlying the IDEA, the

Congressional   objective    of   both    the   ADA   and   §    504   is   the

elimination     of   discrimination        against      individuals         with

disabilities.   42 U.S.C. § 12101(b)(1).        Title II of the ADA, which

applies to public entities including public schools, provides that

“no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

benefits of the services, programs or activities of a public entity

or be subjected to discrimination by any such entity.”              42 U.S.C.

§ 12132.   See also 28 C.F.R. § 35.130(a).            Section 504 contains

                                  -36-
virtually identical language.                       See 29 U.S.C. § 784(a).                   Mandating

physical          accessibility           and     the      removal        and     amelioration            of

architectural barriers is an important purpose of each statute.91

        The primary difference between the ADA and § 504 is that § 504

applies only to recipients of federal funds. 29 U.S.C. § 794(a).

This difference does not concern us in this case because no

defendant argues that it does not receive federal money.                                        Thus, as

we stated in section II-D above, for the purposes of this appeal,

the ADA          and    §   504    and     their       implementing           regulations          impose

identical obligations on the defendants and grant identical rights

to Pace.92

        In Pace’s brief to us on his non-IDEA claims brought under §

504 and the ADA he complains only that parts of the Bogalusa High

School campus are inaccessible to him.                            The only § 504 regulations

dealing with accessibility in education are found in subpart C of

the § 504 regulations. 34 C.F.R. §§ 104.21-104.23.                                     Section 104.23

of § 504's regulations deals with new construction on school

campuses, the basis of Pace’s complaints in this suit.                                         Subpart D

of the § 504 regulations deals with preschool, elementary, and


        91
            See 42 U.S.C. § 12101(a)(5) (“The Congress finds that ...individuals with disabilities
continually encounter various forms of discrimination, including...the discriminatory effects of
architectural...barriers,... failure to make modifications to existing facilities[,]...segregation, and
relegation to lesser services, programs, [and] activities...”); Id. § 12101(a)(4) (“The Congress finds
that...discrimination against individuals with disabilities persists in such critical areas as education...”);
Alexander v. Choate, 469 U.S. 287, 297 (1985) (noting that the “elimination of architectural barriers
was one of the central aims of the Rehabilitation Act”).
        92
             See note 78, supra.

                                                   -37-
secondary education and those regulations do not purport to cover

accessibility in schools.93 Rather, 34 C.F.R. § § 104.21-23, the

general education regulations on accessibility found in subpart C

of § 504 apply to new construction on high school campuses such as

Bogalusa High.94           The ADA has no specific section on education, so

the general regulations governing accessibility to public buildings

also control accessibility to school buildings.

        With this background, we turn to Pace’s specific argument that

his accessibility claims under the ADA/504 are not precluded by the

district court’s rejection of his accessibility claims under the

IDEA.        He argues that his non-IDEA accessibility claims are not

precluded because different legal standards apply to his ADA and §

504 accessibility claims, and these claims have never been litigated

or    decided.          When      we    consider        the     equivalent         standards        for

accessibility in schools under the IDEA on the one hand and the

ADA/504 on the other, it becomes clear that we should reject this

argument.

        Congress required in a 1997 amendment to the IDEA that any

        93
          Subpart D in the regulations to § 504 includes general regulations for preschool,
elementary, and secondary education regarding placement (34 C.F.R. § 104.35), procedural
requirements (34 C.F.R. § 104.36) and the general FAPE requirement (34 C.F.R. § 104.33).
        94
          Although it is illogical to do so, one can read the § 504 regulations to say that a school need
not comply with accessibility requirements in Subpart C to provide a § 504 FAPE under 104.33 when
a student complains that part of a school’s campus is inaccessible. In such a situation, it is more
sensible to read these regulations as requiring a school’s compliance with subpart C’s accessibility
requirements before it can be said to provide a § 504 FAPE. Regardless of whether the accessibility
requirement s must be met before a § 504 FAPE is provided, subpart C of the § 504 regulations
clearly requires new construction in the school to meet the regulation’s accessibility requirements.

                                                 -38-
construction of new facilities must comply with either (1) The

Americans with Disabilities Accessibility Guidelines for Buildings

and Facilities (ADAAG); or (2) The Uniform Federal Accessibility

Standards (UFAS). 20 U.S.C. § 1404(b).95                             Thus, with respect to a

physically disabled child such as the wheelchair-bound Pace, the

school can comply with the IDEA’s accessibility requirements by

satisfying either the ADAAG or UFAS.96

        Pace presents no argument that the accessibility standards for

new construction of school buildings under the ADA or § 504 are more

demanding or even different from the standards required under the

1997 amendment to the IDEA. This is understandable, because the

regulations governing accessibility in schools under the ADA/504

require a school engaged in new construction to conform to the same

standards as the IDEA, either the ADAAG or UFAS.

        New construction and alterations of public facilities under



        95
             20 U.S.C. § 1404(b) provides in pertinent part:

                  ...Any construction of new facilities or alteration of existing facilities under
                  subsection (a) of this section shall comply with the requirements of–

                         (1) appendix A of part 36 of title 28, Code of Federal Regulations
                         (commonly known as the “Americans with Disabilities Accessibility
                         Guidelines for Buildings and Facilities”); or

                         (2) appendix A of part 101-19.6 of title 41, Code of Federal
                         Regulations (commonly known as the “Uniform Federal Accessibility
                         Standards”).
        96
             The corresponding regulation to 20 U.S.C. § 1404 is found at 34 C.F.R. § 300.756 and is
identical.

                                                  -39-
Title II of the ADA are governed by the regulations found in 28

C.F.R. § 35.151.97          Like the IDEA, the ADA accessibility regulations

require a school conducting new construction to comply with either

the ADAAG or UFAS.               Section 504's accessibility regulations are

virtually identical to the ADA’s,98 and also demand that schools

engaging in new construction comply with the same federal guidelines

required by the IDEA.             Thus, Pace’s argument that the accessibility

standards are different under IDEA and ADA/504 is meritless.

       In summary, under the IDEA, when, as here, a child complains

that his disability renders a portion of the campus inaccessible,

this triggers the application of the 1997 amendments to the IDEA.

In determining whether the school has met its obligations under the

amendment and provided the disabled student with a FAPE, the hearing

examiner, the SLRP, and the district court must determine whether

the area of the school in question complies with either the ADAAG

or UFAS. These are the same federal guidelines the school must

comply with to satisfy the accessibility requirements of the ADA and

§ 504.

       97
         38 C.F.R. 35.151(c) provides in pertinent part:
               (c) Accessibility standards. Design, construction, or alteration of facilities in
       conformance with the Uniform Federal Accessibility Standards (UFAS)...or with the
       Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities
       (ADAAG)...shall be deemed to comply with the requirements of this section with
       respect to those facilities...
       98
         One minor difference between the accessibility regulations under § 504 and the ADA is that,
because § 504 preceded the ADA and the ADA-specific accessibility regulations (ADAAG), § 504
does not give schools the option of complying with either the ADAAG or UFAS (as do both the
ADA and IDEA), but requires compliance with the UFAS.

                                                -40-
       Pace, as he was required to do by the IDEA, presented his

accessibility          claims       in    his     administrative             claim.          In       their

administrative findings, both the hearing examiner and the SLRP

discussed the 1997 amendment to the IDEA. This makes it clear that

both were aware that new or existing construction to Bogalusa High

School must meet either the ADAAG or UFAS standards before the

school could fully comply with the IDEA.99

       The only significant summary judgment evidence Pace presented

to the district court on his ADA/504 claims was the report and

deposition testimony of Donald MaGinnis, an architectural expert.

The point of his testimony is that structural changes to the

Bogalusa campus failed to comply with the ADAAG. Although this same

standard applied to Pace’s claim under the IDEA, he did not

introduce this evidence before the hearing examiner. Further, Pace

failed to offer the expert evidence to the district court to support

his appeal of the administrative determination under the IDEA.

Because the accessibility standards under the IDEA and the ADA/504

are identical for new construction of school buildings, Pace has not

demonstrated that the defendants owed him any greater or even

       99
        Page five of the State Level Review Panel’s opinion, under the heading “Applicable Law
and Regulations,” provides:

               Section 605 of the Individuals with Disabilities Education Act Amendments
       of 1997, states that any construction of new facilities or alteration of existing facilities
       with use of program funds shall comply with the requirements of Americans with
       Disabilities Accessibility Guidelines (Appendix A of Part 36 of Title 28, Code of
       Federal Regulations) or Uniform Federal Accessibility Standards (Appendix A of Part
       101-19.6 of Title 41, Code of Federal Regulations). (R. 63).

                                                 -41-
different obligation in this respect under § 504/ADA than he was

entitled to under the IDEA.      Thus, the accessibility issue Pace

litigated in his IDEA case and lost is the same issue he sought to

litigate in his ADA/504 claim.          The district court correctly

concluded that Pace was precluded from relitigating this issue.

       The only argument Pace presents to us on the applicability of

the 1997 amendment was presented for the first time in his petition

for en banc review.    He argued in that petition and argues to the

en banc court that the amendment was not triggered because no

evidence was presented that “IDEA funds” were used to make the

improvements to the Bogalusa campus.     Pace relies on the following

language in the 1997 amendment to 20 U.S.C. § 1404:

       § 1404.    Acquisition of   equipment;   construction   or
       alteration of facilities
            (a) In general

            If the Secretary determines that a program
            authorized under this chapter would be improved
            by permitting program funds to be used to
            acquire appropriate equipment, or to construct
            new facilities or alter existing facilities,
            the Secretary is authorized to allow the use of
            those funds for those purposes.

       Neither the amendment nor the existing statute purports to

require a plaintiff to prove the use of IDEA funds or any other fact

as a predicate to seeking relief under the IDEA against a school for

failing to make its campus accessible in response to a student’s

IEP.    We have found no cases interpreting this amendment or its

predecessor.    Subsection (a) is simply a restyled version of the



                                 -42-
existing statute.100         The change is found in Subsection (b), which

incorporates into the IDEA for the first time the ADAAG and UFAS

construction standards.            The amended § 1404(a), like the existing

statute, authorizes the Secretary to allow the use of IDEA funds for

construction or alterations.

     To support Pace’s argument that the amended version of § 1404

does not apply in this case, amicus seems to argue that structural

alterations to meet accessibility demands in a student’s IEP are not

part of the calculus in determining whether a student has received

a FAPE.

     In Weber’s Special Education Law and Litigation Treatise, he

rejects this suggestion in his cogent discussion of the interplay

between the IDEA, § 504 and ADA:

     Schools covered by Title II and Section 504 owe
     obligations not only to students with disabilities but to
     all persons with disabilities whom they serve. In this
     sense, the laws are more inclusive than the Individuals
     with   Disabilities    Education   Act   (IDEA),    whose
     beneficiaries are children with disabilities who need
     special education.    Nevertheless, by requiring school
     districts to provide an appropriate education in the
     least restrictive environment, IDEA overlaps with Section
     504 and Title II in terms of the children it covers.
     Thus, IDEA may require a school district to modify
     programs or facilities to achieve these ends for an


     100
        The pre-amended version of 20 U.S.C. 1404(a) provided as follows:
     (a) Authorization for use of funds

            In the case of any program authorized by this chapter, if the Secretary
            determines that such program will be improved by permitting the
            funds authorized for such program to be used for the acquisition of
            equipment and the construction of necessary facilities, the Secretary
            may authorize the use of such funds for such purposes. (West 1996).

                                            -43-
       individual student. IDEA funds may be used for removal
       of architectural barriers or other improvements to
       accessibility in order to promote appropriate education
       for children with disabilities.(Footnotes omitted)101
       (emphasis added)

       Weber further describes a school’s duty under the IDEA to

address accessibility concerns in the IEP as “a component of

appropriate special education and related services in the least

restrictive environment.”102               This discussion makes it clear that

when a student’s IEP raises concerns of accessibility to the

school’s campus, the determination of whether these concerns have

been met is a necessary component in resolving whether the student

has received a FAPE.

       The Hearing Examiner tried this controversy on the premise that

the entire IDEA statute, including the 1997 amendment, applied to

Pace’s claims, and no one argued to the contrary.                              The Hearing

Examiner did not require the parties to file extensive pre-trial

papers. However, she did require each party to list the issues they

wanted the hearing examiner to address. Neither Pace nor the school

board asserted that an issue was presented with respect to the

expenditure of IDEA funds or any other issue relating to the

applicability of the 1997 amendment to § 1404.                           Considering the

strict duty that the ADAAG and UFAS construction guidelines impose



       101
             MARK C. WEBER, SPECIAL EDUCATION LAW AND LITIGATION TREATISE 7.1 (2D ED. 2002).
       102
         Weber, note 3 at 7.2. (Footnotes omitted). Weber concludes that “modifications [to the
campus] may include wheelchair ramps, handrails, accessible toilets, and water fountains.”

                                             -44-
on the school, it was also reasonable for the Hearing Examiner to

assume that the school board would object if there was some basis

for it        to   argue    that     these     guidelines        did    not     apply     to    the

architectural improvements ordered by Pace’s IEP.                                    It is not

surprising that Pace did not object to the Hearing Examiner’s

application of such rigorous standards; it was in his interest at

the time to require the school to meet the toughest standards

possible in making the architectural improvements.

       After three hearings, the Hearing Examiner issued her report

finding that Bogalusa High had provided Pace with a FAPE.                                       The

Hearing Examiner explicitly found that the ADAAG guidelines applied,

meaning that she concluded that Pace’s accessibility concerns

regarding improvements made to the campus triggered the application

of the 1997 amendment to § 1404 of the IDEA.                          Otherwise, the ADAAG

guidelines would be irrelevant. In making her findings, the Hearing

Examiner relied on the voluminous administrative record, which shows

that Bogalusa received substantial federal IDEA funds during 1996

and 1997, the relevant time period.103                        IDEA regulations make it

clear that federal IDEA funds cannot be co-mingled with state

funds.104        The Hearing examiner also had the benefit of Pace’s IEP

and the testimony of the School Board’s Maintenance Supervisor that


       103
           For the 1996-97 fiscal year, the record shows that Bogalusa was the recipient of $164,213
in federal funds for its “Special Education” program.
       104
             34 CFR § 300.152.


                                              -45-
the construction changes were made in response to Pace’s IEP

facilitator’s instructions.           Even if a showing of the use of IDEA

funds was required,           it was reasonable for the Hearing Examiner to

conclude that IDEA funds were used and that under the amended

version of 20 U.S.C. § 1404 the school provided Pace with a FAPE.

      Pace appealed the Hearing Examiner’s order to the State Level

Review Panel (SLRP).           Again, the record reflects no argument from

any party to that appeal that the entire IDEA statute, including the

1997 amendment to § 1404, did not apply.             The SLRP in its opinion

explicitly applied the 1997 amendment, discussed Pace’s arguments,

and after rejecting them, affirmed the Hearing Examiner.

      Pace then filed suit in federal district court seeking relief

under the IDEA, §504 and the ADA.              He specifically alleged in his

petition that the state received federal IDEA funds.105             His core

claim was that the school had failed to comply with the ADAAG.

      The primary evidence Pace presented to the district court was

the deposition testimony and report of architect Donald MaGinnis,

who testified that the structural changes to the campus failed to

meet ADAAG standards. Thus, Pace’s federal claim was predicated on

these guidelines, made applicable to the IDEA by the 1997 amendment

to   § 1404.          Because the Hearing Examiner and the SLRP had rejected

Pace’s accessibility claims based on application of these same

standards (the ADAAG and UFAS), the district court concluded that


      105
            R. 192.

                                        -46-
Pace was precluded from relitigating his accessibility issues.

     Suffering summary judgment in the district court on both his

IDEA and non-IDEA claims, Pace sought appellate relief from this

court.       In his initial brief to the panel, Pace argued that the

district court erred in accepting the Hearing Examiner and SLRP’s

findings of accessibility to preclude his non-IDEA accessibility

claims.          However,      Pace     did    not     base     his   argument   on   the

inapplicability of the 1997 amendment to § 1404 or that the Hearing

Examiner erred in applying the ADAAG guidelines to the structural

changes. The School Board did argue to the panel that the amendment

applied and that the Hearing Examiner and SLRP had used the very

same federal guidelines in deciding Pace’s IDEA claims that Pace

sought to litigate in his non-IDEA action.106

     Faced with the appellee’s argument that his non-IDEA claims

were precluded due to the previous application of the 1997 amended

version of § 1404, Pace filed a reply brief with the panel.                       Again,

he made no effort to refute the School Board’s argument that the

1997 amendment to § 1404 applied.

     Without any opposition from Pace as to the proper application

of § 1404 to the improvements to Bogalusa High’s campus, the panel

accepted the School Board’s unchallenged argument and relied on the




     106
           Appellee Bogalusa City School Board’s Brief at 32.


                                              -47-
1997 amendment to affirm the district court’s judgment.107 The panel

specifically cited the 1997 amended version of § 1404 to support its

conclusion that issue preclusion was proper because accessibility

to the campus had already been litigated under the same federal

standards.108

     In response to the panel’s decision, Pace sought en banc

review, where he argued for the first time that § 1404 did not apply

to the improvements he demanded in his IEP, because “[t]here is no

proof that construction in this case would be covered by this

provision.”109

     In sum, we do 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 (and the strict ADAAG guidelines) 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.



     107
           Pace v. Bogalusa City School Bd., 325 F.3d 609 (5th Cir. 2003).
     108
           Id. at 614.
     109
           Appellant Travis Pace’s En Banc Brief at 22.


                                              -48-
       Pace has one remaining argument in support of his position that

issue preclusion should not apply to his claims under the ADA and

§ 504.       He argues that the IDEA’s “savings clause,” gives him the

right to maintain a cause of action under the ADA and § 504.110                                 We

agree that Pace is not limited to a claim under the IDEA and that

he can assert claims under the ADA and § 504.                           But his ability to

assert non-IDEA claims does not mean that general principles of

issue preclusion do not apply to preclude his redundant claims.111

Because Pace’s claims under the ADA and § 504 are factually and

legally indistinct from his IDEA claims, issue preclusion is proper

in this case.

       Because Pace is precluded from litigating the question of

whether the defendants have any obligation under the ADA and § 504

to make further architectural or structural changes in the buildings

on the Bogalusa campus, his claim for an injunction ordering such

changes must also fail.


       110
          The IDEA’s “savings clause” is found in 20 U.S.C 1415(l), and provides in pertinent part:
               Nothing in this chapter shall be construed to restrict or limit the rights,
       procedures, and remedies under...the Americans with Disabilities Act of 1990...title
       V of the Rehabilitation Act of 1973...or other Federal laws protecting the rights of
       children with disabilities...
       111
           See, e.g., Burlovich v. Bd. of Educ., 208 F.3d 560 (6th Cir. 2000) (issue preclusion may
apply to redundant ADA and § 504 claims), Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th
Cir. 1996) (principles of issue preclusion and claim preclusion may properly be applied to short-
circuited redundant claims under other laws) and Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d
720, 728 (10th Cir. 1996) (issue preclusion proper to dismiss § 504 placement claim when identical
issue already litigated under the IDEA).

                                              -49-
     In conclusion, we AFFIRM the district court’s dismissal of

Pace’s claims under the IDEA and also AFFIRM the district court’s

dismissal of Pace’s claims for damages and injunctive relief under

the ADA and § 504.



ENDRECORD




                              -50-
EDITH H. JONES, Circuit Judge, 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.112

           Alexander Hamilton wrote:

     It is inherent in the nature of sovereignty not to be
     amenable to the suit of an individual without its
     consent.   This is the general sense and the general
     practice of mankind; and the exemption, as one of the
     attributes of sovereignty, is now enjoyed by the
     government of every state in the Union.

THE FEDERALIST NO. 81, at 487-88 (Clint Rossiter ed., 1961).     The

Eleventh Amendment protects States from suit in federal court

precisely out of the recognition of their continued status as

co-sovereigns.   Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &


     112
          The panel opinion observed that the State’s victory in
this case would be Pyrrhic because only during a three-year period
could the panel conclude that the State did not “knowingly” waive
its Eleventh Amendment immunity. The majority apparently believe
that a Pyrrhic victory is one too many.

                                -51-
Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 689 (1993).   For over

one hundred years, the Supreme Court has “extended a State’s

[constitutional] protection from suit to suits brought by the

State’s own citizens.”   Idaho v. Coeur d’Alene Tribe of Idaho, 521

U.S. 261, 267-68, 117 S. Ct. 2028, 2033 (1997) (referring to Hans

v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890)).

          There are two carefully construed exceptions whereby

States may become subject to suits by private citizens.      Congress

may abrogate state sovereign immunity pursuant to § 5 of the

Fourteenth Amendment, or the State may waive its sovereign immunity

and give its consent to suit.   See Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S. Ct. 2219,

2223 (1999)). However, “[b]ecause abrogation of sovereign immunity

upsets the fundamental constitutional balance between the Federal

Government and the States, . . . and because States are unable

directly to remedy a judicial misapprehension of that abrogation,

the Court has adopted a particularly strict standard to evaluate

claims that Congress has abrogated the States’ sovereign immunity.”

Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305, 110 S.

Ct. 1868, 1872 (1990) (citations and quotations omitted).    “Similar

solicitude for States’ sovereign immunity underlies the standard

that this Court employs to determine whether a State has waived that

immunity.”   Id.

          Travis Pace advances both abrogation and waiver theories

in support of his claims against Louisiana.    The majority agrees

                                -52-
with   Pace    that      Louisiana        waived      its   sovereign       immunity      as   a

condition      of       accepting    federal          funds   under     §     504    of    the

Rehabilitation Act and IDEA. In so doing, the majority has forsaken

the “particularly strict standard” the Eleventh Amendment demands,

ignored the Supreme Court’s settled test for evaluating a waiver of

constitutional          rights,     and    inexplicably       discounted       the     unique

factual context from which this case arose.

                                          I.    WAIVER

              As    a    fundamental       constitutional        component,         “[s]tate

sovereign immunity, no less than the right to trial by jury in

criminal cases, is constitutionally protected.”                         Coll. Sav. Bank,

527 U.S. at 682, 119 S. Ct. at 2229.                          The same test used in

evaluating waiver of other fundamental constitutional rights must

be employed in the Eleventh Amendment context as well. As the Court

held, there is no justification for creating a separate and distinct

test for Eleventh Amendment waiver purposes.                     Thus, “[t]he classic

description of an effective waiver of a constitutional right is the

intentional relinquishment or abandonment of a known right or

privilege.” Id. (citations and quotations omitted) (emphasis added).

According to the sole applicable test, therefore, “waiver must have

been made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.”

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986)

(emphasis added).            Moreover, “courts indulge every reasonable

presumption against waiver of fundamental constitutional rights and

                                               -53-
. . . do not presume acquiescence in the loss of fundamental

rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023

(1938). This circuit, at least until today, adhered to this uniform

approach.    “Waivers of constitutional rights not only must be

voluntary but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences[.]”

United States v. Newell, 315 F.3d 510, 519 (5th Cir. 2002)(quoting

Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463 (1970))

(emphasis added).   A valid waiver requires “actual knowledge of the

existence of the right or privilege, full understanding of its

meaning, and clear comprehension of the consequences of the waiver.”

Id. (quoting Hatfield v. Scott, 306 F.3d 223, 230 (5th Cir. 2002))

(emphasis in original).

            The test for a State’s waiver of Eleventh Amendment

immunity is no different because Congress sought to effect waiver

under the Spending Clause.      The Supreme Court “has repeatedly

characterized . . . Spending Clause legislation as ‘much in the

nature of a contract: in return for federal funds, the [recipients]

agree to comply with federally imposed conditions.’”      Barnes v.

Gorman, 536 U.S. 181, 186 (2002) (quoting Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).       “Just as a valid

contract requires offer and acceptance of its terms, the legitimacy

of Congress’ power to legislate under the spending power . . . rests

on whether the [recipient] voluntarily and knowingly accepts the

terms of the contract.”    Barnes, 536 U.S. at 186 (citations and

                                -54-
quotations omitted) (emphasis added); see also Pennhurst, 465 U.S.

at 99, 104 S. Ct. at 907 (the State’s consent to suit must be

“unequivocally expressed”).            As a result, the “test for determining

whether      a    State    has     waived    its   immunity   from      federal-court

jurisdiction is a stringent one.”                    Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 241, 105 S. Ct. 3142, 3146 (1985).

                 Despite this clear authority, the majority has crafted a

novel waiver test for Spending Clause cases.                      Relying on South

Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987), the majority

draws two conclusions: (1) a State’s waiver is knowing so long as

Congress satisfies the “clear statement rule,” and (2) the State’s

waiver is voluntary so long as it is “non-coercive.”                      Although I

agree      with    the    latter    conclusion,    the   former    is    incorrect.113



     113
          Dole’s “non-coercive” requirement is a satisfactory proxy
for the “voluntariness” prong of the waiver inquiry. Thus, under
the   current   state   of   the   law,  §   2000d-7(a)    is   not
unconstitutionally coercive. As a result, the State of Louisiana
acted voluntarily for purposes of the constitutional waiver test.
But, with due regard for precedent, I am compelled to raise the
following question: “If not now, and on this showing, when, and on
what showing” will federal grants be deemed unconstitutionally
coercive? Cf. Spangler v. Pasadena City Bd. of Ed., 611 F.2d 1239,
1240 (9th Cir. 1979).     The Rehabilitation Act, pursuant to 29
U.S.C. § 794(a), requires non-consenting States to forfeit all
federal funds.     For the Louisiana Department of Education,
renouncing all federal funds would cut its budget by $804,269,621,
or 75%. Dole counseled that “in some circumstances the financial
inducement offered by Congress might be so coercive as to pass the
point at which pressure turns into compulsion.” 483 U.S. at 211
(emphasis added). To date, the Supreme Court has not found a case
that warranted vindication of this principle.         Nevertheless,
Louisiana and its children would suffer extreme consequences here
if the State were to lose massive federal assistance by asserting
its constitutional right to sovereign immunity.

                                            -55-
College Savings Bank controls the Eleventh Amendment waiver inquiry

and demands more than a congressional “clear statement” — it also

requires the State to make a “clear declaration” of its intent to

waive its immunity.           In College Savings Bank, the Supreme Court

recognized that for a State “knowingly” to waive its sovereign

immunity, not only must Congress make clear its intention to so

condition       federal      funds,    but     the    State   must    expressly      and

unequivocally        waive    its     immunity.        “There   is    a    fundamental

difference between a State’s expressing unequivocally that it waives

its immunity and Congress’s expressing unequivocally its intention

that if the State takes certain action it shall be deemed to have

that immunity.”       Coll. Sav. Bank, 527 U.S. at 680-81, 119 S. Ct. at

2228.    “In the latter situation, the most that can be said with

certainty is that the State has been put on notice that Congress

intends to subject it to suits brought by individuals.”                      Id.

               Despite the majority’s assertion to the contrary, College

Savings Bank confirms that Dole’s “clear statement” requirement is

only half of the waiver equation.                   See Garcia v. S.U.N.Y. Health

Sci.    Ctr.    of   Brooklyn,        280    F.3d    98,   113-14    (2d   Cir.    2001)

(concluding that “a clear expression of Congress’s intent . . .

alone is not sufficient . . . to find that [the State] actually

waived its sovereign immunity by accepting federal funds”).                         “The

whole point of requiring a ‘clear declaration’ by the State of its

waiver is to be certain that the State in fact consents to suit.”

Coll. Sav. Bank, 527 U.S. at 680, 119 S. Ct. at 2228 (emphasis in

                                            -56-
original).        “Whether Congress clearly required that a State waive

its immunity before accepting federal funds (the first inquiry) is

not the same thing, however, as whether the State clearly declared

its knowing waiver (the second inquiry).”                       Douglas v. Cal. Dep’t of

Youth Auth., 285 F.3d 1226, 1228 (O’Scannlain, J., dissenting from

denial of petition for rehearing en banc)(emphasis in original).

“The mere receipt of federal funds cannot establish that a State has

consented to suit in federal court.”                      Atascadero, 473 U.S. at 246-

47.114

               For a State to evince its “clear declaration” of intent

to waive sovereign immunity, it must possess “actual knowledge of

the existence of the right or privilege, full understanding of its

meaning, and clear comprehension of the consequences of the waiver.”

Newell, 315 F.3d at 519 (citations and quotations omitted) (emphasis

in original).          In all but the rarest of circumstances, acceptance

of federal funds offered in accordance with the “clear statement

rule” will meet this test. This case represents an exception to the

general rule.

               The majority ignores the fact that until the mid-1990's,

it was assumed that Congress could abrogate state sovereign immunity

in legislation enacted pursuant to its Article I enumerated powers.

The Supreme Court held otherwise in Seminole Tribe v. Florida, 517

         114
                Furthermore, the majority’s reliance on the precedents of other circuits is
unpersuasive. Those circuits, like our court today, focused exclusively on whether Congress clearly
expressed its intention to condition acceptance of federal funds on waiver of immunity — not whether
the State reasonably believed it was waiving immunity by accepting federal funds.

                                              -57-
U.S. 44, 72-73, 116 S. Ct. 1114 (1996), while reaffirming that

abrogation remained permissible through a proper exercise of power

under § 5 of the Fourteenth Amendment.                       Id. at 59, 116 S. Ct. 1114.

In the statutes here at issue — ADA, § 504 and IDEA — abrogation was

enacted under the Commerce Clause.                           Since, however, all three

statutes enhance the rights of the disabled, and all three express

a   clear     congressional          intent      to    abridge       the    States’       Eleventh

Amendment immunity, federal courts routinely permitted suits by

private individuals to proceed against the States. As late as 1998,

while applying the Supreme Court’s narrow construction of the § 5

abrogation authority,115 this court still held that the ADA validly

abrogated state sovereign immunity.                        Coolbaugh v. Louisiana, 136

F.3d 430 (5th Cir. 1998), cert. denied, 525 U.S. 819, 119 S. Ct. 58

(1998) overruled by Reickenbacker v. Flores, 274 F.3d 974 (5th Cir.

2001).116

               Surely Louisiana should not be penalized for construing

the ADA — and counterpart abrogation language in § 504 and IDEA —

just as this court subsequently did in Coolbaugh.                                  Instead, the

State acted quite rationally in assuming between 1996 and 1998 that


       115
               See City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997).
       116
                 Reickenbacker’s holding flows from the Supreme Court’s decision in Bd. of Trustees
of the Univ. of Alabama v. Garrett, 531 U.S. 356, 368, 121 S. Ct. 955, 964 (2001), which held that
Title I of the ADA did not validly abrogat e state sovereign immunity pursuant to § 5 of the
Fourteenth Amendment. Because Title II of the ADA and § 504 of the Rehabilitation Act offer
virtually identical protections, the abrogat ion analysis with regard to the two statutes is the same.
Reickenbacker, 274 F.3d at 977 n. 17; see also Garcia, 280 F.3d at 114; Hoekstra v. Indep. Sch.
Dist., 103 F.3d 624, 626 (8th Cir. 1996).

                                               -58-
it had no sovereign immunity to waive when it accepted federal

education funds under conditions specified by § 504 and IDEA.    The

State voluntarily accepted federal funds, but its acceptance was not

a “knowing” waiver of immunity. As the Second Circuit put it, since

“the proscriptions of Title II [of the ADA] and § 504 are virtually

identical, a State accepting federal funds could not have understood

that in doing so it was actually abandoning its sovereign immunity

from private damage suits, since by all reasonable appearances state

sovereign immunity had already been lost.”    Garcia, 280 F.3d at 114

(citations omitted).117

           The majority offers two principal arguments against this

result.    First, the majority conflates abrogation and waiver when

positing that “Louisiana did have Eleventh Amendment immunity to

waive by accepting the clearly conditioned federal funds.”       See

Majority Op. at 21        (emphasis in original).   On the contrary,

Coolbaugh confirmed, until Garrett and Reickenbacker overruled it,

that Congress had validly exercised its abrogation authority,

rendering Louisiana amenable to suit notwithstanding the Eleventh

Amendment.    The majority’s suggestion that Congress can abrogate

sovereign immunity, but still permit the States to retain their


     117
          Conversely, after Garrett was decided, the State
defendants could knowingly waive their immunity because they could
have reasonably anticipated the ability to preserve sovereign
immunity by declining federal funds under the Rehabilitation Act
and the IDEA.   See Bd. of Trustees of the Univ. of Alabama v.
Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) (invalidating an
abrogation of Eleventh Amendment immunity pursuant to Title I of
ADA).

                                  -59-
Eleventh        Amendment          immunity,         misapprehends            the     import        of

abrogation.118

               Still, Congress may, in its discretion, choose to trigger

enforcement of any federal statute, even after it has abrogated

sovereign immunity, on the receipt of federal funds.                                In response,

a State, by refusing federal funds, may reject the terms of the

“contract” and potentially avoid statutory liability to private

individuals.           But whether it can avoid liability based upon a

contractual/waiver theory is a different question from whether it

retained Eleventh Amendment sovereign immunity post-abrogation.119

Thus, the relevant Eleventh Amendment inquiry remains whether

Louisiana reasonably believed, based on objective evidence, that the

Rehabilitation Act and the IDEA validly abrogated its sovereign

immunity — not whether it could have chosen to reject the federal

funds anyway.

               Second, the majority contends that requiring the State to


       118
                 The unmistakable difference between abrogation and waiver is complicated by
statutes, like § 2000d-7(a), that attempt to achieve both in the same provision. Nevertheless, the
circuit courts and the panel opinion here agree that statutory language may, in fact, constitute both
an attempted abrogation and conditional waiver provision. See, e.g., Stanley v. Litscher, 213 F.3d
340, 344 (7th Cir. 2000); Robinson v. Kansas, 295 F.3d 1183, 1189-90 (10th Cir. 2002). However,
a statute’s capacity to serve dual purpo ses does not justify the majority’s confusion of the two
concepts.
       119
              The majority implies that Louisiana’s self-interested acceptance of funds should
prevent the State from arguing that it might have chosen to forego the funds for the sake of
maintaining sovereign immunity. Louisiana’s mistaken (though eminently reasonable) belief that
abrogation had occurred distorted this calculation, however. That the State does have immunity to
waive now throws into high relief the potential coercion inherent in the federal government’s funding
condition. The “cost” of Louisiana’s resting on its constitutional right is over $800 million annually!

                                                -60-
make a “clear declaration” problematically “engraft[s] a subjective-

intent element onto an otherwise objective Spending Clause waiver

inquiry.”        See Majority Op. at 22.                  Unfortunately, the majority

misunderstands the nature of the “clear declaration” requirement,

a requirement consonant with the Supreme Court’s longstanding

objective approach to waiver.                  The Supreme Court uniformly applies

a “totality of the circumstances” test to waiver questions involving

fundamental constitutional rights.                      Fare v. Michael C., 442 U.S.

707, 725, 99 S. Ct. 2560, 2572 (1979). “Only if the totality of the

circumstances . . . reveal both an uncoerced choice and the

requisite level of comprehension may a court properly conclude that

the . . . rights have been waived.”                     See Burbine, 475 U.S. at 421,

106 S. Ct. at 1135.             Hence, the Supreme Court considers a variety

of objective factors, not subjective intent, to determine whether

a constitutional right has validly been waived.                           Fare, 442 U.S. at

725, 99 S. Ct. at 2572; see also United States v. Sonderup, 639 F.2d

294, 298 (5th Cir. 1981) (relying on the objective indicia to

determine whether a voluntary, knowing and intelligent waiver was

made).       College Savings Bank’s “clear declaration” requirement

reiterates the Supreme Court’s waiver test in the Eleventh Amendment

context, and so would I.120


       120
                The majority’s approach unquestionably achieves a bright-line rule that the Supreme
Court’s traditional waiver inquiry cannot. However, this approach is impermissible in the context of
waiver of fundamental constitutional rights.

       An express written statement of waiver of the right to remain silent or the right to

                                              -61-
              Given this court’s ruling in Coolbaugh that the State had

no immunity to waive, followed by an unsuccessful en banc poll and

the Supreme Court’s denial of certiorari in that case, it is

inconceivable that Louisiana somehow, based on the “straightforward

objective facts,” knowingly chose to waive a right that was non-

existent when it acted. In a sense, the State of Louisiana is being

forced, by today’s majority, to bear the burden of this court’s

mistake of law in Coolbaugh.                    Consider this analogy:                 the police

instruct a criminal defendant, “for his own good,” to sign a waiver

of counsel form, while telling him that the waiver is “meaningless,

because you have no counsel rights to waive.”                           Who would argue that

the waiver is knowing, especially if the police showed him a court

decision confirming this view?                      That the dupe is an individual

defendant rather than the State does not, per College Savings, make

this a different case, nor does the fact that the waiver falls under

the Spending Clause rather than some other type of enactment.                                     The

majority’s opinion violates College Savings Bank.

              In this rare instance, Louisiana could not have knowingly

waived its sovereign immunity in the relevant time period before the

Garrett decision. The majority’s approach strangely counsels States




       counsel is usually strong proof of the validity of that waiver, but it is not inevitably
       either necessary or sufficient to establish waiver. The question is not one of form, but
       rather whether the defendant in fact knowingly and voluntarily waived the rights
       delineated in the Miranda case.

North Carolina v. Butler, 441 U.S. 369, 374, 99 S. Ct. 1755, 1758 (1979).

                                               -62-
to disregard governing caselaw when Supreme Court doctrine is

evolving.     Such an argument makes no more sense in this unusual

context than it would in any other.

                                 II.    ABROGATION

            Pace       alternatively     argues,      and    this       dissent    must

determine, whether Congress abrogated Louisiana’s sovereign immunity

with respect to claims brought under Title II,               § 504, and the IDEA.

Pace would extend the Court’s recent decision in Tennessee v. Lane,

541 U.S. 509, 124 S. Ct. 1978 (2004), which held that Title II of

the ADA validly abrogates State sovereign immunity insofar as it

implicates     the      physical       accessibility        of    the     fundamental

constitutional right of access to the courts.                    The majority here,

having   found     a    waiver   of    the   State’s    immunity,        declares    it

unnecessary to opine on abrogation.            The majority goes on, however,

to observe that, in Lane, the Supreme Court “refused to consider

[whether     Title     II   abrogates]       other   rights,       including      those

considered to be fundamental under the Constitution.”                    See Majority

Op. at 28, citing 124 S. Ct. at 1993.                The majority also comments

that the Court “has never before recognized access to public

education or freedom from disability discrimination in education as

fundamental rights.”        Id., citing Plyler v. Doe, 457 U.S. 202, 221,

223, 102 S. Ct. 2382, 2396-98 (1982); City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 446, 105 S. Ct. 3249, 3257 (1985).

            I agree with the majority’s dicta that suggests Lane is

currently of limited application.                Moreover, because Lane was

                                        -63-
written very narrowly, I conclude that this court’s decision in

Reickenbacker remains valid in holding that ADA Title II, apart from

the Lane scenario, does not validly abrogate States’ Eleventh

Amendment immunity.    See Reickenbacker, 274 F.3d at 983.         The fate

of § 504 abrogation was also sealed in Reickenbacker based on the

court’s conclusion that Title II and § 504 impose “virtually

identical” obligations.    Id.     For the reasons stated in Reicken-

backer and in the panel opinion, I would hold that Congress could

not constitutionally abrogate state sovereign immunity in § 504 or

the similarly structured IDEA statute pursuant to § 5 of the

Fourteenth Amendment.     The remedies imposed by those laws “far

exceed [ ] [those] imposed by the Constitution, and [I] cannot

conclude that they are congruent and proportional to the legislative

findings of unconstitutional discrimination against the disabled by

the states.”   Reickenbacker, 274 F.3d at 983.

                           III.    CONCLUSION

           For the foregoing reasons, I conclude that during a narrow

period of time, based on uncertainty in the Supreme Court’s evolving

Eleventh   Amendment   doctrine,   the    State   of   Louisiana   did   not

knowingly waive its Eleventh Amendment sovereign immunity when it

accepted federal funds under § 2000d-7(a).

           I respectfully dissent.




                                   -64-
