* Circuit Judge of the 6 TH Circuit, sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

March 24, 2003

Charles R. Fulbruge III

Clerk REVISED APRIL 9, 2003

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 01-31026

_______________________

TRAVIS PACE

Plaintiff - Appellant

versus

THE BOGALUSA CITY SCHOOL BOARD; LOUISIANA STATE BOARD OF

ELEMENTARY AND SECONDARY EDUCATION; THE LOUISIANA

DEPARTMENT OF EDUCATION; THE STATE OF LOUISIANA,

Defendants - Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________________________________________________

Before JONES, SMITH, and SILER, * Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Travis Pace appeals the district court’s

dismissal of his claims brought under the In dividuals with

Disabilities Education Act and the grant of the defendants’ motions

for summary judgment on his clai ms brought under Title II of the1 The hearing officer made findings with regard to the Bogalusa

City Schools System. In federal court, Pace brought suit against

the Bogalusa City School Board. For all practical purposes in this

case the two entities are the same and will be referred to as

“BCSB.”

2 Americans with Disabilities Act and § 504 of the Rehabilitation

Act. We affirm the district court’s judgment for the Bogalusa City

School Boar d. We also hold that the State of Louisiana, the

Louisiana Department of Education, and the Louisiana State Board of

Elementary and Secondary Education (collectively “State

defendants”) are entitled to sovereign immunity from Pace’s claims

under the Eleventh Amendment.

I. BACKGROUND

In 1994, at the age of fifteen, Travis Pace (Pace) was

enrolled at Bogalusa High School. He is developmentally delayed,

c onfined to a wheelchair, and suffers from cerebral palsy and

bladder incontinence. In July 1997, Pace’s mother requested a due

process hearing under the Individuals with Disabilities Education

Act (IDEA), 20 U.S.C. § 1400, et seq., as she believed that Pace

was denied a “free appropriate public education” (FAPE) due to a

lack of handicap accessible facilities at Bogalusa High School and

deficiencies in Pace’s “individualized education programs” (IEPs).

The hearing off icer found that the Bogalusa City Schools System 1

provided Pa ce with a FAPE in compliance with the IDEA, and the

State Level Review Panel (SLRP) affirmed the hearing of ficer’s

decision.2 We do not consider Pace’s § 1983 claim and state law claims because he has not briefed them

on appeal

. L &A Contracting Co. v. S. Concrete Servs., Inc.

, 17 F.3d

106, 113 (5 th Cir. 1994); F.R.A.P. 28(a)(9)(A).

3 In September 1997, Pace filed a complaint with the Office

for Civil Rights of the Department of Education (OCR ), alleging

violations of § 504 of the Rehabilitation Act (§ 504), 29 U.S.C.

§ 794(a), and Title II of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12132. The OCR and the BCSB resolved

allegations that the BCSB operated services, programs, and

activities that were physically ina ccessible to or unusable by

individuals with disabilities by entering into a voluntary written

agreement un der which the BCSB would identify accessibility

barriers and the OCR would oversee the development of a compliance

plan.

In March 1999, Pace filed suit in federal district

court, seeking damages and injunctive relief against the BCSB, the

Louisiana State Board of Elementa ry and Secondary Education, the

Louisiana Depar tment of Education, and the State of Louisiana,

alleging violations of the IDEA, the ADA, § 504 of the

Rehabilitation Act, 42 U.S.C. § 1983, and various state statutes. 2

The district court bifurcated Pace’s IDEA and non-IDEA claims. In

separate orders, it affirmed the SLRP decision by dismissing Pace’s

IDEA claims, then granted the defendants’ motions for summary

judgment on Pace’s non-IDEA claims. Pace appeals both decisions.3 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.

4 An individual seeking solely prospective relief may also sue

a state official in his official capacity under Ex parte Young

, 209

U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). In this case,

however, Pace has not named any state officials as defendants.

4 II. DISCUSSION

A. State Sovereign Immunity

Before addressing the merits of Pace’s claims, we must

determine whether state sovereign immunity bars his claims against

the State defendants. The Supreme Court has interpreted the

Eleventh Amendment to prohibit suits against a state by its own

citizens as well as by citizens of another state or foreign state. 3

See

, e.g.

, Kimel v. Fla. Bd. of Regents

, 528 U.S. 62, 72-73, 120 S.

Ct. 631, 640, 145 L. Ed. 2d 522, 535 (2000). There are only two

exceptions to this longstanding rule. C oll. Sav. Bank v. Fla.

Prepaid Post Secondary Educ. Expense Bd.

, 527 U.S. 666, 670, 119 S.

Ct. 2219, 2223 (1999). 4 First, Congress may abrogate state

sovereign immunity pursuant to § 5 of the Fourteenth Amendment,

w hich grants Congress the power to enforce the substantiv e

guarantees of the amendment through appropriate legislation. Id.

Second, a state may waive its sovereign immunity by consenting to

suit. I d. (citing Clark v. Barnard

, 108 U.S. 436, 447-48, 2 S. Ct.5 42 U.S.C. § 12202 of the ADA provides:

A State shall not be immune under the eleventh amendment

5 878, 883, 27 L. Ed. 780, 784-85 (1883)). At issue in this case is

whether Pace’s claims under the ADA, § 504 of the Rehabilitation

Act, and the IDEA fall within either of these exceptions.

1. Abrogation of state sovereign immunity through § 5 of the

Fourteenth Amendment

Pace’s ADA claims agai nst the State defendants are

foreclosed by this court’s recent decision in Reic kenbacker v.

Foster

, 274 F.3d 974 (5 th Cir. 2 001). R eickenbacker held that

Congress did not properly exercise its Fourteenth Amen dment § 5

power to abrogate state sovereign immunity against claims brought

under Title II of the ADA and § 504 of the Rehabilitation Act. To

validly abrogate s tate sovereign immunity through § 5 of the

Fourteenth Amendment, Congress must (1) unequivocally express its

intent to abrogate state sovereign immunity, Kimel

, 528 U.S. at 73,

120 S. Ct. at 640, 145 L. Ed. 2d at 535; (2) identify a pattern of

unconstitutional action by the states, Bd. of Trs. of the Univ. of

Ala. v. Garrett

, 531 U.S. 356, 368, 121 S. Ct. 955, 964, 148 L. Ed.

2d 866, 880 (2001); and ( 3) create rights and remedies that are

congruent and proportional to the injury, City of Boerne v. Flores

,

521 U.S. 507, 520, 117 S. Ct. 2157, 2164, 138 L. Ed. 2d 624, 638

(1997). In R eickenbacker

, this court concluded that although

Congress clearly expresses the intent to abrogate state sovereign

immunity in both Acts, 5 it failed to identify a history and patternto 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

exten t as such remedies are available for such a

violation in an action against any pub lic or private

entity other than a State.

42 U.S.C. § 2000d-7(a)(1) provides:

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 5 04 of the

Rehabilitation Act of 1973 [29 U.S.C.A. § 794], title IX

of the Education Amendments of 1972 [20 U.S.C.A. § 1681

et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A.

§ 6101 et seq.], title VI of the Civil Rights Act of 1964

[42 U.S.C.A. § 2000d et seq.], or the provisions of any

other Federal statute prohibiting discrimination by

recipients of Federal financial assistance.

6 20 U.S.C. § 1403(a) provides:

In general. A State shall not be immune under the

ele venth amendment to the Constitution of the United

States from suit in Federal court for a violation of this

chapter.

6 of unconstitutional discrimination by t he states against the

disabled and imposed accommodation obligations on the states that

exceed constitutional boundaries. R eickenbacker

, 274 F.3d at 982-

83.

Similarly, the IDEA does not validly abrogate the State

defendants’ state sovereign immunity. Like the ADA and § 504 of

the Rehabilitation Act, the IDEA contains an express statement of

intent to abroga te state sovereign immunity, 6 but in enacting the

IDEA, Congress did not find that any disparate treatment of7 Although the primary purpose of the IDEA is to make a FA P E

available to all disabled children, 20 U .S.C. § 1400(d)(1)(A),

Congress also desired to “ensure equal protection of the law”

through the IDEA, id. § 1400(c)(6); Crawford v. Pittman , 708 F.2d

1028, 1036 (5 th Cir. 1983) (The IDEA “involves both Congress' power

to legislate under the spending clause and to assure equal

protection of the laws to all alike under s ection five of the

fourteenth amendment.”). Congress’s findings regarding the

educational needs of children with disabilities and t he lack of

services within the public school system are set forth in 20 U.S.C.

§ 1400(c).

7 students with disabilities resulted from unconstitutional state

action. 7 20 U.S.C. § 1400(c). A nd even if Congress had identified

constitutional transgressions by the states that it sought to

remedy through the IDEA, the IDEA requirements, like the ADA and

§ 504 requirements, exceed constitution al boundaries. The IDEA,

for example, requ ires the construction of new facilities and the

alteration of existing facilities to comply with the same

guidelines and standards used to determine ADA compliance, 20

U.S.C. § 1404(b), and t his court has previously held that the ADA’s

accommodation obligation “far exceeds that imposed by the

Constitution,” Reickenbacker

, 274 F.3d at 983. “In many instances,

programs rationally related to a legitima te state interest--and

thus constitutional under [ City of ] Cleburne [ v. Clebur ne Living

Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)]–would be

struck down as failing to satisfy the IDEA’s requ irement that

students with disabilities receiv e a ‘free appropriate public

education.’” B radley v. Ark. Dep’t of Educ.

, 189 F.3d 745, 752 (8 th8 In Reickenbacker

, this court speci fically reserved the

question whether states waive their sovereign immunity under § 504

of the Rehabilitation Act by accepting federal funds.

Reickenbacker

, 274 F.3d at 983. The conditional waiver argument

does not apply to the ADA because the ADA is a purely prescriptive

statute that does not in any way condition the receipt of federal

funds on compliance with the Act or waiver of state sovereign

i mmunity. Title II of the ADA applies to public entities, as

defined in 42 U.S.C. § 12131, whether they receive federal funds or

not. Although 42 U.S.C. § 2000d-7, enacted as part of the

Rehabilitation Act Amendments of 1986, states, “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 . . .

the provi sions of any other Federal statute prohibiting

discrimination by recipients of Federal financial assistance,” it

does not condition the receipt of federal funds on a state’s waiver

of sovereign immunity under the ADA; the ADA contains its own

abrogation provision in 42 U.S.C. § 12202, and according to a

fundamental canon of statutory construction, the provision of a

specific act controls over the general provision of a nother act

absent clear legislative intent to the contrary. E hm v. Nat’l R.R.

Passenger Corp. , 732 F.2d 1250, 1253 (5 th 1984).

8 Cir. 1999), vacated on other grounds sub nom. by Jim C. v. United

States , 235 F.3d 1079 (8 th Cir. 2000) (en banc).

2. Waiver of Eleventh Amendment sovereign immunity

Although Congress did not validly exercise its Fourteenth

Amendment § 5 power to abrogate states’ sovereign i mmunity under

the statutes at issue here, it may have validly conditioned the

states’ receipt of federal funds upon their waiving sovereign

immunity against claims brought under § 504 of the Rehabilitation

Act and the IDEA, statutes promulgated pursuant to the spending

power. 8 “Incident to [the spending] power [set forth in Article I,

Section 8 of the United States Constitution], Congress may attach

conditions on the receipt of federal funds . . . .” South Dakota9

v. Dole

, 483 U.S. 203, 206, 107 S. Ct. 2793, 2795-96, 97 L. Ed. 2d

171, 178 (198 7). In dicta, the Supreme Court has stated that

Congress may require states to waive their sovereign immunity as a

condition for receiving federal funds. Coll. Sav. Bank , 527 U.S.

at 686-87, 119 S. Ct. at 2 231, 144 L. Ed. 2d at 623; A lden v.

Maine

, 527 U.S. 706, 755, 119 S. Ct. 2240, 2267, 144 L. Ed. 2d 636,

679 (1999). To do so, Congress must “manifest[] a clear intent to

condition participation in the programs funded under the [relevant]

Act on a State’s consent to waive its constitutional immunity.”

Atascadero S tate Hosp. v. Scanlon

, 473 U.S. 234, 247, 105 S. Ct.

3142, 3149-50, 87 L. Ed. 2d 171, 183 (1985).

In 1985, the Supreme Court held that § 504 of the

Rehabilitation Act did not contain the unequivocal statutory

language necessary to abrogate state sovereign immunity through § 5

of the Fourteenth Amendment and also held th at the Act fell far

short of manifesting the required clear intent to validly condition

a state’s receipt of federal funds on waiver of its sovereign

immunity. I d. In response to A tascadero

, Congress enacted 42

U.S.C. § 2000d-7, supra n.5. This court has held that in the

context of Title IX, 42 U.S.C. § 20 00d-7 clearly, unambiguously,

and unequivocally conditions a state’s receipt of federal

educational funds on its waiver of sovereign immunity. P ederson v.

La. State Univ.

, 213 F.3d 858, 876 (5 th Cir. 2000). Today we extend9 See, e.g.

, Koslow v. Pennsylvania

, 302 F.3d 161, 170 (3d Cir.

2002); Robinson v. Kansas

, 295 F.3d 1183, 1189-90 (10 th Cir. 2002);

Garcia , 280 F.3d at 113; Nihiser v. Ohio Envtl. Prot. Agency , 269

F .3d 626, 628 (6 th Cir. 2001), reh’g denied

, 2001 U.S. App. LEX I S

10 that portion of the Pederson holding to § 504 of the Rehabilitation

Act as well.

We reject the state’s argument that the Supreme Court’s

d ecision in Garrett implicitly overruled Pederson

. Although

§ 2000d-7 and 42 U.S.C. § 12202 of the ADA contain nearly identical

language, supra n.5, the Supreme Court’s interpretation of 42

U.S.C. § 12202 in Garrett as an invalid abrogation clause does not

necessarily mean that § 2000d-7 must also be viewed solely as an

abrogation clause and not as a conditional waiv er provision.

Congress enacted § 504 of the Rehabilitation Act pursuant to its

authority under the Spending Clause and clearly conditioned the

receipt of federal funds on compliance with the Act’s provisions.

The ADA, on the other hand, is a purely prescriptive statute that

does not in any way condition the receipt of federal funds on

compliance with the ADA or waiver of state sovereign immunity.

Thus, while § 2000d-7 and 42 U.S. C. § 12202 are identical for

purposes of § 5 of the Fourteenth Amendment, § 2000d-7 may also be

viewed as a conditional waiver provision enacted pursuant to

Congress’s spending power. Garcia v. S.U.N.Y. Health Scis. Ctr.

,

280 F.3d 98, 113 (2d Cir. 2001); Stanley v. Litscher

, 213 F.3d 340,

344 (7 t h Cir. 2000). A number of other circuits have already so

held. 926424, cert. denied

, 122 S. Ct. 2588 (2002); Douglas v. Cal. Dep’t

of Youth Auth.

, 271 F.3d 812, 820-21 (9 th Cir. 2001), reh’g en banc

denied , 285 F.3d 1226 (2002); Jim C. , 235 F.3d at 1080

.

11 That § 2000d-7 authorizes a conditional waiver does not,

however, equate with Loui siana’s having waived its sovereign

immunity by accepting federal funds under the Rehabilitation Act.

As the Supreme Court has stated:

There is a fundamental difference betwee n 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

suits brought by individuals. That is very far from

concluding that the State made an “altogether voluntary”

decision to waive its immunity.

Coll. Sav. Bank

, 527 U.S. at 680-81, 119 S. Ct. at 2228, 144 L. Ed.

2d at 619. An effective waiver of a state’s sovereign immunity is

the “intentional relinquishment or abandonment of a known right or

privilege.” C oll. Sav. Bank

, 527 U.S. at 682, 119 S. Ct. at 2229,

144 L. Ed. 2d at 620 (quoting Johnson v. Zerbst

, 304 U.S. 458, 464,

58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938))(emphasis added).

There is no suggestion in College Savings Bank that the

preconditions for a state’s waiver of sovereign immunity differ

depending on the constituti onal provision under which a federal

statute was enacted, and indeed, any such distinction makes no

sense.10 Although the Supreme Court’s decision in Garrett

, which preceded Reickenbac ker , may

have put states on notice that they retained sovereign immunity against claims brought under Title

II of the ADA or § 504 of the Rehabilitation Act

, the relevant time period during which the State

defendants accepted federal funds in this case--1996 to 1998--occurred before Garrett was decided.

In Garrett

, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign

immunit y pursuant to § 5 of the Fourteenth Amendment because Congress did not identify a history

and pattern of unconstituti o nal employment discrimination b y the states against the disabled and

because Title I’s accommodation duty far exceeds what is constitutionally required.

11 Because Title II of the ADA and § 504 of the Rehabilitation

Act offer virtually identical protections, the abrogation analysis

with regard to the two statutes is the same. R eickenbacker

, 274

F.3d at 977 n.17 ; see also Garcia

, 280 F.3d at 114; Hoekstra v.

Indep. Sch. Dist. , 103 F.3d 624, 626 (8 th Cir. 1996).

12 Prior to Reickenbacker

, 10 the State defendants had little

reason to doubt the validity of Congress’s asserted abrogation of

state sovereign immunity under § 504 of the Rehabilitation Act or

Title II of the ADA. 11 B elieving that the acts validly abrogated

their sovereign immunity, the State def endants did not and could

not know that they retained any sovereign immunity to waive by

accepting conditioned federal funds. In Garcia

, supra

, the Second

Circuit held that although § 2000d-7 expressed Congress’s intent to

condition acceptance of federal funds on a stat e’s waiver of

sovereign immunity, New York did not waive its sovereign immunity

against § 504 claims by accepting federal funds from 1993 to 1995.

The court reasoned that at the time New York accepted conditioned

funds, Title II of the ADA was reasonably understood to abrogate

sovereign immunity under Congress’s Commerce Clause authority.

Garcia

, 280 F.3d at 114. Likewise, though the Louisiana defendants

accepted federal funds after Seminole Tribe v. Florid a , 517 U.S.12 The title of 20 U.S.C. § 1403, “Abrogation of state sovereign immunit y,” does not limit the

provision to being only an abrogation provision . “[H]eadings and ti tl es are not m eant to take the

place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide

or a synopsis.

. . . [T]h ey canno t undo or limit that which the text makes plain.” B hd. of R.R.

Trainmen v. Baltimore & Ohio R.R. Co. , 331 U.S. 519, 528-29, 67 S. Ct. 1387, 1392, 91 L. Ed.

1646, 1652 (1947). Despite the fact that the title of § 1403 uses the term “abrogation,” 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 immunit y. B radley

, 189 F.3d at 753 (“When it enacted §§ 1403 and 1415,

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 immunit y from

suit in federal court on claims made under the IDEA.”).

Furthermore, the fact that Congress enacted § 1403 in response to D ellmuth v. Muth

, 491

13 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), and City of Boerne

– where the Supreme Court explained and then delineated Congress’s

power to abrogate state sovereign immunity only through § 5 of the

Fourteenth Amendment – they cannot be deemed to have anticipated,

three to five years before the fact, the Court’s decision in

Garrett and this court’s decision in Reickenbacker

, e specially

given this court’s decision in Coolbaugh v. Louisiana

, 136 F.3d 430

(5 th Cir. 1998) (holding that the ADA validly abrogated state

sovereign immunity as a n exercise of Fourteenth Amendment § 5

powers), overruled by Reickenbacker

, 274 F.3d 974 (5 th Cir. 2001).

The Louisiana defendants’ actions were voluntary, but they did not

manifest a knowing waiver of that which they could not know they

had the power to waive.

Similarly, although 20 U.S.C. § 1403 of the IDEA, supra

n.6, constitutes a clear expression of Congress’s intent to

condition accep tance of federal funds on a state’s waiver of

sovereign immunity, 1 2 Bradley

, 189 F.3d at 753; Bd. of Educ. v.U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989), which held that an earlier version of the IDEA

d id not evince an unmistakably clear intent to abrogate state sovereign immunit y, does not limit

§ 1403 to being solely an abrogation provision and not a conditional waiver provision. Rather, the

legislative history indicates that Congress may have intended a waiver of state sovereign immunity,

despite its employment of the term abrogation. S ee H.R. Rep. No. 101-544, at 12 (1990), reprinted

in 1990 U.S.C.C.A.N. 1723, 1734. In the original House Report, a section entitled “Waiver of State

Sovereign Immunit y” indicates that Dellmuth misinterpreted Congressional intent and suggests that

§ 1403 was enacted because it would be “inequitable to deprive beneficiaries under the statute the

opportuni ty to bring suit in federal court while requiring the state to conform to federal standards as

a prerequisite for federal funds.” Marie O. v. Edgar , 131 F.3d 610, 618 n.15 (7 th Cir. 1997).

13 See, e.g.

, Koslow

, 302 F.3d at 170; Robinson

, 295 F.3d at

1189-90 ; Nihiser

, 269 F.3d at 628 ; Douglas

, 271 F.3d at 820-21 ; Jim

C.

, 235 F.3d at 1080; Stanley , 213 F.3d at 344

.

14 See, e.g.

, Bradley , 189 F.3d at 753; Kelly E. , 207 F.3d at 935

.

14 Kelly E.

, 207 F.3d 931, 935 (7 th Cir. 1999), the State defendants

in this case did not knowingly waive their immunity by accepting

federal IDEA funds during the 19 96-97 and 1997-98 school years.

Prior to September 1998, no circuit court had held that § 1403 of

the IDEA did not validly abrogate state sovereign immun ity, and

this circuit did not hold so until today. Under the reasonable

belief that the IDEA validly abrogated their sovereign immunity,

the State defendants did not know that they retained any sovereign

immunity to waive by accepting federal IDEA fun ds during the

relevant time period.

The contrary conclusions of other circuits on the

question of waiver under § 504 of the Rehabilitation Act 13 and the

IDEA 14 tend to conflate the voluntariness and knowingness aspects

of waiver. The Second Circuit, however, correctly reasoned that15 This decision represents a Pyrrhic victory, to the extent that after Garrett , the state

defendants could knowi ngly waive their immunity because they could then reasonably have

anticipated the abilit

y to prese rve sovereign immunity by declining federal funds under the

Rehabilitation and IDEA statutes.

15 [t]hese cases are unpersuasive because they focus exclusively

on whether Congress clearly expr essed its intention to

condition waiver on the receipt of funds and whether the state

in fact received the funds. None of these cases considered

whether the sta te, in accepting the funds, believed it was

actually relinquishing its right to sovereign immunity so as

to make the consent meaningful as the Supreme Court required

in College Savings Bank , 527 U.S. at 682.

Garcia , 280 F.3d at 115 n.5; s ee also Douglas v. Cal. Dep’t of

Youth Auth. , 285 F.3d 1226, 1228 (9 th Cir. 2002) (O’Scannlain, J.,

dissenting from denial of reh’g en banc) (“Whether Congress clearly

required that a State waive its immunity before accepting federal

funds (the first inquiry) is not the same thing, however, as

whether the State clearly declared its knowing waiver (the second

inquiry).”). We therefore conclude that Pace’s claims brought

under Title II of the ADA, § 504 of the Rehabilitation Act, and the

IDEA are barred against the State defendants in this case by state

sovereign immunity. 15

B. Pace’s IDEA claims

The district court decision regarding Pace’s IDEA claims

is a “mixed question of fact and law that is reviewed de novo

, but

the underlying fact-findings, ‘such as find ings that a disabled

student obtained educational benefits under an IEP, are reviewed

for clear error.’” H ouston Indep. Sch. Dist. v. Bobby R.

, 200 F.3d

341, 347 (5 th Cir. 2000) (quoting Cypress-Fair banks Indep. Sch.16

Dist. v. Michael F.

, 118 F.3d 245, 252 (5 th Cir. 1997)). We agree

with the district court that Pace’s IDEA claims were properly ruled

on in the state administrative proceedings and that no procedural

flaws infect them.

The IDEA requires states and local educational agencies

that receive federal IDEA funds to make a FAPE available to all

children with disabilities between the ages of three and tw entyone. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). The appellees

contend that Pace’s IDEA claims are moot because he is now 23 years

old and no longer attends Bogalusa High School. Although a

plaintiff beyond the statutory age of entitlement has no right to

seek injunctive relief requiring compliance with the IDEA, Honig v.

Doe

, 484 U.S. 305, 318, 108 S. Ct. 592, 601, 98 L. Ed. 2d 686, 703

(1988), he may seek compensation for violations of statutory rights

that occurred while he was entitled to them. Pihl v. Mass. Dep’t

of Educ.

, 9 F.3d 184, 189 (1 st Cir. 1993); Lester H. v. Gilhool

, 916

F.2d 865, 872 (3d Cir. 1990). Because compensatory education is an

available remedy for individuals over the age of 21 who were denied

a FAPE when they were cover ed by the IDEA, Pihl

, 9 F.3d at 185;

Lester H.

, 916 F.2d at 873; see also Frazier v. F airhaven Sch.

Comm.

, 276 F.3d 52, 63 (1 st C ir. 2002) (compensatory education is

an available remedy after graduation), we turn to the merits of

Pace’s IDEA claims.

The IDEA imposes extensive requirements on participating

states and local agencies to safeguard the disabled child’s right17

to a FAPE. 20 U.S.C. §§ 1414, 1415. The primary safeguard is the

IEP, Honig

, 484 U.S. at 311, 108 S. Ct. at 597, 98 L. Ed. 2d at

699, a written statement prepared by a representative of the local

school district, the disabled child’s teachers and parents, and,

whenever appropriate, the child, 20 U.S.C. § 1414(d). The IEP sets

forth, inter alia, the child’s pres ent educational performance,

annual and short-term goals, and educational and related services

that will be provided for the child to meet the stated objectives,

id.

, thereby tailoring the FAPE to the particular needs of the

child, Cypress-Fairbanks Indep. Sch. Dist. , 118 F.3d at 247

.

The FAPE described in an IEP “need not be the best

possible one, nor one that will maximize the child’s educational

potential; rather, it need only be an edu cation that is

specifically designed to meet the child’s unique needs, supported

by services that will permit him ‘to benefit’ from the

instruction.” I d. at 247-48 (citing Bd. of Educ. v. Rowley , 458

U.S. 176, 188-89, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690, 701

(1982)). To determine whether a FAPE was available to Pace, the

court must consider (1) whether the BCSB complied wit h the

procedu ral requirements of the IDEA and (2) whether Pace’s IEPs

were reasonably calculated to enable him to receiv e educational

benefits. R owley

, 458 U.S. at 206-07, 102 S. Ct. at 3051, 73 L.

Ed. 2d at 712.

Regarding the first prong o f the inquiry, adequate

procedural compliance with IDEA requirements will assure, in most16 Under the IDEA, Pace’s IEP must include a statement of

transition services that focuses on his course of study and that

includes, when appropriate, a statement of interagency

responsibilities. 20 U.S.C. § 1414(d)(1)(A)(vii). The IDEA

defines transition services as:

[A] coordinated set of activities for a student with a

disability that--

18 cases, that the dis abled child’s right to a FAPE has been met.

Buser v. Corpus Christi Indep. Sch. Dist. , 51 F.3d 490, 493 (5 t h

Cir. 1995). Failure to comply procedurally with the IDEA may alone

warrant finding that the defendant failed to provide the plaintiff

with a FAPE, id. , but technical deviations will not render an IEP

invalid, Burilovi ch v. Bd. of Educ. , 208 F.3d 560, 566 (6 t h Cir.

2000). In this case, the BCSB adequately complied with the

procedural requirements of the Act. Pace asserts that his 1996 and

1997 IEPs do not comply with IDEA requirements because they lack a

stateme nt of goals and evaluation procedures. This is wrong.

Pace’s 1996 and 1997 IEPs list numerous goals related to English,

language arts, social studies, math, and his development of motor

and vocational skills. Although an evaluation method is not listed

for every single goal, the IEPs state that Pace’s progress will be

measured by teacher-made tests, teacher observation, report cards,

student handouts, and Pace’s work folder.

Pace next con tends that the BCSB failed to comply with

the procedural requirements of the IDEA because it did not provide

him with transition services and did not invite other agencies to

his transition plan meetings. 16 The record contradicts this claim.A) is designed within an outcome-oriented process,

which promotes movement from school to post-school

activities, including post-secondary education,

vocational training, integrated employment (including

supported employment), continuing and adult education,

adult services, independent living, or community

participation;

(B) is bas ed upon the individual student's needs,

taking into account the student's preferences and

interests; and

(C) includes instruction, related serv ices,

community experiences, the development of employment and

other post-school adult living objectives, and, when

appropriate, acquisition of daily living skills and

functional vocational evaluation.

20 U.S.C. § 1401(30).

19 Pace’s 1996 and 1997 IEPs include Individual Transition Plans

detailing desired adult outcomes, school action steps, and family

action step s for various areas of need such as postsecondary

education, employment, living arrangements, homemaking,

financial/income, advocacy/legal, community resources, recreation

and leisure, tran sportation, and relationships. Further, Pace’s

IEP facilitator contacted the Office of Citizens with Developmental

Disabilities and the Louisiana Rehabilitation Services Department

to assist in providing Pace with transition services. The BCSB

also complied with the IDEA’s procedural re quirements in other

respects, allowing Pace’s mother to provide meaningful input into

decisions affecting his education and to raise objections. The

BCSB participated in review of IDEA compliance at a due process

hearing.20 Regarding the second prong of the Rowley inqu iry, this

court “set forth four factors that serve as an indication of

whether an IEP is reasonably cal culated to provide a meaningful

educational benefit under the IDEA. These factors are whether (1)

the program is individualized on the basis of the student’s

assessment and performance; (2) the program is administered in the

least restrictive environment; (3) the services are provided in a

coordinated and collaborative manner by the key ‘stakeholders’; and

(4) positive academic and non-academic benefits are demonstrated.”

Houston Indep. Sch . Dist. , 200 F.3d at 347-48 (quoting C ypressFairbanks , 118 F.3d at 253).

Pace’s IEPs easily s a tisfied these factors and were

reasonably calculated to provide him with meaningful ed ucational

benefits. First, Pace’s IEPs were individualized on the basis of

his assessment and performance, reflecting both personal needs and

goals. Pace contends that he was denied a FAPE because he was not

provided with a computer tailored to assist his special needs, but

his 1996 IEP states that he would use a computer to develop certain

skills, and a computer was later placed in his classroom.

Moreover, the hearing officer found that Pace chose to use a

typewriter instead of a computer during the 1996-9 7 and 1997-98

school years.17 20 U.S.C. § 1412(a)(5)(A) provides:

In general. To the maximum extent appropriate, children

with disabilities, including children in public or

private institutions or other care facilities, are

educated with children who are not disabled, and special

classes, separate schooling, or other removal of children

with disabilities from the regular educational

environment occurs only when the nature or severity of

the disability of a child is such that education in

regular classes with the use of suppleme ntary aids and

services cannot be achieved satisfactorily.

21 Second, Pace was educated in the least restrictive

environment. 17 He attended his normally assigned school and was

mainstreamed with his peers as m uch as possible. In 1996, Pace

received homebound services only because his wheelchair was broken

and he could not attend school while it was being repaired.

Testimony at the due process hearing indicates that Pace otherwise

had no problems traversing the campus and attending his cla sses.

Scheduled aides as well as an on-call aide were available to help

Pace use the bathroom, and teachers helped him use the elevator and

open doors. Furthermore, Pace’s IEP facilitator testified at the

due process hearing that Bogalusa High School constructed two new

ramps, modifi ed the elevator, and paved the old handicap parking

area; it also added handicap signs, a curb extension to the

school’s front driveway, handicap parking in front of the school,

and a handicap accessible water fountain to accommodate Pace.

Third, the key “stakeholders” provided services to Pace

in a coordinated and collaborative manner. Pace’s regular and

special education teachers, social worker, physical therapist,18 In his appeal brief, Pace also argues that the BCSB denied

him a FAPE by failing to provide him with a personal aide. Because

Pace did not raise this argument before the district court, he has

waived it on appeal. Lifemark Hosps., Inc. v. Liljeberg Enters.,

22 occupational therapist, adaptive physical education teacher,

p rincipal, IEP facilitator, and attorney attended his 1997 IEP

meeting. Representatives from the Office of Citizens with

Developmental Disabilities and the Louisiana Rehabilitation

Services Department were contacted and informed of Pace’s needs.

Fou rth, Pace received both positive academic and nonacademic benefi ts from his educational program. Pace’s 1997

reevaluation report states that he was meeting his IEP goals and

had improved since the previous year. A comparison of his 1993 and

1996 California Achievement Test scores shows that he rai sed his

grade point level in language expression, language m e chanics,

vocabulary, mathematics computation, mathematics concepts, and

study skills; although he did not raise his grade level in social

studies, science, comprehension, and spelling, “it is not necessary

for [him] to improve in every area to obtain an educational benefit

from his IEP.” H ouston Indep. Sch. Dist.

, 200 F.3d at 350.

Physically and socially he improved in flexibility, mobility, and

trunk strength as well as in his ability to form friendships with

teachers and peers. Because the BCSB adequately complied with the

procedural requirements of the IDEA and reasonably formulated

Pace’s IEPs to afford him educational benefits, we agree with the

district court that Pace was not denied a FAPE. 18Inc. , 304 F.3d 410, 427 n.29 (5 t h Cir. 2002). Nevertheless, the

record shows that scheduled aides as well as an on-call aide were

available to assist Pace.

19 20 U.S.C. § 1415(l) provides:

Rule of construction. Nothing in this chapter shall be

construed to restrict or limit the rights, procedu res,

and remedies available under the Constitution, the

A mericans with Disabilities Act of 1990 [42 U.S. C.A. §

12101 et seq.], title V of the Rehabilitation Act of 1973

[29 U.S.C.A. § 791 et seq.], or other Federal laws

protecting the rights of children with disabilities,

e xcept that before the filing of a civil action under

such laws seeking relief that is also available under

this subchapter, the procedures under subsections (f) and

(g) of this section shall be exhausted to the same extent

as would be required had the action been brought under

this subchapter.

23 C. Pace’s non-IDEA claims

The district court granted the defendants’ motion s for

summary judgment on Pace’ s non-IDEA claims, concluding that they

were precluded by the IDEA proceedings. The grant of summary

judgment is rev iewed de novo and may be affirmed on any ground

raised below and suppor ted by the record. M cGruder v. Will

, 204

F.3d 220, 222 (5 th Cir. 2000). Summary judgment is proper if the

record, viewed in the light most favorable to the non-moving party,

shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. H ugh

Symons Group v. Motorola, Inc.

, 292 F.3d 466, 468 (5 th Cir. 2002).

Although an IDEA plaintiff can assert claims under other

statutes, including the ADA and § 504 of the Rehabilitation Act, 20

U.S.C. § 1415(l); 19 Angela L. v. Pasade na Indep. Sch. Dist. , 9182 0 After carefully comparing Pace’s ADA and IDEA claims, we

conclude that the only ADA claims that were not considered in

24 F.2d 1188, 1193 n.3 (5 th Cir. 1990), we agree with the Sixth,

Eighth, and Tenth Circuits that when an administrative decision “is

upheld on judicial review under IDEA, principles of issue and claim

preclusion may properly be applied to shor t -circuit redundant

claims under other laws.” I ndep. Sch. Dist. No. 283 v. S.D. , 88

F.3d 556, 562 (8 th Cir. 1996); see also Burilovich v. Bd. of Educ.

,

208 F.3d 560 (6 th Cir. 2000) (dismissing ADA, Rehabilitation Act,

and state law claims because the plaintiff was offered a FAPE under

the IDEA); Urban v. Jefferson County Sch. Dist. R-1 , 89 F.3d 720,

728 (10 th Cir. 1996) (recognizing the similarity between the

substantive and procedural frameworks of the IDEA and § 504 and

concluding that if a disabled child is not entitled to a

neighborhood placement under the IDEA, he is not entitled to such

placement under § 504).

Pace and the Unit ed States as amicus curiae argue that

the district court impro perly precluded Pace’s non-IDEA claims.

Although the United States appe ars to concede that preclusion is

proper when IDEA and non-IDEA claims are factually and legally

indistinct from each other, it argues that Pace’s IDEA and ADA

claims are based on different legal theories because Pace’s IDEA

claims focus on whether he received meaningful educational benefits

from his IEPs while his ADA claims address the accessibility of

Bogalusa High School. 20 Pace and the United States seem to ignorePace’s IDEA proceedings are not properly in federal court. Pace

and the United States argue that Pace’s IDEA proceedings should not

preclude his ADA claims because the district court did not consider

wheth er the school’s designation and installation of certain

“accessible” facilities, such as the new ramps and handicap parking

spaces, satisfy the standards set forth in the ADA and its

implementin g regulations for new construction and alteration to

e xisting facilities. Although IDEA plaintiffs can bring claims

under other statutes, such as the ADA, they must first exhaust

administrative remedies with regard to their claim if they are

seeking relief that is also available under the IDEA. 20 U.S.C. §

1415(l). In this case, Pace is seeking relief through his ADA

claims that is available under the IDEA. The IDEA requires new

construction and alteration of existing facilities to comply with

the requirements of either the A mericans with Disabilities Act

Accessibility Guidelines for Buildings and Facilities (appendix A

to 28 C.F.R. part 36) or the Uniform Federal Accessibility

Standards (appendix A to 41 C.F.R. part 101-19.6), the same

guidelines and standards used to determine compliance with Title II

of the ADA. 20 U.S.C. § 1404(b); 28 C.F.R. § 35.151(c). Because

Pace has not exhausted administrative remedies with regard to these

claims, they are not properly before this court. Furthermore,

Pace’s ADA claim for injunctive relief is moot because he no longer

attends Bogalusa High School, see Filardi v. Loyola Univ. , No. 97

C 1814, 1998 U.S. Dist. LEXIS 3008, at *11-12 (N.D. Ill. Mar. 12,

1998), and his claim for damages fails because there is no evidence

in the record that the defendants i n tentionally discriminated

against him, Delano-Pyle v. Victoria County

, 302 F.3d 567 (5 th Cir.

2002). Rather, the BCSB bent over backward to furnish

accommodations for Pace.

25 the fact that Pace’s IDEA proceeding focused heavily on the

accessibility of Bogalusa High School. In fact, when Pace’s mother

i nitially requested a due process hearing under the IDEA, she

primarily expressed concern regarding the lack of handicap

accessible facilities at Bogalusa High School and listed among her

concerns the bathroom facilities and elevator as well as a lack of

aides, ramps, handicap accessible doors, and first floor classes

for the disabled. The hearing officer, the SLRP, the district

court, and this court have all determined that Pace was not denied21 Although Marvin H. only stated the standard with regard to §

504, this circuit has he ld that because of similarities between

Title II of the ADA and § 504, “[j]urisprudence interpreting either

section is applicable to both.” H ainze v. Richards

, 207 F.3d 795,

799 (5 th Cir. 2000); see also Hoekstra v. Indep. Sch. Dist. , 103

F.3d 624, 626 (8 th Ci r. 1996) (recognizing that the court has

“consistently applied § 504 case law to ADA cases”).

26 a FAPE because of accessibility concerns. W e therefore conclud e

that because Pace has been given thorough access to Bogalusa High

School for purposes of complying with the IDEA’s FAPE requirement,

he has not been injured for purposes of asserting technical

violations of the ADA regarding the architectural features of the

facilities.

Pace also argues that his non-IDEA claims were improperly

dismissed because his IDEA proceeding s did not determine whether

the BCSB discriminated against him in violation of the ADA and

§ 504 of the Rehabilitation Act. To maintain a cause of action

under the ADA or § 504 in this circuit, Pace must show that the

BCSB “ refused to provide reasonable accommod ations for [him] to

receive the full benefits o f the school program.” M arvin H. v.

Austin Indep. Sch. Dist.

, 714 F.2d 1348 , 1356 (5 t h Cir. 1983). 21

Because Pace, wit h the assistance and accommodations provided by

the defendants, received meaningful benefits from a FAPE, we cannot

conclude that the BCSB refused to provide reasonable accommodations

to Pace in violation of the ADA and § 504.27 Rather, the BCSB provided Pace with reasonable

accommodations that comply with both ADA and § 504 standards. ADA

and § 504 regulations state that program accessibility compliance

regarding existing facilities can be achieved through “the

assignment of aides” or “any other methods that result in making

its services, programs, or activiti es readily accessible to and

usable by individuals with disabilities. A public entity is not

required to make structural changes i n existing facilities where

other methods are effective in achieving compliance with this

section.” 28 C.F.R. § 35.150(b)(1); 34 C.F.R. § 104.22(b).

The record shows that scheduled aides as well as an oncall aide were available to help Pace use the bathroom, and

teachers helped Pace use the elevator and open doors. With this

help, Pace did not have any problems getting around the school and

attending his classes. T herefore, even if Pace’s ADA and § 504

claims we re not precluded by Pace’s IDEA proceeding, summary

judgment would still be proper because th e defendants provided

reasonable accommodations for Pace through the provision of aides

and assistance that allowed him to receive the full benefits of his

school program.

III. CONCLUSION

State sovereign immunity bars Pace’s claims against the

State defendants. We therefore vacate the district court’s grant

of the State defendants’ motion for summary judgment and remand28

with instructions to dismiss Pace’s cla ims against the State

defendants for lack of ju risdiction. We affirm the district

court’s dismissal of Pace’s IDEA claims against the BCSB as well as

the grant of the BCSB’s motion for summary judgment on Pace’s nonIDEA claims.

AFFIRMED in part, VACATED in part, and REMANDED

.