# Dellmuth v. Muth/Dissent Brennan

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Scalia
* Dissenting Opinions Brennan Blackmun Stevens
Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, dissenting.
I respectfully dissent from the Court's holding that the Commonwealth of Pennsylvania is immune from suit in the federal courts for violations of the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq. (1982 ed. and Supp. V). For reasons I have set out elsewhere, see Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 509-511, 107 S.Ct. 2941, 2964-2966, 97 L.Ed.2d 389 (1987) (BRENNAN, J., dissenting); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 258-302, 105 S.Ct. 3142, 3155-3178, 87 L.Ed.2d 171 (1985) (BRENNAN, J., dissenting), I would accept respondent Muth's invitation to overrule Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), as that case has been interpreted in this Court's recent decisions. Even if I did not hold that view, I would nevertheless affirm the decision of the Court of Appeals on the ground that Congress in the EHA abrogated state immunity.
* Applying the standard method for ascertaining congressional intent, I conclude, with the Court of Appeals, that "[t]he text of EHA and its legislative history leave no doubt that Congress intended to abrogate the 11th amendment immunity of the states." Muth v. Central Bucks School Dist., 839 F.2d 113, 128 (CA3 1988).
The EHA imposes substantial obligations on the States, as well as on local education authorities, as might be expected in an Act authorizing federal financial aid "to assist States and localities to provide for the education of all handicapped children." 20 U.S.C. § 1400(c). To be eligible for federal assistance, a State must develop a plan for the education of all handicapped children and establish the procedural safeguards mandated in § 1415. §§ 1412(2), (5). It is the state educational agency that is "responsible for assuring that the requirements of [EHA Subchapter II, dealing with federal assistance for education of handicapped children] are carried out and that all educational programs for handicapped children within the State, including all such programs administered by any other State or local agency, [are] under the general supervision of the persons responsible for educational programs for handicapped children in the State educational agency." § 1412(6). See Smith v. Robinson, 468 U.S. 992, 1010, 104 S.Ct. 3457, 3467, 82 L.Ed 2d 746 (1984) ("The responsibility for providing the required education remains on the States"); Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 182-183, 102 S.Ct. 3034, 3038-3039, 73 L.Ed.2d 690 (1982).
In accord with this overarching responsibility placed upon the States, the EHA contemplates that in a number of situations where a local education authority cannot or will not provide appropriate educational services to the handicapped, the State will do so directly. See 20 U.S.C. § 1411(c)(4)(A)(ii) (State to assure provision of services where local authority barred from receiving federal funds because it has failed to submit a proper application); § 1414(d) (State "to provide special education and related services directly to handicapped children residing in the area served by [a] local educational agency" that is unable or unwilling to establish or maintain programs, or to be merged with other local agencies to enable it to do so, or that has "handicapped children who can best be served by a regional or State center"). And in any event, where a local education authority would be entitled to less than $7,500 in EHA funding for a fiscal year, the State may not distribute the funds, but must use the funds itself to ensure provision of appropriate services. §§ 1411(c)(4)(A)(i), (c)(4)(B). Moreover, a State may choose to administer up to 25 percent of its federal funding itself, rather than distributing these funds to local education authorities, and use such funds to provide direct services to the handicapped. §§ 1411(c)(1), (c)(2).
"[T]he EHA confers upon disabled students an enforceable substantive right to public education in participating States and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act." Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988) (emphasis added; citation omitted). See also Smith v. Robinson, supra, at 1010, 104 S.Ct., at 3467. Thus, § 1415(e)(2) provides that "any party aggrieved by the findings and decision [made in an administrative process] shall have the right to bring a civil action . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." This provision makes no distinction between civil actions based upon the type of relief sought and hence plainly contemplates tuition-reimbursement actions. See School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In light of the States' pervasive role under the EHA, and the clarity with which the statute imposes both procedural and substantive obligations on the States, I have no trouble in inferring from the text of the EHA that "Congress intended that the state should be named as an opposing party, if not the sole party, to [a] proceeding" brought under § 1415(e)(2), whatever remedy is sought, and that Congress thereby abrogated Eleventh Amendment immunity from suit in federal court. David D. v. Dartmouth School Comm., 775 F.2d 411, 422 (CA1 1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986). Indeed, in those situations where a State has elected to provide educational services to the handicapped directly, or where under the EHA it is required to provide direct services, the State would appear to be the only proper defendant in a federal action to enforce EHA rights.
This solely textually based interpretation of the EHA is supported by the statute's legislative history. Senator Williams, a primary author of the EHA, explained to Congress that, under the Act,
"it should be clear that a parent or guardian may present a complaint alleging that a State or local educational agency has refused to provide services to which a child may be entitled or alleging that a State or local educational agency has erroneously classified a child as a handicapped child." 121 Cong.Rec. 37415 (1975) (emphasis added).
In addition, he emphasized that "any party aggrieved by the findings and decision rendered in the due process hearing o[r] the State educational agency review of such hearing shall have the right to bring a civil action with respect to the original complaint," id., at 37416 (emphasis added), that is, with respect to the administrative complaint, which of course may allege EHA violations by the State. The text and legislative history of the EHA thus make it unmistakably clear that Congress there intended to abrogate state immunity from suit.
The Court does not seem to disagree with this analysis of actual congressional intent. Even without benefit of reference to the legislative history that confirms the obvious interpretation of the text and makes Congress' purpose undeniably clear-history spurned by the Court because it has devised in this case a novel rule that "[l]egislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment," ante, at 230-the Court is able to
"recognize that the EHA's frequent reference to the States, and its delineation of the States' important role in securing an appropriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging violations of the EHA. This statutory structure lends force to the inference that the States were intended to be subject to damages actions for violations of the EHA." Ante, at 232.
Nevertheless, although Congress did intend to abrogate the States' immunity from suit, the Court refuses to give effect to this intention because it was not, in the Court's view, "unequivocal and textual." Ante, at 230.
I dispute the Court's conclusion that the text of the EHA is equivocal. To my mind, immunity is "unequivocally" textually abrogated when state amenability to suit is the logical inference from the language and structure of the text. Cf. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-1361, 39 L.Ed.2d 662 (1974) (a clear declaration of a State's consent to suit in federal court does not require " 'express language,' " but may be found in " 'overwhelming implications from the text [that] leave no room for any other reasonable construction,' " quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). The Court reaches the conclusion it does only because it requires more than an unequivocal text. In doing so, the Court is far removed from any real concern to discern a "clear and manifest" statement of congressional intent, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), which is all that the Court has otherwise looked for when inquiring into the meaning of congressional action, even "[i]n traditionally sensitive areas, such as legislation affecting the federal balance," United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).
Were the Court in fact concerned with Congress' intent it could not have adopted the strict drafting regulations it devises today, ruling out resort to legislative history and apparently also barring inferential reasoning from text and structure. The Court's justification for such a rule is that abrogation of immunity "upsets 'the fundamental constitutional balance between the Federal Government and the States,' . . . placing considerable strain on '[t]he principles of federalism that inform Eleventh Amendment doctrine,' " and that a "stringent test" is necessary "[t]o temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure." Ante, at 227-228. I maintain that the Court makes one very basic error here, for "[t]here simply is no constitutional principle of state sovereign immunity." Atascadero, 473 U.S., at 259, 105 S.Ct., at 3156 (BRENNAN, J., dissenting). But quite apart from that, the Court has never explained why it is that the constitutional principle it has created should require a novel approach to ascertaining congressional intent. As I said in Atascadero, "special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress; no reason has been advanced why ordinary canons of statutory construction would be inadequate to ascertain the intent of Congress." Id., at 254, 105 S.Ct., at 3153. I entirely fail to see, for example, why the "clear and manifest purpose of Congress" to pre-empt under Article VI "the historic police powers of the States," Rice, supra, at 230, 67 S.Ct., at 1152, may be found in so many and various ways, while the Court in the Eleventh Amendment context insists on setting up ever-tighter drafting regulations that Congress must have followed (though Congress could not have been aware of such requirements when it acted) in order to abrogate immunity. A genuine concern to identify Congress' purpose would lead the Court to consider both the logical inferences to be drawn from the text and structure of the EHA, cf. Edelman v. Jordan, supra, at 673, 94 S.Ct., at 1360-1361, and the statute's legislative history, see Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 283-285, 93 S.Ct. 1614, 1617-1618, 36 L.Ed.2d 251 (1973) (examining legislative history in order to determine whether Congress abrogated Eleventh Amendment immunity), in deciding whether Congress intended to subject States to suit in federal court.
Though the special and strict drafting regulations the Court has now foisted on Congr §§ are unjustifiable, still worse is the Court's retroactive application of these new rules. It would be one thing to tell Congress how in the future the Court will measure Congress' intent. That at least would ensure that Congress and this Court were operating under the same rules at the same time. But it makes no sense whatsoever to test congressional intent using a set of interpretative rules that Congress could not conceivably have foreseen at the time it acted-rules altogether different from, and much more stringent than, those with which Congress, reasonably relying upon this Court's opinions, believed itself to be working. See Atascadero, supra, at 255, n. 7, 105 S.Ct., at 3153-3154, n. 7 (BRENNAN, J., dissenting). The effect of retroactively applying the Court's peculiar rule will be to override congressional intent to abrogate immunity, though such intent was absolutely clear under principles of statutory interpretation established at the time of enactment. Retroactive application of new drafting regulations in such circumstances is simply unprincipled. Cf. Welch, 483 U.S., at 496, 107 S.Ct., at 2958 (SCALIA, J., concurring in part and concurring in judgment) (where Congress has enacted statutes based on an assumption reasonably derived from our cases, "[e]ven if we were now to find that assumption to have been wrong, we could not, in reason, interpret the statutes as though the assumption never existed").
Congress has already had cause to complain of the Court's changing its interpretative rules in midcourse. After the Court held in Atascadero that § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, contained no "unmistakable language" abrogating Eleventh Amendment immunity, 473 U.S., at 243, 105 S.Ct., at 3147, Congress in 1986 enacted an amendment to the Act providing:
"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 [enumerated provisions of the Rehabilitation Act] or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance." 42 U.S.C. § 2000d-7(a)(1) (1982 ed., Supp. IV).
Congress enacted this provision, the Senate Conference Report tells us, because "[t]he Supreme Court's decision [in Atascadero] misinterpreted congressional intent. Such a gap in Section 504 coverage was never intended. It would be inequitable for Section 504 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 in issue." S.Conf.Rep. No. 99-388, pp. 27-28 (1986). See also 132 Cong.Rec. 28623 (1986) (amendment "eliminate[s] the court-made barrier to effectuating congressional intent that the holding in the Atascadero case so unwisely has raised") (Sen. Cranston, a principal author of § 504 of the 1973 Act). Had the Court followed the usual rules for determining legislative intent, as Congress in 1973 had every reason to expect it would, the Court could not have fallen into this error. See Atascadero, 473 U.S., at 248-252, 105 S.Ct., at 3150-3152 (BRENNAN, J., dissenting) (examining the text, structure, and legislative history of § 504 to conclude that Congress intended that the States be amenable to suit in federal court).
It is perfectly clear that again today the Court ignores Congress' actual intent to abrogate state immunity-an intent that is even plainer here than in the case of § 504, which lacked the EHA's frequent reference to the obligations of States-instead resorting to an interpretative standard that Congress could have anticipated only with the aid of a particularly effective crystal ball. When § 1415 was enacted in its present form in 1975, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Employees v. Missouri Dept. of Public Health and Welfare, supra, established that this Court would consider legislative history and ake inferences from text and structure in determining whether Congress intended to abrogate Eleventh Amendment immunity. Indeed, in Quern v. Jordan, 440 U.S. 332, 342-345, 99 S.Ct. 1139, 1145-1147, 59 L.Ed.2d 358 (1979), the Court evidently remained of the view that legislative history might be taken into account. Cf. Hutto v. Finney, 437 U.S. 678, 693-694, 98 S.Ct. 2565, 2574-2575, 57 L.Ed.2d 522 (1978). And later still, in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984), the Court still was requiring only "an unequivocal expression of congressional intent," and citing cases in support-Edelman and Quern-that discuss legislative history in assessing whether Congress intended to abrogate immunity. Obviously, there was no rule in 1975 of the sort the Court has devised in this case, and I fail to understand what theory it is that justifies the Court now gauging the 94th Congress' intent by using such a rule.
Though I would hold that Pennsylvania is not immune from suit in federal court for breaches of its obligations under the EHA, I find it unnecessary to go on to consider the second question upon which certiorari was granted: whether the Court of Appeals erred in ruling that Pennsylvania's secretary of education is precluded from deciding special education administrative appeals under § 1415(c) because he is an employee of the Commonwealth. There was an alternative ground for the Court of Appeals' judgment against Pennsylvania-that because of the secretary's remand to a hearing officer following respondent's administrative appeal, respondent was deprived of the timely "final" judgment to which he was entitled under 20 U.S.C. § 1415(e) and 34 CFR § 300.512 (1988). 839 F.2d, at 124-125. Petitioner's predecessor did not seek review of the Court of Appeals' decision on this alternative ground, which appears adequate to support the judgment below, and no purpose would be served by our considering whether the secretary's participation in the appeal was a violation of the EHA's procedural requirements. I would thus affirm the judgment below.

## Notes

* ↑ Moreover, it is not even clear that in those situations where the State is the only proper defendant, an action could always be brought against the State even in state court; for in Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2308-2310, 105 L.Ed.2d 45 (1989), the Court seems to suggest that the very same rule of interpretation it applies here to decide whether Eleventh Amendment immunity is abrogated is also to be used to determi e whether a federal statute requires a State to allow itself to be sued in state court. See id., at 76, 109 S.Ct., at 2312 (BRENNAN, J., dissenting). If the EHA does not guarantee that the State can be sued somewhere, then our previous statements that the statute provides enforceable rights are a mockery.
* ↑ The view that Congress believed it had abrogated state immunity in the EHA is confirmed by the legislative history of the Handicapped Children's Protection Act of 1985. Congress complained that "[c]ongressional intent was ignored by the U.S. Supreme Court when . . . it handed down its decision in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)," where the Court held that " 'the EHA repealed the availability of sections 504 [of the Rehabilitation Act of 1973] and 1983 [of Title 42] to individuals seeking a free appropriate public education,' " so that such litigants could no longer obtain attorney's fees. H.R.Rep. No. 99-296, p. 4 (1985) (quoting Smith supra, at 1030, 104 S.Ct., at 3477-3478) (BRENNAN, J., dissenting). To correct this error, Congress enacted an amendment, codified at 20 U.S.C. § 1415(e)(4) (1982 ed., Supp. V), providing for the award of attorney's fees under the EHA. The statement in the House Report on this amendment that "[i]n some actions or proceedings in which the parents or guardian prevail, more than one local or State agency may be named as a respondent," and that in such cases, "it is expected that the court will apportion the award of attorneys' fees and other expense based on the relative culpability of the agencies," H.R.Rep. No. 99-296, at 6, clearly demonstrates a belief that Congress had abrogated Eleventh Amendment immunity in the EHA.
* ↑ I can only express amazement at the Court's statement that "a comparison of the language in the [Rehabilitation Act] amendments with the language the EHA serves only to underscore the difference in the two statutes," ante, at 229, as if the omission from the EHA of the Rehabilitation Act amendments' provision that "[a] State shall not be immune under the Eleventh Amendment" actually tells us something about Congress' intent when it enacted the EHA. The 1986 amendment was a response to Atascadero, tailored to overrule a decision that had misinterpreted Congress' intent in the Rehabilitation Act of 1973 to abrogate state immunity. If Congress' reaction to Atascadero tells us anything, it is that Congress prior to that decision believed it could effectively express its intent to abrogate immunity without resorting to the degree of textual clarity the Court demands in this case.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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