Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83-C-3420-Charles P. Kocoras, Judge.
Before COFFEY and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
The Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1400-1420 (the Act), provides federal funds to help pay the costs of educating handicapped children, including the costs of necessary private residential facilities. In order to qualify for such assistance, a state must establish a program that "assures all handicapped children the right to a free appropriate public education". 20 U.S.C. § 1412(1). Illinois agreed to participate in this program and amended Ill. Rev. Stat. ch. 122 P14-1.01 to -14.01 to comply with the requirements of the federal program.
Gary A. is a handicapped child living within New Trier High School district 203. In September 1979, at the direction of the Director of Special Education at New Trier and with the consent of his parents, Gary was placed in a private residential educational facility. The District refused to pay for more than $32,000 of the costs of the facility for the 1979-80 school year. The District relied on a state rule that excluded "therapeutic services" from the state's program. Mr. A.'s medical insurance carrier paid $12,000, leaving a balance of $20,000 which Mr. and Mrs. A. had to pay.
In 1980 a preliminary injunction suspended the state rule in question. Gary B. v. Cronin, 542 F. Supp. 102 (N.D. Ill. 1980). The rule was redrafted to remove the exclusion of funds for counseling and therapeutic services. Plaintiffs filed suit against the District, the Board of Education of the District, the Superintendent of the District, the State Board of Education, and various other state entities and employees*fn1 on May 18, 1983, in order to obtain reimbursement from the defendants for Gary A.'s educational expenses. They argued that the defendants violated Gary's right to a free education under the Act, the equal protection clause of the fourteenth amendment, and state law. The defendants argued that there is no cause of action under state law or the constitution and that the federal Act does not provide a right of action for retroactive relief. Alternatively, they argued that such relief would be barred by the eleventh amendment. In a memorandum opinion the district court dismissed the claims under the constitution and state law and rejected the defendants' eleventh amendment defense, relying on Parks v. Pavkovic, 536 F. Supp. 296 (N.D. Ill. 1983). It later entered summary judgment for the plaintiffs on the federal law claim. The defendants do not contest the holding that they violated the Act. Still later, the district court entered judgment for the plaintiffs for $20,158.61, representing the plaintiffs' costs for Gary's education. Recognizing that the Parks case relied on in his earlier decision had, in the interim, been reversed in Parks v. Pavkovic, 753 F.2d 1397 (7th Cir. 1985), the district judge nevertheless held for the plaintiffs, citing an even more recent case, Burlington School Committee v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985), for the proposition that retroactive relief is available.*fn2 The only issue on appeal is whether the defendants may be required to pay money for prior violations of the Act.
The Act provides an explicit private right of action. 20 U.S.C. § 1415(e)(2). The federal courts may "grant such relief as the court determines is appropriate." Parks v. Pavkovic, 753 F.2d 1397, held that although this section provides for prospective relief, it does not authorize damages or other retroactive monetary relief. Id. at 1407.*fn3 The plaintiffs properly point out that Parks was decided before the Supreme Court issued its opinion in Burlington, which held that although "damages" are not available under the Act, "reimbursement" is, id. at 2003. The Court ordered a local school district to reimburse the parent of a handicapped child for his expenses in enrolling the child in a private school specializing in the education of handicapped students.
We agree with the defendants that Burlington does not control this case. The Burlington Court did not address the issue of sovereign immunity and could not have. That case was a consolidation of two actions. In one the local school board sued the state to reverse a state administrative ruling that the locality was liable for reimbursement, and in the other the state sued the locality for injunctive relief in order to force the reimbursement. Neither involved payments by the state, and the state was a defendant in only one. In both cases the state was arguing in favor of retroactive monetary relief to be paid by the locality (which was not itself entitled to eleventh amendment immunity). Because the eleventh amendment and principles of sovereign immunity apply only when monetary relief is sought against the state (not by the state), the immunity issue could not have been before the Court. Thus it is not possible to read the Burlington opinion as support for the plaintiffs.
A long line of cases has established that an unconsenting state may not be sued in federal court, either because of the eleventh amendment, see, e.g., Papasan v. Allain, 478 U.S. 265, 54 U.S.L.W. 4939, 4943, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (U.S. July 1, 1986); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), or because of principles of sovereign immunity interest in the structure of the constitution, Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890); Pennhurst, supra. A state may be sued in federal court only if it consents and waives its immunity, Clark v. Barnard, 108 U.S. 436, 447, 27 L. Ed. 780, 2 S. Ct. 878 (1883), or if Congress, using power granted by § 5 of the fourteen amendment, abrogates the states' immunity, Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976).
The plaintiffs argue first that the state has waived its immunity by participating in this federally funded and regulated program. They cite Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984).*fn4 We find this argument unpersuasive. The Supreme Court has rejected the concept of waiver by mere participation. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 3145 & n.1, 87 L. Ed. 2d 171 (1985), holds that a state waives its constitutional immunity by participating in a federally-funded program only if participation is accompanied by "an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment." That token of consent may appear in the state's law or in an unambiguous statutory condition on participation. See also Edelman v. Jordan, 415 U.S. 651, 673, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) (waiver found only "where stated 'by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction'"); Florida Department of Health & Rehabilitative Services v. Florida Nursing Ass'n, 450 U.S. 147, 150, 67 L. Ed. 2d 132, 101 S. Ct. 1032 (1981). The plaintiffs point to no language in the state statute or any "overwhelming implications in the state statute or any "overwhelming implications from the text" of the state statute to support their claim that the state consented to suits for damages and waived its immunity. There is no such language or implication in the statute. We find that the state did not waive its constitutional immunity.
The plaintiffs next argue that Congress abrogated the state's eleventh amendment immunity by enacting the Act pursuant to § 5 of the fourteenth amendment.*fn5 Fitzpatrick v. Bitzer, supra. The most recent statement of the law on this issue is found in Atascadero. Noting that "the Eleventh Amendment implicates the fundamental constitutional balance between the Federal government and the States", the Court held that Congress may abrogate the states' immunity "only by making its intention unmistakably clear in the language of the statute," Id. at 3145-47 (emphasis added). Furthermore, "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Id. at 3149.
The statute at issue in Atascadero, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, is similar in all relevant parts to the statute at issue in this case. Both explicitly provide a private right of action for prospective relief for all aggrieved parties. Neither explicitly provides a damages remedy or other retroactive relief. Both involve programs through which states receive federal assistance with accompanying federal regulations. In Atascadero the Supreme Court found no abrogation of the states' constitutional immunity. Likewise, ...