Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-2003

M.A. v. Newark Pub Sch
Precedential or Non-Precedential: Precedential

Docket No. 02-1799




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                             PRECEDENTIAL

                                  Filed September 16, 2003

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                       No. 02-1799


M.A., on behalf of E.S., M.A., A.T. on behalf of G.T., A.T.,
  G.L. on behalf A.O., G.L., H.M. on behalf M.M., H.M.,
  O.J. on behalf of O.D.J., O.J., A.E. on behalf of A.J.E.
and A.E., individually and on behalf of all others similarly
                         situated,
                                     Appellees,
                             v.
 STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF
 NEWARK; NEW JERSEY DEPARTMENT OF EDUCATION;
   VITO A. GAGLIARDI, SR., in his individual capacity;
     WILLIAM L. LIBRERA, Commissioner, New Jersey
     Department of Education, in his official capacity;
     BARBARA GANTWERK, Director, Office of Special
      Education Programs, New Jersey Department of
    Education, in her official and individual capacities;
MELINDA ZANGRILLO, Coordinator of Compliance, Office
of Special Education Programs, New Jersey Department of
    Education, in her official and individual capacities,
                                     Appellants,
   UNITED STATES OF AMERICA (Intervenor in D.C.).

     On Appeal from the United States District Court
             for the District of New Jersey
District Court Judge: The Honorable Katherine S. Hayden
                      (01-CV-3389)
                                 2



                 Argued on October 31, 2002
       Before: SLOVITER, FUENTES, Circuit Judges,
               and FULLAM,* District Judge

             (Opinion Filed: September 16, 2003)

                         Peter C. Harvey
                         Attorney General of New Jersey
                         Patrick DeAlmeida (argued)
                         Michael Lombardi
                         Todd Schwartz
                         Deputy Attorneys General
                         R.J. Hughes Justice Complex
                         P.O. Box 112
                         Trenton, NJ 08625
                           Attorneys for Appellants
                         Ruth Deale Lowenkron (argued)
                         Jennifer Weiser
                         Education Law Center
                         60 Park Place
                         Suite 300
                         Newark, NJ 07102
                         Lawrence Lustberg
                         Shavar D. Jeffries
                         Gibbons, Del Deo, Dolan, Griffinger
                          & Vecchione
                         One Riverfront Plaza
                         Newark, NJ 07102
                           Attorneys for Appellees




* The Honorable John P. Fullam, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
                                    3


                           Sarah E. Harrington
                           Kevin Russell (argued)
                           Civil Rights Division
                           United States Department of Justice
                           950 Pennsylvania Avenue
                           Washington, DC 20530
                              Attorneys for Intervenor


                    OPINION OF THE COURT

FUENTES, Circuit Judge:
   The present appeal is the latest chapter in the
longstanding feud between citizens, public interest groups,
municipal officials, and state agencies over the provision of
public education in the City of Newark. In an earlier
chapter, the New Jersey Department of Education
(“NJDOE”) determined that the Newark Board of Education
had failed to provide a thorough and efficient system of
education and invoked its statutory powers1 to establish the
State-Operated School District of the City of Newark
(“SOSD” or “Newark”) in July 1995. See generally Gonzalez
v. State-Operated School District of the City of Newark, 

, 102 (N.J. Super. Ct. App. Div. 2001).
  Plaintiffs commenced this action on behalf of six minors
attending public schools in Newark and on behalf of all
others similarly situated (collectively, “Plaintiffs”), against
the SOSD, NJDOE, and several state officials (collectively,
“Defendants”).2 They alleged violations of (a) the Individuals

1. N.J.S.A. §§ 18A:7A-34 to -52.
2. The state officials include Vito A. Gagliardi (“Gagliardi”), former
Commissioner of the NJDOE; Barbara Gantwerk (“Gantwerk”), Director
of the Office of Special Education Programs of the NJDOE; and Melinda
Zangrillo (“Zangrillo”), Coordinator of Compliance in the Office of Special
Education Programs. On August 19, 2002, the Clerk of Court granted
Plaintiffs’ motion to amend the caption to include the current
Commissioner of the NJDOE, William Librera and to retain Vito A.
Gagliardi as a defendant in his individual capacity only.
  When appropriate, we refer to the NJDOE and the state officials
collectively as the “State.”
                                  4


with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-
87; (b) 42 U.S.C. § 1983, based on the claimed violations of
the IDEA; and (c) the New Jersey Constitution and relevant
state laws. After the District Court denied their motions to
dismiss, Defendants appealed. The principal issue on
appeal is whether the state of New Jersey waived its
sovereign immunity from suit in federal court when it
accepted funds disbursed pursuant to the IDEA. Insofar as
the District Court held that the state had waived its
sovereign immunity, we will affirm.3

                       I.   BACKGROUND

        A.   The Statutory Framework of the IDEA
   The IDEA is a comprehensive scheme of federal
legislation designed to meet the special educational needs
of children with disabilities. See Dellmuth v. Muth, 

, 225 (1989). The legislation was enacted in part based
on Congress’s findings that, prior to 1975,4 “the special
educational needs of children with disabilities were not
being fully met,” and that “more than one-half of the
children with disabilities in the United States did not
receive appropriate educational services that would enable
such children to have full equality of opportunity.” 20
U.S.C. § 1400(c)(2)(A) and (2)(B).
  In light of its findings, Congress made federal funds
available to assist states in providing educational services
to children with disabilities. See 20 U.S.C. §§ 1411, 1412(a).
Under the IDEA, assistance is available on the condition
that states meet a number of substantive and procedural
criteria. See 20 U.S.C. § 1412(a)(1)-(a)(22); W.B. v. Matula,

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

3. We note that another panel of this Court has recently reached the
same conclusion. See A.W. v. The Jersey City Public Schools, No. 02-
2056, 

(3d Cir. Aug. 19, 2003).
4. The IDEA was originally enacted in 1970 as the Education of the
Handicapped Act (“EHA”), Pub. L. No. 91-230, 84 Stat. 175, §§ 601-662,
as amended 20 U.S.C. § 1400-87. See Honig v. Doe, 

, 309
(1988); Beth V. v. Carroll, 

, 82 (3d Cir. 1996).
                                    5


eligibility for federal funds under the IDEA is the
substantive right of disabled children to a “free appropriate
public education.” 20 U.S.C. § 1412(a)(1); see Honig v. Doe,

, 308-10 (1988); Beth V. v. Carroll, 

,
82 (3d Cir. 1996). As we noted in Matula, a free appropriate
education “ ‘consists of educational instruction specifically
designed to meet the unique needs of the handicapped
child, supported by such services as are necessary to
permit the child “to benefit” from the instruction.’ 

(citing Board of Education v. Rowley, 

,
188-89 (1982)).
   In addition to the condition of ensuring free, appropriate
public education, the IDEA requires states to guarantee
certain procedural rights in order to qualify for funding.
Many of these procedural mechanisms have been
implemented in the laws and regulations of New Jersey. See

(“New Jersey fulfills its obligations [under the
IDEA] through a complex statutory and regulatory scheme
. . . .”). Several of the procedural rights bear upon the
Plaintiffs’ allegations here.
  First, a state must demonstrate that it has a system in
place to identify, locate, and evaluate all children with
disabilities residing in the state. See 20 U.S.C. § 1412(a)(3);5
see also 

; N.J.A.C. § 6A:14-3.1(a).
This obligation is commonly referred to as the “child find”
duty. 

. In New Jersey, if a parent
requests an evaluation for his or her child, the request
shall immediately be considered a referral to a Child Study
Team (“CST”) to determine if the child should be classified
as disabled. See N.J.A.C. § 6A:14-3.3(d)(2).
  Second, after identifying and evaluating children with
disabilities, a state must develop and implement Individual
Education Programs (“IEP”) for all children classified as
disabled. See 20 U.S.C. §§ 1412(a)(4), 1414(d); see also 34
C.F.R. § 300.128(a); N.J.A.C. § 6A:14-3.1(a); Matula, 67

5. Specifically, § 1412(a)(3) requires states to ensure that “All children
with disabilities residing in the State . . . are identified, located, and
evaluated and a practical method is developed and implemented to
determine which children with disabilities are currently receiving needed
special education and related 

(“The primary mechanism for delivering a free
appropriate education is the development of a detailed
instruction plan, known as an Individual Education
Program . . . .”). Each IEP must take the form of a written
statement setting forth, among other things, the effect of a
child’s disability, measurable goals and benchmarks, the
special educational services to be provided to the child, and
the child’s progress under the IEP. See 20 U.S.C.
§ 1414(d)(1)(A).
  Both the IDEA and, in greater detail, the implementing
laws of New Jersey delineate timetables for meeting various
IDEA obligations. For instance, if a student is referred for
an evaluation, the CST, including the child’s teacher, must
convene a meeting with the child’s parents within 20 days.
See N.J.A.C. § 6A:14-3.3(e). A decision based on the
evaluation should be made within 15 days of the meeting.
See N.J.A.C. § 6A:14-2.3(e) and (f). If a child is determined
to be disabled, the CST must convene a meeting to develop
an IEP within 30 days. See 34 C.F.R. § 300.343(b)(2). From
start to finish, the laws of New Jersey require
implementation of an IEP for a disabled child within 90
days of initial evaluation. See N.J.A.C. § 6A:14-3.4(c).
  Third, the IDEA affords parents a number of other
procedural safeguards. Parents have the right to (1)
examine all records and participate in all meetings with
respect to the identification, evaluation, and educational
placement of their child, 20 U.S.C. § 1415(b)(1); (2) receive
written notice whenever a school proposes to change or
refuses to change an identification, evaluation, or
educational placement of their child, § 1415(b)(3); and (3)
participate in mediation to resolve any disputes arising
under the IDEA, § 1415(b)(5). See also 

.
   Fourth, the IDEA requires states to provide “an
opportunity to present complaints with respect to any
matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a
free appropriate public education to such child.” 20 U.S.C.
§ 1415(b)(6); see also Beth 

. The complaint
procedure must also provide parents an impartial due
process hearing to be conducted by the state or local
                              7


educational agency in accordance with the state’s laws. See
20 U.S.C. § 1415(f); see also Beth 

. Any
party aggrieved by the findings and decision of the due
process hearing has the right to appeal to either state court
or federal court. See 20 U.S.C. § 1415(i)(2); see also Beth 

.
   As the text of the IDEA suggests, state agencies and local
educational agencies, or school boards, share the
responsibility for complying with the requirements of the
Act. Naturally, when decisions concerning the educational
services of an individual child are at issue, the duties will
tend to shift from those removed from the situation to the
local educational agencies with greater access and
knowledge. New Jersey’s statutory scheme for implementing
the IDEA recognizes these shared duties. See N.J.A.C.
§ 6A:14-3.1(a) and (b) (school districts responsible for the
development and review of IEPs, as well as the placement
of children with disabilities). Nevertheless, as Plaintiffs
allege, the participating state retains primary responsibility
for ensuring compliance with the IDEA and for
administering educational programs for disabled children.
See 20 U.S.C. § 1412(a)(11)(A); Kruelle v. New Castle County
School District, 

, 696 (3d Cir. 1981).
  Because the IDEA offers conditional federal funds for
state educational programs with full recognition of the
importance of state laws and local educational agencies,
courts have described the Act as a model of “cooperative
federalism.” Beth 

(citations omitted).

                  B.   Factual Background
  We turn to the specific factual allegations in the present
case. At this point in the litigation, we accept all well-
pleaded allegations in the Complaint as true and draw all
reasonable inferences in favor of the non-moving parties.
Board of Trustees of Teamsters Local 863 Pension Fund v.
Foodtown, Inc., 

, 168 (3d Cir. 2002). Plaintiffs
are the parents of six minors who attended schools in
Newark. Based on their experiences, the children may be
grouped into two categories: (1) E.S., G.T., A.O., and M.M.
are allegedly disabled children who, despite repeated
                              8


requests by their parents, never received an evaluation to
determine eligibility for special education services, or never
benefitted from the implementation of IEPs; and (2) O.D.J.
and A.J.E. were evaluated as disabled children and began
receiving special education services, but only after years of
neglect by local educational agencies and the state.
  E.S. entered Newark’s public schools in September 1997
as a kindergartner. For several years, E.S. either failed or
marginally passed most classes, but nevertheless advanced
to the next grade level each year. Sometime during the
1999-2000 school year, E.S.’s mother requested help. As
instructed by the School Principal, E.S.’s mother asked for
an evaluation. Despite three separate follow-up requests, no
evaluation was ever scheduled for E.S. School officials told
E.S.’s mother that Newark lacked the resources to evaluate
every potentially disabled child and that it would be a
“waste of time” to continue sending E.S. to school. Compl.
at ¶ 108.
   G.T.’s mother initially requested an evaluation in
September 2000, as a result of G.T.’s poor academic
performance. School officials never responded. In 2001, a
private physician diagnosed G.T. with Attention Deficit
Hyperactive Disorder (“ADHD”) and Myasthenia Gravis. 

112-13. At the time, G.T. was in the third grade at a
Newark public school. G.T.’s mother requested evaluations
again on two separate occasions. Finally, school officials
attempted to schedule an initial meeting to determine
whether an evaluation was necessary, but postponed on
numerous occasions. Despite G.T.’s diagnosed disabilities,
“[a]fter five scheduled meetings to determine whether an
evaluation was warranted, Newark has yet to decide
whether an evaluation is warranted.” 

125.
   A.O. was diagnosed with Attention Deficit Disorder
(“ADD”) and has been taking Ritalin for his ADD since the
age of seven. Because of poor academic performance and
behavioral problems, A.O. attended three different schools
in three years. After numerous requests and three separate
diagnoses by private physicians of possible “neuro-based
learning disabilities” and ADD, A.O. finally received a CST
evaluation on May 23, 2001. 

133. Although the CST
determined that A.O. had a “specific learning disability” and
                                9


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

161-62. “Given the four years during which
Defendants failed to address A.O.’s educational needs,
[A.O.’s mother] remains extremely skeptical of whether or
not Defendants will provide her son with the necessary
services in the 2001-2002 school year.” 

163.
   M.M.’s mother first requested an evaluation for her son in
March 1999. After that request went unheeded, M.M.’s
mother went to a private physician, who diagnosed M.M.
with ADHD and prescribed Ritalin. Because of his
hyperactivity and impulsive behavior, the physician
recommended that M.M. be placed in a small classroom
setting. M.M.’s mother again requested an evaluation at the
start of the 1999-2000 school year. After several months,
school officials merely suggested intervention strategies.
The entire school year passed without an evaluation by the
CST. Although an eligibility evaluation finally took place in
February 2001, “Newark conducted an incomplete
evaluation. Moreover, Defendants have yet to provide M.M.
with special education and related services, and Defendants
have not mentioned their obligation to provide M.M. with
‘compensatory education.’ ” 

187.
  The experiences of O.D.J. and A.J.E. differ from those of
the first four children in that they were classified as
disabled and ultimately began receiving special education
services after repeated requests from parents and
intervention by their families’ lawyers. However, neither
O.D.J. nor A.J.E. have received the compensatory
education for the time during which they were deprived of
appropriate education. Both of them failed to receive special
education services for approximately two years before
school officials implemented their IEPs.
  Based on similar anecdotal evidence, Plaintiffs’ attorneys
at the Education Law Center (“ELC”) filed a complaint
investigation request with the NJDOE on July 24, 1998.6
Although some of the parents identified in the complaint
had earlier requested due process hearings in accordance

6. From the record it appears that the only child mentioned in the
present action who was also named in the July 24, 1998 complaint
investigation request is O.D.J. See App. at 84-85.
                             10


with the IDEA and state statutes, others had not. The ELC
requested a formal investigation into Newark’s failure to
identify and evaluate children with potential disabilities in
both public and private schools and to conduct disability
evaluations in a timely manner. 

72.
   ELC’s complaint resulted in two reports from the office of
the NJDOE. The first Complaint Investigation Report was
dated December 28, 1998, signed by Director Gantwerk,
and transmitted by Zangrillo. Notably, the NJDOE found
that Newark had “ ‘failed to develop an efficient procedure
to address the inordinately large number of incomplete,
noncompliant initial cases.’ ” 

77. Furthermore, the
NJDOE acknowledged that “Newark was engaged in
‘systemic noncompliance with the requirements established
in N.J.A.C. 6[A]:28 and N.J.A.C. 6A:14 regarding the
identification and evaluation of potentially disabled pupils
residing in the city of Newark.’ ” 

83. The state
recommended systemic corrective action. 

subsequently issued a Report of Findings on
September 6, 2000, based on information gathered during
a visit to Newark between May 8 and May 15, 2000. In the
September Report, the NJDOE observed that Newark
continued to suffer from a lack of and ineffective
deployment of staff, which were continuing to impact
Newark’s ability to adhere to statutory deadlines. Therefore,
the State ordered an improvement plan to be implemented
as soon as possible.
  Despite the assurances in these reports about systemic
corrective action and improvement plans, Plaintiffs contend
that none of the students named in the July 24, 1998
complaint, and none of the children identified in the
present Complaint, received the compensatory education to
which they are entitled.

                  C.   Procedural History
   On the basis of these allegations, Plaintiffs filed a
Complaint in District Court asserting twelve causes of
action. The first eight allege violations of the IDEA against
all Defendants. The ninth and tenth causes of action assert
violations of Plaintiffs’ civil rights pursuant to 42 U.S.C.
                                    11


§ 1983 for noncompliance with the IDEA. These claims are
asserted against all Defendants and the NJDOE,
respectively. The eleventh and twelfth causes of action
allege violations of the New Jersey state constitution and of
the “Abbott v. Burke” mandates.7 These claims are brought
against Newark and the NJDOE, respectively. Plaintiffs also
requested entry of a permanent injunction ordering
Defendants to abide by their obligations under the IDEA
and relevant New Jersey state law. Because of the
widespread systemic failures at the local and state levels
detailed in the Complaint, Plaintiffs brought suit on behalf
of all others similarly situated to the six named children.
   Pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules
of Civil Procedure, the NJDOE and the State officials moved
to dismiss the Complaint. Defendants advanced numerous
grounds for dismissal. First, the State argued that the
NJDOE and the named officials were immune from suit
under the IDEA pursuant to the Eleventh Amendment.
Second, it contended that Plaintiffs’ IDEA and § 1983
causes of action should be dismissed for their failure to
exhaust administrative remedies as required by 20 U.S.C.
§ 1415(l).8 Third, the state argues that, based on the State’s
sovereign immunity, entry of injunctive relief was improper
against it and that it was not the proper subject of an order
directing the provision of free, appropriate public education.
Fourth, as to the state law claims, the District Court should
abstain from asserting jurisdiction over them because of
the State’s sovereign immunity.

7. The Abbott v. Burke mandates were set forth in a line of cases before
the Supreme Court of New Jersey. See, e.g., Abbott ex rel. Abbott v.
Burke, 

(N.J. 1990); Abbott ex rel. Abbott v. Burke, 

(N.J. 1998); Abbott ex rel. Abbott v. Burke, 

(N.J.
2000).
8. Newark also moved to dismiss the Complaint on various grounds. See
App. at 6-7. Newark is not a party to this appeal as it did not file a
notice of appeal. Nevertheless, it filed a supporting brief urging dismissal
of the Complaint on the exhaustion grounds advanced by the state. In
an Order dated October 29, 2002, we granted Plaintiffs’ motion to strike
Newark’s brief. In any event, Newark’s contentions are addressed in
connection with our discussion of the State’s exhaustion arguments.
                             12


  The District Court denied the motions to dismiss in their
entirety. The Court held that Congress validly abrogated the
states’ sovereign immunity in enacting the IDEA and that,
in any event, New Jersey had waived its Eleventh
Amendment immunity by accepting IDEA funds. Second,
the Court found the State’s exhaustion arguments
unavailing because Plaintiffs had alleged a widespread
systemic breakdown of the provision of free, appropriate
public education, a claim which could not be addressed
sufficiently in administrative proceedings. Third, the Court
entered a preliminary injunction against all Defendants in
a separate order, reasoning that immunity was not
available to the State and that the State was a proper party
to the order. Fourth, having retained the federal claims, the
Court exercised its supplemental jurisdiction over the State
law claims in the Complaint.
  The State’s appeal followed.

                     II.   Jurisdiction
   The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343, 1367, and the relevant provision of the IDEA
granting subject matter jurisdiction over claims arising
under the Act to the federal courts. See 20 U.S.C.
§ 1415(i)(3)(A).
   Because the State reasserts nearly the full panoply of
defenses that it argued before the District Court, our
jurisdiction over this appeal requires some clarification. We
first consider whether we have jurisdiction over the District
Court’s rulings. 28 U.S.C. § 1291 limits our jurisdiction to
final judgments. See We Inc. v. City of Philadelphia, 

, 324 (3d Cir. 1999). A final judgment is one that
“ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.” Cunningham v.
Hamilton County, Ohio, 

, 204 (1999) (citations
omitted). The final judgment rule calls into question several
claims made by the State on appeal.
   The denial of a motion to dismiss on the grounds of
failure to exhaust administrative remedies is not, by any
definition, a final judgment that ends the litigation on the
merits. The District Court’s decision merely indicates that
                                   13


a decision on the merits of the IDEA and § 1983 claims lies
ahead. The notion that a denial of a motion to dismiss for
failure to exhaust is not a final judgment is “[s]o clear . . .
that, until now, no court of appeals has been required to
deal in a published opinion with a contention that rejection
of an exhaustion argument is immediately appealable.”
Davis v. Streekstra, 

, 762 (7th Cir. 2000). In
a similar situation, we held that a district court’s denial of
a motion to dismiss for failure to submit to an informal
dispute resolution procedure was not immediately
appealable. See Harrison v. Nissan Motor Corp. in U.S.A.,

, 352 (3d Cir. 1997). While we tend to agree
with the State that the issue of exhaustion is important, we
cannot conclude that the District Court’s decision was
conclusive or that the exhaustion issue will be
unreviewable on appeal after a decision on the merits. For
these reasons, we lack jurisdiction to review the State’s
exhaustion arguments at this stage of the litigation.
  The District Court’s decision to exercise supplemental
jurisdiction over the claims under New Jersey state law is
also not final. While we have said that a discretionary
remand that takes place pursuant to 28 U.S.C. § 1367(c)
may constitute a final judgment, see In re U.S. Healthcare,
Inc., 

, 159 (3d Cir. 1999), cert. denied, 

(2000), that situation is the exact opposite of the
one present here, where the District Court has retained its
supplemental jurisdiction over the two state law causes of
action. Again, a final decision on the merits lies ahead, and
we lack jurisdiction to review this aspect of the District
Court’s judgment.9
  Pursuant to the collateral order doctrine, however, we
have jurisdiction to review the state’s claim of Eleventh
Amendment immunity. See Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 

, 147 (1993)
(“We hold that States and state entities that claim to be

9. The State reasserted the sovereign immunity argument in their motion
to dismiss the § 1983 and state law claims. Our analysis of the Eleventh
Amendment issue in Part III.A, infra, controls with respect to the State’s
objections to all three sets of Plaintiffs’ claims under the IDEA, § 1983,
and state law.
                              14


‘arms of the State’ may take advantage of the collateral
order doctrine to appeal a district court order denying a
claim of Eleventh Amendment immunity.”). Because the
protection of the Eleventh Amendment is akin to absolute
immunity from suit, rather than an affirmative defense,
that protection is lost if the suit is permitted to proceed
without an appeal. See 

  As to the entry of injunctive relief, we have jurisdiction
pursuant to 28 U.S.C. 1292(a)(1) over the state’s
interlocutory appeal. Therefore, our analysis below is
confined to these two aspects of the District Court’s
judgment.
  Our review of the denial of sovereign immunity is plenary,
and we review the entry of injunctive relief for abuse of
discretion. See Lavia v. Pennsylvania Department of
Corrections, 

, 194 (3d Cir. 2000); Novartis
Consumer Health, Inc. v. Johnson & Johnson-Merck
Consumer Pharmaceuticals Co., 

, 586 (3d Cir.
2002).

                      III.   ANALYSIS

          A.   Eleventh Amendment Immunity
  The Eleventh Amendment           to   the   United   States
Constitution provides:
    The Judicial power of the United States shall not be
    construed to extend to any suit in law or equity,
    commenced or prosecuted against one of the United
    States by Citizens of another State, or by Citizens or
    Subjects of any Foreign State.
U.S. CONST. amend. XI. While the text of the Eleventh
Amendment refers only to suits against states brought by
citizens of another state or a foreign state, see Koslow v.
Commonwealth of Pennsylvania, 

, 167 (3d Cir.
2002), cert. denied, 

(2003), the Supreme
Court has consistently reaffirmed the fundamental
constitutional protections embodied in state sovereignty.
See College Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board, 

, 669-70 (1999);
                               15


Alden v. Maine, 

, 713 (1999). Thus, in Hans v.
Louisiana, the Supreme Court held that the Eleventh
Amendment also barred a citizen from bringing suit against
his own state in federal court, as Plaintiffs seek to do here.

(1890); see also Atascadero State Hospital v.
Scanlon, 

, 238 (1985).
   As we observed in MCI Telecommunication Corp. v. Bell
Atlantic-Pennsylvania, there are only three narrowly
circumscribed      exceptions      to  Eleventh   Amendment
immunity: (1) abrogation by Act of Congress, (2) waiver by
state consent to suit; and (3) suits against individual state
officials for prospective relief to remedy an ongoing violation
of federal law. 

, 503 (3d Cir. 2001), cert.
denied, 

(2002); see also College Savings

. Here, the District Court held that
Congress had validly abrogated the states’ sovereign
immunity in enacting the IDEA and that New Jersey had
waived its Eleventh Amendment protection by accepting
IDEA funds. We find, however, that the waiver analysis
controls the outcome in this case and that, therefore, a
lengthy discussion of abrogation is unnecessary. See
Douglas v. California Dept. of Youth Authority, 

, 820 (9th Cir.) (“If we conclude that California waived
its sovereign immunity by accepting Federal Rehabilitation
Act funds, we need not reach the question whether
Congress validly abrogated the states’ sovereign immunity
under the Rehabilitation Act.”), amended by 

(2001), cert. denied, 

(2002); see also 

(reserving consideration of abrogation of
sovereign immunity under the Rehabilitation Act, while
finding that Pennsylvania had waived its Eleventh
Amendment protection).10
  The Supreme Court recently reiterated that a state’s
sovereign immunity is “ ‘a personal privilege which it may
waive at pleasure.’ ” College Savings 

(quoting Clark v. Barnard, 

, 447 (1883)). A
state’s waiver, however, “ ‘is altogether voluntary on the
part of the sovereignty.’ ” 

v. Arkansas, 61

10. We address the third exception to Eleventh Amendment immunity—
prospective injunctive relief—briefly in Part III.B, infra.
                              16


U.S. (20 How.) 527, 529 (1858)). A finding of waiver is
appropriate only where the state’s consent is “stated by the
most express language or by such overwhelming
implications from the text as [will] leave no room for any
other reasonable construction.” Edelman v. Jordan, 

, 673 (1974). Courts are instructed to “ ‘indulge
every reasonable presumption against waiver’ ” of sovereign
immunity. College Savings Bank, 

(quoting
Aetna Ins. Co. v. Kennedy ex rel. Bogash, 

, 393
(1937)). In light of the Supreme Court’s guidance, we have
acknowledged that the “waiver by the state must be
voluntary and our test for determining voluntariness is a
stringent one.” 

(citations omitted).
   In recent years, there have been a number of suits
against sovereign states under federal remedial legislation
and, as a result, substantial contributions to Eleventh
Amendment jurisprudence. See, e.g., 

. Based on the case law, we discern at least two ways
in which a state may consent to suit in federal court and
waive its Eleventh Amendment immunity. First, a state may
make an unambiguous statement that it intends to subject
itself to suit in, for example, state legislation or an
interstate compact. See, e.g., Petty v. Tennessee-Missouri
Bridge Commission, 

, 277-82 (1959). The
second scenario—the one relevant to the present appeal—
occurs when Congress bestows a gift or gratuity, to which
the state is not otherwise entitled, with the condition that
the state waive its Eleventh Amendment immunity, and the
state accepts that gift or gratuity. See 

(“[T]he disbursement of federal monies are congressionally
bestowed gifts or gratuities, which Congress is under no
obligation to make, which a state is not otherwise entitled
to receive, and to which Congress can attach whatever
conditions it chooses.”) (citation omitted). As is often the
case, but not always, the gift or gratuity at issue is federal
funds disbursed by Congress pursuant to its Article I
spending powers. See U.S. CONST. art. I, § 8, cl. 1. Compare

(referring to the “gift or gratuity of the
power to regulate local telecommunications competition
under the Act” under the Commerce Clause) with 

(finding that federal financial assistance
under the State Criminal Alien Assistance Act was a
                             17


Congressional gift or gratuity triggering a waiver         of
Pennsylvania’s Eleventh Amendment immunity).
   To the extent that the State disputes Congress’s authority
to exercise its spending authority in a manner that
demands a waiver of sovereign immunity, we disagree.
While the applicable test for assessing a state’s waiver of
sovereign immunity is unquestionably stringent, the recent
cases have also made clear that “ ‘Congress may require a
waiver of state sovereign immunity as a condition for
receiving federal funds, even though Congress could not
order the waiver directly.’ ” 

(quoting Jim C. v. United States, 

, 1081 (8th
Cir. 2000)); see also 

(“A fair reading
of College Savings suggests that Congress may, pursuant to
its regulatory power under [Article I of] the Commerce
Clause, require a state to waive immunity in order to
receive a benefit to which the state is not entitled absent a
grant or gift from Congress.”).
   Based on this recent jurisprudence, we conclude that
three requirements must be met before a court may
determine that a state has waived its sovereign immunity
by accepting a Congressional gift or gratuity: (1) Congress
must state in clear and unambiguous terms that waiver of
sovereign immunity is a condition of receiving the gift or
gratuity; (2) in accepting the gift or gratuity, states must
exercise that choice knowingly and voluntarily, fully
cognizant of the consequence—waiver of Eleventh
Amendment immunity; and (3) the federal program
bestowing the gift or gratuity must be a valid exercise of
Congress’s authority. See College Savings 

(“The classic description of an effective waiver of a
constitutional right is the ‘intentional relinquishment or
abandonment of a known right or privilege.’ ”) (citations
omitted); 

(discussing
requirements of valid Spending Clause legislation); 

-06 (“Congress must be unmistakably clear
and unambiguous in stating its intent to condition receipt
of the gratuity on the state’s consent to waive its sovereign
immunity and to be sued in federal court.”) (citation
omitted).
                              18


   We turn to the specific provisions of the IDEA on which
the District Court and Plaintiffs rely in support of their
contention that New Jersey waived its Eleventh Amendment
immunity. As we noted above, the IDEA provides federal
funds for state education programs in return for meeting a
number of conditions. 20 U.S.C. §§ 1411 and 1412(a).
There is no dispute in this case that New Jersey has
accepted IDEA funds. One clear and unmistakable
component of the IDEA is a state’s waiver of Eleventh
Amendment immunity. Section 1403 of the IDEA states: “A
State shall not be immune under the eleventh amendment
to the Constitution of the United States from suit in Federal
court for a violation of this chapter.” 20 U.S.C. § 1403(a). In
addition, § 1403 should be read in conjunction with
§ 1415(i)(2)(A) which requires states to provide an
opportunity for review of IDEA decisions in federal court.
See Bradley v. Arkansas Dept. of Education, 

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

(8th Cir. 2000). Taken
together, §§ 1403 and 1415 embody a clear and
unambiguous expression of Congress’s intent to condition a
state’s participation in the IDEA on the state’s waiver of
Eleventh Amendment immunity from suit in federal court.
See 

unmistakable loss of Eleventh
Amendment immunity set forth in §§ 1403 and 1415 that
would occur upon acceptance of funds disbursed pursuant
to §§ 1411 and 1412, it would have been difficult for New
Jersey not to comprehend the nature of the bargain when
it accepted IDEA funds. If New Jersey felt that its Eleventh
Amendment immunity were more important than funds for
special education programs, then it could have preserved
its constitutional protections by declining IDEA funds. In
any event, the choice belonged to the State and the State
alone. See 

.
   Notwithstanding the structural clarity of the IDEA, and
particularly §§ 1403 and 1415, the State contends that
several circumstances cast doubt on the clarity required to
effect a valid waiver. First, the State observes that in other
federal statutes which courts have found to set forth a
waiver as a condition for receiving federal funds, specific
language was included to make clear that acceptance of
federal funds would trigger the waiver. Because § 1403 fails
                             19


to mention anything about acceptance of federal funds,
New Jersey claims that waiver is not a clear condition of
participation in the IDEA. Second, the State argues that
because § 1403 is titled “Abrogation of state sovereign
immunity,” it understood that section as an attempt by
Congress to abrogate sovereign immunity and not as a clear
and unambiguous condition of waiver. Finally, the State
contends that because it understood § 1403 as an attempt
to abrogate, its consent to suit in federal court could not
have been knowing or intentional because it assumed that
there was no sovereignty for it to waive. None of these
arguments are availing.
   The State correctly observes that other federal legislation
effecting a waiver of the states’ sovereign immunity makes
explicit reference to receipt of federal funds. For instance,
amendments to the Rehabilitation Act enacted in 1986
contain such language:
    A State shall not be immune under the Eleventh
    Amendment of the Constitution of the United States
    from suit in Federal court for a violation of section 504
    of the Rehabilitation Act of 1973 [29 U.S.C.A. § 794],
    title IX of the Education Amendments of 1972 [20
    U.S.C.A. § 1681 et seq.], the Age Discrimination Act of
    1975 [42 U.S.C.A. § 6101 et seq.], title VI of the Civil
    Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or the
    provisions of any other Federal statute prohibiting
    discrimination by recipients of Federal financial
    assistance.
42 U.S.C. § 2000d-7(a)(1) (emphasis added). The Supreme
Court held that § 2000d-7(a)(1) accomplished a valid and
unambiguous waiver of the states’ Eleventh Amendment
immunity. See Lane v. Pena, 

, 198-200 (1996);

(Pennsylvania’s receipt of federal
funds under the State Criminal Alien Assistance Program
effected a waiver of its Eleventh Amendment immunity for
claims under § 504 of the Rehabilitation Act).
   Despite the mention of “Federal financial assistance” in
§ 2000d-7(a)(1), we have stated previously that the waiver
analysis does not hinge on the invocation of talismanic
language, a point that the NJDOE concedes. See MCI, 

(“It is true that the [Telecommunications Act of
1996] does not include magic words such as ‘waiver’ or
‘immunity’ or ‘suit.’ . . . We believe, however, that the
language that Congress did use is sufficiently clear to
establish that a state commission’s decision will be subject
to review in an action brought in federal court by an
aggrieved party and sufficiently clear that the commission
may be made a party to that federal court action.”). In the
context of the IDEA, our observation in MCI is instructive.
The absence of any mention of receipt of federal funds does
not change the fact that the language and the structure of
the IDEA condition the receipt of federal funds on a state’s
waiver of sovereign immunity. See Board of Education of
Oak Park and River Forest High School Dist. No. 200 v. Kelly
E., 

, 935 (7th Cir.) (although § 1403(a) of the
IDEA “does not use words such as ‘consent’ or ‘waiver,’ it
is hard to see why that should matter. Congress did what
it could to ensure that states participating in the IDEA are
amenable to suit in federal court.”), cert. denied, 

(2000). In this case, we see no upside to squinting
myopically at the final phrase of § 2000d-7(a)(1), when the
focus should remain on the text and structure of the IDEA.
This is especially true where the operative waiver language
—that which limits Eleventh Amendment immunity—is
almost identical in § 2000d-7(a)(1) and § 1403 of the IDEA.
   Second, the State argues that there is some meaning to
the fact that the heading of § 1403 reads “Abrogation of
sovereign immunity.” We disagree. It is a well-settled rule of
statutory interpretation that titles and section headings
cannot limit the plain meaning of statutory text where that
text is clear. See Demore v. Kim, 

, 1724
(2003) (“[T]he title of a statute has no power to give what
the text of the statute takes away.”); I.N.S. v. St. Cyr, 

, 308 (2001) (“[A] title alone is not controlling.”)
(citing Pennsylvania Dept. of Corrections v. Yeskey, 

, 212 (1998)); Brotherhood of R.R. Trainmen v.
Baltimore & Ohio R.R. Co., 

, 528-29 (1947)
(“[M]atters in the text which deviate from those falling
within the general pattern are frequently unreflected in the
headings and titles. Factors of this type have led to the wise
rule that the title of a statute and the heading of a section
cannot limit the plain meaning of the text.”). We underscore
                             21


again that a plain reading of §§ 1411 and 1412, in
conjunction with §§ 1403 and 1415, unmistakably
conditions a state’s receipt of IDEA funds on the waiver of
sovereign immunity. See 

(although there has been “some unease” with the heading
of § 1403, “[w]hen it enacted §§ 1403 and 1415, Congress
provided a clear, unambiguous warning of its intent to
condition a state’s participation in the IDEA program and
its receipt of federal IDEA funds on the state’s waiver of its
immunity from suit in federal court on claims made under
the IDEA.”). Therefore, the use of the term abrogation in the
heading of § 1403 does not alter the condition of waiver of
Eleventh Amendment immunity as reflected in the plain
text of the IDEA.
   Our discussion above should not be mistaken for a
casual acceptance of legislative ambiguity. We agree with
the Eighth Circuit that Ҥ 1403 has some shortcomings that
limit its use as a clear expression of Congress’s intent to
condition a receipt of IDEA funds on a state’s waiving its
immunity . . . .” 

. Without
question, the condition of waiver of Eleventh Amendment
immunity could have been accomplished with greater
precision in the IDEA. Nevertheless, the inquiry should
hinge on what Congress did accomplish, and in that regard,
we agree that “Congress did what it could to ensure that
states participating in the IDEA are amenable to suit in
federal court.” Kelly 

.
   Despite the clarity of the condition of waiver in the IDEA,
the State also contends that it could not knowingly and
intelligently waive its Eleventh Amendment immunity
because it reasonably believed that Congress had already
abrogated its sovereign immunity by operation of § 1403.
According to the NJDOE, “Congress cannot indicate an
intent to abrogate sovereign immunity, as it did in § 1403
of the IDEA, and expect the States to divine a
Congressional intent to condition receipt of federal funds on
the waiver of sovereign immunity.” Appellants’ Brief, at 25.
This argument is borrowed from the Second Circuit’s
decision in Garcia v. S.U.N.Y. Health Sciences Center of
Brooklyn, where the court held that New York did not waive
its sovereign immunity from suit under the Americans with
                                  22


Disabilities Act and the Rehabilitation Act when it accepted
federal funds for a state university medical school because
New York had reasonably believed that Congress had
abrogated its Eleventh Amendment immunity. 

,
114 (2d Cir. 2001). The court stated that “a state accepting
conditioned federal funds could not have understood that
in doing so it was actually abandoning its sovereign
immunity from private damages suits . . . . since by all
reasonable appearances state sovereign immunity had
already been lost.” 

In the context of
the IDEA, the Fifth Circuit adopted this rationale in holding
that the state of Louisiana did not knowingly waive its
Eleventh Amendment immunity by accepting IDEA funds.
See Pace v. Bogalusa City School Board, 

, 617
(5th Cir. 2003).11
   For several reasons, we find the State’s argument
unavailing. To begin with, the reasoning proceeds from an
unrealistic assumption. As we noted above, the fact that
Congress employed the term abrogation does not change
the language and structure of the IDEA, which clearly
effects a waiver of Eleventh Amendment immunity. The
NJDOE would have us believe that it could reasonably close
its eyes to the integrated structure of §§ 1403, 1411, 1412,
and 1415 of the IDEA and conclude that there would be no
consequence each time it accepted IDEA funds. We remain
skeptical.
   In addition, the state’s argument makes little sense from
a temporal perspective. In an alternative Eleventh
Amendment argument, the NJDOE contends that although
Congress had attempted to abrogate its sovereign
immunity, that attempt exceeded Congress’s constitutional
authority to do so. In support of this argument, the state
cites a line of cases in which the Supreme Court invalidated
six separate statutes purporting to limit the states’
sovereign immunity. Appellants’ Brief, at 19. This line of
cases begins with the Supreme Court’s June 1997 decision
in City of Boerne v. Flores, 

(1997), and

11. On July 17, 2003, the Fifth Circuit granted appellant’s petition for
rehearing en banc in Pace v. Bogalusa City School Board, No. 01-31026,

(5th Cir. July 17, 2003).
                                  23


includes decisions from 1999-2001.12 What the State seems
to be saying is that while it began to formulate, as early as
June 1997, its belief that the purported abrogation in the
IDEA might be unconstitutional, it nevertheless accepted
IDEA funds without any awareness of the possible
consequence of waiver of its sovereign immunity. The
argument borders on the disingenuous, for the State readily
accepted IDEA funds well after June 1997, during the
critical time periods relevant to this dispute, that is, when
the children named in the Complaint had failed to receive
a free, appropriate public education. In Garcia, the Second
Circuit recognized that a knowing waiver might result when
a state had reason to believe that an attempt to abrogate
was invalid. See 

n.4 (“We recognize
that an argument could be made that if there is a colorable
basis for the state to suspect that an express congressional
abrogation is invalid, then the acceptance of funds
conditioned on the waiver might properly reveal a knowing
relinquishment of sovereign immunity. This is because a
state deciding to accept the funds would not be ignorant of
the fact that it was waiving its possible claim to sovereign
immunity.”).
  For these reasons, in the context of this case, we are
unpersuaded by the State’s argument and the rationale
borrowed from Garcia that the NJDOE reasonably believed
that it had lost its sovereign immunity, and therefore, could
not waive it. Given the NJDOE’s emphatic assertions about
the invalidity of the abrogation in § 1403, we believe that
the state accepted IDEA funds with awareness of the
consequences.
  Our inquiry turns briefly to the third requirement of the
test outlined above—the requirement that the federal
program bestowing the gift or gratuity must be a valid
exercise of Congress’s authority. We note that the NJDOE
addresses this issue only in passing in its Opening Brief.

12. See also Florida Prepaid Postsecondary Educational Expense Board v.
College Savings Bank, 

(1999); Kimel v. Florida Bd. of
Regents, 

(2000); United States v. Morrison, 

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

(2001).
                             24


Appellants’ Brief, at 27. We also note that any objections to
the validity of Congress’s exercise of authority under the
IDEA would have been unavailing.
   Because the gift bestowed on the states under the IDEA
is federal funds, we understand Congress to proceed from
its authority under the Spending Clause. U.S. CONST. art. I,
§ 8, cl. 1. In Koslow, we recently addressed the
requirements for a valid exercise of Congress’s Spending
Clause authority: “Spending Clause legislation must: (1)
pursue the general welfare; (2) impose unambiguous
conditions on states, so they can exercise choices
knowingly and with awareness of the consequences; (3)
impose conditions related to federal interests in the
program; and (4) not induce unconstitutional 

(citing South Dakota v. Dole, 

,
207-08 (1987)). In enacting the IDEA, Congress identified a
troubling gap in the provision of public education to
disabled children and sought to allocate federal funds to
remedy the problems, all in pursuit of the general welfare.
As in Dole, where Congress conditioned receipt of federal
highway funds on states’ adoption of a minimum drinking
age of twenty-one, we find the IDEA to be squarely within
Congress’s authority to disburse funds in pursuit of the
general 

. As discussed above, the
availability of federal funds was also clearly and
unambiguously conditioned on a waiver of sovereign
immunity. As to the relatedness requirement, we stated in
Koslow that “one need only identify a discernible
relationship” between the statutory condition and the
federal interest in the 

. Here,
Congress has clearly expressed an interest in remedying
the problems inherent in providing a free, appropriate
public education to disabled children. The funds disbursed
through the IDEA are targeted directly at remedying those
problems. And the condition of waiver of sovereign
immunity from IDEA claims is directly related to promoting
the substantive and procedural rights embodied in the
IDEA. As a result, we cannot conclude that the financial
inducements of the IDEA were “so coercive as to pass the
point at which ‘pressure turns into compulsion.’ ” 

(citations omitted).
                                   25


  For the reasons set forth above, we hold that by
accepting IDEA funds, the state of New Jersey waived its
Eleventh Amendment immunity from claims brought
pursuant to the IDEA in federal court. The condition of
waiver was clear and unambiguous, the state was fully
aware of the consequence, and the IDEA funds accepted by
the state flowed from a valid exercise of Congress’s
authority under the Spending Clause. We note that two of
our sister circuits addressing this same issue also held that
the federal funds available under the IDEA are conditioned
upon a state’s waiver of sovereign immunity. Oak 

; 

; but see 

(holding that the state of Louisiana’s
acceptance of IDEA funds did not effect a valid waiver of its
Eleventh Amendment immunity).

                B.   The Preliminary Injunction
   The remaining issue on appeal for which we have
jurisdiction is the preliminary injunction entered against
Defendants compelling them to continue providing IEPs to
E.S. and G.T., as long as they remain eligible for such
services. To the extent that the state believes that sovereign
immunity bars the entry of injunctive relief, our discussion
above disposes of that argument. This is true for the
individual state officials as well, for the state’s waiver of
Eleventh Amendment immunity renders them unable to
assert a right that no longer exists. See 

(“The only immunities that can be claimed in an
official-capacity action are forms of sovereign immunity that
the entity, qua entity, may possess, such as the Eleventh
Amendment.”) (internal quotations and citations omitted).13
  The State’s primary argument on appeal appears to be
that it is an improper party to the injunction because
Newark, and not the State, is the party responsible for
providing the IEPs. Neither the IDEA nor case law supports
the State’s view. As we noted in Part 

, the State
has the primary responsibility under the IDEA to provide a

13. For this reason, we need not address Plaintiffs’ alternative argument
that Ex Parte Young, 

(1908), permits Plaintiffs to proceed
with their claims against the State Officials.
                              26


free, appropriate public education         and to ensure
compliance with the requirements of the    Act. Therefore, we
agree with the District Court that the     State is a proper
party to the preliminary injunction at     this stage of the
litigation.
  Of course, it is incumbent on courts to proceed with a
complete inquiry into the considerations relevant to a grant
of injunctive relief. Specifically, the District Court should
have considered: (1) the likelihood that the Plaintiffs would
succeed on the merits of their claims; (2) the extent to
which E.S. and G.T. would suffer irreparable harm without
injunctive relief; (3) the potential harm to the Defendants if
an injunction is issued; and (4) the public interest. See

. In its ruling from the bench, the
District Court did not address these factors in its
discussion of the Plaintiffs’ request for injunctive relief.
   Nevertheless, we are persuaded that the Court touched
upon all of these factors in its analysis of the various issues
raised in Defendants’ motions to dismiss. Specifically, the
District Court discussed the NJDOE’s Complaint
Investigation Reports which conceded that Newark had
failed to provide an efficient system of identifying, locating,
and evaluating disabled children, which, in turn,
substantiated some of Plaintiffs’ claims. In addition, the
Court noted implicitly that E.S. and G.T. had already
suffered from years of neglect, and the potential harm to
them from continuing failure to provide appropriate
educational services was readily apparent. In that regard,
the potential harm to Defendants appears to have been
minimal because they undertook to provide these services
by participating in the IDEA. And finally, the maintenance
of appropriate education services to disabled children is in
the public interest, as Congress has detailed in the IDEA.
  For these reasons, the District Court did not abuse its
discretion in entering preliminary injunctive relief against
the Defendants.

                     IV.   CONCLUSION
  For the reasons set forth above, we will affirm the
judgment of the District Court, insofar as it held that the
                              27


state of New Jersey had waived its Eleventh Amendment
immunity by accepting IDEA funds. Furthermore, we will
affirm the entry of preliminary injunctive relief against the
state of New Jersey.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit