IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

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

)

PATRICIA GARRETT, )

) CIVIL ACTION NO.

Plaintiff, )

)

v\. ) 97-AR-0092-S

)

THE BOARD OF TRUSTEES OF )

THE UNIVERSITY OF ALABAMA )

IN BIRMINGHAM, )

)

Defendant, )

)

UNITED STATES OF AMERICA, )

)

Intervenor. )

)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**UNITED STATES' MEMORANDUM OF POINTS AND AUTHORITIES**

**IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION**

**FOR SUMMARY JUDGMENT**

I. [PRELIMINARY STATEMENT]{.underline}

In this action, plaintiff Patricia Garrett alleges that the University
of Alabama discriminated against her by removing her from her position
as director of OB/Gyn/Neonatal Services at defendant's hospital and
transferring her to a nurse manager position at defendant's
convalescence home after she was diagnosed with breast cancer, in
violation of Section 504 of the Rehabilitation Act of 1973, 42 U.S.C
794(a) ("Section 504\"). Defendant has moved for summary judgment
arguing that 1) Congress does not have the authority to condition
receipt of federal financial assistance on waiver of States' immunity to
private suits brought to enforce Section 504; 2) defendant's waiver of
its sovereign immunity was not knowing and voluntary; and 3) there is no
private right of action to enforce Section 504 against a State.[^1]

Defendant's motion must fail. The Eleventh Amendment does not bar
plaintiff's claims under Section 504 because defendant has waived its
sovereign immunity by accepting federal funds. As demonstrated below,
pursuant to the Spending Clause,[^2] Congress validly conditioned
receipt of federal financial assistance on waiver of States' immunity to
private suits brought to enforce Section 504. 42 U.S.C. 2000d-7. By
enacting Section 2000d-7, Congress put state agencies on clear notice
that acceptance of federal financial assistance was conditioned on a
waiver of their Eleventh Amendment immunity to discrimination suits
under Section 504. In accepting federal funds, defendant agreed to these
terms. As the Eleventh Circuit recognized in *Sandoval v. Hagan*, 197
F.3d 484 (11^th^ Cir. 1999) *rev'd on other grounds, Alexander v.
Sandoval,* 532 U.S. 275, Section 2000d-7 is a valid exercise of the
Spending Clause, and by accepting federal funds, a State waives its
sovereign immunity.

II\. [ARGUMENT]{.underline}

A. CONGRESS VALIDLY CONDITIONED FEDERAL FUNDING ON A WAIVER OF ELEVENTH
AMENDMENT IMMUNITY FOR PRIVATE CLAIMS UNDER SECTION 504 OF THE
[REHABILITATION ACT OF 1973]{.underline}

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a),
prohibits discrimination against persons with disabilities under "any
program or activity receiving Federal financial assistance."[^3] Section
2000d-7 of Title 42 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 \[29 U.S.C. 794\], title IX of the Education Amendments of 1972
\* \* \* \[and\] title VI of the Civil Rights Act of 1964."

Section 2000d-7 may be upheld as a valid exercise of Congress's power
under the Spending Clause, Art. I, § 8, Cl. 1, to prescribe conditions
for state agencies that voluntarily accept federal financial assistance.
States are free to waive their Eleventh Amendment immunity. *See College
Sav. Bank v. Florida Prepaid Postsec. Educ. Expense Bd.*, 527 U.S. 666,
674 (1999). And "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 \* \* \*
acceptance of the funds entails an agreement to the actions." *Id*. at
686. Thus, Congress may, and has, conditioned the receipt of federal
funds on defendant's waiver of Eleventh Amendment immunity to Section
504 claims.

> 1\. Section 2000d-7 Is A Clear Statement That Accepting Federal

Financial Assistance Would Constitute A Waiver To Private Suits

[Brought Under Section 504]{.underline}

It is settled in the Eleventh Circuit that Section 2000d-7 is a clear
statement that in accepting federal funds, the State of Alabama is
subject to suits in Federal Court brought under Section 504. *Sandoval,*
197 F.3d 484 at 493-94.[^4] The Eleventh Circuit explained in *Sandoval*
that "\[t\]he provision's plain language manifests an unmistakable
intent to condition federal funds on a state's waiver of sovereign
immunity." *Sandoval*, 197 F.3d at 493. A history of Section 2000d-7
lends context to the Court's decision.

Section 2000d-7 was enacted in response to the Supreme Court's decision
in *Atascadero State Hospital* v. *Scanlon*, 473 U.S. 234 (1985). In
*Atascadero*, the Court held that Congress had not provided sufficiently
clear statutory language to condition federal funding on States' waiver
of Eleventh Amendment immunity for private Section 504 claims against
state entities and reaffirmed that "mere receipt of federal funds" was
insufficient to constitute a waiver. 473 U.S. at 246. But the Court
stated that if a statute "manifest\[ed\] a clear intent to condition
participation in the programs funded under the Act on a State's waiver
of its constitutional immunity," the federal courts would have
jurisdiction over States that accepted federal funds. *Id*. at 247.

Section 2000d-7 makes unambiguously clear that Congress intended to
condition federal funding on States' waiver of Eleventh Amendment
immunity to suit in federal court under Section 504 (and the other
federal non-discrimination statutes tied to federal financial
assistance) if they accepted federal funds.[^5] Any state agency reading
the U.S. Code would have known that after the effective date of Section
2000d-7 it would waive its immunity to suit in federal court for
violations of Section 504 if it accepted federal funds. Section 2000d-7
thus embodies exactly the type of unambiguous condition discussed by the
Court in *Atascadero*, 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 Section 504
for those agencies that received any financial assistance.[^6]

Thus, the Supreme Court, in *Lane* v. *Peña*, 518 U.S. 187, 200 (1996),
acknowledged "the care with which Congress responded to our decision in
*Atascadero* by crafting an unambiguous waiver of the States' Eleventh
Amendment immunity" in Section 2000d-7. The Court of Appeals for this
Circuit also made clear in *Sandoval*, that the "plain language" of 42
U.S.C. 2000d-7 "manifests an unmistakable intent to condition federal
funds on a state's waiver of sovereign immunity." 197 F.3d at 493. Six
other courts of appeals agree with Court of Appeals for the Eleventh
Circuit. *See Litman* v. *George Mason University*, 186 F.3d 544, 554
(4^th^ Cir. 1999), *cert. denied*, 528 U.S. 1181 (2000) ( "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)."); *Douglas* v. *California Dep't of Youth Auth.*, 271
F.3d 812, 820, *opinion amended*, 271 F.3d 910 (9th Cir. 2001), *cert.
denied*, 70 U.S.L.W. 3669 (June 17, 2002)(U.S. No. 01-1546 )(Section
504); *Nihiser* v. *Ohio E.P.A.*, 269 F.3d 626, 628 (6th Cir. 2001)
(Section 504), *cert. denied,* 70 U.S.L.W. 3597 (June 17, 2002)(U.S. No.
01-1357); *Jim C.* v. *Arkansas Dep't of Educ.*, 235 F.3d 1079,
1081-1082 (8th Cir. 2000) (en banc) (Section 504), *cert. denied*, 533
U.S. 949 (2001); *Stanley* v. *Litscher*, 213 F.3d 340, 344 (7th Cir.
2000) (Section 504); *Pederson* v. *Louisiana State Univ.*, 213 F.3d
858, 875-876 (5th Cir. 2000) (Title IX). The text and structure of 42
U.S.C. 2000d-7 makes clear that federal financial assistance is
conditioned on both the nondiscrimination obligation under Section 504
and removal of Eleventh Amendment immunity.

Defendant suggests its waiver was not knowing and voluntary, relying on
an isolated decision in *Garcia* v. *SUNY Health Sciences Center*, 280
F.3d 98, 113 (2d Cir. 2001). Defendant similarly contends there can be
no constructive waiver of its sovereign immunity. *See* Def. Mem at
10-11, 15. The Second Circuit in *Garcia* agreed that Section 2000d-7
"constitutes a clear expression of Congress\'s intent to condition
acceptance of federal funds on a state's waiver of its Eleventh
Amendment immunity." 280 F.3d at 113. And it further agreed that, under
normal circumstances, "the acceptance of funds conditioned on the waiver
might properly reveal a knowing relinquishment of sovereign immunity."
*Id*. at 114, n. 4. However, *Garcia* also held that Title II of the ADA
did not validly abrogate the States' immunity and that the Section 504
waiver was not knowing because the state agency did not "know" in 1995
(the latest point the alleged discrimination in *Garcia* had occurred)
that its waiver of immunity under Section 504 would have a substantial
fiscal effect, rather than simply result in liability substantially
similar to that under Title II. According to the court, since "by all
reasonable appearances state sovereign immunity \[to claims of
disability discrimination under the ADA\] had already been lost" by
virtue of the Title II abrogation, the State "could not have understood
that in \[accepting federal funds\] it was actually abandoning its
sovereign immunity from private damages suits" for the same disability
discrimination under Section 504. *Id*. at 114.

The Second Circuit's conclusion about a knowing waiver is, in our view,
incorrect. It is wrong because it ignores what every state agency did
know from the plain text of Section 2000d-7 since it was enacted in
1986, that acceptance of federal funds constituted a waiver of immunity
to suit for violations of Section 504. Section 504 was not amended or
altered by the enactment of Title I of the ADA in 1990, and it was clear
that plaintiff could sue under either statute*.* *See* 42 U.S.C.
12201(b) of the ADA (preserving existing causes of action). It is thus
untenable to suggest that abrogation for suits under one statute is
relevant to whether an entity waived its immunity to suits brought to
enforce a distinct, albeit substantively similar, statute. *Garcia's*
holding -- that the waiver for Section 504 claims was effective until
Title II went into effect and then lost its effectiveness until some
point in the late 1990's, when a "colorable basis for a State to
suspect" that the abrogation was unconstitutional developed, *see*
*Garcia*, 280 F.3d at 114 n. 4, and has now regained its full
effectiveness -- creates an unprecedented patchwork of effective
coverage. Thus, the "clear intent to condition participation in the
programs funded" required by *Atascadero*, 473 U.S. at 247, *i.e.*, a
clear statement in the text of the statute about the Eleventh Amendment
and non-discrimination statutes tied to federal financial assistance,
assured that defendant knew as a matter of law that it was waiving its
immunity when it applied for and accepted federal financial
assistance.[^7]

> 2\. Congress Has Authority To Condition The Receipt Of Federal
> Financial [Assistance On The State Waiving Its Eleventh Amendment
> Immunity]{.underline}

Congress may condition its spending on a waiver of Eleventh Amendment
immunity. Indeed, in *Alden v. Maine*, 527 U.S. 706, 755 (1999), the
Court cited *South Dakota v. Dole*, 483 U.S. 203 (1987), a case
involving Congress's Spending Clause authority, when it noted that "the
Federal Government \[does not\] lack the authority or means to seek the
States' voluntary consent to private suits." Similarly, in *Florida
Prepaid* the Court reaffirmed the holding of *Petty v.
Tennessee-Missouri Bridge Commission*, 359 U.S. 275 (1959), where the
Court held that Congress could condition the exercise of one of its
Article I powers (there, the approval of interstate compacts) on the
States' agreement to waive their Eleventh Amendment immunity from suit.
*Florida Prepaid*, 527 U.S. at 686. At the same time, the Court
suggested that Congress had the authority under the Spending Clause to
condition the receipt of federal funds on the waiver of immunity.
*Ibid*.; *see also id.* at 678-679 n.2. The Court explained that unlike
Congress's power under the Commerce Clause to regulate "otherwise lawful
activity," Congress's power to authorize interstate compacts and spend
money was the grant of a "gift" on which Congress could place conditions
that a State was free to accept or reject. *Id*. at 687. The Eleventh
Circuit recognized this principle in *Sandoval*, explaining that "under
the Spending Clause power, the federal government may condition a waiver
of state sovereign immunity upon the receipt of federal monies." 197
F.3d at 492.

Defendant asserts that Congress "cannot, pursuant to its Article I
powers, abrogate state sovereign immunity"(relying on *Seminole Tribe of
Florida v. Florida*, 517 U.S. 44 (1996) and *Federal Maritime Commission
v. South Carolina State Ports Authority*, 122 S. Ct. 1864 (2002)).[^8]
*See* Def. Mem. at 3. However, unlike the Commerce Clause power that was
at issue in *Seminole Tribe*, "the Spending Clause power does not
abrogate immunity through unilateral federal action. Rather, States are
free to accept or reject the terms and conditions of federal funds, much
like any contractual power." *Sandoval*, 197 F.3d at 494, citing
*Pennhurst State Sch. & Hosp. v. Halderman*, 451 U.S. 1, 17 (1981)
("legislation enacted pursuant to the spending power is much in the
nature of a contract: in return for federal funds, the States agree to
comply with federally imposed conditions"). Indeed, the Supreme Court in
*Florida Prepaid* expressly distinguished the Spending Clause powers
from other sections of Article I and reaffirmed that pursuant to its
Spending Clause Powers Congress may condition participation in federal
programs on an agreement to take certain actions that Congress otherwise
could not require a State to take. 527 U.S. at 686. *Accord Dole*, 483
U.S. at 207 ("objectives not thought to be within Article I's
'enumerated legislative fields,' may nevertheless be attained through
the use of the spending power and the conditional grant of federal
funds.") *citing United States v. Butler*, 297 U.S. 1, 65 (1936). [^9]

3\. [Section 504 Is A Valid Exercise Of The Spending Power]{.underline}

The Supreme Court in *Dole* identified four limitations on Congress\'s
Spending Power. First, the Spending Clause by its terms requires that
Congress legislate in pursuit of \"the general welfare.\" 483 U.S. at
207. Second, if Congress conditions the States\' receipt of federal
funds, it "'must do so unambiguously \* \* \* , enabling the States to
exercise their choice knowingly, cognizant of the consequence of their
participation.'" *Ibid.* (quoting *Pennhurst*). Third, the Supreme
Court\'s cases \"have suggested (without significant elaboration) that
conditions on federal grants might be illegitimate if they are unrelated
\'to the federal interest in particular national projects or
programs.\"\' 483 U.S. at 207. And fourth, the obligations imposed by
Congress may not induce a governmental recipient to violate any
independent constitutional provisions. *Id*. at 209-211.

As this case comes before this Court, there is no dispute that (1) the
general welfare is served by prohibiting discrimination against persons
with disabilities, *see* *City of*

*Cleburne v. Cleburne Living Ctr.*, 473 U.S. 432, 443-444 (1985)
(discussing Section 504 with approval); *Dole*, 483 U.S. at 207 n.2
(noting substantial judicial deference to Congress on this issue); and
(2) the language of Section 504 makes clear that the obligations it
imposes are a condition on the receipt of federal financial assistance,
*see School Bd. of Nassau County v. Arline*, 480 U.S. 273, 286 n.15
(1987) (contrasting \"the antidiscrimination mandate of § 504\" with the
statute in *Pennhurst*).

Section 504 meets the Dole \"relatedness\" requirement as well. Citing
Justice O'Connor's dissent in *Dole*, defendant contends that
conditioning the receipt of federal funds on a waiver of Eleventh
Amendment immunity goes beyond a condition of how federal funds should
be spent and, as such, impermissibly attempts to regulate. Defendant's
contention cannot be sustained.

Section 504 furthers the federal interest in assuring that no federal
funds are used to support, directly or indirectly, programs that
discriminate or otherwise deny benefits and services on the basis of
disability to qualified persons. Section 504\'s nondiscrimination
requirement is patterned on Title VI and Title IX, which prohibit race
and sex discrimination by \"programs\" that receive federal funds. *See
NCAA v. Smith*, 525 U.S. 459, 466 n.3 (1999); *Arline*, 480 U.S. at 278
n.2. Both Title VI and Title IX have been upheld as valid Spending
Clause legislation. In *Lau v. Nichols*, 414 U.S. 563 (1974), the
Supreme Court held that Title VI, which the Court interpreted to
prohibit a school district from ignoring the disparate impact its
policies had on limited- English proficiency students, was a valid
exercise of the Spending Power. \"The 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.\" 414 U.S. at 569 (citations omitted).***^1^***[^10] The
Court made a similar holding in *Grove City College v. Bell*, 465 U.S.
555 (1984). In *Grove City*, the Court addressed whether Title IX, which
prohibits education programs or activities receiving federal financial
assistance from discriminating on the basis of sex, infringed on the
college\'s First Amendment rights. The Court rejected that claim,
holding that \"Congress is free to attach reasonable and unambiguous
conditions to federal financial assistance that educational institutions
are not obligated to accept.\" *Id*. at 575.

These cases stand for the proposition that Congress has a legitimate
interest in preventing the use of any of its funds to \"encourage\[\],
entrench \[\], subsidize\[\], or result\[\] in,\" *Lau*, 414 U.S. at 569
(internal quotation marks omitted), discrimination against persons
otherwise qualified on the basis of criteria Congress has determined are
irrelevant to the receipt of public services, such as race, gender, and
disability. *See United States v. Louisiana*, 692 F. Supp. 642, 652
(E.D. La. 1988) (three-judge court) (\"\[T\]he condition imposed by
Congress on defendants \[in Title VI\], that they may not discriminate
on the basis of race in any part of the State\'s system of public higher
education, is directly related to one of the main purposes for which
public education funds are expended: equal education opportunities to
all citizens.\" (footnote omitted)). Because this interest extends to
all federal funds, Congress drafted Title VI, Title IX, and Section 504
to apply across-the-board to all federal financial assistance. The
purposes articulated by Congress in enacting Title VI, purposes equally
attributable to Title IX and Section 504, were to avoid the need to
attach nondiscrimination provisions each time a federal assistance
program was before Congress, and to avoid \"piecemeal\" application of
the nondiscrimination requirement if Congress failed to place the
provision in each grant statute. *See* 110 Cong. Rec. 6544 (1964) (Sen.
Humphrey); *id.* at 7061-7062 (Sen. Pastore); *id*. at 2468 (Rep.
Celler); *id.* at 2465 (Rep. Powell).***^1^***[^11]

4\. Eleventh Amendment Is Not An Independent Constitutional Bar

[Under *Dole*]{.underline}

Defendant also argues that under *Dole*, Section 2000d-7\'s condition
that state agencies waive their immunity to private suits in federal
court under Section 504 is \"an independent \[constitutional\] bar to
the conditional grant of federal funds.\" *See* Def. Mem. at 11-13. In
this argument, defendant misreads *Dole*. Section 504 does not \"induce
the States to engage in activities that would themselves be
unconstitutional.\" *Dole*, 483 U.S. at 210. Neither providing
meaningful access to people with disabilities nor waiving sovereign
immunity violates anyone\'s constitutional rights. Defendant incurs
these obligations only because it applies for and receives federal
funds. \"\[T\]he powers of the State are not invaded, since the statute
imposes no obligation \[to accept the funds\] but simply extends an
option which the State is free to accept or reject.\" *Massachusetts v.
Mellon*, 262 U.S. 447, 480 (1923). Also, defendant refers to Article I,
§ 14 of the Alabama Constitution which states "the State of Alabama
shall never be made a defendant in any court of law or equity." However,
the Eleventh Circuit has noted that despite the absolute language of
that provision, Alabama courts have held that the State has no sovereign
immunity to suits arising from contracts or that involve the failure to
comply with non-discretionary duties. *See Harbert Int'l, Inc., v.
James*, 157 F.3d 1271, 1279 (11^th^ Cir. 1998).***^1^***[^12]

Moreover, defendant concedes that the Court in *Dole* held that "the
Twenty-first Amendment did not constitute such an independent bar on the
spending power." Def. Mem. at 12; *Dole*, 483 U.S. at 210-211. The same
principle applies to state sovereign immunity, which is similarly "under
the States' control" and similarly within Congress's ability to
influence "indirectly through its spending power." Indeed, defendant's
suggestion that state sovereign immunity is an "independent
constitutional bar" could be accepted only if it were the case that the
Constitution barred a State from waiving its sovereign immunity--a
proposition that defendant does not expressly adopt and that has no
support in the Supreme Court's Eleventh Amendment jurisprudence.

//

//

//

//

//

//

//

//

//

//

[CONCLUSION]{.underline}

For the foregoing reasons, the Eleventh Amendment does not bar this
lawsuit against defendant Board of Trustees of the University of Alabama
at Birmingham.

Date: June 21, 2002

Respectfully submitted,

John Ashcroft

Attorney General of the United States

Ralph F. Boyd, Jr.

Assistant Attorney General

Civil Rights Division

Alice H. Martin

United States Attorney

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

John Wodatch

Philip L. Breen

Allison Nichol

Harold L. Jackson

California State Bar No. 071325

M. Lucia Blacksher

Louisiana State Bar No. 26605

Disability Rights Section - NYA

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Ave. NW

Washington, D.C. 20530

Telephone: (202) 305-7624

Facsimile: (202) 305-9775

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on June 21, 2002, I served a copy of the foregoing
UNITED STATES' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT upon Defendant's
and Plaintiff's counsel in GARRETT v. THE BOARD OF TRUSTEES OF THE
UNIVERSITY OF ALABAMA IN BIRMINGHAM,Civil Case No. 97-AR-0092-S,by
sending it via first class U.S. Mail, postage pre-paid, to the following
addresses:

> Lisa Huggins
>
> Office of Counsel
>
> University of Alabama System
>
> Administration Building, Suite 820
>
> Birmingham, Alabama 35294-0108

Deborah A. Mattison

GORDON, SILBERMAN, WIGGINS & CHILDS

1400 South Trust Tower

Birmingham, AL 35203

Alice H. Martin, U.S. Attorney

Cindy Simmons, Civil Chief

Office of the U.S. Attorney

Northern District of Alabama

200 Vance Federal Building

1800 Fourth Avenue North

Birmingham, Alabama 35203

Dated this 21st day of June, 2002

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ HAROLD L. JACKSON

Disability Rights Section - NYA

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Ave. NW

Washington, D.C. 20530

[^1]: 1 Defendant's argument concerning a private right of action, *see*
    Defendant's Memorandum Brief in Support of its Motion for Summary
    Judgment ("Def. Mem.") at 16-18, does not implicate the
    jurisdictional issue of waiver of Eleventh Amendment immunity that
    is before the Court. \"It is firmly established in our cases that
    the absence of a valid (as opposed to arguable) cause of action does
    not implicate subject-matter jurisdiction, i.e., the court\'s
    statutory or constitutional power to adjudicate the case.\" *Verizon
    Maryland, Inc. v. Public Service Commission of Maryland*, 122 S.Ct.
    1753, 1758 (2002). In any event defendant's contention has been
    rebuked by the Supreme Court. *Barnes v. Gorman*, No. 01-682, slip
    op. at 3 (U.S. June 17, 2002) ("Both \[Section 202 of the ADA and
    Section 504\] are enforceable through private causes of action" and
    "\* \* \* the remedies for violations of \* \* \* §504 of the
    Rehabilitation Act are coextensive with the remedies available in a
    private cause of action brought under Title VI."); *Alexander v.
    Sandoval*, 532 U.S. 275, 279 (2001) (injunctive relief and damages
    available in Title VI claim against State defendant).

[^2]: 2 Article I, §8, cl. 1 of the United States Constitution provides:

    > The Congress shall have Power 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; but all Duties,
    > Imposts and Excises shall be uniform throughout the United States.

[^3]: 3 Defendant admitted accepting federal financial assistance. *See*
    Defendant's Answer at ¶ 4.

[^4]: 4 *Sandova*l dealt with Title VI of the Civil Rights Act of 1964.
    However the waiver provision at issue was the same provision at
    issue here: 42 U.S.C. 2000d-7.

[^5]: 5 Congress recognized that the holding of *Atascadero* had
    implications for not only Section 504, but also Title VI of the
    Civil Rights Act of 1964 and Title IX of the Education Amendments of
    1972, which prohibit race and sex discrimination in "program\[s\] or
    activit\[ies\] receiving Federal financial assistance." See S. Rep.
    No. 388, 99th Cong., 2d Sess. 28 (1986); 131 Cong. Rec. 22,346
    (1985) (Sen. Cranston); see also *United States Dep't of Transp.* v.
    *Paralyzed Veterans of Am.*, 477 U.S. 597, 605 (1986) ("Under \* \*
    \* Title VI, Title IX, and § 504, Congress enters into an
    arrangement in the nature of a contract with the recipients of the
    funds: the recipient's acceptance of the funds triggers coverage
    under the nondiscrimination provision.").

[^6]: 6 The Department of Justice explained to Congress while the
    legislation was under consideration, "\[t\]o the extent that the
    proposed amendment is grounded on congressional spending powers,
    \[it\] makes it clear to \[S\]tates that their receipt of Federal
    funds constitutes a waiver of their \[E\]leventh \[A\]mendment
    immunity." 132 Cong. Rec. 28,624 (1986). On signing the bill 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 any other public or private entities." 22 Weekly
    Comp. Pres. Doc. 1421 (Oct. 27, 1986), *reprinted in* 1986
    U.S.C.C.A.N. 3554.

[^7]: 7 Also, regulations promulgated by the Department of Education to
    implement Section 504 provide that "\[a\]n applicant for Federal
    financial assistance \* \* \* shall submit an assurance, on a form
    specified the by Assistant Secretary, that the program or activity
    will be operated in compliance with this part." 34 C.F.R.104.5.
    Defendant was required to sign these assurances as a condition to
    receiving federal funds. Therefore, any suggestion that defendant
    was unaware that it continued to be subject to the conditions in
    Section 504 after the ADA was enacted is belied by its repeated
    affirmation of compliance with Section 504.

[^8]: 8 Contrary to defendant's suggestion, the Supreme Court's analysis
    in *Federal Maritime Commission* is not applicable to the issue at
    hand. In *Federal Maritime Commission*, the Court determined whether
    adjudication of claims before the FMC through the use of
    administrative law judges and trial-like proceedings was similar
    enough to an Article III Federal court proceeding that the State
    should be protected by its Eleventh Amendment immunity. 122 S. Ct.
    at 1871. The federal statute involved in *Federal Maritime
    Commission*, the Shipping Act of 1984, prohibits discrimination by
    carriers and terminal operators and allows the FMC to regulate any
    agreement involving oceanborne foreign commerce. 46 U.S.C. app. §§
    1701(1), 1703(a) & (b)). The Shipping Act is a regulatory act that
    does not condition the receipt of federal financial assistance upon
    waiver of a state's Eleventh Amendment immunity as does Section 504.
    Therefore, defendant's reliance upon this decision is misplaced.

[^9]: 9 Defendant asserts, without any authority, that Congress cannot
    utilize the Spending Power to force a state to do what it cannot do
    pursuant to the Fourteenth Amendment. Def. Mem. at 4. Defendant is
    wrong. The Court in *Florida Prepaid* specifically held that
    pursuant to its Spending Clause Powers Congress *may* condition
    participation in federal programs on an agreement to take certain
    actions that Congress otherwise could not require a State to take.
    527 U.S. at 686.

[^10]: 0***^10^*** In *Alexander v. Sandoval*, 532 U.S. at 285, the
    Court noted that it has \"rejected *Lau*\'s interpretation of § 601
    \[of the Civil Rights Act of 1964, 42 U.S.C. 2000d\] as reaching
    beyond intentional discrimination.\" The Court did not cast doubt on
    the Spending Clause holding in *Lau*.

[^11]: 1***^1^*** For other Supreme Court cases upholding as valid
    exercises of the Spending Clause conditions not tied to a particular
    spending program, *see Oklahoma v. United States Civil Serv.
    Comm\'n*, 330 U.S. 127 (1947) (upholding an across-the-board
    requirement in the Hatch Act that no state employee whose principal
    employment was in connection with any activity that was financed in
    whole or in part by the United States could take \"any active part
    in political management\"); *Salinas v. United States*, 522 U.S. 52,
    60-61 (1997) (upholding federal bribery statute covering entities
    receiving more than \$10,000 in federal funds).

[^12]: 2***^12^*** *See, too, Lapides v. Board of Regents*, 122 S.Ct.
    1640, 1645 (2002)(State waived its Eleventh Amendment immunity by
    litigation conduct even when State law prohibited waiver).