                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2003

A.W. v. Jersey Cty Pub Sch
Precedential or Non-Precedential: Precedential

Docket No. 02-2056P




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                           PRECEDENTIAL

                                    Filed August 19, 2003

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                      No. 02-2056


                         A.W.
                           v.
   THE JERSEY CITY PUBLIC SCHOOLS; NEW JERSEY
  DEPARTMENT OF EDUCATION; JEFFREY V. OSOWSKI,
 former Director, Division of Special Education; BARBARA
     GANTWERK, Director, Office of Special Education
   Programs; SYLVIA ELIAS, former Executive Director of
Pupil Personnel Services; PRISCILLA PETROSKY, Associate
Superintendent for Special Education; JOHN IWANOWSKI;
   MARY HEPBURN; JOAN EDMISTON; DENISE BRAAK;
  MARY MACEACHERN; EDWARD FAUERBACH, Learning
 Disabilities Teacher-Consultants; NORMA CHRISOMALIS;
     GWENDOLYN JACKSON; LINDA COLON; RONNE
   BASSMAN; WILLIAM RONZITTI; ROXANNE JOHNSON,
   Supervisors of Special Education; SHANETTE GREEN,
      Teacher; MELINDA ZANGRILLO, Coordinator of
  Compliance; JANE DOE AND JOHN DOE (1) - (5), all in
            their official and individual capacities,
         New Jersey Department of Education;
                 Jeffrey V. Osowski;
                 Barbara Gantwerk;
                  Melinda Zangrillo,
                                Appellants
               United States of America,
                                Intervenor
                        2




  On Appeal from the United States District Court
           for the District of New Jersey
            (D.C. Civil No. 01-cv-00140)
      District Judge: Hon. William G. Bassler

               Argued April 1, 2003
BEFORE: MCKEE, SMITH and COWEN, Circuit Judges

             (Filed: August 19, 2003)

                 Todd J. Schwartz, Esq.
                 Michael Lombardi, Esq. (Argued)
                 Office of Attorney General
                  of New Jersey
                 25 Market Street
                 P.O. Box 112
                 Trenton, NJ 08625
                   Counsel for Appellants
                 Jeffrey E. Fogel, Esq.
                 661 Franklin Avenue
                 Nutley, NJ 07110
                 Elizabeth A. Athos, Esq. (Argued)
                 Education Law Center
                 60 Park Place
                 Suite 300
                 Newark, NJ 07102
                   Counsel for Appellee A.W.
                             3


                     Stephen J. Edelstein, Esq.
                     Schwartz, Simon, Edelstein,
                      Celso & Kessler
                     10 James Street
                     Florham Park, NJ 07932
                        Counsel for Appellees Jersey City
                        Public Schools; John Iwanoski;
                        Mary Hepburn; Joan Edmiston;
                        Denise Braak; Norma Chrisomalis;
                        Linda Colon; Shanette Green;
                        Gwendolyn Jackson
                     Raymond R. Connell, Esq.
                     Dwyer, Connell & Lisbona
                     100 Passaic Avenue
                     Fairfield, NJ 07004
                        Counsel for Appellees Sylvia Elias;
                        Priscilla Hernandez Petrosky; Mary
                        Maceachern; Edward Fauerbach;
                        William Ronzitti; Roxanne Johnson
                     Sarah E. Harrington, Esq. (Argued)
                     United States Department of Justice
                     Appellate Section
                     950 Pennsylvania Avenue, N.W.
                     Washington, DC 20530
                        Counsel for Intervenor-Appellee
                        United States of America


               OPINION OF THE COURT

COWEN, Circuit Judge.
   Defendants the New Jersey Department of Education
(“NJDOE”), Jeffrey Osowski, Barbara Gantwerk, and
Melinda Zangrillo (collectively “State Defendants”) appeal
from the order of the United States District Court for the
District of New Jersey denying their motion to dismiss. We
must determine whether the State Defendants are entitled
to constitutional immunity from plaintiff A.W.’s claims
under section 504 of the Rehabilitation Act of 1973, 29
                              4


U.S.C. § 794, and the Individuals with Disabilities in
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The
District Court correctly held that the State Defendants have
waived any immunity from these claims by the acceptance
of the federal financial assistance. We therefore will affirm.

                              I.
  In September 1988, A.W., who has dyslexia, enrolled as
a second grade student in the Jersey City Public Schools.
Until May 2000, he allegedly made only minimal progress
in reading, writing, and spelling. According to A.W., the
defendants knew or should have known of his medical
condition. He was a nineteen year old high school student
when he commenced this action.
  A request was filed in December 1997 with the NJDOE
on behalf of A.W. and other Jersey City students with
dyslexia. The NJDOE is a recipient of financial assistance
under the IDEA and other federal programs. The
complainants sought an investigation of the alleged failure
of the Jersey City Public Schools to diagnose dyslexia,
provide specialized instruction to dyslexic students, and
train its staff to handle dyslexia. They requested as relief
independent evaluations of A.W. and other potentially
dyslexic students as well as compensatory education. In a
June 1998 report, the NJDOE found that the Jersey City
Public Schools failed to demonstrate that its reading
programs could be adapted “to meet the individual needs of
classified pupils.” App. at 86. It refused to consider whether
the school district has failed to diagnose dyslexia and
whether its personnel possessed sufficient expertise with
this disability. The district was ordered to undertake
corrective action regarding its reading curricula. The state
agency allegedly did not provide any individual relief as to
A.W. and “did not require the District to identify and
implement knowledge derived from research and promising
education practices in revising its reading curricula.” Id. at
87.
  Based on two new individual education programs, A.W.
began to receive some instruction specially designed for
dyslexia on February 29, 2000. A regular program of such
                              5


instruction commenced in May 2000, and he allegedly is
making progress in reading, writing, and spelling.
  A.W. filed a complaint with the District Court on January
10, 2001. In addition to the Jersey City Public Schools and
numerous school district employees, the complaint named
as defendants: (1) the NJDOE; (2) Gantwerk, the director of
the NJDOE Office of Special Education Programs; (3)
Osowski, the former director of the NJDOE Division of
Special Education; and (4) Zangrillo, the former NJDOE
compliance coordinator. The State Defendants moved to
dismiss, and A.W. cross-moved to amend his complaint. In
an order filed on March 18, 2002, the District Court denied
the motion to dismiss and granted A.W. leave to file an
amended complaint, which served as the basis for the
District Court’s subsequent opinion disposing of this
motion to dismiss. This amended complaint contained ten
counts and sought such relief as the entry of a judgment
declaring that A.W.’s rights were violated and both
compensatory and punitive damages.
   A.W. asserted two causes of action under the IDEA
against the NJDOE as well as Gantwerk, Osowski, and
Zangrillo named in their official capacities. He alleged that
they failed to ensure the identification and remediation of
his dyslexia. The State Defendants also allegedly lacked
sufficient knowledge and expertise with this condition, did
not require the Jersey City Public Schools to employ
appropriately trained staff, and failed to adopt the
standards and procedures to evaluate the effectiveness of
the district’s programs. This conduct allegedly resulted in
the deprivation of a free appropriate public education. He
also claimed that the NJDOE’s denial of a free appropriate
public education violated section 504. Gantwerk and
Zangrillo, named in their individual capacities, were
allegedly liable pursuant to 42 U.S.C. § 1983 for infringing
his rights under the IDEA and section 504 by conducting
an allegedly ineffective complaint investigation. A.W. finally
asserted claims pursuant to the New Jersey Constitution
and the New Jersey Law Against Discrimination.
  Following a reference of this matter to mediation, the
District Court issued a written opinion on May 1, 2002. The
District Court considered inter alia the State Defendants’
                                   6


claim of Eleventh Amendment immunity. It declined to
resolve the question of whether Congress properly exercised
its power of abrogation under Section 5 of the Fourteenth
Amendment. The District Court, however, found that New
Jersey waived its immunity as to A.W.’s section 504 and
IDEA claims by accepting federal funds when Congress
clearly conditioned the receipt of any such assistance on
the state’s abandonment of immunity. The State
Defendants appealed. The United States subsequently
intervened in this appeal, arguing for affirmance.

                                   II.
  The District Court’s denial of the State Defendants’
motion to dismiss does not constitute an otherwise
appealable final decision pursuant to 28 U.S.C. § 1291. The
District Court’s rejection of Eleventh Amendment immunity
is immediately appealable under the collateral order
doctrine. See, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993); Pa. Fed’n of
Sportmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 315 (3d Cir.
2002). We must decide whether the District Court correctly
rejected the State Defendants’ claim of constitutional
immunity from A.W.’s Rehabilitation Act and IDEA causes
of action.1 We exercise plenary review. See, e.g., Koslow v.
Pennsylvania, 302 F.3d 161, 167 (3d Cir. 2002), cert.
denied, 123 S. Ct. 1353 (2003).
  We rule that Congress unequivocally expressed its intent
to condition participation in these two federal assistance
programs on the state’s relinquishment of its immunity and
that New Jersey, by accepting these funds, surrendered its
constitutional right to immunity as to A.W.’s claims against
the State Defendants. This waiver condition is also valid
under the Spending Clause to the United States

1. Responding to the State Defendants’ argument regarding immunity
from section 1983 causes of action against state agencies and state
employees named in their official capacities, A.W. clarifies that his
amended complaint contained no such claims. He also withdraws his
state law claims against the NJDOE.
  Because of the limited scope of our jurisdiction, we do not address any
issue other than Eleventh Amendment immunity at this time.
                              7


Constitution. The District Court therefore correctly rejected
any claim of constitutional immunity.

                             III.
  The general principles governing the application of the
Eleventh Amendment and Congress’s right to attach
conditions to federal funding under the Spending Clause
are well established. The Eleventh Amendment provides:
    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.
U.S. Const. amend. XI. A state is generally entitled to
immunity in federal court from suits by private parties,
including their own citizens. See, e.g., Koslow v.
Pennsylvania, 302 F.3d 161, 167 (3d Cir. 2002), cert.
denied, 123 S. Ct. 1353 (2003); MCI Telecomm. Corp. v. Bell
Atl.-Pa., 271 F.3d 491, 503 (3d Cir 2001), cert. denied, 123
S. Ct. 340 (2002). This protection from suit extends to state
agencies as well as state officials sued in their official
capacities for monetary damages. See, e.g., Broselow v.
Fisher, 319 F.3d 605, 607 (3d Cir. 2003); MCI Telecomm.
Corp., 271 F.3d at 503.
  The parties raise two exceptions to this rule of
constitutional immunity. Congress is permitted to abrogate
the states’ Eleventh Amendment immunity pursuant to its
enforcement power under Section 5 of the Fourteenth
Amendment. See, e.g., Koslow, 302 F.3d at 168. Although
it is asserted that Congress validly abrogated state
immunity from Rehabilitation Act and IDEA claims, we, like
the District Court, need not reach this issue because a
state may waive “its sovereign immunity by consenting to
suit.” College Sav. Bank v. Fl. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999) (citing Clark v.
Barnard, 108 U.S. 436, 447-48 (1883)); see also, e.g.,
Koslow, 302 F.3d at 168.
  We must apply a stringent test to determine whether a
state has actually waived its Eleventh Amendment
                              8


immunity from federal-court jurisdiction. College Sav.
Bank, 527 U.S. at 675 (quoting Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985)); see also, e.g., MCI
Telecomm. Corp., 271 F.3d at 503. Because a state’s right
to immunity is guaranteed by the Constitution, there must
be an “ ‘intentional relinquishment or abandonment of a
known right or privilege.’ ” MCI Telecomm. Corp., 271 F.3d
at 504 (quoting College Sav. Bank, 527 U.S. at 681-82). A
state is deemed to waive its immunity only where such
waiver is “ ‘stated “by the most express language or by such
overwhelming implications from the text as [will] leave no
room for any other reasonable construction.” ’ ” Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1999)
(quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)); see
also, e.g., Koslow, 302 F.3d at 172. A court must “ ‘indulge
every reasonable presumption against waiver.’ ” College Sav.
Bank, 527 U.S. at 682 (quoting Aetna Ins. Co. v. Kennedy
ex rel. Bogash, 301 U.S. 389, 393 (1937)).
  Under certain circumstances, a state may surrender its
immunity by accepting federal funds conditioned on the
state’s waiver of immunity. This exception relies on an
understanding of both the Eleventh Amendment itself as
well as Congress’s power under the Spending Clause to “lay
and collect Taxes, Duties, Imposts, and Excises, to pay the
Debts and provide for the common Defence and general
Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1.
In the recent decision of Koslow v. Pennsylvania, 302 F.3d
161 (3d Cir. 2002), cert. denied, 123 S. Ct. 1353 (2003), we
recognized that “ ‘Congress may require a waiver of state
sovereign immunity as a condition for receiving federal
funds even though Congress could not order the waiver
directly.’ ” Id. at 172 (quoting Jim C. v. United States, 235
F.3d 1079, 1081 (8th Cir. 2000) (en banc)).
   This understanding of waiver is based on the notion of
gratuity or gift. The Supreme Court considered a theory of
“constructive waiver” of immunity in College Savings Bank
v. Florida Prepaid Postsecondary Education Expense Board,
527 U.S. 666 (1999). The plaintiff brought a Lanham Act
claim against an agency of the Florida state government,
arguing, inter alia, that any sovereign immunity was waived
when the agency voluntarily engaged in the federally
                              9


regulated activity of running a for-profit college tuition
prepayment program following the enactment of the
Trademark Remedy Reduction Act. Id. at 670-72, 676. The
Supreme Court rejected this argument that a state’s
conduct of otherwise lawful activity gives rise to a waiver
and overruled the “constructive waiver” doctrine announced
in Parden v. Terminal Ry., 377 U.S. 184 (1964). College Sav.
Bank, 527 U.S. at 675-87; see also, e.g., MCI Telecomm.
Corp., 271 F.3d at 504 (“Congress no longer may statutorily
coerce a state into relinquishing its sovereign immunity on
threat of the state being excluded from participating in an
otherwise lawful and permissible activity.” (citations
omitted)).
   The Supreme Court, however, expressly distinguished
Congress’s bestowal of the gift of federal financial
assistance from this rejected doctrine. College Sav. Bank,
527 U.S. at 678 n.2, 686-87. A waiver of immunity in
exchange for a congressional gratuity or benefit to which a
state is not otherwise entitled is ordinarily different from a
“waiver” arising out of the threatened prohibition of
permissible conduct. Id.; see also, e.g., MCI Telecomm.
Corp., 271 F.3d at 505. Congress therefore may “require a
state to waive immunity in order to engage in an activity in
which the state may not engage absent congressional
approval, or in order to receive a benefit to which the state
is not entitled absent a grant or gift.” MCI Telecomm. Corp.,
271 F.3d at 505.
  Congress must expressly indicate that this waiver
constitutes a condition of its gratuity. It is necessary for
Congress to “manifest[ ] a clear intent to condition
participation in the programs funded under the [statute] on
a State’s consent to waive its constitutional immunity.”
Atascadero State Hosp., 473 U.S. at 247; see also, e.g.,
Koslow, 302 F.3d at 170. This requirement for Congress to
“speak with a ‘clear voice’ ensures that the states exercise
their choice knowingly and voluntarily, cognizant of the
consequence (waiver of constitutional immunity).” MCI
Telecomm. Corp., 271 F.3d at 506 (citing Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
  The State Defendants assert that no waiver occurs absent
an express statement of waiver by the state. They
                                   10


apparently argue that a state retains its constitutional
immunity unless its legislature formally enacts a waiver
provision. It is true that a state does not waive its immunity
merely by accepting federal funds. See, e.g., Atascadero
State Hosp., 473 U.S. at 246-47; Koslow, 302 F.3d at 172
(citing Edelman, 415 U.S. at 673). A state also must
generally make “a ‘clear declaration’ that it intends to
subject itself to our jurisdiction.” College Sav. Bank, 527
U.S. at 676 (citing Great No. Life Ins. Co. v. Read, 322 U.S.
47, 54 (1944)); see also, e.g., MCI Telecomm. Corp., 271
F.3d at 504.
   But a state’s acceptance of federal financial aid in the
face of a clearly expressed condition by Congress may give
rise to a waiver of sovereign immunity even in the absence
of any express statement of waiver by the state or its
legislature. It is well established that “[a] State may
effectuate a waiver of its constitutional immunity by a state
statute or constitutional provision, or by otherwise waiving
its immunity to suit in the context of a particular federal
program.” Atascadero State Hosp., 473 U.S. at 238 n.1. The
state’s “acceptance of the funds entails an agreement” to
the condition of consenting to suit in federal court. College
Sav. Bank, 527 U.S. at 686. We have observed that “where
a state participates in a federal financial assistance
program ‘in light of the existing state of the law,’ the state
is charged with awareness that accepting federal funds can
result in the waiver of Eleventh Amendment immunity.”
Koslow, 302 F.3d at 172 (quoting Edelman, 415 U.S. at 687
(Douglas, J., dissenting)).2
  This Court therefore has continued to recognize the
validity of “conditional types of constitutional waiver” based
on the state’s receipt of either conditioned federal funds or
another federal gift. MCI Telecomm. Corp., 271 F.3d at 504.
In Koslow, we concluded that Pennsylvania surrendered its
constitutional immunity from section 504 claims against

2. Contrary to the State Defendants’ suggestion, it is not relevant to our
discussion that the Koslow court actually quoted the dissenting opinion
by Justice Douglas in Edelman v. Jordan, 415 U.S. 651 (1974). We are
still bound to follow Koslow’s understanding of waiver, which in any
event is consistent with the overall case law.
                              11


the Department of Corrections because of the acceptance of
federal funds for this agency. Koslow, 302 F.3d at 167-72.
The Court in MCI Telecommunication Corp. v. Bell Atlantic-
Pennsylvania, 271 F.3d 491 (3d Cir. 2001), cert. denied,
123 S. Ct. 340 (2002), ruled that the Pennsylvania Public
Utility Commission and its commissioners waived their
Eleventh Amendment immunity as to claims under the
1996 Telecommunications Act “by voluntarily accepting the
congressional gift or gratuity of the power to regulate local
telecommunications competition under the Act.” Id. at 513.
In neither case did the Court consider whether the
Pennsylvania General Assembly adopted legislation
specifically waiving this immunity or whether any other
express statement of such waiver was given. In the context
of the gift of federal funds, the clear congressional
statement that entitlement to federal funds is conditioned
on the waiver of immunity, taken together with the state’s
receipt of these funds, constitute a declaration of the state’s
submission to federal-court jurisdiction. See id. at 524-25
(Ambro, J., concurring in part and dissenting in part)
(“Congress’s clarity of expression and the resulting action
by the state substitute for the state’s own expression of
waiver.”)
   Congress also may not exceed its admittedly expansive
power under the Spending Clause when it establishes
waiver as a condition of funding. In Koslow, we summarized
these requirements, taken from the Supreme Court’s ruling
in South Dakota v. Dole, 483 U.S. 203 (1987). Koslow, 302
F.3d at 172 n.11, 175. First, the use of the spending power
“must be in pursuit of ‘the general welfare’.” Dole, 483 U.S.
at 207 (citations omitted). Congress must also state any
condition of funding unambiguously, thereby “ ‘enabl[ing]
the States to exercise their choice knowingly, cognizant of
the consequences of their participation.’ ” Id. (quoting
Pennhurst State Sch. & Hosp. 451 U.S. at 17). Furthermore,
conditions on federal grants of financial assistance “might
be illegitimate if they are unrelated ‘to the federal interest
in particular national projects or programs.’ ” Id. (quoting
Massachusetts v. United States, 435 U.S. 444, 461 (1978)).
Other constitutional provisions may also further prevent
any scheme of conditional funding. Id. at 208. Finally, the
financial pressure placed on the state by the conditional
                              12


grant of federal funds may rise to the level of
unconstitutional coercion or compulsion. Id. at 211
(quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590
(1937)); see also, e.g., Koslow, 302 F.3d at 172 n.11, 173-
74.
   In considering a Spending Clause challenge to the waiver
of immunity under the Rehabilitation Act, we rejected the
argument that the waiver condition must be specifically
tailored to a particular federal interest. Koslow, 302 F.3d at
175 (quoting Dole, 483 U.S. at 208 n.3). We stated that
“one need only identify a discernible relationship imposed
by a Rehabilitation Act condition on a ‘department or
agency’ and a federal interest in a program it funds.” Id.
The State Defendants argue that this understanding of the
relatedness prong is incorrect because more than a mere
discernible relationship is necessary, especially in the
context of the constitutional right to state sovereign
immunity. They assert that Dole actually required Congress
to make specific findings of relatedness in the text of the
statute itself. The Dole Court, in rejecting a challenge to a
federal law providing for the withholding of certain federal
highway funds if the state’s drinking age is below twenty-
one, never ruled that Congress must provide such findings.
Dole, 483 U.S. at 205, 208-09. In any case, we remain
bound by our adoption of the “discernible relationship”
standard. See 3d Cir. I.O.P. 9.1 (“It is the tradition of this
court that the holding of a panel in a precedential opinion
is binding on subsequent panels.”).
A.   Rehabilitation Act
  Section 504 of the Rehabilitation Act provides in relevant
part that:
     No otherwise qualified individual with a disability in
     the United States . . . shall, solely by reason of her or
     his disability be excluded from the participation in, be
     denied the benefits of, or be subjected to
     discrimination under any program or activity receiving
     Federal financial assistance. . . .
29 U.S.C. § 794(a). In Atascadero State Hospital v. Scanlon,
473 U.S. 234 (1985), the Supreme Court decided that the
Rehabilitation Act “falls far short of manifesting a clear
                              13


intent to condition participation in the programs funded
under the [Rehabilitation] Act on a State’s consent to waive
its constitutional immunity.” Id. at 247. Congress
responded with the Civil Rights Remedies Equalization Act,
adopted as part of the Rehabilitation Act Amendments of
1986. 42 U.S.C. § 2000d-7 provides in full:
    § 2000d-7. Civil rights remedies equalization
    (a)   General provision
    (1) A State shall not be immune under the Eleventh
    Amendment of the Constitution of the United States
    from suit in Federal court for a violation of section 504
    of the Rehabilitation Act of 1973, title IX of the
    Education Amendments of 1972, 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.
    (2) In a suit against a State for a violation of a statute
    referred to in paragraph (1), remedies (including
    remedies both at law and in equity) are available for
    such a violation to the same extent as such remedies
    are available for such a violation in the suit against
    any public or private entity other than a State.
    (b)   Effective date
    The provisions of subsection (a) of this section shall
    take effect with respect to violations that occur in
    whole or in part after October 21, 1986.
  The District Court found that this provision is an
unambiguous expression of Congress’s intent to condition
the receipt of “Federal financial assistance” on the state’s
consent to waive its constitutional immunity. We
subsequently reached the same conclusion in Koslow.
  In Koslow, a fired prison employee afflicted by a back
condition brought, among other causes of action, a
Rehabilitation Act claim against Pennsylvania doing
business as the Department of Corrections as well as the
prison superintendent. Koslow, 302 F.3d at 165.
Pennsylvania receives federal funds for numerous purposes,
                                    14


and several federal grants, including funds under the State
Criminal Alien Assistance Program (“SCAAP”), were
provided to its Department of Corrections. Id. at 166-67.
SCAAP was established to alleviate the states’ costs for
incarcerating illegal aliens convicted of state crimes, but
such funds were not tracked and need not be used for this
specific purpose. Id. at 167.
   Especially   relying    on    the    Supreme     Court’s
characterization of section 2000d-7 as “an unambiguous
waiver of the States’ Eleventh Amendment immunity,” Lane
v. Pena, 518 U.S. 187, 200 (1996), we joined other circuit
courts3 in holding that the statutory provision clearly
notified the states “that by accepting federal funds under
the Rehabilitation Act, they would waive their Eleventh
Amendment immunity to Rehabilitation Act claims,”
Koslow, 302 F.3d at 170 (citing United States Dep’t of
Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605
(1986)).
  We, however, also recognized the limited scope of any
such waiver based on the Rehabilitation Act’s prohibition of
disability discrimination “under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Given the act’s definition of “program or activity,”4 the

3. Circuit courts have consistently seen section 2000d-7 as an
unambiguous statement of Congress’s intent to condition acceptance of
federal funds on the waiver of Eleventh Amendment immunity from
claims under such enumerated statutes as the Rehabilitation Act or Title
IX. See, e.g., Robinson v. Kansas, 295 F.3d 1183, 1190 (10th Cir. 2002),
pet. for cert. filed, 71 U.S.L.W. (U.S. Jan. 22, 2003) (No. 02-1314); Garcia
v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 113 (2d Cir. 2001); Nihiser
v. Ohio Envtl. Protection Agency, 269 F.3d 626, 628 (6th Cir. 2001), cert.
denied, 536 U.S. 922 (2002); Jim C. v. United States, 235 F.3d 1079,
1082 (8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001);
Pederson v. La. State Univ., 213 F.3d 858, 875-76 (5th Cir. 2000); Cherry
v. Univ. of Wis. Sys. Bd., 265 F.3d 541, 554-55 (7th Cir. 2001); Sandoval
v. Hagan, 197 F.3d 484, 493-94 (11th Cir. 1999), rev’d on other grounds
sub nom. Alexander v. Sandoval, 532 U.S. 275 (2001); Litman v. George
Mason Univ., 186 F.3d 544, 553-54 (4th Cir. 1999); Clark v. California,
123 F.3d 1267, 1271 (9th Cir. 1997).
4. Section 504 defines a “program or activity” as encompassing:
                                      15


Koslow court found that any waiver is limited to the
department actually receiving federal financial assistance
but includes all of the operations of that department
regardless of whether the particular activities are federally
assisted. Koslow, 302 F.3d at 168, 171-72, 176.
  We held that Pennsylvania’s knowing acceptance of
SCAAP funds for its Department of Corrections resulted in
the waiver of immunity as to section 504 claims against
this department. Id. at 172 & n.12. We also considered
challenges to this waiver under the Spending Clause and
the “unconstitutional conditions” doctrine. Id. at 173-76.
This Court found a discernible connection between the
waiver of immunity and Congress’s interest, which “flows
with every dollar spent by a department or agency receiving
federal funds,” in eliminating disability discrimination in
federally supported departments or agencies. Id. at 175-76.
We further noted that the limitation of any waiver to the
department or agency actually receiving the funds “helps
ensure the waiver” satisfies this relatedness requirement.
Id. at 176. In rejecting a claim of coercion and
unconstitutional conditions, see id. at 172 n.11 (noting that
coercion arguments are considered in discussion of
unconstitutional conditions), we observed that a state
possesses political powers, particularly the power to tax,
that “help ensure the federal government does not ‘coerce’
the state through economic ‘encouragement,’ ” id. at 174.
Even though the refusal of all federal financial assistance
for the Department of Corrections would have fiscal and
possibly political ramifications for state officials, we
recognized that Pennsylvania remained free to make this
choice. Id.

    . . . all of the operations of—
    (1)(A) a department, agency, special purpose district, or other
    instrumentality of a State or of a local government; or
    (B) the entity of such State or local government that distributes
    such assistance and each such department or agency (and each
    other State or local government entity) to which the assistance is
    extended, in the case of assistance to a State or local government[.]
29 U.S.C. § 794(b).
                                  16


   We are bound by our decision in Koslow. Given the
clarity of section 2000d-7, New Jersey has waived its
immunity as to the section 504 claim against the NJDOE
by accepting federal financial assistance for this
department. The State Defendants argue, relying on the
view first developed by the Second Circuit in Garcia v.
S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir. 2001),
that the state could not have knowingly relinquished its
immunity from section 504 claims because it believed
Congress already abrogated this immunity under the
essentially identical terms of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The
Court in Koslow expressly rejected this argument with
regard to the Rehabilitation Act. Koslow, 302 F.3d at 172
n.12. We distinguished between section 504 and the ADA
by noting that “the ADA was not enacted to alter existing
causes of action” and therefore concluded that
Pennsylvania knowingly waived its immunity from
Rehabilitation Act claims by accepting funds under the
statute. Id. (citing 42 U.S.C. § 12201(b)). Given this
precedent, we may not apply the Garcia approach to A.W.’s
Rehabilitation Act claim and must likewise reject the State
Defendants’ assertion of undue compulsion in light of
Koslow. We therefore conclude that neither the Eleventh
Amendment nor the Spending Clause bar A.W.’s claim
under section 504 of the Rehabilitation Act.
B.   IDEA
   In Dellmuth v. Muth, 491 U.S. 223 (1989), the Supreme
Court held that the IDEA5 did not “evince an unmistakably
clear intention to abrogate the States’ constitutionally
secured immunity from suit.” Id. at 232. Congress
responded with a provision of the Education of the
Handicapped Act Amendments of 1990. Section 604 of the
IDEA, codified as 20 U.S.C. § 1403, states in full:
     § 1403. Abrogation of state sovereign immunity

5. The statutory scheme currently known as the IDEA was previously
entitled the Education of the Handicapped Act and the Education for All
Handicapped Children Act. For purposes of clarity and consistency, we
refer to the statute as the IDEA.
                              17


    (a) In general
    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.
    (b)   Remedies
    In a suit against a State for a violation of this chapter,
    remedies (including remedies both at law and in equity)
    are available for such a violation to the same extent as
    those remedies are available for such a violation in the
    suit against any public entity other than a State.
    (c)   Effective date
    Subsections (a) and (b) of this section apply with
    respect to violations that occur in whole or part after
    October 30, 1990.
New Jersey has adopted a thorough statutory and
administrative regime pursuant to the IDEA, and its
education department has been the recipient of federal
financial aid pursuant to this statute. See N.J. Stat. Ann.
§ 18A:46-1 et seq.; N.J. Admin. Code ch. 14. The District
Court found that section 1403 is a clear statement of
waiver and concluded that the State Defendants’
acceptance of IDEA funds gave rise to a waiver of
immunity. Although the IDEA presents a closer question
than the Rehabilitation Act and section 2000d-7, we agree
that the State Defendants are no longer immune from suit
under the IDEA.
   We have not previously addressed the question of
whether this provision constitutes a clear expression of
legislative intent to condition receipt of federal IDEA funds
on a state’s waiver of sovereign immunity. We did briefly
discuss this provision in Beth V. ex rel. Yvonne V. v. Carroll,
87 F.3d 80 (3d Cir. 1996). We held that a plaintiff enjoys an
express right of action under the IDEA for a state’s failure
to comply with the complaint resolution process established
in federal education regulations. Id. at 85-88. We noted the
consistency of this holding with Congress’s understanding
of the “integral” role of private suits in the enforcement of
the IDEA:
                                  18


     Congress’ reliance on a private action as one of the
     principal enforcement mechanisms of the rights
     guaranteed under IDEA is demonstrated by its prompt
     enactment of a 1989 amendment to IDEA which makes
     express its abrogation of the states’ Eleventh
     Amendment immunity from suit. See 20 U.S.C. § 1403
     (overturning the decision in Dellmuth v. Muth, 491 U.S.
     223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989)).
Id. at 88. The State Defendants assert that the decisions in
Dellmuth and Beth V. establish that section 1403
constitutes a clear attempt by Congress to abrogate state
sovereign immunity and not an unambiguous expression of
intent to make the waiver of this immunity a condition of
federal funding.
  Our statement in Beth V. purporting to recognize section
1403 as an abrogation provision was mere dicta because we
were concerned with the existence of a private right of
action and not whether state defendants are entitled to the
protections of the Eleventh Amendment. It appears
uncontested by the parties that section 1403 constitutes an
unambiguous statement of intent to abrogate Eleventh
Amendment immunity. See, e.g., Pace v. Bogalusa City Sch.
Bd., 325 F.3d 609, 614 (5th Cir. 2003); Little Rock Sch.
Dist. v. Mauney, 183 F.3d 816, 822 (8th Cir. 1999),
abrogation recognized by Bradley v. Ark. Dep’t of Educ., 189
F.3d 745 (8th Cir. 1999), rev’d on other grounds sub nom.
Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en
banc), cert. denied, 533 U.S. 949 (2001). Section 1403,
however, is logically capable of constituting both a clear
statement of abrogation and an unambiguous expression of
an intent to condition the availability of federal IDEA funds
on the state’s relinquishment of immunity.6 Several circuit

6. The confusion as to the use of terms such as abrogation and waiver
also weigh against any unwarranted reliance on this dicta. Courts have
occasionally used these terms interchangeably. See, e.g., Edelman v.
Jordan, 415 U.S. 651, 672 (1974) (“The question of waiver or consent
under the Eleventh Amendment was found in those cases to turn on
whether Congress had intended to abrogate the immunity in question,
and whether the State by its participation in the program authorized by
Congress had in effect consented to the abrogation of that immunity.”).
Although such practices do not detract from the obligation of statutory
clarity, they do indicate that we should not give too much weight to our
very brief reference in Beth V.
                                   19


courts have actually recognized that section 1403 is both
an abrogation and a waiver provision. See, e.g., Pace, 325
F.3d at 614, 617; Mauney, 183 F.3d at 822, 831-32.
   Every circuit court to have addressed the issue has held
that the section unambiguously expresses Congress’s intent
to condition entitlement to federal financial assistance
under the IDEA on a state’s surrender of immunity. After
suggesting the essential correctness of this approach, Marie
O. v. Edgar, 131 F.3d 610, 617-18 (7th Cir. 1997), the
Seventh Circuit specifically adopted this view in Board of
Education v. Kelly E., 207 F.3d 931, 935 (7th Cir. 2000).
See also Zambrano v. Reinert, 291 F.3d 964, 973 (7th Cir.
2002) (Easterbrook, J., concurring) (stating that “[IDEA],
another federal program that attaches conditions to grants,
has a clause, 20 U.S.C. § 1403(a), requiring states that take
money to consent to suits by private persons.”)). The Eighth
Circuit considered a state’s immunity from IDEA claims in
Little Rock School District v. Mauney, 183 F.3d 816 (8th Cir.
1999). It held that the IDEA successfully eliminated this
immunity under the Fourteenth Amendment and,
alternatively, that section 1403 clearly conditions receipt of
IDEA funding on a state’s consent to waive its immunity.
Id. at 822-32. The Eighth Circuit later concluded that this
abrogation holding was no longer good law due to
intervening precedent. Bradley v. Ark. Dep’t of Educ., 189
F.3d 745, 750-52 (8th Cir. 1999), rev’d on other grounds
sub nom. Jim C. v. United States, 235 F.3d 1079 (8th Cir.
2000) (en banc), cert. denied, 533 U.S. 949 (2001). But the
court, reaffirming Mauney’s waiver ruling, held that
Congress “provided a clear, unambiguous warning of its
intent to condition a state’s participation in the IDEA
program and its receipt of federal IDEA funds on the state’s
waiver of its immunity” by enacting both section 1403 as
well as section 1415 authorizing challenges to IDEA
determinations in federal court. Id. at 753. In Pace v.
Bogalusa City School Board, 325 F.3d 609 (5th Cir. 2003),
the Fifth Circuit recently agreed that this statutory
provision “constitutes a clear expression of Congress’s
intent to condition acceptance of federal funds on a state’s
waiver of sovereign immunity.”7 Id. at 617 (citing Bradley,
189 F.3d at 753; Kelly E., 207 F.3d at 935).

7. The Second Circuit characterized section 1403 in dicta as a “waiver of
sovereign immunity” for claims brought pursuant to the IDEA. Bd. of
                                  20


   No circuit or district court has specifically found that
section 1403 fails to notify the states with the necessary
clarity that acceptance of federal IDEA funds is dependent
on the waiver of their constitutional right to immunity. This
case law is generally based on an examination of the
language of section 1403 itself. In considering the terms of
this provision, we are also guided by our ruling in Koslow
that section 2000d-7 clearly states that waiver of immunity
from Rehabilitation Act causes of action is a condition of
federal financial assistance. Koslow, 302 F.3d at 168-72.
We therefore turn to the language of these two statutory
provisions.
   The operative language of section 2000d-7 covering the
Rehabilitation Act provides that “[a] State shall not be
immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court
for a violation of section 504 of the Rehabilitation Act of
1973.” The terms of section 1403 appear very similar: “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.” Section 2000d-7
therefore has been considered a “parallel provision” to
section 1403. Mauney, 183 F.3d at 831. Several courts
have actually relied on case law considering the IDEA
section as support for the conclusion that section 2000d-7
likewise constitutes a clear waiver provision. Stanley v.
Litscher, 213 F.3d 340, 344 (7th Cir. 2000); Sandoval v.
Hagan, 197 F.3d 484, 493-94 (11th Cir. 1999), rev’d on
other grounds sub nom. Alexander v. Sandoval, 532 U.S.
275 (2001); Neiberger v. Hawkins, 208 F.R.D. 301, 312 (D.
Colo. 2002); White v. Engler, 188 F. Supp. 2d 730, 741
(E.D. Mich. 2001); Robinson v. Kansas, 117 F. Supp. 2d
1124, 1132 (D. Kansas 2000), aff ’d, 295 F.3d 1183 (10th
Cir. 2002), pet. for cert. filed, 71 U.S.L.W. (U.S. Jan. 22,
2003) (No. 02-1314).

Educ. v. Schutz, 290 F.3d 476, 480 (2d Cir. 2002), cert. denied, 123 S.
Ct. 1284 (2003). The court made this observation in rejecting the “novel
argument” that “state defendants expressly abrogated sovereign
immunity” as to section 1983 claims by receiving federal funds under
IDEA. Id.
                                  21


   The State Defendants, however, do note certain
differences in language.8 After enumerating several specific
statutes, section 2000d-7 provides that a state shall not be
immune from suit in federal court for a violation of “the
provisions of any other Federal statute prohibiting
discrimination    by    recipients   of   Federal    financial
assistance.” This language, however, is merely included to
indicate that, unlike section 1403, section 2000d-7 applies
not only to a specifically listed statute but to any federal
law forbidding discrimination by federal funding recipients.
But see Ohta v. Muraski, No. 3:93 CV 00554, 1993 WL
366525, at *4-*5 (D. Conn. Aug. 19, 1993) (indicating that
section 2000d-7 does not satisfy the requirements of clarity
and specificity with regard to non-enumerated statutes). It
is therefore not surprising that circuit courts considering
whether section 2000d-7 constitutes a clear expression of
congressional intent to condition the receipt of federal
funds on a state’s waiver of immunity from claims under
the Rehabilitation Act, Title IX, or any other listed statute
generally do not rely on or even discuss this additional
clause. We did not even quote or paraphrase the words in
Koslow. Koslow, 302 F.3d at 169, 170 nn..7-8.
  It appears that the State Defendants’ reliance on this
expansive clause is actually based on a consideration of the
overall scope of the underlying statutory schemes. They
assert that, unlike section 2000d-7 and its related anti-
discrimination statutes, neither section 1403 nor the
overall IDEA restrict compliance with federal special
education mandates and the waiver of constitutional
immunity to states that actually accept federal IDEA funds.
Section 1403 admittedly does not specifically refer to

8. Beyond these textual differences, the State Defendants attempt to
distinguish the two statutory regimes on the grounds that the IDEA
implicates the state’s special interest in education and also mandates
the adoption of a comprehensive statutory and administrative program.
They emphasize that, while no state possesses a legitimate interest in
discrimination, states do possess a valid interest in providing a free
appropriate public education to their residents in a manner they see as
appropriate given educational experience and research. Such assertions,
however, have little if any relevance to our analysis of the language of
section 1403.
                                 22


recipients of federal financial assistance. The section,
however, should not be construed in isolation from the
overall statute. See Bradley, 189 F.3d at 753 (considering
section 1403 and 1415). It expressly provides that a state
loses its immunity from suit in federal court “for a violation
of this chapter.” There is clearly no violation of the IDEA if
the IDEA itself is inapplicable. We therefore turn to the
IDEA to consider whether its requirements apply to states
not receiving federal financial assistance.
   The IDEA was enacted pursuant to the congressional
spending power. See, e.g., Pace, 325 F.3d at 614; Kelly E.,
207 F.3d at 935; Mauney, 183 F.3d at 831 n.11. A state is
not generally bound by the IDEA unless it receives federal
funding under the statute. The IDEA provides inter alia
that “[a] State is eligible for assistance under this
subchapter for a fiscal year if the State demonstrates to the
satisfaction of the Secretary [of Education] that the State
has in effect policies and procedures to ensure that it
meets” several enumerated conditions. 20 U.S.C. § 1412(a).
It further requires the establishment and maintenance of
certain procedural safeguards by recipients of this aid.9 Id.
§ 1415(a). Congress’s funding is therefore available “on the
condition that states implement policies assuring a ‘free
appropriate public education’ for all their disabled
children.” W.B. v. Matula, 67 F.3d 484, 491 (3d Cir. 1995)
(quoting previous version of 20 U.S.C. § 1412); see also,
e.g., Beth V., 87 F.3d at 81 (stating that IDEA “authorizes
federal funding for states providing the special education
that the statute requires, but funding is contingent on state
compliance with its array of substantive and procedural
requirements” (citation omitted)). Although also seen as an
exercise of Congress’s Fourteenth Amendment enforcement

9. The IDEA states that:
    Any State educational agency, State agency, or local educational
    agency that receives assistance under this subchapter shall
    establish and maintain procedures in accordance with this section
    to ensure that children with disabilities and their parents are
    guaranteed procedural safeguards with respect to the provision of
    free appropriate public education by such agencies.
20 U.S.C. § 1415(a).
                                  23


authority, see, e.g., Dellmuth, 491 U.S. 227 n.1; Michael C.
v. Radnor Township Sch. Dist., 202 F.3d 642, 652 n.9 (3d
Cir. 2000); Mauney, 183 F.3d at 831 n.11, the
requirements of the statute are still not enforceable unless
the state actually accepts the funding offered by the federal
government, see, e.g., 34 C.F.R. § 300.2 (“This part applies
to each State that receives payments under Part B of Act”);
Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 784 (1st
Cir. 1984) (stating that state “is free to accept or reject the
participation of the federal government in its educational
programs for the disabled”), aff ’d sub nom. Sch. Comm. of
Town of Burlington, Mass. v. Mass. Dep’t of Educ., 471 U.S.
359 (1985).
  In the end, section 1403 functions in the same manner
as section 2000d-7. Because the anti-discrimination
mandate of section 504 does not apply unless the “program
or activity” is actually “receiving Federal financial
assistance,” section 2000d-7’s statement that a state shall
not be immune “for a violation of section 504” only applies
to recipients of federal funds. Likewise, because a state
defendant cannot be held responsible for a “violation of this
chapter” absent the receipt of federal money, section 1403’s
application is clearly limited to states that are the
beneficiaries of federal financial assistance under the IDEA.10
  There is also a difference in the headings of these two
provisions. While section 2000d-7 is entitled “Civil rights
remedies equalization,” the IDEA provision bears the
heading of “Abrogation of state sovereign immunity.” Both
the Seventh and the Eighth Circuits have expressed
concerns about the language of section 1403, urging
Congress to undertake “the appropriate legislative steps . . .
to achieve the clarity necessary to ensure effective
governance.” Marie O., 131 F.3d at 618; see also Bradley,

10. The State Defendants assert that New Jersey, even absent any
continuing federal IDEA funding, would still be required to comply with
its own statutory and regulatory scheme adopted because of the IDEA.
This argument, however, raises matters of state law. New Jersey would
have the power to alter or eliminate these various requirements without
violating the IDEA, and any liability they have under New Jersey’s
current statutes and regulations would involve questions of state and
not federal law in the absence of federal IDEA funding.
                                    24


189 F.3d at 753; Mauney, 183 F.3d at 832. But both
circuits have found that section 1403 constitutes an
unambiguous waiver provision. See, e.g., Kelly E., 207 F.3d
at 935; Bradley, 189 F.3d at 753; Mauney, 183 F.3d at
831-32. The Fifth Circuit likewise found that, despite the
title, “the text and structure of the statute make clear that
the voluntary acceptance of federal IDEA funds will result
in the loss of state sovereign immunity.” Pace, 325 F.3d at
617 n.17 (citing Bradley, 189 F.3d at 753)). Section
headings neither take the place of nor limit the plain
meaning of the statute’s text. Id. (quoting Bhd. of R.R.
Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29
(1947)); see also, e.g., Sandoval v. Reno, 166 F.3d 225, 235
(3d Cir. 1999) (“[A] title alone is not controlling.” (citation
omitted)). Although we might expect a reference to both
abrogation as well as waiver in the title, the absence of
such additional “magic words” does not detract from the
clarity of the provision as a clear statement of Congress’s
intent to condition participation in the IDEA program on
the relinquishment of immunity.11 See MCI Telecomm.

11. A.W. and the government refer briefly to the legislative history of
section 1403. The State Defendants challenge such use of legislative
history in this Eleventh Amendment context. Although such history does
not provide a substitute for a clearly expressed statement of intent in
statutory text, we did briefly consult it in considering section 2000d-7.
Koslow, 302 F.3d at 170 n.9, 176 n.17.
  Unlike in the enactment of section 2000d-7, we lack express
indications of Congress’s intent to make waiver of immunity a condition
of federal funding under the statute. Id. The original Senate bill actually
used the term “waiver.” H.R. Conf. Rep. No. 101-787, at 55, reprinted in
1990 U.S.C.C.A.N. 1784, 1787. But the Senate eventually receded to the
House version and its “abrogation” heading. Id. According to the Seventh
Circuit, this development suggests that Congress consciously selected
the abrogation title. Marie O., 131 F.3d at 617-18. Senator Harkin also
referred to his bill as an attempt “to reaffirm and clarify that the 11th
Amendment is abrogated by the unequivocal text of the [IDEA].” 135
Cong. Rec. S9134 (daily ed. Jul. 31, 1989) (statement by Sen. Harkin).
  The legislative history, although certainly not without ambiguity, still
further supports our view of section 1403. Other items apparently
indicate that Congress did not necessarily use the term “abrogation” in
an exclusive fashion and may have also sought to provide for the waiver
of immunity. The report of the House Education and Labor Committee
                                    25


Corp., 271 F.3d at 513 (noting that Telecommunications Act
“does not include magic words such as ‘waiver’ or
immunity’ or ‘suit’ ” but concluding that statute is
sufficiently clear to establish that state commission’s
approval of interconnection agreements would be subject to
federal court review).
   Section 1403 therefore satisfies the Supreme Court’s
rigorous standard of clarity. The State Defendants point to
the similarity between section 1403 and the provision
purporting to abrogating immunity under the ADA. See 42
U.S.C. § 12202.12 But we could make the same comparison
between the ADA provision and section 2000d-7 itself. See

discussed this provision under the heading of “Waiver of State Sovereign
Immunity.” H.R.. Rep. No. 101-544, at 12 (1990), reprinted in 1990
U.S.C.C.A.N. 1723, 1734. This report also clearly reflected a basic intent
to ensure that state defendants are held liable for their violations of the
statute. It stated that the Dellmuth ruling, holding that disabled children
who are denied a free appropriate public education by the state are not
entitled to tuition reimbursement, “misinterpreted Congressional intent.”
Id. Noting that such a “gap” was never intended, the report observed that
it would be inequitable for the IDEA “to mandate State compliance with
its provisions and yet deny litigants the right to enforce their rights in
Federal courts when State or State agency actions are at issue.” Id. Both
the Fifth Circuit and the Seventh Circuit have cited this report as
evidence that Congress intended to adopt a waiver provision. Pace, 325
F.3d at 617 n.12; Marie O., 131 F.3d at 618 n.15. The Seventh Circuit
also believed that Congress’s failure in the 1997 reauthorization of the
IDEA “to delete the term ‘abrogation’ in the wake of [the Supreme Court’s
abrogation ruling in Seminole Tribe v. Florida, 517 U.S. 44 (1996),] might
well indicate that it views the statutory section as a waiver provision.”
Marie O., 131 F.3d at 618.
12. 42 U.S.C. § 12202 states:
    § 12202. State immunity
    A State shall not be immune under the eleventh amendment to the
    Constitution of the United States from an action in Federal or State
    court of competent jurisdiction for a violation of this chapter. In any
    action against a State for a violation of the requirements of this
    chapter, remedies (including remedies both at law and in equity) are
    available for such a violation to the same extent as such remedies
    are available for such a violation in an action against any public or
    private entity other than a State.
                                  26


Pace, 325 F.3d at 615 (stating that “§ 2000d-7 and 42
U.S.C. § 12202 of the ADA contain nearly identical
language”). In the end, it is our comparison of the
essentially identical terms of section 1403 and section
2000d-7 that is dispositive in these circumstances.
Following our ruling in Koslow, we hold that section 1403
constitutes a clear statement of Congress’s intent to
condition the receipt of federal IDEA funds on a state’s
waiver of Eleventh Amendment immunity.13
   It is undisputed that the NJDOE has received federal
financial assistance under the IDEA. The State Defendants,
however, assert that New Jersey has not knowingly waived
its sovereign immunity by accepting this federal funding
because it reasonably believed that the statutory provision
had already successfully abrogated any such immunity
from suit. This assertion is based on the understanding of
a fully knowing waiver first developed by the Second Circuit
in Garcia. The cases adopting this approach essentially
hold that a state cannot waive its immunity with the
requisite knowledge if it reasonably believed it had already
lost its Eleventh Amendment rights and therefore
apparently possessed no actual immunity to relinquish by
taking federal funds.
   In Garcia, a former medical student brought a number of
claims, including a section 504 cause of action, against a
New York state medical center and its personnel for
allegedly discriminatory conduct beginning in September
1993 and ending in August 1995. Garcia, 280 F.3d at 103-
05. The Second Circuit found that New York did not
knowingly surrender its constitutional right to immunity
because, at the time it accepted the federal funds, Title II of
the ADA was reasonably understood as a valid abrogation
of state immunity under the Commerce Clause. Id. at 114
& n.4 (citing Pennsylvania v. Union Gas Co., 491 U.S. 1,
19-20 (1989) (plurality opinion)). Because it viewed Title II
and section 504 as “virtually identical,” the court held that
“a state accepting conditioned federal funds could not have

13. We do recommend that the government include terms in the grant
documents providing that states expressly agree to a waiver of Eleventh
Amendment immunity as a condition for funding under the IDEA.
                            27


understood that in doing so it was actually abandoning its
sovereign immunity from private damages suits, since by all
reasonable appearances state sovereign immunity had
already been lost.” Id. at 114 (citations omitted). It
emphasized that “even the most studied scholar of
constitutional law” would have possessed little reason from
September 1993 to August 1995 to doubt Congress’s
abrogation of immunity as to claims under Title II of the
ADA. Id. at 114 n.4. The Second Circuit therefore found
that New York retained its immunity from Rehabilitation
Act claims. Id. at 114-15.
  Judge O’Scannlain, joined by three other judges, adopted
this view in a dissent from the Ninth Circuit’s denial of
rehearing en banc of the panel’s holding that California
waived its immunity from Rehabilitation Act claims by
accepting federal funds. Douglas v. Cal. Dep’t of Youth
Auth., 285 F.3d 1226, 1226-31 (9th Cir. 2002)
(O’Scannlain, J., dissenting from denial of rehearing en
banc). More significantly, the Fifth Circuit has firmly
embraced this Second Circuit approach.
  In Pace, a plaintiff brought claims under section 504 and
the IDEA against certain state and other defendants. Pace,
325 F.3d at 612. After concluding that the IDEA does not
validly abrogate Eleventh Amendment immunity, the court
considered whether the state defendants knowingly waived
their immunity from Rehabilitation Act and IDEA claims by
accepting the relevant federal financial assistance during
the 1996-97 and 1997-98 school years. Id. at 614-18. It
determined that the state defendants “had little reason to
doubt” the validity of Congress’s asserted abrogation of
sovereign immunity under section 504 or the nearly
identical Title II of the ADA until the Fifth Circuit struck
down the alleged abrogations in Reickenbacker v. Foster,
274 F.3d 974 (5th Cir. 2001). Pace, 325 F.3d at 616.
Because they believed that the Rehabilitation Act and the
ADA validly abrogated immunity, “the State defendants did
not and could not know that they retained any sovereign
immunity to waive by accepting conditioned federal funds.”
Id. The court noted that the state defendants did continue
to accept such funds after the rulings in Seminole Tribe v.
Florida, 517 U.S. 44 (1996), and City of Boerne v. Flores,
                                 28


521 U.S. 507 (1997), in which “the Supreme Court
explained and then delineated Congress’s power to abrogate
state sovereign immunity only through § 5 of the
Fourteenth Amendment.” Pace, 325 F.3d at 616. The Fifth
Circuit, however, refused to find that they thereby received
notice of the continued existence of sovereign immunity
before Reickenbacker and the 2001 holding in Board of
Trustees v. Garrett, 521 U.S. 356 (2001), striking down Title
I of the ADA as an invalid abrogation. Pace, 325 F.3d at
616 & n.10. It noted that the Fifth Circuit itself earlier held
that the ADA successfully abrogated state sovereign
immunity. Id. at 616 (citing Coolbaugh v. Louisiana, 136
F.3d 430 (5th Cir. 1998)). Even though the state defendants
in Pace may have acted voluntarily, “they did not manifest
a knowing waiver of that which they could not know they
had the power to waive.” Id.
   The Pace court also held that the state defendants did
not knowingly waive their immunity by accepting federal
IDEA funds. Id. at 617-18. It noted that, before September
1998, no circuit court had ruled that section 1403 did not
validly abrogate a state’s constitutional immunity and that
“this circuit did not hold so until today.”14 Id. at 617. Acting
on the reasonable belief that the IDEA had already stripped
them of any immunity, the state defendants “did not know
that they retained any sovereign immunity to waive by
accepting federal IDEA funds during the relevant time
period.” Id. at 617. Though not without objection, Johnson
v. La. Dep’t of Educ., ___ F.3d ___, 2003 WL 21000830, at
*3-*7 (5th Cir. 2003) (Weiner, J., dissenting or specially
concurring), the Fifth Circuit has continued to apply this
understanding of knowing waiver to Rehabilitation Act
claims, Miller v. Texas Tech Univ. Health Sciences Ctr., ___
F.3d ___, 2003 WL 21058546, at *1-*4 (5th Cir. 2003);
Johnson, 2003 WL 21000830, at *2.
  These cases generally rely on fundamental principles in
arriving at their theory of waiver. Certain of these principles
are well-established. For instance, we must draw all

14. In August 1999, the Eighth Circuit held that the IDEA did not
constitute a valid abrogation of Eleventh Amendment immunity. Bradley,
189 F.3d at 750-52.
                             29


reasonable presumptions against waiver. College Sav. Bank,
527 U.S. at 682; Miller, 2003 WL 21058546, at *3; Douglas,
285 F.3d at 1228 (O’Scannlain, J., dissenting from denial of
rehearing en banc); Garcia, 280 F.3d at 114. However,
partly to overcome the weight of authority recognizing that
acceptance of funds gives rise to a waiver of immunity
under both section 2000d-7 and section 1403, the case law
also emphasizes a general distinction, apparently made by
the Supreme Court in College Savings Bank, between the
state’s actual abandonment of immunity and the clear
expression of an intent by Congress to condition the
acceptance of federal funds on such a relinquishment.
Pace, 325 F.3d at 615-16; Douglas, 285 F.3d at 1227-28
(O’Scannlain, J., dissenting from denial of rehearing en
banc); Garcia, 280 F.3d at 114, 115 n.5. The Supreme
Court stated:
      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 waived that immunity. 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 suit brought by individuals. That is very
    far from concluding that the State made an “altogether
    voluntary” decision to waive its immunity.
College Sav. Bank, 527 U.S. at 681-82 (citation omitted).
   We do not adopt the view of waiver advanced by Garcia
and its successors. Although expressly based on a rather
technical comparison of the ADA and the Rehabilitation
Act, our specific rejection of Garcia in Koslow should at the
very least caution us against adopting such an approach in
the context of the IDEA and other federal statutes
purporting to condition funding on a waiver of Eleventh
Amendment immunity. Koslow, 302 F.3d at 172 n.12.
Because we found that Pennsylvania waived sovereign
immunity for Rehabilitation Act claims, id. at 167-72, any
finding now that the State Defendants did not knowingly
waive immunity from IDEA claims because they believed
that section 1403 had stripped them of immunity from
these claims raises unnecessary questions of consistency
                              30


and further uncertainty in the proper application of the
Eleventh Amendment. See Pace, 325 F.3d at 617 & n.13
(citing Koslow as among the “contrary conclusions of other
circuits on the question of waiver under § 504 of the
Rehabilitation Act”). The rather novel approach offered by
Garcia also appears to be contrary to both our examination
of the Rehabilitation Act as well as the overwhelming weight
of decisions finding that the acceptance of funds gives rise
to a waiver under both section 2000d-7 and section 1403.
  The consideration of broader principles does not alter our
conclusion. The undisputed requirement to indulge all
presumptions against waiver supports but does not
mandate this approach. More importantly, the Supreme
Court in College Savings Bank drew its distinction between
the congressional statement of intent and the state’s
unequivocal expression of waiver in the context of rejecting
Parden’s theory of waiver arising out of the state’s conduct
of otherwise lawful activity. College Sav. Bank, 527 U.S. at
675-87. Although acknowledging the general validity of this
distinction, we note that it in no way addresses the kind of
knowledge required for a truly knowing relinquishment of
the constitutional right to immunity. On the contrary, the
Supreme Court indicated that “ ‘a waiver may be found in
a State’s acceptance of a federal grant.’ ” Id. at 678 n.2; see
also id. at 686-87, without stating that this acceptance
does not give rise to a waiver when the state reasonably
believes that any immunity has already been lost through
abrogation.
  The clear prerequisite of an “intentional relinquishment
or abandonment of a known right or privilege” does not
mandate our adoption of Garcia and its progeny. MCI
Telecomm. Corp., 271 F.3d at 504 (quoting College Sav.
Bank, 527 U.S. at 681-82)); see also Miller, 2003 WL
21058546, at *3; Pace, 325 F.3d at 616; Douglas, 285 F.3d
at 1228 (O’Scannlain, J., dissenting from denial of
rehearing en banc); Garcia, 280 F.3d at 114. Even though
the state may believe that it no longer possesses any
sovereign immunity to surrender because of Congress’s
exercise of its constitutional power of abrogation, it still
must be held to be aware that its surrender of this
immunity constitutes a condition for federal financial
                             31


assistance due to the unambiguity of the statutory
provision itself. Even the Fifth Circuit acknowledged that
the primary purpose of the clear statement rule “is to
ensure that states understand the bargain: Accept federal
funds and thereby waive sovereign immunity.” Miller, 2003
WL 21058546, at 2; see also MCI Telecomm. Corp., 271
F.3d at 506 (“This requirement that Congress speak with a
‘clear voice’ ensures that the states exercise their choice
knowingly and voluntarily, cognizant of the consequence
(waiver of constitutional immunity) of participating in the
permitted activity.” (citation omitted)). By accepting such
funds, the state knowingly gives up any possible right to
immunity even if the abrogation is subsequently ruled
invalid. Cf. Johnson, 2003 WL 21000830, at *7 (Weiner, J.,
dissenting or specially concurring) (stating that state
defendants “made a conscious — ‘knowing’ — choice (1) to
accept the federal funds and, (2) vis-a-vis those funds, to be
subject to the Rehabilitation Act and to a lawsuit in federal
court on Rehabilitation Act claims”). Particularly given the
rapidly developing nature of Eleventh Amendment law, the
state is actually surrendering something of particular value.
It gives up “a significant measure of insurance against
alterations in the law of sovereign immunity.” Bowers v.
NCAA, 171 F. Supp. 2d 389, 408 (D.N.J. 2001); see also
Doe v. Nebraska, No. 4:CV95-3381, 2002 WL 225907, at *8
n.8 (D. Neb. Feb. 14, 2002) (quoting Bowers, 171 F. Supp.
2d at 408)).
   Finally,   practical    considerations    indicate    the
inappropriateness of the Garcia approach. The Second
Circuit recognized “that an argument could be made that if
there is a colorable basis for the state to suspect that an
express congressional abrogation is invalid, then the
acceptance of funds conditioned on the waiver might
properly reveal a knowing relinquishment of sovereign
immunity.” Garcia, 280 F.3d at 114 n.4. Under such
circumstances, a state deciding whether to accept funds
would no longer be ignorant “of the fact that it was waiving
its possible claim to sovereign immunity.” Id. The Fifth
Circuit therefore has indicated that this approach only
“applies to a limited number of historical cases as a result
of fast-developing sovereign immunity jurisprudence at the
Supreme Court and this court,” resulting in temporary and
                                 32


largely Pyrrhic victories for state defendants. Miller, 2003
WL 21058546, at *4 n.9; see also Johnson, 2003 WL
210000830, at *2; Pace, 325 F.3d at 618 n.15. However,
both the case law as well as the State Defendants
themselves point to different cases as crucial in the
determination of when, if ever, they should be held to know
that any abrogation was invalid.15 See, e.g., Miller, 2003 WL
21058546, at *4 nn.8-9 (indicating that decision itself
provides notice but refusing to decide whether Garrett or
Fifth Circuit’s decision in Reickenbacker do so as well);
Johnson, 2003 WL 210000830, at *2 (focusing on Garrett
but also mentioning Reickenbacker); Pace, 325 F.3d at 615,
618 n.15 (focusing on Garrett but also referring to circuit
court rulings); Douglas, 285 F.3d at 1229-31 (O’Scannlain,
J., dissenting from denial of rehearing en banc)
(emphasizing Garrett) Garcia, 280 F.3d at 114 n.4 (focusing
on Seminole Tribe and City of Boerne). We should not allow
the application of the Eleventh Amendment, implicating
both the state’s constitutional entitlement to immunity and
the private litigant’s right to have his or her federal rights
vindicated in a federal forum, to be subject to such
unnecessary uncertainty and lack of precision.
   It therefore appears that the acceptance of federal funds
under the IDEA results in the waiver of any immunity from
A.W.’s IDEA claims against the State Defendants. This
waiver, as a condition of federal funding, must still satisfy
the general restrictions placed on the exercise of the
spending power. The State Defendants argue that the
waiver of immunity is not related to the purposes of the
IDEA and that section 1403 is unduly coercive because
New Jersey may lose all of its federal IDEA funding by
failing to accept the surrender of immunity. Both assertions
are without merit.
  There is clearly a “discernible relationship” between
waiver and federal interests in the IDEA program.

15. The State Defendants argue that they are entitled to actual notice
from the federal government stating that New Jersey has a right to
immunity. They cite no case law imposing such a mandate and Garcia
and its successors provide no support for it. We likewise must reject
their last-minute laches argument.
                                   33


According to the statute itself, the IDEA has several
objectives, including “to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related
services designed to meet their unique needs and prepare
them for employment and independent living” and “to
ensure that the rights of children with disabilities and
parents of such children are protected.” 20 U.S.C.
§ 1400(d)(1)(A), (B). The State Defendants, emphasizing that
the IDEA’s stated purpose is not the prevention of
discrimination and noting the special state concerns with
education, assert that there is no connection between
Eleventh Amendment immunity and the education of
children with disabilities. We find that the requirement of
waiver clearly promotes these interests in a free appropriate
public education for all disabled children and the protection
of the rights of children and parents by ensuring full
accountability in federal court for statutory violations
committed by state educational authorities who receive
federal financial assistance under the IDEA.16 Cf., e.g.,
Koslow, 302 F.3d at 175-76 (finding that waiver of

16. In Koslow, we expressly held that a state’s waiver of immunity as to
Rehabilitation Act claims is limited to the department or agency actually
receiving federal funds. Koslow, 302 F.3d at 168-72. The State
Defendants assert that section 1403 fails the relatedness requirement
because the waiver of immunity is not limited in this fashion. Although
A.W. admits that any waiver is restricted to the department or agency
actually receiving federal financial assistance under the IDEA, it is
unclear whether this approach actually applies to any waiver under the
IDEA. A district court held based on Koslow that only state departments
actually receiving federal IDEA funds surrender their Eleventh
Amendment immunity. S.C. ex rel. C.C. v. Deptford Township Bd. of
Educ., 248 F. Supp. 2d 368, 385 (D.N.J. 2003). The court therefore
dismissed the New Jersey Division of Developmental Disabilities from the
IDEA action because of the absence of any evidence that this agency
received such funds. Id. at 385-86. But our discussion of the scope of a
Rehabilitation Act waiver was specifically guided by the statutory
definition of “program or activity.” Koslow, 302 F.3d at 168-72. The
parties have failed to point to any similar language in the IDEA.
  We, however, need not resolve this issue because A.W. does not name
as a defendant either New Jersey or any state department that does not
benefit from federal funding under the IDEA.
                                   34


immunity from section 504 claims advances federal interest
in eliminating disability discrimination from federally
funded departments or agencies); Frederick L. v. Dep’t of
Pub. Welfare, 157 F. Supp. 2d 509, 522 (E.D. Pa. 2001)
(“Through section 2000d-7(a)(1), Congress linked the federal
government’s       legitimate  interest    in    eliminating
discrimination against disabled individuals in the programs
its   endows       to    State accountability    for   such
discrimination.”).
   The issue of unconstitutional coercion has the potential
to raise fundamental questions regarding the appropriate
relationship between the federal and state governments.
The circumstances of this case, however, do not require us
to explore these broader aspects. We have already rejected
a coercion challenge to section 2000d-7. Koslow, 302 F.3d
at 172 n.11, 173-74. The State Defendants actually fail to
furnish any information as to the amount of funds received
by New Jersey under the IDEA and the proportion of such
funding in relation to the state’s overall educational
spending. See, e.g., Jim C. v. United States, 235 F.3d 1079,
1082 (8th Cir. 2000) (en banc) (noting that Arkansas’s
sacrifice of 12 percent of education budget “would be
politically painful” but not compulsive), cert. denied, 533
U.S. 949 (2001). Under these circumstances, the state’s
powers as a political sovereign, especially its authority to
tax, appear more than capable of preventing undue
coercion through “economic ‘encouragement.’ ” Koslow, 302
F.3d at 174. We do not deny the considerable pressures
placed on states to accept federal special education funds,
but we cannot conclude that the IDEA, recognized as “a
model of ‘cooperative federalism’,” Beth V., 87 F.3d at 82
(citations   omitted),   gives   rise   to   unconstitutional
compulsion.17

17. The State Defendants further argue that the IDEA, particularly
section 1403, fails to provide states with sufficient notice of prohibited
conduct. They assert that the statute is void on grounds of vagueness
and that its mandates are not stated with the requisite unambiguity to
allow a state to make a knowing choice of whether to accept its
requirements in exchange for federal money. Such very broad assertions
should be rejected given the lack of any citation to a case finding the
IDEA’s requirements insufficiently clear as well as the long-established
principle that the IDEA “confers on disabled children a substantive right
to a ‘free appropriate public education’.” Beth V., 87 F.3d at 81 (quoting
20 U.S.C. § 1400(c)).
                              35


                              IV.
   The District Court, applying the waiver exception,
correctly found that the State Defendants are not entitled to
immunity under the Eleventh Amendment from A.W.’s
Rehabilitation Act and IDEA causes of action. Its denial of
the State Defendants’ motion to dismiss therefore will be
affirmed.
  For the foregoing reasons, the order of the District Court
entered on March 19, 2002, will be affirmed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
