2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-16-2003

M.A. v. Newark Pub Sch

Precedential or Non-Precedential: Precedential

Docket No. 02-1799

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PRECEDENTIAL

Filed September 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1799

M.A., on behalf of E.S., M.A., A.T. on behalf of G.T., A.T.,

G.L. on behalf A.O., G.L., H.M. on behalf M.M., H.M.,

O.J. on behalf of O.D.J., O.J., A.E. on behalf of A.J.E.

and A.E., individually and on behalf of all others similarly

situated,

Appellees,

v.

STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF

NEWARK; NEW JERSEY DEPARTMENT OF EDUCATION;

VITO A. GAGLIARDI, SR., in his individual capacity;

WILLIAM L. LIBRERA, Commissioner, New Jersey

Department of Education, in his official capacity;

BARBARA GANTWERK, Director, Office of Special

Education Programs, New Jersey Department of

Education, in her official and individual capacities;

MELINDA ZANGRILLO, Coordinator of Compliance, Office

of Special Education Programs, New Jersey Department of

Education, in her official and individual capacities,

Appellants,

UNITED STATES OF AMERICA (Intervenor in D.C.).

On Appeal from the United States District Court

for the District of New Jersey

District Court Judge: The Honorable Katherine S. Hayden

(01-CV-3389)
Argued on October 31, 2002

Before: SLOVITER, FUENTES, Circuit Judges,

and FULLAM,* District Judge

(Opinion Filed: September 16, 2003)

Peter C. Harvey

Attorney General of New Jersey

Patrick DeAlmeida (argued)

Michael Lombardi

Todd Schwartz

Deputy Attorneys General

R.J. Hughes Justice Complex

P.O. Box 112

Trenton, NJ 08625

Attorneys for Appellants

Ruth Deale Lowenkron (argued)

Jennifer Weiser

Education Law Center

60 Park Place

Suite 300

Newark, NJ 07102

Lawrence Lustberg

Shavar D. Jeffries

Gibbons, Del Deo, Dolan, Griffinger

& Vecchione

One Riverfront Plaza

Newark, NJ 07102

Attorneys for Appellees

* The Honorable John P. Fullam, United States District Court for the

Eastern District of Pennsylvania, sitting by designation. 

2
Sarah E. Harrington

Kevin Russell (argued)

Civil Rights Division

United States Department of Justice

950 Pennsylvania Avenue

Washington, DC 20530

Attorneys for Intervenor

OPINION OF THE COURT

FUENTES, Circuit Judge: 

The present appeal is the latest chapter in the

longstanding feud between citizens, public interest groups,

municipal officials, and state agencies over the provision of

public education in the City of Newark. In an earlier

chapter, the New Jersey Department of Education

(“NJDOE”) determined that the Newark Board of Education

had failed to provide a thorough and efficient system of

education and invoked its statutory powers1 to establish the

State-Operated School District of the City of Newark

(“SOSD” or “Newark”) in July 1995. See generally Gonzalez

v. State-Operated School District of the City of Newark, 784

A.2d 101, 102 (N.J. Super. Ct. App. Div. 2001). 

Plaintiffs commenced this action on behalf of six minors

attending public schools in Newark and on behalf of all

others similarly situated (collectively, “Plaintiffs”), against

the SOSD, NJDOE, and several state officials (collectively,

“Defendants”).2 They alleged violations of (a) the Individuals

1. N.J.S.A. §§ 18A:7A-34 to -52. 

2. The state officials include Vito A. Gagliardi (“Gagliardi”), former

Commissioner of the NJDOE; Barbara Gantwerk (“Gantwerk”), Director

of the Office of Special Education Programs of the NJDOE; and Melinda

Zangrillo (“Zangrillo”), Coordinator of Compliance in the Office of Special

Education Programs. On August 19, 2002, the Clerk of Court granted

Plaintiffs’ motion to amend the caption to include the current

Commissioner of the NJDOE, William Librera and to retain Vito A.

Gagliardi as a defendant in his individual capacity only. 

When appropriate, we refer to the NJDOE and the state officials

collectively as the “State.” 

3
with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-

87; (b) 42 U.S.C. § 1983, based on the claimed violations of

the IDEA; and (c) the New Jersey Constitution and relevant

state laws. After the District Court denied their motions to

dismiss, Defendants appealed. The principal issue on

appeal is whether the state of New Jersey waived its

sovereign immunity from suit in federal court when it

accepted funds disbursed pursuant to the IDEA. Insofar as

the District Court held that the state had waived its

sovereign immunity, we will affirm.3

I. BACKGROUND

A. The Statutory Framework of the IDEA

The IDEA is a comprehensive scheme of federal

legislation designed to meet the special educational needs

of children with disabilities. See Dellmuth v. Muth, 491 U.S.

223, 225 (1989). The legislation was enacted in part based

on Congress’s findings that, prior to 1975,4“the special

educational needs of children with disabilities were not

being fully met,” and that “more than one-half of the

children with disabilities in the United States did not

receive appropriate educational services that would enable

such children to have full equality of opportunity.” 20

U.S.C. § 1400(c)(2)(A) and (2)(B). 

In light of its findings, Congress made federal funds

available to assist states in providing educational services

to children with disabilities. See 20 U.S.C. §§ 1411, 1412(a).

Under the IDEA, assistance is available on the condition

that states meet a number of substantive and procedural

criteria. See 20 U.S.C. § 1412(a)(1)-(a)(22); W.B. v. Matula,

67 F.3d 484, 491 (3d Cir. 1995). The cornerstone of

3. We note that another panel of this Court has recently reached the

same conclusion. See A.W. v. The Jersey City Public Schools, No. 02-

2056, 2003 WL 21962952 (3d Cir. Aug. 19, 2003). 

4. The IDEA was originally enacted in 1970 as the Education of the

Handicapped Act (“EHA”), Pub. L. No. 91-230, 84 Stat. 175, §§ 601-662,

as amended 20 U.S.C. § 1400-87. See Honig v. Doe, 484 U.S. 305, 309

(1988); Beth V. v. Carroll, 87 F.3d 80, 82 (3d Cir. 1996). 

4
eligibility for federal funds under the IDEA is the

substantive right of disabled children to a “free appropriate

public education.” 20 U.S.C. § 1412(a)(1); see Honig v. Doe,

484 U.S. 305, 308-10 (1988); Beth V. v. Carroll, 87 F.3d 80,

82 (3d Cir. 1996). As we noted in Matula, a free appropriate

education “ ‘consists of educational instruction specifically

designed to meet the unique needs of the handicapped

child, supported by such services as are necessary to

permit the child “to benefit” from the instruction.’ ” 67 F.3d

at 491 (citing Board of Education v. Rowley, 458 U.S. 176,

188-89 (1982)). 

In addition to the condition of ensuring free, appropriate

public education, the IDEA requires states to guarantee

certain procedural rights in order to qualify for funding.

Many of these procedural mechanisms have been

implemented in the laws and regulations of New Jersey. See

id. at 492 (“New Jersey fulfills its obligations [under the

IDEA] through a complex statutory and regulatory scheme

. . . .”). Several of the procedural rights bear upon the

Plaintiffs’ allegations here. 

First, a state must demonstrate that it has a system in

place to identify, locate, and evaluate all children with

disabilities residing in the state. See 20 U.S.C. § 1412(a)(3);5

see also Matula, 67 F.3d at 492; N.J.A.C. § 6A:14-3.1(a).

This obligation is commonly referred to as the “child find”

duty. Matula, 67 F.3d at 492. In New Jersey, if a parent

requests an evaluation for his or her child, the request

shall immediately be considered a referral to a Child Study

Team (“CST”) to determine if the child should be classified

as disabled. See N.J.A.C. § 6A:14-3.3(d)(2). 

Second, after identifying and evaluating children with

disabilities, a state must develop and implement Individual

Education Programs (“IEP”) for all children classified as

disabled. See 20 U.S.C. §§ 1412(a)(4), 1414(d); see also 34

C.F.R. § 300.128(a); N.J.A.C. § 6A:14-3.1(a); Matula, 67

5. Specifically, § 1412(a)(3) requires states to ensure that “All children

with disabilities residing in the State . . . are identified, located, and

evaluated and a practical method is developed and implemented to

determine which children with disabilities are currently receiving needed

special education and related services.” 

5
F.3d at 492 (“The primary mechanism for delivering a free

appropriate education is the development of a detailed

instruction plan, known as an Individual Education

Program . . . .”). Each IEP must take the form of a written

statement setting forth, among other things, the effect of a

child’s disability, measurable goals and benchmarks, the

special educational services to be provided to the child, and

the child’s progress under the IEP. See 20 U.S.C.

§ 1414(d)(1)(A). 

Both the IDEA and, in greater detail, the implementing

laws of New Jersey delineate timetables for meeting various

IDEA obligations. For instance, if a student is referred for

an evaluation, the CST, including the child’s teacher, must

convene a meeting with the child’s parents within 20 days.

See N.J.A.C. § 6A:14-3.3(e). A decision based on the

evaluation should be made within 15 days of the meeting.

See N.J.A.C. § 6A:14-2.3(e) and (f). If a child is determined

to be disabled, the CST must convene a meeting to develop

an IEP within 30 days. See 34 C.F.R. § 300.343(b)(2). From

start to finish, the laws of New Jersey require

implementation of an IEP for a disabled child within 90

days of initial evaluation. See N.J.A.C. § 6A:14-3.4(c). 

Third, the IDEA affords parents a number of other

procedural safeguards. Parents have the right to (1)

examine all records and participate in all meetings with

respect to the identification, evaluation, and educational

placement of their child, 20 U.S.C. § 1415(b)(1); (2) receive

written notice whenever a school proposes to change or

refuses to change an identification, evaluation, or

educational placement of their child, § 1415(b)(3); and (3)

participate in mediation to resolve any disputes arising

under the IDEA, § 1415(b)(5). See also Matula, 67 F.3d at

492. 

Fourth, the IDEA requires states to provide “an

opportunity to present complaints with respect to any

matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a

free appropriate public education to such child.” 20 U.S.C.

§ 1415(b)(6); see also Beth V., 87 F.3d at 82. The complaint

procedure must also provide parents an impartial due

process hearing to be conducted by the state or local

6
educational agency in accordance with the state’s laws. See

20 U.S.C. § 1415(f); see also Beth V., 67 F.3d at 82. Any

party aggrieved by the findings and decision of the due

process hearing has the right to appeal to either state court

or federal court. See 20 U.S.C. § 1415(i)(2); see also Beth V.,

67 F.3d at 82. 

As the text of the IDEA suggests, state agencies and local

educational agencies, or school boards, share the

responsibility for complying with the requirements of the

Act. Naturally, when decisions concerning the educational

services of an individual child are at issue, the duties will

tend to shift from those removed from the situation to the

local educational agencies with greater access and

knowledge. New Jersey’s statutory scheme for implementing

the IDEA recognizes these shared duties. See N.J.A.C.

§ 6A:14-3.1(a) and (b) (school districts responsible for the

development and review of IEPs, as well as the placement

of children with disabilities). Nevertheless, as Plaintiffs

allege, the participating state retains primary responsibility

for ensuring compliance with the IDEA and for

administering educational programs for disabled children.

See 20 U.S.C. § 1412(a)(11)(A); Kruelle v. New Castle County

School District, 642 F.2d 687, 696 (3d Cir. 1981). 

Because the IDEA offers conditional federal funds for

state educational programs with full recognition of the

importance of state laws and local educational agencies,

courts have described the Act as a model of “cooperative

federalism.” Beth V., 87 F.3d at 82 (citations omitted). 

B. Factual Background

We turn to the specific factual allegations in the present

case. At this point in the litigation, we accept all wellpleaded allegations in the Complaint as true and draw all

reasonable inferences in favor of the non-moving parties.

Board of Trustees of Teamsters Local 863 Pension Fund v.

Foodtown, Inc., 296 F.3d 164, 168 (3d Cir. 2002). Plaintiffs

are the parents of six minors who attended schools in

Newark. Based on their experiences, the children may be

grouped into two categories: (1) E.S., G.T., A.O., and M.M.

are allegedly disabled children who, despite repeated

7
requests by their parents, never received an evaluation to

determine eligibility for special education services, or never

benefitted from the implementation of IEPs; and (2) O.D.J.

and A.J.E. were evaluated as disabled children and began

receiving special education services, but only after years of

neglect by local educational agencies and the state. 

E.S. entered Newark’s public schools in September 1997

as a kindergartner. For several years, E.S. either failed or

marginally passed most classes, but nevertheless advanced

to the next grade level each year. Sometime during the

1999-2000 school year, E.S.’s mother requested help. As

instructed by the School Principal, E.S.’s mother asked for

an evaluation. Despite three separate follow-up requests, no

evaluation was ever scheduled for E.S. School officials told

E.S.’s mother that Newark lacked the resources to evaluate

every potentially disabled child and that it would be a

“waste of time” to continue sending E.S. to school. Compl.

at ¶ 108. 

G.T.’s mother initially requested an evaluation in

September 2000, as a result of G.T.’s poor academic

performance. School officials never responded. In 2001, a

private physician diagnosed G.T. with Attention Deficit

Hyperactive Disorder (“ADHD”) and Myasthenia Gravis. Id.

at ¶¶ 112-13. At the time, G.T. was in the third grade at a

Newark public school. G.T.’s mother requested evaluations

again on two separate occasions. Finally, school officials

attempted to schedule an initial meeting to determine

whether an evaluation was necessary, but postponed on

numerous occasions. Despite G.T.’s diagnosed disabilities,

“[a]fter five scheduled meetings to determine whether an

evaluation was warranted, Newark has yet to decide

whether an evaluation is warranted.” Id. at ¶ 125. 

A.O. was diagnosed with Attention Deficit Disorder

(“ADD”) and has been taking Ritalin for his ADD since the

age of seven. Because of poor academic performance and

behavioral problems, A.O. attended three different schools

in three years. After numerous requests and three separate

diagnoses by private physicians of possible “neuro-based

learning disabilities” and ADD, A.O. finally received a CST

evaluation on May 23, 2001. Id. at ¶ 133. Although the CST

determined that A.O. had a “specific learning disability” and

8
developed an IEP for him, the IEP was never implemented.

Id. at ¶¶ 161-62. “Given the four years during which

Defendants failed to address A.O.’s educational needs,

[A.O.’s mother] remains extremely skeptical of whether or

not Defendants will provide her son with the necessary

services in the 2001-2002 school year.” Id. at ¶ 163. 

M.M.’s mother first requested an evaluation for her son in

March 1999. After that request went unheeded, M.M.’s

mother went to a private physician, who diagnosed M.M.

with ADHD and prescribed Ritalin. Because of his

hyperactivity and impulsive behavior, the physician

recommended that M.M. be placed in a small classroom

setting. M.M.’s mother again requested an evaluation at the

start of the 1999-2000 school year. After several months,

school officials merely suggested intervention strategies.

The entire school year passed without an evaluation by the

CST. Although an eligibility evaluation finally took place in

February 2001, “Newark conducted an incomplete

evaluation. Moreover, Defendants have yet to provide M.M.

with special education and related services, and Defendants

have not mentioned their obligation to provide M.M. with

‘compensatory education.’ ” Id. at ¶ 187. 

The experiences of O.D.J. and A.J.E. differ from those of

the first four children in that they were classified as

disabled and ultimately began receiving special education

services after repeated requests from parents and

intervention by their families’ lawyers. However, neither

O.D.J. nor A.J.E. have received the compensatory

education for the time during which they were deprived of

appropriate education. Both of them failed to receive special

education services for approximately two years before

school officials implemented their IEPs. 

Based on similar anecdotal evidence, Plaintiffs’ attorneys

at the Education Law Center (“ELC”) filed a complaint

investigation request with the NJDOE on July 24, 1998.6

Although some of the parents identified in the complaint

had earlier requested due process hearings in accordance

6. From the record it appears that the only child mentioned in the

present action who was also named in the July 24, 1998 complaint

investigation request is O.D.J. See App. at 84-85. 

9
with the IDEA and state statutes, others had not. The ELC

requested a formal investigation into Newark’s failure to

identify and evaluate children with potential disabilities in

both public and private schools and to conduct disability

evaluations in a timely manner. Id. at ¶ 72. 

ELC’s complaint resulted in two reports from the office of

the NJDOE. The first Complaint Investigation Report was

dated December 28, 1998, signed by Director Gantwerk,

and transmitted by Zangrillo. Notably, the NJDOE found

that Newark had “ ‘failed to develop an efficient procedure

to address the inordinately large number of incomplete,

noncompliant initial cases.’ ” Id. at ¶ 77. Furthermore, the

NJDOE acknowledged that “Newark was engaged in

‘systemic noncompliance with the requirements established

in N.J.A.C. 6[A]:28 and N.J.A.C. 6A:14 regarding the

identification and evaluation of potentially disabled pupils

residing in the city of Newark.’ ” Id. at ¶ 83. The state

recommended systemic corrective action. Id.

The NJDOE subsequently issued a Report of Findings on

September 6, 2000, based on information gathered during

a visit to Newark between May 8 and May 15, 2000. In the

September Report, the NJDOE observed that Newark

continued to suffer from a lack of and ineffective

deployment of staff, which were continuing to impact

Newark’s ability to adhere to statutory deadlines. Therefore,

the State ordered an improvement plan to be implemented

as soon as possible. 

Despite the assurances in these reports about systemic

corrective action and improvement plans, Plaintiffs contend

that none of the students named in the July 24, 1998

complaint, and none of the children identified in the

present Complaint, received the compensatory education to

which they are entitled. 

C. Procedural History

On the basis of these allegations, Plaintiffs filed a

Complaint in District Court asserting twelve causes of

action. The first eight allege violations of the IDEA against

all Defendants. The ninth and tenth causes of action assert

violations of Plaintiffs’ civil rights pursuant to 42 U.S.C.

10
§ 1983 for noncompliance with the IDEA. These claims are

asserted against all Defendants and the NJDOE,

respectively. The eleventh and twelfth causes of action

allege violations of the New Jersey state constitution and of

the “Abbott v. Burke” mandates.7 These claims are brought

against Newark and the NJDOE, respectively. Plaintiffs also

requested entry of a permanent injunction ordering

Defendants to abide by their obligations under the IDEA

and relevant New Jersey state law. Because of the

widespread systemic failures at the local and state levels

detailed in the Complaint, Plaintiffs brought suit on behalf

of all others similarly situated to the six named children. 

Pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules

of Civil Procedure, the NJDOE and the State officials moved

to dismiss the Complaint. Defendants advanced numerous

grounds for dismissal. First, the State argued that the

NJDOE and the named officials were immune from suit

under the IDEA pursuant to the Eleventh Amendment.

Second, it contended that Plaintiffs’ IDEA and § 1983

causes of action should be dismissed for their failure to

exhaust administrative remedies as required by 20 U.S.C.

§ 1415(l).8 Third, the state argues that, based on the State’s

sovereign immunity, entry of injunctive relief was improper

against it and that it was not the proper subject of an order

directing the provision of free, appropriate public education.

Fourth, as to the state law claims, the District Court should

abstain from asserting jurisdiction over them because of

the State’s sovereign immunity. 

7. The Abbott v. Burke mandates were set forth in a line of cases before

the Supreme Court of New Jersey. See, e.g., Abbott ex rel. Abbott v.

Burke, 575 A.2d 359 (N.J. 1990); Abbott ex rel. Abbott v. Burke, 710 A.2d

450 (N.J. 1998); Abbott ex rel. Abbott v. Burke, 751 A.2d 1032 (N.J.

2000). 

8. Newark also moved to dismiss the Complaint on various grounds. See

App. at 6-7. Newark is not a party to this appeal as it did not file a

notice of appeal. Nevertheless, it filed a supporting brief urging dismissal

of the Complaint on the exhaustion grounds advanced by the state. In

an Order dated October 29, 2002, we granted Plaintiffs’ motion to strike

Newark’s brief. In any event, Newark’s contentions are addressed in

connection with our discussion of the State’s exhaustion arguments. 

11
The District Court denied the motions to dismiss in their

entirety. The Court held that Congress validly abrogated the

states’ sovereign immunity in enacting the IDEA and that,

in any event, New Jersey had waived its Eleventh

Amendment immunity by accepting IDEA funds. Second,

the Court found the State’s exhaustion arguments

unavailing because Plaintiffs had alleged a widespread

systemic breakdown of the provision of free, appropriate

public education, a claim which could not be addressed

sufficiently in administrative proceedings. Third, the Court

entered a preliminary injunction against all Defendants in

a separate order, reasoning that immunity was not

available to the State and that the State was a proper party

to the order. Fourth, having retained the federal claims, the

Court exercised its supplemental jurisdiction over the State

law claims in the Complaint. 

The State’s appeal followed. 

II. Jurisdiction

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1343, 1367, and the relevant provision of the IDEA

granting subject matter jurisdiction over claims arising

under the Act to the federal courts. See 20 U.S.C.

§ 1415(i)(3)(A). 

Because the State reasserts nearly the full panoply of

defenses that it argued before the District Court, our

jurisdiction over this appeal requires some clarification. We

first consider whether we have jurisdiction over the District

Court’s rulings. 28 U.S.C. § 1291 limits our jurisdiction to

final judgments. See We Inc. v. City of Philadelphia, 174

F.3d 322, 324 (3d Cir. 1999). A final judgment is one that

“ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.” Cunningham v.

Hamilton County, Ohio, 527 U.S. 198, 204 (1999) (citations

omitted). The final judgment rule calls into question several

claims made by the State on appeal. 

The denial of a motion to dismiss on the grounds of

failure to exhaust administrative remedies is not, by any

definition, a final judgment that ends the litigation on the

merits. The District Court’s decision merely indicates that

12
a decision on the merits of the IDEA and § 1983 claims lies

ahead. The notion that a denial of a motion to dismiss for

failure to exhaust is not a final judgment is “[s]o clear . . .

that, until now, no court of appeals has been required to

deal in a published opinion with a contention that rejection

of an exhaustion argument is immediately appealable.”

Davis v. Streekstra, 227 F.3d 759, 762 (7th Cir. 2000). In

a similar situation, we held that a district court’s denial of

a motion to dismiss for failure to submit to an informal

dispute resolution procedure was not immediately

appealable. See Harrison v. Nissan Motor Corp. in U.S.A.,

111 F.3d 343, 352 (3d Cir. 1997). While we tend to agree

with the State that the issue of exhaustion is important, we

cannot conclude that the District Court’s decision was

conclusive or that the exhaustion issue will be

unreviewable on appeal after a decision on the merits. For

these reasons, we lack jurisdiction to review the State’s

exhaustion arguments at this stage of the litigation. 

The District Court’s decision to exercise supplemental

jurisdiction over the claims under New Jersey state law is

also not final. While we have said that a discretionary

remand that takes place pursuant to 28 U.S.C. § 1367(c)

may constitute a final judgment, see In re U.S. Healthcare,

Inc., 193 F.3d 151, 159 (3d Cir. 1999), cert. denied, 530

U.S. 1242 (2000), that situation is the exact opposite of the

one present here, where the District Court has retained its

supplemental jurisdiction over the two state law causes of

action. Again, a final decision on the merits lies ahead, and

we lack jurisdiction to review this aspect of the District

Court’s judgment.9

Pursuant to the collateral order doctrine, however, we

have jurisdiction to review the state’s claim of Eleventh

Amendment immunity. See Puerto Rico Aqueduct & Sewer

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)

(“We hold that States and state entities that claim to be

9. The State reasserted the sovereign immunity argument in their motion

to dismiss the § 1983 and state law claims. Our analysis of the Eleventh

Amendment issue in Part III.A, infra, controls with respect to the State’s

objections to all three sets of Plaintiffs’ claims under the IDEA, § 1983,

and state law. 

13
‘arms of the State’ may take advantage of the collateral

order doctrine to appeal a district court order denying a

claim of Eleventh Amendment immunity.”). Because the

protection of the Eleventh Amendment is akin to absolute

immunity from suit, rather than an affirmative defense,

that protection is lost if the suit is permitted to proceed

without an appeal. See id. at 144. 

As to the entry of injunctive relief, we have jurisdiction

pursuant to 28 U.S.C. 1292(a)(1) over the state’s

interlocutory appeal. Therefore, our analysis below is

confined to these two aspects of the District Court’s

judgment. 

Our review of the denial of sovereign immunity is plenary,

and we review the entry of injunctive relief for abuse of

discretion. See Lavia v. Pennsylvania Department of

Corrections, 224 F.3d 190, 194 (3d Cir. 2000); Novartis

Consumer Health, Inc. v. Johnson & Johnson-Merck

Consumer Pharmaceuticals Co., 290 F.3d 578, 586 (3d Cir.

2002). 

III. ANALYSIS

A. Eleventh Amendment Immunity

The Eleventh Amendment to the United States

Constitution 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. While the text of the Eleventh

Amendment refers only to suits against states brought by

citizens of another state or a foreign state, see Koslow v.

Commonwealth of Pennsylvania, 302 F.3d 161, 167 (3d Cir.

2002), cert. denied, 123 S. Ct. 1353 (2003), the Supreme

Court has consistently reaffirmed the fundamental

constitutional protections embodied in state sovereignty.

See College Savings Bank v. Florida Prepaid Postsecondary

Education Expense Board, 527 U.S. 666, 669-70 (1999);

14
Alden v. Maine, 527 U.S. 706, 713 (1999). Thus, in Hans v.

Louisiana, the Supreme Court held that the Eleventh

Amendment also barred a citizen from bringing suit against

his own state in federal court, as Plaintiffs seek to do here.

134 U.S. 1 (1890); see also Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 238 (1985). 

As we observed in MCI Telecommunication Corp. v. Bell

Atlantic-Pennsylvania, there are only three narrowly

circumscribed exceptions to Eleventh Amendment

immunity: (1) abrogation by Act of Congress, (2) waiver by

state consent to suit; and (3) suits against individual state

officials for prospective relief to remedy an ongoing violation

of federal law. 271 F.3d 491, 503 (3d Cir. 2001), cert.

denied, 123 S. Ct. 340 (2002); see also College Savings

Bank, 527 U.S. at 670. Here, the District Court held that

Congress had validly abrogated the states’ sovereign

immunity in enacting the IDEA and that New Jersey had

waived its Eleventh Amendment protection by accepting

IDEA funds. We find, however, that the waiver analysis

controls the outcome in this case and that, therefore, a

lengthy discussion of abrogation is unnecessary. See

Douglas v. California Dept. of Youth Authority, 271 F.3d

812, 820 (9th Cir.) (“If we conclude that California waived

its sovereign immunity by accepting Federal Rehabilitation

Act funds, we need not reach the question whether

Congress validly abrogated the states’ sovereign immunity

under the Rehabilitation Act.”), amended by 271 F.3d 910

(2001), cert. denied, 536 U.S. 924 (2002); see also Koslow,

302 F.3d at 169 (reserving consideration of abrogation of

sovereign immunity under the Rehabilitation Act, while

finding that Pennsylvania had waived its Eleventh

Amendment protection).10

The Supreme Court recently reiterated that a state’s

sovereign immunity is “ ‘a personal privilege which it may

waive at pleasure.’ ” College Savings Bank, 527 U.S. at 675

(quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)). A

state’s waiver, however, “ ‘is altogether voluntary on the

part of the sovereignty.’ ” Id. (quoting Beers v. Arkansas, 61

10. We address the third exception to Eleventh Amendment immunity—

prospective injunctive relief—briefly in Part III.B, infra. 

15
U.S. (20 How.) 527, 529 (1858)). A finding of waiver is

appropriate only where the state’s consent is “stated by the

most express language or by such overwhelming

implications from the text as [will] leave no room for any

other reasonable construction.” Edelman v. Jordan, 415

U.S. 651, 673 (1974). Courts are instructed to “ ‘indulge

every reasonable presumption against waiver’ ” of sovereign

immunity. College Savings Bank, 527 U.S. 682 (quoting

Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393

(1937)). In light of the Supreme Court’s guidance, we have

acknowledged that the “waiver by the state must be

voluntary and our test for determining voluntariness is a

stringent one.” MCI, 271 F.3d at 503 (citations omitted).

In recent years, there have been a number of suits

against sovereign states under federal remedial legislation

and, as a result, substantial contributions to Eleventh

Amendment jurisprudence. See, e.g., Koslow, 302 F.3d at

168. Based on the case law, we discern at least two ways

in which a state may consent to suit in federal court and

waive its Eleventh Amendment immunity. First, a state may

make an unambiguous statement that it intends to subject

itself to suit in, for example, state legislation or an

interstate compact. See, e.g., Petty v. Tennessee-Missouri

Bridge Commission, 359 U.S. 275, 277-82 (1959). The

second scenario—the one relevant to the present appeal—

occurs when Congress bestows a gift or gratuity, to which

the state is not otherwise entitled, with the condition that

the state waive its Eleventh Amendment immunity, and the

state accepts that gift or gratuity. See MCI, 271 F.3d at 505

(“[T]he disbursement of federal monies are congressionally

bestowed gifts or gratuities, which Congress is under no

obligation to make, which a state is not otherwise entitled

to receive, and to which Congress can attach whatever

conditions it chooses.”) (citation omitted). As is often the

case, but not always, the gift or gratuity at issue is federal

funds disbursed by Congress pursuant to its Article I

spending powers. See U.S. CONST. art. I, § 8, cl. 1. Compare

MCI, 271 F.3d at 513 (referring to the “gift or gratuity of the

power to regulate local telecommunications competition

under the Act” under the Commerce Clause) with Koslow,

302 F.3d at 172 (finding that federal financial assistance

under the State Criminal Alien Assistance Act was a

16
Congressional gift or gratuity triggering a waiver of

Pennsylvania’s Eleventh Amendment immunity). 

To the extent that the State disputes Congress’s authority

to exercise its spending authority in a manner that

demands a waiver of sovereign immunity, we disagree.

While the applicable test for assessing a state’s waiver of

sovereign immunity is unquestionably stringent, the recent

cases have also made clear that “ ‘Congress may require a

waiver of state sovereign immunity as a condition for

receiving federal funds, even though Congress could not

order the waiver directly.’ ” Koslow, 302 F.3d at 172

(quoting Jim C. v. United States, 235 F.3d 1079, 1081 (8th

Cir. 2000)); see also MCI, 271 F.3d at 505 (“A fair reading

of College Savings suggests that Congress may, pursuant to

its regulatory power under [Article I of] the Commerce

Clause, require a state to waive immunity in order to

receive a benefit to which the state is not entitled absent a

grant or gift from Congress.”). 

Based on this recent jurisprudence, we conclude that

three requirements must be met before a court may

determine that a state has waived its sovereign immunity

by accepting a Congressional gift or gratuity: (1) Congress

must state in clear and unambiguous terms that waiver of

sovereign immunity is a condition of receiving the gift or

gratuity; (2) in accepting the gift or gratuity, states must

exercise that choice knowingly and voluntarily, fully

cognizant of the consequence—waiver of Eleventh

Amendment immunity; and (3) the federal program

bestowing the gift or gratuity must be a valid exercise of

Congress’s authority. See College Savings Bank, 527 U.S. at

680-82 (“The classic description of an effective waiver of a

constitutional right is the ‘intentional relinquishment or

abandonment of a known right or privilege.’ ”) (citations

omitted); Koslow, 302 F.3d at 171-75 (discussing

requirements of valid Spending Clause legislation); MCI,

271 F.3d at 503-06 (“Congress must be unmistakably clear

and unambiguous in stating its intent to condition receipt

of the gratuity on the state’s consent to waive its sovereign

immunity and to be sued in federal court.”) (citation

omitted). 

17
We turn to the specific provisions of the IDEA on which

the District Court and Plaintiffs rely in support of their

contention that New Jersey waived its Eleventh Amendment

immunity. As we noted above, the IDEA provides federal

funds for state education programs in return for meeting a

number of conditions. 20 U.S.C. §§ 1411 and 1412(a).

There is no dispute in this case that New Jersey has

accepted IDEA funds. One clear and unmistakable

component of the IDEA is a state’s waiver of Eleventh

Amendment immunity. Section 1403 of the IDEA states: “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). In

addition, § 1403 should be read in conjunction with

§ 1415(i)(2)(A) which requires states to provide an

opportunity for review of IDEA decisions in federal court.

See Bradley v. Arkansas Dept. of Education, 189 F.3d 745,

753 (8th Cir. 1999), overruled on other grounds, Jim C. v.

United States, 235 F.3d 1079 (8th Cir. 2000). Taken

together, §§ 1403 and 1415 embody a clear and

unambiguous expression of Congress’s intent to condition a

state’s participation in the IDEA on the state’s waiver of

Eleventh Amendment immunity from suit in federal court.

See id. Given the unmistakable loss of Eleventh

Amendment immunity set forth in §§ 1403 and 1415 that

would occur upon acceptance of funds disbursed pursuant

to §§ 1411 and 1412, it would have been difficult for New

Jersey not to comprehend the nature of the bargain when

it accepted IDEA funds. If New Jersey felt that its Eleventh

Amendment immunity were more important than funds for

special education programs, then it could have preserved

its constitutional protections by declining IDEA funds. In

any event, the choice belonged to the State and the State

alone. See Koslow, 302 F.3d at 171. 

Notwithstanding the structural clarity of the IDEA, and

particularly §§ 1403 and 1415, the State contends that

several circumstances cast doubt on the clarity required to

effect a valid waiver. First, the State observes that in other

federal statutes which courts have found to set forth a

waiver as a condition for receiving federal funds, specific

language was included to make clear that acceptance of

federal funds would trigger the waiver. Because § 1403 fails

18
to mention anything about acceptance of federal funds,

New Jersey claims that waiver is not a clear condition of

participation in the IDEA. Second, the State argues that

because § 1403 is titled “Abrogation of state sovereign

immunity,” it understood that section as an attempt by

Congress to abrogate sovereign immunity and not as a clear

and unambiguous condition of waiver. Finally, the State

contends that because it understood § 1403 as an attempt

to abrogate, its consent to suit in federal court could not

have been knowing or intentional because it assumed that

there was no sovereignty for it to waive. None of these

arguments are availing. 

The State correctly observes that other federal legislation

effecting a waiver of the states’ sovereign immunity makes

explicit reference to receipt of federal funds. For instance,

amendments to the Rehabilitation Act enacted in 1986

contain such language:

A State shall not be immune under the Eleventh

Amendment of the Constitution of the United States

from suit in Federal court for a violation of section 504

of the Rehabilitation Act of 1973 [29 U.S.C.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. 

42 U.S.C. § 2000d-7(a)(1) (emphasis added). The Supreme

Court held that § 2000d-7(a)(1) accomplished a valid and

unambiguous waiver of the states’ Eleventh Amendment

immunity. See Lane v. Pena, 518 U.S. 187, 198-200 (1996);

Koslow, 302 F.3d at 172 (Pennsylvania’s receipt of federal

funds under the State Criminal Alien Assistance Program

effected a waiver of its Eleventh Amendment immunity for

claims under § 504 of the Rehabilitation Act). 

Despite the mention of “Federal financial assistance” in

§ 2000d-7(a)(1), we have stated previously that the waiver

analysis does not hinge on the invocation of talismanic

language, a point that the NJDOE concedes. See MCI, 271

19
F.3d at 513 (“It is true that the [Telecommunications Act of

1996] does not include magic words such as ‘waiver’ or

‘immunity’ or ‘suit.’ . . . We believe, however, that the

language that Congress did use is sufficiently clear to

establish that a state commission’s decision will be subject

to review in an action brought in federal court by an

aggrieved party and sufficiently clear that the commission

may be made a party to that federal court action.”). In the

context of the IDEA, our observation in MCI is instructive.

The absence of any mention of receipt of federal funds does

not change the fact that the language and the structure of

the IDEA condition the receipt of federal funds on a state’s

waiver of sovereign immunity. See Board of Education of

Oak Park and River Forest High School Dist. No. 200 v. Kelly

E., 207 F.3d 931, 935 (7th Cir.) (although § 1403(a) of the

IDEA “does not use words such as ‘consent’ or ‘waiver,’ it

is hard to see why that should matter. Congress did what

it could to ensure that states participating in the IDEA are

amenable to suit in federal court.”), cert. denied, 531 U.S.

824 (2000). In this case, we see no upside to squinting

myopically at the final phrase of § 2000d-7(a)(1), when the

focus should remain on the text and structure of the IDEA.

This is especially true where the operative waiver language

—that which limits Eleventh Amendment immunity—is

almost identical in § 2000d-7(a)(1) and § 1403 of the IDEA.

Second, the State argues that there is some meaning to

the fact that the heading of § 1403 reads “Abrogation of

sovereign immunity.” We disagree. It is a well-settled rule of

statutory interpretation that titles and section headings

cannot limit the plain meaning of statutory text where that

text is clear. See Demore v. Kim, 123 S.Ct. 1708, 1724

(2003) (“[T]he title of a statute has no power to give what

the text of the statute takes away.”); I.N.S. v. St. Cyr, 533

U.S. 289, 308 (2001) (“[A] title alone is not controlling.”)

(citing Pennsylvania Dept. of Corrections v. Yeskey, 524

U.S. 206, 212 (1998)); Brotherhood of R.R. Trainmen v.

Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)

(“[M]atters in the text which deviate from those falling

within the general pattern are frequently unreflected in the

headings and titles. Factors of this type have led to the wise

rule that the title of a statute and the heading of a section

cannot limit the plain meaning of the text.”). We underscore

20
again that a plain reading of §§ 1411 and 1412, in

conjunction with §§ 1403 and 1415, unmistakably

conditions a state’s receipt of IDEA funds on the waiver of

sovereign immunity. See Bradley, 189 F.3d at 753

(although there has been “some unease” with the heading

of § 1403, “[w]hen 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

immunity from suit in federal court on claims made under

the IDEA.”). Therefore, the use of the term abrogation in the

heading of § 1403 does not alter the condition of waiver of

Eleventh Amendment immunity as reflected in the plain

text of the IDEA. 

Our discussion above should not be mistaken for a

casual acceptance of legislative ambiguity. We agree with

the Eighth Circuit that “§ 1403 has some shortcomings that

limit its use as a clear expression of Congress’s intent to

condition a receipt of IDEA funds on a state’s waiving its

immunity . . . .” Bradley, 189 F.3d at 753. Without

question, the condition of waiver of Eleventh Amendment

immunity could have been accomplished with greater

precision in the IDEA. Nevertheless, the inquiry should

hinge on what Congress did accomplish, and in that regard,

we agree that “Congress did what it could to ensure that

states participating in the IDEA are amenable to suit in

federal court.” Kelly E., 207 F.3d at 935. 

Despite the clarity of the condition of waiver in the IDEA,

the State also contends that it could not knowingly and

intelligently waive its Eleventh Amendment immunity

because it reasonably believed that Congress had already

abrogated its sovereign immunity by operation of § 1403.

According to the NJDOE, “Congress cannot indicate an

intent to abrogate sovereign immunity, as it did in § 1403

of the IDEA, and expect the States to divine a

Congressional intent to condition receipt of federal funds on

the waiver of sovereign immunity.” Appellants’ Brief, at 25.

This argument is borrowed from the Second Circuit’s

decision in Garcia v. S.U.N.Y. Health Sciences Center of

Brooklyn, where the court held that New York did not waive

its sovereign immunity from suit under the Americans with

21
Disabilities Act and the Rehabilitation Act when it accepted

federal funds for a state university medical school because

New York had reasonably believed that Congress had

abrogated its Eleventh Amendment immunity. 280 F.3d 98,

114 (2d Cir. 2001). The court stated that “a state accepting

conditioned federal funds could not have understood that

in doing so it was actually abandoning its sovereign

immunity from private damages suits . . . . since by all

reasonable appearances state sovereign immunity had

already been lost.” Id. (citations omitted). In the context of

the IDEA, the Fifth Circuit adopted this rationale in holding

that the state of Louisiana did not knowingly waive its

Eleventh Amendment immunity by accepting IDEA funds.

See Pace v. Bogalusa City School Board, 325 F.3d 609, 617

(5th Cir. 2003).11

For several reasons, we find the State’s argument

unavailing. To begin with, the reasoning proceeds from an

unrealistic assumption. As we noted above, the fact that

Congress employed the term abrogation does not change

the language and structure of the IDEA, which clearly

effects a waiver of Eleventh Amendment immunity. The

NJDOE would have us believe that it could reasonably close

its eyes to the integrated structure of §§ 1403, 1411, 1412,

and 1415 of the IDEA and conclude that there would be no

consequence each time it accepted IDEA funds. We remain

skeptical. 

In addition, the state’s argument makes little sense from

a temporal perspective. In an alternative Eleventh

Amendment argument, the NJDOE contends that although

Congress had attempted to abrogate its sovereign

immunity, that attempt exceeded Congress’s constitutional

authority to do so. In support of this argument, the state

cites a line of cases in which the Supreme Court invalidated

six separate statutes purporting to limit the states’

sovereign immunity. Appellants’ Brief, at 19. This line of

cases begins with the Supreme Court’s June 1997 decision

in City of Boerne v. Flores, 521 U.S. 507 (1997), and

11. On July 17, 2003, the Fifth Circuit granted appellant’s petition for

rehearing en banc in Pace v. Bogalusa City School Board, No. 01-31026,

2003 WL 21692677 (5th Cir. July 17, 2003). 

22
includes decisions from 1999-2001.12 What the State seems

to be saying is that while it began to formulate, as early as

June 1997, its belief that the purported abrogation in the

IDEA might be unconstitutional, it nevertheless accepted

IDEA funds without any awareness of the possible

consequence of waiver of its sovereign immunity. The

argument borders on the disingenuous, for the State readily

accepted IDEA funds well after June 1997, during the

critical time periods relevant to this dispute, that is, when

the children named in the Complaint had failed to receive

a free, appropriate public education. In Garcia, the Second

Circuit recognized that a knowing waiver might result when

a state had reason to believe that an attempt to abrogate

was invalid. See Garcia, 280 F.3d at 114 n.4 (“We recognize

that an argument could be made that if there is a colorable

basis for the state to suspect that an express congressional

abrogation is invalid, then the acceptance of funds

conditioned on the waiver might properly reveal a knowing

relinquishment of sovereign immunity. This is because a

state deciding to accept the funds would not be ignorant of

the fact that it was waiving its possible claim to sovereign

immunity.”). 

For these reasons, in the context of this case, we are

unpersuaded by the State’s argument and the rationale

borrowed from Garcia that the NJDOE reasonably believed

that it had lost its sovereign immunity, and therefore, could

not waive it. Given the NJDOE’s emphatic assertions about

the invalidity of the abrogation in § 1403, we believe that

the state accepted IDEA funds with awareness of the

consequences. 

Our inquiry turns briefly to the third requirement of the

test outlined above—the requirement that the federal

program bestowing the gift or gratuity must be a valid

exercise of Congress’s authority. We note that the NJDOE

addresses this issue only in passing in its Opening Brief.

12. See also Florida Prepaid Postsecondary Educational Expense Board v.

College Savings Bank, 527 U.S. 627 (1999); Kimel v. Florida Bd. of

Regents, 528 U.S. 62 (2000); United States v. Morrison, 529 U.S. 598

(2000); Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S.

356 (2001). 

23
Appellants’ Brief, at 27. We also note that any objections to

the validity of Congress’s exercise of authority under the

IDEA would have been unavailing. 

Because the gift bestowed on the states under the IDEA

is federal funds, we understand Congress to proceed from

its authority under the Spending Clause. U.S. CONST. art. I,

§ 8, cl. 1. In Koslow, we recently addressed the

requirements for a valid exercise of Congress’s Spending

Clause authority: “Spending Clause legislation must: (1)

pursue the general welfare; (2) impose unambiguous

conditions on states, so they can exercise choices

knowingly and with awareness of the consequences; (3)

impose conditions related to federal interests in the

program; and (4) not induce unconstitutional action.” 302

F.3d at 175 (citing South Dakota v. Dole, 483 U.S. 203,

207-08 (1987)). In enacting the IDEA, Congress identified a

troubling gap in the provision of public education to

disabled children and sought to allocate federal funds to

remedy the problems, all in pursuit of the general welfare.

As in Dole, where Congress conditioned receipt of federal

highway funds on states’ adoption of a minimum drinking

age of twenty-one, we find the IDEA to be squarely within

Congress’s authority to disburse funds in pursuit of the

general welfare. 483 U.S. at 207. As discussed above, the

availability of federal funds was also clearly and

unambiguously conditioned on a waiver of sovereign

immunity. As to the relatedness requirement, we stated in

Koslow that “one need only identify a discernible

relationship” between the statutory condition and the

federal interest in the program. 302 F.3d at 175. Here,

Congress has clearly expressed an interest in remedying

the problems inherent in providing a free, appropriate

public education to disabled children. The funds disbursed

through the IDEA are targeted directly at remedying those

problems. And the condition of waiver of sovereign

immunity from IDEA claims is directly related to promoting

the substantive and procedural rights embodied in the

IDEA. As a result, we cannot conclude that the financial

inducements of the IDEA were “so coercive as to pass the

point at which ‘pressure turns into compulsion.’ ” Dole, 483

U.S. at 211 (citations omitted). 

24
For the reasons set forth above, we hold that by

accepting IDEA funds, the state of New Jersey waived its

Eleventh Amendment immunity from claims brought

pursuant to the IDEA in federal court. The condition of

waiver was clear and unambiguous, the state was fully

aware of the consequence, and the IDEA funds accepted by

the state flowed from a valid exercise of Congress’s

authority under the Spending Clause. We note that two of

our sister circuits addressing this same issue also held that

the federal funds available under the IDEA are conditioned

upon a state’s waiver of sovereign immunity. Oak Park, 207

F.3d at 935; Bradley, 189 F.3d at 753; but see Pace, 325

F.3d at 617-18 (holding that the state of Louisiana’s

acceptance of IDEA funds did not effect a valid waiver of its

Eleventh Amendment immunity). 

B. The Preliminary Injunction

The remaining issue on appeal for which we have

jurisdiction is the preliminary injunction entered against

Defendants compelling them to continue providing IEPs to

E.S. and G.T., as long as they remain eligible for such

services. To the extent that the state believes that sovereign

immunity bars the entry of injunctive relief, our discussion

above disposes of that argument. This is true for the

individual state officials as well, for the state’s waiver of

Eleventh Amendment immunity renders them unable to

assert a right that no longer exists. See Bradley, 189 F.3d

at 754 (“The only immunities that can be claimed in an

official-capacity action are forms of sovereign immunity that

the entity, qua entity, may possess, such as the Eleventh

Amendment.”) (internal quotations and citations omitted).13

The State’s primary argument on appeal appears to be

that it is an improper party to the injunction because

Newark, and not the State, is the party responsible for

providing the IEPs. Neither the IDEA nor case law supports

the State’s view. As we noted in Part I.A., supra, the State

has the primary responsibility under the IDEA to provide a

13. For this reason, we need not address Plaintiffs’ alternative argument

that Ex Parte Young, 209 U.S. 123 (1908), permits Plaintiffs to proceed

with their claims against the State Officials. 

25
free, appropriate public education and to ensure

compliance with the requirements of the Act. Therefore, we

agree with the District Court that the State is a proper

party to the preliminary injunction at this stage of the

litigation. 

Of course, it is incumbent on courts to proceed with a

complete inquiry into the considerations relevant to a grant

of injunctive relief. Specifically, the District Court should

have considered: (1) the likelihood that the Plaintiffs would

succeed on the merits of their claims; (2) the extent to

which E.S. and G.T. would suffer irreparable harm without

injunctive relief; (3) the potential harm to the Defendants if

an injunction is issued; and (4) the public interest. See

Novartis, 290 F.3d at 586. In its ruling from the bench, the

District Court did not address these factors in its

discussion of the Plaintiffs’ request for injunctive relief. 

Nevertheless, we are persuaded that the Court touched

upon all of these factors in its analysis of the various issues

raised in Defendants’ motions to dismiss. Specifically, the

District Court discussed the NJDOE’s Complaint

Investigation Reports which conceded that Newark had

failed to provide an efficient system of identifying, locating,

and evaluating disabled children, which, in turn,

substantiated some of Plaintiffs’ claims. In addition, the

Court noted implicitly that E.S. and G.T. had already

suffered from years of neglect, and the potential harm to

them from continuing failure to provide appropriate

educational services was readily apparent. In that regard,

the potential harm to Defendants appears to have been

minimal because they undertook to provide these services

by participating in the IDEA. And finally, the maintenance

of appropriate education services to disabled children is in

the public interest, as Congress has detailed in the IDEA.

For these reasons, the District Court did not abuse its

discretion in entering preliminary injunctive relief against

the Defendants. 

IV. CONCLUSION

For the reasons set forth above, we will affirm the

judgment of the District Court, insofar as it held that the

26
state of New Jersey had waived its Eleventh Amendment

immunity by accepting IDEA funds. Furthermore, we will

affirm the entry of preliminary injunctive relief against the

state of New Jersey.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

27