R, et al v. Spring Branch Indep

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 30, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-20816
__________________________
DANNY R, by next of friend
Ilan R.; ILAN R., Guardian,
Plaintiffs-Appellees,
versus
SPRING BRANCH INDEPENDENT SCHOOL
DISTRICT; ET AL,
Defendants,
THE TEXAS EDUCATION AGENCY,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
(H-02-CV-480)
___________________________________________________
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant The Texas Education Agency (“TEA”) filed
a motion to dismiss, on grounds of Eleventh Amendment sovereign
immunity, a claim of Plaintiffs-Appellees Danny R, by next of
friend Ilan R., and Ilan R., Guardian (collectively, “Appellees”),

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1 29 U.S.C. § 794.
2 The district court also denied TEA’s motion to dismiss
Appellees’ claim under the Individuals with Disabilities Education
Act (“IDEA”), but the only order appealed from by TEA is the one
denying dismissal of the Rehabilitation Act claim; so we do not
address the district court’s unappealed denial of TEA’s motion to
dismiss Appellees’ IDEA claim.
3 2005 WL 546507 (5th Cir. 2005)(en banc).
2
grounded in § 504 of the Rehabilitation Act.1 The district court
denied TEA’s motion to dismiss, concluding that, in accepting
federal educational funds made available by Congress under its
Spending Clause powers, TEA waived any right it might have had to
urge immunity under the Eleventh Amendment.2
We held TEA’s appeal in abeyance pending our resolution of
this precise issue in Pace v. Bogalusa City School Board et al.3
In our recent en banc disposition of Pace, we held that Eleventh
Amendment sovereign immunity to claims under § 504 of the
Rehabilitation Act is waived by any state or state agency that
accepts federal funds made available by Congress under the
authority of the Spending Clause of the United States Constitution
and clearly and expressly conditioned on waiver of immunity.
This holding in Pace controls our disposition of TEA’s appeal
of the district court’s order denying dismissal of Appellees’
Rehabilitation Act claim. That ruling is therefore affirmed, and
the case is remanded for further consistent proceedings.
AFFIRMED and REMANDED.

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