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No. 05-671

In the Supreme Court of the United States

TEXAS DEPARTMENT OF PUBLIC SAFETY, PETITIONER

v.

JULIE DUNLOP ESPINOZA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
WAN J. KIM
Assistant Attorney General
JESSICA DUNSAY SILVER
SARAH E. HARRINGTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner is subject to suit for damages for disability discrimination under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, because it waived its Eleventh Amendment immunity when it applied for and accepted federal financial assistance.

In the Supreme Court of the United States

No. 05-671

TEXAS DEPARTMENT OF PUBLIC SAFETY, PETITIONER

v.

JULIE DUNLOP ESPINOZA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is unreported. The opinion of the district court (Pet. App. 4-16) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 25, 2005. The petition for a writ of certiorari was filed on November 22, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

STATEMENT

1. Section 504(a) of the Rehabilitation Act of 1973 prohibits any "program or activity receiving Federal financial assistance" from "subject[ing any person] to discrimination" on the basis of disability. 29 U.S.C. 794(a). Individuals have a private right of action for damages against entities that receive federal funds and violate that prohibition. See 29 U.S.C. 794(a); Barnes v. Gorman, 536 U.S. 181 (2002); Olmstead v. L.C., 527 U.S. 581, 590 n.4 (1999).

In 1985, this Court held that the text of Section 504 was not sufficiently clear to evidence Congress's intent to condition federal funding on a waiver of Eleventh Amendment immunity for private damages actions against state entities. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 245-246 (1985). In response to Atascadero, Congress enacted 42 U.S.C. 2000d-7 as part of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1845. Section 2000d-7(a) provides, in relevant part:

(1) A State shall not be immune under the Elev enth Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794] * * *.

(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (in cluding remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.

42 U.S.C. 2000d-7(a).

2. Respondent Julie Espinoza suffers from a disabil ity under by the Rehabilitation Act. In September 2000, she sued the Texas Department of Public Safety, alleg ing that the agency discriminated against her on the basis of her disability in violation of Section 504 and other state and federal laws when it required her to sub mit to a comprehensive examination in order to qualify for a driver's license. Pet. App. 5. Espinoza initially sought damages, attorneys fees, declaratory relief, and a temporary and permanent injunction. Ibid. The state agency moved to dismiss Espinoza's Section 504 claims as barred by its Eleventh Amendment immunity. Id. at 6. Subsequently, Espinoza moved to amend her com plaint to remove her claims for damages against the agency and to add its director in his official capacity as a defendant, for purposes of seeking prospective injunc tive relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908). Pet. App. 10-11.

The district court simultaneously ruled on both mo tions, granting the motion to amend the complaint and denying the State's motion to dismiss. Pet. App. 15. With respect to the latter motion, the court held that Congress validly conditioned receipt of federal funds on the agency's waiver of sovereign immunity to Section 504 claims and that, by accepting federal funds under such conditions, the agency had waived its sovereign immunity. Id. at 8-10. The State filed an interlocutory appeal to challenge the denial of its Eleventh Amend ment immunity defense. Id. at 3.

3. The United States intervened on appeal pursuant to 28 U.S.C. 2403(a) to defend the constitutionality of the statutory provisions conditioning the receipt of fed eral financial assistance on a knowing and voluntary waiver of sovereign immunity. Before hearing oral ar gument, the Fifth Circuit held the case in abeyance pending decisions from the en banc court in Pace v. Bogalusa City School Board, No. 01-31026, and in Miller v. Texas Tech Health Sciences Center, Nos. 02- 10190, 02-30318, and 02-30369.

4. On March 8, 2005, the en banc court of appeals issued its decision in Pace, holding that the state agency defendant knowingly and voluntarily waived its Elev enth Amendment immunity to claims under Section 504 when it accepted federal funds, and that Section 504 is a valid exercise of Congress's authority under the Spending Clause. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005), cert. denied, 126 S. Ct. 416 (2005); Pet. App. 17-76. Relying on this Court's decision in South Dakota v. Dole, 483 U.S. 203 (1987), the court held that "congressional spending programs that are enacted in pursuit of the general welfare and unambigu ously condition a state's acceptance of federal funds on reasonably related requirements are constitutional un less they are either (1) independently prohibited or (2) coercive." Pace, 403 F.3d at 279; Pet. App. 27. The court noted that the State had not disputed that the Spending Clause statute at issue in the case was "en acted in pursuit of the general welfare" and was "suffi ciently related to the federal interest in the program funded." 403 F.3d at 280; Pet. App. 30. The court pro ceeded to consider the other requirements for a valid exercise of congressional power under the Spending Clause.

The court held that the conditions on federal spend ing in Section 2000d-7 are "unambiguous." 403 F.3d at 282; Pet. App. 34. The court explained that "during the relevant time period, [Section] 2000d-7 * * * put each state on notice that, by accepting federal money, it was waiving its Eleventh Amendment immunity." 403 F.3d at 284; Pet. App. 38. The court rejected the state agen cies' attempt to "engraft[] a subjective-intent element onto the otherwise objective Spending Clause waiver inquiry," holding that the fact that a State "might not 'know' subjectively whether it had any immunity [left] to waive by agreeing to th[e] [statutory] conditions is wholly irrelevant." 403 F.3d at 284; Pet. App. 38. The court concluded that, in light of the unambiguous statu tory condition, the State's "waiver of Eleventh Amend ment immunity to actions under § 504 * * * was know ing." 403 F.3d at 285; Pet. App. 39.

The court also held that Section 2000d-7 does not violate any independent constitutional prohibition. The court concluded that the statute does not violate the "unconstitutional-conditions" doctrine, because States as sovereigns, unlike private parties, have the resources to protect their interests and because in any event the need to protect a State from "coercion or compulsion * * * is subsumed in the non-coercion prong of the Dole test." 403 F.3d at 286-287; Pet. App. 41-43. The court also con cluded that the conditions in Section 2000d-7 are not unduly coercive. The court noted that, to avoid suit un der Section 504, a "state would not have to refuse all federal assistance." 403 F.3d at 287; Pet. App. 43. In stead, "[a] state can prevent suits against a particular agency under § 504 by declining federal funds for that agency." 430 F.3d at 287; Pet. App. 43. The court ac cordingly "refuse[d] to invalidate Louisiana's waiver on coercion grounds." 430 F.3d at 287; Pet. App. 43.

Judge Jones, joined by five other judges, concurred in part and dissented in part. 403 F.3d at 297-303; Pet. App. 65-76. She agreed with the majority that the Spending Clause statutes at issue in this case are "not unconstitutionally coercive." 403 F.3d at 299 n.2; Pet. App. 68 n.113. But in her view, a State may not be found to have waived its right to sovereign immunity unless it "possess[ed] actual knowledge of the existence of the right or privilege, full understanding of its meaning, and clear comprehension of the consequences of the waiver." 403 F.3d at 300 (internal quotation marks and citation omitted); Pet. App. 70 (same). Adopting the reasoning of the panel decision that she had authored, Judge Jones stated her view that a State could reasonably have be lieved "between 1996 and 1998 that it had no sovereign immunity to waive" because the Americans with Disabil ities Act (ADA), had purported to abrogate its immunity to claims under that statute. 403 F.3d at 301; Pet. App. 71. In her view, although "[t]he State voluntarily ac cepted federal funds" during that period, the purported abrogation of its immunity to ADA claims meant that "its acceptance [of federal funds] was not a 'knowing' waiver of immunity" to claims under Section 504. 403 F.3d at 301; Pet. App. 71.

This Court recently denied a petition for certiorari filed by Louisiana in Pace. See Louisiana State Bd. of Elementary & Secondary Educ. v. Pace, 126 S. Ct. 416 (2005).

5. The en banc court subsequently issued its deci sion in Miller (which consisted of three consolidated cases-two from Louisiana and one from Texas) on Au gust 15, 2005, addressing three remaining challenges to the validity of conditioning the receipt of federal funds on a state agency's waiver of immunity to claims under Section 504. Miller v. Texas Tech Univ. Health Scis. Ctr., 421 F.3d 342 (5th Cir. 2005), cert. denied, No. 05- 617 (Feb. 21, 2006).

First, the court of appeals rejected the States' con tention that they did not waive their immunity to suits under Section 504 because the agencies that accepted the clearly conditioned federal funds were not autho rized to waive the States' immunity, though they were authorized to apply for and accept the conditioned funds. 421 F.3d at 347-348; Pet. App. 84-86. The court held that, by authorizing the state agencies to "accept the benefits of substantial sums of federal Spending Clause money burdened with the clearly stated condition under § 2000d-7 that acceptance waives immunity from suit in federal court" for suits under Section 504, the States effectively authorized the agencies to waive their Elev enth Amendment immunity. 421 F.3d at 348; Pet. App. 85.

Second, the court of appeals rejected Texas's chal lenge to Sections 504 and 2000d-7 on "relatedness" grounds. 421 F.3d at 348-349; Pet. App. 86-89. Texas argued that, because the federal funds its agency re ceived were not funds provided directly under the Reha bilitation Act itself, the conditions in Sections 504 and 2000d-7 are not "reasonably related to the purpose of the expenditure to which they are attached" as required by the Dole test. See 421 F.3d at 348 & n.15; Pet. App. 86 & n.15. The court rejected that contention, holding that Congress's expressed interest in "eliminating disability-based discrimination" in federally-funded pro grams "flows with every dollar spent by a department or agency receiving federal funds." 421 F.3d at 349; Pet. App. 88-89 (quoting Koslow v. Pennsylvania, 302 F.3d 161, 175-176 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003)).

Finally, the court of appeals rejected Louisiana's argument that it did not "knowingly" waive its immunity by accepting federal funds because it might have thought at the time it took the funds that it did not have any immunity to waive. 421 F.3d at 350-352; Pet. App. 89-93. Although the State acknowledged that the same argument had been rejected by the en banc court of ap peals in Pace, it argued that this Court's recent decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), required the court to reconsider Pace because this Court in Jackson "repudiated th[e] 'clear statement rule' and replaced it with a 'notice' rule." 421 F.3d at 350-351; Pet. App. 90-91. The court of appeals refused to "read such a sweeping change into th[is] [C]ourt's opinion in Jackson," holding instead that the "clear and unambiguous" waiver condition in Sec tions 504 and 2000d-7 was sufficient to render a State's acceptance of federal funds a knowing waiver of immu nity. 421 F.3d at 351; Pet. App. 92.

Judge Jones, joined by five other judges, concurred in part and dissented in part. Although all the judges agreed with the three holdings of the majority opinion, they filed a separate opinion to reiterate their disagree ment with the majority opinion in Pace. 421 F.3d at 352; Pet. App. 94.

Although the Texas state defendants in Miller did not file a petition for certiorari, the Louisiana state de fendants in Miller did. Louisiana Dep't of Educ. v. Johnson, No. 05-617. This Court denied the petition on February 21, 2006.

6. On August 25, 2005, a panel of the Fifth Circuit issued an unpublished opinion in the instant case affirm ing the district court's holding that the state agency de fendant is not immune to plaintiff's claims under Section 504. Pet. App. 1-3. The court of appeals stated that all of the challenges to Sections 504 and 2000d-7 had been disposed of by the court's en banc decisions in Pace and Miller. Id. at 3.

ARGUMENT

This Court has repeatedly denied petitions for certio rari raising arguments challenging the constitutionality of Section 504 of the Rehabilitation Act and of 42 U.S.C. 2000d-7 that are indistinguishable from those advanced by petitioner here. See Louisiana Dep't of Educ. v. Johnson, cert. denied, No. 05-617 (Feb. 21, 2006); Loui siana State Bd. of Elementary & Secondary Educ. v. Pace, 126 S. Ct. 416 (2005) (No. 04-1655); WMATA v. Barbour, 125 S. Ct. 1591 (2005) (No. 04-748); Kansas v. Robinson, 539 U.S. 926 (2003) (No. 02-1314); Pennsylva nia Dep't of Corr. v. Koslow, 537 U.S. 1232 (2003) (No. 02-801); Hawaii v. Vinson, 537 U.S. 1104 (2003) (No. 01-1878); Chandler v. Lovell, 537 U.S. 1105 (2003) (No. 02-545); Ohio EPA v. Nihiser, 536 U.S. 922 (2002) (No. 01-1357); Arkansas Dep't of Educ. v. Jim C., 533 U.S. 949 (2001) (No. 00-1488). Just as in those cases, further review is not warranted, and the petition should be de nied.

Petitioner does not challenge Congress's authority to condition the receipt of federal funds on a state agency's waiver of its Eleventh Amendment immunity. Nor does petitioner argue that conditioning the receipt of federal funds on a state agency's waiver of its immunity to pri vate claims under Section 504 is somehow unconstitu tionally coercive. Rather, petitioner contends that its waiver was invalid because (a) Section 2000d-7(a) does not make it sufficiently clear that Congress intended to make waiver a condition of accepting federal funds, and (b) the condition Congress has placed on the receipt of federal funds is not "related" to the funds, as required under South Dakota v. Dole, 483 U.S. 203 (1987), to the extent that the condition attaches to funds not distrib uted under the Rehabilitation Act itself. Those conten tions are incorrect and, just as in the cases cited above in which this Court denied certiorari, do not warrant further review here.

1. Knowledge. Petitioner argues (Pet. 14) that it could not have "knowingly" waived its immunity to Sec tion 504 claims, because "[a]lthough Section 2000d-7(a) demonstrates Congress's unmistakable desire that States be subject to suit in federal court, it is less than clear that Congress intended to accomplish that objec tive indirectly by conditioning waiver on the receipt of federal funds instead of directly by abrogation." Be cause Congress's intent is clear, that argument was cor rectly rejected by the court of appeals.

a. Petitioner concedes that Section 2000d-7 makes clear Congress's intent that state agencies accepting federal funds be subject to private suits to enforce Sec tion 504. A State that has chosen to take federal funds under that provision therefore has knowingly waived its immunity. There is no separate requirement that Con gress use any particular form of words when it is clear that Congress intended that, if a State takes federal funds, it will be foreclosed from asserting immunity. Every court of appeals to have considered the question has concluded that Section 2000d-7 unambiguously con ditions receipt of federal funds on a waiver of Eleventh Amendment immunity. See Barbour v. WMATA, 374 F.3d 1161 (D.C. Cir. 2004), cert. denied, 125 S. Ct. 1591 (2005); Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003); Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98, 113-115 (2d Cir. 2001); Koslow v. Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003); Litman v. George Mason Univ., 186 F.3d 544, 553-554 (4th Cir. 1999), cert. denied, 528 U.S. 1181 (2000); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005), cert. denied, 126 S. Ct. 416 (2005); Nihiser v. Ohio EPA, 269 F.3d 626, 628 (6th Cir. 2001), cert. denied, 536 U.S. 922 (2002); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001); Douglas v. California Dep't of Youth Auth., 271 F.3d 812, 820, opinion amended, 271 F.3d 910 (9th Cir. 2001), cert. denied, 536 U.S. 924 (2002); Robinson v. Kansas, 295 F.3d 1183, 1189-1190 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003); Sandoval v. Hagan, 197 F.3d 484, 493 (11th Cir. 1999), rev'd on other grounds, 532 U.S. 275 (2001).

Petitioner contends (Pet. 18) that "[t]he court of ap peals's decision in Pace widens an existing split between the Second Circuit and every other circuit to consider whether Section 2000d-7(a) can form the basis of a knowing waiver." Petitioner's contention is mistaken. The Second Circuit in the case on which petitioner re lies, Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98 (2001), stated unequivocally that "we agree with [the plaintiff] that [Section 2000d-7(a)] constitutes a clear expression of Congress's intent to condition acceptance of federal funds on a state's waiver of its Eleventh Amendment immunity." Id. at 113. Accordingly, all of the regional courts of appeals-including the Second Circuit-have agreed that Section 2000d-7(a) puts States on clear notice that agencies that accept federal funds will be subject to suit under Section 504.1

b. Unlike statutes such as the ADA, which autho rizes suits against States by abrogating state sovereign immunity defenses, Section 504 authorizes suits only against state agencies that receive federal funds,2 only if the State voluntarily chooses to accept those funds, and only for the duration of the funding period.3 Those differences are critically important. A state agency could read the ADA and conclude that Congress in tended to abrogate its sovereign immunity to ADA claims regardless of any decision or action by the State. But Sections 504 and 2000d-7 are clearly conditional. They have effect if, and only if, the agency voluntarily chooses to accept federal funds. If the state agency does not take the funds, no plausible reading of those provi sions would subject the agency to suit under Section 504.

Thus, when it was deciding whether to accept federal funds for the relevant funding year, petitioner's sover eign immunity to Section 504 claims for the coming year was intact, and the agency was faced with a clear choice. It could decline federal funds and maintain its sovereign immunity to suits under the Rehabilitation Act, or it could accept funds and be subject to private suits under Section 504. In choosing to accept federal funds that were clearly available only to those state agencies will ing to submit to enforcement proceedings in federal court, petitioner knowingly waived its sovereign immu nity.

2. Relatedness. Petitioner contends (Pet. 24-30) that Section 504 and Section 2000d-7 are improper exer cises of Congress's Spending Clause authority, because the conditions those statutes place on recipients of fed eral funds are unrelated to the federal interest in the funds insofar as they apply to funds that are not distrib uted directly under the Rehabilitation Act itself. That contention is incorrect.

a. This Court in South Dakota v. Dole, 483 U.S. 203 (1987), identified four requirements for valid enactments in exercise of the Spending power. First, the Spending Clause by its terms requires that Congress legislate in pursuit of "the general welfare." Id. at 207. Second, if Congress places conditions on the States' receipt of fed eral funds, it "must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Ibid. (quot ing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, this Court's cases "have sug gested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unre lated 'to the federal interest in particular national pro jects or programs.'" Id. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)). Fourth, the obligations imposed by Congress may not violate any independent constitutional provisions. Id. at 208.

b. Petitioner claims (Pet. 24-30) that Section 504 and Section 2000d-7 fail to meet the third, "relatedness" re quirement. Petitioner concedes that the courts of ap peals have uniformly concluded that Section 504 and Section 2000d-7 satisfy Dole's relatedness requirement. See Pet. 29 ("There is no circuit split on the question of Section 2000d-7(a) and Dole's relatedness require ment."). Those statutes further the federal interest in ensuring that no federal funds are used to support, di rectly or indirectly, programs that discriminate or oth erwise deny benefits and services on the basis of disabil ity to qualified persons. Cf. Sabri v. United States, 541 U.S. 600, 606 (2004) ("Money is fungible," and it "can be drained off here because a federal grant is pouring in there.").

Section 504's nondiscrimination requirement is pat terned on Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., which pro hibit race and sex discrimination by "programs" that receive federal funds. See NCAA v. Smith, 525 U.S. 459, 466 n.3 (1999); School Bd. v. Arline, 480 U.S. 273, 278 n.2 (1987). Both Title VI and Title IX have been upheld as valid Spending Clause legislation. In Lau v. Nichols, 414 U.S. 563 (1974), this Court held that Title VI was a valid exercise of the spending power. "The Federal Government has power to fix the terms on which its money allotments to the States shall be dis bursed. Whatever may be the limits of that power, they have not been reached here." Id. at 569 (citations omit ted).4 The Court reached a similar conclusion in Grove City College v. Bell, 465 U.S. 555 (1984). In Grove City, the Court addressed whether Title IX, which prohibits education programs or activities receiving federal finan cial assistance from discriminating on the basis of sex, infringed the college's First Amendment rights. The Court rejected that claim, holding that "Congress is free to attach reasonable and unambiguous conditions to fed eral financial assistance that educational institutions are not obligated to accept." Id. at 575.

Lau and Grove City stand for the proposition that Congress has a legitimate interest in preventing the use of any of its funds to "encourage[], entrench[], subsi dize[], or result[] in," Lau, 414 U.S. at 569 (internal quo tation marks and citation omitted), discrimination against persons otherwise qualified on the basis of crite ria Congress has determined are irrelevant to the re ceipt of public services, such as race, gender and disabil ity. Because that interest extends to all federal funds, Congress validly drafted Title VI, Title IX, and Section 504 to apply across the board to all federal financial as sistance.5

The requirement in Section 2000d-7 that a state funding recipient waive its Eleventh Amendment immu nity as a condition of accepting federal financial assis tance is also related to the same important federal inter ests. The United States relies on private litigants to assist in enforcing federal programs and, in particular, in enforcing federal nondiscrimination mandates. The requirement that state funding recipients waive their sovereign immunity to suits under Section 504 as a con dition of accepting federal financial assistance both (1) provides a viable enforcement mechanism for individuals who are aggrieved by state funding recipients' failure to live up to the promises they make when they accept fed eral funds and (2) makes those individuals whole for the injuries they suffer as a result of the funding recipients' failure to follow the law.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
WAN J. KIM
Assistant Attorney General
JESSICA DUNSAY SILVER
SARAH E. HARRINGTON
Attorneys

FEBRUARY 2006

1 The Second Circuit in Garcia did disagree with the other circuits on a different point, resulting in the conclusion that the States retained immunity from suit under Section 504 for a period in the 1990s. The court in Garcia reasoned that, because a State may have believed that its immunity from suits for violation of Title II of the ADA was abrogated by Section 2000d-7(a), and because the "proscriptions of Title II [of the ADA] and § 504 are virtually identical, a state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits [under Section 504], since by all reasonable appearances state sovereign immunity had already been lost [to claims under Title II]." 280 F.3d at 114 (citation omitted). The petition for certiorari does not advance the Garcia rationale or argue that certiorari should be granted to consider whether that rationale is correct. In any event, as the United States explained in its brief in opposition to certiorari in Louisiana State Bd. of Elementary & Secondary Educ. v. Pace, 126 S. Ct. 416 (2005) (No. 04-1655), Garcia was wrong when it was decided, see U.S. Br. in Opp. at 17-21, Pace, supra (No. 04-1655); Garcia has in any event been overtaken by subsequent decisions of this Court in Lapides v. Board of Regents of Univ. Sys., 535 U.S. 613 (2002), and Tennessee v. Lane, 541 U.S. 509 (2004), see U.S. Br. in Opp. at 21, Pace, supra (No. 04-1655); and even aside from Lapides and Lane, the Garcia rule was a transitional rule and the Second Circuit would now recognize that a State's waiver of immunity from Section 504 suits would be valid for most or all cases currently being litigated and all cases that will arise in the future, see id. at 22-23.

2 Section 504 applies only to States that accept federal funds. See 29 U.S.C. 794a(a)(2) (authorizing suits as part of remedies to "any person aggrieved by any act or failure to act by any recipient of Federal assistance * * * under [Section 504]") (emphasis added). Accordingly, under any reasonable interpretation of the statutes as a whole, Congress limited its attempted abrogation to those state agencies that receive federal financial assistance.

3 A state agency is not subject to liability and suit under Section 504 in perpetuity if, at any time, it accepted federal funds. Instead, the state program must be "receiving Federal financial assistance" at the time of the alleged discrimination leading to the lawsuit. See 29 U.S.C. 794(a).

4 In Alexander v. Sandoval, 532 U.S. 275, 285 (2001), the Court noted that it has "rejected Lau's interpretation of § 601 [of the Civil Rights Act of 1964, 42 U.S.C. 2000d] as reaching beyond intentional discrimination." The Court did not, however, cast doubt on the Spending Clause holding of Lau.

5 This Court has repeatedly upheld conditions not tied to particular spending programs as valid exercise of Congress's Spending Clause powers. See Board of Educ. v. Mergens, 496 U.S. 226 (1990) (upholding the Equal Access Act, 20 U.S.C. 4071 et seq., which conditions federal financial assistance for those public secondary schools that maintain a "limited open forum" on the schools' not denying "equal access" to students based on the content of their speech); Oklahoma v. United States Civil Serv. Comm'n, 330 U.S. 127, 144 (1947) (upholding an across-the-board requirement in the Hatch Act that no state employee whose principal employment was in connection with any activity that was financed in whole or in part by the United States could take "any active part in political management") (citation omitted).