United States Court of Appeals

Fifth Circuit



## FILED

November 28, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-31198

_____________________

WENDY RENEE BENNETT-NELSON; JOY MARIE BOYKIN,

Plaintiffs - Appellants,

versus

LOUISIANA BOARD OF REGENTS, Etc.; ET AL.,

Defendants,

LOUISIANA BOARD OF REGENTS, also known as University of Louisiana

System B oard of Trustees, also known as University of Louisiana

System; STATE OF LOUISIANA; WILLIAM CARVEL FOWLER, Individually;

BOARD OF SUP ERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM,

formerly know n as Board of Trustees, doing business as Louisiana

Tech University

Defendants - Appellees.

________________________ __________________________________________

Appeal from the United States District Court

for the Western District of Louisiana, Shreveport

USDC No. 5:01-CV-2166

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Two hearing impaired students at Louisiana Tech University

(“the University”), Wendy Renee Bennett-Nelson and Joy Marie Boykin

(“the appellants”), brought this action under Title II of the

Americans with Disabilities Act of 1990 (“ADA”) and § 504 of the

Rehabilitation Ac t of 1973. The appellants alleged that the

University denied them equal access to education by failing to2

provide educational aids and services, such as sign language

interpreters and note takers, in a timely and effect ive manner.

The district court dismissed the appellants’ claims, holding that

they were barred by the immunity from suit in the federal courts

granted to Louisiana by the Eleventh Amendment.

On appeal, the appellants contend (1) that the University has

waived its immunity from suit under § 504 of the Rehabilitation Act

by accepting federal funding; and (2) that Congress has validly

abrogated Eleventh Amendment immunity from suit under Title II of

the ADA. We agree that the University, as a recipient of federal

financial assistance, has waived its Eleventh Amendment immunity.

We therefore need not go further to address the abrogation issue.

Accordingly, we REVERSE and REMAND for further proceedings.

I

The facts of this case are uncomplicated and largely

undisputed. Louisiana Tech University is a public university

governed by the Board of Supervisors for the University of

Louisiana System. Although its main source of funding is the State

of Louisiana, the University also distributes approximately twentyone million dollars in federal financial aid to students each year.

The University’s primary sources of federal funds are the Federal

Work Study program and the Pell Grant program.

The app ellants were enrolled as full-time students at the

University. Because of their hearing impairments, they requested

that the University’s Office of Disabled Student Services provide1 The district court also dismissed the appellants’ Louisiana

state law claims as insufficiently pled. S ee F ED

. R. C IV

. P. 8(a).

Normally, dismissal for failure to satisfy the requirements of Rule

8 is without prejudice, and we find nothing in the district court’s

memorandum ruling to indicate that it intended otherwise. Thus, as

the appellants are free to reassert their state law claims on

remand, we need not decide whether dismissal of said claims was in

error.

3 c ertain accommodations. In particular, the appellants requested

sign language interpreters and note takers for the classes in which

they were enrolled, as well as certain study aids.

Before the district co urt, the appellants alleged that,

although the University did provide the requested assistance “on

rare occasions”, it routinely failed to do so. Thus, the

appellants contended, the Universit y failed to make reasonable

accommodations for their disabilities, as required under Title II

of the ADA and § 504 of the Rehabilitation Act. S ee 42 U.S.C. §

12131(2); 28 C.F.R. § 42.521(a). The University responded that the

accommodations it provide d were adequate, and that Louisiana’s

Eleventh Amendment sovereign immunity barred the appellants’

claims.

Upon a motion by the defendants, the district court dismissed

all of the appellants’ claims against the Louisiana Board of

Regents, the Board of Supervisors for the University of Louisiana

System, the University, and the State of Louisiana (hereinafter,

collectively, “the Louisiana appellees”), holding that these claims

were barred under the Eleventh Amendment. 1 Specifically, the court

held (1) that Congress did not validly abrogate Louisiana’s2 The State moved for dismissal under F ED

. R. C IV

. P. 12(b)(6)

and 12(c). We review dismissal under either rule d e novo

, applying

the same standard as the district court, and asking whether “it

appears certain that the plaintiff cannot prove any set of facts

... which would entitle her to relief”. Bomba rdier Aerospace

Employee Welfare Be nefits Plan v. Ferrer, Poirot and Wansbrough

, 354 F.3d 348, 351 (5th Cir. 2003).

3 Id.

4 sovereign immunity via either Title II of the ADA or § 504 of the

Rehabilitation Act; and (2) that the University had not waived its

immunity from suit under § 504. This appeal followed.

II

The sole issue before us is whether Louisiana’s Eleventh

Amendment sovereign immunity bars the appellants’ claims under the

ADA and the Rehabilitation Act. Our review is d e novo

. 2 Our

inquiry begins, as always, with the text of the Amendment.

The Eleventh Amendment provides that “[t]he 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. C ONST

. amend. XI. As we explained in P ace

v. Bogalusa City School Board , the core function of the Amendment

is to bar the authority of federal courts to litigate suits brought

by citizens against the states. S ee 403 F.3d 272, 27 6 (5th Cir.

2005) (en banc). Although, by its express terms, the Amendment

“bar[s] o nly federal jurisdiction over suits brought against one

State by citizens of another State or foreign state”, 3 the Supreme4 Further, the El eventh Amendment protects “state agents and

state instrumentalities” as well as the states themselves. R egents

of Univ. of Cal. v. Doe , 519 U.S. 425, 429 (1997).

5 Court has long held that it also precludes jurisdiction where, as

here, a citizen brings suit against her own state in federal

court. 4 S ee Idaho v. Coeur d’Alene Tribe of Idaho

, 521 U.S. 261,

267-68 (citing Hans v. Louisiana , 134 U.S. 1 (1890)).

T here are two exceptions to the rule of sovereign immunity.

First, a state may waive its immunity by consenting to suit. S ee

,

e.g.

, Coll. Sav ings Bank v. Florida Prepaid Postsecondary Educ.

Expense Bd.

, 527 U.S. 666, 670 (1999) (citing Clark v. Barnard

, 108

U.S. 436, 447-48 (1883)). Second, Congress may abrogate state

sovereign immunity pursuant to the enforcement power conferred by

§ 5 of the Fourteenth Amendment. See id. The appellants contend

that the Univ ersity –- and by extension, the remaining Louisiana

appellees

-- have waived their immunity from suit under § 504, and

that Congress has validly abrogated state sovereign immunity from

suit under Title II of the ADA. We address these contentions in

turn.

A

The appellants first c ontend that the University has waived

its Eleventh Amendment immunity from suit under § 504 of the

Rehabilitation Act by accepting federal financial assistance.

Section 504 provides that:

No otherwise qualified individual with a

disability in the United States

...5 42 U.S.C. § 2000d-7 provi des 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

... or the provisions of any

other Federal statute prohibiting discrimination by recipients of

Federal financial assistance”.

6

shall, solely by reason of his or her

disability, be excluded from the

participation in, be denied the benefits

of, or be subjected to discrimination

under any program or activity receiving

federal financial assistance ....

29 U.S.C. § 794(a). A separate provision, 42 U.S.C. § 2000d-7,

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

Eleventh Amendment immuni ty to actions under § 504. 5 Our task,

then, is twofold. First, we must decide whether the University is

a “progr am or activity receiving federal financial assistance”

within the meaning of § 504, such that the waiver condition found

in § 2000d-7 applies. If it is, we must determine whether, under

the multi-factor test set forth in South Dakota v. Dole , 483 U.S.

203 (1987), the condition represents a constitutionally permissible

exercise of Congress’ spending power.

1

The Louisiana appellees contend , and the district court

agreed, that the University is not a “program or activity receiving

Federal financial assistance” within the meaning of § 504, and

thus, does not fall within the waiver provision of § 2000d-7. As

a preliminary matter, we note that a “program or activity” is

defined as “all of the operations of

... a college, university, or7

other postsecondary institution, or a public system of higher

education

... any part of which is extended Federal financial

assistance”. 29 U.S.C. § 794(b)(2)(A). Thus, the precise question

before us is whether the University –- that is, any department or

other subdivision of the University

-- is a recipient of federal

funds.

The University concedes that enrolled students “receive

federal funds earmarked for educational expenses”. In particular,

the University’s Director of Student Financial Aid testified that

the University receives “somewhere in the neighborhood of twentyone [to] twenty-two million dollars” in federal financial aid

annually. A significant portion of this aid comes from the Federal

Work Study program, und er which the “federal government ...

provide[s] the university a fund of federal money that must be

matched by university money[,] which is then used [to pay] student

workers”.

Moreover, approximately five million dollars of aid comes via

the Pell Grant program, under which the federal government “writes

a check ... directly to Louisiana Tech University”, and funds are

“funneled through” the University “for distribution to the

student”. Because these funds are earmarked for educational

purposes, the University will typically distr ibute the money

directly to a student’s account with the school, where it is

applied toward expenses such as tuition, room and board, and meals.6 20 U.S.C. § 1681(a).

8

The crux of the University’s argument is that, because it is

the student who ultimately receives the above-descri bed federal

funds, the University is not a recipient of federal aid within the

meaning of § 504 and § 2000d-7, and thus, has not waived its

Eleventh Amendment immunity. The University’s argument, however,

is effectively foreclosed by the Supreme Court’s holdings in Grove

City College v. Bell , 465 U.S. 555 (1984), and U .S. Dept. of

Transportation v. Paralyzed Veterans of America

, 477 U.S. 597

(1986).

In Grove City , the Supreme Court held that the petitioner, a

private college, wa s a recipient of federal funds within the

mea ning of § 901(a) of Title IX, 6 which prohibits sex

discrimination in “any education program or activit y receiving

Federal financial assistance”. In so holding, the Court observed

that, although the college received no direc t federal aid, “the

language of § 901(a) contains no hint that Congress perceived a

difference between direct institutional assistance and aid received

by a school through its students”. 465 U.S. a t 564. The Court

further observed that “the economic effect of direct and indirect

assistance often is indistinguishable”, particularly insofar as

federal aid “effectively supplements [a college’s] own financial

aid program”. Id. at 565.9

Later, in Paralyzed Veterans of America

, the Court held that,

although airlines benefitted from federal financial assistance

given to airport operators, they were not recipients of federal aid

under § 504. S ee 477 U.S. 597. The Court distinguished G rove City

by noting that, in that case, “it was clear ... that Congress’

intended recipient was the college, not the individual students to

whom the checks were sent from the Government”. I d. at 606-07. By

contrast, in Paralyzed Veterans of America , the airport operators

were the intended recipients and the airlines merely beneficiaries.

Thus, u nder G rove City and Paralyzed Veterans of America

, the

relevant question is not whether the University passes federal

funds through to students

–- who, it should be noted, typically

pass them back to the University in the form of tuition payments

and other expenses

–- but whether the University is an “intended

recipient” of the funds Congress has appropriated.

In this case, just as in Grove City

, Congress has expressly

stated that one purpose of the relevant student aid provisions is

“to assist in making available the benefi ts of postsecondary

education to eligible students ... by ... providing assistance to

institutions of higher education ”. 20 U.S.C. § 1070(a)(5)

(emphasis added); see also 465 U.S. at 566. Moreover, the

practical effect of the federal assistance in this case is

precisely the same: it serves to supplement the University’s

financial aid, thereby enhancing the University’s ability to enroll

and educate financially needy students.7 The Supreme Court has observed that “[t]he scope of several

other federal antidiscrimination m easures [including § 504 and

Title VI] is defined in nearly identical terms” to that of Title

IX. N ational Collegiate Athletic Ass’n v. Smith

, 525 U.S. 459, 466

n.3 (1999).

8 To participate in Fede ral Work Study and similar programs,

an institution must fulfill certain conditions, such as applying,

being certified, and entering into a written program participation

agreement. See 34 C.F.R. §§ 673.3, 668.14.

10 Th e Louisiana appellees contend that this case is

distinguishable from Grove City

, insofar as it involves a different

statutory provision

–- § 504 of the Rehabilitation Act, as opposed

to § 901(a) of Title IX. We cannot see that such a distinction is

at all ge rmane. The relevant portions of the two statutes are

identical

-- both bar discrimination by entities “receiving Federal

financial assistance”

-- and the appellees have cited us to no

authority suggesting that Congress intended the term to carry a

different meaning in § 504 than it does in § 901(a). 7 If there is

any relevant distinction between the instant case and Grove City

,

it is that the argument f or finding that the institution is an

“ intended recipient” is stronger here , as the University actively

p articipates in both the Federal Work Study and Pell Gr ant

programs. 8 By contrast, Grove City College consistently refused

state and federal financial aid, receiving it only indirectly from

students who had independently sought and received Basic Education

Opportunity Grants. See 465 U.S. at 559.

In sum, here, no less than in Grove City

, the University is an

intended recipient of federal financial assistance. Accordingly,9 We r eject the Louisiana appellees’ suggestion that a valid

waiver of sovereign immunity under § 2000d-7 can occur only where

federal assistance is received “under” or “pursuant to” the

Rehabilitatio n Act. Nothing in the text of § 504 or § 2000d-7

suggests any such limitation. To the extent that the appellees’

contention is based on some interpretation of the “knowing” waiver

requirement, we find no support in Pace or any other case for the

proposition that a waiver can be “knowing” only where a single

statute provides for both the allocation of funds and the waiver

condition.

11 for that reason, it is subject to the requirements of § 504 of the

Rehabilitation Act.

2

Because the University is a recipient of federal assistance,

we must determine, based on the five-factor test set forth in Dole

,

whether the waiver condition in § 2 000d-7 represents a

constitutionally permissible exercise of Congressional power under

the Spending Clause. We need not linger long on this question, as

it was recently addressed in our en banc decision in Pace

.

In Pace

, we concluded that a school board’s receipt of federal

education funds constituted a knowing and voluntary waiver of

sovereign immunity as to claims under § 504. S ee 403 F.3d at 280-

87. Specifically, we noted that the waiver language of § 2000d-7

was “unambiguous”, that the condition was sufficiently related to

the federal interest in the program funded, and that it did not

rise to the level of coercion. S ee id. As such, we held that the

waiver condition set forth in § 2000d-7 is a constitutionally

permissible exercise of Congress’ spending power. 912

We are, of course, bound by this court’s prior en banc

decision

. Acc ordingly, we hold that the University –- and the

remaining Louisiana appel lees –- have waived their Eleventh

Amendment immunity from suit under § 504 of the Rehabilitation Act

and, concomitantly, that the district court erred in dismissing the

appellants’ § 504 claims.

B

The appellants further contend that Congress ha s abrogated

Louisiana’s Eleventh Amendment sovereign immunity from suit under

Title II of the ADA. In R eickenbacker v. Foster

, we rejected this

argument, holding t hat enactment of Title II did not validly

abrogate states’ sovereign immunity. 274 F.3d 974 (5th Cir. 2001).

Subsequently, however

, in Tennessee v. Lane

, the Supreme Court held

that the abrogation of sovereign immunity in Title II is a valid

exercise of congressional power, to the extent that it “applies to

the class of cases implicating the fundamental right of access to

courts”. 541 U.S. 509, 533-34 (2004). We have yet to decide

whether the principle of Lane extends to cases involving other

right s or, alternatively, whether our holding in R eickenbacker

continues to control in such cases. Because Louisiana has waived

its s overeign immunity from actions under § 504 of the

Rehabilitation Act, we need not address that question today.

As we explained in Pace

, the rights and remedies afforded

plaintiffs under Title II of the ADA are almost entirely

duplicative of those provided und er § 504 of the Rehabilitation10 Ti tle II expressly provides that “[t]he remedies,

procedures, and rights set forth in se ction 794a of Title 29 [–-

i.e., § 504 of the Rehabili tation Act –-] shall be the remedies,

procedures, and rights this subchapter provides to any person

alleging discrimination on the basis of disability in violation of

section 12132 of this title”. 42 U.S.C. § 12133.

13 Act. 10 S ee 403 F.3 d at 287-88. The only material difference

between the two provisions lies in their respective causation

requirements. S ee id. at 288 (citing Soledad v. U.S. Dept. of

Treasury , 304 F.3d 500 (5th Cir. 2002)). Section 504 of the

Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability in the United States

... shall, solely

by reason of her or his disability

, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance ...”. 29 U.S.C. § 794(a) (emphasis added).

By contrast, under Title II of the ADA, “discrimination need not be

the sole reason” for the exclusion of or denial of benefits to the

plaintiff. S oledad

, 304 F.3d at 503-04 ( q uoting Woodhouse v.

Magnolia Hosp. , 92 F.3d 248, 253 (5th Cir. 1996)).

In Pace

, we concluded t hat the different causation

requirements were immaterial where the plaintiff’s challenge was to

architectural barriers. S ee 403 F.3d at 288-89. The rationale

u n derlying this conclusion, although not expressly stated, is

straightforward. In addition to their respective prohibitions of

disability-based discrimination, both the ADA and the11 Title II of the ADA requires public entities to (1) make

“reasonable modifications to rules, policies, or practices”; (2)

“remov[e]

... architectural, communication, or transportation

barriers”; and (3) “provi[de] auxiliary aids and services”, so as

to enable disabled persons to participate in pro grams or

activities. 42 U.S.C. § 12131(2). Likewise, the regulations

implementing § 504 mandate that “each program or facility” to which

the provision applies must be “readily accessible and usable by

handicapped persons”. 28 C.F.R. § 42.521(a). Covered entities may

be required to facilitate access via the “acquisition or redesign

of equipment, reassignment of services to accessible buildings,

assignment of aids to b eneficiaries, delivery of services at

alternate accessible sites, alteration of existing facilities, or

any other method that results in making its program or activity

accessible to handicapped persons”. Id. at § 42.521(b).

12 In lieu of such an inquiry, the court must determine whether

the requested accommodation was “reasonable”

–- that is, whether it

would impose “undue financial or administrative burdens” or would

require a “funda mental alteration in the nature of the program”.

See School Board of Nassau County v. Arline , 480 U.S. 273, 288 n.

17 (1987) (quoting Southeastern Community C ollege v. Davis , 422

U.S. 397, 410, 412 (1979)).

14 Rehabilitation Act impose upo n public entities an affirmative

obligation to make reasonable accommodations for disabled

individuals. 11 Where a defendant fails to meet this affirmative

obligation, the cause of that failure is irrelevant. 12

In the instant case, there is no question that the complaint

claims the Uni versity’s failure to provide the demanded

accommodations is the sole cause of the alleged denial of benefits

to the plaintiffs. That is to say, the plaintiffs claim that they

were excluded from participation in their classes precisely to the

extent that they were not accommodated with interpreters or note

takers. The question here is not whether or to what extent the

plaintiffs suffer a disability under the ADA; nor is the question13 While the standard of causation is not material in this

appeal, we do not foreclose the possibility that, as discovery

proceeds, it may become a disputed issue.

15 whether the denial of the accommodation to that disability was

caused solely or only in part by the animus of the defendants. The

question is whether the failure to accommodate the disability

violates the ADA; and the existence of a violation depends on

whether under both the Rehabilitation Act and the ADA, the demanded

accommodation is in fact reasonable and therefore required. If the

accommodation is required the defendants are liable simply by

denying it. In short, causation is not the issue in the appeal

presented today. 13

Thus, having already held that sovereign immunity does not bar

the appellants’ claim und er § 504, we need not address at this

juncture the issue of abrogation under Title II of the ADA, because

the rights and remedies under either are the same for purposes of

this case.

III

For the foregoing reasons , we REVERSE the district court’s

dismissal of the appellants’ claims under § 504 of the

Rehabilitation Act and REMAND for further proce edings not

inconsistent with this opinion.

REVERSED and REMANDED.

EDITH H. JONES, Circuit Judge, concurring:16

I concur in the judgment and in the majority’s opinion. In my

view, it would have been appropriate to decide whether Tennessee v.

Lane extends Congress’s permissible abrogation of state sovereign

immunity in ADA Title II beyond its precise purview, i.e.

, the

fundamental right of access to the cour ts, and into the field of

education. T enne ssee v. Lane , 541 U.S. 509, 533-34 (2004). S ee

Pace v. Bogalusa ISD

, 403 F.3d 272, 303 (5th Cir. 2005)(Jones, J.,

concurring in part and dissenting in part).