United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1721

___________

Little Rock School District, *

*

 Plaintiff, *

*

v. *

*

James Mauney, Mr. and Mrs., *

Parents of J.M., * Appeal from the United States

* District Court for the

 Defendants. * Eastern District of Arkansas

*

 

James Mauney, Mr. and Mrs., *

Parents of J.M., *

*

 Third Party Plaintiff-Appellee, *

*

v. *

*

State of Arkansas, Arkansas *

Department of Education, *

*

 Third Party Defendants-Appellants. *

___________

Submitted: December 15, 1998

Filed: June 14, 1999

___________
1The IDEA, originally passed in 1970 as the Education for the Handicapped

Act (EHA), was amended as the Education for All Handicapped Children Act in

1975, and subsequently redesignated the IDEA in 1990.

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Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

___________

HEANEY, Circuit Judge. 

Appellees/defendants/cross-plaintiffs, Mr. and Mrs. James Mauney, frustrated

with their inability to obtain an education for their severely physically disabled son,

secured a due process hearing against the Little Rock School District (LRSD) under

the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491o

(1998).1 On February 3, 1997, a hearing officer found for the Mauneys and awarded

compensatory education. The LRSD then initiated this action, claiming that the

findings and award are not supported by the record. The Mauneys cross-claimed

against appellants the State of Arkansas and its Department of Education (ADE),

asserting claims under the IDEA and various other federal statutes. After the district

court denied in part the state’s and ADE’s motion for summary judgment, they filed

this interlocutory appeal.

The State of Arkansas and ADE make only one argument: that because

Congress does not have the power under section 5 of the Fourteenth Amendment to

pass legislation such as the IDEA, the purported abrogation of states’ Eleventh

Amendment immunity in § 1403 of that Act is ineffectual and therefore the state and

the ADE are not proper parties to the suit. We conclude that Congress had both the

power and intent to abrogate Eleventh Amendment immunity and therefore affirm the

district court’s determination that it has jurisdiction over the appellants. 
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I. Statutory Scheme and Factual Background

The IDEA “provides federal money to assist state and local agencies in

educating handicapped children, and conditions such funding upon a State’s

compliance with extensive goals and procedures.” Board of Education v. Rowley,

458 U.S. 176, 179 (1982). In response to two federal district court decisions ruling

that handicapped children should be afforded greater access to public education,

Congress in 1974 undertook to provide federal funding in order to ensure “full

educational opportunities to all handicapped children.” Rowley, 458 U.S. at 180

(internal quotation marks and citation omitted); see also id. at 192 (providing history

of the Act). The stated purpose of the Act is

to assure that all children with disabilities have available to them . . . a

free appropriate public education which emphasizes special education

and related services designed to meet their unique needs, to assure that

the rights of children with disabilities and their parents or guardians are

protected, to assist States and localities to provide for the education of

all children with disabilities, and to assess and assure the effectiveness

of efforts to educate children with disabilities.

20 U.S.C. § 1400(c). To that end, the IDEA confers upon disabled students the right

to a public education and conditions federal financial assistance upon a recipient

state’s compliance with the substantive and procedural goals of the Act. See Honig

v. Doe, 484 U.S. 305, 310 (1988). The chief mechanism for instituting the

congressional purpose is the “free appropriate public education” (FAPE). A FAPE

must be tailored to a child’s unique needs and be implemented in an environment

suitable for the child. See 20 U.S.C. §§ 1400(c), 1412(1), (2)(B), (3), and (5)(B)

(1998). This requirement is satisfied where a state provides “personalized instruction

with sufficient support services to permit the child to benefit educationally from that
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instruction.” Rowley, 458 U.S. at 203 (providing definition of sufficient services).

The IDEA also confers upon “[a]ny party aggrieved by the findings and

decision [resulting from certain procedures available under § 1415(b) of the act] . .

. the right to bring a civil action . . . in a district court of the United States without

regard to the amount in controversy.” 20 U.S.C. § 1415(e)(2). The LRSD initiated

suit pursuant to § 1415(e)(2) and the Mauneys cross-claimed, alleging that appellants

violated their son James’ procedural rights under the IDEA “by failing to follow the

procedural requirements of the IDEA . . . resulting in a denial of free appropriate

public education for James.” (Order at 2). In addition, the Mauneys claim that

appellants denied James’ procedural rights by “a) failing to provide trained personnel

to meet the needs of children with James’ disability; b) failing to enable [the

Mauneys] to compel witnesses necessary to their case; and c) by failing to provide the

appropriate continuum of placements necessary to meet the needs of a student with

James’ disabilities.” (Order at 2). On the record before it, the district court granted

appellants' motion for summary judgment as to claims a) and c), stating that the

Mauneys failed to provide evidence suggesting that Arkansas and its Department of

Education have failed to comply with statutory guidelines. As to the issue of

compelling witnesses, the district court denied appellants' motion for summary

judgment. 

The IDEA grants parties to a hearing the right, inter alia, to compel the

attendance of witnesses. See 20 U.S.C. § 1415(d)(2) (1998). Appellants did not

provide any evidence suggesting that they are in compliance with that provision.

Instead, they insist they are immune from suit under the Eleventh Amendment. 

II. Discussion

A court ruling denying a claim of entitlement to immunity is immediately

appealable. See Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985). This interlocutory

appeal from denial of motion for summary judgment based on immunity is thus
2Such immunity also extends to state agencies, such as the ADE, which are

considered an "arm of the State." Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.

274, 280 (1977).

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appropriate as an exception to the final order requirement of 28 U.S.C. § 1291. We

review the district court’s denial of summary judgment de novo. See Burnham v.

Ianni, 119 F.3d 668, 673 (8th Cir. 1997).

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. Though the text

of the Constitution appears to delimit only Article III diversity jurisdiction, the

Supreme Court has construed this language to bar citizens from bringing suit against

their own state in federal court. See Atascadero State Hospital v. Scanlon, 473 U.S.

234, 238 (1985) (citing Hans v. Louisiana, 134 U.S. 1 (1890)).2 The Court has

justified its expansive reading of the Eleventh Amendment by reference to the dual

principles of federalism and sovereign immunity. See id.; see also Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 54 (1996) (stating that “we have understood the

Eleventh Amendment to stand not so much for what it says, but for the presupposition

. . . which it confirms”) (quoting Blatchford v. Native Village of Noatak, 501 U.S.

775, 779 (1991)). 

The Supreme Court has also recognized two “well-established exceptions to

the reach of the Eleventh Amendment.” Atascadero, 473 U.S. at 238. First, a state

may waive its immunity and thereby subject itself to suit in federal court. See id.

Second, Congress may, when acting pursuant to its enforcement power under section

5 of the Fourteenth Amendment, abrogate Eleventh Amendment immunity without

the states’ consent. See Seminole Tribe, 517 U.S. at 59 (“[W]e recognize[] that the

Fourteenth Amendment, by expanding federal power at the expense of state autonomy

[] fundamentally altered the balance of state and federal power struck by the
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Constitution.”) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)). Arkansas and

the ADE contend that neither exception applies in this case. We disagree.

Seminole Tribe established a two-part inquiry for identifying effective

abrogation of states’ Eleventh Amendment immunity from suit: first, whether

Congress “unequivocally expresse[d] its intent to abrogate the immunity,” 517 U.S.

at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)), and second, whether

Congress acted “pursuant to a valid exercise of power.” Id. (quoting Green, 474 U.S.

at 68). 

A. Intent to Abrogate

A court may not find congressional intent to abrogate state immunity absent

“unmistakable language.” Atascadero, 473 U.S. at 239-40. Congress’ intent to

abrogate state immunity is patent in the IDEA. Section 1403(a) of the Act was

adopted by Congress in response to the Supreme Court’s determination in Dellmuth

v. Muth, 491 U.S. 223, 231 (1989), that the then-EHA did not contain an unequivocal

declaration such as would support “with perfect confidence [the conclusion] that

Congress in fact intended in 1975 to abrogate sovereign immunity.” The amended

Act provides that a “State shall not be immune under the eleventh amendment to the

Constitution of the United States from suit in Federal court for a violation of this

chapter.” 20 U.S.C. § 1403(a) (1998); see also Straube v. Florida Union Free Sch.,

801 F. Supp. 1164, 1171 (S.D.N.Y. 1992) (“The IDEA abrogates the Eleventh

Amendment for violations occurring in whole or in part after October 30, 1990.”).

The amended Act thus satisfies the first part of the Seminole Tribe test.
3

In Union Gas, a plurality of the Court concluded that Congress may abrogate

states’ immunity from suit when legislating pursuant to the plenary powers granted

it by Article I of the Constitution. See 491 U.S. at 19. Specifically, the Court ruled

that the Comprehensive Environmental Response, Compensation, and Liability Act

of 1980, as amended by the Superfund Amendments and Reauthorization Act of

1986, was a proper exercise of Congress’ power to create state government liability

when legislating pursuant to the Commerce Clause. See id. In Fitzpatrick, the Court

had reasoned that since the Fourteenth Amendment postdated the Eleventh

Amendment and since it was specifically intended to limit state sovereignty, Congress

could “provide for private suits against States or state officials” when it exercised

legislative authority pursuant to section 5 of the Fourteenth Amendment. 427 U.S.

at 456 (Rehnquist, J.) (“When Congress acts pursuant to § 5, not only is it exercising

legislative authority that is plenary within the terms of the constitutional grant, it is

exercising that authority under one section of a constitutional Amendment whose

other sections by their own terms embody limitations on state authority.”). In

rejecting the reasoning of Union Gas, the Court noted that Fitzpatrick cannot be read

to justify “limitation of the principle embodied in the Eleventh Amendment through

appeal to antecedent provisions of the Constitution.” 517 U.S. at 66 (citation

omitted). At the same time, Seminole Tribe reaffirmed Fitzpatrick’s conclusion that

the Fourteenth Amendment worked an alteration in the balance of power between

federal and state sovereignty, thereby permitting Congress to unilaterally abrogate

state immunity from suit. See id. at 58-59.

4

 As an initial matter, it is clear from legislative intent and purpose that

Congress intended to enact and amend the IDEA pursuant to its Fourteenth

Amendment powers. See St. Louis Dev. & Disability Treatment Ctr. Parents Ass’n

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B. Power to Abrogate

The second part of the Seminole Tribe test stems from the Court’s

determination that although Congress may not abrogate Eleventh Amendment

immunity pursuant to its Commerce Clause power, see 517 U.S. at 66-67 (overturning

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)), it may do so when exercising its

enforcement power under section 5 of the Fourteenth Amendment, see id. at 59

(citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976)).3 The narrow question in

this case, then, is that begged by the holding in Seminole Tribe: the extent of

Congress’ power to enact legislation under section 5 of the Fourteenth Amendment.4
v. Mallory, 591 F. Supp. 1416, 1473-74 (W.D. Mo. 1984), aff’d, 767 F.2d 518 (8th

Cir. 1985) (finding legislative intent to rely on Fourteenth Amendment); Counsel v.

Dow, 849 F.2d 731, 737 (2nd Cir. 1988) (same). While Congress need not “anywhere

recite the words ‘section 5' or ‘Fourteenth Amendment’ or ‘equal protection,’” in

order to establish that it intended legislation to fall under its Fourteenth Amendment

enforcement power, a court must “be able to discern some legislative purpose or

factual predicate that supports the exercise of that power.” EEOC v. Wyoming, 460

U.S. 226, 243 n.18 (1983) (citing Fullilove v. Klutznick, 448 U.S. 448, 476-78

(1980)). Both Houses of Congress stated that the EHA was designed to enforce equal

protection. See Counsel, 849 F.2d at 737 & n.6 (citing S. Rep. No. 94-168, at 9

(1975), reprinted in 1975 U.S.S.C.A.N. 1425, 1433); Crawford v. Pittman, 708 F.2d

1028, 1037 n.39 (5th Cir. 1983) (citing legislative history)).

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Appellants argue that the Supreme Court’s recent decision in City of Boerne

v. Flores, 117 S. Ct. 2157 (1997), severely restricted Congress’ power to pass

legislation under the Fourteenth Amendment. We do not share that view. We read

City of Boerne to stand for the unexceptional proposition that Congress may not

subvert the judiciary’s interpretation of the substantive meaning of the Constitution

and the judiciary may not abdicate to another branch its role as final arbiter of the

substantive meaning of the Fourteenth Amendment. 

In City of Boerne, the Supreme Court reiterated that Congress could not

overrule the Court’s decisions as to the substantive meaning of the Constitution. 117

S. Ct. at 2168 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The

City of Boerne decision stemmed from Congress’ passage of the Religious Freedoms

Reformation Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4. RFRA was

enacted by Congress in a patent attempt to overrule the Court’s decision in

Employment Div., Dep't of Human Servs. of Or. v. Smith, 494 U.S. 872, 887 (1990),

that the Free Exercise Clause of the First Amendment does not require neutral laws

of general applicability to be justified by a compelling government interest even when

such laws significantly burden religious practices. See 117 S. Ct. at 2161-62 (quoting

RFRA, 42 U.S.C. § 2000bb(b)) (“‘The Act’s stated purposes are: (1) to restore the

compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct.

1790, 10 L. Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526,
5Section 1 of the Fourteenth Amendment provides, in pertinent part: “No State

shall make or enforce any law which shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section

5 grants Congress the “power to enforce, by appropriate legislation, the provisions

of this article.” U.S. Const. amend. XIV, § 5.

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32 L. Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise

of religion is substantially burdened; and (2) to provide a claim or defense to persons

whose religious exercise is substantially burdened by government.’”). 

In order to understand the limited scope of the City of Boerne decision, it is

necessary briefly to recount its historical antecedents. It is well established that

section 5 of the Fourteenth Amendment “is a positive grant of legislative power” to

enforce the provisions contained in section 1 of that Fourteenth Amendment. See 117

S. Ct. at 2163 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).5 The City

of Boerne Supreme Court reemphasized the broad scope of Congress’ section 5

power:

"Whatever legislation is appropriate, that is, adapted to carry out the

objects the amendments have in view, whatever tends to enforce

submission to the prohibitions they contain, and to secure to all persons

the enjoyment of perfect equality of civil rights and the equal protection

of the laws against State denial or invasion, if not prohibited, is brought

within the domain of congressional power.”

Id. (quoting Ex parte Virginia, 100 U.S. 339, 345-46 (1879)). Relying on this same

language, the Court in Morgan, 384 U.S. at 650, concluded that section 5 accorded

Congress “the same broad powers expressed in the Necessary and Proper Clause.”

The well-known formulation for determining the scope of congressional power under

the Necessary and Proper Clause holds: “Let the end be legitimate, let it be within

the scope of the constitution, and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consist[ent] with the letter and spirit

of the constitution, are constitutional.” M’Culloch v. Maryland, 17 U.S. (4 Wheat)
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316, 421 (1819). Citing the language in M’Culloch and Ex Parte Virginia, the

Morgan Court held that legislation is “appropriate” under section 5 of the Fourteenth

Amendment if it is “‘plainly adapted’” to enforcing the Equal Protection Clause and

“not prohibited by but is consistent with ‘the letter and spirit of the constitution.’”

384 U.S. at 650-51 (quoting M’Culloch, 17 U.S. at 421).

Nonetheless, broad language contained in Morgan caused concern that the

Congress’ section 5 power was virtually unlimited and that such a ruling would

undermine the foundational principles of Marbury v. Madison. Justice Harlan, in

particular, worried that the decision conferred on Congress an unbridled, independent

authority to determine the substantive meaning of Equal Protection. See Morgan, 384

U.S. at 668 (Harlan, J., dissenting) (expressing view that majority gave Congress

“power to define the substantive scope of the [Fourteenth] Amendment”). This fear

was allayed by Oregon v. Mitchell, 400 U.S. 112 (1970), in which seven justices

“indicate[d] that § 5 does not confer unlimited power on Congress to determine the

meaning of Equal Protection.” 3 Ronald D. Rotunda & John E. Nowak, Treatise on

Constitutional Law § 19.3 at 531 (2d ed. 1992) (discussing fragmented opinions in

Oregon v. Mitchell). Though the various opinions in Oregon v. Mitchell failed to

delineate the precise limits of congressional power under section 5, the Court’s

decision indicated that while Congress may independently arrive at the conclusion

that particular state action constitutes invidious discrimination in violation of Equal

Protection, even if the judiciary has yet to reach such a conclusion, that power does

not permit Congress to alter the substance of Fourteenth Amendment rights as

previously defined by the Supreme Court. See Oregon v. Mitchell, 400 U.S. at 295-

96 (Stewart, J., concurring). 

In City of Boerne, the Court definitively laid to rest fears of too broad

congressional power. The Court rejected the so-called “ratchet” theory reading of

Morgan, which maintained that Congress could expand (but not contract) the

substantive rights created by section 1 of the Fourteenth Amendment, even where the

Court had already explicitly rejected such rights. See 117 S. Ct. at 2168. At the same
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time, the Court took pains to reaffirm the broad nature of congressional enforcement

power under section 5: “[l]egislation which deters or remedies constitutional

violations can fall within the sweep of Congress’ enforcement power even if in the

process it prohibits conduct which is not itself unconstitutional and intrudes into

‘legislative spheres of autonomy previously reserved to the States.’” 117 S. Ct. at

2163 (quoting Fitzpatrick, 427 U.S. at 455). In reinforcing the proper allocation of

power between co-equal branches of government, the City of Boerne Court also

provided much needed guidance for determining when Congress oversteps

boundaries created by Separation of Powers principles.

Observing that “the line between measures that remedy or prevent

unconstitutional actions and measures that make a substantive change in the

governing law is not easy to discern, and [that] Congress must have wide latitude in

determining where it lies,” the Court instructed that “[t]here must be a congruence

and proportionality between the injury to be prevented or remedied and the means

adopted to that end.” 117 S. Ct. at 2164. First, the Court examined RFRA for

congruence, ultimately determining that there was no factual basis for supposing a

widespread practice of unconstitutional conduct in violation of the Free Expression

Clause and finding that the statute violated Separation of Powers principles. See id.

at 2171-72. Second, the Court examined the statute for proportionality, concluding

that RFRA was over-inclusive in its requirement that courts subject to strict scrutiny

all state action alleged to violate free exercise of religion. An aspect of the Court’s

proportionality inquiry turned on the degree to which RFRA undermined principles

of federalism. See id. Applying the congruence and proportionality analysis to the

IDEA, we conclude that it does not exceed the scope of Congress’ power under

section 5.

1. Congruence

The “congruence” prong of City of Boerne tests whether a congressional

enactment is remedial in nature or whether it “imposes new substantive constitutional
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rights through legislation.” Goshtasby v. Board of Trustees, 141 F.3d 761, 769 (7th

Cir. 1998). Appellants contend that the rights conferred under the IDEA are new

substantive rights and are thus beyond the scope of Congress’ power.

In City of Boerne the Court suggested that a bellwether of “congruence” is

whether Congress can justify the use of preventative rules by showing that they are

appropriate remedial measures. See 117 S. Ct. at 2169. Appropriateness is measured

against the severity of the problem to be redressed. See id. The Court will ratify

Congress’ factual conclusions so long as they do not directly subvert an earlier

determination of the boundaries of equal protection. See Oregon v. Mitchell, 400

U.S. at 295-96 (Stewart, J., concurring in part and dissenting in part). 

 The legislative history establishes that the IDEA is remedial, not substantive,

in nature. In support of the EHA, the predecessor statute to the IDEA, Congress

explicitly found that “there are more than eight million handicapped children in the

United States,” that “more than half of the children with disabilities in the United

States do not receive appropriate educational services which would enable them to

have full equality of opportunity,” and that “one million of the children with

disabilities in the United States are excluded entirely from the public school system

and will not go through the educational process with their peers.” 20 U.S.C. §

1400(b)(1), (3), and (4) (1998). Congress perceived “that a majority of handicapped

children in the United States “were either totally excluded from schools or [were]

sitting idly in regular classrooms awaiting the time when they were old enough to

‘drop out.’” H.R. Rep. No. 94-332, at 2 (1975) quoted in Rowley, 458 U.S. at 179

(internal quotation marks omitted). 

The Supreme Court’s treatment of the Act’s legislative history in Rowley

neatly encapsulates the various concerns that informed the Act’s passage. See 458

U.S. at 191-97. The House Report emphasized “exclusion and misplacement,” and

members of the Senate remarked that “‘all too often, our handicapped citizens have

been denied the opportunity to receive an adequate education’” and “‘have been
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excluded from the educational opportunities that we give to our other children.’” Id.

at 191 & n.13 (quoting 121 Cong. Rec. 19494, 19502, 23708 (1975)). The extensive

factual basis adduced from the record and previous judicial decisions establish that

the IDEA was intended to remediate very real and valid congressional concerns.

The Supreme Court’s assessment of RFRA in City of Boerne provides a

striking contrast. In rejecting a challenge by the Archbishop of San Antonio to the

City of Boerne’s denial of a building permit application, the Court ruled that RFRA

was an unconstitutional attempt by Congress to usurp the Court’s “‘duty to say what

the law is’” by altering the applicable legal standard, rather than a measured response

to constitutional violations. Id. at 2172 (quoting Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803)). The Court emphasized that the facts mustered before

Congress simply did not support its determination that the burdening of religious

practice was a problem serious enough to warrant restrictive legislation. See 117 S.

Ct. at 2169 (“RFRA’s legislative record lacks examples of modern instances of

generally applicable laws passed because of religious bigotry”); cf. Oregon v.

Mitchell, 400 U.S. at 130 (“Congress made no legislative findings that the 21-yearold vote requirement was used by the States to disenfranchise voters on account of

race.”). 

In highlighting the paucity of factual support for RFRA, the Court contrasted

it with the Voting Rights Act of 1965, legislation at the center of several earlier

decisions concerning the extent of Congress’ section 5 power. See 117 S. Ct. at 2163,

2170-71; see also South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)

(upholding challenged provisions of Voting Rights Act of 1965); City of Rome v.

United States, 446 U.S. 156 (1980) (upholding extension of Voting Rights Act).

Despite the fact that the Supreme Court had earlier upheld the constitutionality of

practices made illegal by the Voting Rights Act, the Court affirmed Congress’ power

to pass legislation proscribing those practices on the basis of detailed findings

concerning flagrant abuse of voting qualifications. See City of Boerne, 117 S. Ct. at

2170-71(discussing voting rights cases). 
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By contrast, Congress in passing RFRA was concerned not with interdicting

pervasive discrimination against a disfavored group, but rather with “the incidental

burdens imposed” by statutes of general applicability. Id. at 2169. In other words,

Congress’ express purpose–the motivation that the Court found fatal–was to overrule

the Supreme Court’s decision in Smith and alter its interpretation of substantive

constitutional law. The IDEA, on the other hand, represents a scheme designed to

“meet the educational needs of children with disabilities in order to assure equal

protection of the law.” 20 U.S.C. § 1400(b)(9) (1998). Because there is ample

support for this finding of educational need, we agree with appellees that the statute

is remedial in nature.

Appellants additionally contend that the IDEA offends the notion of

congruence because it attempts to “enforce a constitutional right by changing what

the right is.” Boerne, 117 S. Ct. at 2164. The City of Boerne Court recognized that

additional guidance was necessary for determining when a congressional enactment

oversteps boundaries inherent in competing separation-of-powers principles. The

Court observed that while congressional determinations of “‘whether and what

legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its

conclusions are entitled to much deference,” 117 S. Ct. at 2172 (quoting Morgan,

384 U.S. at 651), “Congress does not enforce a constitutional right by changing what

the right is,” id. at 2164. Rather, “[t]he power to interpret the Constitution in a case

or controversy remains in the Judiciary.” Id. at 2166. 

In support of their argument that Congress in passing the IDEA overstepped

these boundaries, appellants rely on the syllogism that since equal protection only

extends to suspect or quasi-suspect classes and since disabled children are not a

suspect or quasi-suspect class under City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432 (1985), the equal protection doctrine does not permit passage of legislation,

such as the IDEA, that benefits the disabled. The majority of courts to address this

argument have concluded that the mere fact of non-suspect status does not preclude

Congress from legislating on a group’s behalf. See Autio v. AFSCME, Local 3139,
6Among the eight circuit courts to consider in light of City of Boerne the

constitutional propriety of the Age Discrimination in Employment Act, 29 U.S.C. §§

621-634, a statute that affords equal-rights protections to the aged, also a non-suspect

class under the Fourteenth Amendment, six have determined that Congress has the

power to abrogate states’ Eleventh Amendment immunity. See Cooper v. New York

State Office of Mental Health, 162 F.3d 770 (2nd Cir. 1998); Migneault v. Peck, 158

F.3d 1131 (10th Cir. 1998); Coger v. Board of Regents, 154 F.3d 296 (6th Cir. 1998);

Keeton v. University of Nevada Sys., 150 F.3d 1055 (9th Cir. 1998); Scott v.

University of Mississippi, 148 F.3d 493 (5th Cir. 1998); Goshtasby, 141 F.3d at 761.

1998). But see Kimel, 139 F.3d at 1426, cert. granted 119 S.Ct. 901 (1999);

Humenansky v. Board of Regents, 152 F.3d 822 (8th Cir. 1998). Because the statutes

at issue in the two cases differ substantially, we do not believe that Humenansky is

controlling precedent in this decision. In any event, the Supreme Court has granted

certiorari in the Kimel case and we can thus anticipate further guidance, at least with

respect to the ADEA.

7Prior to City of Boerne and Seminole Tribe, several circuit courts recognized

the IDEA as a valid exercise of Congress’ section 5 enforcement power. See David

D. v. Dartmouth Sch. Comm., 775 F.2d 411, 421 n.7 (1st Cir. 1985) (upholding

validity of IDEA); Mitten v. Muscogee County Sch. Dist., 877 F.2d 932, 937 (11th

Cir. 1989) (same); Counsel v. Dow, 849 F.2d 731 (2nd Cir. 1988) (same); Crawford

v. Pittman, 708 F.2d 1028, 1036-37 (5th Cir. 1983) (same). However, the impetus for

these earlier challenges to the validity of the IDEA was the Supreme Court’s

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157 F.3d 1141 (8th Cir. 1998) (en banc) (upholding validity of ADA by an evenly

divided vote); Kimel v. Florida, 139 F.3d 1426 (11th Cir. 1998) (upholding validity

of Americans with Disabilities Act under Fourteenth Amendment); Coolbaugh v.

Louisiana, 136 F.3d 430 (5th Cir. 1998) (same); Clark v. California, 123 F.3d 1267

(9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998) (same). But see Brown v. North

Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999).6 While no circuit

courts have addressed the issue of whether the IDEA similarly permits abrogation, the

two courts to consider the question in light of Seminole Tribe have answered

affirmatively, albeit without a detailed analysis of the issue. See Board of Educ. v.

Illinois State Bd. of Educ., 979 F. Supp. 1203, 1208 (N.D. Ill. 1997); Peter v.

Johnson, 958 F. Supp. 1383, 1394 (D. Minn. 1997), rev’d on other grounds, 155 F.3d

942 (8th Cir. 1998).7
statement in Pennhurst that “we ‘should not quickly attribute to Congress an unstated

intent to act under its authority to enforce the Fourteenth Amendment.’” Counsel, 849

F.2d at 737 (quoting 451 U.S. at 16). Thus, these decisions only reached the question

of whether Congress intended to pass the legislation pursuant to its section 5 powers,

not whether it had the constitutional authority to do so.

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In our view, these decisions properly apply Supreme Court precedent. We do

not read that precedent to suggest that congressional power to enforce the Equal

Protection Clause is so circumscribed in scope as to limit Congress’ role in protecting

individual rights to that of scriveners codifying existing decisions. See Morgan, 384

U.S. at 648-49 (“Such a conclusion ‘would confine the legislative power in this

context to the insignificant role of abrogating only those state laws that the judicial

branch was prepared to adjudge unconstitutional, or of merely informing the

judgment of the judiciary by particularizing the ‘majestic generalities’ of § 1 of the

Amendment.’”) (citations omitted). As the Sixth Circuit recently observed, the

“Supreme Court’s equal protection jurisprudence is not confined to suspect or quasisuspect classifications.” Coger, 154 F.3d at 305. The Court has applied equal

protection analysis and struck down state statutes where neither a fundamental right

nor a suspect class was involved. See, e.g., City of Cleburne, 473 U.S. at 450

(invalidating a permit denial on rational basis review); Romer v. Evans, 116 S. Ct.

1620, 1627 (1996) (“By requiring that the classification bear a rational relationship

to an independent and legitimate legislative end, we ensure that classifications are not

drawn for the purpose of disadvantaging the group burdened by the law.”). Seventh

Circuit Chief Judge Richard Posner has explained that the scope of congressional

power turns not on whether a classification is subject to heightened judicial scrutiny,

but on whether, at least sometimes, state action based on such a classification results

in unconstitutional conduct. See Velasquez v. Frapwell, 160 F.3d 389, 391-92 (7th

Cir. 1998). Judge Posner observed that “[b]ecause the aged [and disabled] are not as

vulnerable as certain other groups, such as blacks, they are not entitled to have their

claims of discrimination evaluated under the generous (to plaintiffs) standard of

‘strict scrutiny.’” Id. at 392. Nonetheless, in “City of Cleburne . . . the Supreme Court

. . . invalidated the denial of a permit for a home for mentally retarded persons as
8Had the Court intended City of Boerne to stand for the proposition that

Congress’ section 5 power is limited to protecting only those classes of individuals

entitled to heightened levels of judicial scrutiny, it seems odd that its discussion

would highlight South Carolina v. Katzenbach, a decision that upheld the suspension

of literacy tests despite an earlier ruling validating such tests as constitutional. See

117 S. Ct. at 2163 (citing 383 U.S. 301, 308 (1966)). Similarly, it is worth noting that

at the time of the unanimous decision in Fitzpatrick v. Bitzer, 427 U.S. at 445,

permitting Congress to abrogate state immunity pursuant to the 1972 Amendments

to Title VII of the Civil Rights Act of 1964, which subjected state governments to

liability for discriminating in employment on the basis of race, color, religion, sex,

or national origin, it was not at all clear that gender was subject to a heightened level

of scrutiny. Compare Craig v. Boren, 429 U.S. 190 (1976) (applying “intermediate”

scrutiny to gender claims in a case decided six months after Fitzpatrick) with Stanton

v. Stanton, 421 U.S. 7, 13, 17 (1975) (striking statute under either rational basis or

strict scrutiny on Equal Protection claim). It is evident from these decisions that the

Supreme Court permits Congress to pass legislation under the Fourteenth Amendment

even though the state action proscribed by the legislative enactment would not itself

constitute a violation of Equal Protection. See also Fitzpatrick, 427 U.S. at 458

(Stevens, J., concurring) (stating that the plaintiffs had not “proved a violation of the

Fourteenth Amendment”). 

9Though the Court in City of Cleburne was only faced with the issue of whether

mentally handicapped individuals represented a suspect classification, the Court

included the physically handicapped among other groups that it apparently considered

not to warrant heightened scrutiny due to an absence of continuing antipathy or

prejudice. 473 U.S. at 445-46. Thus, it seems likely that disability in general is not

a suspect classification. 

-17-

founded on ‘irrational prejudice against the mentally retarded.’” Id. (quoting 473 U.S.

at 450).8

The notion that the IDEA must fail as a valid exercise of Congress’ Fourteenth

Amendment power because physical9 and mental disability is not a suspect

classification misconstrues not only the purpose of suspect classifications, but also

the very nature of judicial scrutiny. The Court has observed that judicial standards

of review in equal protection cases were developed “absent controlling congressional
10Appellants insist that Congress is not free to determine what constitutes

“invidious” discrimination absent judicial pronouncement on the issue. This merely

restates the issue. In order to run afoul of the Equal Protection Clause, discrimination

must be intentional and arbitrary or invidious. See Washington v. Davis, 426 U.S.

229, 248 (1976) (holding that government action that unintentionally harms one

group more than another does not offend the Equal Protection Clause); Sunday Lake

Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918) (“The purpose of the

equal protection clause of the 14th Amendment is to secure every person within the

state’s jurisdiction against intentional and arbitrary discrimination . . . .”); City of

Cleburne, 473 U.S. at 446 (“Our refusal to recognize the retarded as a quasi-suspect

class does not leave them entirely unprotected from invidious discrimination. . . . The

State may not rely on a classification whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or irrational.”). As appellees' note, the

term “invidious” merely means offensive discrimination and is synonymous with the

term “discrimination” in its pejorative sense. (See Appellees' Brief at 17.) This usage

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direction.” City of Cleburne, 473 U.S. at 439. Unless a claim involves a suspect

classification, courts generally assume the validity of legislation due to the deference

accorded to legislative judgment. See, e.g., id. at 441-42 (discussing judicial

reluctance closely to scrutinize legislative choices as to whether, how, and to what

extent interests should be pursued). Congress’ fact-finding role gives it a unique

opportunity to scrutinize problems that come to its attention and prohibit

constitutional violations even where the rational basis test would hinder a court’s

ability to discover a violation. See id. at 442-43 (“How [the disabled are] to be

treated under the law is a difficult and often a technical matter, very much a task for

legislators guided by qualified professionals and not by the perhaps ill-informed

opinions of the judiciary.”). Thus, Congress is not limited to legislating on behalf of

groups identified as suspect for purposes of judicial review. To hold otherwise would

be to confuse a level of judicial scrutiny with the scope of congressional power. 

Applying the analysis outlined above, it is evident that the IDEA is congruent

with the dictates of equal protection law. The Supreme Court has defined the Equal

Protection Clause to provide the disabled with protection against arbitrary and

invidious discrimination10 and Congress is entitled to enforce those protections
resonates with the Court’s opinion in City of Cleburne, which established that

intentional, invidious discrimination will not pass rational-basis review. See 473 U.S.

at 446-47. Thus, it is no argument to state that it may be difficult to say what is

“invidious.” The Court answered this question in City of Cleburne when it noted that

discrimination aimed at identifiable groups because of negative and unfounded

stereotypes is arbitrary and invidious–i.e. offensive–absent some legitimate

governmental interest supporting the distinction. See id. at 448-49. Based on the

testimony and evidence before it, Congress concluded that precisely this type of

discrimination was aimed at disabled students and sought to remediate that problem

by passing the IDEA. 

-19-

through preventative legislation. See City of Cleburne, 473 U.S. at 446-47, 450.

Moreover, because the legislation neither affects a substantive change in equal

protection analysis nor attempts to implement protective legislation absent a factual

basis, it is an appropriate remedial measure.

2. Proportionality

The second part of the City of Boerne test examines whether the reach of the

enactment is so out of proportion with the harm sought to be remedied that the Act

becomes substantive in operation and effect. See Goshtasby, 141 F.3d at 771;

Coolbaugh, 136 F.3d at 435. We conclude that the IDEA is not “so out of proportion

to a supposed remedial or preventive object that it cannot be understood as responsive

to, or designed to prevent, unconstitutional behavior.” City of Boerne, 117 S. Ct. at

2170.

Keeping in mind the deference accorded to Congress in line drawing, it is clear

that the IDEA satisfies the proportionality requirement. See id. at 637 (stating that

even some constitutional conduct may be swept up in the ambit of Congress’

enforcement power); see also Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 314 (1976) (“[T]he drawing of lines that create distinctions is peculiarly a

legislative task and an unavoidable one.”). Congressional determinations that

discriminatory treatment is directed at a class of persons are part of an ongoing
-20-

conversation concerning the substantive meaning of section 1. See City of Boerne,

117 S. Ct. at 2166-67; see also South Carolina v. Katzenbach, 383 U.S. at 308 (“The

constitutional propriety of [legislation adopted under the Enforcement Clause] must

be judged with reference to the historical experience . . . it reflects.”). As noted

above, the Supreme Court in City of Cleburne determined that the disabled are

protected from arbitrary and invidious discrimination. The passage of federal

legislation designed to protect the disabled in the intervening years since the City of

Cleburne decision reflects an increasing societal intolerance for discrimination based

not on legitimate differences in mental and physical ability, but rather on the fear of

difference. For example, Congress in 1990 passed the ADA, 42 U.S.C. §§12,101-213

(1998), essentially extending the Rehabilitation Act of 1973, 29 U.S.C. §§ 701- 796l

(1998), which applies only to programs receiving federal assistance, to the entire

economy. See Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 484-86 (7th

Cir. 1997) (Posner, C.J.) (discussing legislative history and societal context of ADA

in holding act applies to state prisoners).

 

In City of Boerne, the Supreme Court found RFRA to violate the

proportionality requirement because “[s]weeping coverage ensures its intrusion at

every level of government.” Moreover, the “substantial costs RFRA exacts, both in

practical terms of imposing a heavy litigation burden on the States and in terms of

curtailing their traditional regulatory power, far exceed any pattern or practice of

unconstitutional conduct.” Id. at 2171. The IDEA could not be more different.

Unlike the ADA or ADEA, it is entirely voluntary on the part of the states. In order

to remediate exclusion of the disabled from public education, Congress has given the

states an inducement to adopt its legislative scheme. So long as the states follow the

procedures set forth in the legislation, there is no litigation burden. And the states are

free to reject federal aid and adopt their own plan for educating the disabled.

Accordingly, we cannot say that the scope of the IDEA is out of proportion to its

remedial objective.
-21-

Similar considerations animate a distinct aspect of the proportionality argument

against the power of Congress to pass the IDEA under the Fourteenth Amendment:

its purported intrusiveness upon the states. Though attenuated, federalism principles

are not entirely absent when Congress acts pursuant to its section 5 powers. See

Gregory v. Ashcroft, 501 U.S. 452, 468 (1991). The Supreme Court’s disapproval

of RFRA, for example, was based in part upon that statute’s “considerable

congressional intrusion into the States’ traditional prerogatives.” 117 S. Ct. at 2171.

Some courts have relied on this aspect of City of Boerne in striking legislation

designed to promote the interests of the disabled in greater participatory access to

larger society. SeeBrown, 166 F.3d at 704-06 (striking regulation promulgated under

Americans with Disabilities Act as beyond section 5 powers). Federalism concerns,

whatever their force with respect to the Americans with Disabilities Act, simply do

not bear upon the IDEA, a statute frequently described as a model of "cooperative

federalism." See, e.g., Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 151 (3d

Cir.1994); Town of Burlington v. Department of Educ., 736 F.2d 773, 783-84 (1st

Cir.1984). Congress’ intention in enacting the IDEA “was not that the Act displace

the primacy of the States in the field of education, but that States receive funds to

assist them in extending their educational systems to the handicapped.” Rowley, 458

U.S. at 208. Since the Act authorizes federal funding contingent upon state

compliance with its array of substantive and procedural requirements, the legislative

scheme functions as a contract between equals. See 20 U.S.C. § 1412 (1998). A state

is entirely “free to accept or reject the participation of the federal government in its

educational programs for the disabled.” See Burlington, 736 F.2d at 784. If a state

does choose to participate, authority is vested in state and local bodies to effectuate

the legislation’s substantive and procedural guarantees. See id. In fact, the statutory

scheme “allows some substantive differentiation among the states in the

determination of which educational theories, practices, and approaches will be

utilized for educating disabled children with a given impairment.” Id. (citing Rowley,

458 U.S. at 207-08). The statutory architecture thus relieves any fears that the IDEA

implicates the same concerns that animated the Boerne Court’s discussion regarding

the litigation costs imposed on the states by RFRA. See 117 S. Ct. at 2171. Rather,
11Appellants contend that because the IDEA is a proper exercise of Congress’

power under the Spending Clause, it cannot as well be plainly adapted to enforcing

the Fourteenth Amendment. However, Congress does not have to correctly surmise

the source of its authority in order to pass legislation, and may ground its legislative

authority in multiple sources. See Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.

1997); Coger, 154 F.3d at 303. We also “recognize the ‘constitutional difficulties’

with imposing affirmative obligations on the States pursuant to the spending power,”

Pennhurst, 451 U.S. at 17 n.13, but note again that the IDEA is wholly voluntary in

nature.

-22-

the legislation imposes a threshold level of legally enforceable obligations on states

who voluntarily submit to the scheme in exchange for substantial monetary aid for

education programs.

Because we hold that the IDEA is a proper exercise of Congress’ section 5

enforcement power under the Fourteenth Amendment, we conclude Congress

successfully abrogated appellants’ Eleventh Amendment immunity from suit. We

therefore affirm the district court’s denial of the motion for summary judgment.

C. Implied Waiver

The Mauneys also assert that § 1403 of the IDEA “manifest[s] a clear intent [on

the part of Congress] to condition participation in the programs funded under the Act

on a state’s consent to waive its constitutional immunity.” Atascadero, 473 U.S. at

247. Because we hold that the Act is valid as an exercise of Congress’ Fourteenth

Amendment power, we consider the question of whether appellants impliedly waived

immunity only in the alternative.11

The doctrine of waiver supplies the other “well-established” exception to

Eleventh Amendment immunity. See id. at 238. Congress may condition the receipt

of federal funds on a waiver of Eleventh Amendment immunity only when the statute

provides unequivocal notice of this condition. See id. at 247. That is, “the mere
12The language of the waiver provision contained in the Rehabilitation Act

tracks precisely with that in § 1403 of the IDEA. Compare 42 U.S.C. § 2000d-7(a)(1)

(“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.”) with 20 U.S.C. § 1403(a) (1994) (“A State shall not be

immune under the eleventh amendment to the Constitution of the United States from

suit in Federal court for a violation of this chapter.”). 

13The Seventh Circuit decided the issue under the Ex Parte Young doctrine.

See 209 U.S. 123, 159-60 (1908). Neither party raised the issue in this case, so we

do not address the issue. We note, however, that Ex Parte Young provides an equally

acceptable basis for upholding the validity of prospective relief sought under the

-23-

receipt of federal funds cannot establish that a State has consented to suit in federal

court.” Id. at 246-47. Rather, the existence of a waiver must appear “by such

overwhelming implication from the text as [will] leave no room for any other

reasonable construction.” Id. at 239-40 (internal quotation marks omitted); see also

Pennhurst, 451 U.S. at 17 (“By insisting that Congress speak with a clear voice, we

enable the States to exercise their choice knowingly, cognizant of the consequences

of their participation.”). 

No court has squarely considered the question of whether § 1403 of the IDEA

constitutes a waiver. However, the Supreme Court characterized a parallel provision

in the Rehabilitation Act as “an unambiguous waiver of the States’ Eleventh

Amendment immunity.” Lane v. Pena, 116 S. Ct. 2092, 2100 (1996).12 Relying on

this characterization, the Ninth Circuit ruled that § 2000d-7(a)(1) “manifests a clear

intent to condition a state’s participation on its consent to waive its Eleventh

Amendment immunity.” Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997),

cert. denied, 118 S. Ct. 2340 (1998). 

 Additional support for this position is found in a Seventh Circuit discussion

of the issue. See Marie O. v. Edgar, 131 F.3d 610, 617-18 (7th Cir. 1997). Because

it disposed of the case on other grounds, the Seventh Circuit did not decide the

question. See id. at 617.13 However, the panel indicated that it viewed § 1403 (a) as
IDEA.

-24-

effectuating a waiver of states’ immunity. See id. at 617-18 (noting that while the

section does not use the terms “waiver” or “abrogation,” the purpose of subjecting the

states to suit in federal court is evident from the provision’s language). 

The court expressed, however, some unease with this interpretation. Congress

used the term “abrogation” in the heading of § 1403(a), captioned “Abrogation of

State sovereign immunity.” Id. at 617 (quoting 20 U.S.C. § 1403). The Seventh

Circuit, apparently assuming that Congress could no longer use the IDEA as a vehicle

to abrogate states’ immunity, resolved the seeming contradiction by asserting that

Congress, in failing to change the caption after Seminole Tribe, must have meant the

term to be read as “waiver.” See id. at 618 (stating that “‘Congress expects its

statutes to be read in conformity with [the Supreme] Court’s precedents.’” (quoting

United States v. Wells, 117 S. Ct. 921, 929 (1997)). 

We find more persuasive the reasoning of the Supreme Court and the Ninth

Circuit, and would thus characterize § 1403 as “an unambiguous waiver of the States’

Eleventh Amendment immunity.” Lane, 116 S. Ct. at 2100; see also Minnesota

Transp. & Regulation Bd. v. United States, 966 F.2d 335, 339 (8th Cir. 1992) (stating

that section titles cannot limit the plain meaning of the text). However, we join the

Seventh Circuit in noting that the problem is “a regrettable one,” and urging “that the

appropriate legislative steps be taken to achieve the clarity necessary to ensure

effective governance.” Marie O., 131 F.3d at 618.

III. Conclusion

The case is remanded to the district court for further proceedings consistent

with this opinion.

WOLLMAN, Chief Judge, concurring and dissenting.
-25-

I agree with the court that Congress unequivocally expressed its intent to

abrogate the states’ Eleventh Amendment immunity to suit under the IDEA.

For the reasons expressed by our court in Humenansky v. Regents of Univ. of

Minn., 152 F.3d 822 (8th Cir. 1998), and by the Court of Appeals for the Fourth

Circuit in Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir.

1999), I do not believe that Congress has the power to abrograte that immunity under

section 5. The Supreme Court may soon set forth with greater specificity the extent

of Congress’s power to abrogate Eleventh Amendment immunity under section 5 than

that expressed in City of Boerne. See Kimel v. Florida Bd. of Regents, 139 F.3d 1426

(11th Cir. 1998), cert. granted, 119 S.Ct. 901, 902 (1999). Until the Court has done

so, however, I would adhere to the interpretation of City of Boerne expressed in

Humenansky and Brown.

Accordingly, I dissent from that portion of the court’s opinion which holds that

Congress acted within its section 5 powers by abrogating the states’ Eleventh

Amendment immunity to suit under the provisions of the IDEA.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.