Pace v. Bogalusa City Sch Bd ( 2005 )


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  •                                                                                United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                  REVISED MARCH 16, 2005
                              UNITED STATES COURT OF APPEALS                                 March 8, 2005
                                   For the Fifth Circuit
                                                                                       Charles R. Fulbruge III
                                                                                               Clerk
    
                                            No. 01-31026
    
    
    
    
                                           TRAVIS PACE,
    
                                                                         Plaintiff-Appellant,
    
                                                 VERSUS
    
       THE BOGALUSA CITY SCHOOL BOARD, LOUISIANA STATE BOARD OF
      ELEMENTARY AND SECONDARY EDUCATION, THE LOUISIANA DEPARTMENT
                OF EDUCATION, and THE STATE OF LOUISIANA,
    
                                                                       Defendants-Appellees.
    
    
    
    
                    Appeal from the United States District Court
                        For the Eastern District of Louisiana
    
    
    
    
    Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
    WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS and
    PRADO, Circuit Judges.1
    
    DAVIS and WIENER, Circuit Judges:
    
         Travis Pace (Pace) appeals the district court’s dismissal of
    
    his claim under the Individuals with Disabilities Education Act
    
    (IDEA) and the district court’s order granting summary judgment in
    
    favor     of   defendants        on    Pace’s      claims      under     Title      II    of   the
    
    Americans with Disabilities Act (ADA or Title II) and § 504 of the
    
    
         1
             Judge Clement recused herself and did not participate in this decision.
    Rehabilitation      Act    (§   504).     The   panel    of     this   court    which
    
    considered Pace’s appeal concluded that the State of Louisiana, the
    
    Louisiana Department of Education and the Louisiana State Board of
    
    Elementary and Secondary Education (State Defendants) were entitled
    
    to sovereign immunity under the Eleventh Amendment from all of
    
    Pace’s    claims.   The    panel   then     affirmed     the    district     court’s
    
    dismissal of Pace’s claims against the Bogalusa City School Board.
    
    We took this case en banc, first to consider whether the state
    
    defendants were entitled to immunity from Pace’s claims under the
    
    Eleventh Amendment and, second, to consider the merits of Pace’s
    
    claims under the IDEA, ADA and § 504.               For the reasons discussed
    
    below, we now conclude that the State waived its right to immunity
    
    under the Eleventh Amendment and therefore the State defendants are
    
    not entitled to immunity from Pace’s § 504 and IDEA claims.                    On the
    
    merits,    we   conclude    that   the    district      court    did   not     err    in
    
    dismissing Pace’s IDEA claims and that the district court correctly
    
    concluded that the dismissal of Pace’s IDEA claims precluded his
    
    inaccessibility claims under the ADA and § 504.                  We reject Pace’s
    
    argument    that    because     different      legal    standards      control       his
    
    inaccessibility      claims     under    ADA/504,      those    claims    were       not
    
    litigated in his IDEA action.            A 1997 amendment and implementing
    
    regulations to the IDEA expressly require schools to comply with
    
    the identical standards for new construction that ADA/504 and their
    
    regulations require.
    
    
    
                                             -2-
    I.    FACTUAL AND LEGAL BACKGROUND
    
           The     factual      and     procedural        background        of    this     case     is
    
    accurately and succinctly presented in the panel opinion:
    
                In 1994, at the age of fifteen, Travis Pace (Pace)
           was enrolled at Bogalusa High School.             He is
           developmentally delayed, confined to a wheelchair, and
           suffers from cerebral palsy and bladder incontinence. In
           July 1997, Pace’s mother requested a due process hearing
           under the Individuals with Disabilities Education Act
           (IDEA), 20 U.S.C. § 1400, et seq., as she believed that
           Pace was denied a “free appropriate public education”
           (FAPE) due to a lack of handicap accessible facilities at
           Bogalusa High School and deficiencies in Pace’s
           “individualized education programs” (IEPs). The hearing
           officer found that the Bogalusa City Schools System2
           provided Pace with a FAPE in compliance with the IDEA,
           and the State Level Review Panel (SLRP) affirmed the
           hearing officer’s decision.
    
                In September 1997, Pace filed a complaint with the
           Office for Civil Rights of the Department of Education
           (OCR), alleging violations of § 504 of the Rehabilitation
           Act (§ 504), 29 U.S.C. § 794(a), and Title II of the
           Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.
           The OCR and BCSB resolved allegations that the BCSB
           operated services, programs, and activities that were
           physically inaccessible to or unusable by individuals
           with disabilities by entering into a voluntary written
           agreement   under   which   the   BCSB   would   identify
           accessibility barriers and the OCR would oversee the
           development of a compliance plan.
    
                In March 1999, Pace filed suit in federal district
           court, seeking damages and injunctive relief against the
           BCSB, the Louisiana State Board of Elementary and
           Secondary Education, the Louisiana Department of
           Education, and the State of Louisiana, alleging
           violations of the IDEA, the ADA, § 504 of the
           Rehabilitation Act, 42 U.S.C. § 1983, and various state
    
    
    
           2
             The hearing examiner made hearings with regard to the Bogalusa City Schools System. In
    federal court, Pace brought suit against the Bogalusa City School Board. For all practical purposes,
    these two entities are the same and will be referred to as “BCSB.”
    
                                                   -3-
           statutes.3 The district court bifurcated Pace’s IDEA and
           non-IDEA claims. In separate orders, it affirmed the
           SLRP decision by dismissing Pace’s IDEA claims, then
           granted the defendants’ motions for summary judgment on
           Pace’s non-IDEA claims. Pace appeals both decisions.
    
    
                  II.     STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT
    
           We consider first the defendants’ arguments that they are
    
    entitled        to    sovereign        immunity      from   Pace’s      claims      under      the
    
    Eleventh Amendment. At the core of this Eleventh Amendment dispute
    
    is the question whether, when Louisiana accepted particular federal
    
    funds, it waived the immunity afforded it by the Eleventh Amendment
    
    to suits under § 504 and the IDEA.4
    
    A.     THE TEXT      AND   FUNCTION   OF THE   ELEVENTH AMENDMENT
    
           We start, as always, with the text.                       The Eleventh Amendment
    
    states:
    
                    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.5
    
    These forty-three words —— adopted in swift response to the Supreme
    
    
    
    
           3
            We do not consider Pace’s § 1983 claim and state law claims because he did not brief them
    on appeal. L & A Contracting Co. v. S. Concrete Servs., Inc., 
    17 F.3d 106
    , 113 (5th Cir. 1994);
    F.R.A.P. 28(a)(9)(A).
           4
             The waiver argument does not apply to Title II because the ADA does not condition the
    receipt of federal funds on compliance with the Act or waiver of Eleventh Amendment immunity.
    Rather, Title II applies to public entities regardless of whether they receive federal funds. See 42
    U.S.C. § 12132.
           5
               U.S. CONST. amend. XI.
    
                                                     -4-
    Court’s holding in Chisholm v. Georgia6 that Article III permitted
    
    a state to be sued in federal court7 —— protect states from such
    
    litigation.8 The protection thus afforded, however, has long since
    
    been expanded beyond the plain text of the Amendment.                             “Though its
    
    precise terms bar only federal jurisdiction over suits brought
    
    against one State by citizens of another State or foreign state,”
    
    the Supreme Court’s interpretation of the Amendment has “recognized
    
    that the Eleventh Amendment accomplished much more.”9                            The immunity
    
    afforded to states under the Eleventh Amendment “implicates the
    
    fundamental constitutional balance between the Federal Government
    
    and the States.”10            Therefore, at its core, the Eleventh Amendment
    
    serves        “as     an     essential       component        of     our     constitutional
    
    structure.”11
    
           Nevertheless, Eleventh Amendment immunity is not absolute.                                A
    
    number of different circumstances may lead to a state’s litigating
    
    
    
           6
               2 U.S. (2 Dall.) 419 (1793).
           7
            See United States ex rel. Foulds v. Texas Tech Univ., 
    171 F.3d 279
    , 286 n.9 (5th Cir. 1999)
    (“The Supreme Court’s interpretation of Article III powers in Chisholm, prompted Congress’
    ‘outraged reversal’ of that decision through enactment of the Eleventh Amendment.”) (citing DAVID
    P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 99 (1985)).
           8
             For present purposes, we ignore any role the Eleventh Amendment plays in regulating
    whether states may be sued in state courts.
           9
            College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 
    527 U.S. 666
    ,
    669 (1999).
           10
                Atascadero State Hosp. v. Scanlon, 
    473 U.S. 234
    , 238 (1985).
           11
                Dellmuth v. Muth, 
    491 U.S. 223
    , 228 (1989).
    
                                                   -5-
    in federal court absent Eleventh Amendment immunity. We begin with
    
    an overview of the Court’s current framework for assessing when a
    
    suit against a state may proceed in federal court.
    
    B.     EXCEPTIONS     TO   ELEVENTH AMENDMENT IMMUNITY
    
           There are two fundamental exceptions to the general rule that
    
    bars an action in federal court filed by an individual against a
    
    state.        First,       a   state’s       Eleventh       Amendment        immunity         may   be
    
    abrogated when Congress acts under § 5, the Enforcement Clause of
    
    the Fourteenth Amendment.12                 Second, a state may consent to suit in
    
    federal court.13
    
           1.      Abrogation under § 5 of the Fourteenth
                   Amendment
    
           Congress        can     single-handedly            strip      the     states      of    their
    
    Eleventh Amendment immunity and thereby authorize federal court
    
    suits by individuals against the states.                          When Congress does this,
    
    it is exercising its power to abrogate Eleventh Amendment immunity.
    
    In Reickenbacker v. Foster,14 we examined the Supreme Court’s cases
    
    
           12
              U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate
    legislation, the provisions of this article.”).
           13
              The term “abrogation” is not synonymous with “consent” or “waiver.” When a state
    consents to suit or waives its Eleventh Amendment immunity, it knowingly and voluntarily forfeits
    the immunity’s protections. In contrast, when Congress acts under its Fourteenth Amendment power
    to abrogate, the state has no choice.
           14
                
    274 F.3d 974
     (5th Cir. 2001). The continuing validity of Reickenbacker following the
    Supreme Court’s decision in Tennessee v. Lane, 
    124 S. Ct. 1978
     (2004), is uncertain. At the very
    least, its holding has been overruled as to Title II claims implicating a person’s fundamental right of
    access to the courts. In addition, after Lane we do not look solely at the state level for a history and
    pattern of unconstitutional action; we also examine discrimination by nonstate government entities.
    
                                                     -6-
    concerning congressional abrogation of Eleventh Amendment immunity
    
    under § 5 of the Fourteenth Amendment and derived the following
    
    test for determining whether a federal statute is a valid exercise
    
    of Congress’s power to enforce the Fourteenth Amendment and,
    
    consequently, whether the statute abrogates Eleventh Amendment
    
    immunity: (1) The statute must contain an unequivocal statement of
    
    congressional intent to abrogate; (2) Congress must have identified
    
    a history and pattern of unconstitutional action by the states; and
    
    (3)    the      rights      and   remedies         created      by    the    statute       must     be
    
    congruent         and    proportional         to    the    constitutional           violation(s)
    
    Congress sought to remedy or prevent.15 If these three requirements
    
    are satisfied, states are subject to federal jurisdiction in suits
    
    under the statute adopted pursuant to § 5, regardless of any
    
    absence of consent.
    
           2.        Waiver of Immunity by Consent
    
           Either in the absence of § 5 abrogation or in addition to it,
    
    a state always has the prerogative of foregoing its protection from
    
    federal court jurisdiction under the Eleventh Amendment.16                                            A
    
    
    Lane, 124 S. Ct. at 1991 n.16.
           15
                Id. at 977, 981-83.
           16
              College Savings Bank, 527 U.S. at 670; Idaho v. Coeur d’Alene Tribe of Idaho, 
    521 U.S. 261
    , 267 (1997) (“[A] State can waive its Eleventh Amendment protection and allow a federal court
    to hear and decide a case commenced or prosecuted against it.”); Great N. Life Ins. Co. v. Read, 
    322 U.S. 47
    , 54 (1944) (“The immunity may, of course, be waived.”); Clark v. Barnard, 
    108 U.S. 436
    ,
    447 (1883) (“The immunity from suit belonging to a State, which is respected and protected by the
    Constitution within the limits of the judicial power of the United States, is a personal privilege which
    it may waive at pleasure.”).
    
                                                     -7-
    state’s consent to suit must be both knowing and voluntary.                               That
    
    consent must always be “knowing and voluntary” follows from College
    
    Savings Bank, in which the Supreme Court cited Johnson v. Zerbst,
    
    to define what constitutes effective waiver.17                          Waiver is effective
    
    when it is the “intentional relinquishment or abandonment of a
    
    known     right         or    privilege.”18             The    first    part,     “intentional
    
    relinquishment,” captures the principle of voluntariness; and the
    
    second part, “known right or privilege,” captures the element of
    
    knowingness.
    
         When Congress conditions the availability of federal funds on
    
    a state’s waiver of its Eleventh Amendment immunity, we employ a
    
    five-prong        test        derived      from    the        Supreme   Court’s     definitive
    
    spending power case, South Dakota v. Dole,19 to ascertain the
    
    validity of the waiver.                        In Dole, South Dakota challenged a
    
    congressional           statute         that    conditions       the    states’    receipt   of
    
    federal highway funds on their adoption of the minimum drinking age
    
    of twenty-one.                South Dakota argued that the statute exceeded
    
    Congress’s spending power and violated the Twenty-First Amendment.20
    
    The Court rejected this argument, noting that even though Congress
    
    is   prohibited              by   the     Twenty-First          Amendment    from     directly
    
    
         17
              527 U.S. at 682 (citing Johnson v. Zerbst, 
    304 U.S. 458
    , 464 (1938)).
         18
              Id. (quoting Zerbst, 304 U.S. at 464)
         19
              
    483 U.S. 203
     (1987).
         20
              Id. at 205.
    
                                                      -8-
    regulating the distribution of alcoholic beverages, the Spending
    
    Clause authorizes it indirectly to entice states to raise their
    
    drinking age by dangling the proverbial carrot of federal dollars.21
    
           Dole      embodies       an    expansive        interpretation           of    Congress’s
    
    spending       authority.             Indirect       persuasion         is    constitutional,
    
    reasoned the Court, because the spending power “is not limited by
    
    the direct grants of legislative power found in the Constitution.”22
    
    Congress       can,     therefore,         validly       use    its     spending        power     to
    
    legislate conditions on the disbursement of federal funds even
    
    though those conditions would be unconstitutional if enacted as
    
    direct prohibitions.23               It goes without saying that, because states
    
    have the independent power to lay and collect taxes, they retain
    
    the ability to avoid the imposition of unwanted federal regulation
    
    simply by rejecting federal funds.
    
           Nevertheless, Congress’s power to effect policy through the
    
    exercise of its spending power is not unlimited.                               Dole announced
    
    
    
           21
              Id. at 206. See also New York v. United States, 
    505 U.S. 144
    , 161-69 (1992) (holding that
    although the Tenth Amendment prevents Congress from directly commandeering state officials into
    regulating radioactive waste, Congress can “hold out incentives to the States as a method of
    influencing a State’s policy choices”).
           22
              Dole, 483 U.S. at 207 (quoting United States v. Butler, 
    297 U.S. 1
    , 66 (1936)). See also
    United States v. Lipscomb, 
    299 F.3d 303
    , 319 (5th Cir. 2002) (“Congress’s spending power, like its
    power to tax, is ‘to provide for the general welfare,’ and is therefore untrammeled by the specific
    grants of legislative power found elsewhere in Article I, Section 8.”) (citation omitted).
           23
              See Dole, 483 U.S. at 206-07; United States v. Am. Library Ass’n, Inc., 
    539 U.S. 194
    , 203
    (2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order
    to further its policy objectives.”).
    
                                                    -9-
    the   restrictions           that     control     such      exercise:         (1)    Federal
    
    expenditures must benefit the general welfare; (2) The conditions
    
    imposed on the recipients must be unambiguous; (3) The conditions
    
    must be reasonably related to the purpose of the expenditure; and
    
    (4)   No      condition      may     violate     any     independent       constitutional
    
    prohibition.24          In addition, the Dole Court recognized a fifth
    
    requirement        that     the     condition     not    be   coercive:        “[I]n     some
    
    circumstances the financial inducement offered by Congress might be
    
    so coercive as to pass the point at which ‘pressure turns into
    
    compulsion.’”25
    
          Thus, Dole makes clear that, as long as its framework is
    
    employed, congressional spending programs that are enacted in
    
    pursuit of the general welfare and unambiguously condition a
    
    state’s       acceptance        of    federal       funds     on   reasonably        related
    
    requirements         are     constitutional         unless     they     are    either     (1)
    
    independently prohibited or (2) coercive.                          When the condition
    
    requires a state to waive its Eleventh Amendment immunity, Dole’s
    
    requirement of an unambiguous statement of the condition and its
    
    proscription on coercive inducements serve a dual role because they
    
    ensure compliance with College Savings Bank’s requirement that
    
    waiver of Eleventh Amendment immunity must be (a) knowing and (b)
    
    voluntary.
    
    
          24
               Id. at 207-08. See also New York, 505 U.S. at 171-72.
          25
               483 U.S. at 211 (quoting Steward Machine Co. v. Davis, 
    301 U.S. 548
    , 590 (1937)).
    
                                                 -10-
                   i.      Clear Statement: “Knowing”
    
         In Pennhurst State Sch. & Hosp. v. Halderman,26 the Court
    
    analyzed Congress’s power to impose conditions on a state’s receipt
    
    of federal funds and pronounced:
    
                   There can, of course, be no knowing acceptance if a State
                   is unaware of the conditions or is unable to ascertain
                   what is expected of it. Accordingly, if Congress intends
                   to impose a condition on the grant of federal moneys, it
                   must do so unambiguously.... 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.27
    
    Thus, we know that this stringent clear-statement rule ensures that
    
    when a state foregoes its Eleventh Amendment immunity in exchange
    
    for federal funds, it does so “knowingly.”28                In our reading of
    
    Pennhurst, the only “knowledge” that the Court is concerned about
    
    is a state’s knowledge that a Spending Clause condition requires
    
    waiver of immunity, not a state’s knowledge that it has immunity
    
    that it could assert.                At bottom, we conclude that if Congress
    
    satisfies the clear-statement rule, the knowledge prong of the
    
    Spending Clause waiver analysis is fulfilled.
    
                   ii.     Non-Coercive: “Voluntary”
    
         If the clear-statement rule is satisfied, a state’s actual
    
    acceptance of clearly conditioned funds is generally voluntary.
    
    
    
         26
              
    451 U.S. 1
     (1981).
         27
              Id. at 17 (emphasis added) (citations omitted).
         28
              See also Dole, 483 U.S. at 207.
    
                                                  -11-
    The only exception to this presumption arises if the spending
    
    program itself is deemed “coercive,” for then a state’s waiver is,
    
    by definition, no longer voluntary.
    
         In summary, the Supreme Court has articulated two ways that a
    
    state can be subject to an individual’s suit in federal court,
    
    regardless of the Eleventh Amendment. First, Congress may abrogate
    
    state immunity. Second, the state may waive its Eleventh Amendment
    
    immunity by consent.      If waiver results from participation in a
    
    Spending Clause program, the program must be a valid exercise of
    
    Congress’s spending power; the waiver condition must satisfy the
    
    clear-statement rule (thereby ensuring that the state’s waiver is
    
    “knowing”); and the program must be non-coercive (automatically
    
    establishing that the waiver is “voluntary”).
    
    C.   WAIVER OF ELEVENTH AMENDMENT IMMUNITY PURSUANT   TO   CONDITIONAL
         SPENDING PROGRAMS
    
         Keeping firmly in mind the Court’s current framework for
    
    analyzing when a state may be subject to suit in federal court, we
    
    turn to the particular facts and legal contentions of the instant
    
    case.   The two statutory provisions at issue purport to have
    
    conditioned Louisiana’s receipt of federal funds on its waiver of
    
    Eleventh Amendment immunity to suits under § 504 and the IDEA.
    
    Specifically, 42 U.S.C. § 2000d-7 conditions a state’s receipt of
    
    federal money on its waiver of Eleventh Amendment immunity to
    
    actions under § 504 and other federal anti-discrimination statutes:
    
               A State shall not be immune under the Eleventh
    
    
                                        -12-
                   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, title IX of the
                   Education Amendments of 1972, the Age Discrimination
                   Act of 1975, title VI of the Civil Rights Act of 1964,
                   or the provisions of any other Federal statute
                   prohibiting discrimination by recipients of Federal
                   financial assistance.29
    
    Similarly, 20 U.S.C. § 140330 conditions a state’s receipt of
    
    federal IDEA          funds     on    its    consent       to    suit under         that     Act.31
    
    Applying the framework set forth in Dole, we proceed to determine
    
    whether Louisiana validly waived its immunity when it accepted the
    
    conditioned federal dollars.
    
           Louisiana does not dispute that the first and third prongs of
    
    the Dole analysis, i.e., whether the Spending Clause statute at
    
    issue was enacted in pursuit of the general welfare, and whether
    
    the condition is sufficiently related to the federal interest in
    
    
    
    
           29
               42 U.S.C. § 2000d-7(a)(1). Congress enacted § 2000d-7 in response to Atascadero, in
    which the Court held that the Rehabilitation Act neither abrogated Eleventh Amendment immunity
    nor effectively conditioned states’ receipt of federal funds on a waiver of that immunity. Atascadero,
    473 U.S. at 245-47. According to the Court, the statute did not contai n a clear statement of
    congressional intent either to abrogate or to require a waiver. Id.
           30
              20 U.S.C. § 1403(a) reads as follows: “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.”
           31
              The section was passed by Congress in response to Dellmuth v. Muth, 
    491 U.S. 223
     (1989).
    In Dellmuth, the Supreme Court held that the predecessor to the IDEA (the Education of the
    Handicapped Act) lacked a sufficiently clear statement of Congressional intent to abrogate Eleventh
    Amendment immunity to claims under the statute. Id. at 232. The conditional-spending issue was
    not raised in the case.
    
                                                   -13-
    the program funded,32 are satisfied here. Consequently, we restrict
    
    our consideration to the three remaining prongs of the Dole test.
    
    Following prior panels of this court,33 and every circuit (but one)
    
    that has made these inquiries, we conclude that the statutes at
    
    issue validly conditioned Louisiana’s receipt of these federal
    
    funds on its waiver of Eleventh Amendment immunity.34
    
    
           32
               In its en banc brief, Louisiana mentioned a relatedness challenge to § 2000d-7, but that
    argument was not presented to the panel, and Louisiana’s en banc brief fails to develop it beyond a
    bare assertion. Thus, Louisiana has waived its relatedness challenge. See L & A Contracting Co. v.
    S. Concrete Servs., Inc., 
    17 F.3d 106
    , 113 (5th Cir. 1994); FED. R. APP. P. 28(a)(9)(A); cf. Koslow
    v. Pennsylvania, 
    302 F.3d 161
    , 175-76 (3d Cir. 2002) (rejecting a relatedness challenge to the validity
    of a state’s conditional-spending waiver of immunity to § 504 suits).
           33
               E.g., Pederson v. Louisiana State Univ., 
    213 F.3d 858
    , 876 (5th Cir. 2000) (“A state may
    waive its immunity by voluntarily participating in federal spending programs when Congress expresses
    a clear intent to condition participation in the programs ... on a State’s consent to waive its
    constitutional immunity.”) (citation and quotation marks omitted); id. at 875 (holding that “in
    enacting § 2000d-7 Congress permissibly conditioned a state university’s receipt of [federal] funds
    on an unambiguous waiver of the university’s Eleventh Amendment immunity, and that, in accepting
    such funding, the university has consented to litigate private suits in federal court.”) (internal
    punctuation and citation omitted) (emphasis added). Cf. AT&T Comm. v. BellSouth Telecom. Inc.,
    
    238 F.3d 636
    , 645 (5th Cir.), reh’g en banc denied, 
    252 F.3d 437
     (2001) (“[A]fter College Savings,
    Congress may still obtain a non-verbal voluntary waiver of a state’s Eleventh Amendment immunity,
    if the waiver can be inferred from the state’s conduct in accepting a gratuity after being given clear
    and unambiguous statutory notice that it was conditioned on waiver of immunity.”).
           34
              Eight circuits have reached this conclusion in § 504 cases. See Nieves-Márquez v.
    Puerto Rico, 
    353 F.3d 108
    , 129-30 (1st Cir. 2003); A.W. v. Jersey
    City Pub. Schs., 
    341 F.3d 234
    , 244-51 (3d Cir. 2003); Bruggeman v.
    Blagojevich, 
    324 F.3d 906
    , 912 (7th Cir. 2003); Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,
    
    344 F.3d 1288
    , 1292-93 (11th Cir. 2003) (per curiam); Lovell v. Chandler, 
    303 F.3d 1039
    , 1051-52
    (9th Cir. 2002); Koslow, 302 F.3d at 172 (3d Cir.); Robinson v. Kansas, 
    295 F.3d 1183
    , 1189-90
    (10th Cir. 2002); Nihiser v. Ohio E.P.A., 
    269 F.3d 626
    , 628 (6th Cir. 2001); Jim C. v. Arkansas
    Dep’t of Educ., 
    235 F.3d 1079
    , 1081 (8th Cir. 2000) (en banc); Stanley v. Litscher, 
    213 F.3d 340
    ,
    344 (7th Cir. 2000). Other courts of appeals have reached the same conclusion for the other
    predicate statutes of § 2000d-7. See, e.g., Cherry v. Univ. of Wis. Sys. Bd. of Regents, 
    265 F.3d 541
    , 553-55 (7th Cir. 2001) (Title IX); Sandoval v. Hagan, 
    197 F.3d 484
     (11th Cir. 1999) (Title VI),
    rev’d in part on other grounds, 53
    2 U.S. 2
    75 (2001); Litman v. George Mason Univ., 
    186 F.3d 544
    
                                                    -14-
           First, we determine whether the conditions contained in 42
    
    U.S.C.       §    2000d-7      and     20   U.S.C.      §    1403     are    unambiguous         and,
    
    consequently, whether Louisiana knowingly waived its immunity to
    
    actions under § 504 and the IDEA by accepting federal funds.
    
           1.        Is the Clear-Statement Rule Satisfied Absent
                     Use of the Words “Waiver” or “Condition”?
    
           In the face of the unequivocal language of § 2000d-7 to the
    
    effect that “[a] state shall not be immune under the Eleventh
    
    Amendment of the Constitution of the United States from suit in
    
    Federal court for a violation of § 504 of the Rehabilitation Act of
    
    1973,”35 Louisiana argues legalistically that, because Congress did
    
    not use the words “waiver” or “condition,” the condition fails the
    
    clear-statement rule.36                  This argument —— that absent talismanic
    
    incantations of magic words, there can be no waiver —— is little
    
    more than frivolous.37               The Supreme Court has already noted, albeit
    
    in dicta, that in § 2000d-7 “Congress sought to provide the sort of
    
    unequivocal waiver that our precedents demand.”38 More importantly,
    
    
    (4th Cir. 1999) (Title IX). Circuits have reached this conclusion about the IDEA, as well. See, e.g.,
    M.A. ex rel. E.S. v. State-Operated School Dist., 
    344 F.3d 335
    , 351 (3d Cir. 2003); Oak Park Bd.
    of Educ. v. Kelly E., 
    207 F.3d 931
    , 935 (7th Cir. 2000).
           35
                42 U.S.C. § 2000d-7 (2000).
           36
                In its amicus brief, the State of Texas points to other statutes that have used such terms.
           37
               Cf. Woods v. Cloyd W. Miller Co., 
    333 U.S. 138
    , 144 (1948) (“The question of the
    constitutionality of action taken by Congress does not depend on recitals of the power which it
    undertakes to exercise.”).
           38
            Lane v. Pena, 
    518 U.S. 187
    , 198 (1996). See also id. at 200 (noting “the care with which
    Congress responded to ... Atascadero by crafting an unambiguous waiver of the States’ Eleventh
    
                                                     -15-
    our decision in Pederson v. Louisiana State University, which we
    
    remain convinced was correctly decided, forecloses this line of
    
    attack.39
    
             2.         Does the Presence of Abrogation Language
                        Preclude a Finding of Waiver?
    
             Louisiana also argues that because § 2000d-7 and § 1403 fail
    
    as   §        5   attempts       by    Congress     to    abrogate      Eleventh      Amendment
    
    immunity, the same provisions of those statutes cannot satisfy the
    
    clear-statement rule for Spending Clause purposes.                                   We reject
    
    Louisiana’s            attempt        to    pigeonhole    this    statutory       language    in
    
    mutually exclusive terms.
    
             We held in Pederson that, in § 2000d-7, Congress “successfully
    
    codified a statute which clearly, unambiguously, and unequivocally
    
    conditions receipt of federal funds under Title IX on the State’s
    
    waiver of Eleventh Amendment Immunity.”40                        And in Lesage v. Texas,41
    
    we ruled that “Congress unquestionably enacted 42 U.S.C. § 2000d-7
    
    with          the     ‘intent’         to     invoke     the     Fourteenth        Amendment’s
    
    congressional enforcement power. The purpose of the provision,
    
    enacted in 1986, was to legislatively overrule the result in
    
    
    
    
    Amendment immunity”).
             39
             213 F.3d at 875-76 (adopting the holding and reasoning of Litman v. George Mason
    Univ., 
    186 F.3d 544
     (4th Cir. 1999)).
             40
                  213 F.3d at 876.
             41
                  
    158 F.3d 213
     (5th Cir. 1998), overruled on other grounds, 
    528 U.S. 18
     (1999).
    
                                                     -16-
    Atascadero.”42           Thus, in Pederson, we recognized § 2000d-7 as a
    
    clear statement for waiver vis-à-vis the Spending Clause, and in
    
    Lesage, we recognized that the very same provision could satisfy
    
    abrogation under § 5 of the Fourteenth Amendment.
    
           Just because particular language may or may not function with
    
    equal       efficacy       under     both   exceptions        to    Eleventh       Amendment
    
    immunity, does not mean that it fails the clear-statement rule. As
    
    we concluded in AT&T, the rule requires only that “the state has
    
    been put on notice clearly and unambiguously by the federal statute
    
    that the state’s particular conduct or transaction will subject it
    
    to federal court suits brought by individuals.”43 Congress need not
    
    declare in the statute whether it is proceeding under abrogation or
    
    waiver, or both.               For the purpose of the clear-statement rule, §
    
    2000d-7 —— janus-faced as it may be —— poses no constitutional
    
    impediment to our finding valid waiver by consent.                              We conclude
    
    that    the       conditions       contained     in    §   2000d-7      and    §   1403     are
    
    unambiguous, as required by Dole.
    
           Undaunted, Louisiana still contends that it did not knowingly
    
    waive its Eleventh Amendment immunity.                     Louisiana and the dissent
    
    rely on Garcia v. S.U.N.Y. Health Sciences Ctr.,44 which looked to
    
    
           42
              Id. at 218. See also United States v. Wells, 
    519 U.S. 482
    , 495 (1997) (reiterating the
    baseline presumption that Congress expects its statutes to be read in conformity with the Supreme
    Court’s precedents).
           43
                238 F.3d at 644.
           44
                
    280 F.3d 98
     (2d Cir. 2001).
    
                                                 -17-
    the Supreme Court’s decision in Board of Trustees of the University
    
    of Alabama v. Garrett45 to justify departing from the heavy weight
    
    of authority supporting waiver based on the clarity of the language
    
    in § 2000d-7.           Garrett examined whether, in Title I of the ADA,
    
    Congress could           constitutionally   abrogate   the   states’   Eleventh
    
    Amendment immunity.46            The Garrett Court concluded that Title I of
    
    the ADA was outside the scope of valid § 5 legislation; therefore,
    
    Congress’s attempt at abrogation failed, and private suits against
    
    states in federal court were barred by the Eleventh Amendment.47
    
         The lawsuits in Garcia involved disputes that arose between
    
    September 1993 and August 1995.48           During that pre-Garrett period,
    
    it was universally accepted that the ADA validly abrogated Eleventh
    
    Amendment immunity.              Rather than looking at the clear-statement
    
    rule and the state’s acceptance of funds, Garcia analyzed whether
    
    a state would have realized —— “known” —— that it was abandoning
    
    its Eleventh Amendment immunity by accepting federal funds during
    
    the period of time applicable to the lawsuits at issue there (and
    
    here).49      The Garcia court noted that, during the relevant period,
    
    “Title II of the ADA was reasonably understood to abrogate [the
    
    
         45
              
    531 U.S. 356
     (2001).
         46
              See id. at 365-74.
         47
              Id. at 374.
         48
              Garcia, 280 F.3d at 114 n.4.
         49
              Id. at 114.
    
                                             -18-
    state’s]         sovereign     immunity           under    Congress’s   Commerce    Clause
    
    authority.”50          The court also pointed out that the requirements of
    
    Title      II    and    §   504     are     “virtually      identical.”51       Therefore,
    
    concluded the court, because the state defendant thought that it
    
    could be sued under Title II, it had nothing to lose by accepting
    
    federal funds and redundantly waiving immunity to § 504 suits in
    
    the process.52
    
          Louisiana and the dissent maintain that we should follow the
    
    panel and apply the “logic” of Garcia to the instant case.                          First,
    
    Louisiana         contends          that,        because    it   “believed”     that   the
    
    Rehabilitation Act had already abrogated its Eleventh Amendment
    
    immunity, it “did not and could not know that [it] retained any
    
    sovereign        immunity      to     waive       by   accepting    conditioned    federal
    
    funds.”53        Likewise, Louisiana asks us to conclude that § 1403 was
    
    an   unsuccessful           attempt         at    abrogation;      therefore,   maintains
    
    Louisiana, it could not have “knowingly” waived its immunity under
    
    the IDEA when it accepted federal IDEA funds.
    
          Even though it found that the statutory provisions at issue
    
    are unambiguous,54 the panel nevertheless concluded that Louisiana’s
    
    
          50
               Id.
          51
               Id.
          52
               Id.
          53
               Pace, 325 F.3d at 616.
          54
               Pace, 325 F.3d at 615.
    
                                                      -19-
    purported         waivers     of     Eleventh    Amendment       immunity       are    invalid
    
    because they were not knowing.                   The panel drew support from the
    
    holding in Garcia, but its reasoning differed slightly from the
    
    Second Circuit’s.             According to the panel opinion, “[b]elieving
    
    that [the Rehabilitation Act and the IDEA] validly abrogated their
    
    sovereign immunity, the State defendants did not and could not know
    
    that they retained any sovereign immunity to waive by accepting
    
    conditioned federal funds.”55
    
           The fatal flaw with that syllogism lies in the fact that
    
    neither the mandates of the Rehabilitation Act nor the requirements
    
    of the IDEA apply to a state agency that has not received either
    
    some federal funding (in the case of the Rehabilitation Act) or
    
    federal IDEA dollars (in the case of the IDEA).56                         Therefore, it is
    
    impossible for Congress to have “abrogated” a state’s immunity to
    
    § 504 or IDEA suits if the relevant state agency did not receive
    
    federal funds during the time period in which it was alleged to
    
    have    violated        an    individual’s       statutory        rights.        It    follows
    
    indisputably that Louisiana’s Eleventh Amendment immunity to § 504
    
    and IDEA claims was intact before the state accepted federal funds.
    
    Thus, Louisiana did have Eleventh Amendment immunity to waive by
    
    accepting the clearly conditioned federal funds.
    
    
           55
                Pace, 325 F.3d at 616.
           56
              See 29 U.S.C. § 794(a) (pro hibiting discrimination against the disabled through “any
    program or activity receiving Federal financial assistance”); 20 U.S.C. §§ 1412, 1415 (conditioning
    state agencies’ receipt of federal funds on compliance with the requirements of the IDEA).
    
                                                  -20-
         The dissent nevertheless insists that, during the time that
    
    § 504 and the IDEA were thought to abrogate Eleventh Amendment
    
    immunity, Louisiana could have believed that it lacked immunity to
    
    § 504 and IDEA suits even before it received federal funds under
    
    those statutes.57    This ignores the conditional-spending nature of
    
    the Rehabilitation      Act   and   the   IDEA.   The   Acts’   substantive
    
    provisions regulate only state agencies that have accepted the
    
    relevant federal funds.       Thus, it makes no sense to say that the
    
    State was subject to private actions for damages under § 504 and
    
    the IDEA before the substantive provisions of those statutes
    
    applied to it.      Contrary to the dissent’s accusation,58 we do not
    
    confuse the doctrines of abrogation and waiver; rather, we point
    
    out that ——     even before Garrett —— Louisiana could have avoided
    
    suits under § 504 and the IDEA altogether by declining federal
    
    funding.      Louisiana clearly had Eleventh Amendment immunity to
    
    waive at the time that it accepted the federal funds and expressly
    
    obligated itself to comply with the dictates of the Rehabilitation
    
    Act and the IDEA.
    
         Further, during the relevant time period, §§ 2000d-7 and 1403
    
    put each state on notice that, by accepting federal money, it was
    
    
    
         57
           Post at 9 (“[T]he State acted quite rationally in assuming
    between 1996 and 1998 that it had no sovereign immunity to waive
    when it accepted federal education funds under conditions specified
    by § 504 and IDEA.”).
         58
              Post at 10 & n.7.
    
                                        -21-
    waiving its Eleventh Amendment immunity. Under Dole, if the clear-
    
    statement requirement is met, the state is conclusively presumed to
    
    have “known” that receipt of clearly conditioned federal funds
    
    requires the state to abide by the condition (i.e., waiver of
    
    Eleventh Amendment immunity).
    
         In addition, the Garcia approach is problematic for a number
    
    of reasons, the most fundamental of which is that, by focusing its
    
    inquiry on what the state could have believed, the Second Circuit
    
    engrafted a subjective-intent element onto the otherwise objective
    
    Spending Clause waiver inquiry.          In other words, Garcia’s approach
    
    employs the wrong jurisprudential test, because it distorts what is
    
    necessary      to   show     knowledge    for    Spending        Clause      waivers.
    
    Analytically,       the    “knowledge”    question      that    we     ask   when   we
    
    undertake the Spending Clause waiver inquiry is coextensive with
    
    the clear-statement rule; for, when a state actually accepts funds
    
    that are clearly conditioned on a waiver of Eleventh Amendment
    
    immunity, it is held objectively to “know” that it is accepting all
    
    clearly stated conditions.           That it might not “know” subjectively
    
    whether   it    had   any    immunity    to    waive    by   agreeing        to   those
    
    conditions is wholly irrelevant.
    
         The dissent asserts that, by focusing on the clear-statement
    
    requirement, we have disregarded College Savings Bank’s “clear
    
    declaration” requirement.            But College Savings Bank was not a
    
    conditional-spending         case.        There,       the     Court    invalidated
    
    “constructive waivers” of Eleventh Amendment immunity “based upon
    
                                            -22-
    the State’s mere presence in a field subject to congressional
    
    regulation.”59            Such a constructive waiver is a far cry from a
    
    state’s acceptance of federal funds that are explicitly conditioned
    
    on its waiver of Eleventh Amendment immunity.                     In fact, the College
    
    Savings Bank opinion expressly distinguished conditional-spending
    
    waivers        of     Eleventh     Amendment         immunity,   which   it   said    were
    
    “fundamentally different from” illegitimate constructive waivers.60
    
    Nothing in College Savings Bank indicates that, when the clear-
    
    statement requirement is met, a state can be said to lack knowledge
    
    that by accepting federal funds it waives its Eleventh Amendment
    
    immunity.
    
           In sum, Garcia and the dissent would subjugate the bright-line
    
    of objective reasoning to the slippery slope of assessing a state’s
    
    subjective belief.61             If, like the panel, we were to follow that
    
    approach, we would be getting into the business of looking past the
    
    straightforward objective facts, i.e., (1) the clear statement
    
    requiring waiver and (2) the state’s actual, uncoerced acceptance
    
    of federal funds, in an attempt to fathom what was in a state’s
    
    “head,” a precarious exercise indeed.                      The clear-statement rule
    
    guards against post hoc questions about intent.
    
    
    
           59
                College Savings Bank, 527 U.S. at 680.
           60
                Id. at 686.
           61
              See Lapides v. Bd. of Regents, 
    535 U.S. 613
    , 621 (2002) (“Motives are difficult to
    evaluate, while jurisdictional rules should be clear.”).
    
                                                  -23-
           Accordingly, we hold that Louisiana’s waiver of Eleventh
    
    Amendment       immunity       to        actions   under     §    504    and    the       IDEA   was
    
    knowing.62          Still,      we       must   determine        whether       an    independent
    
    constitutional bar prevents Congress from conditioning the receipt
    
    of   federal       funds      on     a    state’s      waiver     of    Eleventh          Amendment
    
    immunity.
    
           3.      Can Congress Condition Waiver of Eleventh
                   Amendment Immunity When It Exercises its
                   Spending Power?
    
           Louisiana        challenges          Congress’s       power      under       the    Spending
    
    Clause to condition receipt of federal education funds on a state’s
    
    waiver of Eleventh Amendment immunity. This position is frivolous.
    
    We    have     consistently          interpreted          Supreme       Court       guidance      as
    
    permitting such conditional spending programs, as has every other
    
    circuit that has squarely addressed the issue.63                             We do not change
    
    course today.
    
    
    
           62
              Since the Pace panel opinion was issued, five circuits have expressly rejected its approach,
    which the dissent continues to advocate. See Nieves-Márquez, 353 F.3d at 129-30 (First Circuit);
    A.W., 341 F.3d at 244-52 (Third Circuit); Shepard v. Irving, 77 Fed. Appx. 615, 619 n.2 (4th Cir.
    2003) (unpublished); Doe v. Nebraska, 
    345 F.3d 593
    , 600-604 (8th Cir. 2003); Garrett, 344 F.3d at
    1292-93 (Eleventh Circuit). See also Koslow, 302 F.3d at 172 n.12 (explaining that “the ‘clear intent
    to condition participation in the programs funded,’ required by Atascadero, 473 U.S. at 247, ensured
    the Commonwealth of Pennsylvania knew that by accepting certain funds under the Rehabilitation
    Act for certain departments or agencies, it waived immunity from suit on Rehabilitation Act claims
    for those entities”).
           63
             See, e.g., Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 
    270 F.3d 17
    , 24-25 (1st Cir.
    2001); Garcia, 280 F.3d at 113; Koslow, 302 F.3d at 172; Pederson, 213 F.3d at 875-76; Nihiser v.
    Ohio E.P.A., 
    269 F.3d 626
    , 628 (6th Cir. 2001); Stanley v. Litscher, 
    213 F.3d 340
    , 344 (7th Cir.
    2000); Jim C., 235 F.3d at 1081; Douglas v. Cal. Dep’t of Youth Auth., 
    271 F.3d 812
    , 819, as
    amended, 
    271 F.3d 910
     (9th Cir. 2001); Robinson, 295 F.3d at 1189-90; Sandoval, 197 F.3d at 493.
    
                                                    -24-
            4.      Is Conditioning Acceptance of Federal Funds a
                    Violation of the Unconstitutional-Conditions
                    Doctrine?
    
            Louisiana        also     attempts        to    invoke      the     “unconstitutional-
    
    conditions doctrine” to challenge Congress’s ability to condition
    
    the acceptance of federal funds on waiver of Eleventh Amendment
    
    immunity.           In    the    most      general       sense,      the     unconstitutional-
    
    conditions         doctrine       examines        the     extent       to    which      government
    
    benefits may be conditioned or distributed in ways that burden
    
    constitutional rights or principles.64                          For at least two reasons,
    
    Louisiana’s reliance on the unconstitutional-conditions doctrine is
    
    misplaced.
    
            First, as evidenced by the dearth of cases employing it in
    
    this context,65 the unconstitutional-conditions doctrine is most
    
    meaningful when the government imposes a condition of questionable
    
    constitutional character on an individual right. But here, federal
    
    and state sovereigns are on opposite sides of the controversy, and
    
    
            64
               See Frost & Frost Trucking Co. v. Railroad Com. of Cal., 
    271 U.S. 583
    , 593-94 (1926)
    (“[T]he state ... may not impose conditions which require the relinquishment of constitutional rights....
    It is inconceivable that guaranties embedded in the Constitution of the United States may thus be
    manipulated out of existence.”).
            65
             The only Supreme Court decision that has come close was United States v. Butler. In that
    1936 decision, the Court invalidated provisions of the Agricultural Adjustment Act of 1933, which
    paid farmers to reduce their production of crops. 297 U.S. at 74-78. As the Tenth Circuit has
    explained, though, “that case relied on an overly narrow view of Congress’ enumerated powers to
    determine that Congress had overstepped its authority.” Kansas v. United States, 
    214 F.3d 1196
    ,
    1201 n.6 (10th Cir. 2000) (citing LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-b, at
    836 (3d ed. 2000) (“[T]he Supreme Co urt has effectively ignored Butler in judging the limits of
    congressional spending power.”)). Accord Lipscomb, 299 F.3d at 319 (noting that the Supreme
    Court “quickly abandoned” the view espoused in Butler).
    
                                                     -25-
    the constitutional “right” at issue is structural rather than
    
    personal.         Consequently, for the reasons announced in the Third
    
    Circuit’s analysis in Koslow v. Commonwealth of Pennsylvania, the
    
    doctrine is inapplicable.             The Koslow court considered whether the
    
    Rehabilitation           Act,      including          §    2000d-7,         imposed        an
    
    unconstitutional condition on Pennsylvania’s receipt of federal
    
    funds.       In    refusing      to   apply     the   unconstitutional-conditions
    
    doctrine to the conditioning of federal funds on the waiver of
    
    Eleventh Amendment immunity, the Third Circuit stated:
    
                  [T]he   Supreme  Court    has  not   yet  applied   the
                  “unconstitutional conditions” doctrine to cases between
                  two sovereigns. Unlike private persons, states have the
                  resources to serve their citizens even if the federal
                  government, through economic incentives, encourages a
                  particular result. A state’s political powers——not the
                  least of which is the power to levy taxes on its
                  citizens——help ensure the federal government does not
                  “coerce” the state through economic “encouragement.” An
                  individual citizen, in contrast, lacks these formidable
                  institutional resources.66
    
    We embrace that reasoning.
    
           Second, the unconstitutional-conditions doctrine, even when
    
    applied piecemeal by the Supreme Court, is anchored at least in
    
    part in a theory of coercion or compulsion.67 In this context, that
    
    
    
    
           66
             302 F.3d at 174 (citing Frost & Frost, 271 U.S. at 593; New York, 505 U.S. at 171-72;
    Dole, 483 U.S. at 210-11).
           67
             See id. (“The “unconstitutional conditions” doctrine is based on the proposition that
    government incentives may be inherently coercive.”). See also Kathleen M. Sullivan,
    Unconstitutional Conditions, 102 HARV. L. REV. 1415, 1428-55 (1989).
    
                                                -26-
    concern is subsumed in the non-coercion prong of the Dole test.68
    
    In other words, in the Spending Clause context, any role that the
    
    unconstitutional-conditions                    doctrine        might       have      in     cabining
    
    Congress’s authority to give funds in exchange for waiving immunity
    
    is    already         part-and-parcel           of    the      standard        Spending        Clause
    
    analysis.           Thus, no independent constitutional bar invalidates
    
    Louisiana’s waiver of Eleventh Amendment immunity.
    
            5.        Are These Programs Coercive?
    
            In light of Dole, we must determine whether the conditional-
    
    spending schemes at issue are unduly coercive.                               We hold that they
    
    are not.          A state can prevent suits against a particular agency
    
    under § 504 by declining federal funds for that agency.69                                    A state
    
    can avoid suit under the IDEA merely by refusing IDEA funds.                                      And,
    
    to do so in either case, the state would not have to refuse all
    
    federal assistance.70              Moreover, no circuit has accepted a coercion
    
    challenge          to    either      the     Rehabilitation            Act      or    the      IDEA.71
    
    Therefore, we refuse to invalidate Louisiana’s waiver on coercion
    
    grounds.
    
    
    
    
            68
                 See supra text accompanying note 24.
            69
                 See 29 U.S.C. § 794(b)(1).
            70
                 See 20 U.S.C. §§ 1411(a)(1), 1412, 1403.
            71
              See, e.g., Jim C., 235 F.3d at 1082 (rejecting a coercion challenge to the validity of a waiver
    of state Eleventh Amendment immunity to § 504 claims).
    
                                                     -27-
    D.     ABROGATION      OF   IMMUNITY
    
           Alternatively, Pace asks this en banc court to rule that
    
    Congress —— acting under § 5 of the Fourteenth Amendment —— in fact
    
    abrogated          Louisiana’s          Eleventh       Amendment    immunity,        leaving
    
    Louisiana subject to suit on Pace’s ADA, Rehabilitation Act, and
    
    IDEA claims.                As we hold that Louisiana waived its Eleventh
    
    Amendment immunity with respect to the Rehabilitation Act and the
    
    IDEA, it is not necessary for us to address Pace’s contention that
    
    Louisiana’s           immunity     to    suit    under     those    statutes      was     also
    
    abrogated.           Neither is it necessary for us to consider whether
    
    Title II of the ADA abrogates Eleventh Amendment immunity in this
    
    case.       First, the Supreme Court, in Tennessee v. Lane,72 held that
    
    Title II          abrogates      sovereign       immunity    to    the   extent     that     it
    
    implicates the accessibility of judicial services, but refused to
    
    consider         its       application     to     other     rights,      including      those
    
    considered to be fundamental under the Constitution.73                         Because (1)
    
    the Supreme Court has never before recognized access to public
    
    education74 or freedom from disability discrimination in education75
    
    to be fundamental rights, and (2) it is unnecessary to address
    
    
           72
                
    124 S. Ct. 1978
     (2004).
           73
                Id. at 1993.
           74
            See Plyler v. Doe, 
    457 U.S. 202
    , 221, 223 (1982) (although important, education is not a
    fundamental constitutional right).
           75
                Cf. City of Cleburne v. Cleburne Living Ctr., 
    473 U.S. 432
    , 446 (1985) (disability
    classifications are subject only to rational-basis scrutiny).
    
                                                    -28-
    Pace’s Title II claims given that its rights and remedies are
    
    identical to and duplicative of those provided in § 504, we do not
    
    address   whether     the     holding    in    Lane   extends    to   disability
    
    discrimination in access to public education.
    
         Second,   when     ADA     claims    are    directed   at    architectural
    
    barriers, as they are here, the rights and remedies are exactly the
    
    same as those provided under the Rehabilitation Act. This circuit,
    
    as well as others, has noted that, because the rights and remedies
    
    under both statutes are the same, case law interpreting one statute
    
    can be applied to the other.76           The implementing regulations for §
    
    504 and Title II are, in all material respects, the same.                   For
    
    example, both statutes’ implementing regulations prohibit similar
    
    
    
    
         76
           See Hainze v. Richards, 
    207 F.3d 795
    , 799 (5th Cir. 2000)
    (internal citations omitted) (“The language of Title II generally
    tracks the language of Section 504 of the Rehabilitation Act of
    1973, and Congress’ intent was that Title II extend the protections
    of the Rehabilitation Act ‘to cover all programs of state or local
    governments, regardless of the receipt of federal financial
    assistance’ and that it ‘work in the same manner as Section 504.’
    In fact, the statute specifically provides that ‘[t]he remedies,
    procedures and rights’ available under Section 504 shall be the
    same as those available under Title II. Jurisprudence interpreting
    either section is applicable to both.”); Washington v. Indiana High
    Sch. Athletic Ass’n, Inc., 
    181 F.3d 840
    , 845 n.6 (7th Cir. 1999)
    (“Title II of the ADA was modeled after § 504 of the Rehabilitation
    Act; the elements of claims under the two provisions are nearly
    identical, and precedent under one statute typically applies to the
    other.”); Gorman v. Bartch, 
    152 F.3d 907
    , 912 (8th Cir. 1998) (“The
    ADA has no federal funding requirement, but it is otherwise similar
    in substance to the Rehabilitation Act, and ‘cases interpreting
    either are applicable and interchangeable.’”); McPherson v.
    Michigan High Sch. Ath. Ass’n, 
    119 F.3d 453
    , 459-60 (6th Cir. 1997)
    (en banc) (same).
    
                                            -29-
    types of discrimination.77            In addition, § 504 and Title II’s
    
    regulations     governing       new   construction          and    alterations     are
    
    effectively the same.78 The two statutes are interpreted to provide
    
    the same exception: No covered entity is obligated to make a
    
    “fundamental alteration” in its programs.79                 Finally, the remedies
    
    available     under   §   504   and     Title   II    are    one    and   the    same.
    
    Specifically, § 203 of Title II states that “[t]he remedies,
    
    procedures,     and   rights      set    forth       in   section     505   of     the
    
    Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies,
    
    procedures, and rights this title provides to any person alleging
    
    discrimination on the basis of disability in violation of section
    
    202 [of the ADA].”80      Section 505(a)(2) of the Rehabilitation Act,
    
    in turn, states that the “remedies, procedures, and rights set
    
    forth in title VI of the Civil Rights Act of 1964... shall be
    
    
    
    
         77
           Compare 28 C.F.R. § 42.520, with 28 C.F.R. § 35.149.
    Similarly, § 504 and Title II’s regulations regarding existing
    facilities are nearly identical. Compare 28 C.F.R. 42.521(a), with
    28 C.F.R. 35.150(a).
         78
              Compare 28 C.F.R. 42.522(a), with 28 C.F.R. 35.151(a).
         79
           Compare Alexander v. Choate, 
    469 U.S. 287
     (1995)(Section 504
    does not require covered entities to make fundamental alterations
    in their programs); with 28 C.F.R. § 35.150(a)(2)-(3) (Title II
    does not require public entities to make fundamental alterations in
    the nature of a program, service, or activity). This requirement,
    however, does not excuse the failure to make altered or new
    facilities accessible. Compare 28 C.F.R. § 35.151(a)-(b), with 28
    C.F.R. § 42.522(a).
         80
              42 U.S.C. § 12133.
    
                                            -30-
    available” for violations of § 504.81             Thus, in Barnes v. Gorman,82
    
    the Supreme Court held that “the remedies for violations of § 202
    
    of the ADA and § 504 of the Rehabilitation Act are coextensive with
    
    the remedies available in a private cause of action brought under
    
    Title VI” of the Civil Rights Act.83            For all intents and purposes,
    
    therefore, the remedies available to Pace under § 504 and Title II
    
    are the same.      The sole difference between the statutes lies in
    
    their causation requirements.84          This difference is not implicated,
    
    however,     where,   as   here,   the    challenge     is   to   architectural
    
    barriers.
    
         In conclusion, we hold that for all the foregoing reasons,
    
    Louisiana is not entitled to assert sovereign immunity under the
    
    Eleventh Amendment in this case.               With that issue determined, we
    
    proceed to the question of issue preclusion.
    
    
    
                                     III.    MERITS
    
         We turn now to the merits of Pace’s arguments that the
    
    district court erred in denying relief to him under the IDEA, the
    
    ADA and § 504.
    
    
    
         81
              29 U.S.C. § 794a(a)(2).
         82
              
    531 U.S. 181
     (2002).
         83
               Id. at 185.
         84
              See Soledad v. U.S. Dept. of Treasury, 
    304 F.3d 500
     (5th Cir.
    2002).
    
                                            -31-
    A.     IDEA
    
           We agree with and adopt that portion of the panel opinion
    
    affirming the district court’s judgment which in turn affirmed the
    
    administrative determination that Pace was not entitled to relief
    
    under the IDEA.
    
           We pause only to emphasize the somewhat unusual nature of a
    
    proceeding under the IDEA. As required by the statute,85 Pace first
    
    pursued his administrative claim.                      He was granted a hearing by a
    
    hearing examiner           where      he   had    an    opportunity        to    present      his
    
    evidence demonstrating that the inaccessibility of various portions
    
    of the Bogalusa campus prevented him from receiving a free and
    
    appropriate public education (FAPE).                     The hearing examiner, after
    
    hearing the evidence and making a personal inspection of the
    
    campus, rejected Pace’s inaccessibility claims and concluded that
    
    the defendants had complied with the IDEA and had provided a FAPE
    
    to Pace.86 Pace then challenged the hearing examiner’s findings and
    
    conclusion in his administrative appeal to the State Level Review
    
    Panel (SLRP).          The SLRP also rejected Pace’s claims and affirmed
    
    the hearing examiner in all respects.87                       Pace then filed suit in
    
    federal district court as authorized by 20 U.S.C. § 1415(i)(1)(A).
    
           85
                See 20 U.S.C. 1415(l).
           86
           The hearing examiner thoroughly reviewed the testimony and
    physical evidence presented to her and rejected in wholesale
    fashion Pace’s various claims of inaccessibility. R. 94.
           87
              The language used by the SLRP also makes it clear that this review panel found absolutely
    no merit to Pace’s inaccessibility claims. R. 64-65.
    
                                                  -32-
    A district court in which such an action is filed must receive the
    
    record generated by the administrative proceeding and also hear
    
    additional evidence presented by the parties.88 The court must then
    
    give “due weight” to the hearing officer’s finding and make a de
    
    novo determination based on a preponderance of the evidence.
    
    Teague Independent School District v. Todd L, 
    999 F.2d 127
    , 131 (5th
    
    Cir. 1993).        The district court considered all of Pace’s claims of
    
    inaccessibility           that      he     raised       during       the      administrative
    
    proceedings.89 The court considered the administrative record along
    
    with the new evidence offered by Pace and gave “due weight” to the
    
    findings of the hearing examiner and SLRP. Ultimately, the district
    
    court agreed with the hearing examiner that Bogalusa High School
    
    had provided Pace with a FAPE by complying with the IDEA in all
    
    
           88
           See 20 U.S.C. § 1415 (i)(2) (A) (Any party aggrieved by the
    findings and decisions...shall have the right to bring a civil
    action with respect to the complaint pursuant to this section,
    which action may be brought...in a district court of the United
    States...).
           89
             Pace sought relief from the district court to remedy the school board’s refusal to make the
    following areas accessible:
    
                   •       bathroom facilities
                   •       classrooms on the second rather than first floor of the school
                   •       elevator access
                   •       exiting classroom during fire drills
                   •       cafeteria
                   •       school health center
                   •       auditorium
                   •       music room
                   •       insufficient parking spaces
                   •       lack of ramps (accessible entrances)
    
    
                                                  -33-
    aspects,    including         that    the    campus    was   accessible   to   the
    
    wheelchair-bound Pace.           The district court’s conclusion is fully
    
    supported by the record and we therefore affirm the district
    
    court’s rejection of Pace’s claims under the IDEA.
    
    B.   ADA   AND   SECTION 504
    
         In addition to his IDEA claims, Pace also asserted claims
    
    under the ADA and § 504 in his suit.                  The district court severed
    
    the IDEA claims from these non-IDEA claims.                    After dismissing
    
    Pace’s IDEA claims, the district court then considered defendants’
    
    motion for summary judgment seeking exoneration under § 504 and the
    
    ADA. The district court granted the defendants’ motion for summary
    
    judgment on grounds that the factual bases for the non-IDEA claims
    
    were indistinct from the resolved IDEA claims.                The district court
    
    concluded further that principles of issue preclusion applied to
    
    preclude Pace from pursuing his redundant non-IDEA claims.                     Pace
    
    argues that the district court committed legal error in applying
    
    principles of issue preclusion to bar his non-IDEA claims.
    
         Issue preclusion or collateral estoppel is appropriate when:
    
    (1) the identical issue was previously adjudicated; (2) the issue
    
    was actually litigated; and (3) the previous determination was
    
    necessary to the decision.                  See Southmark Corp. v. Coopers &
    
    Lybrand (In re: Southmark Corp.), 
    163 F.3d 925
    , 932 (5th Cir. 1999).
    
    In Southmark we also found that the “relitigation of an issue is
    
    not precluded unless the facts and the legal standard used to
    
    assess them       are   the    same    in    both   proceedings.”   Id.   (quoting
    
                                                -34-
    RecoverEdge L.P. v. Pentecost, 
    44 F.3d 1284
    , 1281 (5th Cir. 1995)).
    
    Issues of fact are not “identical” or “the same,” and therefore not
    
    preclusive, if the legal standards governing their resolution are
    
    “significantly different.”90 Pace argues that the accessibility
    
    issues the court litigated under the IDEA were for the limited
    
    purpose of determining whether the Bogalusa High School provided
    
    Pace with a FAPE under that statute. Thus, Pace contends, because
    
    a   “significantly            different”         legal       standard        applies        to     his
    
    accessibility issues under the ADA and § 504, these latter claims
    
    were never litigated and issue preclusion should not apply. We
    
    therefore compare the standards of accessibility under the IDEA on
    
    the one hand and the ADA and § 504 on the other to determine
    
    whether the legal standards are “significantly different.”
    
           As    indicated        above,       the    IDEA     requires        states      and       local
    
    educational agencies receiving federal IDEA funds to make a FAPE
    
    available to children with certain disabilities between the ages of
    
    3 and 21.        The IDEA imposes extensive requirements on schools to
    
    safeguard the disabled child’s right to a FAPE.                            20 U.S.C. §§ 1414,
    
    1415.       In determining whether a school has provided a student with
    
    
    
           90
              See, e.g., 18 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE 3d § 132.02[2][h]
    (3d ed. 2001). Courts have used slightly differing language to express this idea that legal issues are
    not “identical” for issue preclusion purposes if they are significantly different. Compare Raytech Corp.
    v. White, 
    54 F.3d 187
    , 191 (3d Cir. 1995) (the differences in the standards must be “substantial”)
    with Talcott v. Allahabad Bank, Ltd., 
    444 F.2d 451
    , 460 (5th Cir. 1971) (the legal standards are not
    identical for issue preclusion purposes only when there is a “demonstrable difference” in the legal
    standards by which the facts are evaluated). For purposes of this appeal, these distinctions are
    irrelevant.
    
                                                     -35-
    a FAPE, the focus is on the Individualized Education Plan (IEP), a
    
    written statement prepared by a team consisting of a representative
    
    of the local school district, the disabled child’s teachers, the
    
    child’s parents and the child.           20 U.S.C. § 1414(d).          The IEP
    
    includes the child’s educational performance, his goals, the nature
    
    of his disabilities, and a description of the educational and
    
    related services that will be provided for the child to meet the
    
    stated objectives.   The objective is always to tailor the FAPE to
    
    the particular needs of the child.              Cypress Fairbanks ISD v.
    
    Michael F., 
    118 F.3d 245
    , 247 (5th Cir. 1997).
    
         The goal of the IDEA is to require a FAPE that will permit the
    
    child “to benefit” from the educational experience.             It need not be
    
    the best possible education nor one that will maximize the child’s
    
    educational potential.      Bd. of Education v. Rowley, 
    458 U.S. 176
    
    (1982).
    
         Admittedly different from those underlying the IDEA, the
    
    Congressional   objective    of   both    the   ADA   and   §    504   is   the
    
    elimination     of   discrimination        against      individuals         with
    
    disabilities.   42 U.S.C. § 12101(b)(1).        Title II of the ADA, which
    
    applies to public entities including public schools, provides that
    
    “no qualified individual with a disability shall, by reason of such
    
    disability, be excluded from participation in or be denied the
    
    benefits of the services, programs or activities of a public entity
    
    or be subjected to discrimination by any such entity.”              42 U.S.C.
    
    § 12132.   See also 28 C.F.R. § 35.130(a).            Section 504 contains
    
                                      -36-
    virtually identical language.                       See 29 U.S.C. § 784(a).                   Mandating
    
    physical          accessibility           and     the      removal        and     amelioration            of
    
    architectural barriers is an important purpose of each statute.91
    
            The primary difference between the ADA and § 504 is that § 504
    
    applies only to recipients of federal funds. 29 U.S.C. § 794(a).
    
    This difference does not concern us in this case because no
    
    defendant argues that it does not receive federal money.                                        Thus, as
    
    we stated in section II-D above, for the purposes of this appeal,
    
    the ADA          and    §   504    and     their       implementing           regulations          impose
    
    identical obligations on the defendants and grant identical rights
    
    to Pace.92
    
            In Pace’s brief to us on his non-IDEA claims brought under §
    
    504 and the ADA he complains only that parts of the Bogalusa High
    
    School campus are inaccessible to him.                            The only § 504 regulations
    
    dealing with accessibility in education are found in subpart C of
    
    the § 504 regulations. 34 C.F.R. §§ 104.21-104.23.                                     Section 104.23
    
    of § 504's regulations deals with new construction on school
    
    campuses, the basis of Pace’s complaints in this suit.                                         Subpart D
    
    of the § 504 regulations deals with preschool, elementary, and
    
    
            91
                See 42 U.S.C. § 12101(a)(5) (“The Congress finds that ...individuals with disabilities
    continually encounter various forms of discrimination, including...the discriminatory effects of
    architectural...barriers,... failure to make modifications to existing facilities[,]...segregation, and
    relegation to lesser services, programs, [and] activities...”); Id. § 12101(a)(4) (“The Congress finds
    that...discrimination against individuals with disabilities persists in such critical areas as education...”);
    Alexander v. Choate, 
    469 U.S. 287
    , 297 (1985) (noting that the “elimination of architectural barriers
    was one of the central aims of the Rehabilitation Act”).
            92
                 See note 78, supra.
    
                                                       -37-
    secondary education and those regulations do not purport to cover
    
    accessibility in schools.93 Rather, 34 C.F.R. § § 104.21-23, the
    
    general education regulations on accessibility found in subpart C
    
    of § 504 apply to new construction on high school campuses such as
    
    Bogalusa High.94           The ADA has no specific section on education, so
    
    the general regulations governing accessibility to public buildings
    
    also control accessibility to school buildings.
    
            With this background, we turn to Pace’s specific argument that
    
    his accessibility claims under the ADA/504 are not precluded by the
    
    district court’s rejection of his accessibility claims under the
    
    IDEA.        He argues that his non-IDEA accessibility claims are not
    
    precluded because different legal standards apply to his ADA and §
    
    504 accessibility claims, and these claims have never been litigated
    
    or    decided.          When      we    consider        the     equivalent         standards        for
    
    accessibility in schools under the IDEA on the one hand and the
    
    ADA/504 on the other, it becomes clear that we should reject this
    
    argument.
    
            Congress required in a 1997 amendment to the IDEA that any
    
            93
              Subpart D in the regulations to § 504 includes general regulations for preschool,
    elementary, and secondary education regarding placement (34 C.F.R. § 104.35), procedural
    requirements (34 C.F.R. § 104.36) and the general FAPE requirement (34 C.F.R. § 104.33).
            94
              Although it is illogical to do so, one can read the § 504 regulations to say that a school need
    not comply with accessibility requirements in Subpart C to provide a § 504 FAPE under 104.33 when
    a student complains that part of a school’s campus is inaccessible. In such a situation, it is more
    sensible to read these regulations as requiring a school’s compliance with subpart C’s accessibility
    requirements before it can be said to provide a § 504 FAPE. Regardless of whether the accessibility
    requirement s must be met before a § 504 FAPE is provided, subpart C of the § 504 regulations
    clearly requires new construction in the school to meet the regulation’s accessibility requirements.
    
                                                     -38-
    construction of new facilities must comply with either (1) The
    
    Americans with Disabilities Accessibility Guidelines for Buildings
    
    and Facilities (ADAAG); or (2) The Uniform Federal Accessibility
    
    Standards (UFAS). 20 U.S.C. § 1404(b).95                             Thus, with respect to a
    
    physically disabled child such as the wheelchair-bound Pace, the
    
    school can comply with the IDEA’s accessibility requirements by
    
    satisfying either the ADAAG or UFAS.96
    
            Pace presents no argument that the accessibility standards for
    
    new construction of school buildings under the ADA or § 504 are more
    
    demanding or even different from the standards required under the
    
    1997 amendment to the IDEA. This is understandable, because the
    
    regulations governing accessibility in schools under the ADA/504
    
    require a school engaged in new construction to conform to the same
    
    standards as the IDEA, either the ADAAG or UFAS.
    
            New construction and alterations of public facilities under
    
    
    
            95
                 20 U.S.C. § 1404(b) provides in pertinent part:
    
                      ...Any construction of new facilities or alteration of existing facilities under
                      subsection (a) of this section shall comply with the requirements of–
    
                             (1) appendix A of part 36 of title 28, Code of Federal Regulations
                             (commonly known as the “Americans with Disabilities Accessibility
                             Guidelines for Buildings and Facilities”); or
    
                             (2) appendix A of part 101-19.6 of title 41, Code of Federal
                             Regulations (commonly known as the “Uniform Federal Accessibility
                             Standards”).
            96
                 The corresponding regulation to 20 U.S.C. § 1404 is found at 34 C.F.R. § 300.756 and is
    identical.
    
                                                      -39-
    Title II of the ADA are governed by the regulations found in 28
    
    C.F.R. § 35.151.97          Like the IDEA, the ADA accessibility regulations
    
    require a school conducting new construction to comply with either
    
    the ADAAG or UFAS.               Section 504's accessibility regulations are
    
    virtually identical to the ADA’s,98 and also demand that schools
    
    engaging in new construction comply with the same federal guidelines
    
    required by the IDEA.             Thus, Pace’s argument that the accessibility
    
    standards are different under IDEA and ADA/504 is meritless.
    
           In summary, under the IDEA, when, as here, a child complains
    
    that his disability renders a portion of the campus inaccessible,
    
    this triggers the application of the 1997 amendments to the IDEA.
    
    In determining whether the school has met its obligations under the
    
    amendment and provided the disabled student with a FAPE, the hearing
    
    examiner, the SLRP, and the district court must determine whether
    
    the area of the school in question complies with either the ADAAG
    
    or UFAS. These are the same federal guidelines the school must
    
    comply with to satisfy the accessibility requirements of the ADA and
    
    § 504.
    
           97
             38 C.F.R. 35.151(c) provides in pertinent part:
                   (c) Accessibility standards. Design, construction, or alteration of facilities in
           conformance with the Uniform Federal Accessibility Standards (UFAS)...or with the
           Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities
           (ADAAG)...shall be deemed to comply with the requirements of this section with
           respect to those facilities...
           98
             One minor difference between the accessibility regulations under § 504 and the ADA is that,
    because § 504 preceded the ADA and the ADA-specific accessibility regulations (ADAAG), § 504
    does not give schools the option of complying with either the ADAAG or UFAS (as do both the
    ADA and IDEA), but requires compliance with the UFAS.
    
                                                    -40-
           Pace, as he was required to do by the IDEA, presented his
    
    accessibility          claims       in    his     administrative             claim.          In       their
    
    administrative findings, both the hearing examiner and the SLRP
    
    discussed the 1997 amendment to the IDEA. This makes it clear that
    
    both were aware that new or existing construction to Bogalusa High
    
    School must meet either the ADAAG or UFAS standards before the
    
    school could fully comply with the IDEA.99
    
           The only significant summary judgment evidence Pace presented
    
    to the district court on his ADA/504 claims was the report and
    
    deposition testimony of Donald MaGinnis, an architectural expert.
    
    The point of his testimony is that structural changes to the
    
    Bogalusa campus failed to comply with the ADAAG. Although this same
    
    standard applied to Pace’s claim under the IDEA, he did not
    
    introduce this evidence before the hearing examiner. Further, Pace
    
    failed to offer the expert evidence to the district court to support
    
    his appeal of the administrative determination under the IDEA.
    
    Because the accessibility standards under the IDEA and the ADA/504
    
    are identical for new construction of school buildings, Pace has not
    
    demonstrated that the defendants owed him any greater or even
    
           99
            Page five of the State Level Review Panel’s opinion, under the heading “Applicable Law
    and Regulations,” provides:
    
                   Section 605 of the Individuals with Disabilities Education Act Amendments
           of 1997, states that any construction of new facilities or alteration of existing facilities
           with use of program funds shall comply with the requirements of Americans with
           Disabilities Accessibility Guidelines (Appendix A of Part 36 of Title 28, Code of
           Federal Regulations) or Uniform Federal Accessibility Standards (Appendix A of Part
           101-19.6 of Title 41, Code of Federal Regulations). (R. 63).
    
                                                     -41-
    different obligation in this respect under § 504/ADA than he was
    
    entitled to under the IDEA.      Thus, the accessibility issue Pace
    
    litigated in his IDEA case and lost is the same issue he sought to
    
    litigate in his ADA/504 claim.          The district court correctly
    
    concluded that Pace was precluded from relitigating this issue.
    
           The only argument Pace presents to us on the applicability of
    
    the 1997 amendment was presented for the first time in his petition
    
    for en banc review.    He argued in that petition and argues to the
    
    en banc court that the amendment was not triggered because no
    
    evidence was presented that “IDEA funds” were used to make the
    
    improvements to the Bogalusa campus.     Pace relies on the following
    
    language in the 1997 amendment to 20 U.S.C. § 1404:
    
           § 1404.    Acquisition of   equipment;   construction   or
           alteration of facilities
                (a) In general
    
                If the Secretary determines that a program
                authorized under this chapter would be improved
                by permitting program funds to be used to
                acquire appropriate equipment, or to construct
                new facilities or alter existing facilities,
                the Secretary is authorized to allow the use of
                those funds for those purposes.
    
           Neither the amendment nor the existing statute purports to
    
    require a plaintiff to prove the use of IDEA funds or any other fact
    
    as a predicate to seeking relief under the IDEA against a school for
    
    failing to make its campus accessible in response to a student’s
    
    IEP.    We have found no cases interpreting this amendment or its
    
    predecessor.    Subsection (a) is simply a restyled version of the
    
    
    
                                     -42-
    existing statute.100         The change is found in Subsection (b), which
    
    incorporates into the IDEA for the first time the ADAAG and UFAS
    
    construction standards.            The amended § 1404(a), like the existing
    
    statute, authorizes the Secretary to allow the use of IDEA funds for
    
    construction or alterations.
    
         To support Pace’s argument that the amended version of § 1404
    
    does not apply in this case, amicus seems to argue that structural
    
    alterations to meet accessibility demands in a student’s IEP are not
    
    part of the calculus in determining whether a student has received
    
    a FAPE.
    
         In Weber’s Special Education Law and Litigation Treatise, he
    
    rejects this suggestion in his cogent discussion of the interplay
    
    between the IDEA, § 504 and ADA:
    
         Schools covered by Title II and Section 504 owe
         obligations not only to students with disabilities but to
         all persons with disabilities whom they serve. In this
         sense, the laws are more inclusive than the Individuals
         with   Disabilities    Education   Act   (IDEA),    whose
         beneficiaries are children with disabilities who need
         special education.    Nevertheless, by requiring school
         districts to provide an appropriate education in the
         least restrictive environment, IDEA overlaps with Section
         504 and Title II in terms of the children it covers.
         Thus, IDEA may require a school district to modify
         programs or facilities to achieve these ends for an
    
    
         100
            The pre-amended version of 20 U.S.C. 1404(a) provided as follows:
         (a) Authorization for use of funds
    
                In the case of any program authorized by this chapter, if the Secretary
                determines that such program will be improved by permitting the
                funds authorized for such program to be used for the acquisition of
                equipment and the construction of necessary facilities, the Secretary
                may authorize the use of such funds for such purposes. (West 1996).
    
                                                -43-
           individual student. IDEA funds may be used for removal
           of architectural barriers or other improvements to
           accessibility in order to promote appropriate education
           for children with disabilities.(Footnotes omitted)101
           (emphasis added)
    
           Weber further describes a school’s duty under the IDEA to
    
    address accessibility concerns in the IEP as “a component of
    
    appropriate special education and related services in the least
    
    restrictive environment.”102               This discussion makes it clear that
    
    when a student’s IEP raises concerns of accessibility to the
    
    school’s campus, the determination of whether these concerns have
    
    been met is a necessary component in resolving whether the student
    
    has received a FAPE.
    
           The Hearing Examiner tried this controversy on the premise that
    
    the entire IDEA statute, including the 1997 amendment, applied to
    
    Pace’s claims, and no one argued to the contrary.                              The Hearing
    
    Examiner did not require the parties to file extensive pre-trial
    
    papers. However, she did require each party to list the issues they
    
    wanted the hearing examiner to address. Neither Pace nor the school
    
    board asserted that an issue was presented with respect to the
    
    expenditure of IDEA funds or any other issue relating to the
    
    applicability of the 1997 amendment to § 1404.                           Considering the
    
    strict duty that the ADAAG and UFAS construction guidelines impose
    
    
    
           101
                 MARK C. WEBER, SPECIAL EDUCATION LAW AND LITIGATION TREATISE 7.1 (2D ED. 2002).
           102
             Weber, note 3 at 7.2. (Footnotes omitted). Weber concludes that “modifications [to the
    campus] may include wheelchair ramps, handrails, accessible toilets, and water fountains.”
    
                                                 -44-
    on the school, it was also reasonable for the Hearing Examiner to
    
    assume that the school board would object if there was some basis
    
    for it        to   argue    that     these     guidelines        did    not     apply     to    the
    
    architectural improvements ordered by Pace’s IEP.                                    It is not
    
    surprising that Pace did not object to the Hearing Examiner’s
    
    application of such rigorous standards; it was in his interest at
    
    the time to require the school to meet the toughest standards
    
    possible in making the architectural improvements.
    
           After three hearings, the Hearing Examiner issued her report
    
    finding that Bogalusa High had provided Pace with a FAPE.                                       The
    
    Hearing Examiner explicitly found that the ADAAG guidelines applied,
    
    meaning that she concluded that Pace’s accessibility concerns
    
    regarding improvements made to the campus triggered the application
    
    of the 1997 amendment to § 1404 of the IDEA.                          Otherwise, the ADAAG
    
    guidelines would be irrelevant. In making her findings, the Hearing
    
    Examiner relied on the voluminous administrative record, which shows
    
    that Bogalusa received substantial federal IDEA funds during 1996
    
    and 1997, the relevant time period.103                        IDEA regulations make it
    
    clear that federal IDEA funds cannot be co-mingled with state
    
    funds.104        The Hearing examiner also had the benefit of Pace’s IEP
    
    and the testimony of the School Board’s Maintenance Supervisor that
    
    
           103
               For the 1996-97 fiscal year, the record shows that Bogalusa was the recipient of $164,213
    in federal funds for its “Special Education” program.
           104
                 34 CFR § 300.152.
    
    
                                                  -45-
    the construction changes were made in response to Pace’s IEP
    
    facilitator’s instructions.           Even if a showing of the use of IDEA
    
    funds was required,           it was reasonable for the Hearing Examiner to
    
    conclude that IDEA funds were used and that under the amended
    
    version of 20 U.S.C. § 1404 the school provided Pace with a FAPE.
    
          Pace appealed the Hearing Examiner’s order to the State Level
    
    Review Panel (SLRP).           Again, the record reflects no argument from
    
    any party to that appeal that the entire IDEA statute, including the
    
    1997 amendment to § 1404, did not apply.             The SLRP in its opinion
    
    explicitly applied the 1997 amendment, discussed Pace’s arguments,
    
    and after rejecting them, affirmed the Hearing Examiner.
    
          Pace then filed suit in federal district court seeking relief
    
    under the IDEA, §504 and the ADA.              He specifically alleged in his
    
    petition that the state received federal IDEA funds.105             His core
    
    claim was that the school had failed to comply with the ADAAG.
    
          The primary evidence Pace presented to the district court was
    
    the deposition testimony and report of architect Donald MaGinnis,
    
    who testified that the structural changes to the campus failed to
    
    meet ADAAG standards. Thus, Pace’s federal claim was predicated on
    
    these guidelines, made applicable to the IDEA by the 1997 amendment
    
    to   § 1404.          Because the Hearing Examiner and the SLRP had rejected
    
    Pace’s accessibility claims based on application of these same
    
    standards (the ADAAG and UFAS), the district court concluded that
    
    
          
    105 Rawle 192
    .
    
                                            -46-
    Pace was precluded from relitigating his accessibility issues.
    
         Suffering summary judgment in the district court on both his
    
    IDEA and non-IDEA claims, Pace sought appellate relief from this
    
    court.       In his initial brief to the panel, Pace argued that the
    
    district court erred in accepting the Hearing Examiner and SLRP’s
    
    findings of accessibility to preclude his non-IDEA accessibility
    
    claims.          However,      Pace     did    not     base     his   argument   on   the
    
    inapplicability of the 1997 amendment to § 1404 or that the Hearing
    
    Examiner erred in applying the ADAAG guidelines to the structural
    
    changes. The School Board did argue to the panel that the amendment
    
    applied and that the Hearing Examiner and SLRP had used the very
    
    same federal guidelines in deciding Pace’s IDEA claims that Pace
    
    sought to litigate in his non-IDEA action.106
    
         Faced with the appellee’s argument that his non-IDEA claims
    
    were precluded due to the previous application of the 1997 amended
    
    version of § 1404, Pace filed a reply brief with the panel.                       Again,
    
    he made no effort to refute the School Board’s argument that the
    
    1997 amendment to § 1404 applied.
    
         Without any opposition from Pace as to the proper application
    
    of § 1404 to the improvements to Bogalusa High’s campus, the panel
    
    accepted the School Board’s unchallenged argument and relied on the
    
    
    
    
         106
               Appellee Bogalusa City School Board’s Brief at 32.
    
    
                                                  -47-
    1997 amendment to affirm the district court’s judgment.107 The panel
    
    specifically cited the 1997 amended version of § 1404 to support its
    
    conclusion that issue preclusion was proper because accessibility
    
    to the campus had already been litigated under the same federal
    
    standards.108
    
         In response to the panel’s decision, Pace sought en banc
    
    review, where he argued for the first time that § 1404 did not apply
    
    to the improvements he demanded in his IEP, because “[t]here is no
    
    proof that construction in this case would be covered by this
    
    provision.”109
    
         In sum, we do not read the 1997 amendment to require proof that
    
    IDEA funds were used for improvements to trigger the amendment.
    
    Even if the statute can be read in this manner, there is evidence
    
    to support an inference that IDEA funds were used to make the
    
    structural changes.              More importantly, we cannot permit Pace to
    
    change his position at will. He was obviously happy to have the
    
    administrative bodies and the trial court apply the 1997 amendment
    
    to § 1404 (and the strict ADAAG guidelines) when it was helpful to
    
    him. He cannot at this late date reverse his position when he finds
    
    that application of those guidelines are not in his best interest.
    
    
    
         107
               Pace v. Bogalusa City School Bd., 
    325 F.3d 609
     (5th Cir. 2003).
         108
               Id. at 614.
         109
               Appellant Travis Pace’s En Banc Brief at 22.
    
    
                                                  -48-
           Pace has one remaining argument in support of his position that
    
    issue preclusion should not apply to his claims under the ADA and
    
    § 504.       He argues that the IDEA’s “savings clause,” gives him the
    
    right to maintain a cause of action under the ADA and § 504.110                                 We
    
    agree that Pace is not limited to a claim under the IDEA and that
    
    he can assert claims under the ADA and § 504.                           But his ability to
    
    assert non-IDEA claims does not mean that general principles of
    
    issue preclusion do not apply to preclude his redundant claims.111
    
    Because Pace’s claims under the ADA and § 504 are factually and
    
    legally indistinct from his IDEA claims, issue preclusion is proper
    
    in this case.
    
           Because Pace is precluded from litigating the question of
    
    whether the defendants have any obligation under the ADA and § 504
    
    to make further architectural or structural changes in the buildings
    
    on the Bogalusa campus, his claim for an injunction ordering such
    
    changes must also fail.
    
    
           110
              The IDEA’s “savings clause” is found in 20 U.S.C 1415(l), and provides in pertinent part:
                   Nothing in this chapter shall be construed to restrict or limit the rights,
           procedures, and remedies under...the Americans with Disabilities Act of 1990...title
           V of the Rehabilitation Act of 1973...or other Federal laws protecting the rights of
           children with disabilities...
           111
               See, e.g., Burlovich v. Bd. of Educ., 
    208 F.3d 560
     (6th Cir. 2000) (issue preclusion may
    apply to redundant ADA and § 504 claims), Indep. Sch. Dist. No. 283 v. S.D., 
    88 F.3d 556
    , 562 (8th
    Cir. 1996) (principles of issue preclusion and claim preclusion may properly be applied to short-
    circuited redundant claims under other laws) and Urban v. Jefferson County Sch. Dist. R-1, 
    89 F.3d 720
    , 728 (10th Cir. 1996) (issue preclusion proper to dismiss § 504 placement claim when identical
    issue already litigated under the IDEA).
    
                                                  -49-
         In conclusion, we AFFIRM the district court’s dismissal of
    
    Pace’s claims under the IDEA and also AFFIRM the district court’s
    
    dismissal of Pace’s claims for damages and injunctive relief under
    
    the ADA and § 504.
    
    
    
    ENDRECORD
    
    
    
    
                                  -50-
    EDITH H. JONES, Circuit Judge, with whom JOLLY, SMITH, BARKSDALE,
    
    GARZA AND DeMOSS, Circuit Judges, join, concurring in part and
    
    dissenting in part:
    
    
    
               I concur in the court’s discussion of the merits of Pace’s
    
    claims, but I respectfully dissent from the majority’s conclusion
    
    that the State of Louisiana, by accepting federal education funds
    
    from 1996 to 1998 (the period here at issue), validly waived its
    
    Eleventh Amendment immunity from suit for violations of § 504 and
    
    the IDEA statute.   Instead, we should hold that under these limited
    
    and unusual circumstances, the State did not knowingly waive its
    
    constitutional right to be free from suit by private citizens.112
    
               Alexander Hamilton wrote:
    
         It is inherent in the nature of sovereignty not to be
         amenable to the suit of an individual without its
         consent.   This is the general sense and the general
         practice of mankind; and the exemption, as one of the
         attributes of sovereignty, is now enjoyed by the
         government of every state in the Union.
    
    THE FEDERALIST NO. 81, at 487-88 (Clint Rossiter ed., 1961).     The
    
    Eleventh Amendment protects States from suit in federal court
    
    precisely out of the recognition of their continued status as
    
    co-sovereigns.   Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
    
    
         112
              The panel opinion observed that the State’s victory in
    this case would be Pyrrhic because only during a three-year period
    could the panel conclude that the State did not “knowingly” waive
    its Eleventh Amendment immunity. The majority apparently believe
    that a Pyrrhic victory is one too many.
    
                                    -51-
    Eddy, Inc., 
    506 U.S. 139
    , 146, 
    113 S. Ct. 684
    , 689 (1993).   For over
    
    one hundred years, the Supreme Court has “extended a State’s
    
    [constitutional] protection from suit to suits brought by the
    
    State’s own citizens.”   Idaho v. Coeur d’Alene Tribe of Idaho, 
    521 U.S. 261
    , 267-68, 
    117 S. Ct. 2028
    , 2033 (1997) (referring to Hans
    
    v. Louisiana, 
    134 U.S. 1
    , 
    10 S. Ct. 504
     (1890)).
    
              There are two carefully construed exceptions whereby
    
    States may become subject to suits by private citizens.      Congress
    
    may abrogate state sovereign immunity pursuant to § 5 of the
    
    Fourteenth Amendment, or the State may waive its sovereign immunity
    
    and give its consent to suit.   See Coll. Sav. Bank v. Fla. Prepaid
    
    Postsecondary Educ. Expense Bd., 
    527 U.S. 666
    , 670, 
    119 S. Ct. 2219
    ,
    
    2223 (1999)). However, “[b]ecause abrogation of sovereign immunity
    
    upsets the fundamental constitutional balance between the Federal
    
    Government and the States, . . . and because States are unable
    
    directly to remedy a judicial misapprehension of that abrogation,
    
    the Court has adopted a particularly strict standard to evaluate
    
    claims that Congress has abrogated the States’ sovereign immunity.”
    
    Port Auth. Trans-Hudson Corp. v. Feeney, 
    495 U.S. 299
    , 305, 110 S.
    
    Ct. 1868, 1872 (1990) (citations and quotations omitted).    “Similar
    
    solicitude for States’ sovereign immunity underlies the standard
    
    that this Court employs to determine whether a State has waived that
    
    immunity.”   Id.
    
              Travis Pace advances both abrogation and waiver theories
    
    in support of his claims against Louisiana.    The majority agrees
    
                                    -52-
    with   Pace    that      Louisiana        waived      its   sovereign       immunity      as   a
    
    condition      of       accepting    federal          funds   under     §     504    of    the
    
    Rehabilitation Act and IDEA. In so doing, the majority has forsaken
    
    the “particularly strict standard” the Eleventh Amendment demands,
    
    ignored the Supreme Court’s settled test for evaluating a waiver of
    
    constitutional          rights,     and    inexplicably       discounted       the     unique
    
    factual context from which this case arose.
    
                                              I.    WAIVER
    
                  As    a    fundamental       constitutional        component,         “[s]tate
    
    sovereign immunity, no less than the right to trial by jury in
    
    criminal cases, is constitutionally protected.”                         Coll. Sav. Bank,
    
    527 U.S. at 682, 119 S. Ct. at 2229.                          The same test used in
    
    evaluating waiver of other fundamental constitutional rights must
    
    be employed in the Eleventh Amendment context as well. As the Court
    
    held, there is no justification for creating a separate and distinct
    
    test for Eleventh Amendment waiver purposes.                     Thus, “[t]he classic
    
    description of an effective waiver of a constitutional right is the
    
    intentional relinquishment or abandonment of a known right or
    
    privilege.” Id. (citations and quotations omitted) (emphasis added).
    
    According to the sole applicable test, therefore, “waiver must have
    
    been made with a full awareness of both the nature of the right
    
    being abandoned and the consequences of the decision to abandon it.”
    
    Moran v. Burbine, 
    475 U.S. 412
    , 421, 
    106 S. Ct. 1135
    , 1141 (1986)
    
    (emphasis added).            Moreover, “courts indulge every reasonable
    
    presumption against waiver of fundamental constitutional rights and
    
                                                   -53-
    . . . do not presume acquiescence in the loss of fundamental
    
    rights.” Johnson v. Zerbst, 
    304 U.S. 458
    , 464, 
    58 S. Ct. 1019
    , 1023
    
    (1938). This circuit, at least until today, adhered to this uniform
    
    approach.    “Waivers of constitutional rights not only must be
    
    voluntary but must be knowing, intelligent acts done with sufficient
    
    awareness of the relevant circumstances and likely consequences[.]”
    
    United States v. Newell, 
    315 F.3d 510
    , 519 (5th Cir. 2002)(quoting
    
    Brady v. United States, 
    397 U.S. 742
    , 748, 
    90 S. Ct. 1463
     (1970))
    
    (emphasis added).   A valid waiver requires “actual knowledge of the
    
    existence of the right or privilege, full understanding of its
    
    meaning, and clear comprehension of the consequences of the waiver.”
    
    Id. (quoting Hatfield v. Scott, 
    306 F.3d 223
    , 230 (5th Cir. 2002))
    
    (emphasis in original).
    
                The test for a State’s waiver of Eleventh Amendment
    
    immunity is no different because Congress sought to effect waiver
    
    under the Spending Clause.      The Supreme Court “has repeatedly
    
    characterized . . . Spending Clause legislation as ‘much in the
    
    nature of a contract: in return for federal funds, the [recipients]
    
    agree to comply with federally imposed conditions.’”      Barnes v.
    
    Gorman, 
    536 U.S. 181
    , 186 (2002) (quoting Pennhurst State Sch. &
    
    Hosp. v. Halderman, 
    451 U.S. 1
    , 17 (1981)).       “Just as a valid
    
    contract requires offer and acceptance of its terms, the legitimacy
    
    of Congress’ power to legislate under the spending power . . . rests
    
    on whether the [recipient] voluntarily and knowingly accepts the
    
    terms of the contract.”    Barnes, 536 U.S. at 186 (citations and
    
                                    -54-
    quotations omitted) (emphasis added); see also Pennhurst, 465 U.S.
    
    at 99, 104 S. Ct. at 907 (the State’s consent to suit must be
    
    “unequivocally expressed”).            As a result, the “test for determining
    
    whether      a    State    has     waived    its   immunity   from      federal-court
    
    jurisdiction is a stringent one.”                    Atascadero State Hosp. v.
    
    Scanlon, 
    473 U.S. 234
    , 241, 
    105 S. Ct. 3142
    , 3146 (1985).
    
                     Despite this clear authority, the majority has crafted a
    
    novel waiver test for Spending Clause cases.                      Relying on South
    
    Dakota v. Dole, 
    483 U.S. 203
    , 
    107 S. Ct. 2793
     (1987), the majority
    
    draws two conclusions: (1) a State’s waiver is knowing so long as
    
    Congress satisfies the “clear statement rule,” and (2) the State’s
    
    waiver is voluntary so long as it is “non-coercive.”                      Although I
    
    agree      with    the    latter    conclusion,    the   former    is    incorrect.113
    
    
    
         113
              Dole’s “non-coercive” requirement is a satisfactory proxy
    for the “voluntariness” prong of the waiver inquiry. Thus, under
    the   current   state   of   the   law,  §   2000d-7(a)    is   not
    unconstitutionally coercive. As a result, the State of Louisiana
    acted voluntarily for purposes of the constitutional waiver test.
    But, with due regard for precedent, I am compelled to raise the
    following question: “If not now, and on this showing, when, and on
    what showing” will federal grants be deemed unconstitutionally
    coercive? Cf. Spangler v. Pasadena City Bd. of Ed., 
    611 F.2d 1239
    ,
    1240 (9th Cir. 1979).     The Rehabilitation Act, pursuant to 29
    U.S.C. § 794(a), requires non-consenting States to forfeit all
    federal funds.     For the Louisiana Department of Education,
    renouncing all federal funds would cut its budget by $804,269,621,
    or 75%. Dole counseled that “in some circumstances the financial
    inducement offered by Congress might be so coercive as to pass the
    point at which pressure turns into compulsion.” 483 U.S. at 211
    (emphasis added). To date, the Supreme Court has not found a case
    that warranted vindication of this principle.         Nevertheless,
    Louisiana and its children would suffer extreme consequences here
    if the State were to lose massive federal assistance by asserting
    its constitutional right to sovereign immunity.
    
                                                -55-
    College Savings Bank controls the Eleventh Amendment waiver inquiry
    
    and demands more than a congressional “clear statement” — it also
    
    requires the State to make a “clear declaration” of its intent to
    
    waive its immunity.           In College Savings Bank, the Supreme Court
    
    recognized that for a State “knowingly” to waive its sovereign
    
    immunity, not only must Congress make clear its intention to so
    
    condition       federal      funds,    but     the    State   must    expressly      and
    
    unequivocally        waive    its     immunity.        “There   is    a    fundamental
    
    difference between a State’s expressing unequivocally that it waives
    
    its immunity and Congress’s expressing unequivocally its intention
    
    that if the State takes certain action it shall be deemed to have
    
    that immunity.”       Coll. Sav. Bank, 527 U.S. at 680-81, 119 S. Ct. at
    
    2228.    “In the latter situation, the most that can be said with
    
    certainty is that the State has been put on notice that Congress
    
    intends to subject it to suits brought by individuals.”                      Id.
    
                   Despite the majority’s assertion to the contrary, College
    
    Savings Bank confirms that Dole’s “clear statement” requirement is
    
    only half of the waiver equation.                   See Garcia v. S.U.N.Y. Health
    
    Sci.    Ctr.    of   Brooklyn,        
    280 F.3d 98
    ,   113-14    (2d   Cir.    2001)
    
    (concluding that “a clear expression of Congress’s intent . . .
    
    alone is not sufficient . . . to find that [the State] actually
    
    waived its sovereign immunity by accepting federal funds”).                         “The
    
    whole point of requiring a ‘clear declaration’ by the State of its
    
    waiver is to be certain that the State in fact consents to suit.”
    
    Coll. Sav. Bank, 527 U.S. at 680, 119 S. Ct. at 2228 (emphasis in
    
                                                -56-
    original).        “Whether Congress clearly required that a State waive
    
    its immunity before accepting federal funds (the first inquiry) is
    
    not the same thing, however, as whether the State clearly declared
    
    its knowing waiver (the second inquiry).”                       Douglas v. Cal. Dep’t of
    
    Youth Auth., 
    285 F.3d 1226
    , 1228 (O’Scannlain, J., dissenting from
    
    denial of petition for rehearing en banc)(emphasis in original).
    
    “The mere receipt of federal funds cannot establish that a State has
    
    consented to suit in federal court.”                      Atascadero, 473 U.S. at 246-
    
    47.114
    
                   For a State to evince its “clear declaration” of intent
    
    to waive sovereign immunity, it must possess “actual knowledge of
    
    the existence of the right or privilege, full understanding of its
    
    meaning, and clear comprehension of the consequences of the waiver.”
    
    Newell, 315 F.3d at 519 (citations and quotations omitted) (emphasis
    
    in original).          In all but the rarest of circumstances, acceptance
    
    of federal funds offered in accordance with the “clear statement
    
    rule” will meet this test. This case represents an exception to the
    
    general rule.
    
                   The majority ignores the fact that until the mid-1990's,
    
    it was assumed that Congress could abrogate state sovereign immunity
    
    in legislation enacted pursuant to its Article I enumerated powers.
    
    The Supreme Court held otherwise in Seminole Tribe v. Florida, 517
    
             114
                    Furthermore, the majority’s reliance on the precedents of other circuits is
    unpersuasive. Those circuits, like our court today, focused exclusively on whether Congress clearly
    expressed its intention to condition acceptance of federal funds on waiver of immunity — not whether
    the State reasonably believed it was waiving immunity by accepting federal funds.
    
                                                  -57-
    U.S. 44, 72-73, 
    116 S. Ct. 1114
     (1996), while reaffirming that
    
    abrogation remained permissible through a proper exercise of power
    
    under § 5 of the Fourteenth Amendment.                       Id. at 59, 
    116 S. Ct. 1114
    .
    
    In the statutes here at issue — ADA, § 504 and IDEA — abrogation was
    
    enacted under the Commerce Clause.                           Since, however, all three
    
    statutes enhance the rights of the disabled, and all three express
    
    a   clear     congressional          intent      to    abridge       the    States’       Eleventh
    
    Amendment immunity, federal courts routinely permitted suits by
    
    private individuals to proceed against the States. As late as 1998,
    
    while applying the Supreme Court’s narrow construction of the § 5
    
    abrogation authority,115 this court still held that the ADA validly
    
    abrogated state sovereign immunity.                        Coolbaugh v. Louisiana, 
    136 F.3d 430
     (5th Cir. 1998), cert. denied, 
    525 U.S. 819
    , 
    119 S. Ct. 58
    
    (1998) overruled by Reickenbacker v. Flores, 
    274 F.3d 974
     (5th Cir.
    
    2001).116
    
                   Surely Louisiana should not be penalized for construing
    
    the ADA — and counterpart abrogation language in § 504 and IDEA —
    
    just as this court subsequently did in Coolbaugh.                                  Instead, the
    
    State acted quite rationally in assuming between 1996 and 1998 that
    
    
           115
                   See City of Boerne v. Flores, 
    521 U.S. 507
    , 
    117 S. Ct. 2157
     (1997).
           116
                     Reickenbacker’s holding flows from the Supreme Court’s decision in Bd. of Trustees
    of the Univ. of Alabama v. Garrett, 
    531 U.S. 356
    , 368, 
    121 S. Ct. 955
    , 964 (2001), which held that
    Title I of the ADA did not validly abrogat e state sovereign immunity pursuant to § 5 of the
    Fourteenth Amendment. Because Title II of the ADA and § 504 of the Rehabilitation Act offer
    virtually identical protections, the abrogat ion analysis with regard to the two statutes is the same.
    Reickenbacker, 274 F.3d at 977 n. 17; see also Garcia, 280 F.3d at 114; Hoekstra v. Indep. Sch.
    Dist., 
    103 F.3d 624
    , 626 (8th Cir. 1996).
    
                                                   -58-
    it had no sovereign immunity to waive when it accepted federal
    
    education funds under conditions specified by § 504 and IDEA.    The
    
    State voluntarily accepted federal funds, but its acceptance was not
    
    a “knowing” waiver of immunity. As the Second Circuit put it, since
    
    “the proscriptions of Title II [of the ADA] and § 504 are virtually
    
    identical, a State accepting federal funds could not have understood
    
    that in doing so it was actually abandoning its sovereign immunity
    
    from private damage suits, since by all reasonable appearances state
    
    sovereign immunity had already been lost.”    Garcia, 280 F.3d at 114
    
    (citations omitted).117
    
               The majority offers two principal arguments against this
    
    result.    First, the majority conflates abrogation and waiver when
    
    positing that “Louisiana did have Eleventh Amendment immunity to
    
    waive by accepting the clearly conditioned federal funds.”       See
    
    Majority Op. at 21        (emphasis in original).   On the contrary,
    
    Coolbaugh confirmed, until Garrett and Reickenbacker overruled it,
    
    that Congress had validly exercised its abrogation authority,
    
    rendering Louisiana amenable to suit notwithstanding the Eleventh
    
    Amendment.    The majority’s suggestion that Congress can abrogate
    
    sovereign immunity, but still permit the States to retain their
    
    
         117
              Conversely, after Garrett was decided, the State
    defendants could knowingly waive their immunity because they could
    have reasonably anticipated the ability to preserve sovereign
    immunity by declining federal funds under the Rehabilitation Act
    and the IDEA.   See Bd. of Trustees of the Univ. of Alabama v.
    Garrett, 
    531 U.S. 356
    , 
    121 S. Ct. 955
     (2001) (invalidating an
    abrogation of Eleventh Amendment immunity pursuant to Title I of
    ADA).
    
                                      -59-
    Eleventh        Amendment          immunity,         misapprehends            the     import        of
    
    abrogation.118
    
                   Still, Congress may, in its discretion, choose to trigger
    
    enforcement of any federal statute, even after it has abrogated
    
    sovereign immunity, on the receipt of federal funds.                                In response,
    
    a State, by refusing federal funds, may reject the terms of the
    
    “contract” and potentially avoid statutory liability to private
    
    individuals.           But whether it can avoid liability based upon a
    
    contractual/waiver theory is a different question from whether it
    
    retained Eleventh Amendment sovereign immunity post-abrogation.119
    
    Thus, the relevant Eleventh Amendment inquiry remains whether
    
    Louisiana reasonably believed, based on objective evidence, that the
    
    Rehabilitation Act and the IDEA validly abrogated its sovereign
    
    immunity — not whether it could have chosen to reject the federal
    
    funds anyway.
    
                   Second, the majority contends that requiring the State to
    
    
           118
                     The unmistakable difference between abrogation and waiver is complicated by
    statutes, like § 2000d-7(a), that attempt to achieve both in the same provision. Nevertheless, the
    circuit courts and the panel opinion here agree that statutory language may, in fact, constitute both
    an attempted abrogation and conditional waiver provision. See, e.g., Stanley v. Litscher, 
    213 F.3d 340
    , 344 (7th Cir. 2000); Robinson v. Kansas, 
    295 F.3d 1183
    , 1189-90 (10th Cir. 2002). However,
    a statute’s capacity to serve dual purpo ses does not justify the majority’s confusion of the two
    concepts.
           119
                  The majority implies that Louisiana’s self-interested acceptance of funds should
    prevent the State from arguing that it might have chosen to forego the funds for the sake of
    maintaining sovereign immunity. Louisiana’s mistaken (though eminently reasonable) belief that
    abrogation had occurred distorted this calculation, however. That the State does have immunity to
    waive now throws into high relief the potential coercion inherent in the federal government’s funding
    condition. The “cost” of Louisiana’s resting on its constitutional right is over $800 million annually!
    
                                                    -60-
    make a “clear declaration” problematically “engraft[s] a subjective-
    
    intent element onto an otherwise objective Spending Clause waiver
    
    inquiry.”        See Majority Op. at 22.                  Unfortunately, the majority
    
    misunderstands the nature of the “clear declaration” requirement,
    
    a requirement consonant with the Supreme Court’s longstanding
    
    objective approach to waiver.                  The Supreme Court uniformly applies
    
    a “totality of the circumstances” test to waiver questions involving
    
    fundamental constitutional rights.                      Fare v. Michael C., 
    442 U.S. 707
    , 725, 
    99 S. Ct. 2560
    , 2572 (1979). “Only if the totality of the
    
    circumstances . . . reveal both an uncoerced choice and the
    
    requisite level of comprehension may a court properly conclude that
    
    the . . . rights have been waived.”                     See Burbine, 475 U.S. at 421,
    
    106 S. Ct. at 1135.             Hence, the Supreme Court considers a variety
    
    of objective factors, not subjective intent, to determine whether
    
    a constitutional right has validly been waived.                           Fare, 442 U.S. at
    
    725, 99 S. Ct. at 2572; see also United States v. Sonderup, 
    639 F.2d 294
    , 298 (5th Cir. 1981) (relying on the objective indicia to
    
    determine whether a voluntary, knowing and intelligent waiver was
    
    made).       College Savings Bank’s “clear declaration” requirement
    
    reiterates the Supreme Court’s waiver test in the Eleventh Amendment
    
    context, and so would I.120
    
    
           120
                    The majority’s approach unquestionably achieves a bright-line rule that the Supreme
    Court’s traditional waiver inquiry cannot. However, this approach is impermissible in the context of
    waiver of fundamental constitutional rights.
    
           An express written statement of waiver of the right to remain silent or the right to
    
                                                  -61-
                  Given this court’s ruling in Coolbaugh that the State had
    
    no immunity to waive, followed by an unsuccessful en banc poll and
    
    the Supreme Court’s denial of certiorari in that case, it is
    
    inconceivable that Louisiana somehow, based on the “straightforward
    
    objective facts,” knowingly chose to waive a right that was non-
    
    existent when it acted. In a sense, the State of Louisiana is being
    
    forced, by today’s majority, to bear the burden of this court’s
    
    mistake of law in Coolbaugh.                    Consider this analogy:                 the police
    
    instruct a criminal defendant, “for his own good,” to sign a waiver
    
    of counsel form, while telling him that the waiver is “meaningless,
    
    because you have no counsel rights to waive.”                           Who would argue that
    
    the waiver is knowing, especially if the police showed him a court
    
    decision confirming this view?                      That the dupe is an individual
    
    defendant rather than the State does not, per College Savings, make
    
    this a different case, nor does the fact that the waiver falls under
    
    the Spending Clause rather than some other type of enactment.                                     The
    
    majority’s opinion violates College Savings Bank.
    
                  In this rare instance, Louisiana could not have knowingly
    
    waived its sovereign immunity in the relevant time period before the
    
    Garrett decision. The majority’s approach strangely counsels States
    
    
    
    
           counsel is usually strong proof of the validity of that waiver, but it is not inevitably
           either necessary or sufficient to establish waiver. The question is not one of form, but
           rather whether the defendant in fact knowingly and voluntarily waived the rights
           delineated in the Miranda case.
    
    North Carolina v. Butler, 
    441 U.S. 369
    , 374, 
    99 S. Ct. 1755
    , 1758 (1979).
    
                                                   -62-
    to disregard governing caselaw when Supreme Court doctrine is
    
    evolving.     Such an argument makes no more sense in this unusual
    
    context than it would in any other.
    
                                     II.    ABROGATION
    
                Pace       alternatively     argues,      and    this       dissent    must
    
    determine, whether Congress abrogated Louisiana’s sovereign immunity
    
    with respect to claims brought under Title II,               § 504, and the IDEA.
    
    Pace would extend the Court’s recent decision in Tennessee v. Lane,
    
    
    541 U.S. 509
    , 
    124 S. Ct. 1978
     (2004), which held that Title II of
    
    the ADA validly abrogates State sovereign immunity insofar as it
    
    implicates     the      physical       accessibility        of    the     fundamental
    
    constitutional right of access to the courts.                    The majority here,
    
    having   found     a    waiver   of    the   State’s    immunity,        declares    it
    
    unnecessary to opine on abrogation.            The majority goes on, however,
    
    to observe that, in Lane, the Supreme Court “refused to consider
    
    [whether     Title     II   abrogates]       other   rights,       including      those
    
    considered to be fundamental under the Constitution.”                    See Majority
    
    Op. at 28, citing 124 S. Ct. at 1993.                The majority also comments
    
    that the Court “has never before recognized access to public
    
    education or freedom from disability discrimination in education as
    
    fundamental rights.”        Id., citing Plyler v. Doe, 
    457 U.S. 202
    , 221,
    
    223, 
    102 S. Ct. 2382
    , 2396-98 (1982); City of Cleburne v. Cleburne
    
    Living Ctr., 
    473 U.S. 432
    , 446, 
    105 S. Ct. 3249
    , 3257 (1985).
    
                I agree with the majority’s dicta that suggests Lane is
    
    currently of limited application.                Moreover, because Lane was
    
                                            -63-
    written very narrowly, I conclude that this court’s decision in
    
    Reickenbacker remains valid in holding that ADA Title II, apart from
    
    the Lane scenario, does not validly abrogate States’ Eleventh
    
    Amendment immunity.    See Reickenbacker, 274 F.3d at 983.         The fate
    
    of § 504 abrogation was also sealed in Reickenbacker based on the
    
    court’s conclusion that Title II and § 504 impose “virtually
    
    identical” obligations.    Id.     For the reasons stated in Reicken-
    
    backer and in the panel opinion, I would hold that Congress could
    
    not constitutionally abrogate state sovereign immunity in § 504 or
    
    the similarly structured IDEA statute pursuant to § 5 of the
    
    Fourteenth Amendment.     The remedies imposed by those laws “far
    
    exceed [ ] [those] imposed by the Constitution, and [I] cannot
    
    conclude that they are congruent and proportional to the legislative
    
    findings of unconstitutional discrimination against the disabled by
    
    the states.”   Reickenbacker, 274 F.3d at 983.
    
                               III.    CONCLUSION
    
               For the foregoing reasons, I conclude that during a narrow
    
    period of time, based on uncertainty in the Supreme Court’s evolving
    
    Eleventh   Amendment   doctrine,   the    State   of   Louisiana   did   not
    
    knowingly waive its Eleventh Amendment sovereign immunity when it
    
    accepted federal funds under § 2000d-7(a).
    
               I respectfully dissent.
    
    
    
    
                                       -64-