UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

M.C., V.C. and L.C., individually, and L.C., as Guardian on behalf of
M.C.,

> Plaintiffs,
>
> v\.

FORT LEE BOARD OF EDUCATION, [et al.]{.underline},

> Defendants.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

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HONORABLE ALFRED J. LECHNER, JR.

Civil Action No. 99-5011 (AJL)

Oral Argument Requested.

**[UNITED STATES' BRIEF IN OPPOSITION TO DEFENDANTS']{.underline}**

**[MOTION TO DISMISS]{.underline}**

> Bill Lann Lee
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> John L. Wodatch, Chief
>
> Renee M. Wohlenhaus, Deputy Chief
>
> Philip L. Breen, Special Legal Counsel
>
> John A. Russ IV, Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> 1425 New York Ave., 4^th^ floor
>
> Washington, D.C. 20035-6738
>
> ph: (202) 353-7738
>
> JR-5858
>
> Attorneys for Plaintiff-Intervenor

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** ii

**INTRODUCTION** 1

I. IN LIGHT OF THE SUPREME COURT'S RECENT GRANT OF
[CERTIORARI]{.underline} IN [ALSBROOK]{.underline} AND
[DICKSON]{.underline}, THIS COURT SHOULD HOLD IN ABEYANCE ANY DECISION
AS TO WHETHER CONGRESS PROPERLY ABROGATED STATE SOVEREIGN IMMUNITY UNDER
THE FOURTEENTH AMENDMENT 2

II\. BECAUSE THE REHABILITATION ACT AND IDEA VALIDLY REQUIRE WAIVER OF
SOVEREIGN IMMUNITY AS A CONDITION OF RECEIVING FEDERAL FUNDS, THE
ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' CLAIMS UNDER THOSE STATUTES,
PURSUANT TO CONGRESS' SPENDING CLAUSE AUTHORITY 6

**CONCLUSION** 19

**TABLE OF AUTHORITIES**

**CASES**

[Alsbrook v. City of Maumelle]{.underline}, 184 F.3d 999 (8th Cir. 1999)
(en banc), [cert. granted]{.underline}, 2000 WL 63302 (Jan. 25, 2000)
(No. 99-432) 4, 5

[Armstrong v. Wilson]{.underline}, 124 F.3d 1019 (9^th^ Cir. 1997) 6

[Association of Mexican-American Educators v. California]{.underline},
195 F.3d 465 (9^th^ Cir. 1999) 17

[Atascadero State Hosp. v. Scanlon]{.underline}, 473 U.S. 234 (1985) 8,
11

[Beth V. v. Carroll]{.underline}, 87 F.3d 80 (3d Cir. 1996) 12, 18, 19

[Bell v. New Jersey]{.underline}, 461 U.S. 773 (1983) 12

[Board of Educ. v. Califano]{.underline}, 584 F.2d 576 (2d Cir. 1978),
[aff'd]{.underline}, [Board of Ed. v. Harris]{.underline}, 444 U.S. 130
(1979). 9

[Board of Educ. v. Mergens]{.underline}, 496 U.S. 226 (1990) 15

[Bradley v. Arkansas Dep't of Educ.]{.underline}, 189 F.3d 745 (8th Cir.
1999), [reh'g en banc granted in part, opinion vacated in
part]{.underline}, [Jim C. v. Arkansas Dep't of Educ.]{.underline}, 197
F.3d 958 (8^th^ Cir. 1999) 4, 12, 14, 15-18

[Brown v. North Carolina Div. of Motor Vehicles]{.underline}, 166 F.3d
698 (4th Cir. 1999), petition for cert. filed 68 U.S.L.W. 3164 (Sept. 8,
1999) (No. 99-424) 4

[City of Boerne v. Flores]{.underline}, 521 U.S. 507 (1997) 2-3

[Clark v. California]{.underline}, 123 F.3d 1267 (9th Cir. 1997), [cert.
denied]{.underline} [sub nom.]{.underline} [Wilson v.
Armstrong]{.underline}, 118 S. Ct. 2340 (1998)

4, 10, 12

[College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd.]{.underline}, 119 S. Ct. 2219 (1999) 8, 9, 14

[Coolbaugh v. Louisiana]{.underline}, 136 F.3d 430 (5th Cir. 1998),
[cert. denied]{.underline}, 119 S. Ct. 58 (1998) 4

[Crawford v. Indiana Dep\'t of Corrections]{.underline}, 115 F.3d 481
(7th Cir. 1997) 4, 6

[Dare v. State of Cal.]{.underline}, 191 F.3d 1167 (9th Cir. 1999) 4

[Delaware Dep't of Health & Soc. Servs. v. United States Dept of
Educ.]{.underline}, 772 F.2d 1123 (3d Cir. 1985) 8

[Edelman v. Jordan]{.underline}, 415 U.S. 651 (1974) 8

[Ex Parte Young]{.underline}, 209 U.S. 123 (1908) 5

[Florida Dep't of Corrections v. Dickson]{.underline}, 2000 WL 46077
(Jan. 20, 2000) 4, 5

[Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav.
Bank]{.underline}, 119 S. Ct. 2199 (1999) 3

[Garrett v. University of Alabama at Birmingham Bd. of
Trustees]{.underline}, 193 F.3d 1214 (11^th^ Cir.1999), [petition for
cert. filed]{.underline} (Jan. 24, 2000) (No. 99-1240) 3, 4

[Grove City College v. Bell]{.underline}, 465 U.S. 555 (1984) 14

[J.B. ex rel. Hart v. Valdez]{.underline}, 186 F.3d 1280, 1287 (10^th^
Cir. 1999)

5

[Jim C. v. Arkansas Dep't of Educ.]{.underline}, 197 F.3d 958 (8^th^
Cir. 1999)

5, 13

[Kimel v. Board of Regents]{.underline}, 139 F.3d 1426 (11th Cir. 1998),
[aff'd in part]{.underline} (as to the Age in Employment Discrimination
Act), 120 S. Ct. 631 (2000), [cert. granted]{.underline}, [sub
nom.]{.underline} (as to ADA issue), [Florida Dep't of Corrections v.
Dickson]{.underline}, 2000 WL 46077 (Jan. 20, 2000) 4

[Kimel v. Florida Bd. of Regents]{.underline}, 120 S. Ct. 631 (2000) 3,
4

[Klinger v. Department of Corrections]{.underline}, 107 F.3d 609 (8^th^
Cir. 1997) 17

[Lane v. Pena]{.underline}, 518 U.S. 187 (1996) 10, 11

[Lau v. Nichols]{.underline}, 414 U.S. 563 (1974) 14

[Lightbourn v. County of El Paso]{.underline}, 118 F.3d 421 (5^th^ Cir.
1997), [cert. denied]{.underline}, 118 S. Ct. 700 (1998) 17

[Litman v. George Mason Univ.]{.underline}, 186 F.3d 544 (4th Cir.
1999), [petition for cert. filed]{.underline}, 68 U.S.L.W. 3263 (Oct. 5,
1999)(No. 99-596) 7, 10, 12

[Martin v. Kansas]{.underline}, 190 F.3d 1120 (10th Cir. 1999) 4

[McDonald v. Pennsylvania Dep't of Pub. Welfare]{.underline}, 62 F.3d 92
(3d Cir. 1995) 6

[Muller v. Costello]{.underline}, 187 F.3d 298 (2d Cir. 1999) 4

[Nelson v. Miller]{.underline}, 170 F.3d 641, 647 (6^th^ Cir. 1999) 5,
17

[Nevada v. Skinner]{.underline}, 884 F.2d 445 (9^th^ Cir. 1989) 15

[New York v. United States]{.underline}, 505 U.S. 144 (1992) 15

[Oklahoma v. Schweiker]{.underline}, 655 F.2d 401 (D.C. Cir. 1981) 13

[O'Connor v. Davis]{.underline}, 126 F.3d 112 (2d Cir. 1997), [cert.
denied]{.underline}, 118 S. Ct. 1048 (1998) 17

[Sandoval v. Hagan,]{.underline} 197 F.3d 484 (11^th^ Cir. 1999) 7, 8,
13, 14

[School Bd. of Nassau County v. Arline]{.underline}, 480 U.S. 273 (1987)
13

[Schroeder v. City of Chicago]{.underline}, 927 F.2d 957 (7^th^ Cir.
1991) 17

[Seaborn v. Florida]{.underline}, 143 F.3d 1405 (11th Cir. 1998), [cert.
denied]{.underline}, 119 S. Ct. 1038 (1999) 4

[Seminole Tribe of Fla. v. Florida]{.underline}, 517 U.S. 44 (1996) 2,
7, 8

[South Dakota v. Dole]{.underline}, 483 U.S. 203 (1987) 9

[Thomlison v. City of Oklahoma]{.underline}, 63 F.3d 786 (8^th^ Cir.
1995) 17

[Torres v. Puerto Rico Tourism Co.]{.underline}, 175 F.3d 1 (1st Cir.
1999)

4

[United State Dept. of Transport. v. Paralyzed Veterans of
Am.]{.underline}, 477 U.S. 597, 599 (1986) 12, 15

[Virginia v. Browner]{.underline}, 80 F.3d 869, 881 (1996) 13

[Wheeling & Lake Erie Ry. Co. v. Public Util. Comm'n of
Pa.]{.underline}, 141 F.3d 88 (3d Cir. 1998), [cert.
denied]{.underline}, 120 S. Ct. 323 (1999) 3

**CONSTITUTIONS, STATUTES & REGULATIONS**

U.S. Const. amend. XI [passim]{.underline}

U.S. Const. amend. XIV [passim]{.underline}

Rehabilitation Act, 29 U.S.C. § 794 1, 13, 16

Americans with Disabilities Act, 42 U.S.C. § 12131 1

Individuals with Disabilities Education Act

20 U.S.C. § 1400 1

20 U.S.C. § 1403 passim

20 U.S.C. § 1681 13

20 U.S.C. § 1698 16

42 U.S.C. § 2000d 13

42 U.S.C. § 2000d-4a 16

42 U.S.C. § 2000d-7 passim

**LEGISLATIVE HISTORY**

110 Cong. Rec. 6544 (1964) 7

131 Cong. Rec. 22,344-22,345 (1985) 11

132 Cong. Rec. 28,624 (1986) 12

**INTRODUCTION**

The United States has intervened in this action to address the
constitutionality of Title II of the Americans with Disabilities Act
("ADA"),[^1] Section 504 of the Rehabilitation Act ("Section 504\"),[^2]
and the Individuals with Disabilities Education Act ("IDEA").[^3] In
their motion to dismiss, Defendants argue that the Eleventh Amendment
bars claims under these statutes by private individuals against the
State and that Congress exceeded its authority under § 5 of the
Fourteenth Amendment in abrogating State sovereign immunity under these
laws. In light of the Supreme Court's recent grant of
[certiorari]{.underline} on this issue in the context of the ADA, the
United States requests that the Court hold in abeyance any decision on
Congress' authority under the Fourteenth Amendment to abrogate state
sovereign immunity under each of these statutes challenged on that basis
in the present case. The Supreme Court's decision, however, should not
affect traditional Spending Clause analysis. Because Defendants have
accepted federal funds, the Court may still find that Defendants have
waived their sovereign immunity under the Rehabilitation Act and the
IDEA, and that therefore the Eleventh Amendment does not bar Plaintiffs'
claims under those statutes.

**I. IN LIGHT OF THE SUPREME COURT'S RECENT GRANT OF
[CERTIORARI]{.underline} IN [ALSBROOK]{.underline} AND
[DICKSON]{.underline}, THIS COURT SHOULD HOLD IN ABEYANCE ANY DECISION
AS TO WHETHER CONGRESS PROPERLY ABROGATED STATE SOVEREIGN IMMUNITY UNDER
THE FOURTEENTH AMENDMENT**

In [Seminole Tribe of Fla. v. Florida]{.underline}, the Supreme Court
articulated a two-part test to determine whether Congress has properly
abrogated States\' Eleventh Amendment immunity from suit in federal
court by individuals: "first, whether Congress has unequivocally
expressed its intent to abrogate the immunity; and second, whether
Congress has acted pursuant to a valid exercise of power."
[Seminole]{.underline}, 517 U.S. 44, 55 (1996) (citations, quotations,
and brackets omitted). Defendants concede that the ADA, the
Rehabilitation Act, and IDEA satisfy the first requirement,
[see]{.underline} Defs.' Br. at 27, but challenge Congress' power under
the Fourteenth Amendment to enact these statutes.

After [Seminole]{.underline}, the Supreme Court held in [City of Boerne
v. Flores]{.underline} that, for legislation to be a valid exercise of
Congress' Fourteenth Amendment power, it must be linked to
constitutional violations, and its remedies must be "congruent and
proportional" to the evils sought to be addressed. [Boerne]{.underline},
521 U.S. 507, 520 (1997). The Court explained that the authority to
enforce the Fourteenth Amendment is a broad power to remedy past and
present discrimination and to prevent future discrimination,
[id.]{.underline} at 517-18, and it reaffirmed that Congress can
prohibit activities that themselves are not unconstitutional in
furtherance of its remedial scheme, [id.]{.underline} at 518, 525-27,
532, acknowledging that "the line between measures that remedy or
prevent unconstitutional actions and measures that make a substantive
change in the governing law is not easy to discern, and Congress must
have wide latitude in determining where it lies." [Id.]{.underline} at
519-20; [see also]{.underline} [Kimel v. Florida Bd. of
Regents]{.underline}, 120 S. Ct. 631, 644 (2000); [Florida Prepaid
Postsecondary Educ. Expense Bd. v. College Sav. Bank]{.underline}, 119
S. Ct. 2199, 2206 (1999).

The Third Circuit has yet to address this issue in the context of the
ADA, the Rehabilitation Act, and IDEA.[^4] Applying the
[Seminole]{.underline} and [Boerne]{.underline} standard, however, the
vast majority of federal circuit courts have found the ADA to be
congruent and proportional to the discrimination it seeks to remedy, and
thus a valid exercise of congressional power. [See]{.underline} [Garrett
v. University of Alabama at Birmingham]{.underline}, 193 F.3d 1214, 1218
(11^th^ Cir. 1999), [petition for cert. filed]{.underline} (Jan. 24,
2000); [Dare v. State of Cal.]{.underline}, 191 F.3d 1167, 1176 (9^th^
Cir. 1999); [Martin v. Kansas]{.underline}, 190 F.3d 1120, 1127 (10^th^
Cir. 1999); [Muller v. Costello]{.underline}, 187 F.3d 298, 309-10 (2d
Cir. 1999); [Seaborn v. Florida]{.underline}, 143 F.3d 1405, 1406
(11^th^ Cir. 1998); [Kimel v. State Bd. of Regents]{.underline}, 139
F.3d 1426, 1433, 1442-43 (11^th^ Cir. 1998), [aff'd in part]{.underline}
(as to the Age in Employment Discrimination Act), 120 S. Ct. 631 (2000),
[cert. granted]{.underline} [sub nom.]{.underline} (as to the ADA
issue), [Florida Dep't of Corrections v. Dickson]{.underline}, 2000 WL
46077 (Jan. 21, 2000); [Coolbaugh v. Louisiana]{.underline}, 136 F.3d
430, 438 (5th Cir.), [cert. denied]{.underline}, 119 S. Ct. 58 (1998);
[Clark v. California]{.underline}, 123 F.3d 1267, 1270-71 (9^th^ Cir.
1997), [cert. denied]{.underline}, 118 S. Ct. 2340 (1998); [Crawford v.
Indiana Dep't of Corrections]{.underline}, 115 F.3d 481, 487 (7^th^
Cir.); [see also]{.underline} [Torres v. Puerto Rico Tourism
Co.]{.underline}, 175 F.3d 1, 6 n.7 (1^st^ Cir. 1999) (in dictum).[^5]
Likewise, circuit courts have upheld the Rehabilitation Act's abrogation
of sovereign immunity. [See]{.underline} [Garrett]{.underline}, 193 F.3d
at 1218 (11^th^ Cir.); [Clark]{.underline}, 123 F.3d at 1269 (9^th^
Cir.); [Crawford]{.underline}, 115 F.3d at 483 (7^th^ Cir.). [But
see]{.underline} [Bradley v. Arkansas Dep't of Educ.]{.underline}, 189
F.3d 745, 752, 756 (8^th^ Cir. 1999) (holding that the Rehabilitation
Act and IDEA exceeded Congress' authority under the Fourteenth
Amendment), [reh'g en banc granted in part, opinion vacated in
part]{.underline}, [Jim C. v. Arkansas Dep't of Educ.]{.underline}, 197
F.3d 958 (8^th^ Cir. 1999).

On January 21 and 25, 2000, the United States Supreme Court granted
petitions for [certiorari]{.underline} in two cases to decide whether
Congress' enactment of the ADA was a proper exercise of its authority to
enforce § 5 of the Fourteenth Amendment, and thus whether the ADA's
abrogation of States' sovereign immunity is valid. [See]{.underline}
[Alsbrook v. Arkansas]{.underline}, 2000 WL 63302 (Jan. 25, 2000) (No.
99-423); [Florida Dep't of Corrections v. Dickson]{.underline}, 2000 WL
46077 (Jan. 21, 2000) (No. 98-829). The Court has consolidated the two
cases, will hear oral argument in April 2000, and is expected to issues
its decision by July 2000. The Supreme Court's ruling in
[Dickson]{.underline} and [Alsbrook]{.underline} will likely control
this Court's disposition of the issue of Congress' authority under the
Fourteenth Amendment to allow private suits for monetary damages under
the ADA against States,[^6] and its reasoning may also impact the same
Fourteenth Amendment issue as to the Rehabilitation Act and IDEA.
[See]{.underline}, [e.g.]{.underline}, [Crawford]{.underline}, 115 F.3d
at 483; [McDonald v. Pennsylvania Dep't of Pub. Welfare]{.underline}, 62
F.3d 92, 94-95 (3d Cir. 1995).

The United States therefore respectfully requests that this Court stay
its ruling on the abrogation issue for the ADA, § 504, and IDEA until
the Supreme Court has issued its decision in [Dickson]{.underline} and
[Alsbrook]{.underline}. After such time, the United States requests the
opportunity to file a supplemental brief as to the impact of that
decision on the question of Congress' power to abrogate States'
sovereign immunity under these three statutes.

**II. BECAUSE THE REHABILITATION ACT AND IDEA VALIDLY REQUIRE WAIVER OF
SOVEREIGN IMMUNITY AS A CONDITION OF RECEIVING FEDERAL FUNDS, THE
ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' CLAIMS UNDER THOSE STATUTES,
PURSUANT TO CONGRESS' SPENDING CLAUSE AUTHORITY**

The Supreme Court's expected decision in [Dickson]{.underline} and
[Alsbrook]{.underline} should not affect the Supreme Court's traditional
Spending Clause analysis. Therefore, even without addressing the
question of whether Congress has validly abrogated state sovereign
immunity under its Fourteenth Amendment powers, the Court can and should
find that Defendants have waived their sovereign immunity under the
Rehabilitation Act and IDEA by accepting federal funds,
[see]{.underline} 42 U.S.C. § 2000d-7 (Rehabilitation Act); 42 U.S.C. §
1403 (IDEA), and that therefore the Eleventh Amendment does not bar
Plaintiffs' claims under these two statutes. [See]{.underline},
[e.g.]{.underline}, [Sandoval v. Hagan]{.underline}, 197 F.3d 484, 500
n.15 (11^th^ Cir. 1999) (declining to reach congressional abrogation
claim after holding that State agency waived its sovereign immunity by
accepting federal funds).

It is well settled that under its Spending Clause power Congress may
condition the receipt of federal funds on a waiver of Eleventh Amendment
immunity.[^7] [See]{.underline} [Seminole]{.underline}, 517 U.S. at 65;
[see also]{.underline} [Litman v. George Mason Univ.]{.underline}, 186
F.3d 544, 555 (4^th^ Cir. 1999) (Title IX of the Civil Rights Act is a
valid exercise of Congress' Spending Clause authority), [petition for
cert. filed]{.underline} 68 U.S.L.W. 3263 (Oct. 5, 1999). A State may
"by its participation in the program authorized by Congress . . . in
effect consent\[\] to the abrogation of that immunity." [Edelman v.
Jordan]{.underline}, 415 U.S. 651, 672 (1974); [see also]{.underline}
[Atascadero State Hosp. v. Scanlon]{.underline}, 473 U.S. 234, 238 n.1
(1985) ("A state may effectuate a waiver of its constitutional immunity
by . . . waiving its immunity to suit in the context of a particular
federal program"); [Delaware Dep't of Health & Soc. Servs. v. United
States Dep't of Educ.]{.underline}, 772 F.2d 1123, 1138 (3d Cir. 1985)
(Eleventh Amendment does not insulate States that voluntarily
participate in program to benefit blind vendors). "\[S\]tates are free
to accept or reject the terms and conditions of federal funds much like
any contractual party." [See]{.underline} [Sandoval]{.underline}, 197
F.3d at 494. The Supreme Court recently restated this maxim in [College
Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd.]{.underline}:

> \[W\]e have held . . . that Congress may, in the exercise of its
> spending power, condition its grant of funds to the States upon their
> taking certain actions that Congress could not require them to take,
> and that acceptance of the funds entails an agreement to the actions.
> . . . Congress has no obligation to use its Spending Clause power to
> disburse funds to the States; such funds are gifts.

119 S. Ct. 2219, 2231 (1999).

[Seminole Tribe]{.underline} does not preclude Congress from using its
Spending Clause power to remove a State's Eleventh Amendment immunity.
Although the effect is the same, when Congress acts under the Spending
Clause, it does not [abrogate]{.underline} Eleventh Amendment immunity.
Instead, Congress [conditions]{.underline} the receipt of federal funds
on a [waiver]{.underline} of that immunity by the States themselves. The
Supreme Court has explained that when Congress exercises its Spending
Clause power, there is no constitutional "prohibition on the indirect
achievement of objectives which Congress is not empowered to achieve
directly." [South Dakota v. Dole]{.underline}, 483 U.S. 203, 210 (1987);
[College Sav. Bank]{.underline}, 119 S. Ct. at 2231.[^8] Indeed, the
Court held that even "a perceived Tenth Amendment limitation on
congressional regulation of state affairs did not concomitantly limit
the range of conditions legitimately placed on federal grants."
[Dole]{.underline}, 483 U.S. at 210. Courts have also recognized that,
"in the exercise of its spending power Congress may be more protective
of given minorities than the Equal Protection Clause itself requires."
[Board of Educ. v. Califano]{.underline}, 584 F.2d 576, 588 n.38 (2d
Cir. 1978), [aff'd]{.underline}, [Board of Ed. v. Harris]{.underline},
444 U.S. 130 (1979).

The waiver provision governing the Rehabilitation Act, 42 U.S.C. §
2000d-7, provides that

> A State shall not be immune under the Eleventh Amendment of the
> Constitution . . . 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.

The Supreme Court has characterized this language as "an unambiguous
waiver of the States' Eleventh Amendment immunity." [Lane v.
Pena]{.underline}, 518 U.S. 187, 200 (1996); [see also]{.underline},
[Litman]{.underline}, 186 F.3d at 554 (concluding that "Congress
succeeded in its effort to codify a clear, unambiguous, and unequivocal
condition of waiver of Eleventh Amendment immunity in 42 U.S.C. §
2000d-7(a)(1)"); [Clark]{.underline}, 123 F.3d at 1271 (interpreting
this language to mean that "\[b\]ecause California accepts federal funds
under the Rehabilitation Act, California has waived any immunity under
the Eleventh Amendment"). In [Litman]{.underline}, the Fourth Circuit
explicitly rejected a state defendant's argument that

> the statute "must say something like 'as a condition of receiving
> federal funds under this Act, the States agree to waive their Eleventh
> Amendment immunity.'" The only difference between \[defendant's\]
> proffered language and that employed in § 2000d-7(a)(1) is that the
> former is cast in the affirmative (i.e., "the States agree to waive")
> and the latter in the negative (i.e., "a State shall not be immune").
> But this difference in phrasing is of no constitutional import. Using
> negative rather than affirmative language does not alter the plain
> meaning of § 2000d-7(a)(1)---that is, by accepting Title IX funding
> \[covered by § 2000d-7\] a state agrees to waive its Eleventh
> Amendment immunity.

[Litman]{.underline}, 186 F.3d at 554.

Indeed, § 2000d-7 was a direct response to the Supreme Court's decision
in [Atascadero State Hospital]{.underline}, 473 U.S. at 247, in which
the Court found that in an earlier version of the statute, Congress had
not provided sufficiently clear language to abrogate States' Eleventh
Amendment immunity for Rehabilitation Act claims. [See]{.underline} 131
Cong. Rec. 22,344-22,345 (1985). Section 2000d-7 makes unambiguously
clear that Congress intended the States to be amenable to suit in
federal court under the Rehabilitation Act if they accepted federal
funds. [See]{.underline} [Lane]{.underline}, 518 U.S. at 200
(acknowledging "the care with which Congress responded to our decision
in [Atascadero]{.underline} by crafting an unambiguous waiver of the
States' Eleventh Amendment immunity" in § 2000d-7).

Thus, § 2000d-7 embodies exactly the type of unambiguous condition
discussed in [Atascadero]{.underline}, by putting States on express
notice that part of the "contract" for receiving federal funds was the
requirement that they consent to suit in federal court for alleged
violations of the Rehabilitation Act.[^9] As the Department of Justice
explained to Congress at the time the statute was being considered,
"\[t\]o the extent that the proposed amendment is grounded on
congressional spending powers, \[it\] makes it clear to states that
their receipt of Federal funds constitutes a waiver of their
\[E\]leventh \[A\]mendment immunity." 132 Cong. Rec. 28,624 (1986).
Circuit courts have held that § 2000d-7 "manifests a clear intent to
condition a state's participation on its consent to waive its Eleventh
Amendment immunity." [Litman]{.underline}, 186 F.3d at 555 (4^th^ Cir.);
[Clark]{.underline}, 123 F.3d at 1271 (9^th^ Cir.).

Only one court has cast doubt on the validity of § 2000d-7\'s waiver,
[Bradley]{.underline}, 189 F.3d 745 (8^th^ Cir. 1999), and the Eighth
Circuit [en banc]{.underline} has subsequently vacated those portions of
[Bradley]{.underline} dealing with Spending Clause issues.
[See]{.underline} [Jim C. v. Arkansas Dep't of Educ.]{.underline}, 197
F.3d 958 (8^th^ Cir. 1999) (en banc). [Bradley]{.underline} represented
an unprecedented break from Spending Clause jurisprudence. As the Fourth
Circuit recently noted, "\[n\]o court . . . has ever struck down a
federal statute on grounds that it exceeded the Spending Power."
[Virginia v. Browner]{.underline}, 80 F.3d 869, 881 (4^th^ Cir. 1996),
[cert. denied]{.underline}, 519 U.S. 1090 (1997); [Oklahoma v.
Schweiker]{.underline}, 655 F.2d 401, 406 (D.C. Cir. 1981) ("we have
been unable to uncover any instance in which a court has invalidated a
funding condition"). Among the conditions long upheld as valid Spending
Clause legislation are those that demand that recipients assure that
their programs will not discriminate. Section 504\'s nondiscrimination
requirement is patterned on Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d [et seq.]{.underline}, and Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 [et seq.]{.underline}, which
prohibit race and sex discrimination by programs [^10] that receive
federal funds, respectively.[^11] [School Bd. of Nassau County v.
Arline]{.underline}, 480 U.S. 273, 278 n.2 (1987). Both Title VI and
Title IX have been upheld as valid exercises of Congress' spending
power. [See]{.underline}, [e.g.]{.underline}, [Grove City College v.
Bell]{.underline}, 465 U.S. 555, 575 (1984) (in the context of Title IX,
observing that "Congress is free to attach reasonable and unambiguous
conditions to federal financial assistance that educational institutions
are not obligated to accept"); [Lau v. Nichols]{.underline}, 414 U.S.
563, 569 (1974) (upholding Title VI, noting that "\[t\]he Federal
Government has power to fix the terms on which its money allotments to
the States shall be disbursed. Whatever may be the limits of that power,
they have not been reached here."); [Sandoval]{.underline}, 197 F.3d at
501 (upholding Title VI). These cases stand for the proposition that
Congress has an interest that none of its funds are used to support,
directly or indirectly, programs that discriminate or otherwise make
inaccessible their benefits and service to qualified persons.

[Bradley]{.underline} based its criticism of the Rehabilitation Act on
language from the Supreme Court's recent [College Savings]{.underline}
decision. [See]{.underline} [Bradley]{.underline}, 189 F.3d at 757
(quoting [College Sav. Bank]{.underline}, 119 S. Ct. at 2231). In
[College Savings]{.underline}, the Supreme Court warned that "the
financial inducements offered by Congress might be so coercive as to
pass the point at which pressure turns to compulsion," although [College
Savings]{.underline} did not involve Spending Clause legislation. 119 S.
Ct. at 2231 (internal quotation marks and citations omitted). "The
coercion theory," however, "has been much discussed but infrequently
applied in federal case law, and never in favor of the challenging
party." [Nevada v. Skinner]{.underline}, 884 F.2d 445, 448 (9^th^ Cir.
1989). Even if the coercion theory applied here, the Rehabilitation
Act's conditions imposed on receipt of federal funds clearly would not
constitute coercion as the Supreme Court has interpreted that term.
[See]{.underline}, [e.g.]{.underline}, [Board of Educ. v.
Mergens]{.underline}, 496 U.S. 226, 241 (1990) ("A school district
seeking to escape the statute's obligations could simply forgo federal
funding. Although we do not doubt that in some cases this may be an
unrealistic option, Congress clearly sought to prohibit schools from
discriminating . . . and that obligation is the price a federally funded
school must pay. . . ."); [Paralyzed Veterans of Am.]{.underline}, 477
U.S. at 605 ( "Under . . . § 504, Congress enters into an arrangement in
the nature of a contract with recipients of the funds: the recipient's
acceptance of the funds triggers coverage under the nondiscrimination
provision.").

To the extent [Bradley]{.underline} found the Rehabilitation Act's
conditions coercive because the Act's coverage applies to all programs
and activities that receive federal funds, [see]{.underline} 29 U.S.C. §
794, the Supreme Court has not applied such a nexus requirement in any
Eleventh Amendment waiver case.[^12] Even assuming
[arguendo]{.underline} that a nexus requirement applies,
[Bradley]{.underline}'s holding is based on the erroneous premise that
"§ 504 mandates that \[the state\] waive its Eleventh Amendment immunity
to all claims arising under § 504 if its receives any federal funding."
[Bradley]{.underline}, 189 F.3d at 757. That misreads Section 504\'s
definition of "program or activity." Congress has defined the term
"program or activity" in § 504 to mean, for general governmental
entities, "all of the operations of . . . a department, agency, special
purpose district, or other instrumentality of a State or of a local
government . . . any part of which is extended Federal financial
assistance." 29 U.S.C. § 794(b)(1)(A); 42 U.S.C. § 2000d-4a(1)(A); 20
U.S.C. § 1698(1)(A). In doing so, Congress chose not to require the
entire State to comply if it accepted any federal funds. Instead, as the
plain language of the statute makes clear, Congress determined that, in
general, States should be able to choose on an "agency" or "department"
basis whether to accept federal funds and the attendant obligation to
make their programs and activities nondiscriminatory and accessible.

Reading the statute to require an all-or-nothing choice described in
[Bradley]{.underline} is contrary to the interpretation of every other
court of appeals that has addressed the issue, each of which has
concluded that coverage under this subsection extends only to the
\"agency\" or \"department\" that accepted the federal funds.
[See]{.underline}, [e.g.]{.underline}, [Association of Mexican-American
Educators v. California]{.underline}, 195 F.3d 465, 474-75 (9th Cir.
1999); [Nelson v. Miller]{.underline}, 170 F.3d 641, 653 n.8 (6th Cir.
1999); [O\'Connor v. Davis]{.underline}, 126 F.3d 112, 117 (2d Cir.
1997), [cert. denied]{.underline}, 118 S. Ct. 1048 (1998); [Lightbourn
v. County of El Paso]{.underline}, 118 F.3d 421, 426-427 (5th Cir.
1997), [cert. denied]{.underline}, 118 S. Ct. 700 (1998); [Schroeder v.
City of Chicago]{.underline}, 927 F.2d 957, 962 (7th Cir. 1991). Prior
to the now-vacated panel opinion in Bradley, the Eighth Circuit itself
had recognized that \"\[f\]or State and local governments, only the
department or agency which receives the aid is covered.\" [Klinger v.
Department of Corrections]{.underline}, 107 F.3d 609, 615 (8th Cir.
1997) (quoting S. Rep. No. 64, 100th Cong., 2d Sess. 4 (1987));
[accord]{.underline} [Thomlison v. City of Omaha]{.underline}, 63 F.3d
786, 789 (8th Cir. 1995) (\"Because the definition of program or
activity covers all the operations of a department, here the Public
Safety Department, and part of the Department received federal
assistance, the entire Department is subject to the Rehabilitation
Act.\"). On signing the Rehabilitation Act Amendments of 1986 into law,
President Reagan similarly explained that the Act \"subjects States, as
a condition of their receipt of Federal financial assistance, to suits
for violation of Federal laws prohibiting discrimination on the basis of
handicap, race, age, or sex to the same extent as other public or
private entities.\" 22 Weekly Comp. of Pres. Docs. 1421 (Oct. 27, 1986),
[reprinted in]{.underline} 1986 U.S.C.C.A.N. 3554.

As for the IDEA, its waiver provision, § 1403, provides that

> \(a\) A State shall not be immune under the eleventh amendment to the
> Constitution of the United States from suit in Federal Court for
> violation of this chapter.
>
> \(b\) In a suit against a State for violation 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 the suit against any public entity other than
> a State.

20 U.S.C. § 1403. The Eighth Circuit in [Bradley]{.underline} held that
this provision, read in conjunction with § 1415, "provided a clear,
unambiguous warning of \[Congress'\] 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 from suit in federal court on
claims made under the IDEA." [See]{.underline} [Bradley]{.underline},
189 F.3d at 753. [Cf.]{.underline} [Beth V.]{.underline}, 87 F.3d at 82
(3d Cir.) (noting that the 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, 20 U.S.C. § 1412\"). Furthermore, there can be
no dispute that Defendants have validly waived their sovereign immunity
under IDEA. IDEA's waiver provision has not been invalidated by any
court. [Cf.]{.underline} [Beth V]{.underline}, 87 F.3d at 82 (describing
IDEA "as a model of 'cooperative federalism'").

Thus, both IDEA's and the Rehabilitation Act's waiver provision are
valid, and Defendants have waived their sovereign immunity under these
statutes by accepting federal funds.

**CONCLUSION**

For the foregoing reasons, we respectfully request that this Court hold
in abeyance its decision as to whether the abrogations of State
sovereign immunity in the ADA, the Rehabilitation Act, and IDEA are
valid exercises of Congress' Fourteenth Amendment enforcement power. We
also request, however, that the Court find that Defendants have validly
waived their sovereign immunity for actions alleging discrimination
under the Rehabilitation Act and IDEA. The Court should therefore deny
Defendants' Motion to Dismiss on Eleventh Amendment grounds as to
Plaintiffs' claims under the Rehabilitation Act and IDEA.

Dated: February \_\_\_, 2000

Respectfully Submitted,

Robert J. Cleary

United States Attorney

District of New Jersey

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Michael A. Chagares

Chief, Civil Division

U. S. Attorney's Office

Federal Building

970 Broad Street, 7^th^ Floor

Newark, New Jersey 07102

\(973\) 645-2700

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip Breen, Special Legal Counsel

John A. Russ IV, Trial Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

1425 New York Ave., 4^th^ floor

Washington, D.C. 20035-6738

\(202\) 353-7738

[^1]: ^/^ 42 U.S.C. §§ 12131 [et]{.underline} [seq]{.underline}.

[^2]: ^/^ 29 U.S.C. § 794.

[^3]: ^/^ 20 U.S.C. § 1400 [et seq.]{.underline}

[^4]: ^/^ [Cf.]{.underline} [Wheeling & Lake Erie Ry. Co. v. Public
    Util. Comm'n of Pa.]{.underline}, 141 F.3d 88 (3d Cir. 1998)
    (upholding the abrogation of immunity in an Act designed to prevent
    discriminatory taxation of railroads under the Equal Protection
    Clause), [cert. denied]{.underline}, 120 S. Ct. 323 (1999).

[^5]: ^/^ [But see]{.underline} [Alsbrook v. City of
    Maumelle]{.underline}, 184 F.3d 999 (8^th^ Cir. 1999) (en banc),
    [cert. granted]{.underline}, 2000 WL 63302 (Jan. 25, 2000).
    [Cf.]{.underline} [Brown v. North Carolina Div. of Motor
    Vehicles]{.underline}, 166 F.3d 698, 708 (4^th^ Cir. 1999),
    [petition for cert. filed]{.underline}, 68 U.S.L.W. 3164 (Sept. 8,
    1999) (striking down an ADA regulation as exceeding Congress'
    authority).

[^6]: ^/^ The Eleventh Amendment does not bar private lawsuits seeking
    prospective injunctive relief for ongoing violations of federal law,
    under the doctrine of [Ex parte Young]{.underline}, 209 U.S. 123
    (1908). [See]{.underline} [J.B. ex rel. Hart v. Valdez]{.underline},
    186 F.3d 1280, 1287 (10^th^ Cir. 1999); [Nelson v.
    Miller]{.underline}, 170 F.3d 641, 647 (6^th^ Cir. 1999); [Armstrong
    v. Wilson]{.underline}, 124 F.3d 1019, 1025 (9^th^ Cir. 1997).

[^7]: ^/^ Congress' interest that its funds do not support or further
    discrimination applies across-the-board to all federal financial
    assistance. Congress therefore ensured that Title VI, Title IX, and
    Section 504 (all covered under 42 U.S.C. § 2000d-7\'s waiver
    provision) apply to all federal funding, rather than adding separate
    nondiscrimination provisions in a piecemeal fashion to each grant
    statute. [See]{.underline} 110 Cong. Rec. 6544 (1964) (Sen.
    Humphrey); [id.]{.underline} at 7061-62 (Sen. Pastore);
    [id.]{.underline} at 2468 (Rep. Celler); [id.]{.underline} at 2465
    (Rep. Powell). Certainly there is no distinction of constitutional
    magnitude between a nondiscrimination provision attached to each
    appropriation and a single provision applying to all federal
    spending.

[^8]: ^/^ The [Dole]{.underline} Court upheld Congress' conditioning the
    receipt of federal highway funds on States' increasing the minimum
    drinking age to 21. [Dole]{.underline}, 483 U.S. at 206. The funds
    distributed in [Dole]{.underline}, money to build and maintain
    highways, were at best indirectly related to the imposition of a
    minimum drinking age.

[^9]: ^/^ The Rehabilitation Act is effective only when the State elects
    to receive federal funds. [See]{.underline} [United States Dep't of
    Transport. v. Paralyzed Veterans of Am.]{.underline}, 477 U.S. 597,
    599 (1986); [Beth V. v. Carroll]{.underline}, 87 F.3d 80, 82 (3d
    Cir. 1996). "Requiring States to honor the obligations voluntarily
    assumed as a condition of federal funding . . . simply does not
    intrude on their sovereignty." [Bell v. New Jersey]{.underline}, 461
    U.S. 773, 790 (1983). [See also]{.underline} discussion at 15-18,
    [infra]{.underline}.

[^10]: ^/^ Title IX applies specifically to educational programs.

[^11]: ^/^ "Section 504 \[of the Rehabilitation Act\] expressly
    incorporates Title VI remedies, [see]{.underline} 29 U.S.C. §
    794(a)(2), and consistently has been construed as being similar to
    Title VI for statutory construction purposes."
    [Sandoval]{.underline}, 197 F.3d at 501.

[^12]: ^/^ The case cited by [Bradley]{.underline} for this proposition,
    [New York v. United States]{.underline}, 505 U.S. 144 (1992), did
    not involve an Eleventh Amendment challenge. In [New
    York]{.underline}, a federal funding scheme for radioactive waste
    required the States to take title to radioactive waste unless they
    regulated entities producing such waste according to federal
    standards. The [New York]{.underline} Court imposed a nexus
    requirement under the Tenth Amendment, because Congress' funding
    scheme forced the States to regulate other entities on its behalf.
    The Rehabilitation Act employs no such tactic; its ensures the
    States that are federal funding recipients do not discriminate on
    the basis of disability in their own actions.