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U.S. Department of Education: Promoting Educational Excellence for all Americans

States' sovereign immunity (new Sec. 300.177)

Comment: None.

Discussion: In developing the proposed regulations, we incorporated those provisions of subpart A that apply to States. We inadvertently omitted the provisions in section 604 of the Act, regarding States' sovereign immunity. We have added these to the regulations in new Sec. 300.177. In paragraph (a), we have clarified that the statutory language means that a State must waive immunity in order to receive Part B funds. This is the longstanding interpretation of the Department and is consistent with Federal Circuit Courts' decisions interpreting this statutory language. (See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005); M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch. Dist. v. Mauney, 183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997).)

Changes: We have added the provisions in section 604 of the Act, regarding States' sovereign immunity, to new Sec. 300.177.