independent of that necessary to state a
violation' of the underlying federal right." Id. at 405. "Similarly, the
conclusion that the action taken or directed by the municipality or its
authorized decisionmaker itself violates federal law will also determine
that the municipal action was the moving force behind the injury of which
the plaintiff complains." Id.
O.F. "s denial of FAPE claim is similarly an allegation that CUSD's
inaction itself violated federal law, as it is charged with providing her
FAPE under IDEA. There is no reason for the Court to import the
"deliberate indifference" standard of culpability or question whether
CUSD was the cause of O.F.'s alleged denial of FAPE. Third Circuit
precedent appears to implicitly buttress this conclusion. In Matula the
Third Circuit specifically held that a plaintiff may sue under § 1983
for a denial of FAPE under IDEA, and did so without reference to any
"deliberate indifference" standard. Matula, 67 F.3d at 493-95. In
Ridgewood, that court also denied summary judgment on such a claim
because the trial court had not considered whether a plaintiffs IEP was
appropriate during a particular period of time. Ridgewood, 172 F.3d at
252-53. These cases appear to presume that a denial of FAPE by a
municipality is itself sufficient to give rise to a § 1983 cause of
action without meeting any heightened culpability or causation standard.
As a result, CUSD's Motion for Summary Judgment is denied.
B. PDE's Motion for Summary Judgment
PDE, like CUSD, also argues that the facts of record do not demonstrate
that O.F. was denied FAPE under IDEA. However, PDE does not address
— at all — the length of time that it took to evaluate O.F.
and to author an IEP for her. For substantially the same reasons the
Court denied CUSD's Motion for Summary Judgment on her IDEA claim, it
denies PDE's Motion as well.
PDE does offer one additional argument that the Court must address. PDE
argues that Plaintiff cannot demonstrate that it was PDE's action or
inaction (as opposed to CUSD's) that violated IDEA or resulted in a
denial of FAPE to O.F. PDE argues that a state education agency is
required to provide direct services to a disabled student or to compel a
school district to implement an IEP only when plaintiff establishes: (1)
a significant breach of responsibility by the local school district; (2)
adequate notice by the child's representative to the responsible state
officials of the local school district's noncompliance; and (3) a
reasonable opportunity for the state educational authority to compel
local compliance. See Doe v. Maher, 793 F.2d 1470, 1492 (9th Cir. 1986),
aff'd as modified on other grounds sub. nom. Honig v. Doe, 484 U.S. 305
(1988). PDE states that it was never informed about O.F. or any problems
with her education prior to February 11, 1998.
Even assuming these prerequisites are the law of this Circuit, they are
satisfied through the Duane B. proceedings. First, the facts acknowledged
pursuant to that litigation reflect a significant breach of responsibility
by CUSD regarding its students with emotional and behavioral handicaps,
such as O.F. Indeed, in 1999 the parties stipulated that "[a] substantial
number of class members have not received a free appropriate education
(FAPE) since the Court's Order of May 30, 1997." Duane B. v. Chester
Upland School District, Civ. A. No. 90-0326, 2000 WL 326188 at *1 (E.D.
Pa. Mar. 16, 2000).
Second, as a co-defendant in that matter, PDE
obviously had adequate notice of this noncompliance. Third, and most
importantly, PDE had more than a reasonable opportunity to compel local
compliance — it had (and has) a particularized obligation to do
so. The Remedial Orders in the Duane B. case require PDE to "comply with
all state and federal laws regarding special education," to audit CUSD's
compliance with special education laws, and ensure that deficiencies are
promptly remedied. See Duane B. v. Chester Upland School District, Civ.
A. No. 90-0326, 1994 WL 724991 at *9 (E.D. Pa. Dec. 29, 1994). Under
these circumstances, PDE may be held liable for the failure to promptly
evaluate O.F. and provide her with FAPE.
2. Section 504 of the Rehabilitation Act of 1973 and the ADA
PDE also argues that Plaintiff cannot make out a claim under either
§ 504 or the ADA. However, like CUSD, PDE focuses solely on O.F.'s
allegations regarding the February 11, 1998 incident, and urges the
application of legal standards that do not reflect the law of this
Circuit. As a result, for the same reasons as described supra, these
arguments are similarly unpersuasive.
PDE also argues that these claims, to the extent they are claims for
are barred by the sovereign immunity afforded the states under the
Eleventh Amendment. The Court previously implicitly ruled on these
arguments in denying PDE's motion to dismiss. See O.F. v. Chester Upland
School District, Civ. A. No. 00-779, 2000 WL 572708 (E.D. Pa. May 10,
2000). However, since the Supreme Court decided a highly relevant case in
the interim, Board of Trustees of the Univ. of Alabama v. Garrett,
531 U.S. 356, 121 S.Ct. 955 (2001), the Court will revisit these issues.
Generally, pursuant to the Eleventh Amendment, states are immune from
suit by private parties in the federal courts. Lavia v. Pennsylvania,
224 F.3d 190, 195 (3d Cir. 2000). The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. In this case, Plaintiff is suing an agency of her
own state of citizenship. However, the Eleventh Amendment is interpreted
to prohibit such suits as well. See Garrett, 121 S.Ct. at 962.
A state is not entitled to Eleventh Amendment immunity if (1) it has
waived its immunity, or (2) Congress has validly abrogated its immunity.
See Lavia, 224 F.3d at 195. In this case, PDE claims that Congress has
not validly abrogated its immunity from suits for money damages under
§ 504 and Title II of the ADA.*fn7 The Court first considers PDE's
immunity argument as to Title II.
Congress may abrogate a state's sovereign immunity only if it (1)
unequivocally expresses its intent to do so and (2) acts pursuant to a
valid exercise of power under § 5 of the Fourteenth Amendment.
Garrett, 121 S.Ct. at 962. See also Kimel
v. Florida Bd. of Regents,
528 U.S. 62, 73 (2000). The ADA clearly states Congress' intent to hold
states liable for violations of the ADA.*fn8 See Lavia, 224 F.3d at
196. Therefore, the only issue in dispute is whether Congress properly
exercised its power under § 5 of the Fourteenth Amendment in enacting
Section 5 is the enforcement provision of the Fourteenth Amendment that
allows Congress to enact "appropriate legislation" to remedy or deter
violations of the Amendment's due process and equal protection
guarantees. Garrett, 121 S.Ct. at 963. Congress's § 5 authority is
appropriately exercised only in response to state transgressions which
demonstrate a history and pattern of unconstitutional discrimination by
the states. See id. at 964. Such legislation may prohibit conduct which
does not itself constitute a constitutional violation. Kimel, 528 U.S. at
81. However, § 5 legislation reaching beyond the scope of the
Fourteenth Amendment's actual guarantees "must exhibit congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.'" Garrett, 121 S.Ct. at 963 (quoting City of
Boerne v. Flores, 521 U.S. 507, 520 (1997)).
In Garrett, the Supreme Court decided the issue of whether Congress
properly exercised its power under § 5 of the Fourteenth Amendment
with regard to suits under Title I of the ADA.*fn9 The Supreme Court
began its analysis by seeking to identify the parameters of the
constitutional right at issue. Garrett, 121 S.Ct. at 963. Relying on its
earlier holding in City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985), the Supreme Court reaffirmed that the "States are not
required by the Fourteenth Amendment to make special accommodations for
the disabled, so long as their actions toward such individuals are
rational." Garrett, 121 S.Ct. at 964. Therefore, the Supreme Court
found, in effect, that the constitutional right at issue protects the
disabled only from irrational discrimination (discrimination for which
there is no rational relationship between the disparity of treatment and
some legitimate government purpose) on the part of the states.
The Supreme Court then sought to determine whether Congress "identified
a history and pattern of unconstitutional employment discrimination by
the States against the disabled" such that the exercise of § 5
authority was warranted. Garrett, 121 S.Ct. at 964. It concluded that
"[t]he legislative record of the ADA . . . simply fails to show that
Congress did in fact identify a pattern of irrational state
discrimination in employment against the disabled." Id. at 965. The Court
then went further, holding that "even if it were possible to squeeze out
of [the legislative record] a pattern of unconstitutional discrimination
by the States," Title I's remedies are not sufficiently congruent and
proportional to any finding of unconstitutional discrimination. Id. at
Because Congress made no finding of a pattern of discrimination by the
states which violates the Fourteenth Amendment, and the remedies imposed
by Congress in Title I are not congruent and proportional. to the
targeted violation, the Supreme Court concluded that Congress did not
properly exercise its power under § 5 of the Fourteenth Amendment. See
id. at 967-68. As a result, individual lawsuits for money damages against
a state for failure to comply with Title I of the ADA are barred by the
Eleventh Amendment. Id.
Both the Supreme Court in Garrett and the Third Circuit in Lavia
declined to address the question of whether Congress validly abrogated
the states' immunity in enacting Title II of the ADA, which is at issue
here. However, most courts in this Circuit that have considered this
issue after Garrett have determined that Congress did not validly
abrogate the states' immunity when it enacted Title II, because Title II
— like Title I — does not reflect a valid exercise of
Congress' power under § 5 of the Fourteenth Amendment. See, e.g.,
Lieberman v. Delaware, Civ. A. No. 96-523, 2001 WL 1000936 (D. Del. Aug.
30., 2001); Jones v. Pennsylvania, 164 F. Supp.2d 490 (E.D. Pa. 2001);
Frederick L. v. Department of Pub. Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001);
Doe v. Division of Youth & Family Servs., 148 F. Supp.2d 462
More specifically, these courts held that, in light of Garrett, it is
evident that Congress did not sufficiently identify a pattern of
unconstitutional discrimination by the states. See Jones, 164 F. Supp.2d
at 493-4; Frederick L., 157 F. Supp.2d at 528-29; Doe, 148 F. Supp.2d at
487-88. Furthermore, since the affirmative duties of accommodation
imposed on the states by Congress through Title II go much further than
simply remedying unconstitutional discrimination against the disabled,
these remedies are not congruent and proportional to the targeted
violation. See Lieberman, 2001 WL 1000936 at *3; Frederick L.,
157 F. Supp.2d at 529-30; Doe, 148 F. Supp.2d at 488-89. This Court agrees with
these conclusions. Because Title II does not reflect a valid exercise of
Congress' power under § 5 of the Fourteenth Amendment, PDE's Motion
for Summary Judgment is granted with regard to Plaintiffs claim for
monetary damages under Title II of the ADA.
PDE also argues that the rationale of Garrett is also applicable to
Plaintiffs claim for monetary damages under § 504. It argues that
Congress did not validly abrogate the states' immunity when it enacted
§ 504, because § 504 also does not reflect a valid exercise of
Congress' power under § 5 of the Fourteenth Amendment. However, as
stated supra, a state is not entitled to Eleventh Amendment immunity if
(1) it has waived its immunity, or (2) Congress has validly abrogated its
immunity. See Lavia, 224 F.3d at 195. The Court need not address the
validity of any alleged abrogation, since PDE has waived its immunity as
to these claims.
A state may voluntarily consent to waive the immunity provided to it
under the Eleventh Amendment. See College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Lavia, 224
F.3d at 195. One manner in which a state may do so is by voluntarily
participating in federal spending programs where Congress has conditioned
such participation on the state's consent to waive its sovereign
immunity. See College Sav. Bank, 527 U.S. at 686. In order for the waiver
to be valid, Congress must "manifest a clear intent to condition
participation in the
programs funded . . . on a State's consent to waive
its constitutional immunity." Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 247 (1984). Additionally, the state must voluntarily
participate in the program by accepting the federal funds. See College
Sav. Bank, 527 U.S. at 686.
In Atascadero, because the Supreme Court held that Congress had not
unambiguously expressed its intent to abrogate the states' Eleventh
Amendment immunity in the Rehabilitation Act, the states were therefore
not "subject to suit in federal court by litigants seeking retroactive
monetary relief under § 504." Atascadero, 473 U.S. at 235. However,
after Atascadero, Congress subsequently amended the Rehabilitation Act,
A State shall not be immune under the Eleventh
Amendment . . . from suit in Federal court for a violation
of section 504 of the Rehabilitation Act of 1973 . . . or
the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial
42 U.S.C. § 2000d-7(a)(1). The Supreme Court subsequently referred to
the amended provision as an unambiguous waiver of the States' Eleventh
Amendment immunity." Lane v. Pena, 518 U.S. 187, 200 (1996).
In this case, there is no question that PDE receives relevant federal
financial assistance. This Court therefore holds that it waived its
Eleventh Amendment immunity regarding O.F.'s claims for monetary damages
under § 504. This conclusion is consistent with the clear weight of
authority on this issue. See, e.g., A.W. v. Jersey City Public Schools,
Civ. A. No. 01-140, 2002 WL 1065685 at *5-*7 (D.N.J. Mar. 27, 2002);
Lieberman, 2001 WL 1000936 at *5-*6; Frederick L., 157 F. Supp.2d at
516-23; Doe, 148 F. Supp.2d at 491 n. 5. As a result, PDE's Motion for
Summary Judgment on Plaintiffs claim for monetary damages under § 504
CUSD's Motion for Summary Judgment is therefore denied in its
entirety. PDE's Motion for Summary Judgment is granted as to Plaintiff's
claims for monetary damages under the ADA. In all other respects, PDE's
Motion is also denied.
An order follows.
AND NOW, this 9th day of September, 2002, upon consideration of
Defendant Chester Upland School District's Motion for Summary Judgment
(Docket No. 37), Defendant Pennsylvania Department of Education's Motion
for Summary Judgment (Docket No. 38) and Plaintiffs response to both
motions (Docket No. 39), it is hereby ORDERED that:
1. Defendant Chester Upland School District's Motion is DENIED.
2. Defendant Pennsylvania Department of Education's Motion is GRANTED
as to Plaintiffs claims for monetary damages under the ADA. In all other
respects, Defendant PDE's Motion is DENIED.
A STATUS CONFERENCE is scheduled for Wednesday, September 25, 2002 at
4:00 p.m. in the chambers of the undersigned.